PURCHASE AND SALE AGREEMENT
AGREEMENT, made as of the 18th day of March 1997, by and
between BIRMINGHAM UTILITIES, INC., a Connecticut corporation,
having its principal place of business in Ansonia, Connecticut
(hereinafter referred to as the "Seller"); and M/1 HOMES, LLC, a
limited liability company organized under the laws of Connecticut
and having an office at 000 Xxxxxxx Xxxxx Xxxx, Xxxxxxxxx,
Xxxxxxxxxxx (hereinafter referred to as the "Buyer");
WITNESSETH:
In consideration of the Purchase Price described in Paragraph
1 hereof, and subject to the further terms and conditions set forth
herein, the Seller hereby agrees to sell and convey, and the Buyer
hereby agrees to purchase, the approximately 245 acres of
unimproved real property on Xxxxxxxx Road and Cemetery Road in the
Town of Seymour, Connecticut shown and described on a certain map
consisting of sheets 1 of 4, 2 of 4, 3 of 4 and 4 of 4 entitled,
"Birmingham Utilities, Parcel "A", Seymour, Connecticut, Scale 1"
= 100', by Xxxxxxx X. Xxxxxx, Registered Land Surveyors-Planners
dated June 10, 1996," a copy of which is attached hereto in four
separate sheets as Schedule A and made a part hereof (hereinafter
referred to as the "Premises"). Title to the Premises will be
conveyed free and clear of all encumbrances, liens, or exceptions
to title other than those set forth in Schedule B or in Paragraph
7 hereof.
1. CONSIDERATION
The Purchase Price, subject to the
provisions of Paragraph 13(a) hereof,
is: . . . . . . . . . . . . . . . . . . . . . .$3,950,000.00
which the Buyer agrees to pay, as follows:
(a) As Xxxxxxx Money, paid with the
execution hereof, receipt of which,
subject to collection, is hereby
acknowledged: . . . . . . . . . . . . . . . . . $ 50,000.00
(b) No later than 30 days prior to the
first day of public hearings scheduled by
the Connecticut Department of Public
Utility Control ("DPUC") as set forth in
the first schedule of proceedings to be
issued in the docket opened by the DPUC
to consider the Company's application
contemplated in Paragraph 12(b) hereof, a
Supplementary Deposit, in immediately
available funds:. . . . . . . . . . . . . . . .$ 147,500.00
(c) In immediately available funds
delivered to the Seller on the date of
the Closing of the title and upon
delivery of the deed as hereinafter
provided below. . . . . . . . . . . . . . . . .$3,752,500.00
Total Purchase Price . . . . . .$3,950,000.00
The Xxxxxxx Money deposit paid herewith in accordance with
Paragraph 1(a) above and the Supplementary Deposit paid in
accordance with Paragraph 1(b) above shall be held, subject to the
provisions of Paragraphs 12 and 13 hereof, by the Seller's attorney
in an interest bearing account.
2. DEED
The deed of conveyance to the Premises shall be in the form of
a full covenant and Warranty Deed in the usual Connecticut form,
which shall be duly executed, acknowledged and delivered, all at
the Seller's expense, conveying the fee simple title in and to the
Premises to the Buyer, free and clear of all encumbrances, liens
and exceptions to title other than those set forth in Schedule B
hereof or in Paragraph 7 hereof.
3. APPORTIONMENTS
The taxes and assessments of the Town of Seymour will be
apportioned, in accord with local custom, as of the date of the
closing of title. Should any tax, assessment, or rate be
undetermined on the date of the closing of title, the last
determined tax, assessment, or rate shall be used for the purpose
of the apportionment.
4. CONDITION OF PREMISES
The Buyer further agrees with and represents to the Seller
that it has examined the Premises, that it is fully satisfied with
the physical condition thereof, and that neither the Seller nor any
representative of the Seller has made any representation or promise
upon which the Buyer has relied concerning the physical condition
of the Premises or of any property covered by this Agreement,
except as herein may be expressly set forth.
5. TITLE
(a) It is further understood and agreed that if, on the date
herein set for the closing of title, the Seller shall be unable to
convey marketable title to the Premises to the Buyer free and clear
of encumbrances, liens or exceptions to title other than those set
forth in Schedule B hereof or in Paragraph 7 hereof, then, and in
that event, the Seller shall have a further period of thirty (30)
days within which to perfect title. If, at the end of said period,
the Seller is still unable to convey title to the Premises free and
clear of all encumbrances, liens or, exceptions to title except as
aforesaid, the Buyer may elect to accept such title as the Seller
can convey, upon the payment of the aforesaid Purchase Price, or
may reject the deed conveying such title on that ground. Upon such
rejection, all sums paid on account hereof, including the Xxxxxxx
Money deposit and the Supplementary Deposit contemplated in
Paragraphs 1(a) and 1(b) hereof, respectively, together with
interest thereon, and together with any expenses actually incurred
by the Buyer for the examination of the title to the Premises shall
be repaid by the Seller to the Buyer. The Buyer agrees to obtain
a title search of the Premises within thirty (30) days of the
execution hereof. The Buyer shall notify the Seller within said
thirty (30) day period whether the title is clear according to the
Standards of Title of the Connecticut Bar Association, and conforms
to the terms hereof. In the event that said title is clear as
aforesaid as of said date, and from and after said date the title
becomes encumbered or otherwise clouded such that the Seller is
unable to convey clear title at closing as required hereunder, in
addition to the Buyer's expenses for examination of title, the
Seller shall reimburse the Buyer an amount equal to any expenses
actually incurred by the Buyer on account of legal fees, surveying
and engineering expenses, inspection expenses, and any bank charges
and fees. Upon receipt of such payments by the Buyer, this
Agreement shall terminate and become null and void and the parties
hereto shall be released and discharged of all further claims and
obligations, each to the other, hereunder. Nothing shall
constitute an encumbrance, lien or exception to title for the
purposes of this Agreement if the Standards of Title of the
Connecticut Bar Association recommends that no corrective or
curative action is necessary in circumstances substantially similar
to those presented by such encumbrances, liens, or exception to
title.
(b) The Buyer shall give written notice to the Seller's
attorney, not less than ten (10) business days prior to the Closing
Date, of any encumbrances or defects then known to the Buyer which
the Buyer claims affect title other than those set forth in this
Agreement.
6. INSURANCE
Throughout the period between the date of this Agreement and
the date of the closing of title, the Seller shall maintain
existing liability insurance on the Premises.
7. ENCUMBRANCES
In addition to the exceptions to title in Schedule B, the
Premises will be conveyed subject to:
(a) Any applicable restrictions or limitations imposed or to
be imposed by governmental authority, including the planning and
zoning rules and regulations of the Town of Seymour;
(b) Taxes of the Town of Seymour which become due and payable
after the date of delivery of the Deed, which taxes, if any, the
Buyer will assume and agree to pay as part of the consideration for
the deed;
(c) Public improvement assessments, and/or any installments
thereof, which assessments and/or installments become due and
payable after the date of the delivery of the Deed, which
assessments and/or installments, if any, the Buyer will assume and
agree to pay as part of the consideration for the deed, provided
however, that the Seller as of the date hereof has no knowledge of
any such assessment; and
(d) The following restriction, which shall run with the land
and be included in the Warranty Deed: "The Grantee covenants and
agrees that at least fifty percent (50%) of the Premises conveyed
hereunder shall be perpetually used for `open space or recreational
purposes' as said terms are defined in subsection (f) of Section
16-5Od of the Connecticut General Statutes."
8. ENTIRE AGREEMENT
It is understood and agreed that this written Agreement
(including Schedule B, a Rider dated of even date herewith and
referred to as Schedule C, and any other schedules or any riders
referred to in the body of this Agreement and attached hereto)
constitutes the entire agreement between the parties hereto, and
that no oral statements or promises, and no understandings not
embodied in this writing, shall be valid or binding.
9. CLOSING
It is agreed by the parties hereto that the Closing of Title
(hereinafter referred to as the "Closing") shall, subject to the
provisions of Paragraph 13(a) concerning the Buyer's election to
extend this Agreement and the date for the Closing under certain
conditions, take place at the offices of Xxxxx Xxxxxx & Xxxxxx,
Hartford, Connecticut on or before the earlier of (a) December 31,
1998 or (b) 30 days after all of the Seller Contingencies set forth
in Paragraph 12 hereof and all of the Buyer Contingencies set forth
in Paragraph 13 hereof have been satisfied or waived in writing by
both parties hereto. (the "Closing Date"), at a time to be
determined, or such other place and date as may be mutually agreed
upon by the parties hereto, at which time the deed shall be
delivered upon receipt of the balance of the Purchase Price.
10. BROKER
The parties hereto recognize that there was no agent or broker
who negotiated the sale of the Premises. This Agreement is
consummated by the Seller in reliance on the representation of the
Buyer that no broker or agent brought the Premises to the Buyer's
attention or was, in any way, a procuring cause of this sale and
purchase. The Seller represents to the Buyer that no broker or
agent represented the Seller in the sale of the Premises to the
Buyer or has any exclusive sale or exclusive agency listing on the
Premises. Any damages which may accrue as a result of any breach
of a representation contained in this Paragraph 10 shall include
without limitation, all reasonable costs of defending any claim for
commissions, including reasonable attorney's fees. The Buyer
hereby agrees to indemnify and hold harmless the Seller against any
judgment against the Seller arising out of the claim of any broker
or agent for a commission due by reason of this sale, where it is
alleged that said broker or agent called the Premises to the
Buyer's attention or interested the Buyer therein, provided that
said indemnity shall also include all costs of defending any such
claim whether or not such claim results in a judgment against the
Seller and provided further that said indemnity shall also include
any settlement of such claim to the extent such settlement shall
have been approved in writing by the Buyer, including without
limitation reasonable attorney's fees. The provisions of this
paragraph shall survive the delivery of the deed hereunder.
11. DEFAULT
If the Buyer shall fail to comply with any term of this
Agreement by the time set for Closing of Title, the Seller shall
hold and retain all sums of money paid in accordance with this
Agreement or any modification or extension hereof, including
without limitation both the Xxxxxxx Money deposit and the
Supplementary Deposit contemplated in Paragraphs 1(a) and 1(b)
hereof, respectively, with all interest earned thereon, as
liquidated damages for the breach of this Agreement, whereupon all
rights and remedies hereunder shall cease and be at an end. In
this case, the Buyer shall immediately return its copy of this
Agreement to the Seller for cancellation. If this Agreement shall
have been recorded on the Land Records by either party hereto, the
Buyer shall, at its expense, deliver to the Seller a Quit Claim
Deed releasing any and all interest hereunder. If the Buyer shall
fail to deliver such a deed to the Seller within thirty (30) days
after the date set for the Closing of Title, the Seller shall have
the right to commence an action to procure an adjudication of the
termination of the Buyer's rights hereunder in which case the Buyer
shall pay the expense of searching the title for the purpose of
such action, together with all costs including, without limitation,
the reasonable fees of the Seller's attorneys.
If the Seller shall fail to comply with any term of this
Agreement by the time set for the Closing of Title, the Buyer may
enforce this Agreement according to law and equity, except that
failure to comply by the Seller as a result of (i) encumbrances or
defects in title shall be governed by the provisions of Paragraphs
5 and 7 of this Agreement and (ii) any violation of any
representations set forth in Paragraph 15 shall be treated as if
such violation were a defect in title and the Buyer shall have only
the remedies set forth in Paragraph 5 hereof.
Notwithstanding any other provision of this Agreement, in the
event either party hereto shall breach this Agreement, the non-
breaching party shall be entitled to recover all costs and expenses
(including, without limitation, reasonable attorney's fees)
incurred in enforcing this Agreement or resulting from the said
breach.
12. SELLER CONTINGENCIES
(a) Purchase Rights. The Premises are subject to statutory
purchase rights in favor of the Town of Seymour, the State of
Connecticut, Bridgeport Hydraulic Company, The Connecticut Water
Company, Heritage Village Water Company, South Central Connecticut
Regional Water Authority, and certain non-profit organizations, all
as set forth in the applicable provisions of the Connecticut
General Statutes (Sections 16-50c, 16-5Od, and 25-331). If any of
said rights are exercised or shall not have expired or been waived
in accordance with their statutory terms by December 31, 1997,
Seller shall return to Buyer any sums paid hereunder, including
both the Xxxxxxx Money deposit and the Supplementary Deposit
contemplated in Paragraphs 1(a) and 1(b) hereof, respectively,
together with interest thereon, within seven (7) days after such
exercise and, upon such return of said sums, this Agreement and the
obligations of the parties hereunder shall terminate and come to an
end.
(b) DPUC Approval. Notwithstanding any provision of this
Agreement to the contrary, the Seller's obligation to sell the
Premises hereunder is contingent upon the Seller obtaining Final
approval from the DPUC (which approval shall become "Final" only
upon the expiration of the applicable appeal periods without any
appeal having been filed or served), for the sale of the Premises
to the Buyer pursuant to Section 16-43 of the Connecticut General
Statutes, and upon final approval by the DPUC, as defined above, of
a ratemaking accounting treatment for the net gain from such sale
reasonably satisfactory to the Seller. Such satisfaction shall be
deemed to have been obtained if the Seller does not notify the
Buyer to the contrary in writing within five (5) business days from
the DPUC's Final approval of the sale and ratemaking accounting
treatment. Seller agrees to submit this Agreement to the DPUC for
approval within 35 days after publishing notice of its intention to
sell in accordance with Section 16-50c(b)(2) of the Connecticut
General Statutes, to diligently pursue such application and to
supply to the Buyer copies of all appraisals of the fair market
value of the Premises obtained by the Seller to be submitted to the
DPUC in connection with he Seller's application for approval. If
the Seller shall not have received such Final approval by November
14, 1997, the Seller shall return to Buyer all sums paid hereunder,
including the Xxxxxxx Money deposit and the Supplementary Deposit
contemplated in Paragraphs 1(a) and 1(b) hereof, respectively,
together with interest thereon, within seven (7) days after said
date and, upon such return of said sums, this Agreement shall
terminate and the obligations of the parties hereunder shall
terminate and come to an end.
13. BUYER CONTINGENCIES
(a) Notwithstanding any provision of this Agreement to the
contrary, the Buyer's obligation to purchase the Premises hereunder
is conditioned upon the Buyer obtaining Final approval (which term
shall have the meaning set forth in Paragraph 12(b) hereof)
reasonably satisfactory to the Buyer of federal, state and local
land use regulatory authorities, including without limitation an
appropriate change in the Town of Seymour zoning regulations
applicable to the Premises, the Traffic Commission of the State of
Connecticut, the United States Army Corps of Engineers, and the
Town of Seymour Planning and Zoning and Inlands Wetlands
Commissions necessary for the development on the Premises of an 18
hole golf course together with not less than 180 active adult
residential building lots with detached single family dwellings and
a club house and catering facility on or before December 31, 1998.
The Buyer agrees to submit and diligently pursue timely and
complete applications to the Traffic Commission of the State of
Connecticut for approval of the Buyer's above proposed use of the
Premises as soon as practicable after the execution of this
Agreement. The Buyer agrees to submit and diligently pursue timely
applications for all other such approvals as soon as practicable
after the earlier of (a) the date Seller provides to the Buyer
copies of the appraisals contemplated in Paragraph 12(b) hereof,
but only if the average fair market value for the Premises
disclosed in those appraisals is less than or equal to than the
Purchase Price for the Premises herein, or (b) if the said average
fair market value disclosed in said appraisals is not less than or
equal to the said Purchase Price, as soon as practicable after the
Final approval of the sale of the Premises by the DPUC as
contemplated in Paragraph 12(b) hereof. Seller agrees to provide
reasonable cooperation to the Buyer in connection with the Buyer's
applications. If the Buyer shall not have received all such Final
approvals by December 31, 1998, the Buyer may, upon written notice
submitted to the Seller not later than December 31, 1998, terminate
this Agreement and, subject to the remaining provisions of this
Paragraph 13(a), the obligations of the parties hereunder shall
terminate and come to an end. In the event that the Seller
Contingencies described in Paragraph 12 hereof have been satisfied,
or the date for their satisfaction has not yet occurred, and this
Agreement is terminated in accordance with the provisions of this
Paragraph 13, the Seller shall return to the Buyer the
Supplementary Deposit paid in accordance with Paragraph 1(b)
hereof, together with interest thereon and the Seller may retain
the Xxxxxxx Money deposit paid in accordance with Paragraph 1(a)
hereof, together with the interest thereon. If this Agreement is
terminated or the purchase and sale of the Premises contemplated
herein does not take place for any reason other than the failure of
the Seller to comply with the provisions of this Agreement, the
Buyer shall, upon the request of the Seller, provide to the Seller
as soon as practicable after such request copies of all documents,
plans, drawings, letters, notebooks, reports, or other papers or
electronic media detailing the Buyer's proposed development of the
Premises and all applications for the approvals contemplated in
this Paragraph 13.
Notwithstanding the provisions set forth in this Paragraph
13(a) above, if (i) the Buyer shall have obtained all of the
approvals contemplated in this Paragraph 13(a) on or before
December 31, 1998, but one or more of the said approvals has not
become Final solely because a third party has initiated an appeal
of such approval to a court of competent jurisdiction, in lieu of
terminating this Agreement as contemplated above, the Buyer may, by
written notice submitted to the Seller not later than December 31,
1998, elect to extend this Agreement and the date for the Closing
to the earlier of (A) December 31, 2000, or (B) the date which
thirty (30) days after all such appeals have been determined
finally in a manner reasonably satisfactory to the Buyer, and (ii)
if, prior to December 31, 1998, one or more of the Buyer's
applications for approval contemplated in this Paragraph 13 is
denied, the Buyer may, by written notice submitted to the Seller
not later than December 31, 1998, elect to appeal, at Buyer's
expense, any such denial and to extend this Agreement and the date
for the Closing to the earlier of (X) December 31, 2000, or (Y) the
date which is thirty (30) days after all such appeals have been
determined finally in a manner reasonably satisfactory to the
Buyer, provided however, that if the Closing shall occur after
December 31, 1999 by reason of the Buyer's election pursuant to
this Paragraph 13(a), the Purchase Price to be paid by the Buyer
for the Premises shall be increased by twenty thousand dollars
($20,000) for each month, or portion thereof, which passes from
December 31, 1999 until the Closing, which amounts shall be payable
monthly, in advance, and shall be deemed to be additional Xxxxxxx
Money deposit for all purposes under this Agreement.
(b) Seller agrees that it shall, at its sole expense,
construct a sanitary sewer line with capacity reasonably
satisfactory to the Buyer's engineer to serve the Buyer's proposed
development on the Premises of a golf course, not less than 180
detached single family residential units and a club house and
catering facility, which sanitary sewer line shall connect to the
sanitary sewer system of the Seymour Water Pollution Control
Authority through an easement over the Seller's property adjacent
to the Premises located on Cemetery and Xxxxxxxx Roads. The
sanitary sewer to be constructed by the Seller shall end at the
boundary of the Premises on Cemetery Road. It shall be a condition
of the Closing herein that (i) the Seller shall have obtained, at
its expense, final design plans and local approvals necessary for
the construction of the sanitary sewer extension not later than
ninety (90) days after the satisfaction of the Seller Contingencies
contemplated in Paragraph 12 hereof, and (ii) Seller shall have
begun construction of the sanitary sewer line on or before the date
of the Closing. The Seller agrees to pursue diligently all
governmental approvals necessary for the construction of the sewer
line and shall provide reasonable surety for the completion of the
sewer line, provided that the Buyer agrees that if the Town of
Seymour shall require a bond for the completion of the sewer line,
such surety shall be deemed to satisfy the surety required herein.
14. EFFECT AND ASSIGNMENT
The covenants and agreements herein are to be binding upon and
inure to the benefit of the parties hereto, their respective heirs,
representatives, successors and assigns and shall survive the
delivery of the deed hereunder. No assignment of this Agreement by
the Buyer shall be valid unless the Seller assents thereto in
writing, provided however, that the Buyer may, subject to any
approval as may be required by law, including without limitation,
the provisions of Section 16-1-61 of the Regulations of Connecticut
State Agencies, assign its rights under this Agreement to an entity
which is an Affiliate of the Buyer. For the purposes hereof, an
Affiliate is a person or entity that directly controls, or is
controlled by, or is under common control with the Buyer and which
has, in the reasonable opinion of the Seller, the financial
capacity to comply with the Buyer's obligation hereunder equal to
or greater than the financial capacity of the Buyer. This
Agreement constitutes the entire agreement between the parties and
may not be changed except by a contract in writing signed by the
party or parties against which enforcement of any waiver, change,
modification, extension, estoppel, or discharge is sought.
Whenever used, the singular number shall include the plural, the
plural the singular, and the use of any gender shall be applicable
to all genders.
15. NO VIOLATIONS
The Seller represents that at the time of the closing of
title, there shall exist with respect to the Premises no violations
of government (including environmental and zoning and planning)
rules, regulations or limitations, unless same have become legally
non-conforming, and no violations of any restrictive covenant,
agreement or condition subject to which the title is to be conveyed
in accord with the terms hereof, provided however, the sole remedy
for any violation of the representations contained in this
Paragraph 15 shall be treated as if such violation were a defect in
title, and the Buyer shall have only the remedies set forth in
Paragraph 5 hereof.
16. OWNERSHIP
Seller represents that at the signing of this Contract, the
Seller is the record owner in fee simple of the Premises being
conveyed herein and is not under any incapacity, other than the
statutory provisions set forth in Section 12 hereof, which prevents
it from entering into this Agreement or complying with the terms
thereof.
17. NOTICES
Any notice provided for by this Agreement and any other notice
or communication which either party may wish to send to the other
(collectively "Notices") shall be in writing and given by personal
delivery or sent by (a) United States registered or certified mail,
return receipt requested, (b) or a nationally recognized commercial
courier such as Federal Express Corporation for overnight delivery,
in a properly sealed envelope, postage or fees, as the case may be,
prepaid, addressed to the party for which such notice is intended,
at such party's address set forth below or at any other address
provided in writing by such party to the other by notice complying
with this Paragraph 17:
If to Buyer, to:
M/1 HOMES, LLC
000 Xxxxxxx Xxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
With a copy to:
Xxxxxxx X. Tower, Esquire
Willinger, Shepro, Tower & Xxxxx
000 Xxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxx 00000
If to the Seller, to:
Birmingham Utilities, Inc.
000 Xxxxxx Xxxxxx
X.X. Xxx 000
Xxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxx Xxxxxx-Xxxx, Chairwoman
With a copy to:
Xxxxxx X. Xxxxxxx, Esq.
Xxxxx Xxxxxx and Xxxxxx
000 Xxxxxx Xxxxxx, XxxxXxxxx I
Xxxxxxxx, Xxxxxxxxxxx 00000
18. BUYER'S FINANCIAL CONDITION DOCUMENTATION
At or prior to the time of the payment of the Supplementary
Deposit contemplated in Paragraph 1(b) hereof, the Buyer (or its
assignee, if applicable) shall submit documentation (the
"Documentation") which shall demonstrate and substantiate to the
Seller's reasonable satisfaction that the Buyer has the financial
ability to purchase the Premises in accordance with the terms of
this Agreement. In the event that the Documentation fails to
reasonably satisfy the Seller concerning Buyer's (or its
assignee's, if applicable) financial capacity, the Seller may
terminate this Agreement, return to the Buyer the Supplementary
Deposit (if paid) contemplated in Paragraph 1(b) and retain the
Xxxxxxx Money deposit contemplated in Paragraph 1(a) as
liquidated damages. Notwithstanding the above termination
rights, prior to such termination, the Seller shall give notice
to Buyer of the specific inadequacies of the information set
forth in the Documentation, and give Buyer a reasonable period,
in no event less than ten (10) days, to correct or supplement the
Documentation. The parties agree that the Buyer may, by way of
illustration but not limitation, obtain financing in part from
one or more lenders, and may obtain cash infusions from one or
more investors (whether by equity participation or loan).
IN WITNESS WHEREOF, the parties hereto have hereunto set
their hands and seals as of the day and in the year hereinbefore
indicated.
SIGNED, SEALED AND DELIVERED
IN THE PRESENCE OF:
As to Seller:
BIRMINGHAM UTILITIES, INC.
ID# 00-0000000
__________________________ By____________________________
Xxxxx Xxxxxx-Xxxx
Its Chairwoman
__________________________ Duly Authorized
As to Buyer:
M/1 HOMES, LLC
__________________________ By____________________________
Xxxxx Tantangelo
Its Member
__________________________ Duly Authorized
STATE OF CONNECTICUT)
) ss: Xxx Xxxxx Xxxxx 00, 0000
XXXXXX XX XXX XXXXX )
Personally appeared Xxxxx Xxxxxx-Xxxx, Chairwoman of
BIRMINGHAM UTILITIES, INC., signer and sealer of the foregoing
instrument, and acknowledged the same to be her free act and deed
and the free act and deed of said BIRMINGHAM UTILITIES, INC.,
before me.
__________________________________
Commissioner of the Superior Court
STATE OF CONNECTICUT)
) ss: Xxx Xxxxx Xxxxx 00, 0000
XXXXXX XX XXX XXXXX )
Personally appeared Xxxxx Tantangelo, Member of the M/1
HOMES, LLC, signer and sealer of the foregoing instrument, and
acknowledged the same to be his free act and deed and the free
act and deed of said M/1 HOMES, LLC, before me.
__________________________________
Commissioner of the Superior Court
SCHEDULE A
[MAP NOT INCLUDED]
SCHEDULE B
None.
SCHEDULE C
RIDER TO PURCHASE AND SALE AGREEMENT ("Agreement")
BIRMINGHAM UTILITIES, INC.
(SELLER)
AND
M/1 HOMES, LLC
(BUYER)
DATED: March 18,1997
1. Seller represents and warrants, in order to induce Buyer to enter
into the Agreement (as amended by this Rider), unless otherwise stated, at the
time of closing of title that:
(i) No utilities cross the property of any adjoining owner in
servicing the premises being conveyed herein, except as specifically set
forth herein; and no utilities cross the premises being conveyed herein and
serve the property of any adjoining owner except as specifically set forth
herein.
(ii) There are no municipal assessments, and or installments,
community or association dues and the premises does not lie within any special
tax district in which taxes or assessments are levied separate and distinct
from municipal taxes.
2. As part consideration for the sale and purchase of the subject
premises, the Seller hereby agrees to:
(i) Remove from the premises, all items of personal property other
than those specifically included in the sale.
(ii) Execute at the time of closing of title hereunder, an affidavit
verifying the nonexistence of mechanics and materialmen liens and lien
rights, tenants rights and security interests in personal property and
fixtures being sold with the premises.
(iii)Deliver exclusive possession of the premises being conveyed
hereunder to the Buyer.
(iv) Deliver, if the Seller is a corporation, to the Buyer a
corporate resolution and other appropriate proof certifying that said
corporation is a duly formed and validly existing corporation, authorized to
do business in the State of Connecticut, and has good and full right and
authority to execute the terms of the Agreement (as amended by this Rider)
and to convey the premises to the Buyer as stated hereunder.
3. In the event it is expressly provided in the Agreement (as amended by
this Rider) that the premises are to be conveyed subject to any provisions
of any easements, rights of way, covenants, restrictions or agreements, the
Buyer shall have no obligation to purchase the subject premises in the event
any of the same render title to the premises unmarketable or in the event any
of the same restrict the use of the premises as contemplated herein.
4. This Agreement is expressly contingent upon the Buyer's ability to
procure a title insurance policy in form and substance reasonably satisfactory
to the Buyer and Buyers mortgage institution, issued by a title insurance
company approved by the Buyer in the amount of the purchase price (fee
policy), insuring the Buyer without exceptions other than those exceptions
to title set forth in this Agreement and other than those exceptions
approved by the Buyer. Said policy shall be issued at standard rates and all
fees incurred for the issuance of the same shall be the sole expense of the
Buyer. The Seller agrees to execute all affidavits and documents required by
the title insurance company to enable the company to insure over any survey,
rights of others in possession of the premises, mechanic's liens rights and
any other exceptions not approved by the Buyer, or permitted by the Agreement.
Seller shall have the same opportunity to cure, as set forth in paragraph 5 of
the Agreement.
5. The Seller hereby grants the Buyer and Buyer's agents, representatives
and employees the right to enter the subject premises at any and all times
after the execution and delivery of the Agreement (after prior Notice to
Seller, and in sole discretion of Seller in the presence of the Seller and/or
its agent) in order to make physical inspections of the premises, including
subsurface tests, utility surveys, sewage disposal surveys, perimeter
surveys, inspections and appraisals and to conduct and carry out any and all
other engineering studies and operations Buyer may desire, all at Buyers sole
cost and expense. The Buyer agrees to indemnify the Seller for any claim made
against Seller as a result of Buyers entry (including acts of Buyer's agents,
contractors and/or employees) and further agrees to restore the premises to
substantially the condition the same were in prior to the taking of said
tests and surveys.
6. Notwithstanding any provisions contained in the Agreement which may
allow the Seller to postpone the closing of title beyond 30 days after the
scheduled closing, in the extent the Seller shall postpone the closing of
title for any reason whatsoever, which postponement would cause the closing
date to occur subsequent to the expiration date of the mortgage commitment
obtained by the Buyer, and in the event such lending institution increases
the rate of interest, or the mortgage origination fees or other comparable
charges, or the monies once committed become unavailable, the Buyer shall
have the right to terminate this Agreement and receive a return of all
deposit monies paid hereunder without interest.
7. The Seller agrees not to further voluntarily encumber the premises and
to notify the Buyer immediately of any matters including, but not limited to,
attachments, liens and zoning matters which may affect the premises during
the pendency of this Agreement.
8. Intentionally deleted.
9. The Seller represents that Seller is not a foreign person as defined
in The Foreign Investment in Real Property Tax Act ("FIRPTA"), as amended by
The Tax Reform Act/Deficit Reduction Act of 1984 ("DEFRA"). Seller agrees to
execute, at or before the time of closing, an affidavit disclosing Seller's
United States taxpayer identification number and certifying that Seller is
not a foreign person. Said affidavit shall be in form and content acceptable
to Buyer. The Seller shall indemnify and hold the Buyer harmless from any loss,
damage or expense, including reasonable attorney fees, Buyer may incur due to
misrepresentation of the statements contained in this paragraph. In the
event Seller fails to execute and deliver to Buyer the aforementioned
affidavit, the Buyer shall withhold from the Seller ten (10%) percent of the
gross amount realized on the disposition and remit said sum to the Internal
Revenue Service to be applied toward the Seller's tax liability in
accordance with the requirements of said Acts. The foregoing representations
shall survive the closing of title and delivery of deed hereunder.
10. The Seller represents that Seller has not caused any "spill" as
such term is defined in Public Act No. 87-475 of the State of Connecticut,
entitled "An Act Concerning The State's Lien For Reimbursement For Expenses
Incurred In Containing, Removing or Mitigating Hazardous Waste" or any
amendments, substitutions or successor statute thereof. Seller further
represents that Seller has no knowledge of any discharge, spillage,
uncontrolled loss, seepage or filtration of oil or petroleum or chemical
liquids or solid, liquid or gaseous products or hazardous waste impacting
the subject premises. The Seller shall indemnify and hold the Buyer and
Buyer's mortgagee harmless from any loss, damage or expense, including
reasonable attorney fees, Buyer and Buyer's mortgagee may incur due
to misrepresentation of the statements contained in this paragraph. The
foregoing representations shall survive the closing of title and delivery of
deed hereunder for three (3) years.
The Seller agrees to execute an affidavit in form substantially as
appended hereto marked Exhibit A-A.
11. In the event of a conflict between the terms of this Rider and the
Agreement of which it is a part, the terms of this Rider shall control.
SELLER:
BIRMINGHAM UTILITIES, INC.
By:
Its
Duly authorized
BUYER:
M/1 HOMES, LLC
By:
Its
Duly authorized
EXHIBITA-A
AFFIDAVIT
STATE OF CONNECTICUT )
) SS
COUNTY OF )
being duly sworn, deposes and says:
1. I am familiar with the premises certain 245 acres of unimproved land in
Seymour, Connecticut, being more particularly described on Schedule A
attached hereto and made a part hereof.
2. From , 19 , until the date of this affidavit, I have
been the of the owner of the Premises.
3. No part of the Premises is in violation of any statute, law, rule or
regulation of, or under any remediation or monitoring order of, the
Environmental Protection Agency ("EPA"), Connecticut Department of
Environmental Protection ("DEP"), or any other municipal, state, or
federal agency or authority having jurisdiction thereof, in connection
with air compliance, noise compliance, hazardous materials, waste
management, water compliance and/or any other environmental concern.
4. There has been no determination by the EPA or any court of law that the
Owner of the premises has caused any discharge, spillage, loss, seepage
or filtration of hazardous waste, oil, petroleum, chemical liquids, or
solid, liquid, or gaseous products, within the meeting of any federal
statute, rule or regulation, on the premises or on any other property
owned or leased by the Owner.
5. There has been no determination by the Commissioner of Environmental
Protection or any court of law that the Owner of the Premises has caused
any discharge, spillage, loss, seepage or filtration of hazardous waste,
oil, petroleum, chemical liquids or solid, liquid or gaseous products,
within the meaning of Connecticut General Statutes Section 22a-1 34, et
seq., as amended, on the Premises, or any other property owned or leased
by the Owner in the State of Connecticut.
6. No monies have been expended nor has any contract been entered into with
any party, including but not limited to the Commissioner of Environmental
Protection, for which a lien could arise under Connecticut General
Statutes Section 22a-1 34, et seq., as amended, with respect to the
Premises.
7. During the period of the Owner's ownership of the Premises, the Premises
have been occupied by the following occupants: None.
8. During the period of the Owner's ownership of the Premises, the Premises
have been used only for the following uses, businesses, activities: Public
drinking water supply water shed.
9. The current use of the Premises is as follows: Public drinking water supply
water shed.
10. Prior to the Owner taking title to the Premises, the premises had been to
the best of the knowledge of the undersigned used for the following
purpose(s): farm land or forest land.
11. To the best of my knowledge and belief, there has been no discharge,
spillage, loss, seepage or filtration of oil, petroleum, chemical liquids
or hazardous waste on or abutting the Premises except as follows: None.
12. To the best of my knowledge and belief, there exists no environmental site
assessments concerning the Premises.
13. To the best of my knowledge and belief, the Premises comply with all
applicable regulations of any federal, state or governmental agency,
including the Connecticut Department of Environmental Protection.
14. The following permits have been issued by federal, state and/or local
governmental agencies concerning the Premises or any operations conducted
thereon, copies of which permits are attached: None.
15. To the best of my knowledge and belief, the Premises have never been
investigated by any federal, state or local agency for possible illegal
storage or dumping of oil, petroleum, chemical liquid or hazardous waste
except as follows: None.
16. There are no underground storage tanks on the Premises, and no oil,
petroleum, chemical liquids or hazardous waste is stored on the Premises.
17. The Premises is not an "establishment" as defined by Connecticut General
Statutes Section 22a-134, et seq., as amended.
18. The undersigned makes the aforementioned representations and
indemnification in order to induce M/1 Homes, LLC to purchase the Premises
with the knowledge and understanding that M/1 Homes, LLC is relying on the
truth and accuracy of the same.
Subscribed and sworn to before me this day of , 1997.
Commissioner of the Superior Court
Notary Public
