Exhibit 10.9
FIRST AMENDMENT TO FIRST AMENDED AND RESTATED AGREEMENT
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FOR PURCHASE AND SALE
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THIS FIRST AMENDMENT TO FIRST AMENDED AND RESTATED AGREEMENT FOR PURCHASE
AND SALE (the "Amendment") is made and entered into as of the 30th day of
January, 1998 by and between CHAPEL TRAIL ASSOCIATES, LTD., a Florida limited
partnership (the "Seller"), and XXXXXXX XXXXX LAND COMPANY, a Florida
corporation (the "Purchaser").
R E C I T A L S:
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1. The Seller and Purchaser entered into a First Amended and Restated Agreement
for Purchase and Sale (the "Agreement") on the 9th day of April, 1997, which
amended and restated that certain Agreement for Purchase and Sale dated June
14, 1995 (the "First Agreement") previously entered into by and between the
Seller and the Purchaser.
2. One hundred twenty-five (125) of the Phase One Lots have previously been
purchased in accordance with the terms and provisions of the Agreement and there
remains to be purchased one hundred twenty-four (124) Phase One Lots (the
"Remaining Lots") in accordance with the terms and provisions of the Agreement.
3. Seller and Purchaser desire to modify the terms and conditions set forth in
the Agreement as herein set forth.
NOW, THEREFORE, for and in consideration of the sum of TEN AND NO/100
($10.00) DOLLARS and for other good and valuable considerations in hand paid by
Purchaser to Seller, the receipt and sufficiency of which is hereby acknowledged
by Seller, it is hereby agreed as follows:
1. Recitals. The recitals above are true and correct and are incorporated
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herein by this reference.
2. Purchase and Sale: Notwithstanding any other term, covenant and/or
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condition to the contrary contained in the Agreement, Seller agrees to sell the
Remaining Lots to Purchaser and Purchaser agrees to purchase the Remaining Lots
from Seller, in accordance with the purchase price, terms and conditions herein
set forth. As a result thereof, the provisions contained within paragraph 3,
subparagraph b, and paragraph 11, subparagraphs d, f and g of the Agreement
shall no longer be applicable to the purchase price to be tendered for the
Remaining Lots as the purchase price to be tendered for the Remaining Lots, as
provided for in this Amendment, is all inclusive. All other provisions of the
Agreement dealing with closing expenses including, but not limited to,
subparagraph 11c-1 of the Agreement shall not be affected by this Amendment.
2.1 Purchase of Fifty (50) of the Remaining Lots: Purchaser shall close
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upon the purchase of fifty (50) of the Remaining Lots (the "First Takedown
Remaining Lots") on or before
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February 12,1998, at a purchase price of EIGHT HUNDRED SEVENTEEN THOUSAND THREE
HUNDRED FIFTY THREE AND NO/100 ($817,353.00) DOLLARS (the "First Takedown
Price").
2.2. Purchase of the Balance of the Remaining Lots. Purchaser shall be
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obligated to close upon the purchase of the seventy-four (74) Remaining Lots
which are not included within the First Takedown Remaining Lots (the "Second
Takedown Remaining Lots") on April 2, 1998, at a purchase price of ONE MILLION
TWO HUNDRED THIRTY NINE THOUSAND ONE HUNDRED TWELVE AND NO/100 DOLLARS
($1,239,112.00) DOLLARS.
2.3. Purchase of Phase Two Lots
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2.3.1 Purchaser shall be obligated to close upon the purchase of the
Phase Two Lots (as said term is defined in the Agreement) on May 1, 1998
(the "Phase Two Lots Closing Date"), at a purchase price (the "Phase Two
Purchase Price") of TWO MILLION FIVE HUNDRED SEVENTY TWO THOUSAND TWO
HUNDRED AND NO/100 ($2,572,200.00) DOLLARS. The Purchaser shall only
have the right to purchase the Phase Two Lots if Purchaser has
previously acquired all of the Remaining Lots from the Seller. The
Phase Two Purchase Price shall be payable at the Phase Two Lots Closing
Date as follows:
2.3.1.1. Purchaser shall execute a Purchase Money Mortgage and
Promissory Note (collectively, the APMM@) in favor of Seller in the
amount of ONE MILLION SEVENTY TWO THOUSAND TWO HUNDRED AND NO/100
($1,072,200.00) DOLLARS. Seller shall subordinate the lien of the PMM
to the mortgage lien created, in favor of the lender (the "ADC Lender")
providing acquisition, development and construction loan financing with
respect to the Phase Two Lots (the "ADC Loan"). The PMM shall not be
subordinate to the lien of the ADC Loan in the event the Phase Two Lots
constitute security for any other loan and/or indebtedness due the ADC
Lender. The ADC Loan documents shall provide that to the extent
Purchaser receives a notice of default from the ADC Lender, the ADC
Lender shall also provide a copy of such notice of default to Seller.
Purchaser shall pay the cost to record the Purchase Money Mortgage, the
cost of the documentary stamp taxes to be affixed to the Promissory Note
and the cost of the intangible tax due in connection with the Purchase
Money Mortgage. The form of Promissory Note and Purchase Money Mortgage
are attached hereto as Exhibit AA@ and Exhibit AB" respectively, to form
a part hereof, as if herein fully recited; and
2.3.1.2. Purchaser shall tender to Seller, by cashier's check or by
wire transfer the balance of the Phase Two Lot Purchase Price in the
amount of ONE MILLION FIVE HUNDRED THOUSAND AND NO/100 ($1,500,000.00)
DOLLARS.
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2.4. Notwithstanding anything to the contrary contained within the
Agreement, with respect to the Phase Two Lots only; Paragraphs 3, 7, 9 and 12 of
the Agreement and subparagraph 11c-1 of the Agreement shall not be applicable
and shall be deemed to be null and void. Any provisions of the Agreement which
are contingent upon Seller's or Purchaser's compliance with Paragraphs 3, 7, 9
and/or 12 of the Agreement and/or subparagraph 11c-1 of the Agreement shall be
construed as not requiring compliance by Seller or by Purchaser of said
paragraphs.
2.5 Provided that the proceeds of the ADC Loan are used solely for the
acquisition of the Phase Two Lots, the development and construction thereon of
residential housing (collectively the "Project") and to fund all hard costs and
soft costs specifically associated with the Project and what are normally and
customarily considered to be Project costs, Seller shall execute a Subordination
Agreement subordinating the lien of the PMM to the ADC Loan substantially in the
form of the Subordination Agreement attached hereto as Exhibit "C" to form a
part hereof.
2.6 At closing, Purchaser shall cause Xxxxxxx Homebuilders, Inc. to
guarantee the Promissory Note. The form of the Guaranty to be executed is
attached hereto as Exhibit AD@ to form a part hereof.
2.7 Encumbered Property. It is understood and agreed by and between
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Seller and Purchaser that if the ADC Loan only encumbers the Phase Two Lots (and
does not encumber any common areas) then the PMM shall only encumber the Phase
Two Lots.
3. Real Estate Taxes. For the purposes of this Amendment, in relation to the
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purchase by the Purchaser of the Remaining Lots and the Phase Two Lots, all real
estate taxes for the calendar year 1997 and before shall be paid by Seller: (i)
as to the Remaining Lots, by not later than the date the Purchaser closes upon
the purchase of the First Takedown Remaining Lots; and (ii) as to the Phase Two
Lots, by not later than the Phase Two Lots Closing Date.. Purchaser shall
purchase the Remaining Lots and the Phase Two Lots subject only to calendar year
1998 and subsequent years real estate taxes. The purchase price for the
Remaining Lots and the purchase price for the Phase Two Lots have been based
upon the following assumptions: (i) that the 1997 Tax Xxxx for 449 Lots are
listed on Exhibit "E" attached hereto and are in the aggregate amount of
$81,119.57 (the "Aggregate Taxes"). The purchase price for the Remaining Lots
and for the Phase Two Lots includes Purchaser paying the real estate taxes on
same from April 1, 1997. If the Aggregate Taxes are incorrect, upon ten (10)
days written demand therefor, by either party to the other party, the Seller and
Purchaser shall make the appropriate adjustments to the purchase prices of the
Remaining Lots and Phase Two Lots and the readjusted payments, if any, shall be
paid in such ten (10) day period; and (ii) that the 0000 Xxxxxxxx Xxxxx School
Impact Fees, for all of the Phase One Lots and for all of the Phase Two Lots,
are in the amount of $108,670.66.
4. Construction. Each party hereto hereby acknowledges that all parties hereto
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have participated equally in the drafting of this Amendment and that,
accordingly, no court construing this Amendment shall construe it more
stringently against one party than the other. This Amendment may be executed in
counterparts, each of which shall be deemed an original and all such
counterparts together shall constitute one and the same instrument.
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5. Full Performance. Except for the Purchaser Open Items (hereinafter
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defined) and except for all obligations of the Seller and the Purchaser set
forth within this Amendment, Seller and Purchaser acknowledge that all
contingencies specified in Agreement have been met and satisfied and that Seller
and Purchaser have each performed each and every one of their respective
obligations pursuant to the Agreement and, as of the date hereof, neither Seller
nor Purchaser is in default under the Agreement.
6. Waiver. Except for the Purchaser Open Items, Purchaser and Seller hereby
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waive and release each other from any claims and/or obligations required of
either party prior to the date of this Amendment.
7. Seller's Performance of Requirements with respect to the Phase One Lots.
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Except for the Purchaser Open Items, Purchaser hereby acknowledges that Seller
has fully performed all Requirements (as said term is defined in the Agreement)
and has fully complied with all other obligations to be performed by the Seller
with respect to the Phase One Lots. Accordingly, the Purchaser affirmatively
states that the Seller, other than the obligation to convey good and marketable
title to the Remaining Lots and other than the Purchaser Open Items, has no
further work to be done and no further obligations with respect to the Phase One
Lots.
8. Purchaser Open Items. The Purchaser shall have the right to deliver a
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written list (the "List") to the Seller, by not later than 5:00 p.m. on February
16, 1998, which List shall specify any issues (the "Purchaser Open Items")
relating to the Phase One Lots only which the Purchaser believes have not been
fully performed and complied with by the Seller in accordance with the Seller's
obligations under the Agreement. In the event the Purchaser fails to timely
deliver the List to the Seller, by 5:00 p.m. on February 16, 1998, then it shall
be deemed that the Purchaser has fully accepted the Seller's performance with
respect to the Phase One Lots including, but not limited to, the obligation to
perform the Requirements relating to the Phase One Lots. As to the Purchaser
Open Items, the following shall be applicable:
8.1. The dollar liability of the Seller to comply with the Purchaser Open
Items which the Seller is contractually obligated to perform shall not be
greater than $100,000.00;
8.2. As to any of the Purchaser Open Items which the Seller agrees are
within Seller's contractual obligation to perform (the "Agreed Upon Purchaser
Open Item"), the Seller shall either perform and/or remedy, as may be
applicable, the Agreed Upon Purchaser Open Item or, in the alternative, provide
the Purchaser with a credit (in an amount equal to the agreed upon cost to
perform the Agreed Upon Purchaser Open Item) against the cash portion of the
Phase Two Lot Purchase Price; and
8.3 As to any of the Purchaser Open Items which the Seller does not agree
are within the Seller's contractual obligation to perform, the Purchaser shall
have the rights and remedies afforded to the Purchaser in accordance with the
terms and provisions contained within the Agreement; subject to the dollar
limitation contained within subparagraph 8.1 of this Amendment (reduced by the
dollars expended by the Seller in accordance with the provisions contained
within subparagraph 8.2 of this Amendment).
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9. City of Pembroke Pines School Impact Fees and Special Assessments. The
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Purchaser acknowledges its responsibility to reimburse the Seller for all City
of Pembroke Pines School Impact Fees and Special Assessments (collectively the
"School Impact Fees") which have been paid by the Seller or which will be paid
by the Seller, as to the Phase One Lots and as to the Phase Two Lots purchased
and to be purchased by the Purchaser. The Purchaser shall reimburse the Seller
for all School Impact Fees paid or to be paid by the Seller, in the following
manner:
9.1. The Seller shall pay the School Impact Fees due for the 1997 calendar
year by not later than March 31, 1998, and the Purchaser shall, on the Phase Two
Lots Closing Date, reimburse the Seller, by cashier's check or by wire transfer,
the amount of the 1997 School Impact Fees; and
9.2 The PMM shall be increased by an amount equal to the School Impact
Fees paid by the Seller, for the calendar years 1995 and 1996, reduced by the
sum of $25,000.00.
Alternatively, in the event the Purchaser does not purchase the Phase Two Lots
from the Seller on the Phase Two Lots Closing Date then the Purchaser, on May 1,
1998, shall tender to the Seller, by cashier's check, an amount equal to the
School Impact Fees, attributable to the Phase One Lots purchased by the
Purchaser, and which have been paid by the Seller for the 1995, 1996 and 1997
calendar years.
10. Delivery of Documents. The Seller, on the Phase Two Lots Closing Date,
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shall provide to the Purchaser copies of all surveys, soil test borings and
other examinations, engineering plans and reports, in Seller's possession (such
documents are collectively referred to herein as the "Additional Documents"),
relating to the Phase Two Lots. Upon request from the Purchaser, the Seller
shall execute an appropriate document, in favor of the Purchaser, thereby
assigning and transferring to the Purchaser all of the right, title and interest
of the Seller in and to the Additional Documents.
11. Conflicting Provisions. The terms of this Amendment shall supersede and
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shall prevail over any conflicting provisions contained within the Agreement or
the First Agreement and to the extent not in conflict, all of the terms,
covenants and conditions of the Agreement are incorporated herein by reference.
12. Lender's Approval. Seller represents and warrants that First Union
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National Bank (the "Existing Lender") shall, by 5:00 p.m., on Wednesday,
February 18, 1998, provide written consent (the "Consent") to the terms and
provisions of this Amendment and acknowledge that the previously executed
Subordination and Non-Disturbance Agreement shall remain in full force and
effect and shall be deemed to encompass this Amendment. Seller represents,
warrants, covenants and agrees to pay all considerations, if any, required to
obtain the Consent.
13. Joinder by Xxxxxxx Malibu Bay, Inc. Xxxxxxx Malibu Bay, Inc., a Florida
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corporation, acknowledges having reviewed this Amendment and joins into,
acknowledges, covenants and agrees to be bound by the terms and provisions of
Paragraphs 5, 6 and 7 of the Amendment.
14. Phase Two Deposit. Pursuant to the provisions contained within Paragraph
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12 of the Agreement, Xxxxxxx Homebuilders Incorporated, a Florida corporation
("Xxxxxxx") was to have
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executed and delivered, to the Seller, a Promissory Note (the "Phase Two Deposit
Note") in favor of the Seller in the original principal amount of TWO HUNDRED
FIFTY THOUSAND AND NO/100 ($250,000.00) DOLLARS. However, the Seller and the
Purchaser both acknowledge and agree that the Phase Two Deposit Note may never
have been executed and delivered by Xxxxxxx. Accordingly, simultaneously with
the execution of this Amendment, the Purchaser has caused Xxxxxxx to execute and
deliver, into escrow with the Escrow Agent, the Phase Two Deposit Note. The
Phase Two Deposit Note executed simultaneously herewith by Xxxxxxx shall be
deemed to be in replacement of the Phase Two Deposit Note intended to have been
executed at the Initial Closing (as said term is defined within the Agreement)
by Xxxxxxx.
IN WITNESS WHEREOF, this Agreement has been executed as of the date first
set forth herein above.
SELLER:
CHAPEL TRAIL ASSOCIATES, LTD., a Florida limited
partnership
By: CHAPEL TRAIL LTD., a Florida limited partnership,
its General Partner
By: SAJIK CORP., a Florida corporation,
its General Partner
By:_______________________________________________
XXXXXXX XXXXXX, Vice-President
PURCHASER:
XXXXXXX XXXXX LAND COMPANY, A FLORIDA CORPORATION
By:_______________________________________________
XXXXX XXXXXXX, President
JOINDER AS TO PARAGRAPH 13 ONLY
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XXXXXXX AT MALIBU BAY, INC., A FLORIDA CORPORATION
By:_______________________________________________
XXXXX XXXXXXX, President
XXXXXXX HOMEBUILDERS INCORPORATED, a Florida corporation joins into this
Amendment for the purposes of: (i) guaranteeing the performance by the Purchaser
of the obligations of the Purchaser contained within Paragraph 2 (including its
subparagraphs) of this
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Amendment; and (ii) guaranteeing the timely and complete
payment of the obligations of the Purchaser contained within Paragraph 9
(including its subparagraphs) of this Amendment.
XXXXXXX HOMEBUILDERS INCORPORATED,
a Florida corporation
By:_______________________________________________
XXXXX XXXXXXX, President
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