PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (the "Agreement") dated as of the 15th
day of December, 2000, is made by and between Xxxx / Xxxx Partnership, a Florida
general partnership (the "Seller"), and Homes for America Holdings, Inc., a
Nevada corporation, and its successors or assigns (the "Purchaser").
In consideration of the mutual covenants and agreements set forth herein, the
parties hereto agree as follows:
1. Purchase and Sale of Property. Seller agrees to sell and Purchaser agrees
to purchase all of that certain parcel of land located at 0000 Xxxxx
Xxxxxx, Xxxx Xxxxx, Xxxxxxx 00000 [Legal Description: 13 44 24 p2 0020b
0010] (the "Land"), as more fully described in the legal description to be
attached by Seller as Exhibit A and hereby incorporated as if set forth
herein, together with all and singular, the rights, air rights, easements,
rights-of-way, tenements, and hereditaments appertaining thereto, including
all right, title, and interest of the Seller in and to adjacent streets,
easements, privileges, alleys, or rights-of-way now or hereafter belonging
to or inuring to the benefit of the Land, and any all buildings,
structures, and other improvements erected or placed thereon, the full
right, title, and interest of the Seller in and to any and all leases or
occupancy rights thereof (collectively, the "Property").
2. Purchase Price and Terms of Payment.
(a) The total purchase price of the Property (the "Purchase Price") is One
Million Three Hundred Twenty Thousand Dollars ($1,320,000).
(b) Within two (2) business days after the Effective Date (defined below)
Purchaser shall deposit the sum of Twenty-five Thousand Dollars ($25,000)
(the "Deposit"), with a title company designated by the Purchaser in the
metropolitan area of the Property and reasonably acceptable to Seller (the
"Title Company"). The parties shall execute and deliver escrow instructions
reasonably satisfactory to the Title Company and otherwise in compliance
with the terms of this Agreement. The Title Company shall acknowledge
receipt of the Deposit in writing to the parties and agree to accept, hold,
and return such Deposit and disburse any funds received hereunder, in
accordance with the provisions of this Agreement.
(c) If the transaction contemplated herein should fail to close for any reason
other than Purchaser=s default and failure to cure that default hereunder,
the Deposit shall be returned to Purchaser. Failure to make the Deposit
shall be a default under this Agreement. The term "Deposit" shall include
the initial Deposit required by ss. 2(b), any additional deposit, and the
interest earned thereon. The Title Company shall hold the Deposit in an
interest bearing federally-insured account.
(d) In the event the Purchaser elects of right under ss. 3 to extend the
Feasibility Period an additional thirty (30) days, Purchaser shall deliver
a copy of the notice of election to Seller and the Title Company before the
end of the then current Feasibility Period and on or before that day the
Purchaser shall make an additional deposit of Twenty-five Thousand Dollars
($25,000) to be held by the Title Company as part of the Deposit.
(e) The Purchaser shall have the right to submit to the Title Company for
payment from the Deposit up to a maximum amount of Fifteen Thousand Dollars
($15,000) from the initial Deposit made pursuant to ss. 2(b) above (and, if
the additional deposit is made pursuant to ss. 2(d) above up to a maximum
amount of Fifteen Thousand Dollars ($15,000) from that additional Deposit),
to pay or reimburse for payment expenses of Title Company fees and
expenses, title examination, or Purchaser's obligations hereunder or for
professional fees and services incurred in connection with the
investigation during the Feasibility Period.
Exhibit 10.29 - Page 1
(f) At the Closing (hereinafter defined), (i) the Deposit shall be applied
toward the Purchase Price; and (ii) Purchaser shall pay the balance of the
Purchase Price by cashier=s check or wire transferring said sum in
currently available funds to the Title Company for delivery to Seller upon
the due recordation of the Deed from Seller to Purchaser.
3. Feasibility Period.
(a) Promptly after the Effective Date, to the extent available to Seller and
not previously provided, Seller shall deliver to Purchaser true, correct,
and complete copies of: (i) all leases, occupancy agreements, and options
affecting the Property (and all amendments, certificates, and addenda
thereunder); (ii) all existing agreements, surveys, engineering tests or
reports (and copies of all items shown as title exceptions on the policy or
report), plans or specifications for any improvements, architectural or
zoning documents, environmental assessments, contracts, and reports, title
insurance policies or reports, and any other tests or reports, if any,
relating to the Property and in possession of Seller, or its employees,
agents, representatives, or under Seller=s control; (iii) the plans and
specifications for any Property improvements; (iv) any and all appraisals
of the Property in Seller's possession; (v) all permits, certificates of
occupancy, zoning variances, inspection reports, government authorizations
or approvals, licenses, agreements, leases, and options of every kind and
nature affecting the Property; (vi) copies of all real estate and personal
property tax bills (and assessment notices) for tax years 1998, 1999, and
2000, to the extent available; (vii) a copy of the Seller=s existing ALTA
title insurance policy of the Property; and (viii) a copy of the Seller's
survey for the Property.
(b) Purchaser and its agents and representatives shall have the right to enter
onto the Property at all reasonable times after the Effective Date for
purposes of conducting surveys, soil tests, market studies, engineering
tests, and such other tests, investigations, studies, and inspections as
Purchaser deems necessary or desirable in its sole discretion to evaluate
the Property, provided that (i) all such tests, investigations, studies,
and inspections shall be conducted at Purchaser's sole risk and expense,
(ii) Purchaser shall give Seller reasonable prior notice of its entry onto
the Property, and (iii) Purchaser shall indemnify and hold Seller harmless
from and against any losses, liabilities, costs, or expenses (including
reasonable attorney's fees) arising solely and directly out of Purchaser's
entry onto the Property. Purchaser shall return the Property to the
condition it was in prior to the performance of such tests.
(c) In the event that Purchaser is not satisfied, in its sole and unreviewable
judgment and discretion, with the feasibility of Purchaser's acquisition,
financing, and ownership of the Property, Purchaser shall have the right to
terminate this Agreement at any time within ninety (90) days of the
Effective Date, for any reason or for no reason, within its sole discretion
(that period being the "Feasibility Period"); provided that subject to the
Purchaser making the additional deposit referred to in ss. 2(d) above, the
Purchaser shall have the right by written notice to Seller to extend the
Feasibility Period an additional thirty (30) days. Unless Purchaser
provides written notice of the termination pursuant to this provision to
Seller during the Feasibility Period, Purchaser shall be deemed not to have
exercised its right to terminate.
(d) Upon any such termination the Purchaser shall return to Seller all items
received by Purchaser pursuant to ' 3(a) hereof together with any reports
obtained by the Purchaser related to the Property, the Title Company shall
return the Deposit to the Purchaser, and the parties hereto shall be
released from any further liabilities or obligations hereunder (except for
any liability of Purchaser for indemnification under ' 3(b) above). Any
notice by Purchaser that it has elected to go forward with the transaction
contemplated hereby shall nevertheless be subject to the satisfaction or
subsequent express waiver of the conditions to settlement set forth in ' 9
hereinbelow.
Exhibit 10.29 - Page 2
4. Title.
(a) Title to the Property shall be marketable and good of record and in fact
and insurable by a nationally recognized ALTA title insurance company of
Purchaser=s choice at normal rates. At the Closing, Seller shall convey
title to the Property in fee simple, free and clear of any and all liens,
mortgages, deeds of trust, security interests, leases, covenants,
conditions, restrictions, easements, rights-of-way, licenses,
encroachments, judgments or encumbrances of any kind, except for the
following permitted exceptions (the "Permitted Exceptions"): (a) the lien
of real estate taxes not yet due and payable; (b) matters of record
affecting title to the Property, as reviewed and approved by Purchaser; and
(c) zoning and building restrictions and other laws, ordinances, and
regulations of governmental bodies having jurisdiction over the Property.
(b) Purchaser agrees to obtain a commitment of title insurance for the Property
and to review such commitment and provide Seller with any notice of
objections during the Feasibility Period. Any exceptions to title taken by
the Title Company in such commitment shall be Permitted Exceptions
hereunder if Purchaser does not, during that Feasibility Period, object to
such matters by written notice to Seller. Within three (3) business days of
receipt of such notice from Purchaser, Seller shall advise Purchaser in
writing whether or not Seller agrees to cure any exceptions to title to
which Purchaser has objected. Any exceptions to title that are not
Permitted Exceptions shall be cured by Seller at its sole cost and expense
prior to the Closing; provided that if Seller is unable or unwilling to
cure such exceptions or other matters, Purchaser shall have the right to
either (i) waive such exceptions or other matters and proceed to the
Closing on the terms set forth herein or (ii) terminate this Agreement and
obtain the return of the Deposit, together with reimbursement by Seller of
the expense of Purchaser=s title examination and commitment, in which event
neither party shall have any further liability or obligation to the other.
(c) Purchaser shall have the right to re-examine the title to the Property at
Closing and to object to any defects or encumbrances that have been placed
of record on the Property subsequent to the date of Purchaser=s initial
title report (except for customary easements and rights of way established
in connection with the subdivision plans or encumbrances which have been
caused or approved by Purchaser, which shall be Permitted Exceptions)(such
objections being the Subsequent Objections@). Seller shall cure Subsequent
Objections before Closing and if Seller shall fail to cure them then
Purchaser in its sole discretion may: (i) waive the Subsequent Objections
and proceed to Closing; (ii) terminate this Agreement and receive a refund
of the Deposit and reimbursement for its title examinations; or (iii)
declare Seller to be in default under this Agreement and pursue any
remedies available hereunder.
5. The Closing.
(a) The consummation of the transactions contemplated herein (the "Closing")
shall be held on a date and time selected by Purchaser and reasonably
acceptable to Seller, which date shall be no later than the date sixty (60)
days after the termination of the Feasibility Period, as the same may be
extended in accordance with xx.xx. 4(c) or 9 hereof. The Closing shall be
held at the offices of the Title Company, or other mutually agreed upon
location.
Exhibit 10.29 - Page 3
(b) At the Closing, Seller shall deliver to Purchaser a special warranty deed
(the "Deed") conveying the Property to Purchaser subject only to the
Permitted Exceptions. Purchaser shall be entitled to receive from the Title
Company, prior to delivery of the Deed, the Title Company's unconditional
commitment to issue an ALTA Form B Owner's Policy of Title Insurance, in
the amount of the Purchase Price, and the Title Company's assurance that
its recordation of the Deed, after performing a bring-to-date examination
of the land records, will constitute its agreement to issue such policy
within thirty (30) days after the Closing. Seller shall also execute such
affidavits and other instruments as reasonably required by Purchaser=s
counsel or the Title Company, at any time within the six (6) months after
Closing hereunder, and for the better conveying, transferring, assuring,
and confirming the conveyance of title to the Property to the Purchaser in
accordance with ss. 4 hereof.
(c) Seller shall pay for the cost of preparing the Deed, the applicable
grantor's Taxes, and one-half of the fees of the settlement agent. Each
party shall pay the legal fees of its own counsel. Purchaser shall pay all
other transfer taxes and recordation fees, all costs incurred for title
examination and title insurance, one-half of the fees of the of the
settlement agent, and any and all other closing costs imposed at the
Closing.
(d) Real estate taxes, utility charges, and annual assessments arising from the
Property, if any, shall be prorated between the parties as of the date of
the Closing.
(e) Possession of the Property shall be delivered to Purchaser immediately
following the recordation of the Deed, and such possession shall be
delivered free and clear of any leases, tenancies, or occupants. In the
event Seller shall fail to deliver such possession, Seller shall become and
thereafter be a tenant at sufferance of Purchaser and Seller hereby waives
all notices to quit provided by the laws of the State of Florida.
6. Risk of Loss; Casualty. Prior to the Closing, Seller shall bear all risk of
loss to the Property from fire or other casualty and all liabilities
arising from the Property before the Closing. Seller shall maintain all
existing fire and casualty and liability insurance on the Property. The
Seller shall notify the Purchaser promptly of any damage to the Property,
and give the Purchaser a right to inspect such damage. If the damage is in
excess of fifty thousand dollars ($50,000), the Purchaser shall have the
right, at Purchaser's option, either to (i) terminate this Agreement, in
which event the Deposit will be returned to the Purchaser, and Purchaser
and the Seller shall thereafter have no further obligations hereunder, or
(ii) proceed with the Closing and accept title to the Property without any
reduction in the Purchase Price, and the Seller shall deliver or assign to
the Purchaser any insurance awards paid or due Seller with respect to such
damage.
7. Breach.
(a) If Seller shall default under any of the provisions of this Agreement and
such default is not cured by Seller within ten (10) days after receipt of
written notice from Purchaser of such default, Purchaser may, at its
option, either: (i) terminate this Agreement and have the Deposit returned
by the Title Company in which event the parties shall have no further
rights or liabilities one to the other hereunder; or (ii) seek the
equitable remedy of specific performance.
Exhibit 10.29 - Page 4
(b) Purchaser and Seller agree that if Purchaser defaults in its obligations
under this Agreement for any reason whatsoever, Seller shall be entitled to
receive and retain, as fixed and agreed upon liquidated damages, the
Deposit. The foregoing shall constitute the sole and exclusive remedy of
Seller for any breach by Buyer hereunder, and Purchaser shall have no other
liability hereunder or in connection herewith, whether for damages or
otherwise.
8. Commissions. Seller and Purchaser each represent and warrant to the other
that except for Rawlings Realty, Inc. (Xx. Xxxxx X. Xxxx), whom Seller
shall pay by separate agreement, and Creek House Real Estate (Xx. Xxxx
Xxxxxxx), whom Seller shall pay by separate agreement, they have not dealt
with or engaged any broker, finder, or other person in connection with the
transactions contemplated herein, and each party agrees to indemnify and
hold the other harmless on account of any loss, damage, liability or
expenses, including attorney's fees, incurred by reason of a breach of such
representation and warranty.
9. Conditions to Closing. The obligation of Purchaser to close hereunder is
subject to the satisfaction, at or prior to Closing, of each of the
following conditions, any of which may be waived, in whole or in part, in
writing by Purchaser at or prior to Closing:
(a) Representations and Warranties. The representations and warranties of
Seller set forth herein shall be true and correct in all material respects.
(b) Title. Title to the Property shall be in the condition required by ' 4
hereof.
(c) Compliance by Seller. Seller shall have performed and complied with all of
the covenants and conditions required by this Agreement to be performed or
complied with at or prior to Closing and shall deliver all Closing
documents.
(d) No Adverse Matters. No material portion of the Property shall have been
adversely, affected as a result of earthquake, disaster, any action by
governmental authority, flood, riot, civil disturbance, or act of God or
public enemy.
If any of the foregoing conditions have not been satisfied as of the date
of Closing or at such other time as may be specified above (as the same may
be extended from time to time), Purchaser shall have the right to (i) waive
such conditions and proceed to Closing, (ii) extend the date of Closing a
reasonable period required to satisfy the unsatisfied condition, or (iii)
terminate this Agreement whereupon the Deposit will be returned to
Purchaser and neither party will have any further liability to the other.
10. Obligations Pending Closing.
(a) Title to and Condition of Property.Except as may be necessary to cure any
title objections of Purchaser, or to comply with ' 9(b), from the Effective
Date hereof to the Closing Seller shall not cause or permit any change in
the status of title to the Property or the physical condition of the
Property except for customary maintenance and operations. Seller shall not
cause or permit any adverse change in the condition of the Property,
reasonable wear and tear and damage by fire or the elements excepted.
Seller shall not enter into any leases or other occupancy agreements with
respect to all or any portion of the Property, nor modify or extend any
existing lease, without the prior written consent of Purchaser that it may
withhold in its sole discretion. Seller hereby covenants and agrees it will
not enter into a sale contract for the Property with any other person or
entity unless this Agreement has been terminated according to its terms;
provided that with advance notice to Purchaser Seller may enter into a sale
contract for the Property with a third party provided such party shall have
no rights in the Property until and unless this Agreement has been
terminated according to its terms.
Exhibit 10.29 - Page 5
(b) Condemnation. In the event any governmental agency should notify Seller, or
Seller should become aware, of any permanent or temporary actual or
threatened taking of all or any portion of the Property, Seller shall
promptly notify Purchaser of the same.
11. Representations and Warranties of Seller. Seller represents and warrants to
Purchaser as follows, all of which representations and warranties are true
and correct as of the date hereof and shall be true and correct as of
Closing hereunder:
(a) Seller (i) has full power and authority to sell the Property to Purchaser
without the consent of any other person or entity, (ii) has authorized the
execution, delivery, and performance of this Agreement and the consummation
of the transactions contemplated hereby, and (iii) is the sole legal and
equitable owner of record and in fact of good and marketable fee simple
title to the Property.
(b) Seller is not a "foreign person" as that term is defined in Section 1445 of
the Internal Revenue Code, and Seller shall execute an affidavit to such
effect in the form to be provided by Purchaser. Seller shall indemnify
Purchaser and its agents against any liability or cost, including
reasonable attorneys' fees, in the event that this representation is false
or Seller fails to execute such affidavit at Closing hereunder.
(c) No taking by power or eminent domain or condemnation proceedings have been
instituted or, to the best of Seller's knowledge, threatened for the
permanent or temporary taking or condemnation of all or any portion of the
Property.
(d) There is not pending or, to Seller's knowledge, threatened, any litigation,
proceeding or investigation relating to the Property or Seller's title
thereto, nor does Seller have reasonable grounds to know of any basis for
such litigation, proceedings, or investigations.
(e) To the best knowledge of Seller there exists no violation of any law,
regulation, orders, or requirements issued by any governmental agency or
authority, or action in any court on account thereof, against or affecting
the Property.
(f) Seller has not made, and prior to Closing hereunder will not make without
the written consent of the Purchaser, any commitments to any governmental
authority or agency, utility company, school board, church or other
religious body, or to any other organization, group, or individual,
relating to the Property which would impose on Purchaser the obligation to
make any contributions of money, dedication of land, or grants of easements
or rights-of-way, or to construct, install, or maintain any improvements,
public or private, on or off the Property except as currently installed at
the Property.
(g) To the best knowledge of Seller the Property is not currently being used
nor has it ever been used for landfill, dumping, or other waste disposal or
operations, and there are in existence at the Property no materials,
substances, products, or wastes of a toxic or hazardous nature (meaning
Ahazardous waste@ as defined in the Resource Conservation and Recovery Act
of 1976 (42 U.S.C. " 6901 et seq.) Or other applicable law) such that their
existence would violate applicable laws or regulations. If Seller learns at
any time that this representation and warranty is no longer true and
correct then Seller shall immediately deliver written notice thereof to
Purchaser whereupon Purchaser=s sole remedy shall be to elect to terminate
this Agreement and obtain refund of the Deposit and thereafter the parties
shall have no further rights and obligations hereunder.
Exhibit 10.29 - Page 6
(h) There are no parties in possession of any portion of the Property as
lessees, tenants at sufferance, or trespassers. No person, firm,
corporation, partnership, or other entity, has any right or option to
acquire the Property or any portion thereof.
(i) All documents and other information provided by Seller to Purchaser
pursuant to this Agreement shall be true and complete in all material
respects.
12. General Provisions.
(a) Purchaser shall have the right to assign any of its rights and obligations
under this Agreement in whole or in part at any time. Any proposed
assignment of Purchaser's rights and obligations under this Agreement shall
require prior written notice to Seller.
(b) The terms and conditions of this Agreement shall be binding upon, and inure
to the benefit of, the parties hereto and their respective heirs,
successors, assigns, and legal representatives.
(c) All representations, warranties and indemnities contained in this Agreement
or in any instrument, document or agreement delivered pursuant hereto shall
survive the delivery of the Deed and the transfer and conveyance of the
Property to Purchaser. For purposes of survival, all representations and
warranties of Purchaser and Seller made herein shall be deemed to date from
the Effective Date hereof and to have been restated and reaffirmed on the
date of the Closing.
(d) All notices required or permitted by this Agreement shall be given in
writing and delivered personally or sent by a nationally recognized
overnight delivery service or by United States mail, registered or
certified. return receipt requested, postage prepaid, or by facsimile
transmission during regular business hours followed immediately by a
confirmation copy in regular mail, to the following addresses:
As to Seller: Xx. Xxxxx X. Xxxx
General Partner
Xxxx / Hill Partnership
000 X. Xxxx xxx Xxxxx Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
(000) 000-0000
Fax (000) 000-0000; and
As to Purchaser: Xx. Xxxxxx X. XxxXxxxxxx
President and CEO
Homes for America Holdings, Inc.
Xxx Xxxxx Xxxxx
Xxxxxxx, Xxx Xxxx 00000
(000) 000-0000
Fax (000) 000-0000
with a copy to: Xxxxxx X. Xxxxx, Esq.
0000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000-0000
(000) 000-0000
Fax (000) 000-0000.
Any notice served upon either party as provided above shall be deemed to
have been given at the time such notice is received, if sent by hand or
overnight delivery or facsimile transmission, or if sent by registered or
certified mail, then the date three (3) days after the date such notice is
deposited in the United States mail. Either party shall have the right from
time to time to change its address for the receipt of notices by giving
written notice of the new address in the manner set forth above.
Exhibit 10.29 - Page 7
(e) This Agreement contains the entire understanding between the parties hereto
with respect to the Property and is intended to be an integration of all
prior or contemporaneous agreements, conditions, or undertakings between
the parties hereto; and are no promises, agreements, conditions,
undertakings, warranties, or representations, oral or written, express or
implied, between and among the parties hereto with respect to the Property
other than as set forth herein. No changes or modifications of this
Agreement shall be valid unless the same is in writing and signed by Seller
and Purchaser.
(f) In the event any one or more of the provisions contained in this Agreement
are held to be invalid, illegal, or unenforceable in any respect, such
invalidity, illegality, or unenforceability shall not affect any other
provision hereof, and this Agreement shall be construed as if such invalid,
illegal or unenforceable provision had not been contained herein.
(g) The date on which this Agreement has been executed and ratified by both
parties being the last date subscribed below, and such date shall be
referred to as and shall constitute the "Effective Date" of this Agreement.
(h) This Agreement and all transactions hereunder shall be governed by the laws
of the State of Florida. In the event that either party hereto is required
to resort to litigation to enforce its rights hereunder, the parties agree
that any judgment awarded to the prevailing party shall include all
litigation expenses, including without limitation actual attorneys= fees,
incurred by the prevailing party.
(i) This Agreement may be executed in multiple counterparts, but all of such
copies shall be deemed an original.
(j) Time shall be considered to be of the essence in the performance of
requirements of this Agreement. No waiver of the manner of performance,
time of performance, or fulfillment of any obligation or condition
hereunder shall be effective unless set forth in a written instrument
authorized and executed with the same formality as this Agreement.
(k) Execution of this Agreement by one party shall constitute an offer to
purchase or sell the Property, as applicable, on the terms and conditions
set forth herein. In the event this Agreement shall not have been fully
executed by both parties and a counterpart thereof delivered to each party
on or before December 22, 2000, such offer shall expire and be of no
further force or effect.
[Signatures of parties commence on next succeeding page.]
Exhibit 10.29 - Page 8
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed
on the dates set forth beneath their respective signatures below:
SELLER:
XXXX / XXXX PARTNERSHIP
By: -------------------------------
Xxxxx X. Xxxx
Its: General Partner
Date: December 15, 2000
PURCHASER:
HOMES FOR AMERICA HOLDINGS, INC.
By: -------------------------------
Xxxxxx X. XxxXxxxxxx
Its: President and CEO
Date: December 15, 2000
Exhibit 10.29 - Page 9
