Exhibit No. 10(i)
AGREEMENT OF PURCHASE AND SALE
(FINISHED SF, CONDOMINIUM AND TH LOTS-BIRD RIVER,
BALTIMORE COUNTY, MARYLAND)
THIS AGREEMENT OF PURCHASE AND SALE (this "Agreement"), the
Effective Date of which is October 21, 2003, is entered into by
FRP BIRD RIVER, LLC, a Maryland limited liability company
("Seller") and THE ▇▇▇▇▇▇ GROUP, INC., a Maryland corporation
("Buyer"). In consideration of the sum of Ten Dollars ($10.00)
paid by the Parties each to the other, the receipt and
sufficiency of which are hereby acknowledged, and of the mutual
promises contained in this Agreement, Buyer and Seller (sometimes
collectively referred to as "Parties") agree as follows:
1. DEFINITIONS: Capitalized terms that are not defined when
first used in this Agreement have the meanings set forth below.
BROKER: H. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company, Inc.
CLOSING: The act of settlement of the
purchase and sale of one or more
Lots at which Seller conveys title
to Buyer by delivery of a deed and
Buyer delivers the Purchase Price
for the Lots to Seller. The
Parties contemplate that there will
be multiple Closings.
DEPOSIT: $3,000,000, to be paid as provided
in Section 3 below.
EFFECTIVE DATE: The date on which both Parties have
delivered to the other a fully
executed original of this
Agreement. The Effective Date
shall be filled in above upon
establishment of the Effective
Date.
ESCALATOR: 4% per annum, simple interest
ESCROW AGENT: Maryland Commercial Title Company
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
FEASIBILITY PERIOD: The period commencing on the
Effective Date and ending ten (10)
days thereafter.
HOA DOCUMENTS: The documents creating or otherwise
relating to the homeowners'
association for the Property,
including the declaration and any
other related documents required by
law to establish the homeowners'
association and any amendments,
modifications
or supplements to
such documents which documents
shall be subject to Buyer's
reasonable prior approval.
LOTS: Lot descriptions are to be
determined based on final approved
PUD (hereinafter defined) and
subdivision plat for the Property.
The tentative plan is as follows:
-One hundred seven (107) 60'x100'
Single family detached lots. ("Type
A")
-Seventy-seven (77) 28' x 90'
garage townhome lots ("Type B")
-Sixty-four (64) 20' x 70' rear
entry garage townhome lots ("Type
C")
-Eighty-eight (88) 25' x 70'
stacked townhome condominium lots
("Type D")
MINIMUM BUILDING ENVELOPE: The building envelope for each
lot. Type A shall be 40 feet wide
and 52 feet deep. Type B shall be
28 feet wide and 54 feet deep. Type
C shall be 20 feet wide and 40 feet
deep. Type D shall be 25 feet wide
and 52 feet deep for each unit.
PROPERY: The real property containing
approximately 121.033 acres located
in Baltimore County, Maryland as
more particularly described on
Exhibit A attached hereto, which is
or will be subdivided into a
minimum of 292 lots and all
easements, rights of way, permits,
approvals, privileges and
entitlements appurtenant thereto
and all right, title and interest
in and to all streets and water
courses adjacent to, abutting or
serving the real property.
PURCHASE PRICE: To be determined based on the per
Lot purchase price set forth on
Exhibit B, multiplied by the actual
number of approved Lots for each
product type. In no event,
however, shall the aggregate
Purchase Price, without escalation,
be an amount less than $28,705,000
(the "Minimum Price"). In the
event that the aggregate Purchase
Price of the Lots is less than the
Minimum Price, the Buyer shall pay
the difference between the Purchase
Price and the Minimum Price at the
Final Closing (hereinafter
defined).
PURCHASE PRICE PER LOT: See Exhibit B
PURCHASE SCHEDULE: See Exhibit B
RECREATIONAL LOT: Designated on Exhibit A attached
hereto. The Recreational Lot shall
be transferred to the homeowner's
association, condominium
association or master association
to be created for no consideration
following the sale of all Lots in
the first pod (as shown tentatively
on Exhibit A) and once the
Recreational Lot is no longer
necessary for the completion of
Seller's development obligations
under this Agreement.
▇▇▇▇▇▇ PRODUCT: The home types that Buyer intends
to build on the Lots.
SCHEDULE OF DEVELOPMENT: Exhibit G, which details the
Parties' responsibilities with
regard to the development of the
Lots.
SUBDIVISION: The residential subdivision known
as Windless Run located in
Baltimore County, Maryland of which
the Property is a part.
2. PURCHASE AND SALE. Subject to the terms and conditions of
this Agreement, Seller agrees to sell to Buyer, and Buyer agrees
to purchase from Seller, the Property in fee simple.
3. DEPOSIT.
(a) Delivery of Deposit. The Deposit shall be paid in
installments as follows:
i) Within five (5) days following the Effective Date, Buyer
shall deliver to the Escrow Agent a deposit in the amount of
$100,000.00 in the form of an irrevocable letter of credit in the
form attached hereto as Exhibit J from a lending institution
acceptable to Buyer and Seller (the "Letter of Credit").
ii) Within five (5) days following the date that Baltimore
County grants preliminary plan approval for the subdivision as
acceptable to Buyer, Buyer shall deliver to the Escrow Agent an
additional deposit of $725,000.00. in the form of a Letter of
Credit.
iii) Within five (5) days following the date that Seller has
filed a Record Plat for the Property (as defined in Section 8(c)
hereof) as acceptable to Buyer, Buyer shall deliver to the Escrow
Agent an additional deposit of $725,000.00 in the form of a
Letter of Credit.
iv) Within five (5) days following the date that Seller has
commenced utility installation work at the Property following
obtaining all necessary permits and posting all required bonds
with Baltimore County, Buyer shall deliver to the Escrow Agent an
additional deposit of $725,000.00 in the form of a Letter of
Credit.
v) Within five (5) days following the date that Seller has
commenced the installation of curb and gutter for the Property
following obtaining all necessary permits and posting all
required bonds with Baltimore County, Buyer shall deliver to the
Escrow Agent an additional deposit of $725,000.00 in the form of
a Letter of Credit.
(b) TERMS OF ESCROW. If a dispute arises between Seller and
Buyer as to whether, when or to whom the Deposit is to be
disbursed by Escrow Agent, Escrow Agent may, in the exercise of
its sole discretion, in lieu of disbursing the Deposit to a party
hereto, pay the Deposit to the Clerk of the Circuit Court for
Baltimore County or any other court having jurisdiction over
disputes between the parties hereto with respect to this
Agreement, under such interpleader action or other legal or
equitable proceeding as Escrow Agent deems appropriate, pending
such court's resolution of such dispute. If Escrow Agent takes
such action, it shall have no further obligation hereunder
concerning the Deposit or otherwise. Escrow Agent shall have no
personal liability on account of its duties hereunder in the
absence of its negligence, fraud or willful misconduct, and
Seller and Buyer shall jointly and severally defend, indemnify
and hold harmless Escrow Agent against and from the same. Buyer
and Seller shall share equally the cost, if any, incurred by
Escrow Agent in performing its duties hereunder (except that if
any such interpleader action or other proceeding is initiated in
any such court by Escrow Agent or any party hereto to determine,
inter alia, to whom Escrow Agent is to deliver the Deposit, then
all of the attorneys' fees and other costs incurred by Escrow
Agent in connection therewith shall be paid (a) by Seller, if
such court determines that Buyer is entitled to the Deposit; or
(b) by Buyer, if such court determines that Seller is entitled to
the Deposit). Escrow Agent shall be entitled to no fee for
performing its duties hereunder. The respective rights and
obligations of the parties hereto under this subsection shall
survive Closing or any termination of this Agreement before
Closing.
4. PRELIMINARY MATTERS.
(a) FEASIBILITY STUDY. Buyer shall have the right during the
Feasibility Period, to investigate title and to make sure
investigations, studies and tests with respect to the Property as
Buyer deems necessary or appropriate to determine the feasibility
of purchasing the property. At any time prior to the expiration
of the Feasibility Period, Buyer may, in its sole discretion,
terminate this Agreement by written notice to Seller. Buyer's
failure to provide notice to Seller of Buyer's intention to
terminate or to continue under the terms of this Agreement before
the expiration of the Feasibility Period shall be deemed to be
Buyer's election to terminate this Agreement. Upon termination
of this Agreement, any Deposit shall be refunded to Buyer.
Thereafter no Party hereto shall have any further obligation or
liability to the other with respect to the transactions
contemplated by this Agreement except for Buyer's indemnification
of Seller pursuant to subsection 4(e) hereof, which shall survive
termination of this Agreement. No
examination of the Property will be deemed to constitute a waiver or
relinquishment on Buyer's part of its rights to rely on the covenants,
representations, warranties and agreements made by Seller or upon
the tests, reports, plans, drawings and agreements provided to
Buyer by Seller.
(b) CREATION OF PUD. The rights and obligations of Seller under
this Agreement are specifically contingent upon the approval by
Baltimore County of a Planned Unit Development ("PUD") with
respect to the Property which will permit the development and use
of the Property for a minimum of 292 Lots. Commencing with the
completion of the comprehensive zoning map process, Seller shall
use commercially reasonable efforts to obtain approval of a PUD
which will permit the development and use of the Property in
accordance with the terms of this Agreement. In the event that
Seller is unable to have an approved PUD which will permit the
minimum number of Lots and the types of ▇▇▇▇▇▇ Product
contemplated by this Agreement on or before July 1, 2006, Seller
shall have the right to terminate this Agreement by providing
Buyer with written notice thereof at any time prior to the
approval, and the Deposit shall be immediately returned to Buyer.
(c) CONSTRUCTION OF ROUTE 43; PUBLIC WATER AND SEWER LINES. The
rights and obligations of the Seller under this Agreement are
expressly contingent upon the construction of the proposed Route
43 and Seller's ability to have vehicular and water and sewer
connection access from the Property to the completed Route 43 at
a commercially reasonable cost, in Seller's sole discretion. In
the event that Route 43 is not completed, or if Seller is unable
to have sufficient or appropriate vehicular access or connections
for public water and sewer lines from the Property to Route 43 to
support the development of the Property as contemplated by this
Agreement by July 1, 2007, at a commercially reasonable cost, in
Seller's sole discretion, Seller shall have the right, at its
option, to terminate this Agreement at any time thereafter by
providing Buyer with written notice of its election, and the
Deposit shall be immediately returned to Buyer, such termination
must occur prior to the satisfaction of the conditions contained
in this Section 4(c). Notwithstanding the foregoing, should
Seller choose to terminate this Agreement pursuant to this
Section 4(c), Seller shall be prohibited for a period of thirty-
six (36) months from the date of termination from entering into
any agreement for the sale of residential lots on the Property
without first giving Buyer thirty (30) days' notice and allowing
Buyer at Buyer's sole discretion within such thirty (30) day
period, to reinstate this Agreement without alteration.
Notwithstanding anything else in this Agreement, this section
shall survive for three (3) years after termination of this
Agreement
(d) WATER AND SEWER FACILITIES CHARGES. It is the intention of
Seller to subject the Lots to one or more Declaration(s) of
Deferred Water and Sewer Charges (the "Declarations"), which
Declarations shall give Seller or its assigns the right to
receive certain payments to cover or defray the cost of
installing all or part of the public water or sewer facilities
constructed by Seller not to exceed Seven Hundred Fifty Dollars
($750.00) annually over a forty (40) year period. The
Declarations which will affect any Lot will be recorded prior to
the sale of such Lot. Buyer agrees that the sale of Lots to any
builder or to a homebuyer will disclose the existence of the
Declarations and will include an addendum to any contract of sale
in the form attached hereto as Exhibit D, which has been
completed to conform to the Declarations. In addition, any plat
of the Property shall include a notice stating that "the Lots
created by this subdivision plat are
subject to a fee or assessment to cover or defray all or part of the
developer's cost of installation of water and sewer facilities, pursuant
to 26-246 of the Baltimore County Code." In the event that Buyer bills
any homeowner for such water and sewer assessments, the invoice
shall include the annual amount due, the remaining term, the
total amount of any outstanding principal balance, and notice
that all or part of the assessments can be prepaid at any time
and without penalty by discounting the amortized payments at an
interest rate of six percent (6%) to determine their equivalent
present value. The Buyer shall immediately turn over to Seller
any such amounts received by Buyer. Buyer shall indemnify Seller
for any losses Seller may incur as a result of Buyer's failure to
comply with the terms of this section. The rights and
obligations contained in this section shall survive Closing.
(e) RIGHT OF ENTRY. Seller shall permit Buyer, its employees,
agents, contractors and subcontractors to enter upon the Property
and while thereon make surveys, take measurements, perform test
borings or other tests of surface and subsurface conditions, make
engineering, environmental and other studies and inspect the
Property. Seller shall cooperate with Buyer and shall provide to
Buyer within five (5) days after the Effective Date at no cost to
Seller, all engineering, environmental, economic, marketing,
soils and other studies, surveys, maps, drawings, plans, reports
and appraisals that relate in any way to the Property and other
pertinent information relating to the Property which are in
Seller's possession or control ("Seller's Information"). Seller
makes no representations or warranties as to the accuracy or
completeness of the Seller's Information, it being understood
that Seller is providing this information only for Buyer's
convenience. Buyer will rely on information obtained from its
own sources and shall independently verify the accuracy of
Seller's Information. If Buyer exercises its rights under the
provisions of this subsection, it shall (i) keep the Property
free of any liens or third-party claims resulting therefrom; (ii)
indemnify Seller against any liability or expense for injuries to
or death of persons or damage to property arising from the
exercise of the rights hereunder that are not the result of any
act or omission of Seller or Seller's agents, employees or
contractors and (iii) if Closing does not occur for any reason
(other than a default by Seller in performing its obligations
hereunder) on any Lot affected by such entry, restore as nearly
as practicable such Lot substantially to its condition
immediately before such exercise. Before the entry by Buyer, its
agents, employees or contractors upon the Property, Buyer shall
deliver to Seller a certificate from its liability insurance
company naming Seller as an additional insured under Buyer's
public liability and property damage insurance policy covering
the Property against claims for personal injury or death and
property damage occurring upon, in or about the Property, which
insurance shall afford protection to the limit of not less than
$2,000,000.00 arising out of any one occurrence and against
property damage to afford protection to the limit of not less
than $2,000,000.00, or such insurance may be for a combined
single limit of $3,000,000.00 per occurrence. If Buyer elects to
terminate this Agreement for any reason, other than a default by
Seller, Buyer shall, within three (3) days following such
termination, deliver to Seller all tests, studies, reports and
other information obtained by Buyer with respect to the Property,
all without charge to Seller and without representation or
warranty.
(f) SIGNS; SALES TRAILER; STORAGE OF EQUIPMENT. Buyer shall
have the right to place signs and a sales trailer on the Property
and to conduct marketing activities thereon, all in accordance
with the requirements of any applicable governmental authority,
and in areas
approved by the Seller, in Seller's reasonable discretion. Seller
shall also provide, at no cost to Buyer, adequate space on the Property
for storage of construction equipment and materials and temporary power
that Buyer and its contractors and their subcontractors may from time to
time require, which power shall be used at the sole cost of Buyer.
Such space shall be located in an area mutually acceptable to
Buyer and Seller, easily accessible to Buyer and its contractors
and their subcontractors and located so as not to be detrimental
to the marketing of Seller's or Buyer's homes or unreasonably
interfere with the Schedule of Development. In connection with
Buyer's exercise of its rights hereunder, Buyer shall (i) keep
the Property free of any liens or third-Party claims resulting
therefrom and shall bond any such liens which are not removed
within ten (10) days of their imposition, (ii) clean up any
debris from the Property and restore the Property after Buyer's
use if Buyer does not purchase it, and (iii) indemnify Seller
against any liability or expense for injuries to or death of
persons or damage to property arising therefrom that are not the
result of any act or omission of Seller or Seller's agents,
employees or contractors.
(g) SURVIVAL. The indemnification provisions of this section
shall survive the termination of this Agreement.
5. CLOSING.
(a) Closings on Lots shall take place in accordance with the
schedule attached hereto as Exhibit B (the "Purchase Schedule")
within thirty (30) days after all conditions precedent to Closing
described in Section 8 have been satisfied. Closing shall occur
at the offices of Buyer or Buyer's title insurance company during
normal business hours or at such other location upon which the
Parties agree.
(b) Subject to the adjustments provided for herein, Buyer shall
pay at each Closing the Purchase Price Per Lot, plus
reimbursements for sewer and water allocations for each Lot and
actual fees paid to Baltimore Gas and Electric allocated on a per-
Lot basis by certified, cashier's or title company check or wired
funds and any fees paid by Seller which are the responsibility of
Buyer. None of the Deposit shall be credited against the
payments due at Closing. Upon the sale of the one hundred
fiftieth (150th) Lot, and provided that Buyer is not in default
under this Agreement, Escrow Agent shall return to Buyer Letters
of Credit representing One Million Dollars ($1,000,000) of the
Deposit. Upon the sale of seventy-five percent (75%) of the
final approved Lots, and provided that Buyer is not in default
under this Agreement, the Escrow Agent is authorized to return to
Buyer Letters of Credit representing another One Million Dollars
($1,000,000) of the deposit. Upon the sale of the last Lot and
the satisfaction of all of Buyer's obligations under this
Agreement, the Escrow Agent is authorized to release to Buyer the
balance of the Letters of Credit that represent the Deposit.
Buyer shall not be entitled to sell a Lot which is not improved
by a completed residential unit (a unit without an occupancy
permit) without the prior written consent of Seller, which may be
withheld in its sole discretion. Such a sale without the written
consent of Seller shall constitute a default hereunder. If Buyer
purchases a Lot and the Buyer subsequently sells the Lot without
a completed residential unit (a unit without an occupancy
permit), the Buyer agrees to pay Seller one hundred percent
(100%) of every dollar it receives in excess of the Purchase
Price per Lot, less Buyer's settlement costs for the sale of the
Lot to the subsequent purchaser and any actual costs of improving
the Lot. This portion of the
Purchase Price will be paid to the Seller upon the settlement of a
Lot between the Buyer and the purchaser of a Lot or Lots and the
provisions of this section shall survive the termination of this
Agreement and any transfer of title of the Lots to Buyer.
(c) Upon payment of the Purchase Price Per Lot, Seller shall
execute, acknowledge, and deliver to Buyer for each Lot
purchased, the closing documents set forth on Exhibit E.
(d) Each Party shall execute, acknowledge, enseal and deliver,
after the Effective Date, including at or after Closing, such
further assurances, instruments and documents as the other may
reasonably request in order to fulfill the intent of this
Agreement and the transactions contemplated hereby.
(e) All real estate taxes, and all other public or governmental
charges and public or private assessments against the Lots being
closed which are or may be payable on an annual basis (including
metropolitan district, sanitary commission, benefit charges,
liens or encumbrances for sewer, water, drainage or other public
improvements whether completed or commenced on or prior to the
Effective Date or subsequent thereto), shall be adjusted and
prorated between the Parties as of the day prior to Closing and
shall thereafter be assumed and paid by Buyer, whether or not
assessments have been levied as of the date of Closing. Any tax
proration based on an estimate shall be subsequently readjusted
upon receipt of a tax ▇▇▇▇. The obligations to adjust shall
survive Closing.
(f) The cost of documentary stamps, transfer taxes and recording
fees shall be split equally between the Parties. Notwithstanding
the foregoing, Seller shall pay at each Closing, without any
contribution from Buyer, (i) any agricultural land, rezoning,
recapture or roll-back tax due in connection with the conveyance
or deed under any law, regulation or ordinance (or any similar
tax or assessment), and (ii) the cost of preparing release
documents, if any, and the recording thereof for any lien
releases required to be obtained by Seller in order to convey
title to the Property in accordance with Section 6.
(g) Seller agrees to have developed and have an inventory and
ready for immediate purchase by and conveyance to Buyer in
accordance with this Agreement, thirty (30) days prior to the
first Closing and within sixty (60) days of each Closing
thereafter, the minimum number of Lots and product types which
Buyer is obligated to consummate at each respective Closing, as
set forth on Exhibit B (collectively, the "Inventory Lots");
provided, however, that, (i) in no event shall Seller be required
to develop and have in such inventory an amount of Lots in excess
of the number of such Lots remaining to be purchased by Buyer
hereunder, and (ii) it shall not constitute a default by Seller
under this Agreement in the event that Seller's failure to comply
with this requirement results from Buyer's purchase of Lots in
excess of the number of Lots required to be purchased by Buyer
during the preceding Purchase Schedule time period(s). In the
event that Seller fails to have the required number of completed
Inventory Lots for any reason, then, in addition to any remedies
to which Buyer may be entitled hereunder if such failure is
considered a default under the first sentence of this paragraph,
the dates by which Buyer must acquire Lots hereunder shall
automatically be extended for an amount of time equal in duration
to the amount of time during which Seller's failure to maintain
such Inventory Lots
continues, plus seven (7) days. The Parties mutually agree that,
during any such extension of a Purchase Schedule time period, as
aforesaid, the Escalator shall be suspended. At least thirty (30)
days prior to any Closing, Seller shall notify Buyer in writing of
the location and legal description of the Inventory Lots which shall
be available to the Buyer at such Closing.
6. TITLE. Title to the Property shall be good and marketable
of record and in fact, and insurable at standard market rates,
free and clear of all liens, encumbrances, encroachments and
violation notices from any applicable governmental authority.
The Property to be conveyed to Buyer shall be properly subdivided
in accordance with all laws and regulations of governmental
authorities having jurisdiction. Funds payable by Buyer at
Closing may be used to pay off any existing liens, encumbrances
or violation penalties, including accrued interest thereon,
subject, however to items which are set forth in Exhibit "B" to
Schedule B, Section 2 of the title insurance commitment attached
to and made a part of this Agreement as Exhibit C, and subject to
the PUD, Condominium Documents (hereinafter defined) and HOA
Documents which are to be established in accordance with this
Agreement.
7. CONDEMNATION. If after the Effective Date and prior to any
Closing, all or a substantial part of the Property is taken or
threatened to be taken by eminent domain or condemnation, Buyer
may elect either (a) to terminate this Agreement, as to some or
all of the Lots, in which event the Deposit shall be returned or
reduced prorata based on the number of Lots deleted from the
Agreement, and the Agreement as to any Lots deleted, shall be
null and void and of no further force or effect, or (b) to
consummate Closings as herein provided, in which event Seller
shall pay or assign all condemnation awards or payments in
respect of the Lots purchased to Buyer at the Closings. If this
Agreement is terminated in full pursuant to this section, neither
Party shall have any further rights, duties, obligations or
liabilities, at law or in equity, arising out of or relating to
this Agreement except for those that specifically survive
termination of this Agreement pursuant to other sections hereof.
8. CONDITIONS PRECEDENT TO CLOSING. Buyer's obligation to
complete each Closing shall be conditioned upon the satisfaction
(or Buyer's written waiver thereof) of each of the conditions
precedent set forth in this Section 8 as to each Lot on which
Closing is to occur. Buyer shall be entitled proceed to Closing
on any Lot, notwithstanding that each or any of the conditions
precedent that affect any particular Lot remain unsatisfied.
Buyer's election to close despite that fact that any such
conditions precedent remains unsatisfied shall constitute a
waiver of any condition precedent with respect to such Lots, but
shall not constitute a waiver of such conditions precedent
insofar as any Lots for which Buyer has not consummated Closing
are concerned and (ii) shall not be deemed a release of the
Seller of any of its obligations to perform development work or
any other obligation hereunder, as to which Buyer may require the
establishment of a post closing escrow to assure such
performance. The conditions precedent are as follows:
(a) TITLE. Title to the Property shall be as set forth in
Section 6.
(b) DEVELOPMENT. Seller shall have completed the Improvements
to the Inventory Lots (hereinafter defined), shall have delivered
the Completion Certificate therefor (as defined in
Exhibit G), and shall have completed any repairs required by the
Inspection Report therefor (as defined in Exhibit G).
(c) SUBDIVISION. Seller shall have, at Seller's expense, caused
the parcel of real property from which the Lots are to be created
to be subdivided in accordance with all of the laws, ordinances,
regulations and codes of any governmental authority pursuant to a
final subdivision plat(s) (the "Record Plat"). Buyer shall have
approved the Record Plat, which shall provide for all Lots to
have access to and from a public roadway and access to all
utilities intended to service each of the Lots, including,
without limitation, any and all storm water facilities and
drainage easements associated therewith.
(d) REPRESENTATIONS. Each of Seller's representations and
warranties as set forth in Section 15 shall be true as of the
date of Closing.
(e) APPROVAL OF ▇▇▇▇▇▇ PRODUCT. Seller, any applicable
governmental authority and any Homeowners' Association that have
the right to approve the design of the houses to be constructed
by Buyer on the Property have done so. Buyer intends to
construct four (4) types of residential dwellings on the Property
which are described as follows: on Type A lots forty foot wide
single family homes, on Type B lots 28 foot wide two car garage
front entry townhomes, on Type C lots 20 foot wide rear entry two
car garage townhomes, on Type D lots 25 foot wide two car rear
entry stacked townhome condominiums. Buyer shall use
commercially reasonable efforts to complete the plans and to
diligently pursue all necessary approvals immediately upon the
final approval of the PUD.
(f) MORATORIUM. There shall be no general moratorium imposed by
any governmental authority or utility supplier with respect to
the issuance of building permits affecting the Property or
sanitary sewer, water, natural gas, electricity or telephone
connections with respect to the Property.
(g) SATISFACTION OF CONDITIONS PRECEDENT. If the conditions
precedent to Closing on the first Lot are not satisfied on or
before September 30, 2008, Seller shall have the right to
terminate this Agreement by providing Buyer with written notice
of such election at any time prior to the satisfaction of the
conditions precedent.
9. RISK OF LOSS. Each Lot shall be held at the risk of Seller
until Closing thereon.
10. POSSESSION. At each Closing, Seller shall deliver
exclusive possession and occupancy of the Lots to Buyer, at which
time Buyer shall be entitled to place model units and related
signage on any Lot purchased and may conduct sales and marketing
activities from such model units.
11. DEFAULT.
(a) BUYER DEFAULT. If Buyer is the defaulting party, Seller's
sole remedy shall be limited to the right to call and retain the
Letters of Credit representing the Deposit as liquidated damages.
The expiration of Letters of Credit shall be an automatic default
and Seller shall be entitled to pursue Buyer for the amounts
represented by an expired or deficient Letter of Credit.
Other than the specific remedy expressly set forth in this paragraph,
Seller hereby waives any and all right and remedy, at law or in
equity, to which Seller may otherwise have been entitled by
reason of Buyer's default, including any right in equity to seek
specific performance of this Agreement by Buyer and any right at
law to seek damages from Buyer.
(b) SELLER DEFAULT. If Seller is the defaulting party, Buyer
shall be entitled to terminate this Agreement and/or exercise any
and all rights and seek any and all remedies which Buyer may hold
or to which it may be entitled at law or in equity, exclusive of
the right to seek consequential damages. In the event of any
default by Seller hereunder, or in the event Buyer shall be
entitled to terminate this Agreement, or this Agreement shall
otherwise terminate in accordance with the provisions hereof, the
Deposit shall immediately be returned to Buyer, with the
exception of any portion of Damage Fund which the Seller is
entitled to retain in order to repair the Property pursuant to
the terms of this Agreement.
(c) CURE PERIOD. Notwithstanding the provisions of subsections
(a) and (b) above, no default by either party hereto shall result
in a termination or limitation of any rights of such party
hereunder unless and until the other party shall have notified
the defaulting party in writing of said default, and the
defaulting party shall have failed to cure said default within
thirty (30) days after the receipt of said written notice;
provided, however, that the cure period shall not be applicable
to Buyer's obligations to settle on Lots in accordance with the
Purchase Schedule.
12. NOTICES. Any notice to be given pursuant to this Agreement
shall be given in accordance with Exhibit F.
13. DEFECTIVE LOT. Following any Closing, in the event that
Buyer, through no fault of Buyer, discovers fill materials
unsuitable to support standard house footings; then such Lot
shall be deemed a "Defective Lot" and Buyer shall have the right
to reconvey such Lot to Seller, provided that Buyer has expended
a minimum of Five Thousand Dollars ($5,000) to cure the
unsuitable fill problem. The purchase price to be paid by Seller
to Buyer for any such Defective Lot shall be the Purchase Price
per Lot paid therefore by Buyer. In the event a reconveyance to
Seller of a Defective Lot occurs hereunder, the parties shall
share equally the cost of any (a) recording fee and lien
certificate and (b) state, county or other recordation tax,
documentary stamp tax or other transfer tax incurred in recording
the deed to any such Defective Lot. This Section 13 shall
survive each Settlement.
14. BROKERS. Each Party represents and warrants to the other
that it has not used the services of any real estate agent,
broker or finder with respect to the transactions contemplated
hereby except for the broker identified in Subsection 1, if any.
Buyer shall pay the Broker in accordance with a agreement. Each
Party agrees to indemnify and hold harmless the other against and
from any inaccuracy in such Party's representation under this
section. This indemnification shall survive the delivery of the
deed and shall not merge therein.
15. REPRESENTATIONS AND WARRANTIES.
(a) MUTUAL REPRESENTATIONS. To induce each other to enter into
this Agreement, each Party hereby represents and warrants to the
other, except as provided in Subsection 17(n) that (i) it has
been duly authorized and empowered to enter into this Agreement
and to perform fully its obligations hereunder, (ii) such
obligations constitute the valid and binding obligations of such
Party, enforceable in accordance with their terms, and (iii) that
no further consents of any other person, entity, public body or
court are required in connection with this Agreement and the
performance of all obligations hereunder.
(b) SELLER'S WARRANTIES AND REPRESENTATIONS. To induce Buyer to
enter into this Agreement, Seller represents and warrants to
Buyer that as of the date of this Agreement and at each Closing:
(i) CONDEMNATION, REZONING OR RECLASSIFICATION. There is not
pending, or to Seller's actual knowledge, without implying any
obligation to investigate, threatened, any (A) condemnation
proceeding or other litigation relating to or otherwise affecting
Seller and/or any or all of the Lots, or (B) except as
contemplated by this Agreement, reclassification of any or all of
the Property for local zoning purposes, or (C) reassessment or
reclassification of any or all of the Property for state or local
real property taxation purposes.
(ii) VIOLATIONS. (A) There is not pending, or to Seller's actual
knowledge, threatened, from any federal, state, city or local
authority any notice, suit or judgment relating to any violation
at the Lots; and (B) there is no condition existing with respect
to the Property that violates any statute, ordinance, law or code
regarding zoning, building, fire, air-pollution, or health law,
or requiring any improvement, alteration, addition, correction or
other work on or about the Property, whether related to the
Property or to the activities of any owner or occupant thereof.
(iii)ENVIRONMENTAL CONDITION. To Seller's actual knowledge,
and based solely on a phase I environmental report attached
hereto as Exhibit I, the Property including the land, surface
water, ground water, and any improvements is free of
"contamination" from (A) any "hazardous waste," any "hazardous
substance," and any "oil, petroleum products, and their by-
products," as such terms are defined by any federal, state,
county or local law, ordinance, regulation or requirement
applicable to any portion of the Property, as the same may be
amended from time to time, and including any regulations
promulgated thereunder, and (B) any substance the presence of
which on the Property is regulated or prohibited by any law
(collectively, "Hazardous Substances"). "Contamination" means
the uncontained presence of Hazardous Substances at the Property
or arising from the Property that may require remediation or
cleanup under any
applicable law. Seller has not used any Hazardous Substances
on, from or affecting the Property in any manner that violates
any applicable law, and to the best of Seller's knowledge, no
prior owner or user of the Property has used such substances
on, from, or affecting the Property in any manner which
violates any applicable law. To the best of Seller's knowledge,
and except as disclosed in any environmental reports delivered
by Seller to Buyer prior to the date hereof, there is not now,
nor has there ever been on or in the Property underground
storage tanks or surface impoundments, asbestos-containing
materials, or any material spills of polychlorinated biphenyls,
including those used in hydraulic oils, electric transformers
or other equipment. The copies of any environmental report that
may have been delivered by Seller to Buyer, are, to the best of
Seller's knowledge, complete and accurate copies of the same
and Seller has no other environmental reports, tests or
audits in its possession or under its control, and Seller
has no knowledge of any other environmental reports, tests or
audits regarding any portion of the Property existing elsewhere.
(iv) LITIGATION. There is no litigation, arbitration or
proceeding pending, or to Seller's actual knowledge, without
implying an obligation to investigate, threatened, before any
court or administrative agency or any other condition that
relates to or affects the Property, Seller's performance
hereunder, or Buyer's intended use of the Property, or which
will result in a lien, charge, encumbrance or judgment against
any part of or any interest in the Property.
(v) ACCESS. Each Lot will front on and will have on or before
the Closing direct access to a dedicated public roadway.
(vi) ORGANIZATION. Seller is a limited liability company duly
organized, validly existing and in good standing under the laws
of the state of Maryland and has full power and authority to
sell the Property.
(vii)TITLE. The title to each Lot is subject to no tenancy
or other right of use or occupancy which will remain in effect at
or after the initial Closing. Seller is the fee simple owner of
and is lawfully seized and possessed of the Property.
(viii) RESTRICTIONS. To Seller's actual knowledge, there are
no existing or alleged restrictions to the development of the
Property as contemplated hereunder known to Seller except for the
HOA Documents, Condominium Documents and the PUD and except as
set forth in Exhibit C.
(ix) NO BREACH. The execution and delivery of this Agreement by
Seller, the execution and delivery of every other document and
instrument delivered pursuant hereto by or on behalf of Seller,
and the consummation of the
transactions contemplated hereby will not (A) constitute or
result in the breach of or default under any oral or written
agreement to which Seller is a Party or which affects the
Property; (B) constitute or result in a violation of any order,
decree, or injunction with respect to which the Seller and/or
the Property is bound; (C) cause or entitle any Party to have
a right to accelerate or declare a default under any oral or
written agreement to which Seller is a Party or which affects
the Property; and/or (D) violate any provision of any municipal,
state or federal law, statutory or otherwise, to which Seller
or the Property is or may be subject.
(x) NO ASSESSMENTS. There are no public improvements which have
been ordered to be made or assessed, and there are no special,
general, or other assessments pending, threatened against or
affecting the Property. All installments of any pending
assessments will be paid by Seller. The payment of any impact
fees charged by any governmental agency with respect to the Lots
shall be the responsibility of the Buyer.
(xi) NO CONTRACTS. Seller has not entered into any other
contracts, agreements or understandings, verbal or written, for
the sale or transfer of any portion of the Property. Between the
date of this Agreement and all Closings hereunder, no part of the
Property will be alienated, encumbered or transferred except as
contemplated by this Agreement.
(xii) NO COMMITMENTS. Seller has not made and has no actual
knowledge of any commitments to any governmental authority,
school board, church or other religious body, or any other
organization, group or individual relating to the Property which
would impose any obligations upon Buyer to make any contributions
of money or land or to install or maintain any improvements.
(c) SURVIVAL. The representations and warranties of the Parties
set forth herein shall be true as of the Effective Date and the
date of each Closing and shall survive the Closings. Seller
shall notify Buyer in writing immediately if any representation
becomes untrue or misleading in light of information obtained by
Seller after the Effective Date. Each Party agrees to reimburse ,
indemnify, defend and hold harmless the other and their
respective successors and assigns, from and against all
liability, damages (excluding consequential or punitive damages)
and losses whatsoever, including reasonable attorneys' fees
resulting from any intentional misrepresentation made by the
indemnifying Party herein or in any document, certificate or
exhibit given or delivered in connection herewith. This
indemnification is in addition to any remedies set forth in
Section 11.
16. ARBITRATION. The parties agree that except for equitable
remedies, which Buyer may pursue in court, all disputes hereunder
shall be settled by binding arbitration conducted by a neutral
arbitrator selected by the American Arbitration Association, or
other third party arbitration organization agreed upon by the
Parities, at its offices closest to the Property. The
arbitration shall be conducted according to the American
Arbitration Association Commercial Arbitration Rules or such
other procedures as may be agreed upon by the parties. The
parties agree to (a) join into the arbitration proceeding
hereunder or (b) join any other arbitration proceeding being
conducted by, persons or entities related to the dispute that may
be necessary to completely resolve the dispute. The arbitration
shall determine all rights and obligations under this Agreement
and the award of the arbitrator shall be final, binding and
enforceable in the absence of fraud. The arbitrator shall have
the authority, power and right to award damages and provide for
other remedies as are available at law or in equity in accordance
with the laws of such State, except that the arbitrator shall
have no authority to award incidental or punitive damages under
any circumstances (whether they be exemplary damages, treble
damages or any other penalty or punitive type of damages)
regardless of whether such damages may be available under the
laws of such State. The parties hereby waive their right, if
any, to recover punitive and/or consequential damages in
connection with any arbitrated dispute or controversy.
17. GENERAL.
(a) ENTIRE AGREEMENT. This Agreement constitutes the final and
entire Agreement between the Parties and they shall not be bound
by any terms, covenants, conditions, representations or
warranties not expressly contained herein. This Agreement may
not be amended except by written instrument executed by both
Parties.
(b) PARTIAL INVALIDITY. If any one or more of the provisions
contained in this Agreement shall for any reason be held 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 never been
contained herein.
(c) TIME OF THE ESSENCE. Time is of the essence of this
Agreement and the performance of the terms and conditions hereof.
(d) SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon and shall inure to the benefit of the Parties and their
respective legal representatives, successors and assigns.
Neither party may assign this Agreement or its rights hereunder
to any other person or entity without the prior written consent
of the other, which may be withheld in its sole discretion,
provided that Seller may assign this Agreement to an entity
controlled by Seller.
(e) COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be deemed an original and all
of which together shall constitute one and the same instrument.
(f) HEADINGS. The headings of the sections, subsections,
paragraphs and subparagraphs hereof are provided for convenience
of reference only, and shall not be considered in construing
their contents.
(g) EXHIBITS. Each writing or plat or plan referred to herein
as being attached hereto as an exhibit or otherwise designated
herein as an exhibit is incorporated herein by reference and made
a part hereof. The following exhibits are attached hereto:
Exhibit Matter
A. Description of the Property
B. Purchase Price and Schedule
C. Title Exceptions
D. Form of Contract Disclosure
E. Closing Documents
F. Notice Addresses
G. Schedule of Development
H. Development Responsibility Checklist
I. Phase I Environmental Report
J. Letter(s) of Credit
(h) TIME PERIODS. Any and all references in this Agreement to
time periods which are specified by reference to a certain number
of days refer to calendar days, unless "business days" is
otherwise expressly provided. Therefore, if (a) the last date by
which a Closing is permitted to occur hereunder, or (b) any date
by which a Party is required to provide the other Party with
notice hereunder, occurs on a Saturday or a Sunday or a banking
holiday in the jurisdiction where the Property is located, then
and in any of such events, such applicable dates shall be deemed
to occur, for all purposes of this Agreement, on that calendar
day which is the next, succeeding day, which is not a Saturday,
Sunday or banking holiday.
(i) RULE AGAINST PERPETUITIES. It is the parties' intent that
this contract not violate the rule against perpetuities. If
Closing has not occurred hereunder before ten years following the
date hereof, then this contract shall at that time be terminated,
with each party reserving against the other any rights and
remedies it may have against the other for any breach or default
hereunder.
(j) NO PARTNERSHIP. Nothing in this Agreement shall be deemed
in any way to create between the Parties any relationship of
partnership, joint venture or association, and the Parties
disclaim the existence thereof.
(k) WAIVERS. No Party shall be deemed to have waived the
exercise of any right which it holds hereunder unless such waiver
is made expressly and in writing (and no delay or omission by any
Party hereto in exercising any such right shall be deemed a
waiver of its future exercise). No such waiver made as to any
instance involving the exercise of any such right shall be deemed
a waiver as to any other such instance, or any other such right.
(l) CHOICE OF LAW. This Agreement shall be given effect and
construed by application of the law of the jurisdiction in which
the Property is located.
(m) ATTORNEYS' FEES. In the event of any legal action or
arbitration proceeding between the Parties regarding this
Agreement or the Property (an "Action"), the prevailing Party
shall be entitled to payment by the non-prevailing Party of its
reasonable attorneys' fees and litigation or ration expenses as
determined in the course of the proceeding.
(n) BUYER'S CORPORATE POLICY. Seller hereby acknowledges to and
confirms with Buyer that Seller has been apprised of the
corporate policy of Buyer to the effect that Buyer shall not be
bound hereunder unless this Agreement (or counterparts hereof) is
executed by both Buyer's Regional President and Division
President for the region in which the Property is located, who in
this case are currently ▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. Gold,
respectively. If Buyer delivers this Agreement executed by one
such officer and not the other, and thereafter fails to deliver a
counterpart hereof executed by the other such officer within
three (3) business days, Seller may, by delivery of notice of its
election to Buyer on or prior to receipt of such counterpart,
elect to terminate this Agreement and its obligations hereunder.
(o) CONSTRUCTION. Seller and Buyer agree that this Agreement
has been thoroughly negotiated in good faith and that if any
ambiguity shall arise hereunder, there shall be no presumption
that either party drafted this Agreement and neither party shall
have such ambiguity resolved against simply by virtue of its role
in drafting or preparing this Agreement.
(p) FORCE MAJEURE. If Seller is delayed in its performance of
any of the development work contemplated hereunder by force
majeure, as described below, the Seller's performance of such
work shall be excused for the period of the delay. For the
purposes of this Agreement, force majeure shall consist of
strikes, lockouts, labor troubles, inability to procure materials
if promptly ordered, failure of power, restrictive governmental
laws or regulations, riots, insurrection, war adverse weather
conditions not reasonably anticipated, lack of timely action by
any applicable governmental authority or utility company
(assuming permits and approvals are timely applied for an
diligently pursued by the Seller), or any other matter beyond
the reasonable control of the Seller.
IN WITNESS WHEREOF, the Parties hereto have executed under
seal this Agreement as of the Effective Date.
WITNESS OR ATTEST: FRP BIRD RIVER LLC
__________________________ By:____________________________(Seal)
Name:___________________________
Title:____________________________
Date:____________________________
THE ▇▇▇▇▇▇ GROUP, INC.
___________________________ By:____________________________(Seal)
Name:___________________________
Title:____________________________
Date:____________________________
____________________________ By:____________________________(Seal)
Name:___________________________
Title:____________________________
Date:____________________________
