UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------
FORM 8-K
CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES ACT OF 1934
DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED): May 29, 1998
ASSET INVESTORS CORPORATION
(Exact name of registrant as specified in its charter)
Maryland 1-9360 84-1038736
(State or other jurisdiction of (Commission File (IRS Employer
incorporation or organization) Number) Identification No.)
3410 South Galena Street, Suite 210 80231
Denver, Colorado (Zip Code)
(Address of principal executive offices)
(303) 614-9400
(Registrant's telephone number, including area code)
N/A
(Former name or former address,
if changed since last report)
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Item 2. Acquisition or Disposition of Assets
On May 29, 1998, Asset Investors Corporation (the "Company") acquired an adult
manufactured home community located in Fort Myers, Florida from Serendipity
Properties, Inc. This community consists of 338 developed homesites and is 97%
occupied. In addition, on June 2, 1998, the Company acquired an adult
manufactured home community located in Mesa, Arizona from Brentwood West
Partners, LLP. This community consists of 350 developed homesites and is 100%
occupied.
The consideration for the communities was determined through arms-length
negotiations with the sellers. Total consideration for Serendipity Mobile Home
Park was $8,807,000 of cash, and for Brentwood West Mobile Home Park was
$6,789,000 of cash and $7,000,000 advanced under a short-term note from Holliday
Fenoglio Fowler, L.P. The Company intends to replace the short-term note with
permanent financing in the third quarter of 1998.
The Company generally intends to continue to utilize the assets acquired in the
transaction as rental properties which is the same manner as they were employed
prior to the acquisition. Due to the Company's intent to acquire additional
manufactured home communities, the Company's future dividends and the taxable
portion thereof cannot be estimated at this time.
The Private Securities Litigation Reform Act of 1995 provides a "safe harbor"
for forward-looking statements in certain circumstances. Certain information
included in this Report, the Company's Annual Report to Stockholders and other
Company filings (collectively "SEC Filings") under the Securities Act of 1933,
as amended, and the Securities Exchange Act of 1934, as amended (as well as
information communicated orally or in writing between the dates of such SEC
Filings) contains or may contain information that is forward looking, including,
without limitation, statements regarding the effect of acquisitions, the
Company's future financial performance and the effect of government regulations.
Actual results may differ materially from those described in the forward looking
statements and will be affected by a variety of risks and factors including,
without limitation, national and local economic conditions, the general level of
interest rates, terms of governmental regulations that affect the Company and
interpretations of those regulations, the competitive environment in which the
Company operates, financing risks, including the risk that the Company's cash
flow from operations may be insufficient to meet required payments of principal
and interest, real estate risks, including variations of real estate values and
the general economic climate in local markets and competition for tenants in
such markets, acquisition and development risks, including failure of such
acquisitions to perform in accordance with projections, and possible
environmental liabilities, including costs which may be incurred due to
necessary remediation of continued qualification as a real estate investment
trust involves the application of highly technical and complex provisions of the
Internal Revenue Code. Readers should carefully review the Company's financial
statements and the notes thereto, as well as the risk factors described in the
SEC Filings.
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Item 7. Financial Statements and Exhibits
(a) Financial Statements
The required financial statements will be filed by amendment within 60
days.
(b) Pro Forma Financial Information
The required pro forma financial information will be filed by amendment
within 60 days.
(c) Exhibits
Exhibit No. Description
2.5 Agreement of Sale dated as of April 13, 1998, between
Community Acquisition Joint Venture and Serendipity
Properties, Inc.
2.5(a) Assignment of Agreement of Sale dated as of May 20,
1998, between Community Acquisition Joint Venture and
Asset Investors Operating Partnership, L.P.
2.6 Purchase Agreement with Escrow Instructions, as amended,
dated as of April 14, 1998 between Brentwood
West Partners, LLP and Parkbridge Capital Group, Inc.
2.6(a) Conditional Assignment of Contract dated as of April 17,
1998, between Parkbridge Capital Group, Inc. and
Community Acquisition Development Corporation.
2.6 (b) Assignment of Agreement of Sale dated as of June
1, 1998, between Community Acquisition Joint Venture
and Asset Investors Operating Partnership, L.P.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
ASSET INVESTORS CORPORATION
Date: June 12, 1998
By: /s/Diane Schott Armstrong
-----------------------------
Diane Schott Armstrong
Controller
(Community Acquisition Joint Venture
National Agreement of Sale)
AGREEMENT OF SALE
THIS AGREEMENT OF SALE made as of this ____ day of March, 1998, by and
between COMMUNITY ACQUISITION JOINT VENTURE, a Delaware partnership ("BUYER")
and ____________________________ ("SELLER").
WHEREAS, SELLER is the fee simple owner of certain premises commonly
known as SERENDIPITY MOBILE HOME PARK located in the City of Fort Myers, Lee
County, Florida, more particularly described in Exhibit "A" attached hereto and
made a part hereof (together with all rights and easements appurtenant thereto
and all permanent improvements, fixtures and utility systems thereon, being
hereinafter collectively referred to as the "Real Property"); and
WHEREAS, SELLER desires to sell and BUYER desires to purchase the Real
Property and all personal property and equipment described in the Schedule of
Personal Property attached hereto as Exhibit "B" and made a part hereof (the
"Personal Property"), under the terms and conditions set forth herein (the
aforesaid Real Property and Personal Property being hereinafter collectively
referred to as the "Property").
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, together with other valuable considerations, the receipt and sufficiency
of which is hereby acknowledged, SELLER agrees to sell and BUYER agrees to buy
the Property on and under the terms and conditions herein set forth.
1. SALE AND PURCHASE OF PROPERTY. SELLER agrees to sell and convey to
BUYER and BUYER agrees to purchase:
(a) All of SELLER'S right, title and interest in and to the
Real Property, together with all right, title and interest of SELLER in and to
any land lying in the beds of any streets, avenues, alleys or passages, open or
proposed, bounding or abutting the Real Property, and drainage rights
appurtenant to the Real Property, together with all right, title and interest,
if any, of SELLER, in and to any easements, rights of way or passageways
appurtenant to or benefiting the Real Property and free of all liens and
encumbrances except the Permitted Exceptions, as that term is defined in
Paragraph 4 hereof;
(b) All articles of personal property of whatsoever nature or
sort, if any, which are owned by SELLER and which, as of the date of this
Agreement of Sale, are attached or appurtenant to or used exclusively in
connection with or located in or upon the Real Property, and any additions
thereto or replacements thereof which may be made between the date of this
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Agreement of Sale and the date of Closing hereunder (all of the foregoing being
hereinafter collectively referred to as the "Personal Property"), which Personal
Property shall be conveyed by SELLER to BUYER at Closing by a quit-claim bill of
sale; and
SELLER'S interest in the Real Property and the Personal Property are
hereinafter sometimes referred to collectively as the "Property".
2. CONSIDERATION. The total consideration to be paid by BUYER for the
Property shall be in the sum of EIGHT MILLION FOUR HUNDRED SIXTY THOUSAND
DOLLARS ($8,460,000.00) (the "Purchase Price").
3. PAYMENT OF CONSIDERATION. The Purchase Price shall be paid as
follows:
(a) Within five (5) calendar days of the Effective Date of
this Agreement of Sale, as that term is defined in paragraph 34 below, BUYER
shall deliver to Chicago Title Insurance Company, c/o Ernie Winn, at the
following address: 1819 Main St., Suite 360, Sarasota, Florida 34236 (the
"Escrow Agent"), the sum of ONE HUNDRED THOUSAND DOLLARS ($100,000.00) which
shall represent the earnest money deposit for the Property (the "Deposit"). The
Deposit shall be deposited by Escrow Agent in its Trust Account until the
expiration of the BUYER'S Inspection Period (as hereinafter defined).
(b) The Escrow Agent shall, upon receipt from BUYER of a
complete and fully executed W-9 Reporting Form, deposit the Deposit into an
interest bearing money market account, which interest shall accrue to BUYER'S
benefit unless BUYER defaults hereunder.
(c) BUYER shall pay the balance of the Purchase Price, after
application of the Deposit to the Purchase Price, to SELLER at Closing by wire
transfer of immediately available federal funds at the office of the Escrow
Agent.
4. TITLE INSURANCE.
A. Within ten (10) days of the Effective Date of this
Agreement by SELLER, SELLER shall deliver to BUYER a copy of the owner's current
title insurance policy, if any, together with copies of all instruments recorded
in the public records or otherwise encumbering the Property, subsequent to the
effective date of said Policy.
B. Within twenty (20) days of the date of Statutory Compliance
provided in paragraph 8 (should BUYER elect to purchase the Property) Williams,
Parker, Harrison, Dietz and Getzen ("Title Agent") shall, at SELLER'S expense,
as agent for Chicago Title Insurance Company, deliver to BUYER and BUYER'S
Attorney for approval, as hereinafter provided, a preliminary owner's title
binder for a title insurance policy, together with copies of all exception
documents referred to therein. The binder and policy to be issued pursuant
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thereto shall be paid for by SELLER, shall be issued at the minimum promulgated
rate, and shall be in an amount equal to the amount of the purchase price. The
policy and binder shall be in a current ALTA standard form "B", except that
there shall be no exceptions unless agreed to by BUYER (the "Permitted
Exceptions"). The policy shall insure marketable title.
C. BUYER shall have until the end of Buyer's Inspection
Period, to give written notice to SELLER or SELLER'S attorney of any objections
by BUYER to the state of title (including any matters shown on the survey which
are unacceptable to BUYER). Failure of BUYER to deliver a written notice of
disapproval of the state of title to SELLER or SELLER'S attorney within said
period shall be conclusive evidence that BUYER has approved said preliminary
title report and all exceptions to title disclosed in said report or disclosed
on the survey.
D. After due notice, SELLER shall have a reasonable time, not
to exceed thirty (30) days, (and if necessary, the Closing shall be delayed for
that period) to: (a) cure any title defects, or (b) terminate this Agreement,
whereupon this Agreement shall terminate and all parties shall be released from
any further obligations hereunder, except that BUYER shall be entitled to an
immediate refund of all monies paid in respect of the purchase price plus
accrued interest, if any. Provided, however, BUYER may elect to waive such
defects and to proceed under this Agreement and accept title to the Real
Property subject to such defects, in which case the Closing shall take place on
the later of the date set for Closing as hereinafter provided or on a date
mutually agreed upon by SELLER and BUYER which shall be within ten (10) days
from the date of such election by BUYER (the date finally set by the parties
hereto for the Closing shall be hereinafter referred to as the "Closing Date").
E. Title Agent or its agent, shall be in attendance at the
Closing and be in a position to issue the title policy upon recording the
appropriate documents and insure that SELLER has complied with all requirements
set forth under the applicable state statutes to extinguish any right of
purchase or rescission in favor of any tenants or homeowners association.
5. SURVEY. Within ten (10) days of the effective date of this Agreement
by SELLER, SELLER shall deliver to BUYER the most current survey of the Real
Property in SELLER'S possession (if any). BUYER may, at its expense, within
thirty (30) days of the date of the Statutory Compliance, obtain a current "as
built" survey of the Real Property. The survey must be acceptable and certified
to BUYER, BUYER'S mortgage lender (if any), and the title insurer insuring the
Real Property so that the "survey" and "claims of easements" exceptions can be
removed from the title policy, and must be prepared in accordance with the
minimum requirements adopted by the agency or authority regulation the
preparation of surveys in the State in which the Real Property is located. The
survey shall locate all easements, streets, common area improvements, building
setback lines, and other manmade objects, excluding manufactured homes and shall
be super- imposed over an aerial photograph so as to locate all manufactured
homes and vacant spaces, if any. If the survey discloses an encroachment or
setback violation, BUYER shall notify SELLER thereof in writing within said
thirty (30) day period, and this shall be deemed a defect in title and paragraph
4 above, shall apply. The survey shall be dated and signed by a registered
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and/or licensed land surveyor in the state in which the Real Property is
located. The surveyor's seal shall be affixed to the survey. The surveyor's
registration and/or license number shall be indicated thereon, and the legal
description of the Real Property shall be set forth on the survey. Any other
survey requirements in the Title Commitment shall also be complied with,
including a surveyor's certificate acceptable to the Title Insurer and counsel
for BUYER.
6. REPRESENTATIONS AND WARRANTIES.
A. To induce BUYER to enter into this Agreement, SELLER makes
the following representations and warranties, all of which shall be true and
correct continuously throughout the term of this Agreement, and which shall
survive the closing of title for a period of six (6) months from the Closing
Date (hereinafter defined):
(a) SELLER is the owner of the Property and has the
authority to execute and deliver this Agreement.
(b) To SELLER'S knowledge, there are no special or
other assessments levied against or relating to the Property and SELLER does not
know of any proposed assessments.
(c) No goods or services have been contracted for by
SELLER or furnished to the Real Property on SELLER'S behalf which might give
rise to any mechanic's liens upon or affecting all or any part of the Real
Property.
(d) There are no leases which affect the Real
Property except as set forth in the Rent Roll attached hereto as Exhibit "C" and
made a part hereof and the information contained on the Rent Roll is true and
correct in all material respects; no rental agents, brokers or finders have any
rights with regard to such leases and there are no commissions payable in
connection therewith; no tenant has an option to purchase any part of the
Property except collectively through their Association pursuant to Section
723.071, Florida Statutes; and SELLER is the landlord under each such lease and
has the right to assign same to BUYER.
(e) SELLER has received no notice of any violations
of any law, ordinance, rule, order, regulation, code or requirement, including
any requirement contained in any hazard insurance policy covering the Property
or any part thereof or of any board of fire underwriters or other body
exercising similar functions, which are applicable to the Property or to any
part thereof or which are applicable to the use or manner of use, occupancy,
possession or operation of the Property, which have not been cured. SELLER
represents that the litigation with regard to the past delivery of notices of
increase in lot rental amount and other issues styled Serendipity Mobile
Homeowners, Inc. vs. Serendipity Properties, Inc., case number 94-9622-CA-JLR,
Circuit Court for Lee County, Florida, has been settled and dismissed with
prejudice by the plaintiff thereof.
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(f) To SELLER'S knowledge, SELLER has obtained and
kept in good standing all governmental permits, licenses, and approvals
necessary for the operation of the Property as a manufactured housing (mobile
home) community, including, as applicable, all County Health Permits or other
applicable permits, State Department of Environmental Protection permits and
State HRS permits, and SELLER has received no written notice from any such
governmental permitting or licensing authority that there are material
violations currently existing thereunder.
(g) A prospectus approved by the Bureau of Mobile
Homes of the State of Florida Department of Business and Professional
Regulation, has been provided to each tenant of the Property, if so required
Chapter 723, Florida Statutes, and the administrative rules promulgated pursuant
thereto. BUYER will not provide any prospectus to a tenant of the Property prior
to Closing unless both SELLER and BUYER have approved such prospectus in
writing.
(h) SELLER has not contracted for any services or
employment and has made no commitments or obligations therefor which will bind
BUYER as a successor in interest with respect to the Property except those
contracts listed in Exhibit "D" (the "Service Contracts"). With respect to the
Service Contracts, (i) amounts paid or payable thereunder shall be prorated
between the parties at the Closing and credits shall be given the parties as
appropriate to such prorations, and (ii) they can be terminated upon thirty (30)
days written notice or less except: (1) Septic Tank and Sewage Treatment Plant
Service Agreement, (2) Amerigas Propane Tank Lease and (3) Browning Ferris Solid
Waste Collection and Disposal Service Agreement. .
(i) Except in the ordinary course of SELLER'S
business, SELLER will not enter into any amendment to or modification of any of
the Leases prior to the Closing Date, which will reduce, forgive, or postpone
any rents or which would otherwise materially and adversely affect the value of
the Property, without BUYER'S consent; no rents or other deposits are or will on
the Closing Date be held by SELLER, except only tenant security deposits and
prepaid rents in the ordinary course of SELLER'S business; and no commissions or
other fees payable to any person, entity or agent are due on the rentals
collected or to be collected under the Leases.
(j) Pending Closing hereunder, SELLER shall conduct
its business involving the Property in the ordinary course, and during said
period will:
(1) Refrain from entering into any contracts
or other commitments regarding the Property, other than in the ordinary and
usual course of business, without the prior written consent of BUYER;
(2) Continue to maintain and repair the
Property in at least the manner which SELLER has previously maintained and
repaired the Property, and SELLER will permit or commit no waste of the Property
which will materially and adversely affect the value of the Property;
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(3) Keep in effect SELLER'S existing
policies of public liability and hazard and extended coverage insurance insuring
the Property; and
(k) No tenant has been granted any rent concession
not reflected on the face of the copy of the lease for that tenant as provided
by SELLER to BUYER (other than as set forth on the Rent Roll).
(l) To SELLER'S knowledge no underground storage
tanks, hazardous substances, or contaminants subject to Federal, state or local
laws or regulation have been used, stored or located on, under or about the
Property in any manner contrary to applicable law and the Property is free from
environmental contamination by such hazardous substances which require
remediation except as set forth in any Phase I Environmental Audit Summary
attached hereto as Exhibit "E".
B. For purposes of this Agreement, the words "SELLER'S
knowledge", "actual knowledge" or "knowledge" shall mean only that information
that is possessed by Martin Newby, Tim Newby or Todd Newby without
investigation, inquiry, or review of files for this transaction, and shall not
include any imputed knowledge or any information that is possessed by any of
SELLER'S other employees, agents, contractors, licensees, borrowers, lenders, or
any other third parties. For purposes of this Agreement, the words "actual
notice", "written notice", "notices" or "notice" when used in reference to
SELLER'S warranties, representations, and disclosures in this Agreement shall
mean only that written notice received by Martin Newby, Tim Newby or Todd Newby,
and shall not include any other notice, whether oral or written, received by any
employees, agents, contractors, licensees, any third parties, or any
constructive notice or information not physically received by Martin Newby, Tim
Newby or Todd Newby.
C. All representations and warranties of the SELLER under this
Agreement enure solely to the BUYER, and to any assignee to whom BUYER may
assign this Agreement in accordance with paragraph 18 below, and shall not enure
to and may not be relied on by any of BUYER'S successors or assigns or by other
third parties.
D. SELLER, by executing this Agreement, agrees to indemnify,
defend and save and hold BUYER harmless from and against any and all losses,
costs, expenses, liabilities, claims, causes of action, suits or other matters
by reason of any breach of the above representations and warranties. Such
indemnification includes, but is not limited to, costs and attorneys' fees and
expenses (including attorneys' fees and expenses on appeal) reasonably incurred
in connection with the defense of any claims against BUYER by any party arising
out of the above matters. The SELLER'S foregoing indemnity obligation shall
survive Closing and delivery of the Special Warranty Deed hereunder for a period
of six (6) months and all claims of BUYER with respect to such indemnity
obligation or otherwise with respect to the representations and warranties of
SELLER set forth in this Agreement shall expire except those claims that BUYER
asserts to SELLER in writing within six (6) months after closing. This indemnity
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obligation shall survive Closing and delivery of the Special Warranty Deed
hereunder and shall include all attorneys' fees and costs incurred in collection
of all sums due from SELLER to BUYER pursuant to this Indemnity, together with
interest on said sums at the maximum rate permitted by law through collection.
E. In the event that any one or more of the representations or
warranties given by SELLER to BUYER in paragraph 6.A. above is/are determined by
BUYER between the Closing Date and the Effective Date, to be inaccurate, BUYER
shall give written notice to SELLER and SELLER shall have the option to: use its
best efforts to promptly cure the violation(s); reimburse BUYER for the
reasonable cost of cure (including all reasonable attorneys' fees, engineering
fees, or other applicable fees, costs and charges); terminate this Agreement and
direct Escrow Agent to refund the deposit to BUYER; or to contest BUYER'S
determination by written notice to BUYER, in which event BUYER shall have the
option to pursue the rights and remedies available to BUYER pursuant to
paragraph 20 of this Agreement.
F. EXCEPT AS IS OTHERWISE PROVIDED ABOVE IN THIS PARAGRAPH 6,
AND EXCEPT FOR THE WARRANTY OF TITLE, SELLER MAKES NO WARRANTIES OR
REPRESENTATIONS OF ANY KIND OR CHARACTER, EXPRESS OR IMPLIED, WITH RESPECT TO
THE PROPERTY OR ANY OTHER MATTERS RELATING TO THE TRANSACTIONS CONTEMPLATED BY
THIS AGREEMENT.
Without limiting the foregoing, except as specifically set forth in
this Agreement, SELLER has not made, or authorized anyone to make, any warranty
or representation affecting or relating to the Property or any matter or thing
pertaining to this Agreement, no such representation or warranty shall be
implied. BUYER expressly acknowledges that no such warranty or representation
has been made and that BUYER is not relying on any warranty or representation
whatsoever other than as is expressly set forth in this Agreement. BUYER shall
accept the Property "as is", "where is", subject to all defects, in its
condition on the date of closing subject only to the express provisions of this
Agreement. Without limiting the foregoing, BUYER shall be obligated at its own
expense to assure itself that the prospectus and other materials prepared by
SELLER and used in the operation of the Property satisfy the requirements of,
and conform to, applicable laws, regulations and other applicable requirements.
Except as otherwise specifically set forth in this Agreement, SELLER makes no
warranty or representation whatsoever with respect to that prospectus and other
materials.
As a condition to BUYER'S reliance on the warranties and
representations set forth in this Agreement, BUYER shall be required to deliver
to SELLER a sworn certificate at the closing stating that, as a result of its
inspection of the Property and the books and records related thereto and all
other studies, surveys, audits, inspections, and investigations relating to this
transaction (collectively, the "Inspections"), BUYER is not aware of any matter
that constitutes, or with the passage of time or giving of notice would
constitute, a breach of SELLER'S warranties and representations in this
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Agreement, or that such breaches may exist but BUYER elects to waive all such
breaches or representations that it has discovered as a result of its
Inspections.
SELLER, on the Closing Date, shall deliver to BUYER a sworn certificate
that, as of the Closing Date, all the warranties and representations of SELLER
set forth in this paragraph 6 were true and correct on the Closing Date, subject
to the qualifications, limitations on survival and reliance and other conditions
with regard to such warranties and representations set forth in this Agreement,
all of which shall be incorporated by reference in said certificate.
7. TERMITE INSPECTION AND REPORT. Prior to the expiration of the
Inspection Period and at BUYER'S expense, BUYER may obtain a termite certificate
for the Property.
8. BUYER'S INSPECTION PERIOD.BUYER shall have a thirty (30) day period
("BUYER'S Inspection Period") commencing from the date the SELLER has mailed the
notice to the officers of the homeowners association ("HOA") contemplated by
Section 723.071(1)(c), Florida Statutes(the "Statutory Compliance") during which
time BUYER shall have the right to perform such due diligence evaluations as
BUYER may reasonably require in connection with its evaluation of the Property,
including, but not limited to, environmental, soils, flood plain, legal,
financial and engineering studies (the "Data"), all at BUYER'S sole cost and
expense. BUYER and/or any contractor of BUYER shall, prior to entry on the Real
Property hereunder, obtain casualty/liability insurance in an amount
satisfactory to SELLER, or to add SELLER to existing policies as a named
insured, and provide SELLER with a certificate of insurance evidencing that
SELLER is insured against any such loss. In the event that any inspection by
BUYER or any consultant engaged by BUYER in connection with BUYER'S due
diligence results in any damage or disturbance to the Property or any other
damage or disturbance, BUYER shall cause such consultant, or undertake itself,
at no cost to SELLER, to repair such damage and restore such Property to the
condition it was in immediately prior to such inspection within 15 days after
the damage occurs. If BUYER approves of the Data, BUYER shall deliver written
notice to SELLER indicating BUYER'S approval of the Data (the "Data Approval
Notice") prior to the expiration of the Inspection Period. If BUYER fails to
deliver the Data Approval Notice as aforesaid, the Data shall be deemed
unsatisfactory to BUYER and this Agreement shall automatically terminate, in
which event Escrow Agent shall immediately return the Deposit, plus any accrued
interest, to BUYER and the parties shall be released from any further
obligations hereunder. In connection with BUYER'S due diligence evaluations of
the Property, SELLER agrees to furnish the following information to BUYER on the
Effective Date (unless otherwise provided herein):
1. Current Rent Roll;
2. Monthly Financial Statements for the previous thirty-six (36)
months;
3. Community Prospectus or comparable State required documents;
4. Mobile Home Inventory List;
5. Previous Title Insurance Policy;
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6. Prior Survey;
7. Lists of all current and previous lawsuits;
8. Existing Environmental Phase I Report (if any);
9. True Copies of paid real estate and personal property tax bills for
the previous three (3) years;
10.True Copies of Rental Increase Notices for previous three (3)
years.
The Inspection Period shall be extended one (1) day for each
day after the Effective Date (unless otherwise provided herein) SELLER fails to
provide the foregoing to BUYER.
Should the HOA or any other statutorily recognized residents'
association elect to purchase the Property, but then fails to close for any
reason, this Agreement shall be deemed a back-up contract and the terms and
conditions of this paragraph shall control upon the termination of the
residents' contract.
BUYER'S right under this Agreement to conduct inspections and
tests shall be subject to the following conditions and restrictions:
A. If BUYER timely terminates this Agreement pursuant
to this paragraph 8, all plans, correspondence, surveys, drawings, reports,
audits and other materials obtained by or on behalf of BUYER with respect to the
Property shall promptly be delivered to SELLER, without cost to SELLER, and
shall become SELLER'S property.
B. The right of entry granted hereby shall be subject
to the rights of all tenants and occupants of the Property. BUYER and its
employees, contractors, architects, engineers, agents and representatives shall
take reasonable precautions so that BUYER'S inspections concerning the Property
and operations thereon, and entries on the Property on BUYER'S behalf, shall
cause minimum disruption to any parties in possession of the Property. Without
limiting the foregoing, BUYER agrees to make no contact or communication with
any tenant that in SELLER'S reasonable opinion may in any manner or for any
reason interfere with, disrupt, or otherwise harm relations between SELLER and
the tenant; and without prejudice to all other remedies available to SELLER,
SELLER may, if it reasonably concludes that BUYER has violated this restriction,
prohibit or restrict contacts or communications between BUYER (or its employees,
agents, representatives, or other persons acting on behalf of or at the request
of BUYER) and a tenant. Provided, however, BUYER shall be entitled to contact
members of the Board of the Homeowners Association for the Property. In order
that SELLER may protect its rights under, and enforce the requirements of, this
provision, BUYER shall contact no tenant without first obtaining SELLER'S
written consent to do so.
C. BUYER, as a condition to its exercise of its right
of entry, agrees to indemnify, defend and hold harmless SELLER from all fines,
penalties, liens, losses, costs, claims, damages, liabilities and expenses,
including reasonable attorneys fees and other costs and expenses incurred,
sustained by, or asserted against SELLER arising from the exercise by BUYER, or
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any of its agents, of this right of entry. The foregoing indemnification
provision shall survive the closing or the termination of this Agreement (for
whatever reason).
D. At all times before the closing, BUYER agrees to
hold in strict confidence and not to disclose, or cause or allowed to be
disclosed, to any person who is not an employee of BUYER without the prior
written consent of SELLER, all information and documents including this
Agreement in any way related to the Property or to the transactions contemplated
by this Agreement, except as may be required by applicable law or as otherwise
contemplated in this Agreement, and except to BUYER'S representatives, proposed
lenders and elected officials of pertinent governmental authorities, legal and
financial advisors, and other consultants, to the extent necessary for BUYER'S
analysis of the Property or performance of this Agreement. Without limiting the
foregoing confidentiality requirements, BUYER agrees that BUYER may use the Data
concerning the Property provided or made available to BUYER pursuant to this
Agreement only for the transactions contemplated in this Agreement and for no
other purpose.
9. CONDITIONS PRECEDENT. The following are conditions precedent to
BUYER'S obligation to close and consummate the transaction contemplated by this
Agreement. BUYER and only BUYER, may waive one or more of these conditions. In
the event that all of these conditions are not satisfied or fulfilled by the
Closing Date, BUYER may elect not to close this transaction, and in such event,
BUYER shall be entitled to the prompt return from Escrow Agent of the Deposit:
A. SELLER is in a position to execute at Closing, a SELLER'S
Compliance Affidavit in accordance with Florida Statutes, Chapter 723.072. If
the HOA exercises their right to purchase the Property in accordance with the
F.S. ss. 723.071(1) by signing a contract with the SELLER and in fact closes on
that contract, this Agreement shall be deemed terminated and the Deposit
returned to BUYER.
B. The representations and warranties of SELLER contained in
paragraph 6 above, and all other representations and warranties of SELLER
contained herein, shall be true and correct on the Closing Date.
10. CLOSING. The sale and purchase transaction contemplated by this
Agreement shall be closed and consummated on or before ten business (10) days
from the date of expiration of the Inspection Period on a date mutually agreed
to by the parties (the "Closing Date"). Closing shall be at the offices of
SELLER'S counsel or, at BUYER'S option, may be effected through the mail as
coordinated by counsel for SELLER and BUYER. Notice shall be given to Escrow
Agent at least five (5) days in advance of the date established by the parties
for Closing. The Closing shall be at 10:00 A.M., Eastern Standard Time on the
Closing Date unless otherwise agreed by the parties or their counsel. At
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Closing, SELLER and, as applicable, BUYER shall execute and deliver the
following documents in form acceptable to BUYER and/or undertake the following:
A. All corporate or applicable partnership certifications,
resolutions and approvals necessary to evidence both the SELLER'S and BUYER'S
authority to enter into and consummate the transactions contemplated by this
Agreement.
B. Special Warranty Deed from SELLER to BUYER conveying title
to the Real Property to BUYER free and clear of all liens, encumbrances and
matters other than the Permitted Exceptions.
C. Bill of Sale from SELLER to BUYER transferring the Personal
Property free and clear of all liens and encumbrances together with the original
Motor Vehicle Certificate of Title (properly endorsed and lien free) for each
mobile home unit and motor vehicle included in this purchase and sale.
D. Affidavit of No Liens by SELLER.
E. Affidavit of Non-Foreign Status by SELLER.
F. Florida Statutes, Chapter 723.072 Affidavit of Compliance
by SELLER.
G. Updated Certified rent roll dated and accurate as of the
Closing Date and certified by SELLER to BUYER.
H. Assignment from SELLER to BUYER assigning all of SELLER'S
right, title and interest, to the extent it exists and without representation or
warranty, in and to the name by which the Property is commonly known, all
authorizations, permits and licenses relating to the operation of the Property
which are assignable by SELLER, if any, and all leases, contracts and other
items required to be assigned as set forth in this Agreement free and clear of
all liens and encumbrances except for the matters permitted in this Agreement;
all of which shall be assumed by BUYER effective from and after the Closing
Date. SELLER shall undertake all action, and execute all forms, required by all
governmental authorities and contract vendors to effect this assignment.
I. Assignment by SELLER, to the extent they exist and without
representation or warranty, of all currently existing and effective claims,
guaranties, warranties, indemnification and all other rights, if any, which
SELLER may have against suppliers, laborers, materialmen, contractors, or
sub-contractors arising out of or in connection with the installation,
construction and maintenance of the Property; all of which shall be assumed by
BUYER effective from and after the Closing Date.
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J. Assignment by SELLER, to the extent they exist and without
representation or warranty, to BUYER of all agreements, if any, which SELLER has
for access and utilities to service the Property; all of which shall be assumed
by BUYER effective from and after the Closing Date.
K. Closing Statement by SELLER and BUYER.
L. A BUYER'S Certificate of No Knowledge of any breach of
SELLER'S warranties and representations, as to the representations and
warranties under paragraph 6 and as required by the last paragraph of paragraph
6.F..
M. Such other documents as are reasonably necessary to close
and consummate the purchase and sale transaction contemplated by this Agreement.
N. SELLER shall deliver to BUYER all existing plans and
specifications relating to the improvements located upon the Property which are
in SELLER'S possession or reasonably accessible to SELLER.
O. SELLER shall deliver and assign to BUYER all of SELLER'S
right, title and interest, if any, in and to all licenses, permits, certificates
of occupancy, mobile home titles (for SELLER owned mobile home units, if any)
and such other comparable certificates or documents issued by the appropriate
governmental authorities with respect to the Property or any part thereof which
are legally assignable by SELLER, if any.
P. BUYER shall deliver to SELLER the adjusted cash portion of
the Purchase Price and authorize Escrow Agent's delivery of the Deposit to
SELLER. Said sum shall be paid, at SELLER'S election, by locally drawn cashier's
check or Federal Reserve Bank wire transfer.
11. CLOSING COSTS. SELLER shall pay for the cost of any corrective
documents required for marketable and insurable title, transfer stamps on the
Special Warranty Deed and all costs associated with the issuance of the title
binder and policy. BUYER shall pay for the cost of recording the Special
Warranty Deed, any sales tax on conveyance or title transfer of any mobile
homes, vehicles or other Personal Property, for the survey, termite report and
all other due diligence and inspection costs and expenses. Each party shall bear
its own attorneys' fees and other professional costs, except as otherwise
provided for herein.
12. PRORATIONS. Except as otherwise set forth in this Agreement, all
taxes and other operating expenses and revenue of the Property shall be prorated
as of the Closing Date. Taxes shall be prorated based upon the current year's
tax taking into account the maximum available discount. If the Closing takes
place and the current year's taxes are not fixed and the current year's
assessment is available, taxes shall be prorated based upon such assessment and
the prior year's millage. If the current year's assessment is not available,
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then taxes shall be prorated on the prior year's tax taking into account the
maximum available discount. Any rents received by SELLER in respect of the
period after the Closing Date shall be promptly remitted to BUYER. With respect
to delinquent lot rental amounts, BUYER shall make a diligent attempt to collect
the same for SELLER'S benefit after closing in the usual course of operation of
the Property and any such collection shall be remitted to SELLER promptly upon
receipt by BUYER, less any expenses of such collection incurred by BUYER and
approved in advance by SELLER in writing. Nothing contained herein shall operate
to require BUYER to institute any lawsuit or other collection procedure to
collect such delinquent lot rental amounts. In this regard the first monies
collected from tenants owing delinquent lot rental amounts shall first be
applied to current rents due and then to lot rental amounts prior to the Closing
Date unless they are intended by the tenant to apply to the period prior to
closing. This obligation to remit shall survive the Closing and delivery of the
Special Warranty Deed. SELLER shall deliver to BUYER at the Closing, copies of
such statements, invoices bills and receipts as shall be requested by BUYER to
enable BUYER to verify the accuracy of the amounts of any prorations made
pursuant to this paragraph. BUYER shall be credited at Closing with all advance
rentals and tenant security deposits previously paid to SELLER. All prorations
shall be made so that SELLER has the benefit of all income and the burden of all
expenses up to and including the Closing Date and BUYER has the benefit of all
income and the burden of all expenses after the Closing Date.
13. DELIVERY OF POSSESSION. At Closing, SELLER shall deliver to BUYER
possession of the Real Property subject only to the Permitted Exceptions.
14. FIRE OR OTHER CASUALTY. For purposes of this Agreement of Sale, a
"minor casualty" shall be any casualty occurring to the Real Property which
causes damages of less than One Hundred Fifty Thousand Dollars ($150,000.00) to
the Real Property. Any other casualty shall be a "major casualty". If, prior to
Closing hereunder, the Real Property is subjected to a major or minor casualty
of which SELLER becomes aware, SELLER shall give BUYER prompt written notice
thereof. If such casualty is a minor casualty, this Agreement of Sale shall
remain in full force and effect and the purchase contemplated herein shall be
concluded with no further adjustment, and at Closing SELLER shall assign,
transfer and set over to BUYER all of the right, title and interest of SELLER in
and to any awards that have been or that may thereafter be made for such
casualty, subject only to any rights of Tenant under each Lease. If such
casualty is a major casualty which SELLER, at its option, does not repair prior
to 60 days after the original Closing Date (with the closing extended for such
60 day period), the Real Property shall be considered a defective parcel and
BUYER shall have the right to terminate this Agreement whereupon the Deposit
will be refunded to the BUYER and the parties will be released from any further
liability hereunder.
15. EMINENT DOMAIN. For purposes of this Agreement of Sale, a "minor
condemnation" shall be any taking or condemnation by any body having the power
of condemnation or eminent domain which causes damages of less than One Hundred
Fifty Thousand Dollars ($150,000.00) to the Real Property. Any other taking or
condemnation shall be a "major condemnation". If prior to Closing hereunder the
Real Property is subjected to a major or minor condemnation of which SELLER
becomes aware, SELLER shall give BUYER prompt written notice thereof. If such
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condemnation is a minor condemnation, this Agreement of Sale shall remain in
full force and effect and the purchase contemplated herein, less any interest
taken by eminent domain or condemnation, shall be effected with no further
adjustment, and at Closing, SELLER shall assign, transfer and set over to BUYER
all of the right, title and interest of SELLER in and to any awards that have
been or that may thereafter be made for such taking, subject only to rights of
Tenant under any Lease. If such condemnation is a major condemnation, the Real
Property subject to the major condemnation shall be considered a defective
parcel and BUYER shall have the right to terminate this Agreement whereupon the
Deposit will be refunded to the BUYER and the parties will be released from any
further liability hereunder
16. NOTICES. All notices and other communications under this Agreement
of Sale shall be in writing and shall be effectively given only if sent by
nationally recognized overnight courier service, postage prepaid, return receipt
requested, addressed as follows:
To SELLER: Serendipity Properties, Inc.
3801 Bee Ridge Road, Suite 12
Sarasota, Florida 34233
Telecopier: (941) 923-6257
With a copy to: James L. Turner, Esq.
Williams, Parker et al
200 South Orange Avenue
Sarasota, Florida 34236
Telecopier: (941) 366-5109
To BUYER: Asset Investors Corporation
Attn: Bruce E. Moore, President
2 Ponds Edge Drive
Chadds Ford, PA 19317
FAX No. (610) 388-9616
With a copy to: Community Acquisition Joint Venture
Attn: Joseph W. Gaynor
2637 McCormick Dr., Ste. B
Clearwater, FL 34619
FAX No. (813) 791-9200
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or such other address as the party to be notified shall have designated to the
other party hereby by notice delivered in accordance herewith. All such notices
shall be deemed given on the business day next following the day such notice is
accepted for delivery by the overnight courier service.
17. ASSIGNMENT OF NAME. At Closing, SELLER shall assign to BUYER,
without limitation, all of its right, title and interest in the name by which
the Property is commonly known and hereinbefore referred to.
18. ASSIGNMENT; BINDING EFFECT. BUYER may not assign its rights and
interests under this Agreement of Sale to any party other than to Asset
Investors Corporation or to Asset Investors Operating Partnership or to any
affiliate thereof, without first obtaining the prior written consent of SELLER,
which consent may be withheld in SELLER'S sole discretion. "Affiliate" shall
have the meaning set forth in Rule 12 (b)-2 of the General Rules and Regulations
under the Securities and Exchange Act of 1934, as amended. Prior to the
expiration of the Inspection Period, BUYER will notify SELLER of the identity of
any proposed assignee of this Agreement of Sale. This Agreement shall find the
parties hereto and their respective heirs and assigns.
19. SUPPLIES. Inventories of supplies, including but not limited to
paint, toilet tissue, soap, paper towels and all cleaning materials, if any
located on the Real Property on the Closing Date shall be transferred to BUYER
at no additional cost at the time of Closing and shall be covered by the Bill of
Sale.
20. DEFAULT BY SELLER. If, under the provisions of this Agreement,
SELLER shall be obligated to complete the sale of the Property but fails to do
so within the applicable period provided for closing and such default continues
for a period of fifteen (15) days after written notice thereof from BUYER to
SELLER, or shall otherwise fail to perform any of the other obligations of
SELLER hereunder within the required time period, BUYER shall have the option,
to be exercised in its sole discretion, to: (a) apply to the Circuit Court of
the County where the Real Property is located to seek to have specific
performance under this Agreement and in such action shall have the right to
recover legally cognizable damages suffered by BUYER by reason of the delay in
BUYER'S acquisition of the Property; or (b) sue SELLER for legally cognizable
damages sustained by BUYER by reason of the default of SELLER provided, however,
that in no event shall the damages recoverable exceed four percent (4%) of the
gross purchase price; or (c) obtain the prompt return from Escrow Agent of the
Deposit, with interest, together with any other amounts due and owing to BUYER
pursuant to the terms of this Agreement, and thereafter terminate this
Agreement.
21. DEFAULT BY BUYER. If, under the provisions of this Agreement, BUYER
shall be obligated to complete the purchase of the Property but fails to do so
within the applicable period provided for closing, and such default continues
for a period of fifteen (15) days after written notice thereof from SELLER to
BUYER, SELLER'S sole right and exclusive remedy against BUYER shall be to obtain
the Deposit (a) as consideration for the execution of this Agreement; (b) as
agreed on liquidated damages sustained by SELLER because of such default by
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BUYER (the parties hereto agreeing that the retention of such funds shall not be
deemed a penalty, and recognizing the impossibility of precisely ascertaining
the amount of damages to SELLER because of such default and hereby declaring and
agreeing that the sum so retained is and represents the reasonable damages of
SELLER); (c) in full settlement of any claims of damages and in lieu of a
specific performance by SELLER against BUYER; and (d) in consideration for the
full and absolute release of BUYER by SELLER of any and all further obligations
under this Agreement. In the event BUYER defaults hereunder, BUYER shall
forthwith on demand by SELLER return to SELLER all title papers and other
documents relating to the Property, including BUYER'S copy of this Agreement.
22. PROVISIONS WITH RESPECT TO ESCROW.
(a) The duties and obligations of Escrow Agent hereunder shall
be entirely administrative and ministerial and not discretionary. Escrow Agent
shall be under no responsibility in respect of the Deposit other than to
faithfully follow the instructions herein contained. Escrow Agent may
conclusively rely upon any instructions or documents delivered to it by BUYER
and SELLER and purportedly executed by a duly authorized officer or partner
thereof and shall be under-no duty of independent inquiry with respect to any
facts or circumstances recited therein. In the event that any notice or
instruction required to be delivered to Escrow Agent hereunder is not so
delivered, Escrow Agent may hold the Deposit, if any, pending delivery to Escrow
Agent of such instruction or notice and may exercise all of Escrow Agent's
rights and remedies hereunder or otherwise provided by law. The parties hereto
jointly and severally agree to reimburse and indemnify Escrow Agent for, and
hold Escrow Agent harmless against, any loss, liability or expense, including
but not limited to, reasonable attorney's fees, which may be asserted against
Escrow Agent or to which Escrow Agent may be exposed or which may be incurred by
reason of the acceptance of, or the performance of duties and obligations under
this Agreement of Sale, except arising from such Escrow Agent's gross negligence
or willful misconduct. In no event shall Escrow Agent be liable for any loss,
cost or damage arising out of the performance of its duties hereunder, except
for acts of gross negligence or willful misconduct.
(b) In the event of any dispute or disagreement in connection
with the performance by Escrow Agent of its duties under this Agreement of Sale,
including, but not limited to, the respective rights of the parties to the
Deposit, Escrow Agent may consult with counsel selected and employed by Escrow
Agent, and Escrow Agent shall suffer no liability for any action taken or
suffered in good faith in accordance with the opinion of such counsel, if any,
provided, however, that the Deposit shall be disbursed in accordance with the
terms of this Agreement of Sale. Notwithstanding any other provision of this
Agreement of Sale, if any dispute or difference arises among the parties or if
any conflicting demand shall be made upon Escrow Agent, Escrow Agent shall not
be required to determine the same or take any action thereon. Rather, Escrow
Agent may await settlement of the controversy by appropriate legal proceedings;
or Escrow Agent may, by written notice to the parties hereto, initiate
litigation to determine to whom the Deposit held under this Agreement of Sale
shall be delivered; or Escrow Agent may file suit in interpleader with the
proper court in the United States District Court for the Eastern District of New
York, for the purpose of having the respective rights of the parties
adjudicated. Escrow Agent, upon initiation of such suit, may deposit with the
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court the Deposit and, upon giving notice thereof to the parties hereto, Escrow
Agent shall be fully released and discharged from all further obligations
hereunder with respect to the Deposit except arising from gross negligence or
willful misconduct of Escrow Agent. The parties acknowledge that Escrow Agent is
the attorney for SELLER and, in the event any dispute of difference arises among
the parties, Escrow Agent may continue to represent SELLER in such dispute
notwithstanding it's role as Escrow Agent.
23. ACCEPTANCE DATE. SELLER shall have until 5:00 P.M. (EST) on the
fifth (5th) business day following BUYER's Execution Date, within which to
accept this Agreement. In the event SELLER fails to accept this Agreement as of
that time and date, this Agreement shall be null and void and of no further
effect and BUYER shall be entitled to the prompt return from Escrow Agent of the
Deposit.
24. BROKER'S COMMISSION. Ray Martin of United American Realty Inc.,
P.O. Box 637, Dover, Florida 33527, has acted as broker. On closing, SELLER
shall pay said broker a commission of Sixty Thousand ($60,000) Dollars. BUYER
shall pay said broker any commission agreed upon by BUYER in excess of $60,000,
if any. SELLER shall pay any commission to Martin Newby Realty, Inc. agreed upon
by SELLER. Except as stated in this section, neither SELLER nor BUYER has
contacted any real estate broker, finder, or similar person in connection with
the transaction contemplated hereby and that neither party is obligated to pay
any brokerage fee or commission in connection with this sale. SELLER and BUYER
each hereby agree to indemnify and hold harmless the other from and against any
and all claims for commissions or similar charges with respect to this
transaction, arising by, through or under the indemnifying party, and each
further agrees to indemnify and hold harmless the other from any loss or damage
resulting from any inaccuracy in the representations contained in this section.
This indemnification agreement of the parties shall survive the closing.
25. SURVIVAL OF AGREEMENT. The terms and conditions of this Agreement
which expressly so state shall survive the Closing hereof.
26. TIME IS OF THE ESSENCE. SELLER and BUYER acknowledge that time is
of the essence of this Agreement.
27. ENTIRE AGREEMENT; MODIFICATIONS. The parties acknowledge that this
Agreement is the entire agreement between the parties with respect to the
subject matter hereof, and there are no oral or written agreements between the
parties, nor any representations made by either party relative to the subject
matter hereof which are not expressly set forth herein. This Agreement cannot be
modified without a written agreement executed by both parties.
28. ATTORNEYS' FEES. In the event of any litigation between the parties
arising out of this Agreement, or the collection of any funds due BUYER or
SELLER pursuant to this Agreement, the prevailing party shall be entitled to
recover all costs incurred and reasonable attorneys' fees and expenses incurred.
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As used herein and throughout this Agreement, the term "attorneys' fees" shall
be deemed to include all fees incurred whether by attorneys, paralegals, legal
assistants or law clerks whether in pretrial, trial, appeal, bankruptcy,
collection or declaratory proceedings. The provisions of this paragraph shall
survive Closing and delivery of the Special Warranty Deed.
29. EXHIBITS. In the event that any exhibit which is referred to in
this Agreement is not attached hereto at the time of execution of this Agreement
by SELLER and BUYER, SELLER shall promptly cause any such missing exhibit to be
prepared and submitted to BUYER for BUYER'S approval within fifteen (15) days
from the Effective Date hereof. Upon approval of a given exhibit by BUYER, the
same shall be incorporated into this Agreement by written agreement executed by
SELLER and BUYER.
30. CONSTRUCTION. This Agreement has been negotiated between the
parties, each of whom have been represented by counsel. Accordingly, this
Agreement shall not be construed against either party as the drafter of the
Agreement in the event of any litigation with respect to it. Whenever required
by the context or use in this Agreement, the singular word shall include the
plural word and the masculine gender shall include the feminine and/or neuter
gender, and vice versa. The paragraph titles, headings, and/or captions
contained herein have been inserted solely as a means of reference and
convenience. Such captions shall not affect the interpretation or construction
of this Agreement and shall not define, limit, extend, or otherwise describe the
scope of this Agreement or the intent of any provision hereof.
31. RADON GAS Radon is a naturally occurring radioactive gas that, when
it has accumulated in a building in sufficient quantities, may present health
risks to persons who are exposed to it over time. Levels of radon that exceed
federal and state guidelines have been found in buildings in the State in which
the Real Property is located. Additional information regarding radon and radon
testing may be obtained from your county public health unit.
32. VENUE AND GOVERNING LAW. Venue for any legal proceeding hereunder
shall be in the State of Florida and this Agreement shall be governed by the
laws of Florida.
33. TAX DEFERRED EXCHANGE (ss. 1031). In the event, prior to closing,
SELLER shall desire to restructure this transaction as a tax deferred exchange
for property identified by SELLER, pursuant to ss. 1031 of the Internal Revenue
Code, BUYER, as an accommodation to SELLER, shall enter into and execute any
such amendatory documentation as SELLER may reasonably request; provided
however, that BUYER shall not incur any additional cost, expense, risk,
potential liability or delay whatsoever on account thereof. BUYER shall have no
liability to SELLER whatsoever in the event the subject transaction is found,
held or adjudicated not to qualify as or as a part of a tax deferred exchange
pursuant to ss. 1031 of the Internal Revenue Code. Notwithstanding the
foregoing, no failure to close of any transaction involving any premises to be
exchanged shall affect SELLER'S obligation to convey the Property as and when
required hereunder.
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34. MODEL HOMES. SELLER may sell prior to closing two (2) 1997
manufactured homes, in which event they shall be excluded from this transaction.
In the event one or more of such homes have not been sold by SELLER as of the
day of closing, then BUYER shall purchase such homes from SELLER for the price
listed on Exhibit "F" attached hereto. In the event one of such homes has been
sold and a used mobile home taken in trade by SELLER, BUYER shall purchase such
used mobile home from SELLER at closing at its appraised fair market value (not
to exceed $40,000 for each such used mobile home).
35. EFFECTIVE DATE. Unless otherwise set forth herein, the Effective
Date shall be the date this Agreement is executed by the SELLER, so long as
SELLER returns a fully executed duplicate original of this Agreement to the
BUYER, by either hand delivery or postmarked as of the date of the execution of
this Agreement by the SELLER. Each day of delay in returning the executed
Agreement to the BUYER shall likewise extend the Effective Date.
36. COUNTERPART EXECUTION. This Agreement may be executed in several
counterparts, each of which shall be fully effective as an original and all of
which together shall constitute one and the same instrument.
37. FACSIMILE. A facsimile of this Agreement or any portion hereof,
including the signature page of any party, shall be deemed an original for all
purposes.
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IN WITNESS WHEREOF, the parties hereto have hereunto set their hands
and seals the day and year indicated below.
WITNESSES: COMMUNITY ACQUISITION JOINT VENTURE, a
Delaware partnership
By: COMMUNITY ACQUISITION AND
DEVELOPMENT CORPORATION, a Delaware
corporation
By:______________________________
Print Name:___________________ Joseph W. Gaynor, President
"BUYER"
Print Name:___________________
As to BUYER BUYER'S execution date: March ___, 1998
SERENDIPITY PROPERTIES, INC., a Florida
corporation
By:________________________________
Print Name:___________________ Print Name: Martin Newby__________
Title: President_______________
Print Name:___________________ "SELLER"
As to SELLER
SELLER'S execution date: March ___, 1998
JOINDER
______________________________ of ________________________________
joins in this Agreement of Sale for the sole purpose of agreeing to act as
Escrow Agent and to be legally bound to hold the Deposit in accordance with the
provisions in Paragraphs 3(a) and 22 hereof.
By:_______________________________
Print Name:_______________________
As Escrow Agent
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SCHEDULE OF EXHIBITS
EXHIBIT "A" Metes and Bounds Description of the Property
EXHIBIT "B" Schedule of Personal Property
EXHIBIT "C" Rent Roll
EXHIBIT "D" Service Contracts
EXHIBIT "E" Phase I Environmental Audit Summary
EXHIBIT "F" Model Mobile Home Prices
Page 21
ASSIGNMENT OF AGREEMENT OF SALE
This Assignment of Agreement of Sale (the "Assignment") is made as of
20th day of May, 1998, by and between Community Acquisition Joint Venture
("CAJV") and Asset Investors Operating Partnership, L.P. ("AIOP").
W I T N E S S E T H
WHEREAS, CAJV and Serendipity Properties, Inc. ("SPI") entered into a
certain Agreement of Sale (the "Agreement of Sale"), dated as of April 13, 1998;
and
WHEREAS, the Agreement of Sale was amended by that certain Amendment To
Agreement of Sale dated as of May 18, 1998 (the "First Amendment"); and
WHEREAS, the Agreement of Sale was further amended by that certain
Amendment To Agreement of Sale dated as of May 19, 1998 (the "Second
Amendment"), the Agreement of Sale, as amended by the First Amendment and the
Second Amendment is hereinafter referred to as the "Agreement"; and
WHEREAS, CAJV desires to assign all of its interest in the Agreement to
AIOP; and
WHEREAS, BRJV and AIOP desire to memorialize their mutual
understandings pursuant to the terms and conditions contained herein.
NOW THEREFORE, in and for the consideration of the sum of Ten Dollars
($10.00) herein paid by AIOP to CAJV, the receipt of which is hereby
acknowledged by CAJV and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged by CAJV, CAJV and AIOP hereby
agree as follows:
1. Recitals. The above recitals are true and correct and are
incorporated herein by reference.
2. Assignment. CAJV hereby grants, assigns, sells, transfers and sets
over to AIOP all of its interest in the Agreement, together with all of CAJV's
rights, privileges, duties and obligations set forth in the Agreement. AIOP
accepts this assignment and assumes all of the obligations of CAJV set forth in
the Agreement.
3. Additional Information. In addition to this assignment, CAJV does
grant, buy, sell, assign, transfer and set over unto AIOP all of its interest in
any and all other documents that it may have procured subsequent to the
execution of the Agreement of Sale with respect to the Property described
therein, including, without limitation, surveys, title insurance, title searches
or commitments, environmental studies, structural studies, applications,
permits, and contracts with respect to the Property.
4. Governing Law. This Agreement shall be governed by the laws of the
state of
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Florida and shall inure to the benefit of and be binding upon the parties hereto
with respect to the successors and assigns and shall be enforced only in a court
of competent jurisdiction in Lee County, Flotida.
5. Severance. The invalidity or unenforceability of any portion of this
Assignment shall in no way effect the remaining portions hereof.
6. Binding Effect. This Assignment shall bind the successors, heirs and
assigns of the parties hereto.
7. Captions. The paragraph captions used throughout this Assignment are
for the purpose of reference only and not to be considered in the construction
of this Assignment or any interpretation of the rights or obligations of the
parties hereto.
8. Entire Agreement. It is agreed that this document contains the
entire agreement between the parties and this Assignment shall not be modified
in any respect except by an amendment in writing signed by the parties hereto.
9. Counterpart Execution. This Assignment may be executed in several
counterparts and by facsimile, each of which shall be fully effective as an
original and all of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have hereunto set their respective
hands and seals as of the day and year first written above.
COMMUNITY ACQUISITION JOINT VENTURE
BY: COMMUNITY ACQUISITION AND
DEVELOPMENT CORPORATION, a Delaware
corporation
By:_________________________________
Joseph W. Gaynor, President
Execution Date: May ______, 1998
ASSET INVESTORS OPERATING PARTNERSHIP,
L.P., a Delaware limited partnership
By: ASSET INVESTORS CORPORATION, a
Maryland corporation
By:______________________________
Bruce E. Moore, President
Execution Date: May ______, 1998
Page 2
FIRST AMENDMENT TO PURCHASE AGREEMENT WITH
ESCROW INSTRUCTIONS
DATED: To be effective as of May 18, 1998 (the "Effective Date").
PARTIES: The Parties to this First Amendment to Purchase Agreement With
Escrow Instructions (the "First Amendment") are:
(a) BRENTWOOD WEST PARTNERS, LLP, an Arizona registered limited
liability partnership ("Seller"); and,
(b) PARKBRIDGE CAPITAL GROUP, INC., an Oregon corporation,
and/or Assignee ("Buyer").
ESCROW AGENT: CHICAGO TITLE INSURANCE COMPANY
ESCROW NO.: 9804614-1
RECITALS:
A. Seller and Buyer entered into that certain Purchase
Agreement With Escrow Instructions dated to be effective as of April 14, 1998
(the "Purchase Agreement").
B. Seller and Buyer desire to amend the Purchase Agreement
generally to: (i) reduce the Purchase Price by $165,000.00; (ii) provide for
Buyer's waiver of Buyer's contingencies in the Purchase Agreement except the
Study Period with respect to matters of survey shall not expire until May 22,
1998; and, (iii) provide for immediate payment of the $300,000.00 Additional
Earnest Money, all as more particularly set forth in this First Amendment.
AGREEMENTS:
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Parties agree as follows:
1. INCORPORATION OF RECITALS. All of the foregoing Recitals
are incorporated herein as agreements of the Parties.
2. AMENDMENT TO PURCHASE AGREEMENT. Seller and Buyer hereby
amend the Purchase Agreement as follows:
2.1 The first two lines of Paragraph 4.A. of the
Purchase Agreement are hereby deleted in their entirety and restated as follows:
"A. Purchase Price. The Purchase Price
(herein so called) to be paid by Buyer to
Seller for the Property is $13,035,000.00
payable as follows:", and,
<PAGE>
2.2 The first sentence of Paragraph 4.A.(2) is
hereby deleted in its entirety and restated as follows:
"(2) Additional Earnest Money. Upon the
earlier of : (i) expiration of the Study
Period (as defined below); or, (ii) Buyer's
written waiver of Buyer's contingencies in
Paragraphs 7 and 10 below, Buyer shall
deposit with Escrow Agent $300,000.00 in
cash or other immediately available funds
(the "Additional Earnest Money") to be held
by Escrow Agent until cancellation as
provided below or paid to Seller at Close of
Escrow.".
3. NO FURTHER AMENDMENTS. Except as set forth in Paragraph 2.
of this First Amendment, all of the terms and provisions of the Purchase
Agreement shall remain in full force and effect.
4. BUYER ACKNOWLEDGEMENT AND WAIVER. Buyer hereby: (i)
acknowledges receipt of all documents to be provided by Seller to Buyer in
accordance with Paragraphs 7 and 9 of the Purchase Agreement; and, (ii) waives
and releases any and all rights Buyer may have under the Purchase Agreement to
cancel the Purchase Agreement by virtue of the contingencies set forth in
Paragraphs 7 and 9 of the Purchase Agreement, it being hereby agreed that such
contingencies are hereby satisfied and otherwise waived by Buyer, except for
Study Period with respect to matters of survey shall not expire until May 22,
1998.
5. CONDITION PRECEDENT TO PRICE ADJUSTMENT. The decrease in
the Purchase Price as more particularly set forth in Paragraph 2.1 above, shall
only be effective and is wholly contingent upon Buyer's deposit of the
Additional Earnest Money, in immediately available funds, with Escrow Agent on
or before 5:00 p.m. MST on Friday, May 22, 1998.
6. Counterparts. This First Amendment may be executed in
counterparts and by facsimile signatures in accordance with Paragraphs 20.G. and
20.M. of the Purchase Agreement.
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<PAGE>
IN WITNESS WHEREOF, the Parties have executed this First
Amendment as of the Effective Date.
SELLER: BRENTWOOD WEST PARTNERS LLP, an
Arizona registered limited liability
partnership,
By: H & E MESA PARTNERSHIP, a general
partnership, General Partner
By: /S/
------------------------------
Its: Authorized General Partner
By: L & F INVESTMENTS LIMITED
PARTNERSHIP, an Arizona limited
partnership, General Partner
By: DAUBENMIER REVOCABLE
TRUST, General Partner
By: /S/
-------------------------
Frances B. Daubenmier,
as Trustee
By: TRUSTEE OF THE EIF TRUST U/T/A
DATED 3/13/95, General Partner
By: /S/
------------------------------
Lloyd Kent, Trustee
BUYER: PARKBRIDGE CAPITAL GROUP, INC., an
Oregon corporation
By: /S/
----------------------------
Its: President
542859/10169-0003
3
<PAGE>
PURCHASE AGREEMENT WITH
ESCROW INSTRUCTIONS
THIS PURCHASE AGREEMENT WITH ESCROW INSTRUCTIONS (this "Agreement"), is
entered into effective as of April 14, 1998 (the "Effective Date"), by and
between BRENTWOOD WEST PARTNERS, LLP, an Arizona registered limited liability
partnership ("Seller"), and PARKBRIDGE CAPITAL GROUP, INC., an Oregon
corporation, or Assignee ("Buyer").
RECITALS:
A. Seller is the owner of that certain real property located at 3104
East Broadway, Mesa, Arizona, which is more particularly described on Exhibit A
(the "Real Property"). The Real Property is currently operated as a mobile home
park known as "Brentwood West Mobile Home Park".
B. Buyer desires to purchase the Property (as defined below) from
Seller, and Seller desires to sell the Property to Buyer, on the terms and
conditions set forth below.
AGREEMENTS:
NOW, THEREFORE, in consideration of the foregoing and of the mutual
promises and covenants set forth in this Agreement, and for other valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
Seller and Buyer (collectively, the "Parties"; individually a "Party") agree as
follows:
1. Agreement to Buy and Sell. Subject to the terms and conditions set
forth below, Buyer agrees to purchase the Property from Seller, and Seller
agrees to sell the Property to Buyer.
2. Description of Property. The term "Property" shall include the
following:
A. The Real Property;
B. The mobile home that is currently being used as the
residence of the manager of the Real Property ("Manager's Mobile Home") and the
equipment and other personal property that is listed on Exhibit B (collectively,
the "Personal Property").
C. All of Seller's interest, to the extent transferable, in
any permits and licenses related to the ownership, maintenance, use and
occupancy of the Property (collectively, the "Permits"), the name "Brentwood
West Mobile Home Park", the current phone number for the Property, any and all
contracts related to the ownership, maintenance, use and operation of the Real
Property and/or the Personal Property, including, but not limited to, the
contracts listed on Exhibit C (collectively, the "Contracts"; each,
individually, a "Contract") and the leases for mobile home spaces on the
Property and any and all other leases related to the ownership, maintenance, use
and operation of the Property, a detailed list of which shall be attached as
Exhibit "A" to the Assignment (as defined below) at Close of Escrow
(collectively, the "Leases"; each, individually a "Lease").
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<PAGE>
3. Escrow.
A. Opening of Escrow. Escrow No. 9804614-41 (the "Escrow")
shall be opened when: (i) 3 fully executed counterpart originals of this
Agreement executed by Seller and Buyer have been delivered to Chicago Title
Insurance Company, a Missouri corporation, 2415 East Camelback Road, Suite 300,
Phoenix, Arizona 85016, Attn: Sam Adkins (the "Escrow Agent"); and (ii) Buyer
shall have deposited the Initial Earnest Money (as defined below) with Escrow
Agent (the "Opening of Escrow"). Escrow Agent shall advise Seller and Buyer, in
writing, of the Opening of Escrow and the date thereof.
B. Escrow Cancellation Charges. If Escrow fails to close
because of Seller's default, Seller shall be liable for any cancellation of
Escrow Agent charges. If Escrow fails to close because of Buyer's default, Buyer
shall be liable for any cancellation charges of Escrow Agent. If Escrow fails to
close for any other reason, Seller, on the one hand, and Buyer, on the other,
shall each be liable for one-half of any cancellation charges of Escrow Agent.
4. Consideration From Buyer.
A. Purchase Price. The Purchase Price (herein so called) to be
paid by Buyer to Seller for the Property is $13,200,000.00 payable as follows:
(1) Initial Earnest Money. Upon the Opening of
Escrow, Buyer shall deposit with Escrow Agent $200,000.00 in cash or other
immediately available funds (the "Initial Earnest Money") to be held by Escrow
Agent until cancellation as provided below or paid to Seller at Close of Escrow
(as defined below).
(2) Additional Earnest Money. Upon the expiration of
the Study Period (as defined below), Buyer shall deposit with Escrow Agent
$300,000.00 in cash or other immediately avail able funds (the "Additional
Earnest Money") to be held by Escrow Agent until cancellation as provided below
or paid to Seller at Close of Escrow. The Initial Earnest Money and the
Additional Earnest Money shall sometimes be referred to collectively or
alternatively as the "Earnest Money".
(3) Closing Funds. On or before the Close of Escrow,
Buyer shall deposit with Escrow Agent, in the form of cash or other immediately
available funds, the balance of the Purchase Price to be paid to Seller upon the
Close of Escrow (collectively, the "Closing Funds").
(4) No Reduction for Brokerage Fees. There shall be
no reduction of Purchase Price for any brokerage fees, finders fees, or similar
fees, payable to any person. Any such fees payable shall be paid by Buyer from
separate funds in addition to the Purchase Price.
B. Distribution of Purchase Price. If Seller elects, Seller
may dissolve prior to the Closing, in which event, Seller shall cause its
partners to sell the Property to Buyer and the Purchase Price and the closing
costs shall be allocated among each of the partners as follows:
2
<PAGE>
1) H&E Mesa Partnership, a general partnership: 54.5%
2) L&F Investments Limited Partnership, an Arizona
limited partnership: 40.0%
3) Lloyd Kent, as Trustee of the EJF Trust U/T/A
Dated March 3, 1995: 5.5%
5. Earnest Money. Seller and Buyer hereby instruct Escrow Agent to put
the Earnest Money in a federally insured daily interest-bearing passbook account
on behalf of Seller and Buyer. The Earnest Money, and interest accrued thereon,
shall be applied as follows:
A. Cancellation By Buyer. If Seller defaults or if Buyer
cancels this Agreement pursuant to the terms of this Agreement, the Earnest
Money and all interest accrued thereon less $100.00 representing the fair
consideration paid by Buyer to Seller for this Agreement (the "Fair
Consideration") shall be paid immediately to Buyer.
B. Default By Buyer. If Buyer defaults, the Earnest Money and
all interest accrued thereon shall be paid to Seller.
C. Close of Escrow. If Escrow closes, the Earnest Money and
all interest accrued thereon to Close of Escrow shall be credited to Buyer,
automatically applied against the Purchase Price and paid to Seller at Close of
Escrow.
6. Close of Escrow; Conveyance of Title; Title Insurance.
A. Close of Escrow. Consummation of the purchase of the
Property (the "Close of Escrow" or "Closing") and recordation of the appropriate
Transfer Documents (as defined below) shall take place on or before the 30th day
after the expiration of the Study Period (as defined below), or such later date
mutually agreed to in writing by and between Buyer and Seller (the "Closing
Date"). At or before Closing, each Party shall execute and deliver such
documents and perform such acts as are provided for in this Agreement. The
Closing shall be extended for a period not to exceed an additional thirty-five
(35) days if necessary to prevent a prepayment default on the indebtedness
referred in Item 4, under Schedule B - Section 1 of the Commitment for Title
Insurance (as defined below).
B. Closing Costs. All recording fees shall be paid by Seller,
all escrow service fees shall be paid one-half by Seller and one-half by Buyer
and all other escrow closing costs shall be charged by Escrow Agent to, and paid
by, the respective Parties in accordance with local custom as determined by
Escrow Agent unless payment of such costs is specifically provided for in this
Agreement or the Transfer Documents (as defined below). Real property taxes,
improvement liens and other assessments affecting the Property shall be prorated
to the Close of Escrow. The real property taxes shall be prorated on the basis
of the latest available tax statement; provided, however, that if, after
Closing, the actual tax bill for the Property varies from Escrow Agent's
pro-ration figures, a new pro-ration shall be completed and the Party in whose
favor any difference exists after pro-ration shall be entitled to recover such
difference from the other Party. Except as provided in this Section, Seller and
Buyer shall each bear their own costs in regard to the Purchase Transaction (as
defined below). Seller agrees that all closing costs
3
<PAGE>
payable by Seller shall be deducted from Seller's proceeds otherwise payable to
Seller at Close of Escrow. Buyer shall deposit with Escrow Agent sufficient cash
to pay all of Buyer's closing costs.
All rent and other monthly sums due from the tenants and others under
the Leases shall be pro rated as of the Close of Escrow. All charges for gas,
electricity, water and any other utilities serving the Property and not charged
directly to the tenants and all other operating expenses of the Property shall
be prorated as of the Close of Escrow outside of Escrow and paid to Buyer within
30 days after the Close of Escrow in cash, by check or by wire transfer. With
regard to utilities, upon Close of Escrow, Seller shall cancel all utility
accounts which may then be in Seller's name and Seller shall be entitled to
receive and collect any utility deposits which may be due Seller as of Close of
Escrow.
C. The Transfer Documents. On or prior to the Close of Escrow,
Seller and Buyer, as applicable, shall duly execute, acknowledge and deliver the
following to Escrow Agent for recordation, if appropriate, and delivery upon
Close of Escrow:
(1) A Special Warranty Deed, in form and content
identical to Exhibit D (the "Deed"), executed and acknowledged by Seller,
conveying title to the Property to Buyer;
(2) An Affidavit of Property Value, required by
A.R.S. ss.42-1612, in form and content identical to Exhibit E (the "Affidavit");
(3) An Assignment and Assumption Agreement, in form
and content identical to Exhibit F (the "Assignment"), executed by Seller,
assigning to Buyer Seller's interest in the Permits, the Leases and the
Contracts and executed by Buyer assuming all of Seller's obligations under the
Permits, the Leases and the Contracts; and
(4) A Bill of Sale (herein so called), in form and
content identical to Exhibit G, executed by Seller, assigning to Buyer Seller's
interest in the Personal Property.
The Deed, the Affidavit, the Assignment, the Bill of Sale and all other
documents, if any, which may be necessary to consummate the Purchase Transaction
are collectively referred to as the "Transfer Documents".
D. Title Insurance. Escrow Agent, at Seller's cost, shall
issue or cause to be issued a standard coverage owner's policy of title
insurance (the "Owner's Policy") in the amount of the Purchase Price. If Buyer
elects to obtain an extended coverage lender's policy of title insurance, any
endorsements, any inspection reports or any survey, Buyer shall pay the
additional premiums and costs for each.
E. IRS Section 1445. Seller shall furnish to Buyer in Escrow
by Close of Escrow a sworn affidavit, in the form of Exhibit H (the "Non-Foreign
Affidavit") in accordance with Section 1445(f)(3) of the Internal Revenue Code
of 1986, as amended (the "Code").
F. Delivery of Possession. Seller shall vacate and deliver
possession of the Property to Buyer at Close of Escrow, subject to the rights of
the tenants under the Leases.
4
<PAGE>
G. Escrow Instructions. This Agreement, when deposited with
Escrow Agent, shall constitute instructions to Escrow Agent, as escrow agent,
for the consummation of the Purchase Transaction. Attached as Exhibit I is
Escrow Agent's printed form conditions of escrow (the "Escrow Instructions")
which, together with this Agreement, shall constitute all of the instructions to
Escrow Agent with respect to the Purchase Transaction. It is provided, however,
that in the event of a conflict between the terms and conditions of the Escrow
Instructions and the terms and conditions of this Agreement, the terms and
conditions of this Agreement shall prevail. Without limiting the generality of
the foregoing, in no event shall Escrow Agent be indemnified or held harmless
for any liability or claim arising from its own negligence or its own
intentional misconduct or act of malfeasance and the so-called "13-day notice"
provision, if any, in the Escrow Instructions is hereby deleted.
7. Buyer's Contingencies. Buyer's obligation to consummate the
transaction contemplated by this Agreement (the "Purchase Transaction") is
subject to the satisfaction of the following conditions precedent (any or all of
which may be waived by Buyer):
A. The Study Period. Buyer shall have approved the condition
of the Property. Buyer shall have until 5:00 p.m. Arizona time on the 30th day
after the Opening of Escrow (the "Study Period"), at Buyer's sole cost, within
which to review the Property Documents (as defined below) and to conduct and/or
approve any investigations, studies or tests deemed necessary by Buyer to
determine the feasibility of acquiring and developing the Property, including,
but not limited to, environmental studies (collectively, the "Studies"; each a
"Study"). Buyer agrees to immediately provide a copy of each Study to Seller,
including, but not limited to, a copy of any environmental assessment report of
the Property. Seller hereby grants to Buyer and Buyer's agents, employees or
contractors the right to enter upon the Property during the Study Period to
conduct the Studies during normal business hours, after reasonable notice. In
consideration of Seller granting Buyer the right of entry to the Property, Buyer
shall and does hereby agree to hold harmless Seller and Seller's agents,
employees and partners and such partners' respective partners, trustees,
beneficiaries, employees and agents (collectively, the "Indemnified Parties";
each an "Indemnified Party") for, from and against any and all liabilities,
claims, losses or damages, including, but not limited to, court costs and
attorneys' fees, which may be incurred by an Indemnified Party because of the
Studies and to restore the Property to the condition existing immediately prior
to any such Study. Buyer's obligations as provided in the preceding sentence
shall survive the cancellation of this Agreement and the Close of Escrow, as
applicable. If the results of any of the Studies are not acceptable to Buyer and
Buyer so notifies Seller and Escrow Agent in writing on or before the end of the
Study Period (the "Cancellation Notice"), this Agreement shall be canceled.
Buyer's failure, for any reason, to give the Cancellation Notice before the
expiration of the Study Period automatically shall be deemed to be Buyer's
election to close the Escrow.
B. Failure of Condition Precedent. If Buyer elects to cancel
this Agreement pursuant to the foregoing provisions of this Section 7, the
Initial Earnest Money plus interest accrued thereon (less the Fair
Consideration) shall be refunded immediately by Escrow Agent to Buyer and,
except as otherwise provided in this Agreement, neither Seller nor Buyer shall
have any further liability or obligation under this Agreement. If Buyer does not
elect to cancel the Agreement pursuant to the foregoing provisions of this
Section 7, the Earnest Money (the Initial Earnest Money and the Additional
Earnest Money), plus interest accrued thereon, shall be non-refundable.
5
<PAGE>
C. Delivery to Seller. In the event Buyer performs an
environmental assessment of the Property, Buyer hereby agrees to provide a copy
of any data, draft, final report or other information that is prepared by any
environmental consultant engaged by Buyer (hereinafter collectively referred to
as "Information") within 48 hours after the preparation of said Information.
Buyer also hereby agrees that Seller shall receive the benefit of any and all
representations and warranties that may be made by the above environmental
consultant.
8. Acceptance of Title. Buyer hereby approves and accepts the condition
of title to the Property as set forth in the Commitment for Title Insurance
issued by Escrow Agent, Escrow Title No. 9804614, dated effective March 3, 1998
("Commitment of Title Insurance") a copy of which is attached hereto as Exhibit
J.
9. Review of Property Documents. During the Study Period, Seller,
without warranty as to the accuracy or content thereof, agrees to permit Buyer
to inspect and review all information in Seller's possession or control relating
to the operation of the Property for the last 3 years, a current rent roll, the
Leases and the Contracts (collectively, the "Property Documents"). Buyer
acknowledges that the Property Documents and other information of any kind or
nature relating to the Property which Buyer has reviewed or received or may
review or receive from Seller or Seller's respective agents, is, will be or has
been furnished on the express condition that Buyer shall make Buyer's own
independent verification of their accuracy. Buyer further acknowledges that the
information provided and to be provided with respect to the Property was
obtained from a variety of sources and Seller and Seller's partners, employees
and agents: (1) have not made any independent investigation or verification of
such information; and (2) do not make any representations as to the accuracy or
completeness of such infor mation. Buyer agrees that Buyer shall not attempt to
assert any liability against any Indemnified Party by reason of Seller or
Seller's partners, employees or agents having furnished such information or by
reason of any such information becoming or proving to have been incorrect or
inaccurate in any respect, and Buyer does hereby covenant and agree to defend,
pay, indemnify and hold harmless the Indemnified Parties for, from and against
any and all such claims of liability by any person or entity.
10. Seller's Representations and Warranties. Seller hereby represents
and warrants to Buyer, that to Seller's actual knowledge, without inquiry, as of
the Effective Date and as of Close of Escrow, and agree (with the understanding
that Buyer is relying on these warranties, representations and covenants) as
follows:
A. Authority; Binding Nature of Agreement. This Agreement has
been authorized by all necessary entity action on behalf of Seller, the person
executing this Agreement on behalf of Seller has the authority to do so, when so
executed this Agreement shall be the legal, valid and binding obligation of
Seller and, upon fulfillment of all conditions described herein, this Agreement
shall not breach any of the organizational documentation of Seller.
B. Personal Property. Seller does not own any mobile homes
currently located on the Property, except the Manager's Mobile Home, or hold any
interest in any other mobile homes currently located on the Property, directly
or indirectly, by lease, sublease, sale/leaseback or other agreement, other than
those, if any, specifically disclosed to Buyer in writing, prior to the Closing
Date.
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<PAGE>
C. Notice Obligations. Should Seller receive notice or
knowledge of any information that would have a material adverse effect on any of
the matters set forth in this Section 10 after the Opening of Escrow and prior
to the Close of Escrow, Seller will notify Buyer of the same in writing.
D. Limitation of Seller's Representations and Warranties.
Except as otherwise ex pressly set forth in this Section 10, Seller makes no
guarantees, warranties or representations, express or implied, with respect to
the Property, the condition of title, the suitability of the Property for any in
tended purpose or habitability, the size, location, physical condition,
encroachments, access, availability of utilities, zoning, value, future value,
income potential, productivity, rights to, adequacy of or quality of the water
supply or water transaction. Without limiting the foregoing, except as set forth
in this Agreement, Seller makes no warranties or representations of any kind
regarding the environmental condition of the Property or the presence or absence
of hazardous wastes or toxic materials or any other warranties or
representations of any kind regarding the environmental condition of the
Property, including, but not limited to, the presence or absence of asbestos,
radon gas, formaldehyde, oil, PCB'S, underground storage tanks, or any other
hazardous or toxic waste or materials. No Seller warranty of any kind shall
survive the Close of Escrow or the cancellation or termination of the Escrow and
this Agreement.
11. Buyer's Representations, Warranties and Covenants. Buyer hereby
represents and warrants to Seller, as of the Effective Date and as of the Close
of Escrow, and agree (with the understanding that Seller is relying on these
representations, warranties and covenants) as follows:
A. Authority; Binding Nature of Agreement. This Agreement has
been authorized by all necessary entity action on behalf of Buyer, the person
executing this Agreement on behalf of Buyer has the authority to do so, when so
executed this Agreement shall be the legal, valid and binding obligation of
Buyer and, upon fulfillment of all conditions described herein, this Agreement
shall not breach any of the organizational documentation of Buyer.
B. No Oral Representations and Warranties. Buyer acknowledges
that no person act ing on behalf of Seller is authorized to make, and by
execution of this Agreement Buyer acknowledges that no person has made, any
representation, warranty, guaranty or promise, whether oral or written, except
as expressly set forth in this Agreement; and any agreement, statement,
representation or promise made by any person which is not contained in this
Agreement may not be relied upon and shall not be valid or binding upon Seller.
The only representations or warranties outstanding with respect to the subject
matter of the Purchase Transaction, either express or implied by law, are
expressly set forth in this Agreement.
C. Limitation of Seller's Representations; "As-Is Sale". Buyer
acknowledges and agrees that the Property shall be purchased in an "as-is,"
"where is" condition, and, except as otherwise specifically stated in this
Agreement, Seller and Seller's partners, agents or employees make no warranty or
representation of any kind, type or nature, express or implied, or arising by
operation of law, including, but not limited to, any warranty of condition,
habitability, merchantability or fitness for a particular purpose, in respect of
the Property. Buyer accepts the Property in its present condition, with all
faults, any warranties of merchantability or fitness for a particular purpose
being hereby expressly disclaimed. Buyer acknowledges and agrees that Buyer will
inspect the Property and that Buyer is
7
<PAGE>
purchasing the Property solely upon the basis of such investigation and not on
the basis of any repre sentation, express or implied, written or oral, made by,
or on the basis of any information provided or to be provided by, Seller or
Seller's partners, agents or employees. Seller is hereby released from all
responsibility regarding the valuation or condition of all or any portion of the
Property. Seller shall have no responsibility to remove, remedy or repair any
existing improvements, materials or conditions located or existing on the
Property.
12. Commissions. Seller and Buyer warrant that they have not dealt with
any finder, broker or realtor in connection with the transaction embodied by
this Agreement except as described in Exhibit "K." If any person shall assert a
claim to a finder's fee or brokerage commission on account of alleged employment
as a finder or broker in connection with the Purchase Transaction, the Party
under whom the finder or broker is claiming shall indemnify and hold harmless
the other Party for, from and against any such claim and all costs, expenses and
liabilities incurred in connection with such claim or any action or proceeding
brought on such claim, including, but not limited to, counsel and witness fees
and court costs in defending against such claims. Seller shall have no
obligation to pay any commission due or alleged to be due to Buyer's broker. The
Parties' obligations under this Section 12 shall survive the cancellation of
this Agreement and the Close of Escrow, as applicable.
13. Remedies.
A. Pre-Closing Seller's Default. If Seller defaults (provided
there is no pre-existing default by Buyer), Buyer may elect in writing, as
Buyer's sole remedy, to: (i) waive such breach and close Escrow; (ii) cancel the
Escrow and this Agreement; or (iii) file an action for specific performance.
B. Pre-Closing Buyer's Default. If Buyer defaults, Seller may
either: (i) waive such breach and close Escrow; or (ii) by written notice to
Buyer and Escrow Agent, cancel this Agreement whereupon the Earnest Money
(Initial Earnest Money and Additional Earnest Money) plus interest thereon shall
be paid immediately by Escrow Agent to Seller. Seller and Buyer agree that it
would be impractical or extremely difficult to fix actual damages in case of the
Buyer's default; that the amount of the Earnest Money paid by Buyer is a
reasonable estimate of the Seller's damages in case of Buyer's default; and that
Seller shall retain the Earnest Money as Seller's damages and, thereafter,
except as otherwise provided in this Agreement, neither Party shall have any
further obligation to the other under this Agreement.
C. Post-Closing Default. If a breach or default of an
obligation becomes known after Closing, Buyer and Seller shall be entitled to
all remedies available to them at law or in equity, except for the right of
rescission and the right to receive consequential and/or punitive damages which
Buyer and Seller both hereby expressly waive.
14. Notices.
A. Addresses. Except as otherwise required by law, any notice
required or permitted under this Agreement shall be in writing and shall be
given by personal delivery, or by deposit in the United States mail, certified
or registered, return receipt requested, postage prepaid, addressed to the
Parties at the addresses set forth below, or at such other address as a Party
may designate in writing
8
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pursuant to the terms of this Section, or any express or overnight delivery
service [e.g. Federal Express], delivery charges prepaid:
If to Seller: Kevin Kvamme and Herb Korthius
1913 Twin Sister Court
Lynden, Washington 98264
and
Frances Daubenmier
4121 North 64th Place
Scottsdale, Arizona 85251
and
Lloyd Kent, CPA
4455 East Broadway Road
Mesa, Arizona
With a copy to:
Mariscal, Weeks, McIntyre & Friedlander, P.A.
Attn: Les Raatz, Esq.
2901 North Central Avenue
Suite 200
Phoenix, Arizona 85012
If to Buyer: Parkbridge Capital Group, Inc.
Attn: Lee Meekcoms
16325 Boones Ferry Road, suite 104
Lake Oswego, OR 97035
If to Escrow Agent: Chicago Title Insurance Company
Attn: Sam Adkins
2415 East Camelback Road, #300
Phoenix, Arizona 85016
B. Effective Date of Notices. Notice shall be deemed to have
been given on the date on which notice is delivered, if notice is given by
personal delivery, and on the date of deposit in the mail, if mailed or
deposited with the overnight carrier, if used. Notice shall be deemed to have
been received on the date on which the notice is received, if notice is given by
personal delivery, and on the 2nd day following deposit in the mail, if notice
is mailed. Notwithstanding the foregoing, no payment shall be deemed made until
actually received by the intended payee. If Escrow has opened, a copy of any
notice given to a Party shall also be given to Escrow Agent by regular mail or
by any other method provided for in this Section.
9
<PAGE>
15. Further Assurances. Each Party, promptly upon the request of the
other or upon the request of Escrow Agent, shall do such further acts and shall
execute and have acknowledged and delivered to the other Party or to Escrow
Agent, as may be appropriate, any and all further documents or instruments as
may be reasonably requested or appropriate in connection with the Purchase
Transaction to carry out the intent and purpose of this Agreement.
16. Indemnification. Buyer shall and hereby does, indemnify and agree
to pay, defend (with counsel acceptable to Seller) and hold harmless the
Indemnified Parties for, from and against any liability, obligation, action,
suit, judgment, fine, award, loss, claim, demand or expense (including
attorneys' fees) arising from any act or omission of Buyer pertaining in any
manner to the Property for the period of time during Buyer's ownership after the
Close of Escrow.
17. Recourse. Notwithstanding anything to the contrary contained in
this Agreement, recourse for any liability or obligation of Seller under this
Agreement shall be limited to Seller's interest in the Property only, and in no
event shall Seller or Seller's partners or the spouses of any of them, or any of
their respective heirs, successors, personal representatives, or assigns, or any
of their respective separate properties or assets, be subject to any claim,
obligation or liability of the Seller arising under this Agreement or otherwise
in connection with the actions or transactions provided for in this Agreement.
18. Risk of Loss. Seller shall bear all risk of loss or damage to the
Property which may occur prior to the Close of Escrow, subject to the terms of
Section 7(A) of this Agreement.
19. Confidentiality. Buyer agrees with Seller as follows:
A. Buyer shall retain in confidence all Confidential
Information transmitted to Buyer by Seller. Buyer shall not disclose any
Confidential Information except to their employees or agents who need to know
such information, provided that such employees and agents are informed by Buyer
of the confidential nature of such information and that by receiving such
information they are agreeing to be bound by this Agreement, which shall be
fully enforceable against them as if they signed a counterpart of this
Agreement. Buyer hereby agrees to pay, defend, indemnify and hold harmless
Sellers and Sellers' members, managers, partners, trustees, beneficiaries,
employees and agents (collectively, the "Indemnified Parties", each an
"Indemnified Party") for, from and against any cost, damage, loss, or expense
caused by or arising out of the unauthorized disclosure by Buyer, or any such
employee or agent of Buyer, of any Confidential Information. Any Confidential
Information disclosed by Sellers or Buyer pursuant to this Agreement shall be
disclosed solely for the purpose of determining whether to enter into the
Purchase Transaction and shall not be used by Buyer for any other purpose. If
Buyer is legally compelled to disclose any Confidential Information or else
stand liable for contempt or suffer other censure or penalty, Buyer may disclose
such information solely for such purpose without liability under this Agreement
provided that Buyer shall have used reasonable efforts to obtain an order or
other reasonable assurance that confidential treatment will be accorded to such
information.
B. In the event that any Seller or Buyer terminates
discussions of the Purchase Transaction for any reason: (i) Buyer shall promptly
deliver to Seller (without retaining copies) any documents or other written
information obtained from Seller in connection with such discussions and Buyer
shall promptly deliver to Seller, or at Seller's request, Buyer shall destroy
any notes, extracts,
10
<PAGE>
summaries or other materials derived in any way from Confidential Information;
and (ii) Buyer shall continue to maintain the confidentiality of all
Confidential Information previously received. For purposes of this Agreement,
the term "documents" shall be construed to include all tangible materials
containing any Confidential Information, including, without limitation, all
computer disks, tapes, electronic or magnetic media or storage of any kind.
C. Neither Buyer nor Seller shall, without the prior written
consent of the other, make any statement, public announcement or release to any
publication or the press or make any statement to any competitor, employee,
customer, supplier or third party with respect to such discussions or the
Purchase Transaction (including the identity of each other), except as may be
necessary to comply with the requirements of any applicable law, governmental
order or regulation.
D. The term "Confidential Information" shall mean, any
confidential non-public information provided by Sellers, including, but not
limited to, financial information, know-how, products, and other intellectual
property, customer and supply resource lists, financial and/or operating (income
and/or expense) data and trade secrets. The term "Confidential Information"
shall exclude information which: (i) is generally available to the public at the
time of its receipt by Buyer; (ii) was known to Buyer prior to its disclosure to
Buyer as evidenced by documents in Buyer's possession prior to disclosure by
Sellers; or (iii) is disclosed to Buyer by a third party that is not bound by
any similar confidentiality agreement.
20. Miscellaneous.
A. Modification and Waiver. Except as expressly provided
herein to the contrary, no supplement modification or amendment of any term of
this Agreement shall be deemed binding or effective unless in writing and signed
by the Parties. No waiver of any of the provisions of this Agree ment shall
constitute or be deemed a waiver of any other provision, nor shall any waiver be
a continuing waiver. Except as otherwise expressly provided in this Agreement,
no waiver shall be binding unless executed in writing by the Party making the
waiver.
B. Exhibits; Recitals. All Exhibits and Recitals referenced in
this Agreement are incorporated in, shall constitute a part of, this Agreement.
C. Entire Agreement. This Agreement and the Transfer Documents
contain the entire agreement and understanding of the Parties with respect to
the subject matter of this Agreement. All agreements and understandings entered
into prior to the date of this Agreement with respect to the subject matter of
this Agreement are revoked and superseded by this Agreement and the Transfer
Documents. No representations, warranties, inducements, promises, agreements, or
understandings not contained in the Transfer Documents regarding the subject
matter of this Agreement shall be of any force or effect after the Close of
Escrow unless in writing, executed by the Party to be bound and dated the
Closing Date.
D. Attorneys' Fees. If either Party breaches any provision of
this Agreement, the breaching Party shall pay to the non-breaching Party all
actual and reasonable attorneys' fees and other costs and expenses incurred by
the non-breaching Party in enforcing this Agreement or preparing for legal
11
<PAGE>
or other proceedings, regardless of whether suit is instituted. If it becomes
necessary for either Party to employ legal counsel or to bring an action at law
or other proceeding to enforce any of the terms, covenants or conditions of this
Agreement, the prevailing Party in any such action or proceeding shall be
entitled to recover its costs and expenses incurred in such action from the
other Party, including, but not limited to, reasonable attorneys' fees set by
the Court (and not by a jury) at both trial and appellate levels, and if any
judgment is obtained by the prevailing Party, all such costs, expenses and fees
shall be included in the judgment.
E. Severability. If any term or provision of this Agreement is
declared void, invalid or unenforceable, or the application thereof to any
person or circumstance shall, to any extent, be de clared void, invalid or
unenforceable, by a court of competent jurisdiction, then such term or provision
shall be deemed amended and reformed to delete therefrom that portion thus
adjudicated void, invalid or unenforceable and to the extent such term or
provision is deemed unenforceable by virtue of its scope, but may be made
enforceable by limiting the scope of such term or provision, each Party agrees
that such term or provision shall be enforceable to the fullest extent
permissible and the remainder of this Agreement or the application of such term
or provision to persons or circumstances other than those as to which it is held
invalid or unenforceable, shall not be affected thereby, and each term and
provision of this Agreement shall be valid and shall be enforced to the fullest
extent permitted by law.
F. Successors and Assigns. This Agreement shall be binding
upon, inure to the benefit of, and be enforceable by and against the Parties to
this Agreement and their respective heirs, executors, administrators, personal
representatives, successors and assigns.
G. Counterparts. This Agreement may be executed in multiple
counterparts, but all such counterparts shall constitute but one and the same
Agreement. If counterparts are employed, then, upon the Opening of Escrow and
the Close of Escrow, as applicable, Escrow Agent shall assemble all counterpart
signature pages into a single document, and copies of this document shall be
delivered to Seller and Buyer. The Parties agree that this Agreement may be
transmitted between them via facsimile. The Parties intend that the faxed
signatures constitute original signatures and that a faxed agreement containing
the signatures (original or faxed) of all the Parties is binding upon the
Parties.
H. Governing Law. This Agreement shall be governed by and
construed in accordance with the internal substantive laws of the State of
Arizona. Any action brought to interpret or enforce any provisions of this
Agreement, or otherwise relating to or arising from this Agreement, shall be
commenced and maintained in the Superior Court of the State of Arizona, in and
for the County of Maricopa and each of the Parties consents to jurisdiction and
venue in such court for such purposes.
I. Captions. The captions of the paragraphs of this Agreement
are inserted for convenience only and shall not define, limit extend, control or
affect the meaning or construction of any provision hereof.
J. Time of the Essence; Computation of Time. Time is of the
essence in each and every provision of this Agreement. In computing any period
of time under this Agreement, the date of the act or event from which the
designated period of time begins to run shall not be included. The last day of
the period so completed shall be included unless it is Saturday, Sunday or legal
holiday. The time
12
<PAGE>
for performance of any obligation or taking any action under this Agreement
shall be deemed to expire at 5:00 p.m. Phoenix time, on the last day of the
applicable time period provided in this Agreement.
K. Interpretations and Definitions. The Parties agree that
each Party and such Party's counsel have reviewed and revised this Agreement (or
have had the opportunity to do so) and that any rule of construction to the
effect that ambiguities are to be resolved against the drafting Party shall not
apply in the interpretation of this Agreement.
L. Code Section 6045. Escrow Agent, as the Party responsible
for closing the transaction contemplated herein within the meaning of Section
6045(e)(2)(A) of the Internal Revenue Code, shall file all necessary
information, reports, returns, and statements (collectively, the "Reports")
regarding the transaction as may be required by the Code including, but not
limited to, the Reports required pursuant to Section 6045 of the Code.
M. Telecopy Signatures. Signatures may be exchanged by
telecopy, with the original signature to follow. Each Party agrees to be bound
by its own telecopied signature and to accept the telecopied signature of the
other Parties, provided an original of such signature is provided within a
reasonable time thereafter.
N. Waiver. Failure of any Party to exercise any right or
option arising out of a breach of this Agreement shall not be deemed a waiver of
any right or option with respect to any subsequent or different breach, or the
continuance of any existing breach.
O. No Recordation or Filing. Neither this Agreement nor any
memorandum of this Agreement shall be recorded. Prior to Closing, Buyer shall
make no filing of any kind with the City of Mesa or with Maricopa County,
without the prior written consent of Seller, which consent may be withheld in
Seller's sole discretion. Any attempted recordation or filing by Buyer in
violation of this Section shall constitute a default by Buyer.
P. Expiration of Offer. This offer shall expire unless Seller
accepts it on or before 5:00 p.m. Phoenix time on April 14, 1998. Seller shall
accept this offer by executing three (3) copies of this Agreement and delivering
the same to Escrow Agent along with Buyer's Earnest Money on or before the
expiration of this offer. Escrow Agent shall thereupon open the Escrow, execute
all copies of this Agreement, and promptly provide Buyer and Seller each with a
copy of this Agreement executed by each of the Parties.
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BUYER:
--------------------------------------
SELLER: BRENTWOOD WEST LLP, an Arizona registered
limited liability partnership,
By: H & E MESA PARTNERSHIP, a general
partnership, General Partner
By:_________________________________
Its: Authorized General Partner
By: L & F INVESTMENTS LIMITED
PARTNERSHIP, an Arizona limited
partnership, General Partner
By: DAUBENMIER REVOCABLE
TRUST, General Partner
By:__________________________
Frances B. Daubenmier,
as Trustee
By: TRUSTEE OF THE EJF TRUST U/T/A
DATED 3/13/95, General Partner
By:_______________________________
Lloyd Kent, Trustee
14
<PAGE>
ACCEPTANCE
This Agreement is accepted as of this _____ day of April, 1998, by
Escrow Agent, which date is deemed to be the date of Opening of Escrow for the
purposes of this Agreement, and Escrow Agent agrees to perform the acts
applicable to Escrow Agent in accordance with the terms of this Agreement.
Escrow Agent acknowledges its receipt of a fully executed original of this
Agreement as of the date set forth above.
ESCROW AGENT: CHICAGO TITLE INSURANCE COMPANY,
a Missouri corporation
By:__________________________________________
Its:________________________________
F:\USERS\TLT\BRNTWOOD\2166001S.20C
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<PAGE>
Legal Description
See Exhibit "A-1" attached hereto.
EXHIBIT A TO
PURCHASE AGREEMENT
<PAGE>
PERSONAL PROPERTY
TO BE SUPPLIED BY SELLER ON OR BEFORE CLOSE OF ESCROW
EXHIBIT B TO
PURCHASE AGREEMENT
<PAGE>
CONTRACTS
TO BE SUPPLIED BY SELLER ON OR BEFORE CLOSE OF ESCROW
EXHIBIT C TO
PURCHASE AGREEMENT
<PAGE>
BROKERS
1. BROKERS ENGAGED BY SELLER: NONE.
2. BROKERS ENGAGED BY BUYER:
Saguaro Properties
(Gary Gunsalus)
EXHIBIT K TO
PURCHASE AGREEMENT
CONDITIONAL ASSIGNMENT OF CONTRACT
THIS CONDITIONAL ASSIGNMENT OF CONTRACT (the "Assignment") is made as
of this _____ day of April, 1998, by and between:
ASSIGNOR: PARKBRIDGE CAPITAL GROUP,INC.
16325 Boones Ferry Rd., Suite 106
Lake Oswego, OR 97035
Attn: Leon D. Meekcoms, President
Phone: (503) 699-0800; Fax (503) 699-0442
ASSIGNEE: COMMUNITY ACQUISITION AND DEVELOPMENT CORPORATION
2637 McCormick Drive, Suite B
Clearwater, Florida 33759-1041
Attn: Joseph W. Gaynor, President
Phone: (813)669-9200 Fax: (813)791-7920
W I T N E S S E T H
WHEREAS, Assignor has heretofore entered into a Purchase Agreement With
Escrow Instructions with Brentwood West Partners L.L.P., a registered Arizona
limited liability partnership, ("Owner") dated as of the 14th day of April,
1998, and as may be amended subsequently with the prior, written approval of
Assignee (collectively, the "Contract"). A complete current copy of the Contract
has heretofore been delivered to Assignee and a copy of the executed document
without exhibits is attached hereto and identified as Exhibit "A"; and
WHEREAS, pursuant to the terms of the Contract, Chicago Title Insurance
Company ("CTIC"), a Missouri corporation, through its office located at 2415
East Camelback Road, Suite 300, Phoenix, Arizona 85016, Attn: Sam Adkins, shall
function as the escrow agent under the Contract ("Escrow Agent"); and
WHEREAS, pursuant to the terms of the Contract, Assignor (or its
assignee) agreed to purchase the real property described therein located in
Maricopa County, Arizona (the "Real Property") and associated personal property,
contracts, leases, licenses, permits and similar property (collectively, with
the Real Property, the "Property"); and
WHEREAS, Assignor has agreed to assign its rights under the Contract to
Assignee, and Assignee has agreed to the Assignment, subject to the conditions
herein; and
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WHEREAS, the parties desire to memorialize their mutual understanding
pursuant to the terms and conditions contained herein.
NOW THEREFORE, for and in consideration of the sum of Ten Dollars
($10.00) in hand paid by Assignee to Assignor, the receipt of which is hereby
acknowledged by Assignor, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Assignor and Assignee
do hereby agree as follows:
1. Recitals. The above recitals are true and correct and are
incorporated herein by reference.
2. Conditional Assignment of Contract. Assignor hereby grants,
bargains, sells, assigns, transfers and sets over unto Assignee the Contract for
the purchase of the Property described therein, together with all of the
Assignor's rights, privileges, duties and obligations set forth therein, subject
to and conditioned upon Assignee's fulfillment of all of the requirements set
forth both herein and in the "Special Requirements" attached hereto as Exhibit
"B" and incorporated herein by reference. Assignee hereby accepts this
Assignment subject to and conditioned upon Assignor's fulfillment of all of the
requirements set forth both herein and in the "Special Requirements" attached
hereto as Exhibit "B" and incorporated herein by reference. By the execution of
this Assignment, Assignor does transfer and set over unto Assignee all of its
right, title and interest in and to any earnest money heretofore paid by
Assignor under the terms of the Contract.
3. Consideration. In consideration of Assignor's assignment of the
Contract, Assignee shall:
a. pay (or cause to be paid) to Assignor an amount
(the "Assignment Fee") equal to $525,000.00 in cash, or in operating partnership
units of Assignee's affiliate/subsequent assignee, or a combination of both;
b. pay in a timely fashion directly to Escrow Agent
all deposits required under the Contract, or reimburse (or cause to be
reimbursed) Assignor for all deposits, if any, heretofore posted or deposited by
Assignor pursuant to the Contract, including those with Escrow Agent (all such
amounts, collectively, the "Contract Deposits").
Assignee's obligation to pay the Assignment Fee and
to reimburse any of the Contract Deposits made by Assignor, if any, shall be
conditioned upon the closing of the Property transfer to the Assignee under the
Contract. If the Contract is terminated by Assignee, then Assignee shall be
under no obligation to pay the Assignment Fee and Assignor shall be under an
obligation to return to Assignee the Contract Deposits made by Assignee to
Escrow Agent if returned to Assignor rather than Assignee.
4. Payment of Consideration. The Contract Deposits and the Assignment
Fee shall be paid by Assignee as follows:
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<PAGE>
a. The Contract Deposits shall be paid directly to
Escrow Agent as follows:
i. $200,000.00 representing the Initial
Earnest Money under the Contract within three (3) business days after the
Contract is executed by both parties thereto. Such Initial Earnest Money Deposit
shall be sent to Escrow Agent with written notice that it is sent on behalf of
Assignor pursuant to this Assignment and that notice with respect to possible
return of such Initial Earnest Money Deposit will be sent by Assignee or
Assignor pursuant to this Assignment if Assignee is not satisfied with the
condition of the Property; and
ii. $300,000.00 representing the Additional
Earnest Money under the Contract upon the expiration of the Study Period (as
defined in the Contract), assuming Assignee is satisfied with the condition of
the Property.
b. The Assignment Fee shall be payable on the closing
of the Property transfer to the Assignee under the Contract.
5. Termination of Assignment and Contract; Limited Power of Attorney.
If, during the first fifteen (15) days of the Study Period, Assignee determines
that it does not want to acquire the Property pursuant to the Contract and this
Assignment, Assignee shall immediately notify Assignor that Assignee desires to
terminate the Contract and this Assignment and thereafter Assignor shall have
five (5) days within which either to:
(a) pay Assignee the full amount of the Initial Earnest Money plus
accrued interest held by Escrow Agent and reassume the role as Buyer under the
Contract, including credit for the Initial Earnest Money held by Escrow Agent;
or
(b) notify Escrow Agent and Owner that the Assignor, as Buyer under the
Contract, cancels the Contract, and request immediate return of the Initial
Earnest Money plus accrued interest (but less the $100.00 Fair Consideration as
defined in the Contract) to Assignee (or if Owner or Escrow Agent requires - to
Assignor - for immediate transfer to Assignee).
If Assignor elects to proceed under (a) above, Assignee shall sign whatever
additional document may be reasonably required by Assignor or a third party to
transfer the Initial Earnest Money left with Escrow Agent into Assignor's name
following or simultaneous with clearance of full replacement funds being
delivered to Assignee.
Upon transfer of the Initial Earnest Money to Assignor as provided in (a) above
or termination of the Contract as provided in (b) above, this Assignment shall
automatically terminate and the parties shall have no further obligations to the
other hereunder or under the Contract.
In connection with this Assignment and the Contract, Assignor hereby makes,
appoints and constitutes Assignee as its irrevocable, true and lawful
attorney-in-fact, and grants Assignee a limited power of attorney for the
purpose of executing any documents necessary to evidence or fulfill any
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<PAGE>
obligation of Assignor provided or granted in this Assignment and the Contract,
including specifically notifying Owner and Escrow Agent on its behalf of a
termination of the Contract, which appointment and grant is coupled with an
interest and is irrevocable during the term of the Assignment. Any person
dealing with Assignee shall be entitled to rely conclusively on any written or
oral statement of Assignee that this limited power of attorney is in effect.
6. Representations, Warranties and Covenants of Assignor.
(a) Assignor represents and warrants that it is a valid Oregon
corporation, in good standing under the laws of the State of Oregon, and that
Assignor has the power and authority to contract for the purchase of the
Property described in the Contract and to execute this Assignment to Assignee.
(b) Assignor warrants that there has been no other assignment,
pledge, transfer, hypothecation, encumbrance, or other transfer of the rights of
the Assignor in and to the Contract, and in and to the Property described
therein.
(c) Assignor represents that it knows of no conditions, either
physical or legal, nor of any hidden defects, which would prevent the Assignee
from utilizing the Property to be purchased under the Contract for the purpose
stated therein or herein.
(d) Assignor represents and covenants that it will direct
Owner immediately to send all Property Documents (as defined in the Contract)
and similar due diligence materials directly to Assignee for review and will, to
the extent required by Owner, execute any receipts therefor on behalf of
Assignor and Assignee. Assignor further represents and covenants that it will
immediately forward any additional Property Documents and similar due diligence
materials sent by Owner to Assignor both before and after the date hereof and
will collaborate with Assignee in furnishing any response or assurance required
by Owner with respect to the use and disposition of such material.
(e) All covenants, conditions and agreements to be performed
by Assignor under the Contract have been performed or will be performed as
required therein, except those which are not to be performed until after the
date hereof, including delivery of the Initial Earnest Money as defined in the
Contract, which will be performed by Assignor or Assignee pursuant to the terms
of this Assignment.
7. Representations, Warranties and Covenants of Assignee.
(a) Assignee represents and warrants that it is a valid
Delaware corporation, in good standing under the laws of the State of Delaware
and qualified to do business in the State of Florida, and that Assignee has the
power and authority to execute this Assignment with Assignor and to complete the
purchase from Owner of the Property described in the Contract pursuant to the
terms of the Contract and this Assignment.
pb\gaynor\brentwdw\condass3.con
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(b) All covenants, conditions and agreements to be performed
by Assignor under the Contract will be performed by Assignee as required therein
and herein, including disposition of the Property Documents and other
Confidential Information as required under the Contract.
8. Transfer of Other Documents. In addition to the assignment of the
Contract, the Assignor does grant, bargain, sell, assign transfer and set over
unto the Assignee any and all other documents it may have procured from any
source subsequent or prior to the execution of the Contract involving the
Property described therein, including, without limitation, surveys, title
insurance, title searches or title commitments, zoning change applications, and
any and all permits that may have been issued by any governmental authority in
regard to the Property described in the Contract.
9. Transfer of Title. Assignor does hereby authorize Assignee to notify
Owner to make, execute and deliver to Assignee a good and sufficient Warranty
Deed to the Real Property described in the Contract and an Owner's Title
Insurance Policy upon the closing of the Contract as called for therein and
herein, and the parties hereto agree that said Deed shall be conveyed from Owner
to Assignee with the same power and effect as if executed between Owner and
Assignor.
10. Governing Law; Venue. This Assignment has been executed in part and
delivered in the State of Florida and shall be construed and enforced in
accordance with, and be governed by the laws of the State of Florida, and shall
be enforceable, at the option of Assignee, in a court of competent jurisdiction
in Pinellas County or Hillsborough County, Florida, notwithstanding that this
Assignment involves a contract covering property located in the State of
Arizona.
11. Severance. The invalidity or unenforceability of any portion of
this Agreement shall in no wise affect the remaining provisions and portions
hereof.
12. Successors and Assigns; Binding Effect. This Assignment shall bind
and inure to the benefit of the successors and assigns of the parties hereto.
Assignee specifically reserves the right to further assign its rights and
obligations under this Assignment without the consent of Assignor, but with
notice to Assignor and, as needed, to Owner and Escrow Agent.
13. No Recording; Publication. Neither this Assignment nor any
memorandum thereof shall be recorded in the Public Records of Maricopa County,
Arizona or elsewhere without the prior written consent of both parties;
provided, however, that a copy of this Assignment may be provided by either
party to Owner or Escrow Agent (or to a third party who is relying upon the
power-ofattorney provision herein) for purposes of confirming the assignment of
the Contract to Assignee or the powers of Assignor and Assignee hereunder to
terminate the Contract, etc., and a copy may be filed in any proceeding to
enforce the terms hereof. If Assignor does not want the consideration provisions
hereof, i.e. paragraphs 4 and 15, disclosed to Owner or another third party,
Assignor shall deliver two (2) or more originals of a modified/redacted
memorandum version of this Assignment to Assignee, executed by Assignor, within
ten (10) days of the date hereof for execution by Assignee and use as desired by
the parties. Such modified version shall not supersede this Assignment, but
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<PAGE>
shall function merely as a memorandum of the other substantive provisions of
this Assignment for delivery to third parties.
14. Notices. Any notice, request, demand, instruction or other document
to be given hereunder or pursuant hereto shall be in writing and (I) personally
delivered, or (ii) delivered by facsimile transmission, or (iii) delivered by
overnight courier service, or (iv) sent by registered or certified mail, postage
prepaid, return receipt requested, to the addresses listed in the
Preamble/Recitals of this Assignment. Notice shall be deemed to have been
delivered upon receipt by, or (if by United States mail) 72 hours after deposit
in the United States mail as provided above addressed to, each addressee
provided for above to whom a copy of such notice is to be given.
15. Brokers and Finders. Assignor shall be responsible for commissions
payable to Saguaro Properties, Inc., in the amount of $262,500.00 (to be divided
pursuant to separate agreement between them), which shall be payable upon
payment to Assignor of the total Assignment Fee. Each party agrees to indemnify
and hold the other harmless from and against any loss, damage, or expense
resulting from any claim by any other person, firm or corporation based upon
their having acted as a broker or finder for or in connection with the
transactions contemplated by the Contract and this Assignment for or at the
request of such indemnifying party.
16. Prevailing Party. In the event of any litigation with respect to
this Assignment, the party hereto who does not prevail shall be responsible for
all costs (e.g., court costs, attorneys' fees (including upon appeal(s),
damages, etc.) incurred by the prevailing party.
17. Further Action. The parties each agree to execute such further
documents and to take such further action as may be necessary or desirable to
effectuate the intents and purposes of this Assignment and consummate the
transaction contemplated herein.
18. Construction; Captions. Whenever the context so requires, the
singular number shall include the plural, and the masculine, feminine and neuter
genders shall include the other or others. The paragraph captions used
throughout this Assignment are for the purpose of reference only and are not to
be considered in the construction of this Assignment or in the interpretation of
the rights or obligations of the parties hereto.
19. Entire Agreement; Amendment. It is agreed that this document
contains the entire agreement between the parties and the Assignment shall not
be modified in any respect except by an amendment in writing signed by all
parties hereto.
20. Counterparts; Facsimile Signatures. This document may be executed
in counterparts each of which, when assembled and conformed, shall be an
original Assignment. The parties agree that this document and other instruments
and notices described herein may be executed by them in facsimile shall
constitute original signatures and shall be binding on the party so signing and
shall be accepted by the receiving party provided an original of such signature
is provided within a reasonable time thereafter.
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<PAGE>
21. Time. Time is of the essence of this Assignment and each provision
hereof.
22. Covenants and Conditions. Each provision of this Assignment
performable by Assignor and Assignee shall be both a covenant and a condition.
IN WITNESS WHEREOF, the parties have hereunto set their respective
hands and seals the day and year first above written.
Witnesses: ASSIGNOR:
___________________________ PARKBRIDGE CAPITAL GROUP, INC.,
Print Name:________________ an Oregon corporation
___________________________ By:____________________________
Print Name;________________ Leon D. Meekcoms, President
ASSIGNEE:
___________________________
Print Name:_______________ COMMUNITY ACQUISITION AND
DEVELOPMENT CORPORATION,
a Delaware corporation
__________________________
Print Name:_______________ By:_____________________________
Name:_______________________
Title:______________________
STATE OF __________
COUNTY OF__________
The foregoing instrument was sworn to and acknowledged before me this
_____ day of _______________, 1998, by _______________, as _______________ of
PARKBRIDGE CAPITAL GROUP,INC., an Oregon corporation, on behalf of said
corporation. He/She is personally known to me or has produced
______________________________ as identification.
My Commission Expires: _______________________________
Print Name:____________________
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<PAGE>
NOTARY PUBLIC
STATE OF ______________
COUNTY OF______________
The foregoing instrument was sworn to and acknowledged before me this
_____ day of _______________, 1998, by _______________, as _______________ of
COMMUNITY ACQUISITION AND DEVELOPMENT CORPORATION, a Delaware corporation, on
behalf of said corporation. He/She is personally known to me or has produced
______________________________ as identification.
My Commission Expires:
___________________________
Print Name:_________________
NOTARY PUBLIC
EXHIBIT "B"
SPECIAL REQUIREMENTS
This Assignment shall become unconditional and absolute following the
earlier to occur of any of the following:
(a) The end of twenty (20) days of the Study Period (or such later date
that is five (5) days following written notice from Assignee to Assignor that
Assignee does not want to acquire the Property pursuant to the Contract and this
Assignment), assuming Assignee has notified Assignor that Assignee does not want
to acquire the Property; or
(b) If no such notice of termination is sent by Assignee to Assignor,
upon expiration of the Study Period under the Contract and payment of the
Additional Earnest Money by Assignee to Escrow Agent under the Contract; or
(c) At any time, at Assignees's sole election, if Assignee waives the
conditions and accepts the Property and Contract "as is" in a written notice to
Assignor.
Upon this Assignment becoming absolute pursuant to the terms hereof,
Assignee shall notify Owner and Escrow Agent that the Contract has been assigned
completely to Assignee and that Assignee will be the party thereafter, as Buyer
under the Contract, determining whether the Contract will be terminated or
closed. In particular, if Assignee delivers written notice to Assignor of
Assignee's desire to terminate the Contract during the Study Period, but
Assignor refuses or fails to so notify Escrow Agent and Owner in a timely manner
prior to the end of the Study Period, Assignee shall have the absolute right to
notify Escrow Agent and Owner of such termination on its own behalf and as
attorney-in-fact for Assignee during the Study Period.
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8
ASSIGNMENT OF AGREEMENT OF SALE
This Assignment of Contract (the "Assignment") is made as of 1st day of
June, 1998, by and between Community Acquisition Joint Venture ("CAJV") and
Asset Investors Operating Partnership, L.P. ("AIOP").
W I T N E S S E T H
WHEREAS, CAJV and Parkbridge Capital Group, Inc. ("PCG") entered into a
certain Conditional Assignment of Contract dated as of April 17, 1998, which
Conditional Assignment of Contract, as amended is referred to herein as the
"Agreement"; and
WHEREAS, pursuant to the Agreement PCG assigned its rights to purchase
Brentwood West Mobile Home Park to CAJV; and
WHEREAS, CAJV desires to assign all of its interest in the Agreement to
AIOP; and
WHEREAS, BRJV and AIOP desire to memorialize their mutual
understandings pursuant to the terms and conditions contained herein.
NOW THEREFORE, in and for the consideration of the sum of Ten Dollars
($10.00) herein paid by AIOP to CAJV, the receipt of which is hereby
acknowledged by CAJV and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged by CAJV, CAJV and AIOP hereby
agree as follows:
1. Recitals. The above recitals are true and correct and are
incorporated herein by reference.
2. Assignment. CAJV hereby grants, assigns, sells, transfers and sets
over to AIOP all of its interest in the Agreement, together with all of CAJV's
rights, privileges, duties and obligations set forth in the Agreement. AIOP
accepts this assignment and assumes all of the obligations of CAJV set forth in
the Agreement.
3. Additional Information. In addition to this assignment, CAJV does
grant, buy, sell, assign, transfer and set over unto AIOP all of its interest in
any and all other documents that it may have procured subsequent to the
execution of the Agreement with respect to the Property described therein,
including, without limitation, surveys, title insurance, title searches or
commitments, environmental studies, structural studies, applications, permits,
and contracts with respect to the Property.
4. Governing Law. This Agreement shall be governed by the laws of the
state of Arizona and shall inure to the benefit of and be binding upon the
parties hereto with respect to the successors and assigns and shall be enforced
only in a court of competent jurisdiction in Maricopa County, Arizona.
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<PAGE>
5. Severance. The invalidity or unenforceability of any portion of this
Assignment shall in no way effect the remaining portions hereof.
6. Binding Effect. This Assignment shall bind the successors, heirs and
assigns of the parties hereto.
7. Captions. The paragraph captions used throughout this Assignment are
for the purpose of reference only and not to be considered in the construction
of this Assignment or any interpretation of the rights or obligations of the
parties hereto.
8. Entire Agreement. It is agreed that this document contains the
entire agreement between the parties and this Assignment shall not be modified
in any respect except by an amendment in writing signed by the parties hereto.
9. Counterpart Execution. This Assignment may be executed in several
counterparts and by facsimile, each of which shall be fully effective as an
original and all of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have hereunto set their respective
hands and seals as of the day and year first written above.
COMMUNITY ACQUISITION JOINT VENTURE
BY: COMMUNITY ACQUISITION AND
DEVELOPMENT CORPORATION, a Delaware
corporation
By:_____________________________________
Thomas P. McLaughlin, Jr., Vice President
Execution Date: June 1, 1998
ASSET INVESTORS OPERATING PARTNERSHIP,
L.P., a Delaware limited partnership
By: ASSET INVESTORS CORPORATION, a
Maryland corporation
By:______________________________________
David Becker, ______________
Execution Date: June 1, 1998
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