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EXHIBIT 10.14
LOAN AGREEMENT
THIS LOAN AGREEMENT ("Agreement") is made and entered into this 10th
day of July, 1998, by and between FIRST CINCINNATI LAND LLC, an Ohio limited
liability company, 00000 Xxxxxxx Xxxx Xxxxx, Xxxxxxxxxx, Xxxx 00000 (the
"Borrower"), and THE PROVIDENT BANK, an Ohio banking corporation, Xxx Xxxx
Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxx 00000 (the "Lender").
RECITALS:
WHEREAS, Borrower contemplates acquisition of certain real property
(the "Real Property") pursuant to the terms of certain Contract(s) For Purchase
And Sale Of Real Estate (individually a "Purchase Contract" and collectively
"Purchase Contracts") substantially in the form of the Purchase Contract
attached hereto as Exhibit "A"; and
WHEREAS, Borrower has applied to Lender for a loan in the aggregate
amount of Ten Million and 00/100 Dollars ($10,000,000.00) (the "Loan"), and
Lender has agreed to make the Loan in accordance with the terms of a certain
promissory note in the principal amount of Ten Million and 00/100 Dollars
($10,000,000.00) (the "Note"), various real estate security documents in such
form(s) as shall be required by the Lender (individually a "Mortgage" and
collectively "Mortgages") and such other security documents as are described
herein, upon the terms and conditions of this Agreement; and
WHEREAS, it is a condition precedent to the making of the Loan that
Lender shall disburse the Loan proceeds pursuant to the terms, conditions and
provisions of this Agreement in order to assure that each Mortgage will, at all
times during the term of the Loan, constitute a good, best and first lien upon
the Real Property.
NOW, THEREFORE, to induce the Lender to make the Loan, and in
consideration thereof Borrower and Lender agree as follows:
1. Making the Loan. Subject to the terms and conditions of this
Agreement and in reliance upon the representations and warranties of Borrower
set forth herein, Lender agrees to lend to Borrower in one or more advances
(individually an "Advance" and collectively "Advances") an amount not to exceed
Ten Million and 00/100 Dollars ($10,000,000.00), which Loan proceeds shall be
used by Borrower to purchase the Real Property. All Advances shall be made on or
before December 23, 1998, after which no Advances shall be made.
2. Security. The Note will be secured by the Mortgages, together with
the Note, Guaranties executed by Xxxxx X. Xxxxxx, III, Xxxxx X. Xxxxxx, XX and
Xxxx X. Xxxxxx (collectively, the "Guarantors"), Assignment/Security
Agreement-Securities Account, Environmental Indemnity
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Agreement, $1,500,000.00 Standby Letter of Credit, this Agreement and all other
documents executed in connection with the Loan and each Advance, all as the same
may be further amended, extended or modified, are collectively referred to as
the "Loan Documents."
3. Procedure for Funding the Loan. The Loan shall be funded in
one or more Advances simultaneously with Borrower's purchase of part of the Real
Property pursuant to a Purchase Contract ("Individual Closing") in accordance
with the following procedures:
(1) The Lender shall fund the Advance in an amount equal to
the purchase price paid by the Borrower ("Purchase Price") for that part of the
Real Property described in the Purchase Contract which is the subject of the
Individual Closing.
(2) The funding of the Advance and the purchase by Borrower
shall take place at the offices of Lender on the third business day following
Lender's receipt of the following documents ("Closing Day"), each of which must
be satisfactory to Lender as determined in its discretion:
(a) Executed Loan Documents;
(b) Executed Purchase Contract which is the subject
of the Individual Closing;
(c) Joint Certification from Borrower and seller
under the Purchase Contract ("Seller") that the Purchase Price is identical to
the actual cash paid by the Seller when it purchased the Real Property described
in the Purchase Contract without any xxxx-up or cost, expense or interest
allocations;
(d) title insurance commitment or policy from a title
insurance company acceptable to Lender ("Title Company") evidencing that title
to the Real Property described in the Purchase Contract is marketable, free from
liens and encumbrances, without exception as to survey or mechanic's liens and
containing such other endorsements requested by Lender in a form satisfactory to
Lender;
(e) an outline survey or plot plan of the Real
Property described in the Purchase Contract certified by surveyor and prepared
in a manner sufficient for the Title Company to delete the survey exception from
its title commitment;
(f) evidence satisfactory to Lender that public
liability and property damage coverage are being carried in amounts acceptable
to Lender and naming Lender as an additional insured;
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(g) evidence satisfactory to Lender that no work of
any kind in connection with construction of improvements has been done upon the
Real Property described in the Purchase Contract or materials placed thereon;
(h) such other documents, instruments, opinions or
assurances as Lender or its counsel may request; and
(i) all settlement fees and recording fees, if any,
and other customary and usual fees incurred by Lender, but chargeable to
Borrower in accordance with the terms hereof.
4. Covenants of Borrower. Borrower hereby covenants with
Lender that with respect to the Real Property which becomes the subject matter
of an Advance that Borrower will:
(a) prevent the filing of, or promptly pay, any liens
against the Real Property, provided the Borrower need not pay any lien so long
as the validity thereof is being contested in good faith and provision for the
payment thereof is made by Borrower in form and manner satisfactory to Lender;
(b) use the Loan proceeds solely for the payment of
the Purchase Price of the Real Property and all related loan costs and fees;
(c) permit the duly authorized agents of Lender at
any reasonable time to enter upon and inspect the Real Property;
(d) comply with all laws, ordinances or other
governmental regulations affecting the Real Property;
(e) furnish to Lender such financial information of
Borrower and Guarantors as Lender may from time to time reasonably require;
(f) upon demand by Lender, pay all costs and expenses
required to satisfy the conditions of this Agreement, including, without
limiting the generality of the foregoing, the following:
(1) all taxes and recording expenses,
including stamp, intangibles and documentary taxes, if any;
(2) fees for title insurance, title updates,
appraisals and out-of-pocket expenses of Lender;
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(3) all fees and expenses of representatives of
Lender and counsel for Lender in connection with the Loan; and
(g) at all times during the term of this Agreement, comply
with all applicable federal, state, and local laws, regulations, administrative
rulings, orders, ordinances, and the like, pertaining to Borrower or the Real
Property.
5. Representations and Warranties. Borrower represents and warrants to
Lender that as of the date of the execution hereof and during the term of the
Loan, that:
(a) Borrower has not and shall not incur any Indebtedness
except for the Loan. "Indebtedness" means all the obligations of Borrower which,
in accordance with generally accepted accounting principles consistently
applied, would be classified as indebtedness upon a balance sheet, including any
footnotes thereto, of Borrower;
(b) Borrower shall deliver to Lender in May of each year the
federal tax return and a financial statement for the Borrower and each Guarantor
for the year ended immediately prior to each May;
(c) Borrower does not and shall not engage in any business
activities other than the purchase of the Real Property pursuant to the Purchase
Contracts and the sale of the Real Property pursuant to the terms of certain
Option To Repurchase Real Estate agreements ("Option Agreements") to be made
between Borrower, as optionor, and the sellers under the Purchase Contracts, as
optionee, which Option Agreements shall be in substantially the same form as
that attached hereto as Exhibit "B";
(d) That no work or construction has commenced nor have any
materials been delivered for construction of improvements on the Real Property
prior to the date of the execution of this Agreement. Borrower further agrees
not to commence or cause to commence any work or construction, nor to allow any
materials to be delivered, on the Real Property during the term of this
Agreement;
(e) The execution, delivery and performance by Borrower of the
Note, this Loan Agreement and the other Loan Documents and the execution,
delivery and performance by Guarantors of the Guaranties do not and will not (i)
to the best of its knowledge, violate any provision of any law, rule,
regulation, order, writ, judgment, injunction, decree, determination or award
presently in effect having applicability to Borrower or Guarantors; (ii) result
in the creation or imposition of any lien, charge, security interest or other
encumbrance upon any property or assets of Borrower or Guarantors other than as
described in such documents; nor (iii) result in a breach of or constitute a
default under any indenture or loan or credit agreement or any other
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material agreement, lease or instrument to which Borrower or Guarantors are a
party or by which Borrower or Guarantors, or properties owned by Borrower or
Guarantors, may be bound or affected;
(f) Each of the Loan Documents constitutes the legal, valid
and binding obligation of Borrower and Guarantors, enforceable in accordance
with the terms thereof except, as the same may be limited by bankruptcy,
moratorium, insolvency or similar laws affecting the enforcement of creditors'
rights generally;
(g) The Real Property which is the subject matter of an
Advance is not subject to any mortgage, pledge, security interest, title
retention lien or other encumbrance except liens for current real and personal
property taxes and assessments not delinquent, easements and restrictions of
record and interests herein granted to Lender;
(h) No litigation or proceeding of any governmental body or
any other person, firm or corporation is presently pending or threatened which
would have a materially adverse effect upon the financial condition of Borrower
or affect the title to the Real Property;
(i) The Real Property is properly zoned for its intended
purpose, to-wit: residential, single family, planned unit development (PUD);
(j) Except as permitted by the express terms hereof, Borrower
shall not, without the prior written consent of Lender, further mortgage,
assign, convey, sell, or otherwise dispose of the Real Property which is the
subject matter of an Advance or any part thereof, or the income therefrom, or
permit any such action to be taken;
(k) All tax returns and reports of Borrower required by law to
be filed have been duly filed and all taxes, assessments, contributions, fees
and other governmental charges (other than those presently payable without
penalty or interest and those currently being contested in good faith) upon
Borrower or its respective properties or assets or income which are due and
payable, have been paid;
(l) None of the financial statements, certificates or other
statements furnished to Lender by or on behalf of Borrower and the Guarantors in
connection with the Loan, and none of the representations and warranties in this
Agreement, contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements contained therein or
herein not misleading;
(m) None of the Real Property is located within a one hundred
(100) year flood plain; and
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(n) All disbursements pursuant to the terms of this Agreement
will be utilized solely in accordance with the provisions hereof.
6. Events of Default. Upon the occurrence of a default under any of the
Mortgages or any other Loan Document, then the outstanding principal of the
Note, together with interest accrued and unpaid thereon, shall become
immediately due and payable without further notice or demand, and Lender may
take such action as it may deem appropriate to enforce payment of the
outstanding principal and/or interest due on the Note and apply any part of any
funds then in its hands to the payment of the Note. Upon the occurrence of an
event of default, Borrower irrevocably constitutes and appoints Lender to be its
true and lawful attorney for it and in its name, and Lender is hereby
irrevocably authorized and empowered to enter into and upon the Real Property
which is the subject matter of an Advance and take charge thereof, and do
whatsoever, in the sole judgment of the Lender, it shall reasonably deem
necessary to be done to protect Lender's interest in such Real Property.
Notwithstanding anything to the contrary contained in any Loan Document, a
default under any Loan Document by Borrower ("Contract Default") shall not be
deemed to occur until the expiration of a fifteen (15) day grace period
following the time when such Contract Default would otherwise be deemed to occur
under such Loan Document. Provided Borrower cures such Contract Default during
the grace period, then no such Contract Default shall be deemed to have occurred
under the Loan Documents.
7. Releases. Provided there is no default under the Loan Documents and
provided there is no condition which exists that, with the passage of time,
would create a default, Lender hereby covenants and agrees to release from the
lien of a Mortgage the Real Property described in such Mortgage upon the payment
to Lender of an amount equal to one hundred fifteen percent (115%) of the
Purchase Price paid by Borrower for such encumbered Real Estate ("Release
Price"). Upon receipt of the Release Price, eighty-six and ninety-six one
hundredths percent (86.96%) of the Release Price shall be applied to reduce the
indebtedness due on the Loan and thirteen and four one hundredths percent
(13.04%) of the Release Price shall be deposited into Borrower's Investment
Management Account No. 135000248 with Lender ("IM Account"), which IM Account
shall be pledged to Lender pursuant to the terms of the Assignment/Security
Agreement-Securities Account as collateral security for the Loan.
8. Miscellaneous.
(a) No Waiver; Cumulative Remedies. No failure by Lender to
exercise and no delay by it in exercising any right, power or privilege
hereunder shall preclude any other further exercise thereof or the exercise of
any other right, power or privilege. The rights and remedies under this
Agreement are cumulative and not exclusive of any rights or remedies provided by
law.
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(b) Construction. This Agreement and the rights and
obligations of the parties hereunder shall be construed in accordance with the
laws of the State of Ohio.
(c) Survival of Agreements. All agreements, representations
and warranties made in this Agreement shall survive the making of the Loan
hereunder.
(d) Successors. This Agreement shall be binding upon and shall
inure to the benefit of the Borrower and Lender and to their respective heirs,
personal representatives, successors and assigns. Borrower shall not have the
right to assign this Agreement or any rights hereunder without the prior written
consent of Lender.
(e) Counterparts. This Agreement may be executed in any number
of counterparts, and each such counterpart shall be deemed to be an original.
(f) Cost of Loan. Borrower shall pay to Lender on the date
hereof an origination fee in connection with the making of the Loan in the
amount of Twenty-Five Thousand and 00/100 Dollars ($25,000.00). Borrower shall
also pay all the costs incurred by Lender in the making of the Loan and each
Advance and the administration thereof, including title examination and title
insurance fees, all title examination update fees necessary in connection with
the title policy issued hereunder, survey fees, inspection fees and attorney's
fees, and shall have the right to automatically charge Borrower's loan account
to pay such fees and expenses.
(g) Waiver of Jury Trial; Jurisdiction. As a specifically
bargained inducement for Lender to extend credit to Borrower: (i) the
undersigned hereby expressly waives the right to trial by jury in any lawsuit or
proceeding related to this Agreement or arising in any way from the indebtedness
or transactions involving Lender and the Borrower, and (ii) the undersigned
hereby designates all courts of record, state and federal, sitting in
Cincinnati, Ohio and having jurisdiction over the subject matter, as forums
where any action, suit or proceeding in respect of or as arising from or out of
this Agreement, its making, validity or performance, may be prosecuted as to all
parties, their successors and assigns; and by the foregoing designation, the
undersigned consents to the jurisdiction and venue of such courts.
Remainder of page intentionally left blank. Signature
page follows.
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IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be executed and delivered as of the day and year first above written.
BORROWER:
FIRST CINCINNATI LAND LLC, an Ohio
limited liability company
By: /s/ XXXXX X. XXXXXX, III
-----------------------------
Name: Xxxxx X. Xxxxxx, III
Title: Member
LENDER:
THE PROVIDENT BANK, an Ohio banking
corporation
By: /s/ XXXXX XXXXX
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Name: Xxxxx Xxxxx
Title: Sr.Vice President
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EXHIBIT "A"
CONTRACT FOR PURCHASE AND SALE OF REAL ESTATE
(UNIMPROVED LAND - OHIO)
This Contract for Purchase and Sale of Real Estate (this "Contract") is
made as of the _____ day of _______________, 1998 (the "Effective Date") between
XXXXXX HOMES, INC., an Ohio corporation whose address is 00000 Xxxxxxx Xxxx
Xxxxx, Xxxxxxxxxx, Xxxx 00000 ("Seller"), and FIRST CINCINNATI LAND LLC, an Ohio
limited liability company whose address is 00000 Xxxxxxx Xxxx Xxxxx, Xxxxxxxxxx,
Xxxx 00000 ("Purchaser"). Seller and Purchaser agree as follows:
1. RECITALS. Seller owns the tract or tracts of unimproved real property
identified on attached Exhibit A, including all easements and
appurtenances thereto (the "Property"). Purchaser desires to purchase
the Property from Seller and Seller desires to sell the Property to
Purchaser on the terms contained in this Contract, including Seller's
option to repurchase the Property as described in Paragraph 3(c),
below. Purchaser intends to hold the Property for investment and has no
intention to develop or otherwise improve the Property.
2. PURCHASE PRICE. The purchase price for the Property will be as set
forth on attached Exhibit A (the "Purchase Price"). The Purchase Price
reflects Seller's direct acquisition and development costs plus an
allocation of indirect costs exclusive of selling, general, and
administrative costs. The Purchase Price will be paid to Seller in
immediately available funds at the Closing (as described below).
3. CLOSING. The Closing will occur within thirty (30) days after the
Effective Date, at a time and place mutually acceptable to the parties.
a. Seller will convey good and marketable fee simple title to the
Property to Purchaser at the Closing by general warranty deed or
deeds in recordable form (the "Deed"), free, clear and
unencumbered, subject to non-delinquent real estate taxes and
assessments, legal highways, easements, covenants, and
restrictions of record as of the Effective Date ("Permitted
Exceptions"). If all or any portion of the Property is registered
land, Seller will deliver to Purchaser the registered land owner's
duplicate for the Property at the Closing so that the Deed can be
recorded. Mortgages and liens on the Property, if any, will be
paid by Seller at or prior to the Closing. Exclusive possession of
the Property, subject to the Permitted Exceptions, will be
delivered to Purchaser at the Closing.
b. Seller will deliver to Purchaser at the Closing a title affidavit
as to those items or facts within Seller's control in form
typically required by Purchaser's title insurance company and
sufficient to allow such title company to delete the "standard
exceptions" in a title insurance policy. Seller will deliver to
Purchaser at the Closing lien releases, affidavits and other
documents satisfactory to Purchaser's counsel indemnifying
Purchaser from all liability and expense, including without
limitation
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attorneys' fees, that Purchaser may incur in connection with
unrecorded mechanics' liens in the event of any work being
completed or performed, or material being furnished at, on or
about the Property.
c. Seller and Purchaser will execute and deliver at the Closing an
Option to Repurchase Real Estate in the form of attached Exhibit 1
(the "Option") under which Purchaser will grant to Seller an
option to repurchase the Property from Purchaser for a period of
three (3) years from the date of Closing.
d. Seller will be responsible for the preparation of the Deed, the
Option, and for all conveyance fees or transfer taxes, if any, in
connection with the conveyance of the Property. Purchaser will be
responsible for the cost of recording the Deed. Seller will pay
all real estate taxes and assessments current as of Closing and
thereafter in accordance with the terms of the Option.
4. INFORMATION REGARDING THE PROPERTY. Seller shall deliver to Purchaser,
within five (5) days of the Effective Date, all documents or materials
in Seller's possession or control regarding the Property, including,
without limitation, planning and zoning documents, surveys, title
reports, feasibility studies, soil tests, environmental assessments,
and engineering drawings.
5. CONDITION OF THE PROPERTY. Except for the representations and
warranties contained in this Contract, Purchaser acknowledges that
Seller has made no representations or warranties concerning the
Property, that Purchaser is purchasing the Property in its "AS IS"
condition, that Purchaser is relying solely upon its own investigation
of the Property with respect to the condition, character and size of
the Property, and that Purchaser has completed such investigation prior
to the execution of this Contract.
6. REPRESENTATIONS AND WARRANTIES. As a material inducement for the
execution and delivery of this Contract by Purchaser, Seller represents
and warrants to Purchaser (and shall be deemed to represent and warrant
to Purchaser on the date of the Closing) that:
a. Seller owns good and marketable fee simple title to the Property
free, clear and unencumbered, other than the Permitted Exceptions
and liens (not in excess of the Purchase Price) to be released by
Seller at the Closing. Seller has the right and authority to enter
into this Contract and has obtained all consents and approvals to
convey the Property.
b. To the best of Seller's knowledge, the Property has not been used
for a disposal of any hazardous or toxic waste materials, nor has
the Property ever contained nor does it currently contain any
hazardous or toxic waste materials, in violation of any
applicable, federal, state, or local environmental laws or
regulations, nor has any "clean up" of the Property occurred
pursuant to those laws or regulations which could give rise to
liability on the part of Purchaser or Purchaser's successors in
interest to reimburse any governmental authority for the costs of
such cleanup, or create a lien
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or encumbrance on the Property, nor has any landfill has occurred
on the Property and no debris has been buried or placed on the
Property.
c. Seller has not received notice from any governmental or
quasi-governmental body or agency with respect to any actual or
threatened taking of the Property or change in zoning of the
Property nor does Seller have any knowledge of any actual or
threatened taking or change in zoning.
d. Seller has not entered into any other contracts, agreements or
understandings, verbal or written, for the sale, transfer, lease
or occupancy of all or of any portion of the Property.
There is no litigation, administrative action or other proceeding
pending or threatened against Seller or the Property which could
result in a lien, charge or encumbrance against all or any part of
the Property. No attachments, execution proceedings, liens or
insolvency proceedings are pending or threatened against Seller or
the Property or contemplated by Seller.
There are no public improvements which have been ordered to be made or
assessed, and there are no special, general or other assessments
pending, threatened against or affecting the Property and Seller
has not made and has no knowledge of any commitments made to any
governmental unit or agency, utility company, authority, school
board, or to any other organization or individual relating to the
Property which would impose any obligations upon Purchaser to make
any contributions of money or land or to install or maintain any
improvements.
The Property does not contain any cemetery lands and Seller is unaware
of any archeological or paleontelogical resources which might
adversely affect or delay the development of the Property.
No examination of the Property will be deemed to constitute a waiver or
a relinquishment on the part of Purchaser of its rights to rely on the
covenants, representations, warranties and agreements made by Seller or
upon the tests, reports, plans, drawings and agreements provided to
Purchaser by Seller.
7. AUTHORITY. Concurrently with the execution of this Contract by Seller,
Seller shall deliver to Purchaser a certified copy of the resolution of
Seller's board of directors authorizing Seller to execute this
Contract, the Option, and to consummate the transaction which is the
subject of this Contract. Concurrently with the execution of this
Contract by Purchaser, Purchaser shall deliver to Seller a certified
copy of the resolution of Purchaser's manager(s) authorizing Purchaser
to execute this Contract, the Option, and to consummate the transaction
which is the subject of this Contract.
8. CONDEMNATION. If any time after the date of Purchaser's execution of
this Contract but prior to the Closing (i) the Property is condemned,
in whole or in part, or (ii) any notice of condemnation shall be given,
then Purchaser, at its option, may terminate this Contract by
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written notice to Seller or proceed with the Closing. If Purchaser
elects to proceed with the Closing, then Purchaser may either apply the
proceeds of any condemnation award to reduce the Purchase Price or
accept an assignment of such proceeds or award.
9. BREACH AND REMEDIES. In the event of a breach of this Contract by
either party, the other party will be entitled to all rights and
remedies available at law or in equity. The parties shall each
indemnify and hold the other harmless from and against all costs and
damages (including attorneys' fees and court costs) incurred as a
result of such breach.
10. BROKERS. Purchaser and Seller hereby represent and warrant to each
other that they have not dealt with any broker in connection with this
transaction who has in any way participated as the procuring cause of
the sale of the Property. Purchaser and Seller will indemnify each
other from and against any and all claims for commissions or fees by
brokers or other persons claiming through them.
11. NOTICES. All notices will be in writing and will be delivered by United
States Mail, certified return receipt requested, or by hand delivery or
reputable overnight courier to the address stated above or at such
other address as the parties may specify from time to time in
accordance with this paragraph. All notices will be effective upon
receipt.
12. GENERAL.
a. This Contract constitutes the entire agreement between Seller
and Purchaser with respect to the Property and supersedes any
other prior communications, representations or statements with
respect to the transaction contemplated herein.
b. This Contract may not be modified, altered or amended in any
manner except by an agreement in writing executed by the
parties.
c. If any provision of this Contract is determined to be invalid,
the remainder of this Contract will be valid, enforceable and
effective.
d. This Contract will be interpreted and governed by the laws of
the State of Ohio.
e. This Contract will inure to the benefit of and bind the
parties and their respective successors and assigns.
Notwithstanding the foregoing, this Contract may only be
assigned with the prior written consent of the other party.
f. This Contract may be signed in counterparts, each of which
will constitute one and the same instrument.
g. Time is of the essence to this Contract. If a date specified
for performance by either or both parties falls on a weekend
or legal holiday, the time for performance shall be extended
to the next business day.
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h. Unless otherwise expressly provided herein, this provisions of
this Contract will survive the Closing and delivery of the
Deed for three (3) years following the date of the Closing.
Signed as of the Effective Date by the duly authorized officers or
representatives of the Purchaser and Seller.
PURCHASER: SELLER:
FIRST CINCINNATI LAND LLC, XXXXXX HOMES, INC.,
an Ohio limited liability company an Ohio corporation
By: By:
--------------------------------- ---------------------------------
Print Name: Print Name:
------------------------- -------------------------
Title: Title:
--------------------------------- ------------------------------
LIST OF EXHIBITS AND SCHEDULES
EXHIBIT A -- Term Sheet
EXHIBIT 1 -- Form of Option
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EXHIBIT A
TERM SHEET
Property: Parkside, Mason, Ohio
(legal description attached)
Total Acres in Property: 41.0133 acres
Total Purchase Price: $965,645.62
Purchase Price Per Acre: $23,544.69
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EXHIBIT "B"
OPTION TO REPURCHASE REAL ESTATE
(UNIMPROVED LAND - OHIO)
This Option to Repurchase Real Estate (this "Option") is made as of the
_____ day of _______________, 1998 (the "Effective Date") between FIRST
CINCINNATI LAND LLC, an Ohio limited liability company whose address is 00000
Xxxxxxx Xxxx Xxxxx, Xxxxxxxxxx, Xxxx 00000 ("Seller"), and XXXXXX HOMES, INC.,
an Ohio corporation whose address is 00000 Xxxxxxx Xxxx Xxxxx, Xxxxxxxxxx, Xxxx
00000 ("Purchaser"). Seller and Purchaser agree as follows:
1. GRANT OF OPTION. In consideration of the payments and mutual promises
hereinafter set forth, Seller hereby grants to Purchaser the exclusive
right and option to repurchase from Seller on the terms hereinafter set
forth all or any portion of unimproved real property identified on
attached Exhibit A, including all easements and appurtenances thereto
(the "Property").
2. OPTION PAYMENTS. In consideration for the granting of this Option,
Purchaser shall make the following payments (collectively, the "Option
Payments") to Seller. All Option Payments are non-refundable.
a. Commencing on the Effective Date and continuing throughout
the term of this Option, Purchaser shall pay to Seller monthly
payments in an amount determined with reference to the annual
interest payable by Seller to The Provident Bank ("Provident")
pursuant to the terms of a promissory note executed by Seller
in favor of Provident (the "Note") in connection with a
mortgage loan on the Property (the "Loan"). Such payments will
be due and payable on or before the first day of each calendar
month during the term of this Option without demand, deduction
or setoff. A payment due for any partial period at the
beginning or end of the term of this Option will be prorated.
Seller will notify Purchaser in writing of the initial amount
of monthly payment, and such amount will remain in effect for
succeeding months until Seller notifies Purchaser in writing of
a different monthly payment based on a change in the interest
rate pursuant to the Note. The formula to be used for the
calculation of monthly payments is as follows: (i) Purchase
Price (as defined in the Contract for Purchase and Sale of Real
Estate (the "Contract") between Purchaser (as seller) and
Seller (as purchaser) and as set forth on attached Exhibit A)
of the Property then subject to this Option, multiplied by (ii)
the annual interest rate then in effect pursuant to the Note,
divided by (iii) twelve (12).
b. Purchaser will pay when due (or promptly reimburse Seller
upon written demand, if Seller pays) all real estate taxes and
assessments (including all CAUV recoupment attributable to the
period of Purchaser's ownership of the Property and/or
development activities of Purchaser on the Property) levied or
assessed upon the Property and payable during the term of this
Option. If Purchaser does not exercise its right to repurchase
the Property, then at the expiration or termination of this
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Option, Purchaser will pay Seller an amount equal to real
estate taxes and assessments on the Property attributable to
the earlier of (i) the date on which any termination of this
Option is effective, or (ii) the Expiration Date. Such amount
will be calculated based upon the most recently issued real
estate tax xxxx. In addition, Purchaser will pay to Seller all
CAUV recoupment attributable to the period of Purchaser's
ownership of the Property and/or development activities of
Purchaser on the Property.
c. Purchaser will pay when due all charges for water, storm or
sanitary sewer, drainage, refuse collection, gas, fuel,
electricity, telephone and all other utilities serving the
Property during the term of this Option, if any.
d. Subject to Purchaser's reimbursement for premiums as
provided below, throughout the term of this Option, Seller will
maintain public liability insurance for the Property with
single limits of not less than $1,000,000 for personal injury
and death, aggregate limits of not less than $3,000,000 for
personal injury and death and $500,000.00 for property damage
as well as excess umbrella liability insurance affording
additional insurance coverage with limits of at least
$10,000,000. All insurance policies will name Purchaser and any
mortgage holder as an additional named insured as their
interests may appear. Seller will provide Purchaser with a
certificate of insurance certifying as to the existence of such
insurance and agreeing to notify such parties thirty (30) days
in advance of any termination of such coverage. Upon written
demand from Seller, Purchaser will reimburse Seller for the
insurance premiums attributable to such liability insurance.
e. Upon written demand from Seller, Purchaser will reimburse
Seller for any actual out-of-pocket costs and expenses
attributable to the Property and paid by Seller in connection
with the Loan, including but not limited to loan commitment
fees, appraisal fees, title exams, title insurance premiums,
surveys, and attorney fees for Provident's counsel required to
be paid by Seller.
f. The parties acknowledge that Seller may collaterally assign
its rights in this Option to Provident. At Purchaser's option,
Purchaser may, without further authorization from Seller, make
any of the foregoing payments directly to Provident if
Purchaser has reason to believe that Seller is in default
under the Note or any other document executed in connection
with the Loan, and any such payment to Provident shall
constitute payment to Seller hereunder.
g. Seller may terminate this Option if Purchaser fails to make
any Option Payment within ten (10) days after receipt of
written notice from Seller that such Option Payment is due but
unpaid, in which event the Additional Payment (as defined
below) shall be immediately due and payable.
3. TERM OF OPTION. The term of this Option shall commence on the
Effective Date and shall expire at 5:00 p.m. E.S.T. on July ____, 2001
(the "Expiration Date"). Purchaser may
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terminate this Option prior to the Expiration Date upon ninety (90)
days' prior written notice to Seller and payment of the Additional
Payment as required by Paragraph 6.
4. EXERCISE OF OPTION. Purchaser may exercise its right to repurchase at
any time (and from time to time if Purchaser desires to purchase only a
portion of the Property) up to and including the Expiration Date. If
Purchaser elects to exercise its right to repurchase, Purchaser shall
deliver written notice to Seller on or before 5:00 p.m. on the
Expiration Date.
5. ACQUISITION PRICE. If Purchaser exercises its right to repurchase,
Purchaser shall pay to Seller in immediately available funds at the
Closing (as defined below) an amount equal to one hundred fifteen
percent (115%) of the Purchase Price (the "Acquisition Price"). The
formula for calculating the Acquisition Price is as follows: (i) total
acreage being repurchased, multiplied by (ii) Purchase Price per acre
for the Property set forth on Exhibit A, multiplied by (iii) 115%. None
of the Option Payments described in Paragraph 2 shall be applied to the
Acquisition Price.
6. OTHER OPTIONS/ADDITIONAL PAYMENT. Concurrently with or subsequent to
the execution of this Option, Purchaser, Xxxxxx Homes Kentucky LLC
("ZHK"), and Xxxxxx Homes of Indiana, L.L.C. ("ZHI") as purchasers are
executing other options to repurchase real estate from Seller
substantially in the form of this Option for other property owned by
Seller in Tennessee, North Carolina, Kentucky, and Indiana
(collectively, the "Other Options"). Purchaser shall pay to Seller the
sum of One Million Five Hundred Thousand Dollars ($1,500,000) (the
"Additional Payment") in immediately available funds on the earlier of
(i) the date on which any termination of this Option is effective, (ii)
the date on which any termination of any of the Other Options is
effective, or (iii) the first business day following the Expiration
Date of this Option, unless Seller has defaulted under this Option or
under one or more of the Other Options or unless all of the following
occur in which event the Additional Payment shall not be paid: (a)
Purchaser pays Seller the Acquisition Price for all of the Property
pursuant to the terms of this Option; and (b) all of the purchasers
under the Other Options pay Seller the acquisition prices for all of
the properties which are the subject of the Other Options.
7. LETTER OF CREDIT. Concurrently with the execution of this Option by
Purchaser, Purchaser shall provide to Seller an irrevocable letter of
credit in the amount of the Additional Payment (the "Letter of Credit")
to secure Purchaser's obligations contained in this Option. The Letter
of Credit shall contain terms and be issued by a bank reasonably
acceptable to Seller and shall be maintained in effect throughout the
term of this Option. If the Letter of Credit expires prior to
thirty-one (31) days after the Expiration Date of this Option,
Purchaser shall deliver to Seller a replacement Letter of Credit no
later than thirty-one (31) days prior to the expiration date of the
Letter of Credit then in effect. Upon receipt of the replacement Letter
of Credit, Seller shall return the original Letter of Credit to
Purchaser. Upon receipt of (i) the Acquisition Price for all of the
Property and the acquisition prices for all of the properties covered
by the Other Options, or (ii) the Additional Payment, Seller shall
return the Letter of Credit to Purchaser.
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8. SELLER'S RIGHT. If a change in control of Purchaser, ZHK, ZHI, or
Xxxxxx National Corporation (Purchaser's parent corporation) occurs
during the term of this Option, Seller may at any time thereafter
terminate this Option upon ninety (90) days' prior written notice to
Purchaser ("Seller's Notice"). Purchaser shall pay the Additional
Payment to Seller within ninety (90) days after the date of Seller's
Notice, if any of the following occur: (i) Purchaser does not elect to
exercise its right to repurchase and/or Purchaser does not pay to
Seller the Acquisition Price for all of the Property pursuant to this
Option; (ii) any one or more of the purchasers under the Other Options
do not elect to exercise their options to repurchase and/or any one or
more of the purchasers under the Other Options do not pay to Seller the
acquisition prices for all of the properties which are the subject of
the Other Options.
9. CHANGE IN CONTROL. For purposes of Paragraph 8, a change in control
will be deemed to have occurred under any of the following
circumstances:
a. The occurrence of any transaction that causes Xxxxx X. Xxxxxx III
("Xxxxxx") to own, directly or indirectly, less than twenty-five
percent (25%) of the issued and outstanding stock of Purchaser or less
than twenty-five percent (25%) of the membership interests in ZHK or
ZHI. For purposes of this Option, ownership of stock and ownership of
membership interests will be determined in accordance with the rules of
constructive ownership provided in section 267(c) of the Internal
Revenue Code of 1986, as amended, by treating those rules as applying
to ownership of interests in a limited liability company as well as
ownership of stock in a corporation.
b. The sale or transfer of all or substantially all of the assets
of either Xxxxxx National Corporation, Purchaser, ZHK, or ZHI.
10. CLOSING. If Purchaser exercises its right to repurchase, the Closing
will occur within thirty (30) days after the date of Purchaser's
written notice to Seller as described in Paragraph 4 or within ninety
(90) days after the date of Seller's Notice, whichever is applicable,
at a time and place mutually acceptable to the parties. The following
terms and conditions will apply:
a. Seller will convey good and marketable fee simple title to the
Property to Purchaser at the Closing by limited warranty deed or deeds
in recordable form (the "Deed"), free, clear and unencumbered, subject
to non-delinquent real estate taxes and assessments, legal highways,
easements, covenants, and restrictions of record as of the Effective
Date ("Permitted Exceptions"). If all or any portion of the Property is
registered land, Seller will deliver to Purchaser the registered land
owner's duplicate for the Property at the Closing so that the Deed can
be recorded. Mortgages and liens on the Property, if any, will be paid
by Seller at or prior to the Closing. Exclusive possession of the
Property, subject to the Permitted Exceptions, will be delivered to
Purchaser at the Closing.
b. Seller shall deliver to Purchaser at the Closing all documents or
materials in Seller's possession or control regarding the portion of
the Property being repurchased, including, without limitation, planning
and zoning documents, surveys, title reports, feasibility studies, soil
tests, environmental assessments, and engineering drawings.
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c. Seller will deliver to Purchaser at the Closing a title affidavit as
to those items or facts within Seller's control in form typically
required by Purchaser's title insurance company and sufficient to allow
such title company to delete the "standard exceptions" in a title
insurance policy. Seller will deliver to Purchaser at the Closing lien
releases, affidavits and other documents satisfactory to Purchaser's
counsel indemnifying Purchaser from all liability and expense,
including without limitation attorneys' fees, that Purchaser may incur
in connection with unrecorded mechanics' liens in the event of any work
being completed or performed, or material being furnished at, on or
about the Property.
d. Seller will be responsible for the preparation of the Deed and for
all conveyance fees or transfer taxes, if any, in connection with the
conveyance of the Property. Purchaser will be responsible for the cost
of recording the Deed.
e. All of the representations and warranties from Purchaser (as seller)
to Seller (as purchaser) contained in the Contract shall be deemed to
run from Seller to Purchaser and shall survive the Closing for a period
of three (3) years. Except for such representations and warranties,
Purchaser acknowledges that Seller has made no representations or
warranties concerning the Property, that Purchaser is purchasing the
Property in its "AS IS" condition, that Purchaser is relying solely
upon its own investigation of the Property with respect to the
condition, character and size of the Property, and that Purchaser shall
have completed such investigation prior to exercising its right to
repurchase the Property.
f. If any time after the date of Purchaser's notice pursuant to
Paragraph 4 but prior to the Closing (i) the Property is condemned,
in whole or in part, or (ii) any notice of condemnation shall be
given, then Purchaser, at its option, may revoke its election to
repurchase the Property by written notice to Seller or proceed with
the Closing. If Purchaser elects to proceed with the Closing, then
Purchaser may either apply the proceeds of any condemnation award to
reduce the Purchase Price or accept an assignment of such proceeds
or award.
g. If Purchaser is repurchasing only a portion of the Property, then
Purchaser at its expense shall obtain all necessary approvals for
the proposed subdivision of the Property and shall provide all
documentation necessary to ensure that the portion of the Property
not being repurchased is transferable as a separate parcel,
including but not limited to a survey and metes and bounds legal
description for the portion of the Property not being repurchased if
required.
11 SIGNAGE. Seller hereby acknowledges and approves of existing signage
and advertising displayed on the Property and agrees that such signage,
and any reasonable replacement thereof, may be maintained on the
Property.
12 BROKERS. Purchaser and Seller hereby represent and warrant to each
other that they have not dealt with any broker in connection with this
transaction who has in any way participated as the procuring cause of
the sale of the Property. Purchaser and Seller will indemnify each
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other from and against any and all claims for commissions or fees by
brokers or other persons claiming through them.
13 BREACH AND REMEDIES. In the event of a breach of this Option by either
party, the other party will be entitled to all rights and remedies
available at law or in equity. The parties shall each indemnify and
hold the other harmless from and against all costs and damages
(including attorneys' fees and court costs) incurred as a result of
such breach.
14 NOTICES. All notices will be in writing and will be delivered by United
States Mail, certified return receipt requested, or by hand delivery or
reputable overnight courier to the address stated above or at such
other address as the parties may specify from time to time in
accordance with this paragraph. All notices will be effective upon
receipt.
15 GENERAL.
a. This Option constitutes the entire agreement between Seller
and Purchaser with respect to the Property and supersedes any
other prior communications, representations or statements with
respect to the transaction contemplated herein.
b. This Option may not be modified, altered or amended in any
manner except by an agreement in writing executed by the parties.
c. If any provision of this Option is determined to be invalid,
the remainder of this Option will be valid, enforceable and effective.
d. This Option will be interpreted and governed by the laws of
the State of Ohio.
e. This Option will inure to the benefit of and bind the parties
and their respective successors and assigns. Notwithstanding the
foregoing, this Option may only be assigned with the prior written
consent of the other party.
f. This Option may be signed in counterparts, each of which will
constitute one and the same instrument.
g. Time is of the essence to this Option. If a date specified for
performance by either or both parties falls on a weekend or legal
holiday, the time for performance shall be extended to the next
business day.
h. This Option shall not be recorded. However, Seller, at the
request of Purchaser, shall execute and deliver to Purchaser an
instrument sufficient in form suitable to place notice of this Option
of record.
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Signed as of the Effective Date by the duly authorized officers or
representatives of the Purchaser and Seller.
Signed and acknowledged SELLER:
in the presence of: FIRST CINCINNATI LAND LLC,
an Ohio limited liability company
-------------------------------------
Print Name:
-------------------------- By:
--------------------------------
Print Name:
------------------------
Title:
-----------------------------
-------------------------------------
Print Name:
--------------------------
PURCHASER:
XXXXXX HOMES, INC.,
an Ohio corporation
-------------------------------------
Print Name:
-------------------------- By:
--------------------------------
Print Name:
------------------------
Title:
-----------------------------
-------------------------------------
Print Name:
--------------------------
STATE OF OHIO )
) SS:
COUNTY OF XXXXXXXX )
The foregoing instrument was acknowledged before me, a notary public,
this ____ day of _____________, 1998 by _____________________________, a/the
__________________ of FIRST CINCINNATI LAND LLC, an Ohio limited liability
company, on behalf of such company.
---------------------------------------------
Notary Public
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STATE OF OHIO )
) SS:
COUNTY OF XXXXXXXX )
The foregoing instrument was acknowledged before me, a notary public,
this ____ day of _____________, 1998 by _____________________________, a/the
__________________ of XXXXXX HOMES, INC., an Ohio corporation, on behalf of such
corporation.
---------------------------------------------
Notary Public
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EXHIBIT A
TERM SHEET
Property: Parkside, Mason, Ohio
(legal description attached)
Total Acres in Property: 41.0133 acres
Total Purchase Price: $965,645.62
Purchase Price Per Acre: $23,544.69
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