Exhibit 10.4
CONTRACT OF SALE
THIS CONTRACT OF SALE (this "Contract") is hereby entered into as of this
30th day of December, 2004 ("Effective Date"), by and between XXXXXXX XXXXXX
COMPANIES, INC., a Maryland corporation (the "Buyer"); and XXXX XXXXXXXX XXXXXX
MUTUAL HOMES ASSOCIATION, ARLINGTON, VA, a Virginia nonstock corporation (the
"Association"), and those individual members of the Association who are
Participating Members (as defined in Paragraph 31 below), if any, who, prior to
the earlier of June 30, 2005 or Final Approval (as defined in Paragraph 3
below), irrevocably agree to be bound by the terms of this Contract. The
Association and the Participating Members, if any, are hereinafter collectively
referred to as the "Seller". Until any members of the Association elect to be
Participating Members, then the term "Seller" shall be deemed to refer herein
solely to the Association.
RECITALS:
R-1. The Association is the owner of certain real property containing
approximately 8.89 acres (more or less) of land located in Arlington County,
Virginia (the "County"), and more particularly described on Exhibit "A" attached
hereto and incorporated herein by this reference (said real property, together
with all improvements and fixtures thereon and all rights, privileges,
easements, benefits and agreements appurtenant thereto, including any right,
title or interest in any street frontage or previously dedicated street area, is
hereinafter referred to as the "Property").
R-2. The Association is organized for the exclusive purpose of owning,
operating and managing the Property for the benefit of its members as a
"cooperative housing corporation" in compliance with the provisions of Section
216 of the Internal Revenue Code of 1986, as amended (hereinafter, the "Code").
R-3. Pursuant to the Association's organizational documents and the
members' Mutual Ownership Contract with the Association, as they exist as of the
Effective Date, each member of the Association currently has a right to the
perpetual use of a specific dwelling unit located on the Property (the "Dwelling
Unit").
R-4. Certain members of the Association occupy their individual Dwelling
Unit as their respective principal residence within the meaning of Section 121
of the Code. Such members are hereinafter collectively referred to as the "Owner
Occupant Members".
R-5. The Association intends to adopt a plan of partial liquidation (a
"Partial Liquidation Plan") in compliance with Section 216(e) of the Code
pursuant to which legal title to the Property will be conveyed from the
Association to certain Owner Occupant Members (the "Participating Members" as
hereinafter defined) with each such Participating Member receiving an undivided
interest in the Property equivalent to his or her pro rata interest as a member
of the Association, and the Association retaining the remaining undivided
interests such that the Association and all Participating Members own legal
title to One Hundred per cent (100%) of the Property, collectively as
tenants-in-common with each such Participating Member.
R-6. Until closing hereunder, each Owner Occupant Member who becomes legal
owner of an undivided tenant-in-common interest in the Property shall thereafter
have the right to the perpetual use of his or her Dwelling Unit, subject to the
terms of Paragraph 6 below regarding the right of each member of the Association
to enter into a Lease Agreement (as hereinafter defined in Paragraph 6 below).
R-7. The Association has advised Buyer that the sale of Property to Buyer
will be a taxable event to the Association except to the extent an undivided
interest in the Property is first conveyed to the Owner Occupant Members in
exchange for their membership interests in the Association in compliance with
the requirements of Section 216(e) of the Code.
R-8. In accordance herewith, the Association desires to sell the Property
and Buyer desires to purchase the Property in accordance with the terms and
conditions hereinafter set forth.
AGREEMENT:
NOW, THEREFORE, in consideration of the mutual rights and obligations
hereunder and the Deposit (as hereinafter defined), Buyer hereby agrees to buy
and Seller hereby agrees to sell the Property under the terms and conditions
hereinafter set forth.
1. Seller. For all purposes hereunder, the Association shall act on behalf
of Seller and all Participating Members which may comprise Seller, if any. By
becoming a Participating Member pursuant to this Contract, each such
Participating Member irrevocably appoints the Association as its
attorney-in-fact, coupled with any interest, to act on behalf of such
Participating Member for all purposes under this Contract and ratifies in their
entirety all previous actions of the Association with regard to this Contract.
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2. Deposit. Within five (5) days after the Effective Date, Buyer shall
deliver by wire transfer in immediately available U.S. dollars, to Excel Title
Company (the "Escrow Agent"), an initial deposit (the "Initial Deposit") in the
amount of Five Hundred Thousand and No/100 Dollars ($500,000.00). Provided that
this Contract is not earlier terminated in accordance with the terms contained
herein, within five (5) days after the expiration of the Study Period (as
defined in Paragraph 5 below), Buyer shall wire transfer in immediately
available U.S. dollars, to Escrow Agent an additional deposit ("Additional
Deposit") in the amount of Five Hundred Thousand and No/100 Dollars
($500,000.00). The Initial Deposit and the Additional Deposit (or only the
Initial Deposit until the Additional Deposit is delivered by Buyer to Escrow
Agent) shall be known collectively hereunder as the "Deposit". Escrow Agent
shall hold the Deposit in an interest-bearing account and all interest accruing
on the Deposit while being held by Escrow Agent shall be deemed a part of the
Deposit for all purposes under this Contract. The Escrow Agent shall promptly
provide the Association proof of receipt of the Deposit.
Provided that this Contract is not earlier terminated in accordance with
the terms contained herein, within five (5) days after Buyer has received the
Final Approval (as defined in Paragraph 4 below) pursuant to Paragraph 4 below,
Escrow Agent shall release to Seller by wire transfer, as instructed by the
Association in writing to Escrow Agent with a copy to Buyer, the Deposit and
Buyer shall pay to Seller within said five (5) days an additional amount equal
to Two Million and No/100 Dollars ($2,000,000.00) (the "Purchase Price Advance")
in U.S. Dollars which payment shall to be made by wire transfer as instructed by
the Association in writing, at which time the Seller shall execute and deliver
to Buyer in recordable form a first lien deed of trust covering the Property
(the "Deed of Trust") which secures the Seller's obligation to return to Buyer
the Deposit and/or the Purchase Price Advance in accordance with the terms and
conditions of this Contract. The Deed of Trust shall be in the form attached
hereto as Exhibit "B" and incorporated herein by reference and may be recorded
by Buyer at Buyer's sole discretion. In the event that Buyer has not obtained
Final Approval, not less than thirty (30) days prior to the "Outside Closing
Date", as defined in paragraph 6 below, Buyer shall either (a) release the
Deposit and pay the Purchase Price Advance to Seller, in exchange for Seller
delivering the Deed of Trust, all pursuant to this paragraph, or (b) if it has
proceeded with commercially reasonable diligence, terminate this Contract, in
which event the Deposit shall be
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returned to Buyer and the parties shall have no further rights or obligations
hereunder, except for the Buyer's Study Period Obligations (as defined below).
After release of the Deposit to the Seller by Escrow Agent and payment of
the Purchase Price Advance to Seller by Buyer, Seller shall be entitled to hold,
invest, disburse and otherwise utilize the Deposit and Purchase Price Advance in
any manner which Seller elects, in its sole discretion, and any interest earned
by Seller on the Deposit and Purchase Price Advance shall be solely for the
benefit of Seller. In the event any provision of this Contract entitles Buyer to
obtain the return of the Deposit and/or the Purchase Price Advance, then Seller
shall return the Deposit and/or Purchase Price Advance to Buyer within thirty
(30) days after Seller's obligation to return such Deposit and/or Purchase Price
Advance arises. In the event that Seller fails to return the Deposit and/or
Purchase Price Advance to Buyer within such thirty (30) day period, then
interest shall thereafter accrue on the amount owed at the rate of ten percent
(10%) per annum simple interest, prorated on a per diem basis, for the time
period commencing on the first (1st) day after the expiration of such thirty
(30) day period and ending on the date that the Deposit and/or Purchase Price
Advance is received by Buyer. In addition, if the Deposit and/or Purchase Price
Advance is not returned to Buyer within such thirty (30) day period, then Buyer
shall be entitled to assert all claims and causes of action which may be
available to Buyer at law or in equity in order to obtain the return of the
Deposit and/or Purchase Price Advance, including (without limitation) Buyer's
right to exercise its remedies under the Deed of Trust. Buyer shall execute and
cause to be recorded among the County land records a release of the Deed of
Trust within five (5) days of either (i) the return of the entire Deposit and/or
Purchase Price Advance by Seller to Buyer pursuant to the terms and conditions
of this Contract, or (ii) any termination of this Contract for any reason which
would entitle Seller to retain the Deposit and/or Purchase Price Advance
hereunder.
3. Purchase Price; Payment. The purchase price for the Property (the
"Purchase Price") shall be Thirty-Seven Million and No/100 Dollars
($37,000,000.00). The Purchase Price shall be payable by Buyer to Seller in cash
by wire transfer of funds at closing under this Contract. The Association shall
arrange at its sole cost and liability with the party conducting closing to have
the Purchase Price allocated among the Association and the Participating Members
as they shall have agreed in the Partial Liquidation Plan; provided, however,
that the Partial Liquidation Plan is delivered to the party conducting closing
no less than thirty (30) days
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prior to closing and further provided that Buyer shall have no obligation or
liability with respect to the distribution of the Purchase Price at closing
pursuant to the Partial Liquidation Plan. The Deposit and the Purchase Price
Advance shall be applied to the Purchase Price at closing.
Notwithstanding the foregoing, the parties hereby agree that a portion of
the Purchase Price equal to Two Hundred and Fifty Thousand and No/100 Dollars
($250,000.00) ("Escrowed Funds") shall be placed in escrow with Escrow Agent
upon closing hereunder for twelve (12) months in order to reimburse Buyer for
any costs and expenses incurred by Buyer to defend any claims of any kind made
against Buyer with regard to Seller's transfer of its interest in the Property
pursuant to this Contract and Buyer's resulting title to the Property. All
reasonable costs and expenses incurred by Buyer as result of Buyer defending any
such claims (including, without limitation, attorney's fees, court and witness
costs, consulting fees, development delays, and engineering costs) shall be the
sole responsibility of Seller and shall be paid out of such Escrowed Funds until
exhausted and thereafter shall be Buyer's sole responsibility. Any amounts
remaining of such Escrowed Funds upon the expiration of twelve (12) months after
closing hereunder shall be returned to Seller by Escrow Agent. At closing,
Seller, Buyer and Escrow Agent shall enter into an escrow agreement reasonably
acceptable to the parties covering the Escrowed Funds pursuant to this
paragraph.
4. Subdivision. If Buyer does not terminate this Contract during the Study
Period, Buyer shall, at its sole cost and expense, be responsible for the
preparation of a 'by-right' site plan for the Property (the "Plan") and a record
subdivision plat corresponding with the 'by-right' site plan for the Property
(the "Subdivision Plat") for submission to the applicable governmental
authorities of the County for the development of a by-right residential
subdivision consistent with the existing zoning for the Property. Buyer, at its
sole cost and expense, shall diligently pursue and use commercially reasonable
efforts to process the Plan and the Subdivision Plat in order to obtain all
necessary final governmental approvals for the Plan, including by obtaining all
necessary off-site easements. Seller agrees, at no cost or expense to Seller, to
cooperate with Buyer to the extent reasonably necessary for Buyer to submit,
process and obtain all necessary final governmental approvals for the Plan and
the Subdivision Plat, including by executing such applications and other
documents (including off-site easements) as may be reasonably requested by Buyer
or by the appropriate County or other governmental authorities. Notwithstanding
the foregoing, nothing will be filed by Buyer with regard to the Plan or
Subdivision Plat which will
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deny the Association the right to continue as a cooperative housing association
in the event that closing does not take place. Buyer and Seller agree that Buyer
obtaining all necessary final County and other governmental approvals of the
Plan and Subdivision Plat ("Final Approval") is a condition precedent to Buyer's
obligation to proceed to closing hereunder, except to the extent that Buyer has
not been diligently pursuing and using commercially reasonable efforts to obtain
such Final Approval. For purposes of this Contract, Buyer shall be deemed to
have obtained Final Approval of the Plan and Subdivision Plat when the Plan and
Subdivision Plat have been approved by all necessary and appropriate
governmental authorities of the County, and all applicable appeal periods have
expired without an appeal having been filed or (if an appeal is filed) the entry
of a final decree by a court of competent jurisdiction upholding the final
approval and the expiration of all applicable appeal periods without an appeal
of such decree having been filed.
In the event that Buyer has been unable to obtain Final Approval of the
Plan and Subdivision Plat by the Outside Closing Date, then Buyer, at its
option, may either (a) waive such condition and proceed to closing hereunder on
the Outside Closing Date, or (b) if Buyer has been proceeding with commercially
reasonable due diligence, terminate this Contract by delivery of written notice
to the Association on or before the Outside Closing Date, in which event the
parties hereto shall have no further rights or obligations under this Contract,
except that Buyer shall not be released from any Buyer's Study Period
Obligations, and the Deposit shall be returned to Buyer.
5. Entry onto Property; Study Period. Commencing on the Effective Date and
for the entire term of this Contract and subject to the terms of this Section 5,
Buyer, at its sole cost and expense, shall have complete access to the Property
(but not to the building located on the Property or the Dwelling Units, unless
permitted in writing by the Association, which permission shall not be
unreasonably withheld, conditioned or delayed), during normal business hours for
the purpose of conducting such surveys, soil borings, soil analyses, engineering
tests and studies, environmental tests and studies, economic and/or topographic
tests, studies, and/or investigations with respect to the Property (collectively
referred to as "Studies") as Buyer may deem necessary in order to determine
whether the Property is suitable for Buyer's intended use thereof; provided,
however, that Buyer (i) repairs any damage to the Property caused in connection
with or as a result of such Studies at Buyer's sole cost and expense, (ii)
restores the Property to the same
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condition existing immediately prior to Buyer's Studies to the extent that the
change in the Property condition resulted from Buyer's (or its consultants')
entry and testing on the Property, at Buyer's sole cost and expense, and (iii)
shall use commercially reasonable efforts not to disturb the Association or the
individual residents of the buildings in their use and occupancy of the
Property. All of the terms contained in this Paragraph 5 (other than those
obligations of Seller) shall be known herein as "Buyer's Study Period
Obligations").
Buyer hereby agrees to indemnify, defend and hold the Association harmless
from any and all claims, personal injuries, damages, losses, costs, expenses
(including, without limitation, court costs and reasonable attorneys' fees) and
liabilities that may arise due to Buyer's or its consultants' entry and testing
on the Property pursuant to this Paragraph 5. No consent by the Association (or
any of its individual members) to any such activity shall be deemed to
constitute a waiver or assumption of liability or risk by them. Buyer covenants,
represents and warrants that it shall obtain and deliver proof thereof to the
Association, and maintain in effect, prior to its accessing the Property
pursuant to this Paragraph 5 and until closing hereunder or earlier termination
of this Contract, commercial general liability insurance (including contractual
liability coverage) insuring Buyer's actions on the Property pursuant to this
Paragraph 5. Such commercial general liability insurance shall name the
Association as an additional insured. The insurance required by Buyer hereunder
shall contain an express provision that the coverage will not be cancelled or
materially changed during the term of this Contract without at least thirty (30)
days prior written notice to the Association.
Buyer shall not permit any mechanic's or materialman's liens or any other
liens to attach to the Property by reason of the performance of any of its
testing or as a result of any other action by Buyer or its consultants. Buyer
shall give notice to the Association (which may be verbal) a reasonable time
prior to entry onto the Property and shall permit the Association to have a
representative present during all investigations and inspections conducted with
respect to the Property during such noticed time. Notwithstanding the foregoing,
Buyer may give such notice to the Association in the form of a schedule that
reflects scheduled entries onto the Property by Buyer or its consultants, and by
so doing Buyer shall not be required to give additional notice to the
Association prior to each such scheduled entry, so long as such schedule is
reasonably specific as to date, time and intended activity, and Buyer complies
with reasonable instructions from the Association regarding Buyer's entry upon
the Property. The Association's
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representative for purposes of notice pursuant to this paragraph is Xxxxxxxx X.
Xxxxxxxx, Esq. with and address of 00000 Xxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx,
Xxxxxxxx 00000, a phone number of 000-000-0000, an e-mail address of
xxxxxxxxx@xxx-xx.xxx, and a fax number of 000-000-0000. Buyer shall take
reasonable actions and implement all reasonable protections necessary to ensure
that all actions taken in connection with its testing and examinations or entry
upon the Property, and all equipment, materials and substances generated, used
or brought onto the Property pose no likelihood of material threat to the safety
of persons or the environment and cause no damage to the Property or the
personal property of the Association or other persons on the Property.
Within five (5) days after full execution of this Contract, the Association
shall deliver to Buyer, for informational purposes and without any
representations or warranties, express or implied, true and complete copies of
all reports, studies, soil and environmental reports and studies, tests, title
reports, surveys and other documents and materials which are within the
Association's possession or control relating to the Property, if any.
In the event that Buyer determines, in its sole discretion, that the
Property is not suitable for Buyer's intended use, then Buyer may terminate this
Contract by delivery of written notice to Seller on or before the expiration of
the Study Period (as defined herein) and thereupon the parties shall have no
further rights or obligations under this Contract, and the Initial Deposit shall
be returned to Buyer. For all purposes hereunder, the "Study Period" shall be
that period of time that commences on the day after the Effective Date of this
Contract and shall expire sixty (60) days after the commencement of the Study
Period.
Buyer's Study Period Obligations under this Paragraph 5 shall survive
closing or earlier termination of this Contract.
6. Closing Date. Provided that all conditions precedent to Buyer's
obligation to close under this Contract have been satisfied (or waived by Buyer,
in its sole discretion), closing shall occur on or before forty-five (45) days
after Buyer has delivered written notice to the Association that Buyer has
received Final Approval of the Plan and Subdivision Plat pursuant to Paragraph 4
above (the "Closing Date"), but no earlier than July 1, 2005 and no later than
twelve (12) months after the expiration of the Study Period (the "Outside
Closing Date"). Buyer shall deliver to the Association such written notice of
its receipt of Final Approval of the Plan and Subdivision Plat no later than
three (3) business days after receiving Final Approval of the Plan and
Subdivision Plat in accordance with Paragraph 4. Subject to the above, Buyer
shall have the
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right to close earlier than the Closing Date by giving the Association at least
thirty (30) days prior written notice of such earlier date and delivering with
such written notice the Deposit and Purchase Price Advance, to the extent not
previously delivered to Seller. Closing shall be held at the offices of Escrow
Agent or another settlement agent in the northern Virginia area selected by
Buyer.
7. Conveyance. The Property is to be conveyed by Special Warranty Deed (the
"Deed") from Seller to Buyer or to such person or entity as Buyer may designate
to take title to the Property prior to or at closing, subject only to the
Permitted Exceptions (as defined in Paragraph 10 below). Possession of the
Property shall be delivered from Seller to Buyer at closing, free of any and all
tenancies or other possessory rights whatsoever, including (without limitation)
proprietary leases, mutual ownership contracts, management agreements, service
contracts and any other contracts, leases, licenses and similar documents with
regard to the Property, other than month-to-month who shall be given a thirty
(30) day notice to vacate (per statute) by Buyer at closing or as otherwise
expressly stated below in this Paragraph 7 and those matters shown on the Title
Commitment (as defined herein) and approved by Buyer pursuant to Paragraph 10
below. Notwithstanding anything to the contrary contained herein, Buyer hereby
grants to the Association the right for Participating Members and any members of
the Association holding a proprietary lease or mutual ownership contract in any
Dwelling Unit on the date of closing hereunder to remain in occupancy of their
Dwelling Unit (or to permit their subtenants to remain in occupancy of their
Dwelling Unit) rent-free after closing for up to no more than thirty (30) days
after the first day of the month following closing; provided, however, that each
such Participating Member or other member executes a lease agreement in the form
attached hereto as Exhibit "C" ("Lease Agreement") and the Association delivers
such Lease Agreement to Buyer on or before closing. Any Participating Member or
member who executes a Lease Agreement shall have the right to sublease the
applicable Dwelling Unit for the term identified in the Lease Agreement.
8. Expenses. Seller shall pay the cost of the preparation of the Deed, the
cost of obtaining releases of all monetary liens encumbering the Property, the
Virginia Grantor's Tax and the Association's attorneys' fees. Buyer shall pay
all expenses of examination of title, survey costs, all reasonable fees and
expenses of the party conducting closing, the title insurance premium, escrow
fees, Buyer's attorneys' fees and all recording fees.
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9. Adjustments and Taxes. Rents, water, utility charges, and real estate
taxes shall be adjusted and prorated to the date of closing. Except as otherwise
provided, special assessments against the Property for public improvements
authorized, pending or completed by Seller prior to the closing, whether
assessment therefore has been levied or not, and whether payable in one lump sum
or in installments, shall be paid in full by Seller at closing or due allowance
shall be made therefore. All assessments against the Property for public
improvements authorized, requested or initiated by Buyer or at Buyer's
instigation, prior to the closing, whether pending or completed, and whether
assessment(s) therefore has been levied or not, and whether payable in one lump
sum or in installments, shall be paid in full by Buyer at closing or due
allowance shall be made therefore.
10. Title. At closing, title to the Property is to be good of record and in
fact, fully marketable and insurable by a recognized title insurance company of
Buyer's selection authorized to do business in the Commonwealth of Virginia at
regular rates without exception, except for the Permitted Exceptions.
A. No later than the expiration of the Study Period, Buyer shall (i)
furnish the Association with a copy of a title commitment (the "Title
Commitment') for the Property issued by a reputable title insurance company in
the amount of the Purchase Price, and (ii) notify the Association of any matters
reported in the Title Commitment that would make title to the Property
unmarketable or uninsurable under a standard ALTA owner's or lender's title
insurance policy or that would Materially Adversely Affect or Materially
Increase (as both terms are defined in Paragraph 11) the cost of Buyer's
intended development of the Property (which matters shall be collectively
referred to as "Title Objections"). In addition, Buyer shall be entitled to
identify as Title Objections any unacceptable title exceptions arising after the
effective date of Buyer's Title Commitment (i) not caused by Buyer, or (ii) not
reflected on Buyer's Title Commitment and caused by Seller, if, and only if,
such Title Objections are identified within five (5) business days of the
determination of such additional Title Objections by Buyer. Buyer's failure to
furnish the Association with a copy of the Title Commitment and identify to the
Association any Title Objections prior to the expiration of the Study Period
shall constitute a waiver by Buyer of all Title Objections with respect to
matters existing prior to the expiration of the Study Period, except (a) those
exceptions not actually disclosed to Buyer which are not of record or caused by
Seller after the effective date of the Title Commitment, and (b) any monetary
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liens or encumbrances on the Property (not caused by or related to Buyer's
actions hereunder), which Seller must satisfy at or prior to closing.
B. No later than thirty (30) days after the expiration of the Study
Period ("Survey Period"), Buyer shall notify the Association of any unacceptable
matters ("Survey Objections") reflected on any survey of the Property obtained
by Buyer (the "Survey"). Buyer shall be entitled to identify as Survey
Objections any unacceptable survey matters arising after the effective date of
Buyer's Survey (i) not caused by Buyer, or (ii) not reflected on Buyer's Survey
and caused by Seller, if, and only if, such additional Survey Objections are
identified within five (5) business days of the determination of such additional
Survey Objections by Buyer. Buyer's failure to notify the Association of any
Survey Objections disclosed by such Survey within thirty (30 days following the
expiration of the Survey Period, shall constitute a waiver by Buyer of all
Survey Objections with respect to survey matters existing at such time, except
those exceptions which were (i) not disclosed to Buyer during the Study Period
and are not of record or (ii) caused by Seller without Buyer's written approval
or request after the effective date of the Survey.
C. Seller shall notify Buyer in writing within ten (10) days of
receipt of Buyer's Title Objections and within ten (10) days of receipt of
Buyer's Survey Objections which of such Title Objections and Survey Objections
Seller agrees to correct. As to those Title Objections and Survey Objections
that Seller has agreed to correct, if any one or more of such Title Objections
or Survey Objections has not been cured within sixty (60) days of Seller's
notice that it will correct such Title Objections or Survey Objections, then
Buyer shall have the right, by written notice provided to the Association within
ten (10) days of the expiration of the Association's 60-day period, to either
(i) waive the Title Objections or Survey Objections and proceed to closing, or
(ii) terminate this Contract, in which event (x) if the Deposit is still being
held by Escrow Agent, the Deposit shall be returned to Buyer, or (y) if the
Deposit and the Purchase Price Advance have been released to the Association,
the Deposit and the Purchase Price Advance shall be returned to Buyer, and the
parties shall have no further rights or obligations under this Contract, except
as expressly provided otherwise herein. Seller's failure to provide notice of
its election to correct any Title Objections or Survey Objections within such
10-day period shall be deemed Seller's election not to correct any of such Title
Objections or Survey Objections. The foregoing limitation will not apply to any
monetary liens or
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encumbrances on the Property (not caused by or related to Buyer's actions) which
Seller must have released prior to closing, or real estate taxes or sums secured
by any deeds of trust on the Property, all of which must be satisfied by Seller
in full at or prior to closing.
D. If Seller elects within the above referenced 10-day periods not to
correct any one or more Title Objections or Survey Objections, then Buyer shall
have the right, by written notice provided to the Association within ten (10)
days of receipt of Seller's notice of election, to either (i) waive the Title
Objections and/or Survey Objections and proceed to closing, or (ii) terminate
this Contract, in which event (x) if the Deposit is still being held by Escrow
Agent, the Deposit shall be returned to Buyer, or (y) if the Deposit and
Purchase Price Advance have been released to Seller, the Deposit and Purchase
Price Advance shall be returned to Buyer, and the parties shall have no further
rights or obligations under this Contract, except as expressly otherwise herein.
E. All matters of title that are shown as exceptions in the Title
Commitment and which do not constitute Title Objections or that are Title
Objections which are subsequently accepted or waived by Buyer as provided above
shall be referred to as the "Permitted Exceptions."
11. Covenants, Representations and Warranties of the Association. Seller
covenants, warrants and represents to Buyer as follows:
A. The Association is a duly organized and validly existing Virginia
nonstock corporation in good standing under the laws of the Commonwealth of
Virginia.
B. After the Effective Date, Seller shall not, without Buyer's prior
written consent (which may be withheld by Buyer in its sole and absolute
discretion): (a) grant any easements or rights-of-way and/or other
encumbrances over or through the Property, (b) enter into any other
proprietary leases or mutual ownership contracts for the Property, unless
such new lessee or proposed member agrees in writing to the performance of
all obligations of Seller under this Contract, including (without
limitation) delivery of the Deed of Trust and Deed, in accordance with the
Association's bylaws and certificate of incorporation, (c) enter into any
agreements or any proffers or other commitments affecting the Property,
except the Partial Liquidation Plan and the agreements contained therein
and those standard maintenance agreements for the usual and customary
maintenance and repair of the Property entered into in normal course of
business which
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are terminable and shall be terminated by Seller prior to or at closing
hereunder, and which are delivered to Buyer within five (5) days of the
effective date of such, or (d) the Association's election to either
purchase or terminate a membership except pursuant to the Association's
organizational documents, or (e) further encumber the Property, except for
monetary encumbrances that will be paid in full before closing or at
closing out of closing proceeds.
C. Seller has not received notice of any violations of law or
municipal ordinances, orders, or requirements noted or issued by any
governmental department or authority having jurisdiction over or affecting
the Property which have not been cured, nor does Seller have any knowledge
of any such notices. Notwithstanding the foregoing, for the first thirty
(30) days following closing, the Association will cure, at its sole cost
and expense, any violations identified in violation notices received by
Buyer or any tenant or subtenant of the Property which are curable within
said thirty (30) days.
D. All bills and claims for labor performed and materials furnished to
or for the benefit of the Property, including any mechanics' liens or
materialman's liens affecting any portion of the Property, not resulting
from or arising from the actions of Buyer will be paid in full on or before
closing, and at closing Seller shall execute the standard title company
affidavit regarding mechanics' liens and rights of parties in possession.
E. Seller has the power and authority to enter into this Contract and
to consummate the transaction contemplated herein without obtaining the
consent or joinder by any other party, except as required by the
Association in its bylaws. Seller is the sole owner of the Property and
shall continue to be the sole owner of the Property during the entire term
of this Contract, subject to the conveyance of undivided tenant-in-common
interests to Participating Members pursuant to the Partial Liquidation
Plan. The Association has obtained the necessary votes of its members
pursuant to a duly held and noticed meeting in accordance with the
Association's bylaws and certificate of incorporation and the Virginia
Nonstock Corporation Act to enter into and perform under this Contract,
including the necessary votes to deliver the Deed of Trust pursuant to
Paragraph 2 above and the Deed pursuant to Paragraph 7 above, and has
otherwise provided all other evidence of the Association's authority to
close on the transaction
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identified herein required by Buyer or the Title Company, including (if
required) an opinion letter from the Association's counsel opining to the
foregoing.
F. The party or parties executing this Contract, the Deed of Trust,
the Deed and all other closing documents hereunder on behalf of Seller have
the authority to execute such documents on Seller's behalf and to bind
Seller thereunder.
G. There are no legal actions, suits, or other legal or administrative
proceedings pending against the Association or any part of the Property.
H. To the best of Seller's knowledge, there are no cemeteries or other
burial plots, archeological sites or historical sites located on the
Property.
I. To the best of Seller's knowledge, no hazardous substances or
hazardous materials have been released or stored on any part of the
Property.
J. Seller has not previously entered into any contract or other
agreement which is currently in effect for the sale of the Property or any
portion thereof to any party other than Buyer.
K. To the best of Seller's knowledge, there are no contracts,
commitments, proffers, obligations, leases or other agreements of any kind
which relate to the Property which are not recorded among the land records
of the County or are not otherwise a matter of public record, except for
the mutual ownership contracts and/or proprietary leases.
L. The knowledge of Seller pursuant to this Paragraph 11 shall be
limited to the actual knowledge of the current members of the Board of
Directors of the Association.
If there is a material change in circumstances in any of the foregoing
covenants, representations and warranties during the term of this Contract that
would make (i) the title to the Property, after the effective date of the Title
Commitment, unmarketable or uninsurable under a standard ALTA owner's or
lender's title insurance policy or that would (ii) "Materially Adversely Affect"
(hereinafter defined as delaying Buyer's development of the Property beyond
ninety (90) days or prohibiting Buyer's intended development of the Property) or
(iii) "Materially Increase" (hereinafter defined as more than one million
dollars ($1,000,000.00) of actual, expected, out-of-pocket costs not including
carrying costs on the Purchase Price) the cost of Buyer's intended development
of the Property, and there has been no breach of the terms of
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this Contract by Buyer, Buyer may, within ten (10) days of notice of such change
in circumstances, either (i) terminate this Contract by delivery of written
notice to the Association, in which event (x) if the Deposit is still being held
by Escrow Agent, the Deposit shall be returned to Buyer, or (y) if the Deposit
and the Purchase Price Advance have been released to Seller, the Deposit shall
be retained by Seller and the Purchase Price Advance shall be returned to Buyer,
and the parties shall have no further rights or obligations under this Contract,
except for Buyer's Study Period Obligations, or (ii) proceed to closing
hereunder. Notwithstanding the foregoing, in the event that the representation
or warranty of Seller was either (a) not true in a material respect at the time
of execution of this Contract as a result of an intentional misrepresentation
not involving any matters of record or which were discovered by Buyer during the
Study Period, or (b) was true at the time of execution of this Contract but was
not true in a material respect at the time of closing as a result of a material
default or breach by Seller (rather than as a result of a change in
circumstances or the occurrence of events which is beyond the reasonable control
of Seller) and such breach (whether under both (a) and (b) above) has thereafter
resulted in the title to the Property becoming unmarketable or uninsurable under
a standard ALTA owner's or lender's title insurance policy or that would
Materially Adversely Affect or Materially Increase the cost of Buyer's intended
development of the Property, then in addition to the right of Buyer to elect
either of the options set forth in clauses (i) or (ii) above, Buyer shall also
be entitled to a return of the Deposit if it was previously released to Seller
and to recover from Seller all actual monetary damages which may be available at
law as a result of the breach including (without limitation) reimbursement of
out-of-pocket costs and expenses incurred by Buyer in connection with this
transaction for engineers' fees, title examination fees, survey fees, costs and
expenses related to environmental, soil and feasibility tests and examinations,
attorney's fees, consulting fees, and Plan and Subdivision Plat costs and
expenses (collectively, "Monetary Damages").
12. Representations and Warranties of Buyer. Buyer warrants and represents
to Seller as follows:
A. Buyer is a corporation duly organized, validly existing and in good
standing under the laws of the State of Maryland and authorized to transact
business and in good standing under the laws of the Commonwealth of
Virginia.
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B. Buyer has the power to enter into this Contract and to consummate
the transaction contemplated herein.
C. Buyer has not received any actual notice of any legal actions,
suits, or other legal or administrative proceedings pending or threatened
against Buyer which might adversely affect Buyer's ability to consummate
the transaction.
D. Buyer has the financial ability to purchase the Property.
E. Buyer will diligently pursue and use its commercially reasonable
efforts to obtain all necessary approvals for the Plan and Subdivision Plat
for the development of the Property consistent with the "by-right" zoning.
If any of the foregoing representations and warranties of Buyer are not
true and correct in any material respect on the Closing Date, then Seller, at
its option, may either (i) terminate this Contract by delivering written notice
to Buyer, in which event the Deposit and Purchase Price Advance shall be
retained by the Association as liquidated damages pursuant to Paragraph 13 below
and the parties shall have no further rights or obligations under this Contract
(except for Buyer's Study Period Obligations), or (ii) proceed to closing
hereunder.
13. Buyer's Default; Seller's Remedy. In the event that (i) all of the
conditions precedent to Buyer's obligations under this Contract have been
satisfied or waived and Seller performs all of Seller's obligations hereunder
and Buyer fails to close on the Property on or before the Outside Closing Date
or advises the Association that it does not intend to close in accordance with
the terms of this Contract, or (ii) Buyer otherwise defaults under this
Contract, and fails to cure such default within five (5) days after receipt by
Buyer of written notice of such default, then Seller, as Seller's sole and
exclusive remedy (except for Buyer's Study Period Obligations), shall be
entitled to terminate this Contract by delivery of written notice to Buyer and
the Deposit and Purchase Price Advance (if previously paid to Seller by Buyer
pursuant to Paragraph 2 above) shall be retained by Seller as full liquidated
damages (except for Buyer's Study Period Obligations) in lieu of any other
claims or causes of action which may be available to Seller at law or in equity
by reason of such default hereunder by Buyer. The foregoing forfeiture of the
Deposit and Purchase Price Advance to Seller is agreed upon as liquidated
damages by the parties hereto because of the difficulty of ascertaining the
actual damages Seller may suffer by reason of Buyer's breach of this Contract.
The preceding notwithstanding, Buyer shall not be released from any Buyer's
Study Period Obligations.
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14. Seller's Default; Buyer's Remedies. In the event that (i) Buyer
performs all of its obligations hereunder and Seller fails to close on the
Property or (ii) Seller otherwise materially defaults under this Contract and
fails to cure such default within five (5) days after receipt by the Association
of written notice of such default, then Buyer shall be entitled to (i) terminate
this Contract by delivery of written notice to the Association, in which event
the Deposit and Purchase Price Advance (if previously paid to the Association by
Buyer pursuant to Paragraph 2 above) shall be returned to Buyer and Buyer shall
be entitled to recover from the Association (and pursue a cause of action to
recover) Buyer's Monetary Damages, or (ii) seek to obtain specific performance
of Seller's obligations hereunder.
15. Condition to Closing. In addition to all other conditions contained in
this Contract to Buyer's obligation to proceed to closing hereunder, Buyer's
obligation to proceed to closing is expressly contingent upon the condition that
on the date of closing, no imposition of a sewer, water or building moratorium
of longer than ninety (90) days shall have been taken or shall have been
publicly announced as to be taken which would prohibit Buyer from obtaining
building or occupancy permits or the installation of water and sewer facilities
or other utilities to serve the houses and other improvements to be constructed
on the Property pursuant to Buyer's intended development, or which Materially
Adversely Affects changes in the procedures or extends the period beyond ninety
(90) days for obtaining such permits or facilities for Buyer's intended
improvements on the Property or prevents or materially delays beyond ninety (90)
days such dwellings and other improvements from being effectively connected to a
private or public sewer and water system or other private or public utilities.
Proffer or other development requirements requested by the County from Buyer as
part of Buyer's intended development plan for the Property which are County
conditions to approving Buyer's Plan or are conditions precedents to the County
issuing necessary permits to Buyer shall not constitute a material change or a
material delay so as to excuse Buyer from proceeding to closing pursuant to the
terms of this Paragraph 15.
In the event that any such action has occurred, Buyer shall provide the
Association with notice of such within ten (10) business days of Buyer's actual
knowledge of such action, at which time, if Buyer is not otherwise in breach of
this Contract, then Buyer may, at its option, may either (a) terminate this
Contract by delivery of written notice thereof to the Association, in which
event (x) if the Deposit is still being held by Escrow Agent, the Deposit shall
be returned
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to Buyer, or (y) if the Deposit and the Purchase Price Advance have been
released to the Association, the Deposit shall be retained by the Association
and the Purchase Price Advance shall be returned to Buyer, and the parties shall
have no further rights or obligations under this Contract, or (b) waive such
condition and proceed to closing. Notwithstanding the foregoing, if any
moratorium does not identify on its face that such moratorium will be lifted
within ninety (90) days or less, or no time period is identified for lifting
such moratorium, then the Association shall have the right (at its reasonable
discretion) to extend closing for up to ninety (90) days, provided, however,
that if such moratorium remains in place at the end of such extended period or
is for longer than ninety (90) days, then Buyer shall have the right to exercise
its option under clause (a) and (b) above.
16. Parties Bound. This Contract shall inure to the benefit of and be
binding upon the parties hereto and their respective successors and assigns.
17. Commission. Seller and Buyer warrant to each other that neither has
dealt with or been represented by any agent, consultant, broker or finder in
this transaction, except Enterprise Realty Services ("Broker"), and that no
commission or other fee is contemplated with respect to this transaction, except
to Broker, whose fee and/or commission shall be paid by Buyer pursuant to a
separate agreement if, but only if, closing occurs hereunder. Seller and Buyer
hereby agree to indemnify, defend and hold each other harmless of and from any
claim by any party that a commission or other fee is due and owing to such party
in connection with this sale transaction as a result of the act or failure to
act of the indemnifying party.
18. Applicable Law. This Contract shall be construed in accordance with the
laws of the Commonwealth of Virginia.
19. Total Agreement. This Contract (including all exhibits hereto) contains
the full and final agreement between the parties hereto with respect to the sale
and purchase of the Property. Buyer and Seller shall not be bound by any terms,
conditions, statements, warranties or representations, oral or written, not
contained herein. No change or modification of this Contract shall be valid
unless the same is in writing and is signed by the parties hereto. No waiver of
any of the provisions of this Contract shall be valid unless the same is in
writing and is signed by the party against which it is sought to be enforced.
20. Notices. All notices, demands or other communications that may be
necessary or proper hereunder shall be deemed duly given if personally delivered
upon delivery (or at such
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time as delivery is not accepted by the intended recipient), when deposited with
Federal Express or other reputable overnight service, when deposited in the
United States mail, postage prepaid, first class, registered or certified,
return receipt requested, or when sent by facsimile with a confirmation of
receipt, addressed respectively as follows:
Buyer: Xxxxxxx Xxxxxx Companies, Inc.
0000 Xxxxxx Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx
Vice President
Fax Number: 000-000-0000
With a
copy to: Xxxxxxx Xxxxxx Companies, Inc.
0000 Xxxxxx Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.,
Vice President and General Counsel
Fax Number: 000-000-0000
Seller: c/o Xxxx Xxxxxxxx Xxxxxx Mutual Homes Association, Arlington, VA
0000 X. Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attention Xxxxx Xxxxxxx, President
Fax Number: 000-000-0000
With a
copy to: Fettmann, Xxxxxxx & Majors, P.C.
00000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxxx X. Xxxxxxxx, Esq.
Fax Number: 000-000-0000
Escrow
Agent: Excel Title Company
0000 Xxxxxxxx Xxxxxx Xx.
Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxx
Fax Number: 000-000-0000
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Any party hereto may change its address for notice purposes hereunder by
delivering written notice thereof to the other parties in accordance with the
foregoing provisions.
21. Assignment. As long as Buyer in not in material breach beyond and
applicable notice and cure period of any of the terms of this Contract, Buyer
may assign this Contract in whole or in part without the prior consent of Seller
to any limited liability company, partnership, corporation or other entity in
which Xxxxxx X. Alloy and/or Xxxxxx X. Alloy maintain management control. Any
assignment by Buyer of this Contract in whole or in part to any entity other
than an entity described in the immediately preceding sentence shall be subject
to the prior consent of the Association, which shall not be unreasonably
withheld, conditioned or delayed but such approval shall not release Buyer from
any of its obligations and liabilities under this Contract.
22. Time. Time is of the essence with respect to all matters set forth in
this Contract.
23. Risk of Loss. The risk of loss for damage to the Property or any
improvements or fixtures located thereon by fire or other casualty is hereby
assumed by Seller until the closing hereunder and recordation of the Deed
covering the Property.
24. Condemnation. Seller agrees to give Buyer prompt notice of any actual
or threatened taking of all or any portion of the Property by condemnation or
eminent domain prior to the Closing Date. In the event that prior to closing
hereunder there shall occur a taking by condemnation or eminent domain of all or
any portion of the Property or a proposed conveyance to a condemning authority
in lieu of condemnation, then Buyer, at its option, may either (i) terminate
this Contract by delivery of written notice thereof to the Association, in which
event (x) if the Deposit is still being held by Escrow Agent, the Deposit shall
be returned to Buyer, or (y) if the Deposit and the Purchase Price Advance have
been released to the Association, the Deposit shall be retained by the
Association and the Purchase Price Advance shall be returned to Buyer, and the
parties shall have no further rights or obligations under this Contract, or (ii)
proceed to closing hereunder, in which event Seller shall assign to Buyer at
closing all interest of Seller in and to any condemnation proceeds payable to
Seller in connection with the condemnation and thereupon Buyer shall control all
negotiations with the condemning authority. Buyer shall receive a credit against
the Purchase Price at closing for the amount of any condemnation proceeds
received by Seller prior to closing.
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25. Headings. The paragraph headings contained in this Contract are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Contract.
26. Weekends and Holidays. Any date specified in this Contract for the
performance of an obligation or expiration of a time period which is a Saturday,
Sunday or a legal holiday shall be extended to the first regular business day
after such date which is not a Saturday, Sunday or legal holiday.
27. Counterpart Originals. This Contract may be executed in multiple
original counterparts, each of which shall be an original, but all of which
shall constitute one and the same Contract.
28. Attorneys' Fees. In the event that any party is required to resort to
litigation to enforce its rights under this Contract, Seller and Buyer agree
that any judgment awarded to the prevailing party shall include all litigation
expenses of the prevailing party, including (without limitation) actual
attorneys' fees and court costs.
29. Non-Merger. The provisions of this Contract shall survive closing and
shall not be deemed to have merged into the Deed covering the Property.
30. Signage. In the event that Buyer does not terminate this Contract
during the Study Period and after resolution of all Title and Survey Objections
except for those to be cured at Closing, then at any time thereafter, Buyer, at
its sole cost and expense, shall be entitled to place an advertising sign or
signs on the Property (the "Signage") which advertises the fact that Buyer will
be developing a "Xxxxxxx Xxxxxx" residential community on the Property. Any
Signage installed on the Property by Buyer shall comply with all applicable
County codes, ordinances and other enactments. In the event that this Contract
terminates at any time prior to closing, then Buyer, at its sole cost and
expense, shall remove any Signage from the Property as soon as reasonably
practical and restore the land in the area of the Signage reasonably to the same
condition as existed prior to the installation of the Signage.
31. Memorandum. Seller hereby agrees that Buyer may execute and record a
memorandum of this Contract at Buyer's sole cost and expense among the County
land records. Seller shall cooperate with Buyer as necessary in order to record
such memorandum if it shall, at the same time, execute and deliver to the
Association's counsel in escrow a release of the memorandum of Contract with
authority to record it upon any termination of this Contract for any reason
other than a default by Seller hereunder.
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32. Partial Liquidation Plan. The Association shall have the right to adopt
a Partial Liquidation Plan at any time prior to the earlier of June 30, 2005 or
that date that Buyer obtains Final Approval of the Plan and Subdivision Plat
pursuant to Paragraph 4 above (the earlier of such dates shall be known herein
as the "Election Date") pursuant to which the Association may convey the
Property on or before June 30, 2005, collectively as tenants-in-common, to the
Association and certain Owner Occupant Members who have irrevocably elected to
participate in both the Partial Liquidation Plan and the sale of their undivided
interest in the Property as provided by this Contract. The Association shall not
have the right, as part of the Partial Liquidation Plan, to convey any interest
in the Property to an Owner Occupant Member unless and until such Owner Occupant
Member (the "Participating Member") has executed, prior to the Election Date, an
agreement (the "Adoption Agreement") to be irrevocably bound and obligated by
all of the terms and conditions of this Contract as such terms and conditions
relate to the obligations of the Association. Upon execution of such Adoption
Agreement, each Participating Member shall be bound and obligated as if he or
she were an original party to this Contract. The Adoption Agreement shall be (i)
approved by Buyer and Buyer's title insurer (which approval shall not be
unreasonably withheld, conditioned or delayed), (ii) confirm and ratify the
provisions of Paragraph 1 of this Contract that such Participating Member
irrevocably appoints the Association as his or her agent for all purposes under
the Contract including, without limitation, as agent for receipt of notice and
as agent with full power and authority to take or approve any action as may be
required of Seller under this Contract and in order for Buyer to obtain Final
Approval of the Plan and Subdivision Plat pursuant to Xxxxxxxxx 0 xxxxx, (xxx)
confirm and ratify such Participating Member's approval of the Purchase Price
and any allocation of the Purchase Price pursuant to the Partial Liquidation
Plan. Upon execution, a copy of the Partial Liquidation Plan and all Adoption
Agreements must be immediately delivered to Buyer and shall be attached to this
Contract as Exhibit "D". The form Adoption Agreement shall be attached hereto as
Exhibit "E".
In addition to the foregoing, as a condition of receiving a conveyance of
an undivided interest in the Property pursuant to the Partial Liquidation Plan
(the "Undivided Interest"), each Participating Member shall execute the
following: (i) a proprietary lease for such Participating Member's Dwelling Unit
which is in a form that is substantively the same as the mutual ownership
contract previously governing such Participating Member's Dwelling Unit; (ii) a
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special warranty Deed conveying the Participating Member's Undivided Interest to
Buyer or to such person or entity as Buyer may designate to take title to the
Property prior to or at closing (the "Buyer's Deed"); and (iii) a special
warranty Deed conveying the Participating Member's Undivided Interest to the
Association (the "Association's Deed"). The Buyer's Deed shall be in a form
acceptable to Buyer and Buyer's title insurer, subject only to the Permitted
Exceptions. Each Participating Member shall deliver the Buyer's Deed and the
Association's Deed to the Escrow Agent who shall hold both deeds in escrow. If
the Association provides written notice to Escrow Agent that a Participating
Member is in breach of his or her obligations under this Contract or the Partial
Liquidation Plan, Escrow Agent shall promptly record the Association's Deed from
such Participating Member and shall destroy the Buyer's Deed from such
Participating Member and such Participating Member shall no longer be a
"Participating Member" or "Seller" under this Contract. In the event that any
Participating Member remains a party to this Contract upon closing hereunder,
Escrow Agent shall promptly record all Buyer's Deeds which are in its possession
at closing.
At any time up to and including closing, the Association shall have the
right to abandon or modify the Partial Liquidation Plan in its sole and absolute
discretion provided (i) Seller indemnifies and holds Buyer harmless for any
additional out-of-pocket cost or expense (including, without limitation,
attorneys fees and other legal expenses related to the review of documents
related to such abandonment or modification) Buyer incurs by reason of such
abandonment or modification and (ii) such abandonment or modification of the
Partial Liquidation Plan does not impair or otherwise restrict Buyer's rights
under this Contract. Notwithstanding the foregoing, the Partial Liquidation Plan
may not be modified after the Election Date for the purpose of classifying any
additional Owner Occupant Members as Participating Members. If the Association
abandons the Partial Liquidation Plan as provided in the preceding sentence, the
term "Seller" as used in this Contract shall mean and refer to the Association
only.
33. Advance Notice of Marketing. Buyer hereby agrees to provide the
Association at the notice address identified herein, for distribution by the
Association to all parties comprising Seller and the Association's members, with
fifteen (15) days advance written notice of Buyer's intention to market to third
parties (except builders) the homes to be developed on the Property by Buyer
pursuant to the Plan. The Participating Members and members (which Participating
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Members and members are confirmed to Buyer's reasonable satisfaction) shall have
the right within such fifteen (15) day period to enter into contracts to
purchase such homes prior to Buyer marketing the homes to third parties for
sale, at the same market prices as will be offered to third party purchasers.
34. Commemorative Plaque. Buyer hereby agrees to install or have installed
on the Property, at Buyer's sole cost and expense, a commemorative plaque or
similar fixture in honor of Xxxx Xxxxxxxx Xxxxxx (the "Plaque"). The Plaque
shall be designed by Buyer and installed in an appropriate visible location on
the common area of the Property as determined by Buyer, both in Buyer's sole
discretion; provided, however, that the Association will be given notice (but
not approval rights) of the design and location of the Plaque.
IN WITNESS WHEREOF, the parties hereto have caused this Contract to be
executed effective as of the later of the dates of execution set forth below or
the later of the dates of any handwritten changes initialed by both parties, as
the case may be, and the "Effective Date" hereof shall be the date that a fully
executed original of this Contract is delivered to Buyer, which Effective Date
shall be inserted on page 1 of this Contract.
BUYER:
XXXXXXX XXXXXX COMPANIES, INC.
November 30, 2004 By:
Date ------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
ASSOCIATION:
XXXX XXXXXXXX XXXXXX MUTUAL
HOMES ASSOCIATION, ARLINGTON, VA
December 29, 2004 By:
Date ------------------------------------
Name: Xxxxx Xxxxxxx
Title: President
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