PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (the "Agreement") made and entered into as of
this 17th day of July, 2002, between THE COLTSVILLE HERITAGE PARK, Inc., a
Connecticut corporation having an address at 000 Xxxxxxxx Xxxxxx, Xxxxxxxx,
Xxxxxxxxxxx 00000 ("Coltsville" or "Owner"), and HOMES FOR AMERICA HOLDINGS,
INC., a Nevada corporation having an address at Xxx Xxxxx Xxxxx, Xxxxxxx, Xxx
Xxxx 00000 ("Purchaser").
RECITALS:
A. Coltsville is the owner of that certain piece or parcel of land known as
the former Colt factory at 00 Xxxxxxxx Xxxxxx, 000 Xxxxxxxx Xxxxxx, 0-0
Xxxxxxxxxx Avenue and 00 Xxx Xxxx Xxxxxx in the City of Hartford, County of
Hartford and State of Connecticut (the "Property"), described more
particularly on Exhibit A attached hereto.
B. Purchaser is desirous of purchasing the Property for the consideration and
subject to the terms and conditions set forth herein, and Owner has agreed
to sell and transfer the Property to Purchaser in accordance with the terms
and conditions provided in this Agreement.
AGREEMENTS:
NOW, THEREFORE, in consideration of the mutual promises set forth herein and of
the deposit paid by Purchaser to Owner and other valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. Agreement to Sell and Purchase.
Owner hereby agrees to sell and Purchaser agrees to purchase the Property under
the terms of this Agreement for the specific and exclusive purpose of
development of a mixed-use housing, commercial, retail, and entertainment
complex, while preserving certain important historic aspects, to the extent such
preservation is commercially practicable.
2. Payments.
(a) In consideration for this Agreement, Purchaser shall pay Owner a deposit of
$10,000.00 upon execution of this Agreement, to be applied toward the
Purchase Price (defined below) or retained by Owner as liquidated damages
under the circumstances set forth herein, as appropriate.
(b) The purchase price for Purchaser's purchase of fee title to the Property
shall be the deposit in Section 2(a) above plus assumption of the
Liabilities (hereinafter defined) (the "Purchase Price"). All payments made
to the Owner as deposits during the term hereof shall be credited toward
the Purchase Price in the event of a closing. In no event shall any portion
of any deposit be credited, rebated or returned to Purchaser in the event
Purchaser fails to close its purchase of the Property, provided such
failure is not a result of Owner's failure to close.
(c) The balance of the Purchase Price shall be paid at closing, subject to
adjustment for prorations as provided herein, by cash, certified or bank
cashier's check or via federal wire transfer in immediately available funds
to a bank account designated by Owner, and the Liabilities shall be paid or
otherwise discharged by Purchaser pursuant to one or more release or
settlement agreements satisfactory to Owner in its discretion.
3. Closing.
(a) The closing shall take place no later than the first to occur of (i) the
date forty-five (45) days after Purchaser obtains commitment for the
performance bond and environmental insurance policy described in Section
6(a)(iii) below, and (ii) the date one hundred twenty (120) days after the
Effective Date, subject to any extension pursuant to Section 4 below or
otherwise mutually agreed to between the parties. The closing shall take
place at the office of Pepe & Hazard LLP, Xxxxxxx Square, 000 Xxxxxx
Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000, or such other place as the parties may
agree.
- Page 1 -
4. Title to the Property.
(a) Conveyance of the Property. Owner shall convey title to the Property to
Purchaser by Quit-Claim Deed (the "Deed"), sufficient to permit a
nationally recognized title insurance company to insure that there has been
conveyed to Purchaser good and marketable title to the Property, subject to
the encumbrances listed on Exhibit B.
(b) Title Defects.
(i) Purchaser shall conduct, at its own cost and expense, such title search of
the Property as it deems necessary to determine the existence of any title
defects. No matter shall be construed as a defect in title so long as such
matter is not construed as such under the Standards of Title of the
Connecticut Bar Association, whenever applicable. Notice of any defect in
title shall be given to Owner not later than the date thirty (30) days
after the Effective Date. If Purchaser timely notifies Owner of a defect in
title to the Property, Owner shall have thirty (30) days (the "Title Cure
Period") after receipt of such notice during which Owner may, but shall not
be obligated to, remedy the defect(s) specified in Purchaser's notice. Upon
the first to occur of (i) Owner's notice to Purchaser of Owner's inability
to remedy such defect in title, or (ii) the expiration of the Title Cure
Period at a time when Owner shall have failed to remedy any defect in
title, Purchaser shall have a period of ten (10) days to elect in writing
(the "Purchaser's Election Notice") either (a) to accept that title which
Owner is able to convey, or (b) to terminate this Agreement, in which event
the Deposit shall be returned to Purchaser, and this Agreement shall
thereafter become null and void and all parties hereto shall be released
from any liability hereunder, except any liability which expressly survives
such termination as set forth in this Agreement. If Purchaser fails to
deliver to Owner the Purchaser's Election Notice during such ten (10) day
period, then Purchaser shall be deemed to have elected to proceed with its
purchase of the Property.
(ii) If Purchaser notifies Owner of its election to accept title with any such
defect(s) within such ten (10) day period, then the Closing Date shall be
the later of the Closing Date specified in Section 3, or fifteen (15) days
after Owner's receipt of the Purchaser's Election Notice.
(iii)If Owner remedies the defect specified in the Purchaser's Election Notice
before the expiration of the Title Cure Period, then the Closing Date shall
be the later of the Closing Date specified in Section 3 or fifteen (15)
days after Owner delivers to Purchaser written notice that such title
defect has been remedied.
(c) Title Modifications
Except as may be necessary to cure any title objections of Purchaser, or to
comply with Section 4(b), from the Effective Date hereof to the Closing Seller
shall not cause or willingly permit any change in the status of title to the
Property or the physical condition of the Property except for customary
maintenance and operations or to comply with applicable law. Seller shall not
cause or willingly permit any adverse change in the condition of the Property,
reasonable wear and tear and damage by fire, other casualty 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, which shall not
be unreasonably withheld or delayed.
(d) Subsequent Title Review
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"). Purchaser shall give Seller written notice
of all Subsequent Objections, which notice shall include a photocopy of the
recorded document or instrument that is the subject of each Subsequent
Objection. Seller shall have a period of thirty (30) days from its receipt of
- Page 2 -
such notice to cure the Subsequent Objection described in the notice, in such a
manner that will allow the title insurance company insuring Purchaser's title to
eliminate the Subsequent Objection from its title policy (which cure may take
the form of a release or discharge, a bond or indemnity, or any other document
or instrument reasonably acceptable to such title insurance company). In the
event that Seller fails to cure any such Subsequent Objection within the thirty
(30) day period, then (i) Purchaser may elect to waive the Subsequent Objection
and proceed to Closing; or (ii) if Purchaser does not so waive within ten (10)
days of the expiration of Seller's 30-day cure period, then either Seller or
Purchaser may terminate this Agreement upon written notice to the other and,
upon such termination, Seller shall refund the Deposit to Purchaser. The closing
date hereunder shall be extended, if necessary, to allow Seller its 30-day cure
period and Purchaser its 10-day waiver period in the event that the Subsequent
Objection is delivered to Seller less than forty (40) days prior to the
scheduled closing date.
5. Condition of Property and Right of Inspection.
(a) Excepting only the express representation and warranties of Owner set forth
herein, Purchaser agrees that the Property will be conveyed "AS IS",
without any covenant, representation or warranty of any kind or nature
whatsoever, express or implied, and Purchaser is relying solely on
Purchaser's own due diligence with respect thereto. The provisions of this
paragraph shall survive Owner's delivery of the deed to the Property to
Purchaser.
(b) Owner agrees that Purchaser and Purchaser's authorized representatives or
agents shall, during the term of this Agreement, have the right to enter
upon the Property upon reasonable notice for the purposes of surveying,
preparing engineering and environmental data, photographing, filming, and
conducting all other investigations, measurements and tests as Purchaser
shall reasonably deem necessary. Purchaser shall provide Owner with the
results of any and all such investigations, measurements, and tests within
three (3) business days of Purchaser's receipt thereof during the term of
this Agreement. In the event that this Agreement is terminated prior to
Closing, Purchaser shall restore the Property to its condition immediately
prior to any such entry (provided that Purchaser in compliance with
applicable law will not restore or return to the Property any contaminated
materials or otherwise violate environmental requirements). Purchaser or
its agents or consultants on its behalf, shall provide Owner with an
insurance certificate evidencing comprehensive general liability insurance
in an amount not less than One Million Dollars ($1,000,000.00) with a
contractual liability endorsement insuring Purchaser's indemnity
obligations hereunder and naming Owner as an additional insured.
(c) Purchaser shall indemnify and hold Owner harmless from any and all damages,
losses, liabilities, and expenses (including without limitation, reasonable
attorney's fees) incurred as the result of any inspection, test and/or
assessment done by Purchaser or any of its employees, agents or contractors
pursuant to this paragraph, or any injury or damage to the Property
resulting from such inspections, or any act or negligence of the individual
or entity performing or involved in such inspection; it being understood
and agreed, however, that Purchaser's indemnity under this paragraph shall
not be deemed to include damages, losses, liabilities, and expenses
resulting from previously existing conditions at the Property which are
discovered by any inspection, test, and/or assessment done by or on behalf
of Purchaser. The indemnification contained in this paragraph shall survive
the expiration and/or termination of this Agreement or the closing of
title.
6. Conditions to Closing and Assumption of Liabilities.
(a) As a part of the consideration due to Owner for the Purchaser's purchase of
the Property, Purchaser agrees to assume responsibility for, or obtain
releases and/or other forms of discharge (as appropriate) for each of the
matters (collectively, the "Liabilities") set forth below, pursuant to
documentation reasonably satisfactory to Owner:
(i) Purchaser shall agree to develop the Property in a manner substantially
consistent with the Business Plan listed on Exhibit C hereto (the "Business
Plan"). Purchaser acknowledges receipt of a copy of the Business Plan, and
acknowledges that Owner would not have agreed to sell the Property to
Purchaser in the absence of Purchaser's commitment to develop the Property
generally in accordance therewith. In the event that Owner determines that
- Page 3 -
Purchaser's development of the Property is not generally in accordance with
the Business Plan, Owner shall have the right to seek specific performance
of the Business Plan by Purchaser through any legal means available,
including without limitation injunctive relief. Purchaser shall have the
right, with notice to Owner, to seek and enter into modifications or
amendments to the Business Plan from the third parties and governmental
agencies or authorities exercising jurisdiction over the Property provided
that such modifications or amendments do not materially adversely affect
Owner's obligations or liabilities under the Business Plan.
(ii) Purchaser agrees to remediate existing environmental contamination at the
Property in accordance with the remediation action plan listed on Exhibit D
hereto (the "RAP"). In the event that Owner determines that Purchaser's
remediation of the Property is not substantially in accordance with the
RAP, Owner shall have the right to seek specific performance of the RAP by
Purchaser through any legal means available, including without limitation
injunctive relief. Purchaser shall have the right, with notice to Owner, to
seek and enter into modifications or amendments to the RAP from the third
parties and governmental agencies or authorities exercising jurisdiction
over the Property provided that such modifications or amendments do not
materially adversely affect Owner's obligations or liabilities under the
RAP.
(iii)Purchaser shall deliver to Owner at closing security for Purchaser's
responsibilities and liabilities under the RAP in the form of a performance
bond and environmental insurance policy in form and content acceptable to
Owner ensuring that (1) the RAP shall be completed, and (2) any and all
environmental remediation expense in excess of a stated deductible shall be
paid by the surety or environmental insurer. The deductible and all other
terms and conditions of the bond and/or policy, as applicable, shall be
subject to the prior review and approval of Owner.
(iv) Purchaser shall assume all of Owner's existing liabilities in relation to
the Property including but not limited to those listed on Exhibit E (the
"Pending Claims"), and agrees to obtain discharge substantially in the form
attached as Exhibit F for the Pending Claims. At Purchaser's election,
Owner and Purchaser shall enter into an escrow agreement (the "Claims
Escrow") at closing pursuant to which Purchaser shall deposit the full
amount of each of the Pending Claims into escrow with Owner's counsel or a
title insurance company as escrow agent. In the event that Purchaser is
unable to secure a full release of each of the Pending Claims pursuant to a
written release agreement acceptable to Owner within 120 days after the
closing date, Owner may direct the escrow agent to release the escrow funds
to pay and obtain releases for the Pending Claims not then released.
(v) Purchaser shall assume and agree to pay or otherwise obtain discharge for
all existing real property taxes and assessments with respect to the
Property, including delinquent taxes, surcharges, interest and lien fees,
together with any and all taxes, assessments or other charges levied
against the Property by the municipality or any quasi-municipal authority.
(vi) Purchaser shall assume the existing mortgage listed on Exhibit B attached
hereto and shall agree to pay all amounts now or hereafter due thereunder.
(b) 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:
(i) Representations and Warranties. The representations and warranties of
Seller set forth herein shall be true and correct in all material respects.
(ii) Title. Title to the Property shall be as required by Section 4 above.
(iii)No Adverse Matters. No material portion of the Property shall have been
adversely affected in excess of a value of Five Hundred Thousand Dollars
($500,000.00) as a result of earthquake, disaster, any action by
governmental authority, flood, riot, civil disturbance, or act of God or
public enemy.
(iv) Feasibility Period. 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 on or before the
- Page 4 -
date sixty (60) days after the Effective Date, for any reason or for no
reason, within its sole discretion (that period being the "Feasibility
Period"). Unless Purchaser provides written notice to the contrary to
Seller during that Feasibility Period, Purchaser shall be deemed not to
have exercised its right to terminate. Upon any such termination Purchaser
shall return to Seller all items received by Purchaser pursuant to this
Agreement (including without limitation all Property-related reports
produced by or at the request of Purchaser) and the parties hereto shall be
released from further obligation or liability hereunder (except for
Purchaser's indemnification obligation under Section 5 above).
(v) Bond and Environmental Insurance. Purchaser shall have obtained after
diligent application the performance bond and environmental insurance
policy described in Section 6(a)(iii) above not later than the date One
Hundred Twenty (120) days after the Effective Date.
7. Representations and Warranties.
(a) Owner represents and warrants, to the best of its information and belief
presently and as of the Closing Date, that:
(i) Owner has full power, and authority to make, execute, deliver and perform
this Agreement, and to lease or sell and convey the Property in accordance
with the terms and provisions of this Agreement and this Agreement, when
executed and delivered by Owner, will constitute the valid and binding
agreement of Owner, enforceable against it in accordance with the terms
hereof.
(ii) Exhibit D attached hereto and made a part hereof is a complete copy of the
RAP and a list of all environmental reports, studies, assessments or data
of any kind relating to the Property of which Owner is aware (collectively,
the "Environmental Reports") and Owner has provided Purchaser with access
to complete and accurate copies of the Environmental Reports that Owner has
in its possession. Owner will provide Purchaser with complete and accurate
copies of any additional environmental reports, studies, assessments or
data of any kind relating to the Property of which Owner becomes aware
promptly after its receipt of any such reports, studies, assessments or
data.
(iii)Other than those indicated in the Environmental Reports, Owner has not
received any notice from any agency (local, state or federal) with respect
to the existence of any hazardous materials or environmental contaminants
on the Property or on any adjacent property or any notice of any claim or
lien against the Property resulting from the removal or clean-up of any
hazardous materials or environmental contaminants on the Property or on any
adjacent property by any such agency.
(iv) Other than those indicated in the Environmental Reports, Owner has no
knowledge of the existence or potential existence of any hazardous
materials or environmental contaminants at the Property.
(v) Other than those indicated in the Environmental Reports, Owner has no
knowledge of the existence of any "underground storage facilities" at the
Property as defined in Section 22a-449 (d)-(I), as amended, of the
Administrative Regulations of Connecticut State Agencies entitled "State of
Connecticut Regulations for Control of Nonresidential Underground Storage
and Handling of Oil and Petroleum Liquids".
(vi) Other than those indicated in the Environmental Reports, Owner has no
knowledge of the existence of any underground storage facilities at the
Property for any use.
(vii)If a Transfer Act filing is required pursuant to Connecticut General
Statutes Section 22a-134 et seq. as a condition of the sale of the
Property, then Purchaser agrees to execute and file with the Connecticut
Department of Environmental Protection an appropriate filing. All liability
and fees relating to the filing of such form shall be the responsibility of
Purchaser and shall be paid in accordance with the statutory requirements.
(viii) Owner has not received any notice of, nor does Owner have any actual
knowledge of, any pending or threatened lawsuits or arbitration, including
condemnation suits, claims or alleged violations of any municipal, county,
state or federal laws, rules or regulations, or the rules or regulations of
any other governmental bodies or agencies relative to the Property or
- Page 5 -
Owner's execution or performance of this Agreement, other than any pending
eviction actions brought by Owner against any Property tenants for default.
So long as this Agreement remains in effect, Owner shall immediately give
Purchaser written notice of the commencement of any lawsuit, the discovery
of any pending lawsuit, or any claim relating to the Property.
(ix) Owner shall proceed promptly and with all due diligence to meet the
requirements for its sale of the Property as set forth in this Agreement.
Owner shall maintain the Property in its current condition prior to the
closing, subject to the terms of Section 12 hereof regarding casualty or
condemnation.
(x) Exhibit E attached hereto and made a part hereof is a complete list of the
Pending Claims to be assumed by Purchaser at Closing.
(xi) 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.
(b) Purchaser represents and warrants presently and as of the Closing Date that
Purchaser is a corporation duly organized, validly existing and in good
standing in the State of Nevada, has the full right, power and authority to
make, execute, deliver and perform this Agreement, and to buy or lease the
Property in accordance with the terms and provisions of this Agreement and
this Agreement, when executed and delivered by Purchaser, will constitute
the valid and binding agreement of Purchaser enforceable against it in
accordance with the terms hereof.
(c) The representations and warranties set forth in this Agreement shall not be
merged into the delivery of the Quitclaim Deed and the transfer and
conveyance of the Property to the Purchaser, but shall survive the closing
for a period of one (1) year from the Closing Date.
8. Real Estate Brokerage Commission.
The parties warrant and represent that except for International Business &
Realty Consultants, L.L.C. ("IBRC") there are no real estate brokers involved in
this transaction, and each agrees to indemnify and hold the other harmless
against the claim of any broker or agent for a commission due by reason of the
sale contemplated herein where it is alleged that such broker or agent dealt
with the indemnifying party in connection with this transaction. The
representations and warranties in this paragraph shall survive the closing or
termination of this Agreement. Purchaser shall pay IBRC a commission of Two
Hundred Thousand Dollars ($200,000.00) subject to the terms of a separate
agreement, holding Seller harmless therefrom.
9. Defaults and Remedies.
(a) Each of the following events shall constitute a default by Purchaser under
this Agreement:
(i) the dissolution of Purchaser as an entity, if not corrected within thirty
(30) days of Owner's written notice with respect thereto;
(ii) Purchaser's insolvency as evidenced by a bankruptcy filing by Purchaser, or
a filing against Purchaser which is not dismissed or stayed by the
bankruptcy court within ninety (90) days of such filing;
(iii)Purchaser's failure to pay the Deposit, Purchase Price balance or any
other amount due hereunder within five (5) business days of receipt of
written notice from Owner of such failure; and
(iv) Purchaser's failure to cure or correct any other breach of or
non-compliance with its obligations under this Agreement within thirty (30)
days of receipt of Owner's written notice regarding such breach or
non-compliance; provided that if the breach or default cannot be reasonably
corrected within thirty (30) days, then failure of Purchaser to promptly
initiate and diligently prosecute to completion such cure or correction.
(b) Any claim either party might have against the other against, whether for,
related to, or arising from, nonperformance, default, breach of this
- Page 6 -
Agreement, breach of a representation, warranty or covenant, breach of
duty, failure to meet the development schedule, or otherwise, will first be
made in writing, addressed to the other party in accordance with Section 11
of this Agreement. The party receiving notice will have forty-five (45)
days to cure or otherwise respond to the noticed claim. Upon expiration of
the forty-five day period, either party may refer the matter to binding
arbitration (the "Arbitration Referral"), governed by the Commercial Rules
of the American Arbitration Association then in effect, before an American
Arbitration Association arbitrator (the "Arbitrator") in Hartford,
Connecticut. The parties further agree that the Arbitrator shall award the
costs of the arbitration, including actual attorneys' fees, to the
substantially prevailing party.
(c) In the event of any default hereunder by Purchaser, Owner shall be entitled
to collect and retain any Deposit paid to Owner or then due and payable
hereunder as of the date of such default. In addition, Owner shall receive
and retain ownership of any existing development plans for the Property,
and Purchaser agrees to cooperate fully in whatever manner is appropriate
and necessary to transfer ownership and possession of such development
plans to Owner.
10. Documents at Closing.
(a) The parties' obligations hereunder shall be subject to the satisfaction at
or before the closing, if applicable, of each of the following conditions:
(i) Owner shall deliver a quit claim deed, duly executed and acknowledged by
Owner, conveying to Purchaser fee title to the Property, subject only to
the encumbrances set forth herein in Exhibit B.
(ii) The representations and warranties made by the parties in this Agreement
shall be true and correct on the date of this Agreement and shall be true
and correct on the Closing Date with the same effect as though such
representations and warranties had been made or given as of such date.
Additionally, the parties shall have performed and complied with all of
their obligations under this Agreement which are to be performed or
complied with prior to the closing.
(iii)Ten (10) days before closing, Purchaser shall deliver to Owner releases
and, if applicable, mechanics' lien waivers, duly executed and acknowledged
in form and substance reasonably satisfactory to Owner, showing the Pending
Claims have been settled.
(iv) Owner shall furnish to Purchaser an affidavit that Owner is not a "foreign
person" as defined by the Foreign Interests in Real Property Tax Act.
(v) Owner shall deliver any additional documents which may be reasonably
required by Purchaser or its title insurer.
(vi) Purchaser shall execute and deliver such documents as are reasonably
necessary to document and evidence its assumption of the Liabilities
pursuant to Section 6 hereof, including without limitation a business plan
agreement, remediation plan agreement, assumption of note and mortgage and
such other documents or instruments as Owner or any governmental agency or
other third party to such agreements shall reasonably require.
11. Notices.
All notices or communications which are required or desired to be given or made
hereunder shall be sufficiently given or made if delivered by hand, or by
certified or registered mail, return receipt requested, or by receipted
overnight mail service or by acknowledged facsimile transmission, to the party
for whom intended at the address of such party as follows (or such other address
designated in accordance with this notice provision):
To Owner: The Coltsville Heritage Park, Inc.
000 Xxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attn: Xxxx X. Xxxx, President
With a copy to: Pepe & Hazard LLP
Xxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Tel: 000.000.0000
Fax: 000.000.0000
Attn: Xxxx X. Xxxxxxxxxx, Esq.
and Xxxxx X. Xxx, Esq.
- Page 7 -
To Purchaser: Homes for America Holdings, Inc.
Xxx Xxxxx Xxxxx
Xxxxxxx, Xxx Xxxx 00000
Tel: 000.000.0000
Fax: 000.000.0000
Attn: Xxxxxx X. XxxXxxxxxx
Chief Executive Officer
With a copy to: Xxxxxx X. Xxxxx, Esq.
0000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000-0000
Tel: 703.368-0707
Fax: 000.000.0000
12. Damage or Destruction of Property; Condemnation.
(a) Upon the occurrence of any casualty or other damage to the Property during
the term of this Agreement, Owner shall give prompt notice thereof to
Purchaser. In the event more than forty percent (40%) of the Property,
other than a portion of the Property that is to be razed or demolished
pursuant to the Business Plan, shall be damaged or destroyed, Purchaser, at
its option, shall have the right, upon written notice to Owner, to elect to
cancel and terminate this Agreement. Upon such termination, neither party
shall have any further claim against the other hereunder. In the event
Purchaser shall elect not to cancel this Agreement as aforesaid, or in the
event such damage or destruction affects less than forty percent (40%) of
the Property (excluding that portion or portions of the Property to be
razed or demolished pursuant to the Business Plan), and the Property is
transferred to Purchaser pursuant to this Agreement, Owner shall assign all
of its rights to the proceeds of any insurance policy payable in connection
with any such damage to Purchaser.
(b) If all or any portion of the Property is taken under condemnation or
eminent domain, or if Owner receives any notice of a prospective taking
prior to any Closing Date, Owner shall give prompt notice thereof to
Purchaser. In the event such taking will affect more than twenty percent
(20%) of the buildings or other structures on the Property, Purchaser may,
at its option, cancel this Agreement by giving Owner notice of such
cancellation within ten (10) days of receipt of such notice. In the event
Purchaser shall elect not to cancel this Agreement as aforesaid, or in the
event such taking or prospective taking will not affect more than twenty
percent (20%) of the buildings or other structures on the Property, and the
Property is transferred to Purchaser pursuant to this Agreement, Owner
shall assign all of its rights to the condemnation award payable in
connection with such taking to Purchaser.
13. Adjustments.
Pursuant to the terms of Section 6(2)(v) hereof, Purchaser shall assume all
liability for unpaid real estate taxes and assessments at closing. Rents,
utilities, and any other Property income and expense items shall be adjusted as
of midnight of the day immediately preceding the Closing Date.
14. Miscellaneous.
(a) This instrument constitutes the entire agreement between the parties and
there are no agreements, understandings, warranties or representations
between them except as set forth herein. This Agreement cannot be amended
except in writing executed by the parties. This Agreement shall inure to
the benefit of and bind the respective executors, administrators, heirs,
successors and assigns of the parties hereto. Connecticut law shall govern
the interpretation and enforcement of this Agreement.
(b) Purchaser may not assign this Agreement without the Owner's prior written
consent; provided that Purchaser shall have the right to assign this
Agreement to an entity established by and substantially owned and
controlled by Purchaser. No assignment shall relieve Purchaser from its
obligations or liabilities hereunder.
(c) This Agreement may be executed in several counterparts, each of which shall
be deemed an original, and all such counterparts shall together constitute
one and the same.
- Page 8 -
(d) The parties hereto agree that this Agreement shall not be recorded in the
Hartford Land Records. In the event Purchaser records this Agreement for
any reason, Purchaser shall be in default hereunder and shall be deemed
hereby to have appointed Owner its attorney-in-fact to file a release of
any such recorded instrument at Purchaser's expense.
(e) It is the intention of this Agreement to create an agreement to sell and
purchase between Owner and Purchaser and no other relation whatsoever, and
nothing herein contained shall be construed to make the parties hereto
partners or joint venturers, or to render either party liable for any of
the debts or obligations of the other party.
(f) All pronouns and nouns and any variations refer to the masculine, feminine
or neuter, singular or plural, as the identity of the parties or the
context may require.
(g) If any term or provision of this Agreement should to any extent or for any
reason be held invalid, illegal or unenforceable, such invalidity or
illegality will not affect any other provision of this Agreement. Instead,
the remainder of this Agreement shall be valid and enforceable to the
fullest extent permitted by law.
(h) Whether or not the transaction contemplated by this Agreement is
consummated, unless otherwise provided, each party will pay its own
expenses incident to the preparation and performance of this Agreement,
including without limitation any attorneys' fees, inspection fees or other
costs.
(i) A waiver of a breach of any provision hereof does not waive any preceding
or succeeding breach. Extension of time for the performance of one
obligation or act does not constitute an extension of time for the
performance of any other obligation or act.
(j) All exhibits and schedules attached to this Agreement are incorporated by
reference.
(k) The date on which this Agreement has been executed and ratified by both
parties, being the last date subscribed below, shall be referred to as and
shall constitute the "Effective Date" of this Agreement.
[The Remainder of this Page Intentionally Left Blank]
- Page 9 -
IN WITNESS WHEREOF, the parties hereto have hereunto set their respective
hands as of the date first written above.
WITNESSES: THE COLTSVILLE HERITAGE PARK, Inc.
/s/ Xxxx Xxxx
----------------------------------
By: Xxxx X. Xxxx
Title: President
HOMES FOR AMERICA HOLDINGS, INC.
/s/ Xxxxxx X. XxxXxxxxxx
----------------------------------
By: Xxxxxx X. XxxXxxxxxx
Title: President & CEO
STATE OF ___________ )
) ss: ------------, 2002
COUNTY OF __________ )
Personally appeared before me, Xxxx X. Xxxx, President of The Coltsville
Heritage Park, Inc., signer of the foregoing instrument, who acknowledged the
same to be his free act and deed and the free act and deed of said corporation.
Notary Public
My Commission Expires:
STATE OF ___________ )
) ss: ------------, 2002
COUNTY OF __________ )
Personally appeared before me, Xxxx X. Xxxx, President of The Coltsville
Heritage Park, Inc., signer of the foregoing instrument, who acknowledged the
same to be his free act and deed and the free act and deed of said corporation.
Notary Public
My Commission Expires:
- Page 10 -
EXHIBIT A
LEGAL DESCRIPTION OF THE PROPERTY
- Page 11 -
EXHIBIT B
LIST OF ENCUMBRANCES
1. Rights of any tenants in possession of the Property pursuant to any leases,
oral or written, recorded or unrecorded.
2. Any state of facts which an accurate survey or physical inspection of the
Property would disclose, including but not limited to the following
encroachments relating to the Property:
o A portion of concrete stairs and landing encroach into Vredendale Avenue.
o Portions of two buildings encroach into Sequassen Street approximately
0.5'.
o Portions of the cornices and beltways encroach into Xxxxxxxxx Xxxxxx.
o Overhead walkway encroaches into Sequassen Street without the known benefit
of an easement.
3. Real estate taxes on the lists of October 1, 1997 and thereafter.
4. Real Estate tax liens of record in favor of the City of Hartford for taxes
on the lists of October 1, 1997 and thereafter.
5. Easement to The Hartford Electric Light Company dated July 12, 1967 and
recorded in Volume 1198 at Page 487 of the Hartford Land Records.
6. Easement to the City of Hartford described in a Certificate of Taking dated
April 4, 1977 and recorded in Volume 1563 at Page 253 of the Hartford Land
Records. Affects 0-0 Xxxxxxxxxx Xxxxxx, is a subterranean easement below
elevation -50' Metropolitan District datum for the entire Property
described as the Third Piece in Volume 1728 at Page 2.
7. Easement to the City of Hartford described in a Certificate of Taking dated
April 4, 1977 and recorded in Volume 1563 at Page 256 of the Hartford Land
Records. Affects 00 Xxxxxxxx Xxxxxx, is a subterranean easement below
elevation -50' Metropolitan District datum for the entire Property
described as the Fourth Piece in Volume 1728 at Page 2.
8. Any and all other easements that may be entered into by Owner during the
term of this Agreement with respect to utilities, ingress or egress,
environmental monitoring or other matters necessary to the maintenance,
development and operations of the Property as deemed reasonably necessary
or advisable by Owner.
9. Lease by and between Water & Way Properties and Metro Bulletins Corp. dated
October 21, 1988, a notice of which is recorded in Volume 2992 at Page 21
of the Hartford Land Records.
10. Lease by and between Water & Way Properties and Metro Bulletins Corp. dated
July 9, 1992, a notice of which and recorded in Volume 3291 at Page 7 of
the Hartford Land Records, which lease was assigned to City Vision, Inc. by
assignment dated July 20, 1992 and recorded in Volume 3291 at Page 10 of
the Hartford Land Records. Affects 00 Xxx Xxxx Xxxxxx.
11. Lease by and between Water & Way Properties and Automatic Laundry Services
Company, Inc., a notice of which was recorded November 26, 1993 in Volume
3426 at Page 342 of the Hartford Land Records.
12. Open-End Mortgage Deed from Coltsville Heritage Park, Inc. in favor of the
State of Connecticut acting by and through its Department of Economic and
Community Development dated February 29, 2000 and recorded March 17, 2000
in Volume 4217 at Page 189 of the Hartford Land Records.
13. Certificate of Mechanic's Lien by Xxxxxx and Xxxxxx Associates, Inc.
recorded on May 14, 2001 in Volume 4378 at Page 244 of the Hartford Land
Records.
14. Lis Pendens Xxxxxx and Xxxxxx Associates, Inc. v. The Coltsville Heritage
Park, Inc. filed May 14, 2002, return date June 4, 2002, filed with the
Superior Court Judicial District of Hartford.
- Page 13 -
EXHIBIT C
LIST OF BUSINESS PLAN
- Page 14 -
EXHIBIT D
REMEDIATION ACTION PLAN AND LIST OF ENVIRONMENTAL REPORTS
- Page 15 -
EXHIBIT E
CLAIMS AND POTENTIAL CLAIMS
The Xxxxxx Group: 82,949.46
Xxxxxx & Xxxxxx: 87,313.28
Xxx Xxxxxxxxx, Esq.: 42,000.00
CFG/Raytar: 1,375,000.00
- Page 16 -
EXHIBIT F
GENERAL RELEASE
(Coltsville Heritage Park)
FOR VALUABLE CONSIDERATION RECEIVED, ---------------- ("------"), does hereby
release, acquit and forever discharge THE COLTSVILLE HERITAGE PARK, INC. and its
agents, employees, attorneys, representatives, successors and assigns
("Coltsville Parties"), of and from any and all claims, demands, debts, actions,
causes of action, suits, contracts, agreements, obligations, accounts, defenses
or offsets against all amounts due and owing under or in connection with the
ownership, development, management, financing and all other conduct and
activities (collectively, the "Activities") associated with or relating to the
property commonly known as Coltsville Heritage Park located on Huyshope Avenue
in Hartford, Connecticut (the "Project") of any kind or character whatsoever,
known or unknown, suspected or unsuspected, in contract, tort or at law or in
equity, which -------------- ever had, now have or hereafter might have against
the Coltsville Parties or any of them for or by reason of any matter, cause or
thing whatsoever arising as a result of, or by and pursuant to, the Activities
or the Project, including, without limitation, any claim that relates to, in
whole or in part, directly or indirectly, the Project financing or those certain
financial obligations owed to ------------ by ------------ with respect to the
Project.
IN WITNESS WHEREOF, the undersigned has caused this Agreement to be executed as
of the ------------ day of ------------, 2002.
Witness:
By: -----------------------------------
-----------------------------------
STATE OF CONNECTICUT )
) ss. ------------
COUNTY OF ------------ )
The foregoing instrument was acknowledged before me this ---- day of
------------, 2002, by ------------, as ------------ of ------------,
------------, on behalf of such ------------.
Commissioner of the Superior Court
Notary Public
My commission expires:
- Page 17 -
