EXHIBIT 10.1
RECREATIONAL VEHICLE PARK
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (the "Agreement") is made this 9th day
of October, 2003 by and among:
SELLER: Paradise RV Resort - Neil Spizizen, General Partner
31150 Northwestern Hwy, Suite 200
Farmington Hills, MI 48334
(hereinafter referred to as "Seller")
BUYER: Diversified Investments Services, LLC,
a Delaware limited liability company
c/o Barry L. Haase, Manager
(hereinafter referred to as "Buyer")
WITNESSETH:
WHEREAS, Seller is the current owner and holder of the Property (as
hereinafter defined) which is currently being operated as a Recreational Vehicle
Park and which is commonly known as the "Paradise RV Resort" and Seller desires
to sell the Property (as hereinafter defined) to Buyer, and Buyer desires to
purchase the Property (as hereinafter defined) from Seller upon and subject to
the terms and conditions of this Agreement;
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 (as hereinafter defined) on and under the terms and conditions
herein set forth.
1. RECITALS. The above recitals are true and correct and are
incorporated herein by reference.
2. PROPERTY. Seller agrees to sell and convey and Buyer agrees to
purchase and accept the following described property (collectively, the
"Property"):
(a) Land. The fee simple estate in and to that certain
tract of real estate located in Sun City, Arizona, as more particularly
described on Exhibit "A" attached hereto and incorporated herein by reference,
together with all tenements, hereditaments, appurtenances, rights, privileges
and easements pertaining thereto, including, without limitation, all right,
title and interest of Seller therein, and all right, title and interest of
Seller, if any, in and to any street or road abutting or adjoining the
aforementioned land to the center line thereof (collectively, the "Land"); and
(b) Improvements. All buildings, structures, fixtures,
facilities, and other improvements of every kind and description in, on, over
and under the Land (excluding any mobile homes owned by tenants of the park),
including, without limitation, 950 zoned, licensed and permitted mobile home
rental spaces, any and all plumbing, air-conditioning, heating, ventilating,
mechanical, electrical and other utility systems, recreational facilities,
signs, light fixtures, parking lots, landscaping and security devices
(collectively, the "Improvements") (the Land and Improvements are sometimes
hereinafter collectively referred to as the "Real Property"); and
(c) Personal Property. All furniture, furnishings,
equipment, appliances, supplies, inventory and other tangible personal property
installed in, affixed to or placed upon the Real Property, which are owned by
Seller and which are used or useful, directly or indirectly, in connection with
the operation of the Real Property as a Recreational Vehicle Park, including,
without limitation, the items described in the Schedule of Personal Property,
attached hereto as Exhibit "B" and incorporated herein by reference
(collectively, the "Personal Property"); and
(d) Intangibles; Leases. All right, title and interest of
Seller in and to the intangible personal property used or useful, directly or
indirectly, in connection with or arising from the operation of the Real
Property as a Recreational Vehicle Park, including, without limitation, all
rights and interests Seller may have to any warranties made in favor of Seller
related to the Real Property, the Personal Property or the construction thereof,
all contract rights, and all tenant leases demising all or portions of the Real
Property (including any security deposits or advance rent paid thereunder)
(collectively, the "Leases") and any possessory liens inuring to the landlord by
application of Arizona law; and
(e) Name. All right, title and interest to Seller, if
any, in and to the name "Paradise RV Resort", together with all logos or other
identification, signs or symbols, if any, associated or used in connection with
such name (collectively, the "Name"); and
(f) Licenses; Permits. All licenses, permits,
authorizations, consents, variances, waivers, approvals, and the like, from any
federal, state, county, municipal or any other governmental or a
quasi-governmental body, agency, department, board commission, bureau or other
entity or instrumentality affecting the operation of the Real Property as a
Recreational Vehicle Park (collectively, the "Licenses and Permits"); and
(g) Plans and Reports. To the extent the following are in
Seller's possession, all plans and specifications, surveys, engineering reports,
studies and similar documents prepared for or used in connection with the Real
Property in its development and operation as a Recreational Vehicle Park
(collectively, the "Plans and Reports").
3. PURCHASE PRICE. Subject to credits, adjustments and prorations
as provided herein, the purchase price for the Property shall be TWENTY FIVE
MILLION AND NO/100 DOLLARS ($25,000,000.00) (the "Purchase Price") which shall
be payable as follows:
(a) Initial Earnest Money Deposit. As an initial earnest
money deposit (the "Initial Deposit"), Buyer shall, within two (2) Business Days
(as hereinafter defined) after the Effective Date of this Agreement, deposit
with First American Title ("Escrow Agent") the sum of ONE HUNDRED THOUSAND AND
NO/100 DOLLARS ($100,000.00) which sum shall be held in an interest bearing
account for the benefit of Buyer and credited toward the Purchase Price of the
Property at closing or otherwise disbursed by Escrow Agent in accordance with
the terms of this Agreement.
(b) Additional Earnest Money Deposit. As an additional
earnest money deposit (the "Additional Deposit") Buyer shall, within two (2)
Business Days (as hereinafter defined) after the expiration of the Inspection
Period (as hereinafter defined), provided Buyer has not terminated this
Agreement prior to the expiration of the Inspection Period, deposit with Escrow
Agent the additional sum of ONE HUNDRED FIFTY THOUSAND DOLLARS ($150,000.00)
which sum shall be deposited in the same interest bearing account as the Initial
Deposit and credited toward the Purchase Price of the Property at closing. The
Initial Deposit and the Additional Deposit shall hereinafter collectively be
referred to as the "Earnest Money Deposit" which shall become non-refundable
upon expiration of the Inspection Period, but shall be fully refundable at
Buyer's request prior thereto or as otherwise provided herein including, without
limitation, Seller's failure to perform any covenants or obligations of Seller
hereunder and a failure of a condition precedent to Buyer's obligation to close
as set forth herein. The Earnest Money Deposit will be held in an interest
bearing escrow account with the interest credited to Buyer. Should Buyer not
make any part of the Earnest Money Deposit or withdraw the Earnest Money Deposit
during the Inspection Period, this Agreement shall be null and void, and the
parties to this Agreement shall have no further obligations to each other.
(c) Management Fee. Buyer shall pay to NEIL SPIZIZEN an
amount equal to three percent (3%) of collected revenues for the time period
from the Closing Date through April 30, 2005. Such Management Fee will be paid
to NEIL SPIZIZEN monthly.
(d) Cash. At closing, Buyer shall pay or cause to be paid
(i.e., by a third party lender) to Seller the balance of the Purchase Price,
less any credits, adjustments or prorations due to Buyer as provided herein,
plus any additional consideration due to Seller as provided for hereinafter,
payable by locally drawn cashier's check or Federal Reserve Bank wire transfer
of U.S. Funds.
4. INSPECTION PERIOD. Buyer shall have the right, for a period of
forty-five (45) days from and after the Effective Date of this Agreement (the
"Inspection Period"), to obtain and review information concerning the Property,
to review and analyze the various due diligence items to be provided to Buyer by
Seller as set forth below, to make such physical, zoning, land use,
environmental and other examinations, inspections and investigations of the
Property or the use and operation thereof which Buyer, in Buyer's sole
discretion, may determine to make, and to decide whether the same are
satisfactory to Buyer. All expenses of the inspection shall be paid by Buyer.
Buyer shall have the right, in its sole and arbitrary discretion, to terminate
this Agreement prior to the expiration of the Inspection Period by providing
written notice to Seller of its election to terminate. If Buyer has not given
written notice to Seller terminating this transaction prior to 5:00 P.M. EST on
the expiration date of the Inspection Period, Buyer shall be deemed to have
approved the inspection and to have waived this contingency. If Buyer does
terminate this transaction, in its sole and arbitrary discretion, prior to the
expiration of the Inspection Period, this Agreement shall terminate and be
deemed null and void, and the Initial Deposit together with any and all interest
shall be returned to Buyer, and the parties to this Agreement shall have no
further obligation to each other.
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Attached hereto as Exhibit "C" and incorporated herein by
reference is a list of the preliminary items of due diligence (the "Preliminary
Items of Due Diligence") to be provided by Seller to Buyer, which Seller shall
provide to Buyer within five (5) days after the Effective Date of this
Agreement. During the Inspection Period, Buyer shall have the option to request
any additional specific items or documentation which may be reasonably required
by Buyer to perform its due diligence by giving Seller written notice of such
request. Subject to Seller's warranties and representations set forth in this
Agreement, Buyer shall rely solely on its own investigations, including but not
limited to environmental studies, termite inspections and engineering reports,
and an accounting review of the books and records of the Property in determining
the physical and financial condition of the Property.
5. RIGHT OF ENTRY. Seller hereby grants to Buyer and Buyer's
agents, employees, contractors, and representatives (collectively, the "Buyer's
Investigators"), from and after the Effective Date of this Agreement through the
Closing Date (as hereinafter defined), unless this Agreement is sooner
terminated pursuant to the terms set forth herein, a right of entry upon the
Real Property and a right of inspection of the Real Property and all records
associated therewith for the purpose of physically inspecting the Property,
conducting environmental, soil, engineering, structural and other tests as Buyer
may deem necessary, inspecting the mechanical, plumbing and utility systems
located on the Property, and ascertaining the working order and condition of the
Property (including all Leases, books and financial records pertaining to the
Recreational Vehicle Park), provided said right is exercised during normal
business hours, upon prior notice to Seller, and in a reasonable manner which
does not interfere with Seller's operation of the Property. Furthermore, Buyer
shall have the right to meet with the managers, any park employees, including,
without limitation, assistant managers, maintenance personnel, marketing
personnel, and brokers, tenants and the homeowners' association (if one exists)
at any time prior to the Closing Date (as hereinafter defined). All expenses of
the inspection shall be paid by Buyer. Buyer shall indemnify, defend and hold
harmless Seller from and against all liabilities, damages, claims, costs, fees
and expenses whatsoever (including reasonable attorney's fees and costs at trial
and all appellate levels) arising out of or resulting from any such inspection
or investigation. Notwithstanding anything contained herein to the contrary, the
provisions of this paragraph shall survive the closing and any cancellation or
termination of this Agreement.
6. REPRESENTATIONS. Seller makes the following representations,
all of which shall be true and correct as of the Effective Date of this
Agreement and as of the Closing Date (as hereinafter defined):
(a) Seller is a limited partnership duly organized,
validly existing, and in good standing under the laws of the State of Arizona.
Seller has full power to own the Property and to conduct its present business
from the Real Property.
(b) Seller has good, marketable and insurable title to
the Real Property and has good and marketable title to all other assets that
comprise or make-up the Property being sold hereunder, all of which free and
clear of all mortgages, liens, security interests, charges, claims, restrictions
and other encumbrances of every kind except as otherwise specifically provided
for in this Agreement or as will be discharged at or before closing, and there
will be no restrictions on the transfer of the Property at the time of closing.
(c) There is no pending or to the best of Seller's
knowledge threatened condemnation or similar proceeding affecting the Real
Property or any part thereof and Seller has no knowledge that any such
proceeding is presently contemplated and the Property is free from damage or
destruction due to any casualty loss.
(d) There are no claims, actions, suits or other legal or
administrative proceedings, including, without limitation, bankruptcy
proceedings, pending or, to the best of Seller's knowledge, threatened, against
or involving Seller or the Property which could affect the consummation of the
transaction contemplated hereby, and Seller is not aware of any facts which
might result in any such action, suit or other proceeding, except as set forth
on Exhibit "D" attached hereto and incorporated herein by reference. There are
no judgments, orders or stipulations against Seller or the Property, except as
set forth on Exhibit "D" attached hereto and incorporated herein by this
reference.
(e) There are no special or other assessments levied
against or relating to the Property and Seller does not know of any proposed
assessments.
(f) No rents or other deposits due under the Leases are
or will on the Closing Date (as hereinafter defined) be held by Seller, except
security deposits and prepaid rents as reflected on the rent rolls provided by
Seller to Buyer under this Agreement; there are no commissions or other fees
payable to any person, entity or agent on the rentals collected or to be
collected under any Leases encumbering the Property; that no tenant under any
Leases shall be entitled to any rebates, rent concessions or free rent which
will survive the Closing Date except as reflected on the rent rolls provided by
Seller to Buyer
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under this Agreement; that no commitments have been made to any tenant under any
Leases for repairs or improvements; no tenant has an option to purchase any part
of the Property; Seller is the landlord under each Lease and has the right to
assign same to Buyer; and that no rents due under any of the Leases have been
assigned, hypothecated or encumbered other than to the holders of the
indebtedness to be released at closing.
(g) Seller is not subject to any charter, by-law, rule,
agreement or restriction of any kind or character which would prevent the
consummation of this Agreement and the transaction contemplated hereby. Seller
has full power and authority to execute this Agreement and all documents
necessary to accomplish the sale contemplated herein, fully perform hereunder
and to consummate the transaction contemplated hereby without the consent or
joinder of any other party.
(h) To the best of Seller's knowledge, Seller has
complied with all applicable laws, ordinances, regulations, orders, rules and
restrictions pertaining to or affecting the ownership and operation of the
Property and the sale thereof contemplated by this Agreement.
(k) To the best of Seller's knowledge, Seller has
obtained and kept in good standing all governmental permits, licenses and
approvals necessary for the operation of the Property, including, as applicable,
all health permits, Department of Environmental Protection permits and HRS
permits, and Seller has not received notice of any violations thereunder.
(l) All utilities, including, without limitation, water,
electricity, telephone, cable, storm sewer and sanitary sewer services and
facilities have been extended to the Real Property and are available to the Real
Property. Water and sewer services are provided to the Real Property by the
municipality in which the Property is located and all costs of design,
permitting and installation of water and sewer facilities and connection fees
have been paid and Seller is current in its obligations to such municipality for
water and sewer services.
(m) The use of the Property as a Recreational Vehicle
Park is permitted under the current zoning classification for the Property. All
permits associated with the use of the Real Property as a Recreational Vehicle
Park have been obtained and are in good standing. The Real Property contains and
is zoned, licensed and permitted to contain and operate a Recreational Vehicle
Park with 950 spaces, which spaces are all equipped with full utility services
and are properly spaced within set back requirements.
(n) Seller has the right to assign the Name by which the
Property is commonly known and to use that Name in the operation of the
Property. Seller has received no notice objecting to the use of the Name for the
Property, but Seller otherwise makes no warranty or representation as to Buyer's
ability to use or to continue to use the Name.
(o) The Personal Property is in good working condition,
and at the time of closing will be in good working order; and the Personal
Property is free and clear of all liens and encumbrances, except as otherwise
provided in this Agreement.
(p) All sales tax due in connection with the operation of
the Property as a Recreational Vehicle Park, if any, have been paid by Seller to
the State of Arizona Department of Revenue.
(q) Seller has no knowledge of latent defects or adverse
facts that exist with respect to the physical condition of the Property which
have not been specifically disclosed in writing to Buyer.
(r) To the best of Seller's knowledge, neither this
Agreement nor any Exhibit nor any written statement or document furnished or to
be furnished by Seller to Buyer in connection with the transactions contemplated
by this Agreement contains or will contain any untrue statement of material fact
or omits or will omit any material fact necessary to make the statements
contained therein, in light of the circumstances under which they were made, not
misleading,
(s) The financial information contained in the operating
statements identified in Exhibit "C" attached hereto is substantially correct.
Seller has not been notified of any material increases in expenses that are not
reflected in such statements.
The foregoing representations and warranties shall survive the Closing Date (as
hereinafter defined) for one year.
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7. SELLER'S COVENANTS.
(a) From the date of this Agreement to Closing Date (as
hereinafter defined), Seller shall conduct its business involving the Property
in the ordinary course, and during said period will:
(i) Operate the Property in a prudent manner and
continue its advertising commitments and marketing programs, if any. It is the
intention of the parties that the general operation of the Property shall not be
changed between the Effective Date of this Agreement to the Closing Date (as
hereinafter defined), except as set forth herein or as otherwise agreed upon
between the Buyer and the Seller;
(ii) Refrain from entering into any contracts or
other commitments with respect to the operation of the Property that extend more
than 30 days beyond the Closing Date, other than in the ordinary course of
business, without the prior written consent of Buyer, which consent will not be
unreasonably withheld. Rental agreements with prospective new residents of the
Property entered into at the prevailing rental rate and terms without concession
are excluded from this requirement;
(iii) Keep in effect Seller's existing policies of
public liability and hazard and extended coverage insurance insuring the
Property which costs, if the policies are assumable by Buyer, shall be prorated
at the Closing Date (as hereinafter defined);
(iiii) Promptly comply with all notices of violation
of laws or municipal ordinances, regulations, orders or requirements of
departments of housing, building, fire, labor, health, or other state, city or
municipal departments or other governmental authorities having jurisdiction
against or affecting the Property or the use or operation thereof;
(iv) Provide the annual rent increase notice for
the Property due in the normal course of business for a lot rent increase for
each site in an amount approved by the Buyer;
(v) Provide the updated items of Due Diligence
on a timely basis pursuant to the terms of this Agreement and provide the most
recent financial information or other materials or documents during the time
period from the Effective Date of this Agreement until the Closing Date (as
hereinafter defined), including, without limitation, a certified monthly rent
roll, a certified monthly and year-to-date operating statement and other items
which may be reasonably requested from time to time; and
(b) Commencing as of the Effective Date of this Agreement
and continuing until the Closing Date (as hereinafter defined), Seller shall:
(i) not take any action or fail to take any action which would cause any of the
representations or warranties made by Seller under this Agreement to be in any
way not substantially true, complete and accurate; (ii) not perform any act or
permit any act to be performed that may cause material damage, waste or
destruction to the Property; and (iii) comply with all federal, state and
municipal laws, statutes, ordinances and orders relating to the Property.
8. TITLE INSURANCE.
(a) The Real Property shall be conveyed to Buyer or an
assignee of Buyer as may be permitted by this Agreement by a recordable warranty
deed, and shall be subject only to those exceptions to title and those
covenants, conditions and restrictions of record which are reflected in the
Commitment (as hereinafter defined) to which Buyer has not objected within the
time frame set forth in paragraph 8(c) below, at which time such matters shall
become Permitted Exceptions as set forth in paragraph 8(c) below. Without
limiting the generality of the foregoing, unless specifically agreed in writing
by Buyer, the Real Property shall not be subject to any (i) mortgage, deed to
secure debt, deed of trust, security agreement, judgment, lien or claim of lien,
or any other title exception or defect that is monetary in nature, or (ii) any
easement, restriction, zoning, prohibition, or other requirement of governmental
authorities that would prevent the use of the Real Property as a Recreational
Vehicle Park with associated facilities. The title to the Real Property shall be
subject to current and future ad valorem property taxes which are not yet due
and payable.
(b) Within fifteen (15) days after the Effective Date of
this Agreement, the Seller shall, at Seller's sole cost and expense, deliver, or
cause to be delivered to Buyer and Buyer's attorney, an ALTA Form B Commitment
for an owner's title insurance policy (the "Commitment") issued by a Arizona
licensed title insurer (the "Title Company") acceptable to Buyer and Buyer's
attorney, showing marketable fee simple title to the Land vested in Seller. The
Commitment shall be accompanied by the best copies available from the Title
Company of all documents of record referred to in the Commitment. The Commitment
shall describe the Land, and such legal description shall be incorporated into
this Agreement and shall be used in all closing documents
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(unless a survey shows a different legal description); shall list Buyer as the
prospective named insured; and shall show as the policy amount the Purchase
Price.
(c) Buyer shall within ten (10) days after Buyer's
receipt of the Commitment examine the Commitment and notify Seller in writing of
those particular liens, encumbrances, exceptions, qualifications or defects
listed in the Commitment, which are not acceptable to Buyer (any such liens,
encumbrances, exceptions, qualifications or defects are collectively, the "Title
Defects"). If Buyer fails to provide Seller with timely notice of the existence
of any Title Defects within such ten (10) day period, then, for all purposes of
this Agreement, Buyer shall be deemed to have accepted title in the condition
described in the Commitment, and any and all title encumbrances, exceptions or
other matters, which are set forth in the Commitment, and to which Buyer does
not object during such period, shall be deemed to be "Permitted Exceptions".
With regard to Title Defects to which Buyer does object to during said ten
(10) day period, other than the liens or other exceptions to be discharged at or
before the closing, Seller shall have thirty (30) days from the date Seller
receives written notice from Buyer within which to cure, satisfy or remove such
Title Defects. The Seller agrees that it will use its best efforts to satisfy or
eliminate such Title Defects within the thirty (30) days provided therefor.
If Seller, after using its best efforts, shall fail to cure
or eliminate the Title Defects within the thirty (30) day period, then Seller
shall promptly provide written notice to Buyer of the date Seller reasonably
expects to cure or eliminate the Title Defects or that Seller does not
reasonably expect to cure or eliminate the Title Defects. Within fifteen (15)
days following its receipt of such written notice from Seller, Buyer shall
deliver to Seller written notice of Buyer's election to either (a) terminate
this Agreement by reason and on account of the existence of such uncured Title
Defects, (b) extend the time period for Seller to eliminate the Title Defects
for no more than thirty (30) additional days, or (c) waive the existence of the
uncured Title Defects and agree in writing to close its purchase of the Property
and thereby accept a conveyance of the title to the Real Property subject to and
notwithstanding the existence of Title Defects and without any reduction of the
Purchase Price on account thereof, at which time the Title Defects shall be
deemed Permitted Exceptions. In the event that Buyer elects to terminate this
Agreement due to the existence of uncured Title Defects by giving written notice
of that fact to Seller, Buyer shall be entitled to a return of the Earnest Money
Deposit and Extension Fee, if any, and all interest earned thereon, and
thereafter, all rights, obligations, and liabilities of the parties under this
Agreement shall cease, terminate and be null and void. If Seller does so cure or
satisfy any Title Defect, within the time provided, then this Agreement shall
continue in effect. Seller agrees not to further adversely alter or encumber in
any way the title to the Property after the Effective Date of this Agreement.
(d) An agent or representative of the Title Company shall
be in attendance at the closing and be in a position to mark-up the Commitment
as may be reasonably requested by Buyer or Buyer's attorney, to commit to issue
the title policy pursuant to the terms of marked-up Commitment upon recording
the appropriate documents, to insure that the Real Property free and clear of
all exceptions to title other than the Permitted Exceptions.
9. SURVEY. Within five (5) days after the Effective Date of this
Agreement, Seller shall deliver to Buyer a copy of Seller's most recent survey
of the Real Property. Prior to expiration of the Inspection Period Buyer may, at
its sole cost and expense, elect to obtain a current survey of the Real
Property. The survey shall be prepared by a registered and/or licensed land
surveyor in Arizona, shall: (i) meet no less than the minimum technical
standards of the Arizona Administrative Code for land surveys and; (ii) shall be
certified to Seller, Buyer, Escrow Agent, Buyer's chosen lender, Buyer's
counsel, the Title Company and any other person or entity designated by Buyer;
and (iii) shall otherwise be in form acceptable to Buyer and the Title Company.
The legal description of the Real Property shall be printed on the survey. In
the event the survey indicates any encroachments onto or off of the Real
Property, overlaps, gaps or other matters evidencing claims or potential claims
of third parties or otherwise adversely affecting title to the Real Property,
Buyer shall notify Seller in writing on or before the expiration of the
Inspection Period and the same shall thereupon be treated as Title Defects to
which the provisions of paragraph 8(c) of this Agreement regarding notice,
opportunity to cure and right to terminate or waive relating to Title Defects
shall apply. With regard to items or matters reflected in the survey to which
the Buyer does not object prior to the end of the Inspection Period, such items
or matters shall be deemed to be acceptable to Buyer. Upon the delivery of a
final survey to the Seller and the Title Company, Seller shall cause the Title
Company to limit the survey exceptions on the owner's title insurance policy to
be issued in accordance with the Commitment to matters actually shown on the
survey and shall delete all standard exceptions pertaining to any survey
matters.
10. 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 Buyer's sole discretion:
(a) Buyer shall not have given written notice to Seller
pursuant to paragraph 4 of this Agreement terminating the Agreement prior to the
expiration of the Inspection Period.
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(b) Seller shall have fully performed each undertaking,
covenant and agreement to perform by Seller under this Agreement within the time
period provided herein, including, without limitation, delivery of all items set
forth in paragraph 4 above.
(c) All of Seller's warranties and representations made
in this Agreement are true and correct as of the Closing Date (as hereinafter
defined).
(d) The Property shall not have been materially affected
by any moratorium, legislative or regulatory change, or any flood, accident,
condemnation or other material adverse event.
In the event that any one or more of the above conditions is
not satisfied or waived by Buyer, at Buyer's sole discretion, at or prior to the
closing, Buyer may terminate this Agreement by giving written notice to Seller
and the Earnest Money Deposit and Extension Fee, if any, shall be returned to
Buyer together with any and all interest accrued thereon.
11. CLOSING. The sale and purchase transaction contemplated by
this Agreement shall be closed and consummated sixty (60) days after the
expiration of the Inspection Period (the "Closing Date"), subject to the
curative period(s) set forth in paragraphs 8(c) and 9 above; provided,
however, Buyer may elect to accelerate the Closing Date upon the delivery of
fifteen (15) days prior written notice to Seller. Closing shall be at the
offices of Seller's counsel or, at the option of the parties, may be effected
through the mail as coordinated by counsel for Seller and Buyer. At closing,
Seller and, as applicable, Buyer shall execute and deliver the following
documents in form acceptable to Buyer and Seller or undertake the following:
(a) All consents, authorizations, 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) An endorsement to the Commitment deleting the
Schedule B, Part I requirements, except those pertaining to Buyer, unless Buyer
provides the documentation sufficient to do so, and the standard exceptions on
Schedule B, Part II, except the survey exceptions (unless Buyer furnishes a
current survey sufficient to do so).
(d) 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 purchased by Buyer pursuant to
this Agreement, if any.
(e) Affidavit of No Liens by Seller.
(f) Affidavit of Non-Foreign Status by Seller.
(g) Certified rent roll in the form of Exhibit "E"
attached hereto and incorporated herein by reference dated and certified by
Seller to Buyer as being a true and accurate rent roll of the Real Property as
of the Closing Date.
(h) Tenant security deposits held by Seller as of the
Closing Date.
(i) Assignment from Seller to Buyer assigning all of
Seller's right, title and interest, in and to the Leases, together with the
originals of such Leases, the Name, all Licenses and Permits relating to the
operation of the Property, the telephone numbers used on the Property by Seller,
if allowed by the telephone company, the Service Contracts as reflected on
Exhibit "F" attached hereto and incorporated herein by this reference, 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 actions, and execute all forms, required by all
governmental authorities and contract vendors to effect this assignment. The
assignment shall contain mutual indemnification provisions wherein Seller shall
indemnify Buyer from all loss, cost or expense in connection with any claims,
demands, actions or causes of action (the "Claims") asserted against Buyer or
the Property arising out of the Leases or the Service Contracts prior to the
closing, and Buyer shall indemnify Seller from all loss, cost or expenses in
connection with any Claims asserted against Seller arising out of the Leases or
the Service Contracts after the closing.
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(j) Assignment by Seller, of all currently existing and
effective claims, guaranties, warranties, indemnifications and all other rights,
if any, which Seller may have against suppliers, laborers, material men,
contractors, or sub-contractors arising out of or in connection with the
installation, construction and maintenance of the Property.
(k) Certification from Seller that all representations
and warranties of Seller which are contained in this Agreement are true, correct
and complete as of the Closing Date;
(l) Sale Settlement (i.e., Closing) Statement by Seller
and Buyer.
(m) Such other documents as are reasonably necessary to
close and consummate the purchase and sale transaction contemplated by this
Agreement and as may be required by the lender for the Buyer.
(n) Seller shall deliver to Buyer all existing Plans and
Reports relating to the improvements located upon the Property which are in
Seller's possession or reasonably accessible to Seller (to the extent they
exist).
(o) Seller shall deliver and assign to Buyer all of
Seller's right, title and interest, if any, in and to all Licenses and Permits,
certificates of occupancy, mobile home titles (for the office unit) 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
Earnest Money Deposit and Extension Fee, if any, to Seller.
12. CLOSING COSTS. Seller shall pay for documentary stamps on the
warranty deed, for all costs associated with the issuance of the Commitment and
final title insurance policy, including, without limitation, any premiums for
the title policy, any costs and expenses associated with any corrective
documents required in order to make the title to the Property marketable and
insurable and shall pay the costs for recording the warranty deed. Buyer shall
pay for all of its financing costs (including all mortgagee title insurance
endorsements and requirements provided such charges are based on simultaneous
issue rates), the survey and all costs associated with Buyer's inspection of the
Property. Each party shall bear its own attorneys' fees and other professional
costs, except as otherwise provided for herein.
13. PRORATIONS. Except as otherwise set forth in this Agreement,
the following items shall be prorated as of the Closing Date 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 (the prorations and credits shall be applied to
the cash due at closing):
(a) Real estate and personal property taxes shall be
prorated based on the current year's tax taking into account the maximum
available discount. If the closing takes place and the current year's millage is
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, then taxes shall be prorated on the prior
year's tax taking into account the maximum available discount. The parties agree
to reprorate the taxes at such time as the exact amount of such taxes for year
of the closing become known.
(b) All rents (subject to the terms set forth below),
other income, utilities and all other operation expenses with respect to the
Property, and other assessments with respect to the Property for the year in
which the closing occurs, shall be prorated as of the Closing Date. If the
closing shall occur before all rents from the Property have actually been paid
for the month in which the closing occurs, only the rents actually received by
Seller will be prorated at closing. Subsequent to the closing, if any such rents
are actually received by either Buyer or Seller, immediately upon its receipt of
such rents, Buyer or Seller shall pay to the other its proportionate share
thereof for such month. Buyer shall pay over to Seller any such rents not
apportioned at the closing received by Buyer, for the benefit of Seller and
shall give to Seller a monthly accounting as to the delinquent rents outstanding
until all delinquent rents at closing are paid or twelve months from the
closing, whichever shall last occur. Provided, however, with regard to
delinquent rents, if any, Buyer shall not be held responsible for and Buyer
shall not be required to institute any proceeding whatsoever to collect such
delinquent rents. All rents collected after closing which pertain to a tenant
which may owe delinquent rents to Seller shall be first applied to rents due to
Buyer and then to rents due for periods prior to the closing which are due to
Seller; which shall be promptly remitted to Seller by Buyer. Upon written
request Seller shall deliver to Buyer 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.
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(c) Seller shall, where practical, cause utility meters
to be read and obtain final invoices through and including the Closing Date .
Where this is not practical, the parties shall assume equal per diem use over
the period of the billing, and adjustment shall be made accordingly. Utility
deposits, if any, shall be retained by Seller. Buyer shall replace any utility
deposits or utility bonds outstanding with regard to the utilities serving the
Property as maybe required.
(d) Any Service Contracts, including prepaid items or
licenses to the extent they are assumable (equipment leases, maintenance
contracts, etc,)
The agreements of Seller and Buyer set forth in this paragraph shall
survive the closing.
14. PERSONAL PROPERTY. Seller represents that it is the owner of
the Personal Property, including, without limitation, all of the items described
in the Schedule of Personal Property attached hereto as Exhibit "B" and
incorporated herein by reference, including, without limitation, the park
office/mobile home located on the Real Property, free and clear of any and all
liens and encumbrances other than mortgages, security agreements and financing
statements which are to be released or satisfied of record at or prior to the
closing. Seller agrees that it shall not remove from the Real Property any of
the Personal Property currently used in connection with the operation of the
Real Property as a rental mobile home community except as may be required in the
ordinary course of business for repair or replacement. Any such replacement of
an item of Personal Property pending closing hereunder shall be with a similar
item or items of Personal Property of equal quality and quantity and free and
clear of any liens and encumbrances other than mortgages, security agreements
and financing statements to be released or satisfied of record at or prior to
the closing. Buyer shall have the right at any time prior to the expiration of
the Inspection Period, at its expense, to take and make a physical inventory of
the Personal Property located on the Real Property provided that the time and
the taking of such inventory is first coordinated with Seller. Seller shall have
the right to have a representative of Seller present at the Real Property as and
when such inventory of the Personal Property is taken by Buyer. Upon approval by
Seller of the inventory of Personal Property, if any, so taken by Buyer, such
inventory shall be substituted for Exhibit "B" attached hereto and such
inventory shall be attached as exhibits to the Bill of Sale to be executed by
Seller to and in favor of Buyer at the time of closing. Seller will deliver to
Buyer said Bill of Sale, certificates of title or full warranties of title, for
all such Personal Property included in the sale, including the park office
mobile/home. Any and all mobile homes owned by the Seller will become part of
the inventory.
15. SUPPLIES. Inventories of supplies, including but not limited
to paint, toilet tissue, soap, paper towels and all cleaning materials, if any,
shall be transferred to Buyer at no additional cost at the time of the closing
and shall be covered by the Bill of Sale.
16. LEASES, RENTS AND TENANTS. Pending the closing Seller agrees
not to (except in the ordinary course of business with normal and customary
terms): (a) terminate any Lease affecting the Property unless the tenant is in
default thereunder, (b) amend or modify any Lease or (c) enter into any new
Lease upon the vacation or eviction of any tenant, without in any such case, the
prior written consent of Buyer not to be unreasonably withheld; provided,
however, Seller shall have the right to execute any new Leases under the same
terms and conditions as currently prevail on the Property without obtaining
Buyer's approval on any such Lease. Seller shall comply with its obligations
under each Lease affecting the Property and shall immediately notify Buyer of
any default of the material terms and conditions of any Lease. Seller agrees to
have available for Buyer's review at the office located on the Real Property
true copies of all existing written Leases affecting the Property within one (1)
day of the Effective Date of this Agreement. Furthermore, Seller hereby agrees
to provide Buyer with updated certified rent rolls in the form attached hereto
as Exhibit "E" and incorporated herein by reference, on or before the tenth
(10th) day of each month during the term of this Agreement.
17. CONDEMNATION. If prior to the Closing Date, all or any part of
the Property is taken by any governmental authority under its power of eminent
domain, Buyer shall have the option, to be exercised within ten (10) days after
Buyer receives written notice from Seller of same:
(a) To take title to the Property at closing without any
abatement or adjustment in the Purchase Price, in which event Seller shall
unconditionally assign its rights in the condemnation award to Buyer (or Buyer
shall receive the condemnation award from Seller if it has already been paid to
Seller prior to closing); or
(b) To terminate this Agreement, whereupon the duties and
obligations of each of the parties hereto shall end and Buyer shall be entitled
to the prompt return from Escrow Agent of the Earnest Money Deposit and
Extension Fee, if any, together with any interest earned thereon.
9
18. RISK OF LOSS. Risk of loss by damage or destruction to the
Property prior to the Closing Date shall be borne by Seller. In the event of
substantial damage (i.e., in an amount in excess of $40,000) to said Property
prior to the closing by fire or other casualty:
(c) Seller shall give prompt notice of such damage to
Buyer;
(d) Seller shall furnish Buyer promptly with an estimate
of the cost of the restoration, replacement or repair of such damage; and
(e) Buyer shall have the option to:
(i) terminate this Agreement and obtain the
prompt return from Escrow Agent of the Earnest Money Deposit and Extension Fee,
if any, together with any interest earned thereon; or
(ii) take title to the Property at closing
without any abatement or adjustment in the Purchase Price, in which event Seller
shall unconditionally assign its rights in any insurance proceeds to Buyer (or
Buyer shall receive the insurance proceeds paid to Seller if they have already
been paid prior to closing) after payment of any deductible to Buyer from
Seller.
19. DEFAULT BY SELLER. In the event of a default by Seller under
the terms of this Agreement, Buyer shall have the option, to be exercised in its
sole discretion, to either: (a) obtain the prompt return from Escrow Agent of
the Earnest Money Deposit and Extension Fee, if any, with interest (if any),
together with any other amounts due and owing to Buyer pursuant to the terms of
this Agreement, and thereafter terminate this Agreement; or (b) seek any and all
other remedies available to Buyer under Arizona law, including without
limitation, the right of specific performance.
20. DEFAULT BY BUYER. In the event of a default by Buyer under the
terms of this Agreement and such default continues for a period of twenty one
(21) days after written notice thereof from Seller to Buyer, Seller's sole right
and exclusive remedy against Buyer shall be to obtain the Earnest Money Deposit
and Extension Fee, if any as: (a) consideration for the execution of this
Agreement; (b) as agreed on liquidated damages sustained by Seller because of
such default by 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
documents relating to the Property, including Buyer's copy of this Agreement.
21. INDEMNIFICATION AND HOLD HARMLESS.
(f) In addition to any other indemnification, defense and
hold harmless covenants of Seller which are contained herein, Seller shall
indemnify, defend (with legal counsel satisfactory to Buyer) and hold Buyer
harmless from and against any and all claims, demands, actions, causes of
action, suits, judgments, debts, damages, losses, liabilities, costs and
expenses (including, without limitation, attorneys' fees, cost of suit, cost of
investigation), which Buyer may incur or sustain, or which may be asserted
against Buyer, resulting from or arising out of any of the following: (i) the
ownership and operation of the Real Property prior to the Closing Date; (ii) the
injury or death to any person or damage to any personal property occurring on or
about the Real Property prior to the Closing Date; (iii) any untrue
representation, breach of warranty or nonfulfillment of any covenant or
agreement by Seller contained herein or in any certificate, document or
instrument delivered to Buyer pursuant to or in connection with this Agreement;
(iv) any failure of Seller to retain, pay, perform, defend and discharge all of
the liabilities, duties and obligations of Seller which are not expressly and
specifically assumed by Buyer pursuant to this Agreement; (v) the employment or
terminations thereof of any personnel of Seller; and, (vi) any failure of Seller
to pay any taxes or other expenses which pertain to the Real Property and to the
operation of the Real Property as a Recreational Vehicle Park prior to the
Closing Date.
(g) In addition to any other indemnification, defense and
hold harmless covenants of Buyer which are contained herein, Buyer shall
indemnify, defend (with legal counsel satisfactory to Seller) and hold Seller
harmless from and against any and all claims, demands, actions, causes of
action, suits, judgments, debts, damages, losses, liabilities, costs and
expenses (including, without limitation, attorneys' fees, cost of suit, cost of
investigation), which Seller may incur or sustain, or which may be asserted
against Seller, resulting from or arising out of any of the following: (i) the
ownership and operation of the Real Property after the Closing Date; (ii) the
injury or death to any person or damage to any personal property occurring on or
about the Real Property after the Closing Date; (iii) any failure of Buyer to
retain, pay, perform, defend and discharge all of the liabilities, duties and
10
obligations of Seller which are expressly and specifically assumed by Buyer
pursuant to this Agreement; and, (iv) any failure of Buyer to pay any taxes or
other expenses which pertain to the Real Property and to the operation of the
Real Property as a Recreational Vehicle Park after the Closing Date.
The foregoing provisions of this paragraph shall survive the closing.
22. ASSIGNMENT. Buyer shall have the right to assign this
Agreement to entities whom Buyer controls or with whom Buyer has a business
relationship.
23. MODIFICATIONS. The parties acknowledge that this Agreement (i)
is the entire agreement between the parties with respect to the subject matter
hereof; (ii) supersedes all prior negotiations or agreements between the
parties; and (iii) cannot be modified except by written agreement executed by
both parties.
24. ATTORNEYS' FEES. In the event of any disputes or claims
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, including, without limitation, and
reasonable attorneys' fees and expenses incurred. 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. Any
claims or actions brought by either Buyer or Seller shall be brought against the
business entities of the Buyer and Seller and not against the corporate
officers, stockholders, representatives, agents, or employees of the Buyer or
Seller.
25. ESCROW AGENT. The Escrow Agent shall deposit the Earnest Money
Deposit and Extension Fee, if any, into an interest-bearing, money market
account with a local bank upon execution and delivery of all forms (including a
fully-executed IRS Form W-9) and necessary documents and to disburse said funds
according to the terms of this Agreement. Escrow Agent shall notify the parties
hereto of the date of deposit, name of institution and current interest rate
within five (5) days of the date of the deposit. In the event of a breach of
this Agreement by either Seller or Buyer, or if, in the sole discretion of the
Escrow Agent, some doubt exists as to when, to whom or under what circumstances
such Earnest Money Deposit and Extension Fee, if any, shall be disbursed
hereunder, and the parties hereto are unable after ten (10) days' prior written
notice thereof from Escrow Agent to agree and direct Escrow Agent, in writing,
as to when, to whom or under what circumstances Escrow Agent shall disburse the
same, Escrow Agent shall be entitled to interplead said Earnest Money Deposit
into the Circuit Court of the county in which the Property is located, without
further liability or responsibility on its part. Costs, expenses and attorneys'
fees incurred by Escrow Agent in connection with any such interpleader may be
deducted by Escrow Agent from the amount of the Deposit prior to its deposit
into the registry of the Court. In any event, however, all parties agree that
Escrow Agent shall have no liability or any further responsibility to any party
or person whomsoever for any disbursement of the Earnest Money Deposit and
Extension Fee, if any, made by Escrow Agent in good faith unless such
disbursement shall constitute a willful breach of the duties and obligations of
Escrow Agent under this Agreement or gross negligence on the part of Escrow
Agent. The interest received on the Earnest Money Deposit and Extension Fee, if
any, shall be applied to the account of Buyer at closing. Upon disbursing the
Earnest Money Deposit and Extension Fee, if any, under the provisions of this
Agreement, the Escrow Agent shall be released from all liability with respect to
the Earnest Money Deposit and Extension Fee, if any, except for an accounting
thereof. The Buyer and Seller, jointly and severally, agree to pay directly, or
reimburse the Escrow Agent for any and all expenses incurred by the Escrow Agent
in any such action. As between the Buyer and Seller, the non-prevailing party in
any action pertaining to the Earnest Money Deposit and Extension fee, if any,
shall be responsible for any and all expenses incurred by the Escrow Agent on
any such action. Both Buyer and Seller, hereby acknowledge that the Escrow Agent
is acting solely as a fiduciary to the parties. Seller hereby expressly
acknowledges that Escrow Agent also serves as counsel to Buyer in connection
with this Agreement and the transaction contemplated herein and Seller
specifically acknowledges and agrees that the duties, as Escrow Agent,
hereunder, shall not disqualify such law firm from presenting Buyer as Buyer's
counsel in any matter which arises under or which is a result of this Agreement,
including, without limitation, a dispute relating to the Earnest Money Deposit
and Extension Fee, if any.
26. NOTICE. Any notice given hereunder shall be in writing and
sent by telefax, registered or certified mail, return receipt requested, or by
overnight delivery service with receipt required to be signed for to the
following addresses:
If to the SELLER:
To: Paradise RV Resort, Limited - Neil Spizizen, General
Partner
Address:
Telephone:
Fax:
11
With copies to attorney for Seller:
To:
Address:
Telephone:
Fax:
If to the BUYER:
To: Diversified Investments Services
c/o Barry L. Haase, Manager
Address: 4340 East West Highway, Suite 206
Bethesda, MD 20814
Telephone: (800) 284-2795
Fax: (301) 718-7907
With copies to Attorney for Buyer:
To: Jim Balogh
1314 East Myrna Lane
Mesa, AZ 85284
480-755-7955
480-755-4292 Fax
If to the Escrow Agent:
Carol Peterson
First American Title Insurance Company
Address: 4801 E. Washington, Ste. 110
Phoenix, Arizona 85034
Telephone: 602-685-7560
Fax: 602-685-7580
Notice by fax shall be deemed to have been received on the date of
transmission, so long as a certified or registered mailing or overnight delivery
is forwarded to the party being noticed on the same day as the transmission.
Notice by overnight delivery shall be deemed to have been received on the day of
the delivery. Notice by mail shall be deemed to have been received three (3)
days after being deposited in an official depository under the regular care and
custody of the United States Mail, sent by registered or certified mail, return
receipt requested, with postage prepaid. A time period in which a response to
any notice, demand or request must be given pursuant to the terms of this
Agreement, shall commence to run from the date of receipt. Rejection or other
refusal to accept or the inability to deliver because of change in address of
which no notice is given shall be deemed to be a receipt of the notice, demand
and request. Either party may change the address for receiving notices, request,
demands, or other communication by not less than three (3) days prior notice in
according with this paragraph. Telephone numbers are provided for convenience
only.
27. NO ASSUMPTION OF LIABILITIES. The parties acknowledge that
this transaction contemplates only the sale and purchase of the Property and the
permits and licenses relevant thereto. The parties do not intend that Buyer be
deemed a successor of Seller with respect to any liabilities of Seller to any
third parties. Accordingly, in addition to the other terms and conditions of
this Agreement, Buyer shall neither assume nor be liable for any payments and
benefits to past and/or present employees of Seller in connection with the
business being conducted on or from the Property as may have accrued through the
Closing Date, including, but not limited to, salaries, wages, commission,
bonuses, vacation pay, health and welfare contributions, pensions, profit
sharing, severance or termination pay, taxes or any other form of compensation
or fringe benefit.
28. 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 five
(5) days from the Effective Date hereof. Upon approval of a given exhibit by
Buyer, the same shall be incorporated into this Agreement by written amendment
to this Agreement executed by Seller and Buyer.
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29. CONSTRUCTION. This Agreement has been negotiated between the
parties who are experienced in commercial real estate transactions. 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. This Agreement
shall in all respects be interpreted, enforced and governed by and under the
laws and judicial decisions of the State of Arizona.
30. ACCEPTANCE. Seller shall have until 5:00 P.M. (DST) on October
7, 2003 to accept this Agreement and require Buyer to submit the Initial Deposit
for the Escrow Agent. 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.
31. VENUE. Venue for any legal proceeding hereunder shall be in
the county in which the Property is located.
32. EFFECTIVE DATE. The term "Effective Date" as used herein,
shall mean the date when the last one of Seller and Buyer has properly executed
this Agreement as determined by the date set forth immediately below the
respective signatures of Seller and Buyer.
33. 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.
34. FACSIMILE. An executed facsimile of this Agreement or any
portion hereof, including the signature page of any party shall be deemed an
original for all purposes.
35. 1031 EXCHANGE. Buyer and Seller understand that either party
may designate the Property in connection with an exchange pursuant to the
provisions of IRS Code Section 1031. In the event the Property is so designated
and either party desires to utilize the Property for an exchange, Seller and
Buyer shall cooperate with each other and with any lender/accommodator to
achieve a successful exchange. Seller and Buyer shall indemnify each other from
all loss, costs and expense incurred by reason of said exchange. This
transaction is not contingent upon the success or failure of any such exchange.
Buyer shall not be required to take title to other property involved in the
exchange.
36. WAIVER.. The failure of either of the parties hereto in one or
more instances to insist upon strict performance or observance of one or more of
the covenants or conditions hereof, or to exercise any remedy, privilege, or
option herein conferred upon or reserved to such party, shall not operate and
not be construed as a relinquishment or waiver for the future of such covenant
or condition or of the right to enforce the same or to exercise such privilege,
option, or remedy, but the same shall continue in full force and effect.
37. CAPTIONS AND HEADINGS.. The captions appearing in this
Agreement are inserted as a matter of convenience and for reference, and in no
way affect this Agreement, or define, limit or describe its scope, intent, or
any of its provisions.
38. BROKERS.
(h) Seller warrants and represents to Buyer that other than Devine
Real Estate, Inc. and Desert Flower Realty of Arizona (the "Brokers") Seller has
not employed or dealt with any broker, agent or sales consultant with respect to
the purchase and sale of the Property as contemplated by this Agreement. Seller
hereby acknowledges and agrees that Seller is solely responsible to pay the
Brokers a real estate commission at the closing in an amount of 1.5% of the
Purchase Price each to Devine Real Estate, Inc. and Desert Flower Realty of
Arizona payable through the Closing Escrow and pursuant to separate agreement.
Seller covenants and agrees to indemnify and hold harmless Buyer from and
against any and all liability, costs, claims, demands, damages, actions, causes
of action, suits and expense (including, but not limited to, attorneys' fees and
costs and disbursements of litigation) Buyer shall ever suffer or incur, arising
out of or in any way related to any claim or action by any broker, agent or
sales consultant, including, without limitation, the Broker, claiming to have
dealt with Seller, whether or not meritorious, for any commission or other
compensation with respect to this Agreement or to the purchase and sale of the
Property in accordance with this Agreement. The provisions of this paragraph
shall survive the closing.
(i) Buyer warrants and represents to Seller that other than the
Broker, Buyer has not employed or dealt with any broker, agent or sales
consultant with respect to the purchase and sale of the Property as contemplated
by this Agreement. Buyer covenants and agrees to indemnify and hold harmless
Seller from and against any and all liability, costs, claims, demands, damages,
actions, causes of action, suits and expense (including, but not limited to,
attorneys' fees and costs and disbursements of litigation) Seller shall ever
suffer or incur, arising out of or in any way related to any claim or action by
any broker, agent or sales consultant, other than the Broker, claiming to have
dealt with Buyer, whether or not meritorious, for any commission or other
compensation with
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respect to this Agreement or to the purchase and sale of the Property in
accordance with this Agreement. The provisions of this paragraph shall survive
the closing.
39. BENEFIT; BINDING EFFECT. This Agreement shall inure to the
benefit of and shall be binding upon the parties hereto, their respective heirs,
personal representatives, successors and assigns.
40. INVALID PROVISION. The invalidity or unenforceability of a
particular provision of this Agreement shall not affect the other provisions
hereof, and the Agreement shall be construed in all respects as if such invalid
or unenforceable provisions were omitted.
41. BUSINESS DAY. The term "Business Day," as used herein, means
any day which is not a Saturday or Sunday and is not a federal or state holiday
in the State of Arizona. Any reference in this Agreement to time periods of less
than six (6) days shall, in the computation thereof, exclude any day that is not
a Business Day. Any time period provided herein which ends on a day that is not
a Business Day shall extend to 5:00 p.m. of the next Business Day.
42. NO JOINT VENTURE OR PARTNERSHIP. Notwithstanding anything in
this Agreement which may be interpreted or construed to the contrary, neither
this Agreement nor the completion of the transaction contemplated by this
Agreement shall create between the parties hereto any business enterprise,
whether it be a joint venture or partnership, or any other business venture.
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands
and seals the day and year indicated below.
SELLER:
Paradise Rv Resort
By: /s/ Neil Spizizen
-------------------------------------
Print Name: Neil Spizizen
Title: Managing Partner
Seller's execution date: 10/09/03
BUYER:
DIVERSIFIED INVESTMENTS SERVICES,
LLC, a Delaware limited liability company
By: /s/ Barry L. Haase
-------------------------------------
Barry L. Haase, Manager
Date: 10/09/03
PARADISE RV
14
RECEIPT BY ESCROW AGENT
First American Title, as Escrow Agent under that Recreational Vehicle
Park Purchase and Sale Agreement (the "Agreement") having an Effective Date of
October 9, 2003, between Paradise RV Resort, as Seller, and, Diversified
Investments Services, LLC, a Delaware limited liability company, as Buyer, to
which this Receipt is attached, hereby acknowledges the receipt of ONE HUNDRED
THOUSAND AND NO/100 DOLLARS ($100,000.00) as the Initial Deposit, and will hold
and disburse said sum, together with any additional deposits made, as Escrow
Agent in accordance with the terms of the Agreement.
FIRST AMERICAN TITLE
By: /s/ Carol Peterson
---------------------------
Print Name: Carol Peterson *
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EXHIBITS TO AGREEMENT
A. Legal Description of Land
B. Schedule of Personal Property
C. List of Due Diligence Items to be provided to Buyer by Seller
D. Seller Disclosures - Litigation, Claims, Judgments, etc.
E. Certified Rent Roll
F. Service Contracts
16
EXHIBIT A - LEGAL DESCRIPTION OF LAND
17
EXHIBIT B - PERSONAL PROPERTY
To be provided by Seller to Buyer
1. Inventory of all Personal Property including but not limited to:
a. Clubhouse
b. Garage/Service Area
c. Office
d. Pool Equipment
e. Lawn Equipment
f. Park Owned Homes
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EXHIBIT C - LIST OF PRELIMINARY ITEMS OF DUE DILIGENCE
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EXHIBIT D - SELLER DISCLOSURES - LITIGATION, CLAIMS, ETC.
To be provided by Seller to Buyer
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EXHIBIT E - CERTIFIED RENT ROLL
To be provided by Seller to Buyer and to contain the following:
1. Space number;
2. Name of Resident;
3. Rental Amount;
4. Amount of Prepaid Rent
5. Amount of Security Deposit;
6. Amount of Delinquency;
7. Amount and Term of any Rent concession, rebate or credit.
8. Term of current lease or annual resident
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EXHIBIT F - SERVICE CONTRACTS
To be provided by Seller to Buyer
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