SECOND AMENDMENT TO PURCHASE AGREEMENT AND TO DEVELOPMENT AGREEMENT
SECOND
AMENDMENT TO PURCHASE AGREEMENT
AND
TO DEVELOPMENT AGREEMENT
This
SECOND AMENDMENT TO PURCHASE AGREEMENT AND TO DEVELOPMENT AGREEMENT
(the “Second Amendment”) is made this 31st day of December, 2007, by
and between St. Xxxxxxx Community, LLC, a Delaware limited liability company
(“Seller/Developer”), and U.S. Home Corporation, a Delaware corporation
(“Purchaser/Builder”).
WITNESSETH:
WHEREAS,
Seller/Developer and Purchaser/Builder are parties to a certain Purchase
Agreement dated March 4, 2004, as amended by a certain First Amendment to
Purchase Agreement dated June 20, 2006 (collectively, the “Contract”), for the
purchase and sale of certain property located within the Fairway Village section
of the St. Xxxxxxx Planned Unit Development project in Xxxxxxx County, Maryland,
as more particularly described in the Contract (the “Property”);
and
WHEREAS, Seller/Developer
and Purchaser/Builder are also parties to a certain Development Agreement dated
March 4, 2004, as amended by a certain First Amendment to Development Agreement
dated September 20, 2004 (collectively, the “Development Agreement”), whereby
Seller/Developer and Purchaser/Builder have made certain agreements with respect
to the development of infrastructure for the Property in connection with the
purchase of residential Lots in the Property by the Purchaser/Builder under
the
Contract; and
WHEREAS,
Seller/Developer and Purchaser/Builder desire to amend and modify certain terms
of the Contract and the Development Agreement as more particularly set forth
below in this Second Amendment.
NOW,
THEREFORE, in
consideration for the mutual promises and covenants of the parties, and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Seller/Developer and Purchaser/Builder hereby agree as
follows:
1. Incorporation
of Recitals. Each of the recitals set forth above are
hereby incorporated by reference as if set forth fully at this point in this
Second Amendment.
2. Defined
Terms. Capitalized terms used and not defined in this
Second Amendment shall have the meanings ascribed to them in the Contract and
the Development Agreement.
3. December
2007 Lot Takedown and Initial 2008 Lot Takedown Prior to June 1,
2008. On or before December 31, 2007, time being of the
essence, Purchaser/Builder shall purchase and settle under the Contract and
Development Agreement, a number of Lots in the Property, being approximately
51
Lots, with an aggregate base purchase price under the Contract of Three Million
Seven Hundred Seventy-Eight Thousand Dollars ($3,778,000.00) (the “December 2007
Takedown”). On or before June 1, 2008, time being of the essence,
Purchaser/Builder shall purchase and settle under the Contract and Development
Agreement, a number of Lots in the Property, being approximately 49 Lots (which,
together with the December 2007 Takedown, shall not exceed 100 Lots), with
an
aggregate base purchase price under the Contract of Three Million Seven Hundred
Twenty-Two Thousand Dollars ($3,722,000.00) (the “Initial 2008
Takedown”). For purposes of this Section, the aggregate base purchase
price of the December 2007 Takedown and the Initial 2008 Takedown shall be
determined by the minimum Lot prices set forth in Section 4 below in this Second
Amendment. Seller/Developer represents that there is, as of the date
of this Second Amendment, a sufficient number of Lots finished in accordance
with the Development Agreement so as to be ready for closing in accordance
with
the December 2007 Takedown and the Initial 2008 Takedown to allow the
Purchaser/Builder to acquire Lots with an aggregate base purchase price of
Seven
Million Five Hundred Thousand Dollars ($7,500,000.00). The parties
acknowledge that, prior to the execution of this Second Amendment,
Seller/Developer has provided Purchaser/Builder with information regarding
available Lots in the Property for settlement in accordance with the December
2007 Takedown and the Initial 2008 Takedown. The December 2007
Takedown and the Initial 2008 Takedown shall otherwise be on all terms and
conditions set forth in the Contract and the Development
Agreement. Upon settlement of the December 2007 Takedown on or before
December 31, 2007, Seller/Developer acknowledges that Purchaser/Builder will
have satisfied the takedown requirements of the Contract for calendar year
2007. The Initial 2008 Takedown may be in one or more settlements,
provided that all such settlements are completed prior to June 1, 2008, time
being of the essence.
4. Temporary
Purchase Price Modification. The final purchase price of Lots
purchased by the Purchaser/Builder in the December 2007 Takedown and the Initial
2008 Takedown shall be 22.5% of the “selling price” of homes constructed on such
Lots by the Purchaser/Builder, rather than 30%, provided that this temporary
purchase price reduction shall not apply to Lots purchased by the
Purchaser/Builder under the Contract and Development Agreement prior to December
1, 2007. The minimum price paid by the Purchaser/Builder under the
Contract for Lots shall be Seventy-Eight Thousand Dollars ($78,000.00) for
single family building Lots and Sixty-Eight Thousand Dollars ($68,000.00) for
townhome building Lots. The foregoing provisions of this
Section 4 shall apply only to Lots purchased by the Purchaser/Builder in the
December 2007 Takedown and the Initial 2008 Takedown. From and after
the December 2007 Takedown and the Initial 2008 Takedown, the final purchase
price for Lots purchased in the Property by the Purchaser/Builder shall revert
to that shown and set forth in the Contract and Development
Agreement. The timing of calculation and basis or formula for
calculation of the final purchase price of Lots is not modified by this
Amendment, and shall be as set forth in the Contract and the Development
Agreement, whether for the Lots purchased in the December 2007 Takedown or
the
Initial 2008 Takedown and subject to this temporary purchase price reduction,
or
for Lots purchased under the pricing terms of the Contract and Development
Agreement and not a part of the December 2007 Takedown or the Initial 2008
Takedown. The base purchase price, minimum purchase price and
percentage used to determine total purchase price for Lots purchased prior
to
December 1, 2007, shall be as set forth on Exhibit A, attached hereto and
made a part hereof, and shall be in no event less than the minimum prices shown
on Exhibit A.
5. Effect
of Amendment. Except as expressly modified by the terms
and provisions of this Second Amendment, the Contract and the Development
Agreement shall each remain in full force and effect in accordance with their
terms, and are hereby ratified and confirmed by the parties as binding and
enforceable for all purposes. The parties acknowledge that, as of the
date of this Amendment, neither Seller/Developer nor Purchaser/Builder is in
default under the Contract or the Development Agreement.
6.
Counterparts. This Second Amendment may be
executed in any number of counterparts, each of which shall be deemed an
original, and all of which, taken together, shall constitute one and the same
instrument.
IN
WITNESS WHEREOF, the undersigned duly authorized representatives of the
Seller/Developer and Purchaser/Builder have hereunto placed their hands and
seals as of the date and year first above written.
SELLER/DEVELOPER:
St.
Xxxxxxx Community, LLC,
a
Delaware limited liability company
By:
/s/ Xxxxx X.
Xxxxx (SEAL)
Xxxxx X. Xxxxx,
Chairman
of the Management Committee
PURCHASER/BUILDER:
U.S.
Home
Corporation, a Delaware corporation
By: /s/ Xxxxxx Xxxxxx (SEAL)
Name:
Xxxxxx Xxxxxx
Title:
Division
President
Exhibit
A
Summary
of Lennar Lot Inventory
St.
Xxxxxxx Fairway Village
As
of
November 30, 2007
Lot
Number
|
Date
Settled
|
Initial
Takedown
|
Confirmed
Minimum
|
True
Up
Method
|
|
Single
Family
|
|||||
34
F
|
10/11/06
|
130,000
|
125,000
|
30%
|
|
49
F
|
11/10/06
|
100,000
|
100,000
|
30%
|
|
4
M
|
12/12/06
|
100,000
|
100,000
|
30%
|
|
23
M
|
06/11/07
|
112,500
|
112,500
|
30%
|
|
Townhomes
|
|||||
51
I
|
07/11/07
|
85,000
|
65,000
|
30%
|
|
1
I
|
08/14/07
|
85,000
|
65,000
|
20.5%
|
|
2
I
|
08/14/07
|
85,000
|
65,000
|
30%
|
|
3
I
|
08/14/07
|
85,000
|
65,000
|
20.5%
|