PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (the "Agreement") dated as of the 15th day
of August, 2001, is made by and between Frontier Investments, L.L.C., an Indiana
limited liability company (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 parcel of approximately Twenty Four and five hundredths (24.05)
acres to be subdivided from Seller's parcel of real property located in
Elkhart County, Indiana, as more fully described in the legal description
to be attached by Seller as Exhibit A and hereby incorporated as if set
forth herein, to be subdivided as shown on the proposed sketch plan to be
attached by Seller as Exhibit B and hereby incorporated as if set forth
herein, subject to the survey described in ss. 10(c) below (the "Land"),
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 Eight
Hundred Fifty Three Thousand Seven Hundred Seventy Five Dollars ($853,775),
subject to adjustment upon delivery of the Survey as described in ss. 10(c)
below.
(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 Meridian Title Corporation, 000 Xxxxx Xxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxx 00000 [(000) 000-0000 o Fax (000) 000-0000](Attn.: Xx. Xx
Xxxxxx) (or any title company in the metropolitan area of the Property and
otherwise mutually acceptable to Purchaser and 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) The Purchaser, unless it terminates this Agreement of right under ss. 3
during the Feasibility Period, shall make an additional deposit of Fifty
Thousand Dollars ($50,000) within two (2) business days after the
termination of the Feasibility Period to be held by the Title Company as
part of the Deposit.
(e) The Purchaser shall have the right to extend the outside date for Closing
in ss. 5(a) below up to an additional ninety (90) days by written notice to
Seller and by making an additional deposit of Twenty Five Thousand Dollars
($25,000) to be held by the Title Company as part of the Deposit.
(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 to Purchaser, 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 1999, 2000, and 2001, 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"). 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 ss. 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 ss. 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 ss.
9 hereinbelow.
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 later date of
(i) the date sixty (60) days after the termination of the Feasibility
Period and (ii) the date of Subdivision as described in ss. 10(d), and
(iii) the date of Zoning Approval as described in ss. 10(e); provided that
the date for Closing may be extended in accordance with the terms and
provisions of xx.xx. 2(e), 4(c), or 9 hereof. The Closing shall be held at
the offices of the Title Company, or other mutually agreed upon location.
(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 costs of the
Survey, the costs of Purchaser's owner's title insurance policy, the
applicable grantor's and recordation taxes or charges for the Deed, and
one-half (1/2) 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 other costs incurred for title examination
and title insurance, one-half (1/2) of the fees of the of the settlement
agent, and any and all other closing costs imposed at the Closing.
(d) Rents, 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 (except
tenants under valid leases constituting Permitted Encumbrances). 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 Indiana.
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. In the event the Property or any substantial portion thereof shall
become the subject of any condemnation, eminent domain, or other similar
proceeding or be taken or condemned by any governmental authority after the
Effective Date and before the Closing, Seller shall provide Purchaser of
immediate notice thereof and Purchaser shall have the right to elect: (i)
to terminate this Agreement by written notice to Seller and Title Company,
whereupon the Deposit together with accrued interest thereon shall be
immediately refunded to Purchaser and the parties'obligations hereunder
shall terminate; (ii) require Seller to convey the Property (or the
remaining portion) at Closing together with all right, title, and interest
in an to any pending proceeding or proceeds of an earlier taking. Seller
shall not compromise or settle any casualty or condemnation claim or
proceeding without the prior written consent of Purchaser, which shall not
be unreasonably withheld, delayed, or denied.
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.
(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 International Business & Realty Consultants, L.L.C.,
Purchaser's broker, whom Seller shall pay a commission equal to six per
cent (6%) of the purchase price paid at Closing, 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 byss.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.
(e) Subdivision. Seller shall have completed the Subdivision described
inss.10(d) below.
(f) Zoning Approval. Purchaser shall have obtained the Zoning Approval
described inss.10(e) below.
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 ss. 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.
(b) Condemnation. Seller shall promptly notify Purchaser 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.
(c) Survey. Promptly after the Effective Date Seller shall obtain and furnish
to Purchaser a boundary survey of the Property to be conveyed to Purchaser
at Closing (the "Survey"). The Survey shall be prepared by a licensed
Indiana land surveyor reasonably acceptable to Purchaser. The Survey shall
set for the legal description and acreage of the Property and otherwise
satisfy the requirements of Purchaser's mortgage lender. Upon delivery of
the Survey the parties shall acknowledge delivery in writing by and
addendum to this Agreement attaching a copy as an additional exhibit and
setting forth the revised purchase price for the Property in the event the
acreage is more or less than Twenty Four and five hundredths (24.05) acres,
adjusting the Purchase Price in ss. 2(a) at price per acre of Thirty Five
Thousand Five Hundred Dollars ($35,500).
(d) Subdivision. Provided that a subdivision of the Land is required to convey
the Property to Purchaser, either to obtain the title commitment described
above or to comply with the requirements of any governmental agency
exercising jurisdiction over the Property, for the rezoning or otherwise,
promptly after the expiration of the Feasibility Period, unless this
Agreement is terminated, Seller shall prepare, submit, and diligently
prosecute an application to the appropriate governmental agencies
exercising jurisdiction over the Property to obtain the requisite approvals
to record a subdivision of the Land so at Closing the Seller conveys the
Property to Purchaser as a separate parcel of real estate, and thereafter
Seller shall diligently prosecute its subdivision application until it can
of right record the subdivision of the Property, which it is required to do
on or before the date for Closing (the "Subdivision"). Seller shall provide
Purchaser from time to time reports on the progress of the application and
for such subdivision approval and shall advise Purchaser promptly upon any
notice of approval thereof.
(e) Zoning Approval. Promptly after the expiration of the Feasibility Period,
unless this Agreement is terminated, Purchaser shall prepare, submit, and
diligently prosecute an application to the appropriate governmental
agencies exercising jurisdiction over the Property to rezone the Property
(or obtain a variance therefor) to permit the use of the Property for a
planned unit development for multifamily dwellings in accordance with
Purchaser's building plan. Purchaser shall have the right to use the
Seller's drawings and building plans, furnished pursuant to ss. 3 above, in
connection with such applications. Purchaser shall provide Seller from time
to time reports on the progress of the application for such rezoning
approval and shall advise Seller promptly upon any notice of approval
thereof (the "Zoning Approval").
(f) Ingress / Egress Easements. As the Subdivision is presently contemplated by
the parties and shown on the sketch plat attached as Exhibit B hereto,
along the approximately 1,316 ` boundary line, within the 300' estimated
area marked on the sketch plan as "Future Access Area", when Seller
develops the remaining property to the point where paving and streets are
constructed the Purchaser shall have a twenty foot (20') curb cut into that
Future Access Area if permitted by the governmental agencies exercising
jurisdiction over the Property, and Purchaser may incorporate the planned
curb cut into its submissions for approval of its development of the
Property. The parties understand and agree that this right of future access
although recorded will not create any obligation for the Seller or its
successors to construct any of those improvements. The parties shall
execute and deliver at Closing mutual and reciprocal ingress / egress
easements, in recordable form reasonably acceptable to each party, allowing
the above-described access.
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 ss. 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.
(f) There exist at the Property, or shall exist on or before Closing, at
Seller's sole expense, water and sewer lines at the site sufficient for
domestic and fire use in accordance with applicable building requirements
for the jurisdiction, for Purchaser to construct the multifamily
residential project contemplated by its application for Zoning Approval.
(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
"hazardous waste" as defined in the Resource Conservation and Recovery Act
of 1976 (42 U.S.C. ss. 6901 et seq.) Or other applicable law) such that the
existence of such materials 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.
(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: Frontier Investments, LLC
Attn.: Xx. Xxxx X. Xxxx
Managing Member
0000 Xxx X.X. 00 Xxxx
Xxxxxxx, Xxxxxxx 00000
(000) 000-0000
Fax (000) 000-0000; and
with a copy to: Xxxxx X. Xxxxxxxx, Esq.
Xxxxx & Xxxxxxx
000 Xxxx Xxxxxxxx Xxxxxx
Xxxx Xxxxxx Xxx 000
Xxxxxxx, 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.
(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 Indiana. 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, each of which
shall be deemed an original, but which together shall constitute but one
instrument.
(j) Seller and Purchaser agree that Seller retains the option to qualify this
transaction as part of a tax deferred exchange under ss. 1031 of the
Internal Revenue Code of 1986, as amended. Purchaser agrees to cooperate in
Seller's exchange, provided Purchaser shall incur no additional liability,
cost, expense, or delay therefor.
(k) 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.
(l) 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 August 22, 2001, such offer shall expire and be of no further
force or effect.
[Signatures of parties commence on next succeeding page.]
IN WITNESS WHEREOF, the parties have caused this Agreement each by its
authorized representative have caused this Agreement to be duly executed under
seal on the dates set forth beneath their respective signatures below.
SELLER:
FRONTIER INVESTMENTS, LLC
ATTEST/WITNESS:
s/s Xxxx Xxxx
--------------------------- By: --------------------------------
Xxxx X. Xxxx
Its: Managing Member
Date: August 15, 2001
PURCHASER:
HOMES FOR AMERICA HOLDINGS, INC.
ATTEST/WITNESS:
s/s Xxxxxx XxxXxxxxxx
-------------------------- By: --------------------------------
Xxxxxx X. XxxXxxxxxx
Its: President and CEO
Date: August 15, 2001
