AGREEMENT OF SALE
THIS AGREEMENT ("Agreement") is made and entered into as of this 6th of
September, 1996 ("Effective Date"), by and between RESTON LAND CORPORATION, a
Delaware corporation authorized to conduct business in the Commonwealth of
Virginia hereinafter called "Seller"), and CAREMATRIX OF MASSACHUSETTS, INC., a
Delaware corporation authorized to conduct business in the Commonwealth of
Virginia (hereinafter called "Buyer")
W I T N E S E T H:
That for and in consideration of the Deposit (as hereinafter defined) and
other good and valuable consideration, and of the mutual promises herein
contained, the Seller agrees to sell and the Buyer agrees to buy all of that
certain parcel of ground (hereinafter referred to as the "Property"), situate,
lying and being in Hunter Mill District, Fairfax County, Virginia, containing a
total of approximately five (5) acres for the purposes intended herein, and
being a portion of Section 95, Block 1, Reston (a portion of Fairfax County Tax
Map No. 17-3-1-5), which Property is outlined on Exhibit A, attached hereto and
made a part hereof, and all easements and rights of way appurtenant thereto,
upon the terms and conditions hereinafter set forth:
1. Purchase Price and Method of Payment.
1.1 The purchase price for the Property shall be Two Million One Hundred
Thousand and 00/100 Dollars ($2,100,000.00) ("Purchase Price"). This is a sale
in gross of the Property.
1.2 Upon execution and delivery of this Agreement, by Buyer and Seller,
Buyer shall deliver to First American Title Insurance
Company ("Title Company") cash in the amount of Fifty Thousand Dollars
($50,000.00) ("Initial Deposit"). In the event that Buyer does not elect to
terminate this Agreement pursuant to Section 9.1 herein, then Buyer shall
deliver to Title Company prior to expiration of the Study Period as defined in
Section 9.1 herein, cash in the amount of Fifty Thousand Dollars ($50,000.00)
("Additional Deposit"). In the event of approval by the appropriate government
authorities of the special exception application regarding the Project, Buyer
shall deliver to Title Company within five (5) days after the final
(unappealable) disposition of the same, cash in the amount of Fifty Thousand
Dollars ($50,000.00) ("Final Deposit"). Failure of the Buyer to deliver the
Initial Deposit, the Additional Deposit or the Final Deposit as provided herein
shall cause Buyer's rights to immediately lapse and this Agreement shall
terminate and be of no further force and effect except for those duties,
obligations or liabilities of Buyer which expressly survive the expiration or
termination of the Agreement. The Initial Deposit; the Additional Deposit and
the Final Deposit once posted are hereafter collectively referred to as the
"Deposit". The Deposit shall be held in escrow by the Title Company pursuant to
the terms of this Agreement and the terms of the Escrow Agreement to be entered
into by the parties and acknowledged by the Title Company in the form attached
hereto as Exhibit E, or in such other form as may be mutually agreed upon by
Seller, Buyer and Title Company. In the event that a genuine and material
dispute exists between the parties as to which party hereunder is
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entitled to a refund or receipt of the Deposit under this Agreement, Seller
hereby agrees to interplead such funds to the Circuit Court of Fairfax County,
Virginia for a final and binding determination as to such matter.
1.3 At Settlement, Buyer shall pay to Seller, by cash or its equivalent,
100% of the Purchase Price for the Property less the Deposit, subject to
adjustments as provided herein.
1.4 Buyer and Seller acknowledge and agree that the Deposit is being
delivered to Seller and that Seller shall have no obligation to hold such
Deposit in a separate account, however, if Buyer shall be entitled to the
Deposit in accordance with the terms hereof, Seller shall promptly return said
Deposit to Buyer. The Deposit shall be deemed to accrue simple interest at the
rate of four percent (4%) per annum to be credited to the Buyer at Settlement or
shall otherwise be payable to the party entitled to the Deposit hereunder. If
there is a dispute as to whether either party is entitled to the Deposit, at the
request of Buyer, Seller shall deposit the Deposit with a court of competent
jurisdiction until such time as the dispute is finally resolved.
2. Settlement.
2.1 (a) Except as otherwise provided in this Agreement, Settlement shall
occur on or before June 1, 1997 ("Settlement" or "Settlement Date") or such
other date which is mutually agreed to in writing by Buyer and Seller.
(b) Buyer shall have the right to extend the Settlement beyond June 1,
1997 for up to six (6) extensions of thirty (30) days in each instance, but in
no event later than December 1,
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1997 by giving the Seller a written extension notice on or before five (5) days
prior to the then scheduled date of Settlement. Each extension notice shall be
accompanied by a payment to the Seller in the amount of Ten Thousand and 00/100
Dollars ($10,000.00) in cash or check ("Extension Fee") for each 30-day
extension. Such Extension Fee shall be non-refundable if the Settlement does not
occur (except in the event of Seller's default or Seller's inability to
otherwise comply with its contractual obligations hereunder), but shall be
credited in full against the Purchase Price if the Settlement does occur.
(c) Buyer shall have the right to extend the Settlement beyond
December 1, 1997 by giving the Seller a written extension notice on or before
five (5) days prior to such scheduled date of Settlement. As consideration for
such extension, the Buyer shall acknowledge that one-half of the then-existing
Deposit ($105,000.00) shall be fully at risk and non-refundable to Buyer for any
reason whatsoever other than Seller's default hereunder. Upon the granting of
such extension of Settlement, Seller and Buyer shall enter into a written
amendment of this Agreement; acknowledging the proposed and agreed to Settlement
Date, which is acceptable to both parties hereto.
2.2 Settlement shall be conducted by an attorney or title insurance
company (the "Settlement Agent") at a location in the Washington, D.C., metro
area selected by Buyer and reasonably acceptable to Seller. The deed, repurchase
option agreement and option release (the "Release") to be executed and delivered
at Settlement shall be substantially in the form as attached hereto
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as Exhibits B, C and C-l. The form of any documents to be executed at Settlement
that are not attached hereto as exhibits, together with a statement of
settlement charges, shall be prepared for Seller and Buyer for approval not less
than five (5) business days prior to the date scheduled for Settlement. Real
estate taxes and other similar charges or assessments against the Property are
to be adjusted to the date of Settlement. The Seller shall bear the risk of loss
or damage to the Property until the date of Settlement thereon. Possession of
the Property shall be given to the Buyer at Settlement in the condition that
exists as of the date hereof, subject to wear and tear and natural
deterioration.
3. Settlement Costs.
3.1 The State Grantor's tax upon the deed of conveyance and the charges for
recordation of the repurchase option, if recorded, shall be at the cost of the
Seller. Charges for title examination, surveys, owner's title insurance
premiums, all recording taxes (other than documents necessary to clear title)
and all other charges including the Settlement Agent's charge for conducting
settlement shall be at the cost of the Buyer. Each party shall pay its own
counsel fees.
3.2 Real estate taxes and assessments imposed by a governmental authority
("Taxes") and any assessments by private covenant constituting a lien or charge
on the Property for the then-current calendar year or other current tax period
not yet due and payable shall be prorated, based on the most recent tax xxxx
pertaining to the Property and taking into account any
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discount available based on an early payment of such Taxes, between Seller and
Buyer as of the close of the day immediately preceding settlement. If settlement
occurs prior to the receipt by Seller of the tax xxxx for the calendar year or
other applicable tax period in which settlement occurs, Buyer and Seller shall
prorate Taxes for such calendar year or other applicable tax period based upon
the most recent ascertainable assessed value and tax rates, final adjustment to
be made as soon as reasonably possible after settlement.
3.3 If the Property is taxed as a portion of a larger tax parcel, the
Seller and Buyer agree to pay the real estate taxes covering the year of
settlement (and any previous years) for the entire parcel to the taxing
authorities at settlement, or, if the tax xxxx is not available, the parties
shall estimate the real estate taxes for the larger tax parcel, based upon the
most recent ascertainable assessed value and tax rates, final adjustment to be
made as soon as reasonably possible after settlement, and shall execute and
deliver such documentation before and after settlement as may be necessary to
cause the Property to be assessed as a separate parcel. Seller shall pay the
amount of the real estate taxes shown on said xxxx to the taxing authorities
when the tax xxxx becomes available, and Seller shall indemnify and hold Buyer
harmless against liability, cost or expense incurred by Buyer in connection
with, or arising out of, Seller's failure to pay the real estate taxes in a
timely manner.
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4. Title
4.1 Within forty five (45) days after the Effective Date, Buyer shall
obtain a current title commitment issued by a reputable title company (the
"Title Commitment"), with copies of all underlying documents and a survey (the
"Survey") of the Property. During the Study Period, as hereinafter defined,
Buyer shall review title to the Property as disclosed by the Title Commitment
and the Survey. Seller will cooperate with Buyer in curing any reasonable
objections Buyer may have to title to the Property. Seller shall have no
obligation to cure title objections, except liens of an ascertainable monetary
amount which liens Seller shall cause to be released at Settlement. Buyer may
terminate this Agreement and receive a refund of the Deposit and all interest
accrued thereon, and the Extension Fee, if paid, if the title company revises
the Title Commitment after the expiration of the Study Period to add or modify
exceptions or to delete or modify the conditions to obtaining any endorsement
requested by Buyer during the Study Period if any such changes render title to
the Property unmarketable or materially and adversely affect the proposed
development at the Property as determined by Buyer in its reasonable discretion.
The term "Permitted Exceptions" shall mean the specific exceptions (exceptions
that are not part of the promulgated title insurance form) in the Title
Commitment that the title company has not agreed to insure over or remove from
the Title Commitment and to which Buyer has not specifically objected in writing
during the
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Study Period and that Seller is not required to remove as provided above, and
real estate taxes not yet due and payable.
4.2 At Settlement, as a condition to Buyer's obligation to close, the title
company shall deliver to Buyer an ALTA Owner's Policy of Title Insurance ("Title
Policy") issued by the title company containing the endorsements that the title
company has agreed to issue, dated the date and time of the recording of the
Deed in the amount of the Purchase Price, insuring Buyer as owner of good,
marketable and indefeasible fee simple title to the Property, subject only to
the Permitted Exceptions.
4.3 The costs of the Title Policy shall be paid by Buyer. The cost of the
Survey including any necessary revisions shall be paid by Buyer.
4.4 Seller agrees to convey title at settlement by special warranty deed
(the "Deed"), free and clear of all liens, encumbrances and encroachments and
subject only to the Permitted Exceptions and the provisions of the Declaration
of Covenants, Conditions and Restrictions for the Reston Town Center Industrial,
dated November 14, 1989, and recorded in Deed Book 7472, page 345 et seq., of
the land records of Fairfax County.
4.5 Should Seller be unable to convey title to the Property in accordance
with the provisions of this Article 4, Seller's sole liability under this
Agreement shall be limited to the return to Buyer of the Deposit and all
interest accrued thereon, and the Extension Fee, if paid, hereunder.
4.6 Seller shall discharge at settlement all liens, mortgages, encumbrances
and other obligations affecting title to
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the Property that can be discharged by the payment of money. Buyer agrees that
the Seller may apply the purchase proceeds for such purpose.
5. Failure to Make Settlement.
5.1 If the Buyer breaches or violates any term, covenant, or condition of
this Agreement, including failure to purchase the Property for any reason other
than Seller's default, failure of a condition to Buyer's obligation to close, or
the exercise by Buyer of an express right of termination granted herein,
Seller's sole remedy in such event shall be to terminate this Agreement and be
entitled to liquidated damages in an amount equal to the Deposit. Except as set
forth in the immediately preceding sentence, Seller hereby waives all other
rights or remedies in the event of such default by Buyer. The parties
acknowledge that Seller's actual damages in the event of a default by Buyer
under this Agreement will be difficult to ascertain, and that such liquidated
damages represent the parties' best estimate of such damages. As per the terms
of Section 5.2 hereof, the Deposit and all interest accrued thereon, and the
Extension Fee, if paid, shall promptly be returned to Buyer in the event of a
Seller default hereunder or if Buyer elects to terminate this Agreement pursuant
to an express right herein granted or failure of a condition. In addition, in
the event Buyer fails to complete Settlement in accordance with Article 2
hereunder and this Agreement is terminated by Seller, Buyer will, upon demand by
Seller, to the extent permitted by the applicable third party, assign to Seller,
without representation or warranty as to the
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accuracy, validity or correctness of the contents, all studies, tests, reports
plats and surveys relating to the Property, free and clear of all liens or
claims for payment, which were acquired by Buyer for use in development of the
Property, all at no cost to Seller.
5.2 In the event Seller fails to perform or breaches any of its
representations or warranties or the covenants or obligations to be performed by
Seller under this Agreement, Buyer's sole and exclusive remedy shall be to
either: (i) terminate this Agreement, in which event the Deposit shall be
returned to the Buyer in accordance with the terms of this Agreement or (ii)
enforce its rights of specific performance hereunder upon payment of the full
Purchase Price. In no event whatsoever shall Buyer be entitled to any other
damages, rights or remedies against Seller hereunder.
6. Buyer's Use of the Property.
6.1 Buyer shall construct on the Property up to "150 Units of Assisted
Living/senior Housing" with associated parking (the "Project")
6.2 The size and configuration of the Project to be constructed by Buyer
shall be subject to Seller's prior approval, which approval shall not be
unreasonably withheld. Seller shall approve or disapprove the size and
configuration of the Project within thirty (30) business days after Buyer shall
submit same to Seller. If Seller shall fail to disapprove said size and
configuration of the Project within said thirty (30) business day period, Seller
shall be deemed to have approved said size and
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configuration of the Project. Otherwise, Seller shall inform Buyer as to those
items of the proposed Project of which Seller disapproves.
7. Approval of Architectural Plans.
The Buyer agrees to submit its landscape, site and architectural plans to
the Town Center Design Review Board ("TCDB") for approval prior to commencement
of construction, it being the intention of the parties that the exterior of the
Buyer's buildings will be harmonious with the buildings in the surrounding area
in design, materials and treatment. All buildings or structures shall be
constructed in accordance with such plans as approved by the TCDB.
8. Project Name.
Seller shall have the right, in its reasonable discretion, to approve all
names to be used in connection with the project and/or individual building or
other structures on the Property. Buyer shall obtain such approval from the
Seller prior to any public use or display of the desired project or building
name or prior to any submission of documents bearing such proposed name to
lending institutions or governmental agencies. If the Seller does not approve of
a project or building name, Seller has the right to require the removal of any
sign bearing such unapproved name erected by or on behalf of the Buyer.
9. Contingencies.
9.1 Beginning with the date of execution of this Agreement by both parties
and until 5:00 p.m. on October 30, 1996, "the
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Study Period") Buyer shall have the opportunity to do the following:
(a) Enter the Property and make any engineering and soil boring tests
or any other tests or surveys relating to the Property, at
Buyer's cost, provided Seller is notified in writing a minimum of
forty-eight (48) hours prior to such tests or surveys. Such tests
shall not interfere with Seller's current use of the Property or
the adjacent areas, shall not necessitate the closing of any
access route to the Property, and shall not violate any law of
any governmental unit having jurisdiction over the property. Upon
the completion of such tests, if any, Buyer shall restore the
Property to its former condition. Buyer agrees to hold the Seller
harmless from any claims of injury to person or property asserted
by third parties arising out of the tests referred to above for a
period of up to one (1) year after the date of Settlement or one
(1) year after the date of termination of this Agreement, as the
case may be;
(b) Conduct such economic studies it deems appropriate regarding the
feasibility of the construction and/or operation of the building
contemplated
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hereunder, to and including, but not limited to storm water
management;
(c) Verify the zoning applicable to the Property; determine if there
are any further zoning or land use approvals to be obtained which
are necessary for Buyer's contemplated use and development of the
Property, and ascertain the size and scope of the development
permitted by such zoning;
(d) Investigate the availability of water, sewer, electricity,
telephone and all other utilities to serve the Property;
(e) Examine title and Survey relating to the Property;
(f) Perform environmental assessments as deemed necessary or
appropriate.
9.2 As a result of the determinations made by Buyer under paragraphs 9.1(a)
through (f) above, Buyer may decide, In its sole, absolute and nonreviewable
discretion, that it is not feasible, practical, or advisable to purchase the
Property and construct the building contemplated hereunder, in which event Buyer
may terminate this Agreement by notice in writing to Seller, provided such
notice is given not later than the expiration date of the Study Period. In the
event of such termination, the Deposit and all interest accrued thereon, and the
Extension Fee, If paid, paid hereunder shall be returned to Buyer, and Buyer
shall, upon demand by Seller, to the extent permitted by the applicable third
party, assign to Seller, without representation or warranty as to the accuracy,
validity
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or correctness of the content, to Seller all plats, surveys, and soil tests,
which have been prepared for Buyer and which were obtained by it for use in
development of the Property, free and clear of all liens or claims for payment,
all at no cost to Seller.
9.3 Should Buyer, after conducting the studies set forth in paragraph 9.1,
decide to proceed under the terms of this Agreement, Buyer shall have the right
throughout the term of this Agreement to enter any portion of the Property (as
shown on Exhibit A) for the purpose of conducting such additional engineering
and soil boring test or surveys as it deems necessary, provided Seller is
notified in writing a minimum of forty-eight (48) hours prior to such tests or
surveys, all at its costs. Upon completion of such tests, Buyer shall restore
the Property to as close to its former condition as is reasonably practicable.
Buyer agrees to hold the Seller harmless from any claims of injury to person or
property asserted by third parties arising out of such tests for a period of up
to one (1) year after the date of Settlement or one (1) year after the date of
termination of this Agreement, as the case may be.
9.4 Upon reasonable prior written notice delivered to Seller at any time
after the Effective Date hereof, Seller shall, to the extent in Seller's
possession, make available for the Buyer's review at either the Seller's or its
Managing Agent's offices, all information, records and documentation concerning
the ownership and condition of the Property in the possession of Seller or
Seller's representatives including, plans, surveys,
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specifications, soil tests, service contracts, government permits and
approvals, environmental matters, engineering reports, environmental reports,
and title policies or abstracts, if any, with regard to all matters described
above. The Buyer will hold in strict confidence all documents, data and
information obtained from the Seller and if the Settlement does not occur, will
return the same to Seller.
10. Zoning and Approvals.
10.1 The Property is presently zoned PRC Town Center, which permits the use
contemplated in this Agreement. Buyer acknowledges that, prior to approval of a
site plan or issuance of a building permit, a Town Center concept plan approval
will have to be obtained from the Fairfax County Planning Commission and special
exception approval will have to be obtained from the Fairfax County Planning
Commission and the Fairfax County Board of Supervisors. Seller, at its expense,
shall make all necessary applications for such concept plan approval and special
exception approval and employ all reasonable and diligent efforts to obtain same
and Buyer shall cooperate with and provide such reasonable assistance as may be
necessary to obtain such approvals. All costs directly associated with such
application (including, but not limited to all engineering and architectural
fees and costs) shall be the responsibility of Buyer; provided, however, Seller
shall select and retain legal counsel of its choice and at its expense to obtain
such approvals from the Fairfax County Planning Commission and the Fairfax
County Board of Supervisors. During the Study Period, Buyer and Seller shall
endeavor in good faith
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to develop a schedule and/or timeline pursuant to which the parties shall pursue
obtaining the Approvals (as such term is defined below). Seller and Buyer
covenant and agree to cooperate and communicate with each other regarding all
aspects of the processing and administration of the Approvals regarding the
Project.
10.2 Buyer's obligation to consummate Settlement hereunder shall be
specifically conditioned upon the approval (in form and substance acceptable to
Buyer) of all zoning, land use, subdivision and environmental permits and
approvals and any other applicable permit or approval as may be necessary for
the Buyer's proposed acquisition, development and construction of the Project
(collectively the "Approvals"). If the foregoing condition is not satisfied
prior to the Settlement (as may be extended by any appeal periods relating to
the Approvals or pursuant to Section 2.1(b) of this Agreement), the Buyer may
elect not to purchase the Property. In such case, at Buyer's option, the Deposit
and all interest accrued thereon, and the Extension Fee, if paid, shall be
refunded to Buyer and neither party shall thereafter have any further
obligations or liabilities under this Agreement. Notwithstanding anything set
forth above to the contrary, Purchaser shall be solely responsible for all costs
and expenses associated with the site plan or plans and all building permits for
the Property and the Project. Purchaser covenants and agrees to pursue any and
all site plans and building permits with all reasonable and diligent efforts
prior to Settlement hereunder. Furthermore, notwithstanding any provision of
this Agreement to
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the contrary, the Seller shall be granted the right to terminate this Agreement
and all of its obligations to sell the Property to the Buyer if Buyer has not
obtained a building permit for the Project from the applicable Fairfax County
governmental authorities on or before December 1, 1998. Both the Buyer and
Seller shall notify the other party of its respective right to terminate this
Agreement in writing in accordance with the notice provisions of this Agreement.
Should the Seller exercise its right to terminate this Agreement, one-half of
the Deposit and all interest accrued thereon, and the Extension Fee, if paid,
shall be retained by the Seller and neither party shall thereafter have any
further obligations or liabilities under this Agreement.
11. Utilities.
Sanitary sewer to serve the Property for the Project is shown on Exhibit A
in xxxxx. Water service is available for the Project in the street adjacent to
the site as shown in green on Exhibit A. Buyer shall have the sole
responsibility for making appropriate arrangements, including all costs
associated therewith, for extending all utilities to the Property from the
locations shown on Exhibit A and installing same on the Property including but
not limited to sanitary and storm sewer, water, electricity and telephone
service. Buyer shall be responsible for payment of all utility connection fees.
Buyer shall arrange for the installation of any and all outdoor lighting on the
Property.
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12. Work on Property.
12.1 Buyer shall be responsible for the preparation, at its expense, of all
necessary and required site engineering, building design, site planning and any
other related work which may be necessary to obtain all permits, licenses and
approvals from Fairfax County and any other government authorities in connection
with the Project. Additionally, Buyer shall have the sole obligation at its cost
to relocate any existing utilities on the Property.
12.2 The Buyer agrees that all excavation and grading, disposal of surplus
materials, land development, field engineering, soil erosion control, and
utility work necessary for the development of its buildings will be done within
the boundary line limits of the Property or within limits approved by Seller,
subject to the provisions of Section 11 above. The Buyer further agrees to
repair damage to adjacent areas caused by its construction activities, excluding
the replacement of vegetation, shrubs or trees. The streets affording access to
the Property shall be cleaned by the Buyer whenever construction activity into
and out of the Property dictates that such cleaning is required. Should the
Buyer fail to do so after five (5) days written notification from the Seller
that such cleaning is required, then the Seller may perform such cleaning and
charge the reasonable cost thereof to the Buyer.
12.3 The Buyer agrees to landscape the appropriate areas of the Property
after construction thereon is completed in conformance with its landscaping
design plans, such work to
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include fine grading, shrubbery, seeding or sodding, side or lead walks and any
paving required. All driveway and parking areas constructed by the Buyer shall
be hard surfaced.
12.4 All construction waste, including all tree stumps, shall be
disposed of by the Buyer at its cost either at the construction site or beyond
the limits of Reston.
12.5 Buyer agrees that during the periods of grading, clearing and
construction, Buyer will comply with the preservation standards set forth in
Exhibit D attached hereto and made a part hereof.
12.6 Buyer agrees to maintain that portion of the Property adjacent to
the curb lines of streets. Buyer's maintenance obligations shall extend to
adjacent property lying within the street right-of-way but not actually being
used for street purposes. All construction debris in connection with the
construction of the Project shall be removed from the site as quickly as
reasonably possible by Buyer. Should the Buyer fail to do so, the Seller may,
after at least five (5) business days notice to Buyer, remove such debris and
charge the reasonable cost thereof to the Buyer by deducting the cost thereof
from the Deposit referred to in paragraph 14.4 below. Buyer, for itself, its
successors and assigns, hereby grants a license to Seller and Seller's agents to
enter on the Property after Settlement for the purpose of enforcing the
provisions of this paragraph.
13. Signs.
The Buyer shall not place or erect or cause or permit to be placed or
erected any exterior signs on any part of the Property
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or anywhere else within the community of Reston unless the wording, design,
location and construction thereof have been approved by the Seller which
approval shall not be unreasonably withheld. The Buyer agrees that all of its
exterior signs, after approval by the Seller, will be maintained in a reasonable
state of repair. The Buyer further agrees that any signs erected by it without
the Seller's prior approval as hereinbefore provided, or not maintained in a
reasonable state of repair, will be removed by the Buyer at the Seller's request
or may, after ten days written notice to Buyer, be removed by the Seller at the
Buyer's expense.
14. Protection of Structures. Trees and Adjacent Property.
14.1 The Buyer agrees to protect (in a commercially reasonable manner)
pavements, curbs, gutters, walks, streets, shoulders, and utility structures
within the immediate vicinity of the Property from damage, and to keep
pedestrian and road rights-of-way and drives clear of equipment and building
materials.
14.2 The Buyer agrees to install, prior to the start of site development on
the Property, and to maintain during the entire period of construction, those
protective measures outlined in Exhibit D in order to protect from damage those
trees that were indicated it be saved on the site plan submitted by the Buyer to
the Seller.
14.3 The Buyer agrees to confine its construction activities to the area
within the boundary lines of the Property and to adjacent areas where off-site
improvements are to be constructed
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which serve the Property, and to take all necessary precautions to protect
adjacent property from damage. The Buyer further agrees to take whatever
precautions are reasonably necessary so as to prevent siltation and the washing
away of earth from the Property in the excavation and movement of earth, and
also to comply at its expense with all federal, state and county rules regarding
siltation control.
14.4 In order to assure compliance by the Buyer with paragraphs 14.1, 14.2
and 14.3, above, the Buyer shall deposit with the Seller at Settlement the sum
of Five Thousand Dollars ($5,000.00) from which the Seller may deduct reasonable
sums required to repair damage to pavements, curbs, gutters, walks, streets,
shoulders, utility structures, and adjacent property caused by the Buyer, Its
employees, invitees, contractors, or subcontractors, or to compensate the Seller
for the Buyer's failure to comply with paragraph 14.2 above. Seller shall
release and otherwise return such deposit to buyer upon the happening of all of
the following:
(a) Completion of Buyer's building and termination of all
construction activity in connection therewith.
(b) The release of the Buyer by the County of Fairfax under any bond
or contract requiring the Seller to do site work on the Property,
if any.
(c) The stabilization and necessary repair of adjacent property to
the Seller's reasonable satisfaction when damage has resulted
from Buyer's construction activities.
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14.5 Notwithstanding the terms of Article 5 hereof or of this Article 14 to
the contrary, should the damages hereunder caused by the Buyer, its employees,
invitees, contractors or subcontractors exceed the amount so deposited, this
Article 14 shall not limit the Seller's right of recovery against the Buyer for
such excess. In the event damage to the structures or areas set forth under
paragraph 14.1 above is caused by a party other than the Buyer, its employees,
invitees, contractors, or subcontractors, the Buyer may be relieved of liability
hereunder by prompt notification to the Seller of the damage incurred and the
identification of the responsible party.
15. Seller's Option to Repurchase.
15.1 Buyer agrees that at Settlement it will grant to the Seller an
exclusive option substantially in the form attached hereto as Exhibit C to
repurchase the Property. Such option may be exercised by the Seller during the
twelve (12) month period commencing thirty (30) months after the date of
Settlement, unless prior to the exercising of such option, the Buyer begins
construction of a building on the Property.
15.2 The pouring of footings for Buyer's building shall be considered as
the commencement of construction so as to nullify Seller's option to repurchase.
15.3 In the event that the Seller exercises its option hereunder the
purchase price shall be calculated on the basis of the original purchase price,
without escalation, paid by Buyer for the Property.
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15.4 In the event that the Seller exercises its option hereunder,
Settlement shall be held within thirty (30) days of the date of the exercise of
the option, at a place to be selected by the Seller in the Washington, D.C.,
metro area. The Property repurchased shall be conveyed by special warranty deed
free and clear of all liens, encumbrances, and encroachments except those
specified in Article 4 above. Seller shall pay the state and local Grantee tax.
Buyer shall pay the state and local Grantor tax and bear the cost of preparation
of the deed.
15.5 In the event that Seller shall fail to exercise the repurchase option
in a timely manner or shall not be entitled to exercise such repurchase option
as set forth herein, the Settlement Agent shall be instructed by Buyer to
deliver from escrow the Release and record in the applicable recorder's office.
The provisions of this Section shall survive the Closing of Settlement.
16. Sale of Property by Buyer.
So long as the option to repurchase remains in effect for any portion of
the Property under the provisions of Article 15, the Buyer shall not sell or
otherwise dispose of the Property subject to such option, or any portion
thereof.
17. Resubdivision.
Prior to Settlement, the Property has or will be subdivided, at Seller's
expense, as Block 1 Section 95 Reston. Any further subdivision of the Property
shall be the responsibility of Buyer and at the expense of Buyer. All such
Resubdivision plans and
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documents shall be subject to Seller's reasonable approval prior 4 to submission
to Fairfax County.
18. Assignment.
This Agreement may not be assigned by Buyer except as set forth herein.
Buyer may assign this Agreement without Seller's consent to an Affiliate of
Buyer, provided that the assignee shall assume the obligations hereunder of the
assignment. Seller shall be permitted to freely assign its rights under this
Agreement. Subject to the foregoing, this Agreement shall be binding upon and
inure to the benefit of the respective legal representatives, successors,
assign, heirs, and advisees of the parties. For the purpose of this paragraph,
the term "Affiliate" means (a) an entity that directly or indirectly controls,
is controlled by or is under common control with the Buyer or Xxxxxxx X. Xxxxxx,
Xxxxxx X. Xxxxxx, or Xxxxxxx X. Xxxxxx or (b) an entity created by or for the
benefit of Buyer to be utilized in conjunction with a sale/leaseback of the
Property and/or Project or (c) an entity at least a majority of whose economic
interest is owned by Buyer or Xxxxxxx X. Xxxxxx, Xxxxxx X. Xxxxxx, or Xxxxxxx X.
Xxxxxx; and the term "control" means the power to direct the management of such
entity through voting rights, ownership and contractual obligations.
19. Notices.
Any notices required or permitted under this Agreement shall be in writing
and delivered by telephone facsimile or in person or sent by registered or
certified mail postage prepaid, return receipt requested, as follows:
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If to Buyer: CareMatrix of Massachusetts, Inc.
Attn: Xxxxxxx Xxxxxx
Executive Vice President
000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With Copies to: CareMatrix of Massachusetts, Inc.
Attn: Xxxxx X. Xxxxx, Esquire
000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to Seller: Reston Land Corporation
Attn: Xx. Xxxxxxx Xxxx
00000 Xxxxxxx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With Copies to: Reston Land Corporation
Attn: Xxxxx X. Xxxxxxx, Esq.
00000 Xxxxxxx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Either party may, by proper notice, designate a different address to which
notice shall be sent. Notices given in accordance with these provisions shall be
deemed given when delivered by telephone facsimile, when personally delivered,
or when mailed.
20. Commissions.
Except as provided in a separate agreement between Seller and Xxxxxxxx
Property Venture d/b/a Smithy Braedon-Oncor International ("Broker") which
agreement is hereby affirmatively acknowledged by Seller, this Agreement was not
negotiated by a real estate agency or broker and no commission will be payable
on the sale hereunder. Buyer represents and warrants that it shall
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pay any and all sums of fees due to Xxxxxx Xxxxxx of Genesis Development
Group, Inc., relating to this Agreement and the transaction contemplated hereby.
Buyer shall indemnify and hold harmless Seller by reason of any breach of the
foregoing representation or warranty with regard to Xx. Xxxxxx and/or Genesis
Development Group, Inc. Each party hereto warrants and represents that it had
employed no other brokers or real estate agencies other than Broker in the
negotiations relating to this Agreement and each party shall indemnify and hold
harmless the other party hereto by reason of any breach by such party of its
warranty and representation under this paragraph. This Section 20 shall survive
Settlement or the termination of this Agreement.
21. Storm Water Management.
Buyer shall construct a storm water management facility on the Property
which facility shall be used by Buyer to manage storm water on its Property and
to accommodate some offsite storm water management from Seller's adjacent
property. In consideration of such use, Buyer and Seller shall each pay their
prorata share of the cost of construction of such facility, such prorata share
to be calculated by dividing the total acreage to be served by the facility
including the acreage of the Property by the number of acres contained in the
Property. Seller shall pay for any outfall structure or connection of the storm
water facility to Seller's adjacent property. At settlement, Buyer shall assume
the obligation to construct and maintain such on site facility, provided,
however, (I) Seller shall pay only its prorata share of the cost of maintenance
as calculated above,
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(ii) Buyer and Seller shall cause each of the owners of land served by the storm
water management facility to enter into an agreement, on terms and conditions
reasonably satisfactory to Buyer governing the repair and maintenance of such
facility and (iii) Buyer and/or the owner of the land upon which the storm water
management facility has been or will be constructed shall grant certain
recordable easement agreements, the form and substance of which shall be agreed
upon prior to settlement, to Seller for the benefit of the Seller's adjacent
property so that Seller shall have access to the facility to fulfill its
maintenance obligations. If requested, Buyer shall execute such documents as may
be reasonably required by Fairfax County or Seller to evidence such maintenance
obligations.
22. Miscellaneous.
22.1 Seller covenants that Buyer and its agents, employees, representatives
and contractors shall have uninterrupted and continuous adequate access to the
Property during the pendency of this Agreement for the purpose of conducting
surveys, engineering, geotechnical, and environmental inspections and tests
(including intrusive inspection and sampling), and any other inspections,
studies, or tests reasonably required by Buyer.
22.2 Unless otherwise specified, In computing any period of time described
herein, the day of the act or event after which the designated period of time
begins to run is not to be included and the last day of the period so computed
is to be included, unless such last day Is a Saturday, Sunday or legal holiday,
In
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which event the period shall run until the end of the next day which is neither
a Saturday, Sunday or legal holiday. The last day of any period of time
described herein shall be deemed to end at 5 p.m. Eastern Standard Time.
22.3 This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original, and all of such counterparts shall
constitute one Agreement. To facilitate execution of this Agreement, the parties
may execute and exchange by telephone facsimile counterparts of the signature
pages.
22.4 From and after the date on which this Agreement is fully executed and
until the obligations of Buyer and Seller under this Agreement have terminated,
and subject to the terms of Section 18 hereof, the Seller shall not offer or
negotiate another competing sale of all or any part of the Property to any third
party. However, the parties recognize and agree that the Seller shall be
permitted to accept or entertain offers for the Property which are backup or
subordinate offers to this Agreement and the transactions contemplated hereby.
In no event could such backup offer supersede the rights of Buyer hereunder
unless and until Buyer is in default or otherwise terminates this Agreement.
Furthermore, Seller's obligations under this Section 22.4 shall be conditioned
at all times upon Buyer's exercise of due diligence pursuant to the terms hereof
with respect to the processing of any and all Approvals or permitting required
hereunder.
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23. representations and Warranties.
(a) representations and Warranties of Seller. Seller warrants and
represents to, and covenants and agrees with, Buyer as of the date hereof (and
on the Settlement Date shall reaffirm all such representations, covenants and
warranties as of that date) as follows:
(i) Seller holds the entire ownership interest in the Property and all
rights appurtenant thereto, and the signature of no other party is required to
convey any of such interests and rights.
(ii) Seller is a duly organized and validly existing Delaware
corporation, in good standing under the laws of Virginia, and has the legal
right, power and authority to enter into this Agreement and to perform all of
its obligations hereunder, and this Agreement constitutes the legal, valid and
binding obligation of Seller, enforceable in accordance with its terms. The
execution by the undersigned officer of Seller and delivery of this Agreement,
and the performance by Seller of its obligations hereunder, have been duly
authorized by all necessary action by and on behalf of Seller and will not
conflict with, or result in a breach of, any of the terms, covenants and
provisions of the articles of organization or by-laws of Seller as any of the
same may have been amended, any agreement or instrument to which Seller is a
party or by which it is bound, or, to the best of Seller's knowledge, any permit
or any Governmental Regulation (as defined below), regulation, order, judgment,
writ, injunction or decree of any court or governmental authority.
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(iii) No consent, approval or other authorization of, or registration,
declaration or filing with, any court or governmental agency or commission is
required for the due execution, delivery and performance of this Agreement by
Seller or for the validity or enforceability thereof against Seller.
(iv) There are no uncured notices, suits, orders, decrees or judgments
relative to violations of, nor to the best of Seller's knowledge, any other
violations of, (A) any easement, restrictive covenant or other matter of record
affecting the Property or any part thereof, or (B) any laws, statutes,
ordinances, codes, regulations, rules, orders, or other requirements of any
local, state or federal authority or any other governmental entity or agency
having jurisdiction over the Property or any part thereof, including, without
limitation, any of the foregoing affecting zoning, subdivision, building,
health, traffic, environmental, hazardous waste or flood control matters (all of
the foregoing, collectively, "Governmental Regulations").
(v) There are no other suits, actions or proceedings pending or, to
the best of Seller's knowledge, threatened, against or affecting the Property or
any of the transactions provided for herein before any court or administrative
agency or officer, and Seller is not in default with respect to any judgment,
order, writ, injunction, rule or regulation of any court or governmental agency
or office to which Seller is subject in any way affecting the Property or any of
the transactions provided for herein.
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(vi) There are not presently pending or, to the best of Seller's
knowledge, threatened with respect to the Property (A) any special assessments,
or (B) any condemnation or eminent domain proceedings.
(vii) Seller is familiar with the provisions of Sections 897 and 1445
of the Internal Revenue Code (the "Code") and Seller is not a "foreign person"
as that term is defined in Section 1445(f) (3) of the Code.
(viii) There are no leases, subleases, licenses or other rental
agreements or occupancy agreements (written or oral) which grant any possessory
interest in and to any space situated on or in the Property or that otherwise
give rights with regard to the use of the Property or any portion thereof.
(ix) The amount necessary to discharge all outstanding mortgages and
other monetary liens currently affecting the Property does not exceed the net
amount of the Purchase Price to be received by Seller at the Closing, after
deduction (if any) for the adjustments described above and payment of the
broker's commission payable hereunder, and there are no restrictions affecting
prepayment contained in any such mortgage(s).
(x) The Property has adequate, direct, indefeasible legal and
practical access of record for ingress from and egress to a public way.
(xi) Seller has never generated, stored (except in material compliance
with Governmental Regulations), handled or disposed of any hazardous substance,
hazardous waste, hazardous materials or oil (as any of such terms are defined
under
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applicable Governmental Regulations), and, to the best of Seller's knowledge,
there has been no release of any such hazardous substance, hazardous waste,
hazardous materials or oil into the environment from the Property, or in, on or
under the Property.
The foregoing representations of the Seller are true and correct in
all material respects, and the foregoing warranties and agreements are in full
force and effect and binding on Seller as of the Effective Date, and shall be
true and correct in all material respects and in full force and effect, and
shall be deemed to have been reaffirmed and restated by Seller, as of the
Settlement Date. Seller's representations and warranties as to the status and
condition of the Property made herein are based solely upon the actual knowledge
of the asset manager currently responsible for the disposition of the Property
on behalf of the Seller and neither Seller nor said employee shall be under any
obligation, at any time, to independently investigate those matters about which,
or relative to which, Seller has made a representation or warranty to Buyer
herein.
(b) representations and Warranties of Buyer. Buyer warrants and represents
to, and covenants and agrees with, Seller as follows:
(i) Buyer has the legal right, power and authority to enter into this
Agreement and to perform all of its obligations hereunder, and the execution and
delivery of this Agreement and the performance by Buyer of its obligations
hereunder, have been or will be duly authorized by all necessary corporate
action at
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the Settlement Date; and this Agreement and Buyer's performance hereunder will
not conflict with, or result in a breach of, any of the terms, covenants and
provisions of the Articles of Organization or By-Laws of Buyer, as same may have
been amended or, to the best of Buyer's knowledge, or order, judgment, writ,
injunction or decree of any court or any agreement or instrument to which Buyer
is a party or by which it is bound.
(ii) The officer signing this Agreement on behalf of Buyer is duly
authorized to execute the same on behalf of the Buyer and Buyer shall provide a
corporate resolution to such effect at the Closing.
(c) Liability for Warranties and representations. Seller agrees to
indemnify and hold Buyer harmless from and against any and all claims, losses,
liabilities, damages, expenses and fees, including without limitation,
reasonable attorneys' fees and expenses, incurred by Buyer as the result of the
failure of any of Seller's warranties and representations contained in this
Article 23. Conversely, Buyer agrees to indemnify and hold Seller harmless from
and against any and all claims, losses, liabilities, damages, expenses and fees,
including without limitation, reasonable attorneys' fees and expenses, incurred
by Seller as the result of the failure of any of Buyer's warranties and
representations contained in this Article 23 or elsewhere in this Agreement. The
provisions of this Article 23 shall survive the delivery of the Deed hereunder
or the termination of this Agreement for a period of up to one (1) year after
the Settlement Date.
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24. Entire Agreement - General Provisions.
This Agreement contains the entire understanding between the parties and
the parties agree that no representation was made by or on behalf of the other
which is not contained in this Agreement and that in entering into this
Agreement neither relied upon any representation not herein contained. All
provisions of this Agreement shall survive Settlement and shall not be merged in
the deed of conveyance from the Seller to the Buyer. Whenever references are
made to specific dates or times within which events are to occur, it is agreed
that TIME IS OF THE ESSENCE. This Agreement shall be interpreted under the laws
of the Commonwealth of Virginia. Paragraph headings are for convenience or
reference only and shall not affect the meanings or interpretations of the
sections. This Agreement shall not be binding upon Buyer or Seller until, having
been executed by Buyer, his Agreement Is executed by an officer of Seller and a
fully executed copy of this Agreement has been delivered to the Buyer.
[Signatures begin on following page.]
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IN WITNESS WHEREOF, the parties have executed this Agreement of Sale as of
the day and year set forth in the first paragraph above.
WITNESS: RESTON LAND CORPORATION, a
Delaware corporation
By: /s/ [Illegible] By: /s/ [Illegible]
------------------------------ -------------------------------
Asst. Sec. Vice President
WITNESS: CAREMATRIX OF MASSACHUSETTS
By: /s/ [Illegible] By: /s/ Xxxxxx Xxxxxx
------------------------------ -------------------------------
Exhibits:
---------
Exhibit A: Description of Property
Exhibit B: Form of Special Warranty Deed
Exhibit C: Form of Option Agreement
Exhibit C-1: Form of Option Release
Exhibit D: Preservation Standards
Exhibit E: Form of Escrow Agreement
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EXHIBIT A
Description of Property
[Attached]
-36-
EXHIBIT A (Legal Description To Be Inserted)
[Diagram of Reston Town Center]
EXHIBIT B
THIS DEED, made this _____ day of _____________ 199, by and between RESTON
LAND CORPORATION, a Delaware corporation, party of the first part ("Grantor");
and _______________ party of the second part ("Grantee").
W I T N E S S E T H:
That for and in consideration of the sum of Ten Dollars ($10.00) cash in
hand paid, and other good and valuable consideration, the receipt whereof is
hereby acknowledged, the party of the first part does hereby grant, bargain,
sell and convey unto the party of the second part, with Special Warranty of
Title, all that certain parcel of land, situate and being in Fairfax County,
Virginia, and being more particularly described in Exhibit "A", attached hereto,
and made a part hereof, subject to the following:
TOGETHER WITH AND SUBJECT TO the Declaration of Covenants, Conditions and
Restrictions for Reston Town Center Industrial recorded in Deed Book 7472
at Page 345 et seq. among the land records of Fairfax County, Virginia,
which are hereby incorporated by reference and imposed upon the real
property herein being conveyed. The imposition of the aforesaid Declaration
of Covenants on the land herein conveyed by this Deed and the acceptance of
this Deed by Grantee shall be deemed to fully satisfy and comply with the
provisions of Article VII, Section 1 of such Declaration;
TOGETHER WITH AND SUBJECT TO all other easements, restrictions,
reservations, covenants and rights-of-way of record in the chain of title
to the real property being conveyed.
IN WITNESS WHEREOF, RESTON LAND CORPORATION, a Delaware corporation, has
caused these presents to be executed by its Vice
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President pursuant to resolutions heretofore duly adopted by its Board of
Directors.
GRANTOR:
RESTON LAND CORPORATION
By: ____________________________
Vice President
GRANTEE:
_____________________________a,
________________________________
By:_____________________________
Name: __________________________
Title: _________________________
STATE OF VIRGINIA
COUNTY OF FAIRFAX, to-wit:
I, the undersigned Notary Public in and for the State and County aforesaid,
whose commission expires on the _____day of _______________ 199 do hereby
certify that _______________ whose name is signed as Vice President of Reston
Land Corporation to the foregoing Deed bearing date on the ____ day of
_____________ 199, personally appeared before me in my County aforesaid and
acknowledged the same to be the act and deed of Reston Land Corporation.
GIVEN under my hand this ______ day of ______________ 199
_________________________________
Notary Public
My Commission Expires:________________
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STATE OF ______________
COUNTY OF _____________, to-wit:
I, the undersigned Notary Public in and for the State and County aforesaid,
whose commission expires on the _____day of ______________ 199 do hereby certify
that ____________ whose name is signed as _________________ of ________________
___________________________ to the foregoing Deed bearing date on the ____ day
of ____________, 199, personally appeared before me in my County aforesaid and
acknowledged the same to be the act and deed of ________________________________
GIVEN under my hand this ______ day of ______________ 199
_________________________________
Notary Public
My Commission Expires:________________
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EXHIBIT C
THIS OPTION AGREEMENT, made this ___ day of _________$ 199 by and between
_________________, party of the first part; and RESTON LAND CORPORATION, a
Delaware corporation, party of the second part;
W I T N E S S E T H:
That for and in consideration of one dollar ($1.00) cash in hand paid, and
other good and valuable consideration, receipt whereof is hereby acknowledged,
the party of the first part does grant to Reston Land Corporation, the exclusive
right and option (the "Option") to purchase all of that certain parcel of land
situate, lying and being in Centreville District, Fairfax County, Virginia, and
more particularly described in Exhibit "A" attached hereto and made a part
hereof (hereinafter called the "Property")
Such Option may be exercised only at any time during the one year period
commencing thirty (30) months from the date hereof and ending forty two (42)
months from the date hereof, unless prior to the exercise of the Option the
party of the first part shall begin construction on the Property of up to 150
units of senior housing. The pouring of foundation footings for said building
shall be considered the start of construction so as to nullify the Option to
purchase the Property.
The consideration for such purchase shall be the original price set forth
in an Agreement of Sale (the "Agreement") between and Reston Land Corporation
dated _____________ 199_, and incorporated herein by reference.
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This Option shall be exercised by Reston Land Corporation by sending
written notice of such exercise to the party of the first part during the option
period.
Should Reston Land Corporation exercise its option hereunder, Settlement
shall be held within thirty (30) days from the date of the exercise of the
option at a place to be selected by Reston Land Corporation and satisfactory to
the party of the first part. Real estate taxes and other charges and
encumbrances shall be adjusted to the date of Settlement and the Property shall
be conveyed by Special Warranty Deed free and clear of all liens, encumbrances
and encroachments, but subject however to the following:
(a) The Declaration of Covenants, Conditions and Restrictions for Reston
Town Center Industrial recorded in Deed Book 7472 at Page 345 et seq.
among the land records of Fairfax County, Virginia.
(b) All other easements, restrictions, reservations and rights of way
affecting the Property, as of the date hereof, and those which have
been subsequently added with approval of the party of the second part.
Reston Land Corporation shall pay the state and local Grantee Tax on the
deed. ____________________ shall pay the state and local Grantor Tax and bear
the cost of preparation of the deed.
If the party of the first part commences construction on the Property of up
to 150 units of senior housing prior to the exercise of the Option, or
alternatively, if Reston Land
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Corporation fails to exercise the Option prior to expiration of the option
period, this Agreement shall cease as to the Property and shall become null and
void and of no further force and effect.
So long as this Option remains in effect, the party of the first part
warrants and represents that it will not sell, transfer or otherwise dispose of
the Property, without the prior written consent of Reston Land Corporation.
WITNESS the following signature and seal.
__________________________________
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XXXXX XX XXXXXXXX
XXXXXX XX XXXXXXX, to-wit:
I, the undersigned Notary Public in and for the County and State aforesaid,
do hereby certify that _________________ whose name is signed to the above
Option Agreement dated the ____ day of ______________ 199_, has this day
acknowledged the same before me in my county and state aforesaid.
GIVEN under my hand this ______ day of ___________________ 199.
_________________________________
Notary Public
My Commission Expires:________________
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EXHIBIT C-1
THIS RELEASE is made as of _________________________, 199, by and between
____________________ the party of the first part, and RESTON LAND CORPORATION, a
Delaware corporation;
RECITALS:
By Option Agreement, dated ____________________, by and between the party
of the first part and Reston Land Corporation (the "Option"), the party of the
first part granted to Reston Land Corporation the exclusive right and option to
purchase all of that certain parcel of land situate, lying and being in Hunter
Mill District, Fairfax County, Virginia, and or particularly described in
Exhibit "A" attached hereto and made a part hereof (hereinafter called the
"Property")
NOW, THEREFORE, WITNESSETH THAT for and in consideration of the foregoing
and the sum of Ten Dollars ($10.00) the receipt of which is hereby acknowledged,
the Reston Land Corporation hereby releases, relinquishes and terminates all
rights title and interest which it, as party to the Option, acquired in and to
the Option and the Property described therein.
This Release shall in all respects, be governed, construed, applied and
enforced in accordance with the laws of the Commonwealth of Virginia.
This Release shall be binding upon and inure to the benefit of the
respective legal representatives. successors, assigns, heirs, and devisees of
the parties.
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WITNESS the following signature and seal:
___________________________ (SEAL)
RESTON LAND CORPORATION
-00-
XXXXX XX XXXXXXXX
XXXXXX XX XXXXXXX, to-wit:
I, the undersigned Notary Public in and for the County and State aforesaid,
do hereby certify that _________________ whose name is signed to the above
Release dated the ____ day of _______________________ 199_, has this day
acknowledged the same before me in my county and state aforesaid.
GIVEN under my hand this ______ day of ____________________ 199 .
_________________________________
Notary Public
My Commission Expires:________________
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EXHIBIT D
Preservation Standards
[Attached]
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Projects Subject to DRB Approval
Reston Standards: PRESERVATION OF NATURAL, AREAS
[Diagram of Natural Area to be Preserved]
1. SCOPE:
Field flags and fencing are intended to provide protection to trees and
shrubs within natural areas. In this context, natural area means
essentially "untouched and undisturbed" (i.e., no grubbing may occur).
2. APPROVALS: To obtain the following approvals contact the DRE Secretary at
Reston Association (435-6567) and Architecture & Design at Reston Land
Corporation (RLC) (620-4780).
a. Field Flags shall be in place prior to the use of clearing equipment.
Location shall be field checked by the Design Review Board (DRB) and
Reston Land Corporation (RLC) prior to equipment operation.
b. Fencing shall be in place prior to the use of grading equipment.
Location shall be field checked by RLC prior to equipment operation.
c. Removal of any living vegetation within natural areas must be
specifically approved by DRE.
d. All easements to be placed in natural areas or special changes to
approved site plans shall require approval by DRB and RLC.
3. GENERAL REQUIREMENTS: Fencing required shall be 4' to 6' high snow fencing
or chain link fencing, at the discretion of RLC & DRB.
a. Fencing shall not be nailed to any tree or shrub.
b. Fencing shall be maintained in a vertical position at all times, and
shall not be removed until all heavy equipment is removed from the
site and final grading has commenced.
c. No materials or supplies shall be stored within preservation areas.
d. Any roots from trees to be saved that protrude from a cut in grade
surrounding a save area, must be cut cleanly to grade and, if over 1"
diameter, painted with asphalt base paint (Treekote) to hold moisture.
e. Trees and shrubs located within natural areas that have specifically
been approved for removal shall be cut horizontal as close as possible
to grade. The root system shall remain intact. The size of the natural
area will determine whether such cut materials should remain for
natural decay or be completely
EXHIBIT E
ESCROW AGREEMENT
THIS ESCROW AGREEMENT made and entered into as of the 6th day of September
1996 by and among RESTON LAND CORPORATION, a Delaware corporation authorized to
conduct business in the Commonwealth of Virginia ("Seller"), CAREMATRIX OF
MASSACHUSETTS, INC., a Delaware corporation authorized to conduct business in
the Commonwealth of Virginia ("Purchaser"), and _____________________ ("Title
Company")
STATEMENT OF PURPOSE
Seller and Purchaser have entered into an Agreement of Sale dated
_________________, 1996 ("Purchase Agreement"), for the sale and purchase of
that certain parcel of ground situate, lying and being in Hunter Mill District,
Fairfax County, Virginia, containing a total of approximately five (5) acres,
and being a portion of Section 95, Block 1, Reston (a portion of Fairfax County
Tax Map No. 17-3-1-5), as more particularly described in the Purchase Agreement
(the "Property"). Purchaser and Seller desire to have the Title Company hold the
Initial Deposit, the Additional Deposit and the Final Deposit, as required under
the Purchase Agreement, in escrow pursuant to the terms of this Agreement .
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereby agree as follows:
25. Appointment. Purchaser and Seller hereby appoint Title Company as
Escrow Agent hereunder.
26. Xxxxxxx Money Deposit. Purchaser has delivered and deposited with the
Title Company to serve as "Escrow Agent", (i) the amount of $50,000.00
representing the Initial Deposit, (ii) the amount of $50,000.00 representing the
Additional Deposit, and (iii) the amount of $50,000.00 representing the Final
Deposit, as required by the Purchase Agreement. The Title Company agrees to
immediately deposit said funds in an account at a federally insured depository
institution, and to hold and disburse said funds, and any interest earned
thereon (together the "Xxxxxxx Money") as hereinafter provided.
27. Instructions. Upon written notification from Purchaser and Seller that
the sale contemplated is to be consummated, Title Company shall deliver the
Xxxxxxx Money at Closing by wire transfer to Seller to be applied to the
purchase price for the benefit of Purchaser, unless otherwise instructed by the
parties hereto. Upon written notification from both Purchaser and Seller that
the contemplated sale shall not take place, Title Company
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shall deliver the Xxxxxxx Money to Purchaser or to Seller, as directed, or as
otherwise instructed by the parties hereto.
28. Duties of Title Company/Exculpation. Purchaser and Seller agree that in
performing any of its duties under this Agreement, Title Company shall not be
liable for any loss, costs or damage which it may incur as a result of serving
as Title Company hereunder, except for any loss, costs or damage arising out of
its willful default or negligence. Accordingly, Title Company shall not incur
any liability with respect to (a) any action taken or admitted to be taken in
good faith upon advice of its counsel given with respect to any questions
relating to its duties and responsibilities, or (b) to any action taken or
admitted to be taken in reliance upon any document, including any written notice
of instruction provided for in this Agreement, not only as to its due execution
and validity and effectiveness of its provisions, but also to the truth and
accuracy of any information contained therein, which Title Company shall in good
faith believe to be genuine, to have been signed or presented by a proper person
or persons and to conform with the provisions of this Agreement.
29. Indemnification. Purchaser and Seller hereby agree to indemnify and
hold harmless Title Company against any and all losses, claims, damages,
liabilities and expenses, including, without limitation, reasonable attorneys'
fees and disbursements, which may be imposed upon or incurred by Title Company
in connection with its serving as Title Company hereunder, unless such losses,
claims, damages, liabilities and expenses are the result of Title Company's
willful default or negligence in performing its obligations hereunder.
30. Disputes. In an event of dispute between any of the parties hereto,
sufficient in the discretion of Title Company to justify its doing so, Title
Company shall be entitled to tender unto the registry or custody of any court of
competent jurisdiction all money or property held by it under the terms of this
Agreement, together with such legal pleadings as it deems appropriate and
thereupon be discharged.
IN WITNESS WHEREOF, the undersigned have caused this instrument to be duly
executed and sealed as of the day and year first above written.
SELLER:
RESTON LAND CORPORATION, a Delaware
corporation
By: /s/ [Illegible]
-------------------------------
Name: /s/ [Illegible]
-----------------------------
Title: Vice President
----------------------------
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PURCHASER:
CAREMATRIX OF MASSACHUSETTS, INC., a
Delaware corporation
By:______________________________
Name: ___________________________
Title: __________________________
ESCROW AGENT:
By:______________________________
Name: ___________________________
Title: __________________________
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