Attached files
Exhibit 10.5
LOT
PURCHASE AGREEMENT
BALLENGER
RUN
THIS
LOT PURCHASE AGREEMENT (the "Agreement") is entered into as of
__________, 2014 but effective as of the Effective Date (as
hereinafter defined) by and between a SeD Maryland Development,
LLC, a Delaware limited liability company (the "Seller") and NVR,
INC., a Virginia corporation d/b/a RYAN HOMES (the
"Purchaser").
RECITALS:
A. Seller
is the contract purchaser under that certain Real Estate Sales
Contract dated May 28, 2014 between RBG Family, LLC, as seller
("Contract Seller") and Purchaser, as purchaser (the "Raw Land
Contract") with regard to certain real property located in
Frederick County, Maryland (the "County") which is more
particularly described in the legal description set forth on
Exhibit A-I (the "Project"). A copy of the proposed development
plan for the Project is attached hereto as Exhibit A-2 (the
"Development Plan"). The Project consists of a five-phase
development which shall be improved by five home types: large
single-family dwellings, small single-family dwellings,
neo-traditional single-family dwellings, single-family attached
villas, and two sizes of townhomes (the "Home Types"). This
Agreement sets forth the parties' obligations with regard to the
home type described on Exhibit B. Concurrently with the execution
of this Agreement, Seller and Purchaser are executing four other
Lot Purchase Agreements with regard to the other Home Types (the
"Related LPAs").
B. The
Raw Land Contract was terminated pursuant to its terms. This
Agreement is contingent upon Purchaser and Contract Seller entering
into a Second Amendment to the Raw Land Contract which conforms to
the terms and conditions of the Assignment Agreement (defined
below) (the "Second Amendment") reinstating the Raw Land Contract
(the "Contingency"). If the Contingency is not satisfied by
December 12, 2014, this Agreement shall be null and void, unless
otherwise agreed in writing by the parties to this
Agreement.
C.
Concurrently with the execution of this Agreement, Seller is
acquiring the rights of the contract purchaser under the Raw Land
Contract pursuant to that certain Assignment and Assumption
Agreement between Purchaser, as assignor, and Seller, as assignee
(the "Assignment Agreement"), a copy of which is attached hereto as
Exhibit C.
D. In
the event that either party defaults under either this Agreement or
the Assignment Agreement prior to Seller acquiring the Property (as
hereinafter defined), the Assignment Agreement shall control the
disposition of the Deposit.
E. Seller
desires to sell, and Purchaser desires to purchase, the lots which
are described on Exhibit D and depicted on the Development Plan
(collectively, the "Lots" or the "Property", individually, a "Lot")
in accordance with the terms and conditions of this Agreement. The
Lots constitute part of the Project. The terms "Lots", "Property"
and "Lot" refer to the parcels of land that are the subject of this
Agreement. The terms "lots" and "lot" refer to the subdivided lots
that are contained within the entire Project.
NOW,
THEREFORE, for and in consideration of the mutual covenants of the
parties as set forth herein, Seller does hereby grant to Purchaser
the right to purchase and Purchaser agrees to purchase in fee
simple the Property pursuant and subject to the following
covenants, conditions, terms and obligations.
1.
EFFECTIVE DATE; STUDIES.
1(a)
Effective Date. This Agreement and any modification hereto will
only be effective if signed by the Area President of Purchaser, or
its designee, Vice President of Operations, and at least two (2)
other officers of Purchaser. In the event that Purchaser fails to
deliver the entire Deposit as required hereunder, this Agreement
automatically, without any action required by either party, shall
become null and void. The "Effective Date" of this Agreement is the
date on which the Second Amendment is signed by Purchaser and
Contract Seller. If the Second Amendment is not signed by Purchaser
and Seller by December 12, 2014, this Agreement shall automatically
be null and void.
1b)
Studies. Purchaser shall have a study period commencing upon the
Effective Date and terminating on the date that is three (3)
business days before the last day of the study period under the Raw
Land Contract, (the "Study Period"), to undertake such engineering,
development, marketing and other studies as Purchaser may desire.
Seller does not have any plans or reports related to the Property
that were not provided to Seller by Purchaser. Purchaser agrees and
acknowledges that Purchaser has had the opportunity to investigate
the Project during the due diligence period under the Raw Land
Contract. Pursuant to the Assignment Agreement, Purchaser has
provided Seller with copies of the results of Purchaser's
investigation, including, but not limited to, a Phase I
Environmental Assessment prepared by Geo-Technology Associates,
Inc. dated June 26, 2014 (the "Environmental Study"). The parties
acknowledge that there is an underground storage tank on the
Property. Seller shall remove the underground storage tank, and
request that the Maryland Department of the Environment issue a No
Further Action letter with regard thereto. Issuance of such No
Further Action letter shall be a condition precedent to Purchaser's
first acquisition of a Lot hereunder. If Purchaser is not satisfied
with the Property or the transaction for any reason, or no reason
at all, Purchaser may as a matter of right, terminate this
Agreement by delivering written notice to Seller at any time prior
to the end of the Study Period. In such event, the Deposit shall be
returned to Purchaser in accordance with the Assignment Agreement,
and thereafter the parties shall be relieved of further liability
from performing hereunder.
2.
PURCHASE OF LOTS; DEVELOPMENT PHASING SCHEDULE.
2(a)
The "Model Lot" is the Lot upon which Purchaser shall construct a
model home (the "Model Home") to facilitate marketing of the
Project. The Model Lot is denoted as such on the Development Plan.
The parties agree and acknowledge that the County requires that
less development be completed in order for the County to issue a
building permit for the Model Home. Purchaser, at its sole cost,
shall apply for and in good faith obtain a building permit for
construction of the Model Home on the Model Lot as soon as Seller
completes all development work necessary for the issuance of the
Model Home building permit. Purchaser shall purchase the Model Lot
within five (5) business days after the date that Purchaser may
obtain, upon application and payment of required fees, a building
permit for the Model Home. The date upon which Purchaser acquires
the Model Lot shall be referred to herein as the "Model Lot Closing
Date". The purchase of the Model Lot shall not be counted toward
the minimum Lot purchase requirement hereunder.
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2(b)
Attached hereto as Exhibit E is the schedule for development of the
Project (as such may be modified by mutual agreement of the parties
from time to time, the "Phasing Plan"). The Phasing Plan
contemplates that Seller shall develop the Project in four phases.
Each phase may contain lots for one or more Home Types. A phase may
not contain any lots for a particular Home Type. The Lot purchase
schedule set forth in Paragraph 2(c) below shall be subject to the
availability of Lots in accordance with the Phasing
Plan.
2(c)
Seller shall deliver written notice to Purchaser (the "Completion
Notice") to advise Purchaser that Lots are available for purchase
(the "Available Lots") and the Conditions Precedent (defined below)
for such Lots are fulfilled. The first Completion Notice delivered
by Seller after the Model Lot Closing Date may be referred to
herein as the "Initial Completion Notice" and shall be delivered on
or before December 31, 2016. Each Completion Notice shall identify
the location of the Available Lots and Purchaser may select which
of the
Available
Lots that it will purchase. The total number of Available Lots at
any time under this Agreement and the Related LPAs shall be
twenty-four (24) lots. Such total Available Lots under this
Agreement and the Related LPAs may consist of lots for one or more
of the Home Types. In the event that Seller does not meet the
Available Lots requirement of twenty-four (24) lots, Purchaser
shall deliver written notice to Seller and:
(i)
So long as Seller is, and before the date of Purchaser's notice
was, diligently pursuing the fulfillment of its obligations
hereunder in order to create Available Lots, Seller shall be
entitled additional time to prepare the Lots for purchase. In no
event shall the additional time be more than six (6) months.
Purchaser may elect to defer the Lot purchase schedule and any
escalation of the Purchase Price by the same number of days until
Seller meets the Available Lots requirement. The parties agree to
document the commencement and termination of such additional time
period and the effect upon the purchase schedule and Purchase Price
escalation.
(ii)
In the event that Seller is not, or before the date of Purchaser's
notice was not, diligently pursuing the fulfillment of its
obligations hereunder in order to create Available Lots, or in the
event that Seller does not meet the Available Lots requirement
within the six (6) months described in Subparagraph 2(c)(i) above,
the terms and conditions of Paragraph 8, regarding Seller default,
shall control.
2(d)
After the Model Lot Closing Date, provided Seller has delivered a
Completion Notice to Purchaser and the Conditions Precedent
(defined below) are fulfilled with regard to the Lots to be
purchased, Purchaser shall purchase the minimum number of Lots per
quarter which is set forth on Exhibit D. Except for the first
quarter, a "quarter" shall consist of three (3) full calendar
months. The "first quarter" shall commence ninety (90) days after
the Model Lot Closing Date and end on the last day of the third
full calendar month thereafter. Purchaser shall have the right in
any quarter to settle on more than the minimum number of Lots
required to be purchased in such quarter at the Purchase Price then
in effect and shall receive cumulative credits toward the minimum
number of Lots required to be purchased in succeeding quarters.
Purchaser shall be entitled to more than one (1) settlement per
month. Purchaser may purchase more than one Lot at a settlement.
Purchaser may purchase more than one single-family lot at a
settlement. In the event that the Lots which are the subject of
this Agreement and are described on Exhibit D are townhouse or
attached villa lots, then Purchaser must purchase at one settlement
the lots that will be improved by attached dwellings.
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2(e)
All settlements shall be held at the offices of NVR Settlement
Services, 3701 Pender Drive, Suite 210, Fairfax, VA 22030, at such
time or times as Purchaser shall designate.
2(f)
Seller shall provide a location on the Property, at no cost to
Purchaser, within one hundred feet (100') of the entrance to the
Property, for the installation by Purchaser of a sales trailer. The
location shall be selected by Purchaser, subject to Seller's
reasonable approval. Purchaser shall maintain the trailer and the
site on which it is located in good repair and free of debris. The
trailer shall be locked at all times that it is vacant. Upon
vacating the site, Purchaser shall remove the trailer and restore
the Property to evenly graded, clean and good
condition.
2(g)
Purchaser's right to purchase Lots hereunder shall be in full force
and effect so long as Purchaser fulfills its obligations hereunder.
In the event that Purchaser fails to purchase the minimum number of
Lots as required herein during any one quarter, then Seller may
deliver a default notice to Purchaser and exercise remedies in
accordance with Paragraph 8 below.
2(h)
The purchase price for each Lot purchased hereunder shall be in the
amount set forth on Exhibit B (as applicable, the "Purchase
Price"). Commencing on the first (1st) day of the third (3rd)
quarter hereunder (see subparagraph 2(d) above for determination of
quarters) and continuing on the first day of each and every quarter
thereafter the Purchase Price for each Lot shall increase by 0.75%.
By way of example and not of limitation, in the event that the
Model Lot Closing Date is July 15, 2015, then the following dates
shall apply:
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First quarter thereafter
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October
16, 2015 — January 31, 2016
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Second quarter thereafter
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February
1, 2016 - April 30, 2016
|
|
Third quarter thereafter
|
May
1, 2016 - July 31, 2016
Purchase
Price increases by 0.75% on May 1,
2016
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|
|
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On
the first day of each quarter thereafter the Purchase Price shall
increase by 0.75%.
2(i)
With regard to this Agreement and the Related LPAs, the total sum
of Five Million Six Hundred Thousand and No/ 100 Dollars
($5,600,000.00) as a good-faith deposit (the "Deposit") will be
delivered by Purchaser in accordance with the terms of this
Agreement, as follows:
Purchaser previously delivered $200,000.00 to the
Contract Seller under the Raw Land Contract; such $200,000.00 shall
be applied as a portion of the Deposit
hereunder;
in accordance with the Assignment Agreement,
Purchaser shall deliver $1,300,000.00 to Commonwealth Land Title
Insurance Company ("Commonwealth") two (2) business days before the
expiration of the study period under the Raw Land Contract,
Commonwealth shall deliver such $1,300,000.00 to the Contract
Seller under the Raw Contract prior to the expiration of the study
period thereunder, and such $1,300,000.00 shall be applied as a
portion of the Deposit hereunder; and
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(iii)
Purchaser shall deliver $4,100,000.00 to the closing agent which
will handle Seller's acquisition of the Project no later than two
business days before the closing under the Raw Land Contract, but
in no event prior to Purchaser's receipt and approval of Seller's
Certificate of Insurance in accordance with Subparagraph 3(p)
below, and such $4,100,000.00 shall be applied as a portion of the
Deposit hereunder.
The
Deposit shall be returned to Purchaser in the form of a credit
toward the Purchase Price payable for each Lot at the time of each
settlement (the "Deposit Credit"). Exhibit B sets forth the
allocation of the Deposit and Deposit Credits among all of the lots
subject to this Agreement and the Related LPAs. Notwithstanding
anything herein to the contrary, in the event of an uncured default
by Purchaser beyond any applicable cure periods, it is the intent
of the parties that, Seller shall only be entitled to the portion
of the Deposit allocated to this particular Agreement as liquidated
damages in accordance with Subparagraph 8(b) below.
2(j)
At the closing under the Raw Land Contract, Seller shall execute
and deliver an indemnity deed of trust to trustees for the benefit
of Purchaser (the "Deed of Trust") which shall secure the return of
the Deposit to Purchaser as provided in this Agreement. The form of
Deed of Trust is attached hereto as Exhibit F. The Deed of Trust
shall be subordinate only to the first priority position of
Seller's institutional acquisition and development loan(s) and
shall be recorded after the deed conveying title to the Project to
Seller from the Contract Seller. References to the Deposit shall
mean the amount paid to date or remaining after any credits as
provided in this Agreement. The Deposit, or any portion thereof,
shall be used by Seller solely for the acquisition and development
of the Property and for no other purpose. Further, Seller hereby
authorizes Purchaser to communicate directly with Seller's
lender(s) about any and all matters relating to their respective
loans, including, after an event of default under either such loan,
communication between said lender(s) and Purchaser relating to any
default remedies that may be pursued or possible loan
restructurings or workout arrangements. Seller hereby authorizes
such communications but requires that Purchaser deliver to Seller
prior written notice of such communications. Any subordination
agreement or other document Seller's lender desires for Purchaser
to execute, join or consent to shall contain non-disturbance
language as to this Agreement and allow Purchaser the right, in its
sole discretion, to cure any default of Seller under the senior
financing.
3.
SELLER'S OBLIGATION TO PREPARE LOTS. Before Seller commences
development of any phase set forth on the Phasing Plan, Purchaser
shall deliver to Seller a plan which shall depict the location and
grading of each Home Type on the lots located in such phase (the
"House Location Plan"). Seller shall have the right to disapprove
of the House Location Plan in its reasonable discretion, for
reasons including but not limited to, the plan is detrimental to
the remainder of the Project, requires a zoning variance, or is not
in conformance with Seller's overall grading plan. In such event,
Seller and Purchaser shall cooperate to generate a mutually
acceptable House Location Plan. All references herein to the "House
Location Plan" shall be the mutually acceptable plan. Seller shall,
in accordance with local government requirements and as required
herein, at its own cost and expense, promptly and diligently
develop and improve the Property into fully improved and finished
building lots by performing the following:
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3(a)
Grading. Seller shall perform over-lot clearing and rough grading
of the Property in accordance with the House Location Plan. Subject
to the provisions below regarding controlled fill house pads,
Seller shall cut, fill and grade each Lot as necessary for the
proper and lawful drainage of such Lot before erection of the Home
Type designed for the Lot on the House Location Plan. It is
intended that each group of contiguous Lots shall be as compatible
as possible with the existing topography of such Lots, within the
parameters of customary lot drainage and slope practices and/or
regulations. Purchaser and Seller agree to cooperate to assure the
accomplishment of the foregoing. Seller will notify Purchaser at
such time as grading is completed on any section(s) or phase(s). A
"walk through" inspection will be made by a representative of both
Purchaser and Seller, and a list of discrepancies, if any, will be
prepared. Seller will promptly correct any discrepancies. When part
or all of the foundation, at the design elevation of a house sited
on a given Lot, cannot be placed at natural grade capable of
supporting such foundation, Seller will supply controlled fill
house pads with the following dimensions: overall length and width
of the building envelope, plus ten feet (10') on each side as
measured from the minimum set-back line designated by the
applicable governmental authority or as designated in the House
Location Plan. Each such fill Lot must have a pad that is certified
by a registered engineer who is approved by Purchaser to have
adequate load bearing capacity to support a footing/foundation of
either standard Purchaser house design and specifications or an
engineered footing design approved for use by said engineer. Each
such pad shall have clean fill, free of organic matter and other
debris. In instances where intermediate or final grading plans
require slopes, the pad design and installation shall take into
account whether slopes need to benched or otherwise stabilized to
ensure an adequate influence zone of foundation bearing in order to
meet the above-described load bearing capacity. For eighteen (18)
months after a Lot closing and provided the Purchaser or its
grading contractor does not "over dig" or "over cut" the foundation
for such fill Lot, Seller shall be responsible and liable for
failure of the controlled fill house pad, notwithstanding the
engineer's certification of same. Any claim that a controlled fill
house pad has failed must be made within eighteen (18) months after
the Lot settlement. Lots shall be delivered free of rubbish and
debris.
3(b)
Water and Sewer Mains. Seller shall install water and sewer mains
in the street or in the rear of each Lot with laterals to Lot lines
and shall clearly mark same. Seller shall use reasonable efforts to
place the sanitary sewer lateral at a depth to allow Purchaser to
construct gravity flow basement homes on each Lot. With regard to
the five lots noted on the Development Plan, Seller shall be
responsible for the installation of water and sewer on pipestem (or
flag lots) from the main to the flare in the Lot (or to the
building restriction line). Purchaser shall pay any allocation, tap
or connection fees. Seller shall furnish written evidence of the
paid fees, if any, and written evidence that such are transferable
from Seller to Purchaser at no cost to Purchaser. Notwithstanding
anything herein inconsistent or to the contrary, there shall be no
covenants, declarations, easements, liens or encumbrances affecting
any of the Lots which will have a priority over subsequent recorded
purchase money mortgage liens, or any refinance of same,
encumbering the Property until such lien has been legally perfected
following default. In the event such a lien or encumbrance is found
to exist, Seller will, at Seller's sole expense, promptly cause
such lien or encumbrance to be subordinated to any purchase money
lien or encumbrance or any refinancing of same.
3(c)
Bonds. Seller shall post and maintain all forms of surety bonds as
may be required by the applicable governmental authorities for
development of the Lots and the drainage facilities contemplated by
this Agreement, whether such facilities are on or off the
Lots.
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3(d)
Dedication to Public/Acceptance by Homeowners Association. Seller
shall cause all streets, roads, driveways, parking areas and other
public and private improvements to be dedicated to public use and
accepted for maintenance by the applicable governmental authorities
or Homeowners Association, whichever applies, at the earliest
practical date. Seller shall not top coat any surfaces prior to
Purchaser's completion of home construction in a given section or
phase of the Property.
3(e)
Rock. In the event that rock is encountered on the Lots by Seller
during its grading operation, Seller shall blast and/or excavate
rock to cause the finished Lot to conform to the House Location
Plan. This will not include any foundation or below finished Lot
grading. However, only if contemporaneous with Seller's grading
operations, Seller shall blast for foundations and utility trenches
upon request by Purchaser. Purchaser shall reimburse Seller within
thirty (30) days after receipt of Seller's written demand for the
costs of such blasting, provided Purchaser pre-approves such work
and costs.
3(f)
Infrastructure. Seller shall (a) complete paving of common area
streets and common driveways including alleys, (b) construct
sidewalks within all common areas, but not on any Lots, (c)
construct all curbs and gutters, (d) provide water and sewer
distribution systems, (e) install street lighting; and (f) install
street signs. Purchaser shall construct sidewalks on all
Lots.
3(g)
Quality of Work. Seller warrants that all work, materials and
improvements performed or to be performed under this Agreement
shall be of good and workmanlike quality, free of defects, and
compliant with all applicable plans, specifications, specific
conditions, and this Agreement, and shall be in accordance with and
acceptable under the rules, regulations, laws and ordinances of the
applicable governmental authorities. Seller shall use all due
diligence and best faith efforts to promptly complete all work and
improvements required by Seller under this Agreement. Seller
further warrants and guarantees that all such work and material
shall remain free from defects for a period of time ending two
years after the date of the last settlement on the last Lot
purchased by Purchaser pursuant to this Agreement (the "Warranty
Period"). Seller agrees to repair any defect to improvements made
by Seller pursuant to this Agreement, which manifests itself during
the Warranty Period, at its cost and expense immediately after
being notified of any such defect by Purchaser. Notification by
Purchaser need not be given during the Warranty Period provided the
defect involved is covered by the terms of this Subparagraph.
Seller shall also repair or replace, at no cost to Purchaser, all
work of third parties damaged or destroyed in the process of
performing warranty service under the terms of this
Subparagraph.
3(h)
Green Space, Property Maintenance. In accordance with the
County-approved landscaping plan, (i) Seller shall be responsible
for landscaping and tree planting in all areas outside the
boundaries of the individual Lots, and (ii) Purchaser shall be
responsible for landscaping and tree planting in all areas inside
the boundaries of the individual Lots. Seller shall use reasonable
efforts to install a permanent entry sign including landscaping on
or about the date on which Purchaser commences its marketing
activities on the Property from either its sales trailer or Model
Home, but in no event later than six (6) months following Model Lot
purchase. Seller shall maintain the entry sign and surrounding
landscaping. Seller shall also be responsible for meeting any state
or local requirements for tree conservation or reforestation. Until
the establishment of the Homeowners' Association and assumption of
obligations by such Homeowners' Association, Seller shall maintain
the common areas and all other areas of the Property, including,
but not limited to, all areas not subdivided into Lots and all Lots
that may be subdivided but not purchased by Purchaser; said
maintenance shall include, but not be limited to, mowing the grass.
Further, Seller shall be responsible for seeding or sodding, at
Seller's election, all portions of the Property which are not
subdivided into the Lots, including, but not limited to, grass
within cul-de-sacs, traffic circles, boulevard entrances and
boulevard medians.
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3(i) Amenities. Seller shall be responsible for
the construction and installation of all amenities required
pursuant to the County-approved development plans for the Property
(the "Amenities"). Seller shall deliver to Purchaser, as soon as
available, a proposed plan and schedule for the construction of the
Amenities (the "Amenity Plan"). Purchaser shall have the right to
approve the Amenity Plan and any proposed changes to the Amenity
Plan. Seller shall provide Purchaser with recorded and or
unrecorded copies of the plans approved by the local jurisdiction
with regard to the Amenities. Seller shall commence construction of
the pool and clubhouse prior to Purchaser's acquisition of the
150th lot within the Project (under this Agreement and the Related
LPAs). Seller shall complete construction of the Amenities located
in the constructed phases of the Project within one hundred (100)
days after Purchaser's acquisition of the three hundredth
(300th)
lot within the Project (under this Agreement and the Related
LPAs).
3(j)
Utilities. Seller shall provide underground telephone, electrical
and gas utility lines and cable television adjacent to the Lot
lines. Each utility line shall be stubbed to run to the Lot line
rather than the street or alley.
3(k)
Poor Soil Conditions. When expandable soils, poorly drained soils,
soils containing organic materials or trash, or sink holes are
encountered on a Lot, Seller shall remove any such material and
replace such soils with proper soils suitable to the circumstances,
including, and as applicable, for supporting a footing/foundation
as described in Subparagraph 3(a) and backfill. Replacement soils
must be certified by a registered engineer approved by Purchaser in
its reasonable discretion. If any unsuitable soils are encountered
on a Lot, Seller shall provide soil engineer's certifications on
all building pads impacted by such soils. Seller shall be
responsible and liable for failed control fill house pads for
eighteen (18) months after a Lot closing as set forth in
Subparagraph 3(a) above.
3(l)
Hazardous Materials. For purposes of this Agreement, the following
terms shall have the definitions set forth below:
"Environmental Requirement" means any law now
existing or hereafter created, issued or enacted and all amendments
thereto, modifications thereof and substitutions therefor, which in
any way pertains to human health, safety or welfare, Hazardous
Materials, Hazardous Materials Contamination or the environment
(including but not limited to ground, air, water or noise pollution
or contamination, and underground or above ground tanks) and shall
include without limitation, the Resource Conservation and Recovery
Act (the Solid Waste Disposal Act), 42 U.S.C. § 6901
et
seq.; the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, 42
U.S.C. § 9601 et
seq. ("CERCLA"), as amended by
the Superfund Amendments and Reauthorization Act of 1986 ("SARA");
the Hazardous Materials Transportation Act, 49 U.S.C. §
1801 et
seq.; the Federal Water
Pollution Control Act, 33 U.S.C. § 1251 et
seq., the Clean Air Act, 42
U.S.C. § 7401 et
seq.; the Toxic Substances
Control Act, 15 U.S.C. § 2601 et
seq.; and the Safe Drinking
Water Act, 42 U.S.C. § 300f et
seq.
"Hazardous
Materials" means any and all hazardous or toxic substances, wastes
or materials which, because of their quantity, concentration, or
physical, chemical or infectious characteristics, may cause or pose
a present or potential hazard or nuisance to human health, safety
or welfare or to the environment when used, treated, stored,
disposed of, generated, manufactured, transported or otherwise
handled, including without limitation, any substance, waste or
material which is or contains asbestos, radon, polychlorinated
biphenyls, urea formaldehyde, explosives, radioactive materials or
petroleum products.
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"Hazardous
Materials Contamination" means the contamination of the soil,
ground water, air or other elements on, in or constituting a part
of, the Property by Hazardous Materials.
Seller
and Purchaser agree and acknowledge that the Environmental Study
discloses the current environmental condition of the Property. In
the event that, within thirty (30) days after Purchaser has
completed the excavation of the footings and foundation, Purchaser
discovers Hazardous Materials Contamination on such Lot and such
Hazardous Materials Contamination was not caused by Purchaser,
Purchaser shall deliver written notice to Seller (within such
thirty-day period) together with reasonably sufficient supporting
evidence. Within thirty (30) days after receipt of such notice,
Seller shall elect to do one of the following: (i) use commercially
reasonable efforts to remediate the Hazardous Materials
Contamination in accordance with all applicable Environmental
Requirements, or (ii) repurchase the Lot for the Purchase Price
paid by Purchaser, plus the costs of such transaction, plus the
costs of any improvements installed on such Lot by
Purchaser.
3(m)
Seller/Purchaser Responsibility Checklist. Attached hereto as
Exhibit G is a list of obligations of Seller and Purchaser with
regard to the Property (the "Checklist"). In the event of any
discrepancy between the Checklist and this Agreement, the terms and
conditions of this Agreement shall control.
3(n)
Completion of Work. In the event Seller shall fail to make repairs
or to otherwise complete any improvements to the Property (i)
relative to storm water management or erosion and sediment control
or (ii) which prevent Purchaser from obtaining permits for
construction of a dwelling unit on the Lot or affect Purchaser's
intended construction on the Lot(s), Purchaser shall have the right
(but not the obligation) to make such repairs and to either (i)
setoff its reasonable out-of-pocket costs incurred from the
Purchase Price of any Lots remaining to be purchased, or (ii)
receive reimbursement from Seller for its costs incurred within
five (5) days of demand therefor.
3(p)
Claims. Seller agrees to indemnify Purchaser from any actual
liability, loss or damage to a third person's personal property or
personal injury, including reasonable attorneys' fees and related
costs and expenses arising out of, or resulting from Seller
performing its obligations under this Agreement, except that this
indemnification shall not cover the negligence or intentional
misconduct of Purchaser or its subcontractors, employees and agents
or apply to any violations issued by any governmental authority,
which violations shall be governed by said authority. Seller shall
maintain in full force and effect liability insurance covering
damage to property and persons resulting from or connected with
Seller's performance of its obligations under this
Agreement.
In
order to ensure the fulfillment of the foregoing, and throughout
the term of this Agreement, Seller (and all permitted
sub-contractors) shall obtain and maintain insurance policies which
meet or exceed the following requirements: Seller's policy shall
name Purchaser as an "additional insured" for both ongoing and
completed operations and shall meet or exceed the following
requirements: Commercial General Liability insurance in the minimum
amount of One Million Dollars ($1,000,000.00) per occurrence, and
Two Million Dollars ($2,000,000.00) in the aggregate, that is (1)
written on an occurrence basis, (2) includes contractual liability
coverage insuring the obligations assumed by Seller under this
Agreement (including, without limitation, the indemnities set forth
herein) and referring expressly to this Agreement, premises and
operations coverage, broad form property damage coverage (including
theft, vandalism and malicious mischief, written at replacement
cost value, with replacement cost endorsement), Seller's protective
liability coverage, independent contractors coverage, completed and
ongoing operations coverage, (3) containing endorsement for
personal injury, and (4) deleting the "underground exclusion".
Seller's Certificate of Insurance shall be attached hereto as
Exhibit H-1.
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4.INSPECTION
- BONDED IMPROVEMENTS.
4(a)
Prior to settlement on any of the Lots pursuant to this Agreement
other than the Model Lot, representatives of Seller and Purchaser
shall inspect the improvements relating to this Agreement and
establish a list of deficiencies in the "Lot Inspection Report"
(Exhibit I).
Weather
permitting, Seller shall repair all deficiencies (except final
paving and any deficiencies resulting from any act or omission of
Purchaser, its contractors, employees, sub-contractors and agents)
within thirty (30) days of said Lot Inspection Report or complete
said deficiencies upon conclusion of Purchaser's house construction
in a timely manner to insure issuance of occupancy permits as
agreed by and between Purchaser and Seller. Subsequent to
settlement, Purchaser shall be responsible for damages to the
improvements serving Lot(s) that were caused by Purchaser. Upon
completion of home construction activity in each phase of the
Project, Purchaser and Seller, upon notification of the other,
shall meet to complete the "Lot Completion Report" (Exhibit J) to
list all deficiencies for which Purchaser is responsible to repair.
Purchaser shall repair all deficiencies listed on the Lot
Completion Report within thirty (30) days after notification,
weather permitting, at its expense, or at such other time as shall
be agreed upon between Purchaser and Seller. In the event Purchaser
shall fail to make repairs, then Seller shall make such repairs and
receive reimbursement from the Damage Escrow (defined below). If
the Damage Escrow is insufficient to pay the reasonable cost of the
repairs, Purchaser shall pay such deficiencies to Seller within
thirty (30) days after receipt of written demand by Seller. If
Purchaser fails to pay any amounts due pursuant to this Paragraph
4, Seller may pursue collection against Purchaser. With regard to
any damage, Purchaser's obligations under this Paragraph 4(a) shall
cease upon the first to occur of completion of its repairs or
reimbursement of Seller's costs, as provided above.
4(b) At the time of settlement on each Lot
pursuant to this Agreement, Purchaser will deliver the sum of Five
Hundred Dollars ($500.00) per Lot (the "Damage Escrow") to Shulman,
Rogers, Gandal, Pordy & Ecker, P.A. 12505 Park Potomac Avenue,
6th Floor, Potomac, 20854, Attention: Sean P. Sherman, Esq. ("Damage
Deposit Escrow Agent"), to be used solely for damages to Seller's
improvements during Purchaser's construction activities on the Lots
as further provided below. At Purchaser's option, the source for
payment of the Damage Escrow may be the Deposit Credit allocable to
such Lot.
4(c)
Purchaser's responsibilities under this Paragraph 4 shall cease
upon the first to occur of (i) Purchaser's repair of any and all
damage to Seller's improvements caused by Purchaser, its employees,
agents or subcontractors, to Seller's satisfaction in accordance
with the terms of Paragraph 4(a) or (ii) payment by Purchaser of
any amounts due and owing to Seller by Purchaser under this
Paragraph 4. Damage Deposit Escrow Agent shall return the Damage
Escrow, or any amounts remaining, to Purchaser within ten (10) days
after receipt of joint written instructions from Seller and
Purchaser, but in no event later than six (6) months after the
purchase of the last Lot under this Agreement and all of the
Related LPAs.
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4(d)
In the event of any dispute between Purchaser and Seller regarding
the disbursement or disposition of the Damage Escrow, or in the
event Damage Deposit Escrow Agent shall receive conflicting demands
or instructions with respect thereto, Damage Deposit Escrow Agent
shall withhold such disbursement or disposition until otherwise
instructed by both of the patties or until directed by a court of
competent jurisdiction. Purchaser and Seller hereby jointly and
severally agree that, except as provided herein, Damage Deposit
Escrow Agent shall incur no liability whatsoever in connection with
its performance under this Agreement. Purchaser and Seller hereby
jointly and severally release and waive any claims they may have
against Damage Deposit Escrow Agent that may result from its
performance of its functions under this Agreement. Damage Deposit
Escrow Agent shall be liable only for gross negligence or loss or
damage caused by any of its officers' or employees' acts of wanton
or willful misconduct while performing as Damage Deposit Escrow
Agent. Purchaser and Seller acknowledge and consent that Damage
Deposit Escrow Agent is Purchaser's attorney and each waive all
claims as to an apparent, perceived or actual conflict of interest.
Seller and Purchaser each acknowledge and agree that Shulman,
Rogers, Gandal, Pordy & Ecker, P.A. shall have the right to
represent Purchaser and/or Damage Deposit Escrow Agent in
connection with this Agreement, the transaction contemplated
hereby, disputes and in any other matter. The parties hereby waive
and shall not assert that there exists any conflict of interest
arising out of such representation.
4(e)
This Agreement will constitute escrow instructions to the Damage
Deposit Escrow Agent in its capacity as escrow agent for the
purposes of administering the Damage Escrow and as otherwise
provided in this Agreement. The parties agree to execute for the
benefit of the Escrow Agent such additional escrow instructions as
the Damage Deposit Escrow Agent may require; provided, however,
that such instructions will be construed as applying only to Escrow
Agent's employment as escrow agent and will not alter the terms of
this Agreement.
4(f)
In the event that the parties shall be unable to agree upon the
completion of the items described in Subparagraph 4(a), or upon the
defects in such completions, Harris, Smariga, and Associates, Inc.
(or its successor, the "Site Engineer") shall resolve any such
disputes. If either Seller or Purchaser shall in good faith
determine that the Site Engineer is not acting objectively, then
such party may require that any disputes be resolved by a court of
competent jurisdiction.
5.
DRAINAGE.
5(a)
Seller shall cause to be prepared and approved a plan or plans
designed to manage (i) construction period erosion and sediment
control ("E&S Plan") and (ii) post construction storm water
management ("PCSWM Plan"), which approved plan(s) shall comply with
all applicable federal, state and local laws and regulations
relating to storm water management and control (the "SWM Plans").
Seller shall construct and complete all necessary storm drainage
structures, pipes, facilities and sediment control devices related
to its land development activities in accordance with the SWM Plans
and shall obtain and comply with all federal, state and local
permits that are required and regulations related thereto including
any National Pollutant Discharge Elimination System Permit or state
or local equivalent ("NPDES Permit", together with the SWM Plans,
the Clean Water Act and all relevant EPA, state, federal and
municipal storm water statutes and regulations with respect to the
Property the "Storm Water Regulations"). Seller shall provide a
complete set of signed and stamped copies of the SWM Plans and the
NPDES Permit for the Property no later than ninety (90) days prior
to the first Lot settlement in each phase shown on the Phasing
Plan. Seller shall further obtain and record proper instruments
establishing easements and rights-of-way needed for off-site storm
drainage and other utilities, the same to be unencumbered if so
required by the local municipal authority. Seller is responsible
for the maintenance of all storm water structures, pipes and all
sediment control devices and facilities per the approved, or to be
approved, construction drawings. Seller is responsible for the
removal of temporary sediment traps or storm water management
facilities as required under the SWM Plans and NPDES Permit,
whether such facilities are located on or off Lot. Additionally,
the responsibility and liability for the retention facilities rests
with Seller. Further, Seller shall keep any permits and
applications required under the Storm Water Regulations in good
standing and current during the term of this
Agreement.
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5(b)
Seller shall grant any and all easements as may be required by
Purchaser across, over and through the Property for control of
on-site storm water relating to the Lot. Said easements shall be
free from liens and shall allow for the construction, maintenance
and use of drainage facilities and all uses incidental thereto,
including silt ponds, swales and riprap. Purchaser shall have the
right to dedicate any and all of said easements to public use and
to have same accepted for maintenance by the applicable
governmental agencies. Upon request, Seller (and all other parties
having an interest in such easement) will join in the dedication
and execute such instruments as may be reasonably required to
affect same. Said easements may be used by Purchaser, its agents,
customers, invitees, designees, successors and assigns. Said
provisions shall be set forth in full in the deeds of easement and
shall be deemed covenants running with the Lot. Title to said
easements and Purchaser's rights therein shall be fully insurable
under the same requirements with respect to title as are applicable
to the Lots.
5(c)
Upon Purchaser's acquisition of a Lot, Purchaser shall be
responsible for the installation of on-lot erosion and sediment
control facilities pertaining to Purchaser's house construction
activities, proper maintenance of such facilities with respect to
such Lot and for ensuring compliance with the NPDES Permit insofar
as it pertains to such Lot. Purchaser's responsibility for such on
lot controls shall continue until final or temporary stabilization
of such Lot and Purchaser transfers the Lot to a homebuyer.
Purchaser shall be responsible for the removal of on lot erosion
and sediment control facilities (specifically excluding temporary
traps and storm water management ponds) at the time of
stabilization of such Lot.
5(d)
Seller represents and warrants that it shall take such necessary
actions to comply with the Storm Water Regulations. Seller
covenants and agrees to do any and all further acts and to execute,
acknowledge, seal and deliver any and all other and further
instruments and documents (not otherwise inconsistent herewith) in
order to ensure Seller's compliance with the Storm Water
Regulations. The parties hereto shall cooperate with each other in
every reasonable manner, other than peculiarity, in order to
fulfill each party's obligations relative to the Storm Water
Regulations.
6. CONDITIONS
PRECEDENT TO SETTLEMENT.
The
obligation of Purchaser to purchase any Lot shall be conditioned
upon the satisfaction of the following with regard to such Lot, any
of which may be waived by Purchaser in its sole and absolute
discretion (the "Conditions Precedent"):
6(a)
Except for the Model Lot, Seller has completed the improvements
described in Paragraph 3 above.
6(b)
All conditions of title have been met pursuant to Subparagraph
7(b).
6(c)
Seller is not in default of this Agreement.
6(d)
The Homeowners Association shall be established and recorded in the
land records of the County pursuant to Paragraph 10.
6(e)
Seller is in compliance with and has provided Purchaser with copies
of the NPDES Permit and SWM Plans pursuant to Subparagraph
5(a).
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6(f)
The representations and warranties by Seller set forth in this
Agreement must be true and correct as of the date of each
settlement.
6(g)
Seller shall have provided Purchaser with all Conservation
Easements (defined below) that have been recorded with regard to
the phase in which the Lot is located. "Conservation Easement"
means an easement, covenant, restriction, or condition on real
property, including an amendment to an easement, covenant,
restriction, or condition: (i) Owned by: l. The Maryland
Environmental Trust; 2. The Maryland Historical Trust; 3. The
Maryland Agricultural Land Preservation Foundation; 4. The Maryland
Department of Natural Resources; 5. A county or municipal
corporation and is funded by the Maryland Department of Natural
Resources, the Rural Legacy Program, or a local agricultural
preservation program; or 6. A land trust; or (ii) Required by a
permit issued by the Department of the Environment. SEE MD. CODE.
ANN., REAL PROP. § 10-705(a)(2).
6(h)
To Seller's actual knowledge, the Lots shall be free from Hazardous
Materials; provided that this condition shall be deemed to be
waived in the event that the existence of Hazardous Materials on a
Lot is caused solely by Purchaser.
7.SETTLEMENT,
CONVEYANCE AND TITLE, DEPOSIT CREDITS.
7(a)
At settlement, Purchaser shall deliver to Seller immediately
available funds in the amount of the Purchase Price, less the
Deposit Credit, for each Lot being purchased. The amount of the
Deposit Credit for each House Type is set f01th on Exhibit
B.
7(b)
Indefeasible fee simple title to the Lots are to be conveyed
hereunder, free of liens, encumbrances, judgments, tenancies,
reservations, easements and rights-of-way, subject, however, to the
Permitted Exceptions. The "Permitted Exceptions" shall be (i) those
matters set forth on Exhibit K which is attached hereto and made a
part hereof, (ii) easements, rights-of-way and restrictions
required by public utilities and/or the local governmental
authority, (iii) other matters requested by or consented to by
Purchaser. Title is to be marketable and insurable at standard
rates by a recognized title insurance company of Purchaser's
choice, licensed to do business in the State of Maryland, without
exceptions except as afore said subject only to the Permitted
Exceptions. At each settlement, Seller shall deliver such lien
waivers as may be reasonably required by Purchaser.
7(c)
Examination of title, title insurance, title certificate,
preparation of deeds and individual Lot surveys are to be at the
sole cost of Purchaser, provided, however, that if, upon
examination, title is found to be defective, Seller agrees to
reimburse Purchaser for reasonable costs incurred not to exceed One
Thousand Two Hundred and No/100 Dollars ($1,200.00) per Lot. Cost
of Lot transfer taxes, recordation taxes, filing and recording fees
are to be shared equally by Purchaser and Seller. Purchaser shall
pay any closing fee imposed by the closing agent. Each party shall
pay its own consultants' fees.
7(d)
Real Estate Taxes are to be prorated to the date of settlement on a
calendar year basis. Any and all other assessments, payments,
impositions or other charges with respect to the Lots, including
any charges made, or to be made, for any and all public
improvements, agricultural roll-back tax and transfer taxes due in
connection with the conveyance or deed, whether on-site or
off-site, shall not be adjusted at the time of settlement, and
shall be borne solely by Seller for work performed by Seller
hereunder, including, but not limited to, capital facilities
charges and inspection fees. Any sewer or water charges that are
placed on a front-foot benefit charge basis and are deferrable to
the ultimate purchaser shall not be adjusted at settlement, but
shall be assumed by the Purchaser. The parties also shall prorate
water and sewer usage invoices as of the settlement
date.
13
7(e)
At settlement(s), the Lots being acquired shall be conveyed by
Seller to Purchaser or Purchaser's designee by Special Warranty
Deed with covenants of further assurances in proper form for
recording in the County. Possession of the Lots shall be given to
Purchaser, or its agents and assigns, at the time of settlement,
free from any parties in possession subject only to the Permitted
Exceptions.
7(f)
Seller shall pay any agricultural roll-back tax and transfer taxes
due in connection with the conveyance or deed under any state,
county, township, municipal or local law, regulation or ordinance
(or any similar tax or assessment) to the date of conveyance.
Purchaser shall be responsible for any roll-back attributed to the
period of time after the date of conveyance.
7(g)
Prior to any Lot settlements, Seller shall deliver to Purchaser a
"Certification of Non-Foreign Status" which meets the requirements
of Section 1445 of the Internal Revenue Code and Internal Revenue
Regulations for the purpose of informing the transferee that
withholding of Federal taxes is not required.
7(h)
At each settlement, Seller and Purchaser shall apportion between
them all fees allocable to each Lot being purchased as follows:
Purchaser shall be responsible for school impact fees, library
fees, and water and sewer tap and connection fees, and any other
fees typically due at the time of building permit application.
Seller shall be responsible for all other fees, including, but not
limited to moderately priced dwelling unit fees in lieu, and school
construction mitigation fees.
8.
DEFAULT.
8(a)
Default by Purchaser. In the event that Purchaser fails to acquire
Lots in accordance with the terms and conditions of this Agreement
and such failure continues for ten (10) days after the receipt of
written notice from Seller, Purchaser shall be deemed to be in
default hereunder and Seller may exercise the remedy described
below. In the event that Purchaser fails to fulfill any other of
its obligations hereunder, then Purchaser shall be deemed to be in
default hereunder if such failure continues for fifteen (15) days
after receipt of written notice from Seller, or if the failure
cannot be cured within fifteen (15) days, then a reasonable period
of time not to exceed an additional thirty (30) days provided
Purchaser diligently and continuously pursues such cure. Either of
the foregoing shall be referred to herein as a "Purchaser
Default".
8(b)
Seller's Remedy. In the event of a Purchaser Default, Seller's sole
and exclusive right and remedy shall be to retain the Deposit as
full, fixed and liquidated damages, not as a penalty, whereupon
this Agreement shall terminate. Thereafter, Purchaser and Seller
shall be relieved of further liability hereunder, at law or in
equity, it being the agreement of the parties that Purchaser shall
have no liability or obligation for default hereunder or otherwise
arising out of the transaction contemplated herein except to the
extent of the Deposit made herein, and in no event shall
Purchaser’s liability or responsibility for any failure,
breach or default hereunder or otherwise arising out of the
transaction contemplated herein exceed the Deposit, and in no event
shall Seller be entitled to specific performance of this Agreement,
or any other equitable remedies. Notwithstanding the foregoing,
Purchaser's indemnity obligations provided for in Subparagraph
10(b) (for construction related activities) shall not be subject to
the limitations provided above, rather Seller shall have the right,
after Purchaser's failure to cure as provided in above, as its sole
and exclusive remedy, to enforce such indemnifications in the court
of law permitted under this Agreement.
14
8(c)
Default by Seller. In the event that Seller fails to fulfill any of
its obligations hereunder, then Seller shall be deemed to be in
default hereunder if such failure continues for fifteen (15) days
after receipt of written notice from Purchaser, or if the failure
cannot be cured within fifteen (15) days, then a reasonable period
of time not to exceed an additional thirty (30) days provided
Seller diligently and continuously pursues such cure. The foregoing
shall be referred to herein as a "Seller Default".
8(d)
Purchaser's Remedies. In the event of a Seller Default, Purchaser
may (i) terminate this Agreement and receive a refund of the
remainder of the Deposit that has not been applied toward Lots
acquired by Purchaser, or (ii) seek specific performance of
Seller's obligations hereunder, provided that, if specific
performance is not available to Purchaser because Seller has
conveyed fee simple title to the Property or any portion thereof,
Purchaser shall be entitled to all rights and remedies available at
law or in equity. So long as Purchaser is not in default of this
Agreement beyond any and all applicable cure periods, Purchaser
shall be entitled to seek injunctive relief to prevent Seller from
conveying or agreeing to convey fee simple title to the Property or
any portion thereof. The parties agree that this provision shall
not be effective in connection with Seller's dedication of any
portion of the Property to governmental or quasi-governmental
entities required as part of the development process.
9.
SELLER'S REPRESENTATIONS, WARRANTIES AND COVENANTS.
Seller
hereby represents, warrants and covenants to Purchaser
that:
9(a)
Seller's execution of this Agreement will not violate any other
third party's contract entitlements and no other person or entity
claims, has claimed and/or could justifiably claim any retained
rights in the Property under an earlier-in-time purchase
contract.
9(b)
All contractors, subcontractors, laborers and materialmen
performing work upon, or furnishing labor or materials to improve
or benefit, the Lots at Seller's request will be paid in full by
Seller before any applicable Lot settlement. Seller will execute
the necessary affidavits and indemnification agreements required by
the Purchaser's title insurance company or closing agent to
eliminate from its owner's title policies any exceptions to unfiled
mechanics' liens.
9(c)
All necessary dedications to public use with respect to the Lots
shown or implied from the subdivision plats or otherwise will be
made to the applicable governmental authorities, and Purchaser will
incur no legal liability or expense whatsoever with respect to any
such dedications.
9(d)
Seller will, during the term of this Agreement, keep any
mortgage(s) against the Property current and not in default, and
pay taxes, other public charges and/or any other assessments
against the Property.
9(f)
So long as Purchaser has paid all required fees and delivered all
required materials, Seller has done nothing to prevent Purchaser
from obtaining building, plumbing connection, and other permits
required for the erection of residences on each Lot, and has done
nothing to prevent Purchaser from obtaining use and occupancy
permits for finished residences on previously settled
Lots.
15
9(g)
Seller represents and warrants to Purchaser that Seller is a
limited liability company, duly organized and validly existing,
licensed under the laws of the State of Maryland, and qualified to
do business in the State of Maryland, in good standing, and that
Seller has the authority to execute and perform this Agreement.
Copies of resolutions shall be provided to Purchaser upon
request.
9
(h) In addition to any other warranty made in connection with this
Agreement, Seller represents and warrants as of the date of each
Lot settlement that (i) Seller owns the Lot to be sold by it under
this Agreement, in fee simple,; (ii) such Lot is subject only to
the Permitted Exceptions; (iii) such Lot is stable, graded pursuant
to this Agreement, and otherwise is suitable for the construction
of a residential structure by customary means and without
extraordinary site preparation measures; (iv) all of the streets,
sewers, water lines and utility facilities installed by Seller or
its subcontractors or agents are in compliance with the applicable
requirements of law, of good quality and suitable for their
intended purpose; (v) the Lot, as laid out by Seller, are in
compliance with the applicable zoning and subdivision requirements;
(vi) none of the development site preparation and construction work
performed by Seller hereunder concentrates or diverts surface water
or percolating water improperly onto any of the Lots or surrounding
property; (vii) no person has any contract or other right to the
use of any portion of the Lots or to the furnishing or use of any
facility or amenity on, or relating to, the Lots; and (viii) it has
done nothing to introduce any Hazardous Materials onto the Property
and to the best of Seller's knowledge, no Hazardous Materials exist
on the Property or affect the Property.
Notwithstanding
that certain Seller's representations and warranties contained in
this Paragraph 9 may be limited to the extent of Seller's knowledge
of the facts stated therein, a condition precedent to Purchaser's
obligation to close hereunder shall not be so limited, and the
satisfaction of said condition shall depend upon the actual
correctness as of the time of closing and post-closing of the facts
stated in all such representations and warranties.
10. PURCHASER'S
REPRESENTATIONS, WARRANTIES AND COVENANTS.
10(a)
Purchaser hereby represents, warrants and covenants to Seller that
Purchaser is a duly organized and validly existing corporation
under the laws of the Commonwealth of Virginia, qualified to do
business in the State of Maryland; that Purchaser has the power to
execute and perform this Agreement; that all necessary consents and
approvals from Purchaser have been obtained; and that the persons
executing this Agreement on behalf of Purchaser are duly empowered
to bind Purchaser to perform its obligations
hereunder.
10(b) Purchaser agrees to indemnify Seller from
any actual liability, loss or damage to a third person's personal
property or personal injury, including reasonable attorneys’
fees and related costs and expenses arising out of, or resulting
from Purchaser performing its construction activities under this
Agreement, except that this indemnification shall not cover the
negligence of the Seller or its subcontractors, employees and
agents or apply to any violations issued by any governmental
authority, which violations shall be governed by said
authority. Purchaser
shall maintain in full force and effect liability insurance
covering damage to property and persons resulting from or connected
with such activity which meet or exceed the following
requirements:
16
Commercial
General Liability insurance in the minimum amount of One Million
Dollars ($1,000,000.00) per occurrence, and Two Million Dollars
($2,000,000.00) in the aggregate, that is (1) written on an
occurrence basis, (2) includes contractual liability coverage
insuring the obligations assumed by Purchaser under this Agreement
(including, without limitation, the indemnities set forth herein)
and referring expressly to this Agreement, premises and operations
coverage, broad form property damage coverage (including theft,
vandalism and malicious mischief, written at replacement cost
value, with replacement cost endorsement), Purchaser's protective
liability coverage, independent contractors coverage, completed and
ongoing operations coverage, (3) containing endorsement for
personal injury, and (4) deleting the "underground" exclusion. A
certificate evidencing such insurance is attached hereto as Exhibit
H-2.
11. HOMEOWNERS
ASSOCIATION.
11(a)
Seller shall prepare, at Seller's expense, such protective
covenants and declarations as required by Purchaser and shall
record the same in the Land Records of the County. Seller shall
form a homeowners association (the "Homeowners Association") for
the Property. Seller shall subject all of the Property to a
declaration of covenants, conditions and restrictions (the
"CC&Rs"), under which Seller shall serve as the "Declarant" and
the architectural review committee, and shall deliver to Purchaser
copies of the CC&Rs, bylaws, articles of incorporation, budget
and any other documents required by law to establish the
Homeowners' Association (collectively, the "Organizational
Documents"). All Organizational Documents shall comply with
applicable FHA/VA regulations. Purchaser shall have the opportunity
to approve the Organizational Documents and upon request by
Purchaser, Seller shall promptly make any reasonable changes
thereto. The CC&Rs shall provide that Purchaser shall not pay
any assessments and further that Seller shall solely fund any
deficit of the Homeowners Association. In no event shall Purchaser
be required to pay any capital contribution.
11(b)
Seller shall, at Seller's sole expense, be responsible for the
proper annexation of any Lots purchased pursuant to this Agreement
into the Homeowners Association and to subject any Lots purchased
hereunder to any protective covenants and declarations requested by
Purchaser pursuant to this Agreement.
11(c)
Seller, through its designees, shall administer the affairs of the
Homeowners Association until such time as control is assumed by the
individual members of the Homeowners Association who have purchased
dwelling units from Purchaser. Seller shall employ a professional
management company for budget, preparation and management of the
Homeowners Association; said management company shall be reasonably
acceptable to Purchaser. Seller shall be responsible for the
maintenance of the cluster common area until such time as
maintenance is assumed by the Homeowners Association.
11(d)
Seller shall convey to the Homeowners Association the common areas,
which are not subdivided into Lots, free from any Hazardous
Materials or environmental contamination of any kind. The
conveyance shall be subject to rights of ingress and egress and
common usage of each Lot owner in the Homeowners Association's
common area. Purchaser agrees that each Lot purchased will be
required to become a member of the Homeowners Association. Seller
shall bear the cost of preparing and recording the deed conveying
the common area(s) to the Homeowners Association.
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11(e)
If required, Seller shall grant and convey, by special warranty
deed to the Homeowners Association, the common areas set forth on
the subdivision plat(s) to be recorded among the Land Records of
the County, not later than one year after recordation of a
subdivision plat which includes such common areas. Furthermore, at
the time of the first conveyance to Purchaser, the common area(s)
as shown on the subdivision plat(s) shall be free and clear of any
mortgages, deeds of trust, judgment liens or similar liens or
encumbrances.
11(f)
Seller agrees to cooperate with Purchaser in the preparation of an
FHA/VA Application. Seller further agrees to implement changes (to
the extent that such changes do not affect the economics of the
Seller's project) to subdivision plans and documents at the
Seller's expense, if required, to gain FHA/VA approval; provided,
however, that the plans or plats already approved by the local
governmental authorities shall not be subject to redesign and
resubmission of approval. The time required for obtaining said
FHA/VA approval shall not defer the Lot purchase schedule contained
herein.
11(g)
Seller acknowledges that Purchaser is required to furnish to its
new home purchasers of Lots certain information as required by the
Maryland Homeowners Association Act in order to enter into binding
contracts with such buyers. Seller agrees to furnish to Purchaser,
prior to the date on which Purchaser opens sales within the
project, with final, signed and complete copies of the
Organizational Documents, Rules and Regulations and a set of
recorded subdivision plats for the Property. In the event that
final copies are not available, Seller agrees to furnish draft
copies, which draft copies will be replaced by final, executed and
recorded copies as soon as they are available. As well Seller shall
provide copies of any amendments to the Organizational Documents
concurrently with any such amendment. Seller shall also obtain
Purchaser's consent in the event any modifications are contemplated
to the amenities or other facilities within the Property or affect
Purchaser's or Purchaser's homebuyers monetary obligations, such
consent not to be unreasonably withheld. The parties acknowledge
that Seller's performance of this obligation is important to
Purchaser's ability to market and sell Lots. In the event that, at
the time of the first settlement hereunder, such materials have not
been furnished to Purchaser, the date of such settlement shall be
delayed until Purchaser is in receipt of such
materials.
12.
MISCELLANEOUS.
12(a)
Seller and Purchaser warrant that they have made no commitments of
any kind regarding brokerage fees, finder's fees or commissions
relative to this Agreement which could incur liability to either
party hereto. Seller and Purchaser agree to indemnify and hold each
other harmless from any and all liability, loss or damage,
including reasonable attorneys' fees and related costs and expenses
arising out of, or resulting from, any and all brokerage claims
that may be made against Seller or Purchaser or their successors or
assigns arising from this Agreement.
12(b)
Purchaser shall be responsible for the removal within a reasonable
time period of dirt, mud, and debris only from the streets fronting
the Lots where dwellings are under construction by Purchaser or
where Purchaser, its agents or contractors have deposited any such
material. Seller shall be responsible for performing those tasks
and snow removal on all streets until public dedication or
acceptance by the applicable Homeowners Association thereof. The
terms “streets" and "roads" shall mean all streets and roads
shown on the Record Plat, as well as any access roads connecting
those roads shown on the subdivision plats to any other road,
highway or thoroughfare.
18
12(c)
All notices hereunder shall be in writing, and be deemed to have
been received (i) immediately upon personal delivery or confirmed
fax receipt, (ii) one (1) business day after being sent by
confirmed overnight mail, (iii) three (3) days after mailing, if
mailed by certified mail, return receipt requested, postage
prepaid, or (iv) immediately upon delivery by electronic mail with
active confirmed receipt, provided that such active confirmed
receipt is not required for Purchaser's notice of termination
during the Study Period:
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If to Purchaser:
NVR, Inc.
656 Quince Orchard Road, Suite 500
Gaithersburg, 20878
Attn: T. Kent LaMotta and Matt Beck
Fax: 240-912-3281
Email: klamotta@nvrinc.com and mbeck@nvrinc.com
with a copy to:
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If to Seller:
MacKenzie Equity Partners
312 3rd Street
Suite 102
Annapolis, MD 21403
Attn: Charles W. S. MacKenzie
Fax: 410-832-2937
Email: cmackenzie@mackenzieequity.com
with a copy to:
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NVR, Inc.
4991 New Design Road, Suite 105
Frederick, 21703
Attn: David J. Peterson Fax: 240-566-1038
Email: dpeterso@nvrinc.com
NVR, INC.
656 Quince Orchard Road, Suite 500
Gaithersburg, MD 20878
Attn: John McConnell and Jessica Falleroni
Facsimile No.: 240-912-3281
Email: jmcconne@nvrinc.com and jfalleron@nvrinc.com
and:
Shulman, Rogers, Gandal, Pordy & Ecker, P.A.
12505 Park Potomac, Sixth Floor
Potomac, MD 20854
Attn: Lawrence M. Kramer and Sean P.
Sherman
Fax: 301-230-2891
Email: nvr@shulmanrogers.com
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MacKenzie Communities
2328 West Joppa Road
Suite 200
Lutherville, MD 21093
Attn: Robert J. Aumiller, Jr.
Fax: 401-427-0429
Email: RJAumiller@MacKenzieCommercial.com and
DLA Piper LLP (US)
6225 Smith Avenue
Baltimore, MD 21209
Attn: Pamela McDade Johnson, Esq.
Fax: 410-580-3819
Email: pam.johnson@dlapiper.com
|
19
The
parties hereto shall be responsible for notifying each other of any
change of address or facsimile number in accordance with this
Subparagraph 11 (c).
12(d)
Purchaser shall have the right to review and approve or disapprove
(not to be unreasonably withheld, conditioned or delayed) any and
all changes made to the proposed, submitted and/or approved
development documents, including, but not limited to, plans,
designs and drawings, including site plans, construction (all
types), landscape improvements (trees, shrubs, fences and walls)
and covenants, restrictions and easements of record. The parties
agree that any revised Lot configuration and/or change in the Lot
yield arising from any such revised development documents shall, if
modifying the anticipated Record Plat, constitute the Lots that are
the subject of this Agreement. Seller shall meet and confer with
Purchaser on a regular basis to review the anticipated schedule and
sequence of development of the Property.
12(e)
If any term, covenant or condition of this Agreement, or the
application thereof to any party or circumstance, shall be invalid
or unenforceable, this Agreement shall not be affected thereby, and
each term shall be valid and enforceable to the fullest extent
permitted by law.
12(f)
Any date specified in this Agreement which is a Saturday, Sunday or
legal holiday shall be extended to the first regular business day
after such date, which is not a Saturday, Sunday or legal holiday
in the State of Maryland.
12(g)
This Agreement and the Exhibits which are attached hereto contain
the final and entire agreement between the parties hereto. The
recitals set forth in the beginning of this Agreement are
incorporated herein as if restated in full. No change or
modification of this Agreement, or any waiver of the provisions
hereof, shall be valid unless the same is in writing and signed by
the parties hereto. Waiver from time to time of any provision
hereunder will not be deemed to be a full waiver of such provision,
or a waiver of any other provisions hereunder. The terms of this
Agreement are mutually agreed to be clear and unambiguous, shall be
considered the workmanship of all of the patties and shall not be
construed against the drafting party.
12(h)
This Agreement may be executed in several counterparts, each of
which shall be deemed an original, but all of which shall
constitute one and the same instrument. Titles to Paragraphs and
Subparagraphs are for convenience only, and are not intended to
limit or expand the covenants and obligations expressed
thereunder.
12(i)
It is the intention of the parties hereto that all questions with
respect to the construction of this Agreement, and the rights or
liabilities of the parties hereunder, shall be determined in
accordance with the laws of the jurisdiction in which the Property
is located, without regard to conflict of law rules. Time is hereby
declared to be of the essence in the performance of each of
Seller's obligations hereunder. In the event of any dispute or
controversy arising out of or relating to this Agreement or the
patties' compliance therewith, it is agreed that the exclusive
forum for determination of any and all such disputes or
controversies shall be the appropriate trial court for the
jurisdiction in which the Property is located. THE PARTIES WAIVE
THEIR RESPECTIVE RIGHTS OF TRIAL BY JURY.
20
12(j)
This Agreement shall be binding upon the parties hereto and each of
their respective heirs, executors, administrators, successors and
assigns. All of the provisions of this Agreement and the
obligations of the parties shall survive each settlement and the
execution and delivery of the deed(s) executed hereunder, and shall
not be merged therein.
13. ATTORNEYS'
FEES. In addition to any other relief to which a party may be
entitled under this Agreement, the prevailing party in any action
shall be entitled to recover its attorneys' fees and costs incurred
in regard to a dispute or controversy.
14. ASSIGNMENT.
Neither party may assign its rights or obligations under this
Agreement. Seller may not sell a majority of its ownership
interests without the Purchaser's prior written
consent.
15. RULE
AGAINST PERPETUITIES. To avoid the rule against perpetuities, all
of the obligations of the parties shall be fully performed no later
than twenty-one (21) years from the Effective Date.
16. FORCE
MAJEURE. In the event that either party hereto shall be delayed or
hindered in or prevented from the performance of any act required
hereunder by reason of labor difficulties, inability to procure
materials, restrictive governmental laws or regulations,
insurrection, war, acts of God, acts of terrorism, or other reason
of like nature not the fault of the party delayed in performing
work or doing acts required under the terms of this Agreement then
performance of such act shall be excused for the period of the
delay, and thereafter the period for the performance of any such
act shall be extended for the lesser of (i) a period equivalent to
the period of such delay, or (ii) twenty four (24) months.
Beginning with the expiration of the extension period, if the
required performance remains unperformed, Purchaser may either
waive said performance in writing, or Purchaser may at its option
either continue to wait out Seller's performance or declare this
Agreement null and void and in such event the Deposit shall be
returned to Purchaser within ten (10) days and there shall be no
further liability on the part of either party to the other except
as to Lots already settled.
17. NO
CROSS DEFAULT. The parties affirm that a default by either party in
this Agreement shall not constitute a default under the Related
LPAs.
18. EXHIBITS.
This Agreement governs the parties rights and obligations with
regard to the Lots for the Home Type which is denoted under the
title of this Agreement on page one. Many of the Exhibits to this
Agreement include information with regard to all of the Home Types.
The same exhibits are attached to the Related LPAs. For purposes of
this Agreement, the information that relates to the Home Type
specified on page one shall govern.
[SIGNATURES COMMENCE ON FOLLOWING PAGE]
21
WITNESS,
the following signatures and seals.
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WITNESS:
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SELLER:
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SeD
Maryland Development, LLC
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_________________________
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By:
_____________________
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Name:
_________________
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Title:
__________________
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Date:
_________________
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[SIGNATURES
CONTINUED ON NEXT PAGE]
22
| WITNESS: |
PURCHESER:
NVR, INC
By:
____________________
Name: T. Kent LaMotta
Title:
Vice President of Operations
Date: __________________
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WITNESS:
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_____________________
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By:
____________________
Name:
Matt Beck
Title:
Vice President of Operations
Date:
__________________
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WITNESS:
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_____________________
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By:
_____________________
Name:
David Greminger
Title:
Regional Manager
Date:
___________________
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23
LIST
OF EXHIBITS
A-1
Legal Description of the Project
A-2
Development Plan for the Project
B
Home
Types, Purchase Prices, Deposits, Deposit Credits
C
Assignment Agreement
D
Description
of Lots Subject to this Agreement
E
Phasing
Plan
F
Form of Deed of Trust
G
Responsibility
Checklist
H-1
Seller
Certificate of Insurance
H-2
Purchaser
Certificate of Insurance
I
Lot Inspection Report
J
Lot
Completion Report
K
List of Title Exceptions
24
RESTATEMENT
AND REINSTATEMENT OF AND FIRST AMENDMENT TO LOT PURCHASE
AGREEMENT
BALLENGER
RUN
THIS RESTATEMENT AND REINSTATEMENT OF AND FIRST
AMENDMENT TO LOT PURCHASE AGREEMENT ("First Amendment") is made
this day of
2015
by and between SeD Maryland Development, LLC ("Seller") and NVR,
Inc. d/b/a Ryan Homes ("Purchaser").
WHEREAS, Seller and Purchaser entered into a Lot
Purchase Agreement dated December 10, 2014 (the "Agreement")
whereby Seller agreed to sell and Purchaser agreed to purchase
eighty-five (85) single family Lots located in Frederick County,
Maryland and as more particularly described in the Agreement;
and
WHEREAS,
the parties now wish to restate and reinstate the Agreement and to
otherwise amend certain terms and conditions, all as more fully set
forth herein.
NOW,
THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties agree as follows:
l. Recitals
and Controlling Terms. The foregoing Recitals are hereby
incorporated by reference
as if fully restated. All capitalized terms used herein which are
not specifically defined shall have the meanings provided in the
Agreement. From and after the First Amendment Date (as hereinafter
defined), references to the Agreement shall refer to the Agreement
as amended by this First Amendment.
2. Reinstatement.
The Agreement, a copy of which is attached hereto as
Exhibit
"A", and incorporated by reference as if fully
restated, is reinstated. Accordingly, Subparagraph I (a) of the
Agreement is hereby deleted in its entirety. The Effective Date of
the Agreement shall be
this First Amendment Date.
3. Contingency.
Recital B of the Agreement is hereby amended to reflect that the
Agreement and this First Amendment are contingent upon Purchaser
and Contract Seller entering into a Second Amendment to the Raw
Land Contract reinstating the Raw Land Contract and
thereby satisfying the Contingency
contemporaneously with the execution of this First Amendment. The
reference to a specific date for the Contingency to be satisfied is
hereby deleted.
4.
Deposit. Exhibit "B" of the Agreement is hereby deleted in its
entirety and replaced with the attached Exhibit Subparagraph 2(i)
of the Agreement is hereby deleted in its entirety and with the
following:
1
"2(i)
With regard to this Agreement and the Related LPAs, the total sum
of Five Million Six Hundred Thousand and No/100 Dollars
($5,600,000.00) as a good-faith deposit (the "Deposit") will be
delivered by Purchaser in accordance with the terms of this
Agreement, as follows:
(i)
Seller is providing
Purchaser with a Four Hundred Thirty Four Thousand One Hundred
Fourteen Dollars ($434,114.00) credit, which shall be applied as a
portion of the Deposit hereunder, as reimbursement for Purchaser's
due diligence costs incurred to date.
(ii)
in accordance with
the Assignment Agreement, Purchaser shall deliver One Million Five
Hundred Thousand Dollars ($1,500,000.00) to Commonwealth Land
Title Insurance Company ("Commonwealth") by 5:00 P.M. Eastern
Standard Time on January 12, 2015, Commonwealth shall deliver
such One Million Five Hundred Thousand Dollars ($1,500,000.00) to
the Contract Seller under the Raw Contract thereunder, and
such One Million Five Hundred Thousand Dollars ($1,500,00.00) shall
be applied as a portion of the Deposit hereunder; and
(iii)
Purchaser shall
deliver Three Million Six Hundred Sixty Five Thousand Eight Hundred
Eighty Six Dollars ($3,665,886.00) to the closing agent which
will handle Seller's acquisition of the Project no later than two
business days before the closing under the Raw Land Contract, but
in no event prior to Purchaser's receipt and approval of Seller's
Certificate of Insurance in accordance with Subparagraph 3(p)
below, and such Three Million Six Hundred Sixty Five Thousand Eight
Hundred Eighty Six Dollars ($3,665,886.00) shall be applied as a
portion of the Deposit hereunder.
The Deposit shall be returned to Purchaser in the
form of a credit toward the Purchase Price payable for each Lot at
the time of each settlement (the "Deposit Credit"). Exhibit
"B" sets forth the
allocation of the Deposit and Deposit Credits among all of the lots
subject to this Agreement and the Related LPAs. Notwithstanding
anything herein to the contrary, in the event of an uncured default
by Purchaser beyond any applicable cure periods, it is the intent of the parties that,
Seller shall only be entitled to the portion of the
Deposit allocated to this particular
Agreement as liquidated damages in accordance with Subparagraph
8(b)."
5.
Phasing Plan. Exhibit "E" of the Agreement is hereby deleted and
replaced with Phasing Plan attached hereto as Exhibit
“E”.
6.
Notices. Subparagraph 12(c) of the Agreement is hereby amended by
deleting the notices to Seller in their entirety and replacing them
with the following in lieu thereof:
2
Inter-American
Development, LLC
312
3rd Street
Suite
102
Annapolis,
MD 21403
Attn:
Charles W. S. MacKenzie
Fax:
410-832-2937
Email: cmackenzie@mackenzieequity.com
Inter-American
Management, LLC
Hampden
Square, 4800 Montgomery Lane
Suite
450
Bethesda,
MD 20814
Attn:
Jeff Busch
Email:
jeff@185hk.com
Singapore
eDevelopment Limited
24/F,
Wyndham Place,
40-44
Wyndham Street, Central Hong Kong
Attn:
Chan Heng Fai
Email:
fai@185hk.com
Singapore
eDevelopment Limited
9
Temasek Boulevard #09-02A,
Suntec
Tower 2, Singapore 038989
Attn:
Chew Sien Lup
Email:
sienlup@sed.com.sg
Inter-American
Development, LLC
7
Temasek Boulevard #43-03A,
Suntec
Tower l, Singapore 038987
Attn:
Chan Tung Moe
Email:
moe@185hk.com
DLA
Piper LLP (US) 6225 Smith Avenue
Baltimore,
MD 21209
Attn:
Pamela McDade Johnson, Esq.
Fax:
410-580-3819
Email:
pam.johnson@dlapiper.com"
3
7. Contingency. This First Amendment is contingent
on the parties entering into the Restatement and Reinstatement of and First
Amendment to Assignment and Assumption Agreement and the Second
Amendment to Assignable Real Estate Sales Contract by and between
Assignor and RBG Family, LLC contemporaneously herewith (the
"Current Contingency"), In the event the Current Contingency is not
met, this First Amendment shall be null and
void.
8. Counterpart Copies. This First Amendment may be
executed in any number of counterpart copies, all of which counterparts
shall have the same force and effect as if all parties hereto had
executed a single copy hereof.
9. Entire
Agreement, Ratification and Reconciliation. The Agreement
(including the Exhibits) and this First Amendment contain the final
and entire agreement between the parties with respect to the sale
and purchase of the Lots, and are intended to be an integration of
all prior negotiations and understandings. Except as modified in
this First Amendment, the Agreement is hereby ratified and remains in full force and
effect. The terms and provisions of this First Amendment shall be
reconciled with the terms and provisions of the Agreement to the
fullest extent reasonably possible; provided, however, in the event
of any irreconcilable conflict between any term or provision of
this First Amendment and any term or provision of the Agreement,
such term or provision of this First Amendment shall
control.
10. First
Amendment Date. This First Amendment shall become effective on the
date last signed (the "First Amendment Date"). In addition, this
First Amendment and any waiver or modification hereto will only be effective if
signed by the Area President of Purchaser or its
designee, Vice President of
Operations, and at least two (2) other officers of
Purchaser.
4
IN
WITNESS WHEREOF, the parties have set their hands and seals as of
the date written below each signature.
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WITNESS:
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SELLER:
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SeD
Maryland Development, LLC
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By:
Name:
Title:
Date:
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[SIGNATURES
CONTINUED ON NEXT PAGE]
5
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PURCHASER:
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WITNESS:
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NVR,
INC.
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By:
_________________________________
Name:
T. Kent LaMotta
Title:
Vice President of Operations
Date:
_______________________________
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WITNESS:
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By:__________________________________
Name:
Matt Beck
Title: Regional Vice President of
Land
Date:________________________________
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WITNESS:
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By:
_________________________________
Name:
David J. Peterson
Title:
Vice President and Division
Manager
Date:
_____________________________
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6
SECOND AMENDMENT TO LOT PURCHASE AGREEMENT
BALLENGER RUN
THIS SECOND AMENDMENT TO LOT
PURCHASE AGREEMENT ("Second Amendment") is made this ___ day
of ________2017, by and between SeD Maryland
Development, LLC ("Seller") and NVR, Inc. d/b/a Ryan Homes
("Purchaser").
WHEREAS, Seller and Purchaser entered into a Lot
Purchase Agreement dated December 10, 2014, and that certain First
Amendment to Lot Purchase Agreement dated January 9, 2015
(collectively, the "Agreement"), whereby Seller agreed to sell and
Purchaser agreed to purchase eighty-five (85) single family Lots
located in Frederick County, Maryland, all as more particularly
described in the Agreement; and
WHEREAS, the parties have agreed to amend the
Agreement by assigning the cost of mailbox installation, adding
front foot benefit charge provisions, changing the Completion
Notice deadline, substituting the phasing plan exhibit, and to
otherwise amended certain terms and conditions, all as more particularly set forth
herein.
NOW, THEREFORE, in consideration of the foregoing
and other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties agree as
follows:
1 Recitals and
Controlling Terms. The
foregoing Recitals are hereby incorporated by reference as if fully
restated. All capitalized terms used herein which are not
specifically defined shall have the meanings provided in the
Agreement From and after the Second Amendment Date (as hereinafter
defined), references to the Agreement shall refer to the Agreement
as amended by this Second Amendment.
2. Phasing
Plan. Exhibit "E" of the
Agreement is hereby deleted and replaced with Phasing Plan attached
hereto as Exhibit
3. Mailbox.
The Agreement is hereby amended to reflect that the postmaster has
required cluster mailboxes to be installed at the community.
Purchaser and Seller hereby agree to share equally in the costs of
the cluster mailboxes, including the costs of installation for
same.
1
4. Front
Foot Benefit Charges. Purchaser acknowledges that
Seller has the option to establish front foot benefits charges by
encumbering the Lots with a Declaration of Water and Sewer Charges
(the "Declaration") to be imposed on homeowners related for the
development of the Property. Seller hereby agrees that any such
front foot benefit charge shall not last for more than thirty (30)
years and shall not exceed Four Hundred Fifty Dollars ($450) per
year for each SFD Large Lot, Four Hundred Fifty Dollars ($450) per
year for each SFD Small Lot, Four Hundred Twenty Five Dollars
($425) per year for each SFD Neo-traditional Lot, Three
Hundred Seventy Five Dollars ($375) per year for each SFA
Villa Lot, and Three Hundred Twenty Five Dollars ($325) per year
for each SFA Townhouse Lot (the "Water and Sewer Charges") In the
event the front foot benefit is established, Seller agrees (i) to
credit Purchaser with an amount equal to one year’s
assessment at each Lot settlement, and (ii) that Subparagraph 2(h)
shall be automatically amended to reflect that the escalation of
the Purchase Price shall commence on the first
(1st)
day of the fourth (4th)
quarter.
Concurrently upon recordation of the Declaration,
Seller will provide Purchaser with a document entitled "Notice to
Purchaser of Deferred Water and Sewer Charges" that discloses the
Water and Sewer Charges to purchasers of Lots from Purchaser (the
"Notice to Buyer"). The Notice to Buyer will be attached to and
made part of this Agreement as Exhibit
"L". Purchaser agrees to
incorporate the Notice to Buyer into each contract with a purchaser
of a Lot from Purchaser (each, an "Initial Lot Purchaser") and to
return an original Notice to Buyer executed by each Initial Lot
Purchaser to Seller within 30 days after settlement on the Lot with
the Initial Lot Purchaser.
The
failure of Purchaser to obtain an executed Notice to Buyer and
timely provide a copy of executed Notice to Buyer to the Seller in
accordance with this Agreement from any person who purchases a Lot
from Purchaser shall obligate Purchaser to at a maximum pay the
Water and Sewer charges for such Lot. Seller agrees that the
foregoing shall not be effective unless and until Seller timely
provides Purchaser with the Notice to Buyer. Seller shall indemnify
and hold harmless Purchaser for any claims arising from Seller's
failure to provide the Notice to Buyer.
5. Completion
Notice. Subparagraph 2(c) of
the Agreement is hereby deleted in its entirety and the following
is inserted in lieu thereof:
2(c) Seller shall deliver written notice to
Purchaser (the "Completion Notice") to advise Purchaser that Lots
are available for purchase (the "Available Lots") and the
Conditions Precedent (defined below) for such Lots are fulfilled.
The first Completion Notice delivered by Seller after the Model Lot
Closing Date may be referred to herein as the "Initial Completion
Notice" and shall be delivered on or before June 30, 2017. Each
Completion Notice shall identify the location of the Available Lots
and Purchaser may select which of the Available Lots that it will
purchase. The total number of Available Lots at any time under this
Agreement and the Related LPAs shall be twenty-four (24) lots and
shall consist of Lots for one or more of the Home Types under this
Agreement and the Related LPAs. Commencing on the first
(1st)
day of the second quarter and continuing thereafter, in the event
that a particular Home Type is not an Available Lot, then
Purchaser's purchase obligation for that particular Home Type shall
be deferred the same number of days until that Home Type is an
Available Lot, If the delay in providing that Home Type as an
Available Lot exceeds sixty (60) days, then Purchaser's purchase
obligation for that particular Home Type shall be deferred the same
number of days until that Home Type is an Available Lot plus an
additional forty-five (45) days. In the event that Seller does not
meet the Available Lots requirement of twenty-four (24) lots,
Purchaser shall deliver written notice to Seller
and:
2
(i) So long as Seller
is, and before the date of Purchaser's notice was, diligently
pursuing the fulfillment of its obligations hereunder in order to
create Available Lots, Seller shall be entitled additional time to
prepare the Lots for purchase. In no event shall the additional
time be more than six (6) months. Purchaser may elect to defer the
Lot purchase schedule and any escalation of the Purchase Price by
the same number of days until Seller meets the Available Lots
requirement. The parties agree to document the commencement and
termination of such additional time period and the effect upon the
purchase schedule and Purchase Price escalation. Notwithstanding
the foregoing, in the event that Seller fails to complete the work
necessary for the Initial Completion Notice to be issued on or
before June 30, 2017, the terms and conditions of Paragraph 8,
regarding Seller default, shall control and the six (6) month
extension in this Subparagraph 2(c)(i) shall not
apply.
(ii) In the event that Seller is not, or before the
date of Purchaser's notice was not, diligently pursuing the
fulfillment of its obligations hereunder in order to create
Available Lots, or in the event that Seller does not meet the
Available Lots requirement within the six (6) months described in
Subparagraph 2(c)(i) above, the terms and conditions of Paragraph
8, regarding Seller default, shall control.
6, Responsibility
Checklist. Exhibit "G"
of the Agreement is hereby deleted and
replaced with the Responsibility Checklist attached hereto
as Exhibit
"G".
7. Notices.
Subparagraph 20(b) of the Agreement is amended to reflect that the
notices to Purchaser are deleted in their entirety replaced with
the following in lieu thereof:
"If
to Purchaser:
NVR,
INC.
656
Quince Orchard Road, Suite 500
Gaithersburg,
MD 20878
Attn:
Matt Beck and John McConnell Facsimile: 240-912-3281
NVR,
INC.
4991
New Design Road, Suite 105
Frederick, 21703
Attn:
Ryan Borleis
Facsimile:
240-566-1038
Shulman,
Rogers, Gandal, Pordy & Ecker, P.A.
12505
Park Potomac, Sixth Floor
Potomac,
MD 20854
Attn:
Lawrence M. Kramer and Sean P. Sherman
Facsimile:
301-230-2891
3
If to Seller:
SeD
Maryland Development, LLC
C/O
MacKenzie Equity Partners
312 3rd
Street
Suite
102
Annapolis,
MD 21403
Attn:
Charles W.S. MacKenzie
Fax:
410-832-2937
Email: cmackenzie@mackenzieequity.com
MacKenzie
Communities, LLC
2328
W. Joppa Road, Ste. 200
Lutherville,
MD 21093
Attn.:
Robb Aumiller
Facsimile:
410-427-0429
Linowes
& Blocher
31
West Patrick Street, Suite 130
Frederick,
MD 21701 Attn: Bruce Dean Facsimile:301-694-2754
SeD
Development Management, LLC c/o
SeD
Maryland Development, LLC 4800
Montgomery
Lane, Suite 210
Bethesda,
MD 20814
Attn:
Charles W.S. MacKenzie
Facsimile:
443-482-3993
SeD
Ballenger, LLC c/o Singapore
eDevelop1nent
Limited 9 Temasek
Boulevard
#09-02A
Suntec
Tower 2
Singapore
038989
Attn:
Moe Chan
Facsimile:
+65 6333 9164"
8. Counterpart Copies. This Second
Amendment may be executed in any number of counterpart copies, all
of which counterparts shall have the same force and effect as if
all parties hereto had executed a single copy hereof,
4
9. Entire Agreement,
Ratification and Reconciliation. The Agreement (including the Exhibits) and this
Second Amendment contain the final and entire agreement between the
parties with respect to the sale and purchase of the Lots, and are
intended to be an integration of all prior negotiations and
understandings. Except as modified in this Second Amendment, the
Agreement is hereby ratified and remains in full force and effect.
The terms and provisions of this Second Amendment shall be
reconciled with the terms and provisions of the Agreement to the
fullest extent reasonably possible; provided, however, in the event
of any irreconcilable conflict between any term or provision of
this Second Amendment and any term or provision of the Agreement,
such term or provision of this Second Amendment shall
control.
10. Second Amendment
Date. This Second Amendment
shall become effective on the date last signed (the "Second
Amendment Date"). In addition, this Second Amendment and any waiver
or modification hereto will only be effective if signed by the Area
President of Purchaser (Or Purchaser's designee Vice President of
Operations), and at least two (2) other officers of
Purchaser.
IN WITNESS WHEREOF, the parties have set their
hands and seals as of the date written below each signature.
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WITNESS:
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SELLER:
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SeD
Maryland Development, LLC
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By:
SeD Development Management, LLC, Manager
By:
________________________________
Name:
Charley MacKenzie
Title;
Chief Development Officer
Date:
_______________________________
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[SIGNATURES
CONTINUED ON NEXT PAGE]
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PURCHASER:
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WITNESS:
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NVR,
INC.
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By:
________________________
Name:
T. Kent LaMotta
Title:
Vice President of Operations
Date:
______________________
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WITNESS:
|
|
|
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By:
_______________________
|
|
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Name:
Matt Beck
Title:
Senior Vice President of Land
Date:
_______________________
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WITNESS:
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By:
_______________________
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Name:
David Greminger
Title:
Reginal Manager
Date:
_______________________
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WITNESS:
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By:
_______________________
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Name:
Ryan Borleis
Title:
Vice President and Division Manager
Date:
_______________________
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