EXHIBIT 10(i)
VIRGINIA ASSOCIATION OF REALTORS(R)
CONTRACT FOR PURCHASE OF UNIMPROVED PROPERTY
(This is a legally binding contract, if not understood, seek competent
advice before signing.)
This CONTRACT FOR PURCHASE OF UNIMPROVED PROPERTY made as of November 23, 2004
between A.B.C. Farms, LLC, whose address is __________________________ (the
"Seller", whether one or more), and Xxxxxxxxx Holdings, Inc. whose address is
___________________ the "Purchaser", whether one or more), provides: The Listing
Company (who represents Seller) is ____________ and the Selling Company (who
does [X] or does not [ ] represent Purchaser) is Real Estate Plus.
REAL PROPERTY: Purchaser agrees to buy and Seller agrees to sell the land, and
all improvements thereon located in the County or City of Augusta, Virginia and
described as (legal description):
46-86 S.E. Verona on Xxxxx Creek
36,385 Ac per County Records
33,522 Ac per survey by Xxxxxx Xxxx 11/6/02
and more commonly known as TBD Xxxxxxx Xxxxxx Parkway (together with the items
of personal property described in paragraph 2 of the "Property").
1. PERSONAL PROPERTY INCLUDED: The following items of personal property are
included in this sale:
NONE
2. PURCHASE PRICE: The Purchase Price (the "Purchase Price") of the Property is
$725,000.00.
(X) This sale shall be in gross and the purchase price shown above shall be the
exact sales price.
( ) The purchase price shall be adjusted at settlement to an exact purchase
price of $___________ per (sq. ft.)(acre). The exact area to be determined by a
survey to be made by a licensed surveyor and paid for by _____________. The
Purchaser shall pay to the seller at settlement the purchase price in cash or by
cashier's or certified check, subject to the prorations herein and from the
following sources.
3. (a) THIRD PARTY FIRST TRUST: This sale is subject to Purchaser obtaining ( )
or assuming ( ): a conventional(X}, or other (describe) (____________________)
loan secured by a first deed of trust lien on the Property in the principal
amount of $TBD or___% of the Purchase Price bearing interest ( ) at a fixed rate
not exceeding ___% per year, or ( ) ___% per year, or ( ) at the market rate of
interest at the time of settlement, amortized over a term of ___ years, and
requiring not more than a total of ____ loan discount points, excluding a loan
origination fee, or an assumption fee not exceeding $______. (If this Contract
provides for the assumption of a loan: (i) the Parties acknowledge that the
balance set forth above is approximate and that the principal amount to be
assumed will be the outstanding principal balance on the date of settlement, and
(ii) Purchaser shall assume all obligations of Seller under such loan.)
4. DEPOSIT: (a) Purchaser has made a Deposit with Real Estate Plus (the "Escrow
Agent") of Fifty Thousand Dollars ($50,000) (the "Deposit") in cash ( ), by
check (X), bank letter of credit ( ), or by a note ( ) due and payable on
11/24/04, receipt of which is hereby acknowledged. Upon ratification of this
Contract by all parties, the Deposit shall be held in escrow by the Escrow
Agent. If the transaction does not settle, the Deposit shall be held or
disbursed in accordance with the regulations of the Real Estate
Board/Commission, or other governing law.
5. FINANCINING: (a) This Contract is contingent upon Purchaser obtaining a
written commitment or commitments, as the case may be, for the third-party
financing or loan assumption required in paragraph 3. Purchaser agrees to make
written application for such financing or assumption (including the payment of
any required application, credit, or appraisal fees) within five (5) business
days of the date of acceptance of this Contract and to diligently pursue
obtaining a commitment for such financing.
(b) If Purchaser does not obtain such written commitment and so notifies Seller
or Selling Company or Listing Company in writing before 5:00 p.m. local time on
January 24, 2005 (if no date is filled in, the date shall be the same date set
forth in paragraph 7), then if Purchaser is otherwise in compliance with the
terms of this Contract, this Contract shall terminate upon giving of such notice
and the Deposit shall be refunded to Purchaser. If Purchaser does not obtain
such a written commitment and notice thereof is not received by the deadline, or
such later deadline as the parties may agree upon in writing, then Seller shall
have the right to (i) deem the financing contingency provided herein satisfied,
or (ii) terminate this Contract by giving Purchaser written notice of such
termination within five (5) business days after the deadline.
(c) If the balance of the purchase price in excess of the Deposit is to be paid
in cash without third party or seller financing, Purchaser shall give Seller
written verification from Purchaser's bank or other sources within fifteen (15)
days after the date this Contract is fully ratified that Purchaser has or can
have the balance of the Purchase Price in cash not later than the settlement
date. If Purchaser fails to give such verification within such time, Seller may
terminate this Contract by giving Purchaser written notice thereof within ten
(10) days after the date by which verification was to be given.
(d) Unless specified in a written contingency, neither this Contract nor
Purchaser's financing is dependent or contingent on the sale or settlement or
lease of other real property.
(e) The occurrence of any of the following shall constitute a default by
Purchaser under this Contract:
(i) Purchaser fails to make timely application for any financing provided
for hereunder, or to diligently pursue obtaining such financing;
(ii) Purchaser fails to lock in the interest rate(s) provided for hereunder
and the rate(s) increase so that Purchaser no longer qualifies for the
financing;
(iii) Purchaser fails to comply with the lender's reasonable requirements
in a timely manner;
(iv) Purchaser fails to notify the lender, Seller or Listing Company
promptly of any material adverse change in Purchaser's financial
situation that affects Purchaser's ability to obtain the financing;
(v) Purchaser does not have the down payment, closing costs or fees, or
other funds required to settle as provided in this Contract;
(vi) Purchaser does or fails to do any act following ratification of this
Contract that prevents Purchaser from obtaining the financing; or
(vii) Purchaser makes any deliberate misrepresentation, material omission,
or other inaccurate submission or statement that results in
Purchaser's inability to secure the financing.
6. LOAN FEES: Except as otherwise agreed upon in this Contract, Purchaser shall
pay all points, loan origination fees, charges and other costs imposed by a
lender or otherwise incurred in connection with obtaining the loan or loans. The
amount of any contributions Seller agrees to make under this contract toward
Purchaser's loan fees shall include miscellaneous and tax service fees charged
by a lender for financing described in this contract and which by regulation or
law Purchaser is not permitted to pay.
7. SETTLEMENT; POSSESSION: Settlement shall be made at Local Attorney's Office
on or about March 30, 2005. Possession of the Property shall be given at
settlement, unless otherwise agreed in writing by the Parties.
8. EXPENSE PRORATIONS; ROLLBACK TAXES: (a) Seller agrees to pay the expense of
preparing the deed and the recordation tax applicable to grantors. Except as
otherwise agreed herein, all other expenses incurred by Purchaser in connection
with the purchase, including without limitation title examination, insurance
premiums, survey costs, recording costs and the fees of Purchaser's attorney,
shall be borne by Purchaser. All taxes, assessments, interest, rent escrow
deposits, and other ownership fees, if any, shall be prorated as of the date of
settlement.
(b) Rollback taxes shall be paid as follows:
To be paid by Purchaser up to an amount of $12,000.00. Seller to pay any
rollback taxes in excess of $12,000.00
9. BROKERAGEE FEE; SETTLEMENT STATEMENTS: Seller and Purchaser authorize and
direct the settlement agent to disburse to Listing Company and/or Selling
Company from the settlement proceeds their respective portions of the brokerage
fee payable as a result of this sale and closing under the Contract. Each of
Listing Company and/or Selling Company shall deliver to the settlement agent,
prior to settlement, a signed written statement setting forth the fee to which
such company is entitled and stating how such fee and any additional sales
incentives are to be disbursed. Seller and Purchaser authorize and direct the
settlement agent to provide to each of Seller. Purchaser, Listing Company and
Selling Company a copy of the unified settlement statement for the transaction.
10. STUDY PERIOD: Purchaser shall have 120 days from the date this Contract is
executed by both Purchaser and Seller, to determine, through engineering and
feasibility studies, whether Purchaser's plan of development of the Property is
practical. Purchaser shall contract for such studies within ten days from the
date of execution, and deliver to Seller and Listing Company copies of the
letter(s) ordering the studies, said letter(s) stipulating that true copies of
all studies are to be sent to Seller or Listing Company, simultaneously with
delivery to Purchaser. If within such study period Purchaser notifies Seller or
Listing Company, in writing, that Purchaser's plan, in Purchaser's sole
judgment, is not practical, Purchaser may terminate this Contract and receive a
refund of the Deposit and the parties shall have no further liability or
obligations hereunder, except as set forth herein. Time shall be of the essence
of this provision.
11. SOIL STUDY: This Contract is contingent for _______ days from date of
execution of this Contract by both Purchaser and Seller to allow _______________
at its expense to obtain a soil study and/or percolation test, which shall
lawfully allow for the erection and use of_____________________________________
on the Property. Such study or test shall be pursued diligently and in good
faith and if such study or test reveals that Purchaser's intended use of the
Property is not permissible or practicable, Purchaser shall have the right, upon
written notice to Seller, to terminate this Contract, in which event the Deposit
shall be returned to Purchaser and the patties shall have no further liability
or obligations hereunder, except as set forth herein.
12. ACCESS: Purchaser and Purchaser's agents and engineers shall have the right
to enter onto the Property at all reasonable times prior to settlement for
purposes of engineering, surveying, title or such other work as is permitted
under this Contract, so long as such studies do not result in a permanent change
in the character or topography of the Property. Purchaser shall not interfere
with Seller's use of the Property, and Purchaser, at Purchaser's expense, shall
promptly restore the Property to its prior condition upon completion of
Purchaser's studies or work. Purchaser keep the Property free and clear from all
liens resulting from its work, studies, investigations or other activities
performed pursuant to this Contract and shall indemnify and hold Seller harmless
against any loss or liability to person or property resulting from Purchaser's
presence or activities on the Property. This obligation shall survive settlement
and transfer of title and possession to the Property.
13. RISK OF LOSS: All risk of loss or damage to the Property by fire, windstorm,
casualty, or other cause is assumed by Seller until settlement. In the event of
substantial loss or damage to the Property before settlement, Purchaser shall
have the option of either (i) terminating this Contract and recovering the
Deposit, or (ii) affirming this Contract, in which event Seller shall assign to
Purchaser all of Seller's rights under any policy or policies of insurance
applicable to the Property.
14. TITLE: At settlement Seller shall convey the Property to Purchaser by
general warranty deed containing English covenants of title (except that
conveyance from a personal representative of an estate or from a trustee or
institutional lender shall be by special warranty deed), free of all
encumbrances tenancies, and liens (for taxes and otherwise), but subject to such
restrictive covenants and utility easements of record which do not materially
and adversely affect the use of the Property for Purchaser's intended purposes
or render the title unmarketable. If the Property does not abut a public road,
title to the Property must include a recorded easement providing adequate access
thereto. In the event this sale is subject to a financing contingency under
paragraph 3(a or 3(b), the access to a public road must be acceptable to each
lender. If the examination reveals a title defect of a character that can he
remedied by legal action or otherwise within a reasonable time, then Seller, at
Seller's expense, shall promptly take such action as is necessary to cure such
defect. If the defect is not cured within 60 days after Seller receives notice
of the defect, then Purchaser shall have the right to (i) terminate this
Contract, in which event the Deposit shall be returned to Purchaser, and
Purchaser and Seller shall have no further obligations hereunder, or (ii) waive
the defect and proceed to settlement with no adjustment to the Purchase Price.
If Seller has agreed to cure such defect, the parties agree that the settlement
date prescribed in paragraph 7 shall be extended as necessary to enable Seller
to cure such title defect, but not for more than 60 days unless agreed by the
parties.
15. PROPERTY OWNERS' ASSOCIATION DISCLOSURE: Seller represents that the Property
is [ ] or is not [X] located within a development which is subject to the
Virginia Property Owners' Association Act. Section 55-508 et seq. of the Code of
Virginia (the "Act"). If the Property is within such a development, the Act
requires Seller to obtain from the property owners' association (the
"Association") an association disclosure packet and provide it to Purchaser. The
information in the disclosure packet shall be current as of a date specified on
the disclosure packet. Purchaser may cancel this Contract (i) within three (3)
days after the date of the Contract, if Purchaser received the disclosure packet
(or notice that the packet will not be available) on or before the date
Purchaser executed this Contract: (ii) three days after receiving the
association disclosure packet or being notified that the association disclosure
packet will not be available, if the packet or such notice is hand delivered, or
(iii) within six (6) days after the postmark date if the packet or notice that
the packet will not be available is sent to Purchaser by United States mail.
Purchaser may cancel this Contract at any time prior to settlement if Purchaser
has not received the association disclosure packet or notice that the packet
will not be available. Written notice of cancellation shall be hand delivered or
sent by United States mail, return receipt requested, to Seller. Purchaser's
right to receive the association disclosure packet and the right to cancel this
Contract are waived conclusively if not exercised before settlement. Purchaser
shall have the right to request from the Association an update of the disclosure
packet specifying any material changes to the statements previously furnished.
Purchaser may be required to pay a fee for such update.
16. MECHANIC'S LIEN NOTICE: (a) Virginia law (ss. 43-1 et seq.) permits persons
who have performed labor or furnished materials for the construction, removal,
repair or improvement of any building or structure to file a lien against the
property. This lien may be tiled at any time after the work is commenced or the
material is furnished, but not later than the earlier of (i) 90 days from the
last day of the month in which the lien or last performed work or furnished
material or (ii) 90 days from the time the construction, removal, repair or
improvement is terminated. AN EFFECTIVE LIEN FOR WORK PERFORMED PRIOR TO THE
DATE OF SETTLEMENT MAY BE FILED AFTER SETTLEMENT. LEGAL COUNSEL SHOULD BE
CONSULTED.
(b) Seller shall deliver to Purchaser at settlement an affidavit, on a form
acceptable to Purchaser's lender, if applicable. signed by Seller that no labor
or materials have been furnished to the Property within the statutory period for
the filing of mechanics' or materialmen's liens against the Property. If labor
or materials have been furnished during the statutory period. Seller shall
deliver to Purchaser an affidavit signed by Seller and the person(s) furnishing
the labor or materials that the costs thereof have been paid.
17. NON-BINDING MEDIATION. In an effort to avoid the expense and delay of
litigation. the parties agree to submit any disputes or claims arising out of
this Contract, including those involving the Listing Company or the Selling
Company, to mediation prior to instituting litigation. Such mediation will be
NON-BINDING, that is, no party will be obligated to enter into any settlement
arising out of mediation unless that settlement is satisfactory to that party.
Any settlement the parties enter into will be binding, but if the parties are
not able to reach agreement on a settlement. they may resort to arbitration or
litigation as if the mediation had never taken place. The mediation will be
provided by the local REALTOR(R) Association, if it provides such services. or
by another mutually agreeable mediator or mediation service in the area. This
agreement to mediate does not apply to foreclosure, unlawful detainer
(eviction), mechanics lien, probate, or license law actions. Judicial actions to
provide provisional remedies (such as injunctions and filings to enable public
notice of pending disputes) are not violations of the obligation to mediate and
do not waive the right to mediate.
18. NOTICE TO PURCHASER(S): Purchaser(s) should exercise whatever due diligence
Purchaser(s) deems necessary with respect to information on any sexual offenders
registered under Chapter 23 section 19.2-387 et seq. of Title 19. Such
information may be obtained by contacting your local police department or the
Department of State Police, Central Records Exchange at (000) 000-0000 or
xxx.xxxxx.xx.xx/xxx/xxx.xxxx
19. DEFAULT: If Seller or Purchaser defaults under this Contract. the defaulting
party, in addition to all other remedies available at law or in equity. shall be
liable for the brokerage fee referenced in paragraph 9 hereof as if this
Contract had been performed and for any damages and all expenses incurred by the
non-defaulting party, Listing Company and Selling Company in connection with
this transaction and the enforcement of this Contract, including, without
limitation, attorneys' fees and costs, if any. Payment of a real estate broker's
fee as the result of a transaction relating to the Property which occurs
subsequent to a default under this Contract shall not relieve the defaulting
party of liability for the fee of Listing Company in this transaction and for
any damages and expenses incurred by the non-defaulting party, Listing Company
and Selling Company in connection with this transaction. In any action brought
by Seller, Purchaser, Listing Company or Selling Company under this Contract or
growing out of the transactions contemplated herein, the prevailing party in
such action shall be entitled to receive from the non-prevailing party or
parties, jointly and severally, in addition to any other damages or awards,
reasonable attorneys' fees and costs expended or incurred in prosecuting or
defending such action.
20. OTHER ITEMS: (Use this space for additional terms not covered in this
Contract.)
1) This Contract is contingent upon Purchaser having subject property rezoned to
GB (General Business) by Augusta County.
2) Purchaser reserves 120 days to accomplish rezoning.
3) Sellers to support zoning changes to Augusta County.
4) Contract is contingent on Virginia Power/Shanandoah Electric. Coop being able
to provide 3 phase current to property.
5) Purchaser to close on subject property within 30 days of zoning approval by
Augusta County.
21. BROKERS; LICENSEE STATUS. (a) Listing Company and Selling Company may from
time to time engage in general insurance, title insurance, mortgage loan, real
estate settlement, home warranty and other real estate-related businesses and
services, from which they may receive compensation during the course of this
transaction, in addition to real estate brokerage fees. The parties acknowledge
that Listing Company and Selling Company are retained for their real estate
brokerage expertise, and neither has been retained as an attorney, tax advisor,
appraiser, title advisor, home inspector, engineer, surveyor, or other
professional service provider.
(b) Disclosure of Real Estate Board Commission licensee status, if any is
required in this transaction: __________________________________________________
22. MISCELLANEOUS: This Contract may be signed in one or more counterparts,
each of which shall be deemed to be an original and all of which together
shall constitute one and the same document. Documents delivered by
facsimile machine shall be considered as originals. Unless otherwise
specified herein. "days" mean calendar days. For the purpose of computing
time periods, the first day shall be the day following the date this
Contract is fully ratified. This Contract represents the entire agreement
between Seller and Purchaser and may not be modified OR CHANGED EXCEPT BY
written instrument EXECUTED BY THE parties. This Contract shall be
construed, interpreted and applied according to the laws of the state in
which the Property is located and shall be binding upon and shall inure to
the benefit of the heirs, personal representatives, successors, and assigns
of the parties. To the extent any handwritten or typewritten terms herein
conflict with or are inconsistent with the printed terms hereof, the
handwritten or typewritten terms shall control. Whenever the context shall
so require, the masculine shall include the feminine and the singular shall
include the plural. Unless otherwise provided herein, the representations
and warranties made by Seller herein and all other provisions of this
Contract shall be deemed merged into the deed delivered at settlement and
shall not survive settlement.
23. ACCEPTANCE: This Contract when signed by Purchaser shall be decreed an offer
to enter into a bilateral contract. If not accepted by Seller by 5:00 (time),
December 6, 2004, it shall become null and void.
WITNESS the following duly authorized signature (SEPARATE ALL COPIES BEFORE
SIGNING BELOW)
11/29/04, /s/ signature 11/23/04 /s/ Xxxx X. Xxxx
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DATE SELLER DATE PURCHASER
for ABC Farms, LLC for Xxxxxxxxx Holdings, Inc.
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SOCIAL SECURITY NUMBER SOCIAL SECURITY NUMBER
----------------------------------- -----------------------------------
DATE SELLER DATE PURCHASER
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SOCIAL SECURITY NUMBER SOCIAL SECURITY NUMBER
For information purposes only:
Listing Company's Name and Address: Selling Company's Name and Address:
IT IS AGREED THAT SELLER WILL PAY A FLAT FEE COMMISSION OF $40,000.
VIRGINIA ASSOCIATION OF REALTORS(R)
AMENDMENT OF CONTRACT OF PURCHASE
This AMENDMENT OF CONTRACT OF PURCHASE ____ as of April 19, 2005, between ABC
Farms, LLC (the "Seller") and Xxxxxxxxx Holdings, Inc. (the "Purchaser")
provides:
(a) By Contract of Purchase ____ Nov 23, 2005 the ("_____") Purchaser agreed to
purchase and Seller agreed to sell the Purchaser ______________________ and all
______________by the County or City at Augusta, Virginia and _______ to that
Contract at ______________
(b) ____________________________________________________________________________
Purchaser will close on property within 30 days providing:
1) Seller will hold 1st deed of trust on property for 1 year from date of
closing at 8% interest
2) Purchaser will pay $225,000 down at closing.
3) Purchaser will _________ the re-zoning requirement currently in effect in
contract.
4) Sellers and Sellers Agent will support and assist re-zoning by Purchaser
after closing.
5) Paragraph #8 in contract (Roll Back Taxes) remains in effect after _________,
1 year
6) Owner financing to be in the amount of $500,000.00 with no points. Interest
to be paid semi-annually from date of closing.
7) Purchaser will not make improvements to property before seller's first deed
of trust is satisfied.
Except as hereby expressly _________, the Contract shall remain in full force
and effect on originally transacted.
WITNESS the following is duly authorized signature and _________.
4/25/05, /s/ signature 4/20/05 /s/ J. Sens
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for ABC Farms, LLC for Xxxxxxxxx Holdings, Inc.
Broker executes this Amendment of Contract of Purchase (if appropriate) is
acknowledge a change. If any, in the arrangement set forth in the Contract or a
change, if any, in the terms of the ___________ set forth in the Contract.
4/19/05, /s/ signature
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Broker
