EXHIBIT 10.4
Revised (9/9/98)
OPTION, MANAGEMENT AND MARKETING AGREEMENT
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THIS OPTION, MANAGEMENT AND MARKETING AGREEMENT (this "Agreement") is made
by and between CMC HEARTLAND PARTNERS VII, LLC, a Delaware limited liability
company ("Purchaser"), and LONGLEAF ASSOCIATES LIMITED PARTNERSHIP, a North
Carolina limited partnership ("Seller").
WITNESSETH:
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WHEREAS, Seller is the owner in fee simple of the vacant lots (together the
"Existing Single-Family Lots" or individually an "Existing Single-Family Lot")
legally described in Exhibit A attached hereto and made a part hereof, and
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located in the Town of Southern Pines (the "Town"), in the County of Xxxxx,
North Carolina;
WHEREAS, Seller is also the owner in fee simple of the vacant parcel of
real estate (the "Magnolia Drive Parcel") legally described in Exhibit B
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attached hereto and made a part hereof, located in the Town, and outlined on
Exhibit C attached hereto and made a part hereof;
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WHEREAS, Seller is also the owner in fee simple of the vacant parcel of
real estate (the "Fifteenth Hole Parcel") legally described in Exhibit D
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attached hereto and made a part hereof, located in the Town, and outlined on
Exhibit E attached hereto and made a part hereof;
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WHEREAS, Seller is also the owner in fee simple of the vacant parcel of
real estate (the "Meadow Parcel") legally described in Exhibit F attached hereto
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and made a part hereof, located in the Town, and outlined on Exhibit G-1
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attached hereto and made a part hereof;
WHEREAS, Seller is also the owner in fee simple of the vacant parcel of
real estate (the "Area F Parcel") legally described in Exhibit H attached hereto
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and made a part hereof, located in the Town, and outlined on Exhibit I attached
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hereto and made a part hereof;
WHEREAS, Seller is also the owner in fee simple of the vacant parcel of
real estate (the "Club Cottages Parcel") legally described in Exhibit J attached
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hereto a and made a part hereof, located in the Town, and outlined on Exhibit K
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attached hereto and made a part hereof;
WHEREAS, the Meadow Parcel, the Area F Parcel and the Club Cottages Parcel
are herein together sometimes called the "Undeveloped Multi-Family Tracts" or
individually an "Undeveloped Multi-Family Tract;"
WHEREAS, the Magnolia Drive Parcel will be subdivided by Seller into the
Magnolia Drive Parcel Lots (hereinafter defined) and the Magnolia Drive Parcel
Accessways (hereinafter defined), as provided in this Agreement;
WHEREAS, the Fifteenth Hole Parcel will be subdivided by Seller into the
Fifteenth Hole Parcel Single-Family Lots (hereinafter defined) and the Fifteenth
Hole Parcel Accessways (as hereinafter defined), as provided in this Agreement;
WHEREAS, the Meadow Parcel will be subdivided by Seller into the Meadow
Parcel Lots (hereinafter defined) and the Meadow Parcel Accessways (hereinafter
defined), as provided in this Agreement;
WHEREAS, the Area F Parcel will be subdivided by Seller into the Area F
Parcel Lots (hereinafter defined) and the Area F Parcel Accessways (hereinafter
defined), as provided in this Agreement;
WHEREAS, the Club Cottages Parcel will be subdivided by Seller into the
Club Cottages Parcel Lots (hereinafter defined) and the Club Cottages Parcel
Accessways (hereinafter defined), as provided in this Agreement;
WHEREAS, the Existing Single-Family Lots, the Magnolia Drive Parcel Lots,
and the Fifteenth Hole Parcel Single-Family Lots are herein together sometimes
called the "Single-Family Lots" or individually a "Single-Family Lot;"
WHEREAS, the Meadow Parcel Lots, the Area F Parcel Lots and the Club
Cottages Parcel Lots are herein together sometimes called the "Tract Lots" or
individually a "Tract Lot;"
WHEREAS, the Single-Family Lots and the Tract Lots are herein together
sometimes called the "Lots" or individually a "Lot";
WHEREAS, the Existing Single-Family Lots, the Magnolia Drive Parcel, the
Fifteenth Hole Parcel, the Meadow Parcel, the Area F Parcel and the Club
Cottages Parcel are herein together sometimes called the "Properties" or
individually a "Property;"
WHEREAS, the Properties are all part of a planned unit development commonly
known as "Longleaf," developed pursuant to a certain Conditional Use Permit Case
No. CU-04-88 (the "PUD Approval"), dated June 23, 1988, issued by the Town (the
Properties and the other portions of the Longleaf development approved for
residential development being herein together called the "Development");
WHEREAS, Seller desires that Purchaser construct detached single-family
residential dwelling units (together "Detached Units" or individually a
"Detached Unit") on the Single-Family Lots, and Purchaser desires to construct
Detached Units on the Single-Family Lots;
WHEREAS, Seller further desires that Purchaser market and sell the Single-
Family Lots and the Detached Units to be constructed by Purchaser on the Single-
Family Lots, and Purchaser desires to market and sell the Single-Family Lots and
the Detached Units to be constructed by Purchaser on the Single-Family Lots;
WHEREAS, Seller desires that Purchaser construct attached residential
dwelling units (together "Tract Units" or individually a "Tract Unit") on the
Tract Lots (it being contemplated by Seller that there will be more than one
Tract Unit on a Tract Lot), and Purchaser desires to construct Tract Units on
the Tract Lots;
WHEREAS, Seller further desires that Purchaser market and sell the Tract
Lots and the Tract Units to be constructed by Purchaser on the Tract Lots, and
Purchaser desires to market and sell the Tract Lots and the Tract Units to be
constructed by Purchaser on the Tract Lots;
WHEREAS, the Detached Units and the Tract Units are herein together
sometimes called the "Units" or individually a "Unit;"
WHEREAS, in order to induce Purchaser to construct Detached Units on the
Single-Family Lots, and to market and sell the Single-Family Lots and Detached
Units to be constructed by Purchaser on the Single-Family Lots, Seller (a) is
willing to sell to Purchaser such of the Single-Family Lots as Purchaser shall
request or is obligated to purchase hereunder, and (b) is further willing, prior
to the closing of the sale by Purchaser of any Single-Family Lot and the
Detached Unit located thereon to a third-party purchaser, to (i) grant a first
lien to secure any construction loan made to Purchaser with respect to any
Single-Family Lot, and (ii) take such steps as shall be necessary to cause any
permitted existing deeds of trust with respect to such Single-Family Lot to
either be released or to be subordinated to such construction loan deed of
trust;
WHEREAS, in order to induce Purchaser to construct Tract Units on the Tract
Lots, and to market and sell the Tract Units to be constructed by Purchaser on
the Tract Lots, Seller (a) is willing to sell to Purchaser such of the
Tract Lots as Purchaser shall request or is obligated to purchase hereunder, and
(b) is further willing, prior to the closing of the sale by Purchaser of any
Tract Unit to a third-party purchaser, to (i) grant a first lien to secure any
construction loan made to Purchaser with respect to any Tract Lot (or portion
thereof) and any Tract Units to be constructed thereon, and (ii) take such steps
as shall be necessary to cause any permitted existing deeds of trust with
respect to such Tract Lot (or portion thereof) and Tract Unit to either be
released or to be subordinated to such construction loan deed of trust;
WHEREAS, Seller desires to grant to Purchaser, and Purchaser desires to
receive from Seller, options to purchase the Lots upon the terms and conditions
hereinafter set forth;
WHEREAS, Seller desires to establish certain minimum requirements for the
exercise by Purchaser of its options to purchase Lots; and
WHEREAS, Seller desires that Purchaser assume certain management duties
with respect to the Development, as hereinafter provided, and Purchaser is
willing to assume such management duties, upon the terms and conditions
hereinafter set forth;
NOW THEREFORE, for and in consideration of the mutual terms, covenants,
conditions and agreements hereinafter contained, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, it
is hereby agreed by and between the parties hereto as follows:
1. Options.
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(a) Intentionally Omitted
(b) Grants.
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(i) (A) Seller hereby gives and grants to Purchaser and,
subject to the provisions of paragraph 22 of this Agreement, its successors and
assigns the exclusive right, privilege and continuing option (herein called the
"Existing Single-Family Lots Option"), upon the terms and conditions set forth
in this Agreement, to purchase, at any time and from time to time during the
term of the Existing Single-Family Lots Option, the Existing Single-Family Lots
or any of them, together with all improvements now or hereafter located on the
Existing Single-Family Lots, and together with all easements, appurtenances,
rights, privileges, reservations and hereditaments belonging to or pertaining to
the Existing Single-Family Lots, and all of the right, title and interest of
Seller in and to all streets, roads and rights-of-way adjacent to the Existing
Single-Family Lots.
(B) Seller hereby gives and grants to Purchaser and,
subject to the provisions of paragraph 22 of this Agreement, its successors and
assigns the exclusive right, privilege and continuing option (herein called the
"Magnolia Drive Parcel Lots Option"), upon the terms and conditions set forth in
this Agreement, to purchase, at any time and from time to time during the term
of the Magnolia Drive Parcel Lots Option, the Magnolia Drive Parcel Lots or any
of them, together with all improvements now or hereafter located on the Magnolia
Drive Parcel Lots, and together with all easements, appurtenances, rights,
privileges, reservations and hereditaments belonging to or pertaining to the
Magnolia Drive Parcel Lots, and all of the right, title and interest of Seller
in and to all streets, roads and rights-of-way adjacent to the Magnolia Drive
Parcel Lots.
(C) Seller hereby gives and grants to Purchaser and,
subject to the provisions of paragraph 22 of this Agreement, its successors and
assigns the exclusive right, privilege and continuing option (herein called the
"Fifteenth Hole Parcel Lots Option"), upon the terms and conditions set forth in
this Agreement, to purchase, at any time and from time to time during the term
of the Fifteenth Hole Parcel Lots Option, the Fifteenth Hole Parcel Single-
Family Lots or any of them, together with all improvements now or hereafter
located on the Fifteenth Hole Parcel Single-Family Lots, and together with all
easements, appurtenances, rights, privileges, reservations and hereditaments
belonging to or pertaining to the Fifteenth Hole Parcel Single-Family Lots, and
all
of the right, title and interest of Seller in and to all streets, roads and
rights-of-way adjacent to the Fifteenth Hole Parcel Single-Family Lots.
(D) (I) Seller hereby gives and grants to Purchaser and,
subject to the provisions of paragraph 22 of this Agreement, its successors and
assigns the exclusive right, privilege and continuing option (herein called the
"Meadow Parcel-Phase II Lots Option"), upon the terms and conditions set forth
in this Agreement, to purchase, at any time and from time to time during the
term of the Meadow Parcel-Phase II Lots Option, the Meadow Parcel-Phase II Lots
(hereinafter defined) or any of them, together with all improvements now or
hereafter located on the Meadow Parcel-Phase II Lots, and together with all
easements, appurtenances, rights, privileges, reservations and hereditaments
belonging to or pertaining to the Meadow Parcel-Phase II Lots, and all of the
right, title and interest of Seller in and to all streets, roads and rights-of-
way adjacent to the Meadow Parcel-Phase II Lots.
(II) Seller hereby gives and grants to Purchaser and,
subject to the provisions of paragraph 22 of this Agreement, its successors and
assigns the exclusive right, privilege and continuing option (herein called the
"Meadow Parcel-Phase III Lots Option"), upon the terms and conditions set forth
in this Agreement, to purchase, at any time and from time to time during the
term of the Meadow Parcel-Phase III Lots Option, the Meadow Parcel-Phase III
Lots (hereinafter defined) or any of them, together with all improvements now or
hereafter located on the Meadow Parcel-Phase III Lots, and together with all
easements, appurtenances, rights, privileges, reservations and hereditaments
belonging to or pertaining to the Meadow Parcel-Phase III Lots, and all of the
right, title and interest of Seller in and to all streets, roads and rights-of-
way adjacent to the Meadow Parcel-Phase III Lots.
(III) Seller hereby gives and grants to Purchaser and,
subject to the provisions of paragraph 22 of this Agreement, its successors and
assigns the exclusive right, privilege and continuing option (herein called the
"Meadow Parcel-Phase IV Lots Option"), upon the terms and conditions set forth
in this Agreement, to purchase, at any time and from time to time during the
term of the Meadow Parcel-Phase IV Lots Option, the Meadow Parcel-Phase IV Lots
(hereinafter defined) or any of them, together with all improvements now or
hereafter located on the Meadow Parcel-Phase IV Lots, and together with all
easements, appurtenances, rights, privileges, reservations and hereditaments
belonging to or pertaining to the Meadow Parcel-Phase IV Lots, and all of the
right, title and interest of Seller in and to all streets, roads and rights-of-
way adjacent to the Meadow Parcel-Phase IV Lots.
(E) Seller hereby gives and grants to Purchaser and,
subject to the provisions of paragraph 22 of this Agreement, its successors and
assigns the exclusive right, privilege and continuing option (herein called the
"Area F Parcel Lots Option"), upon the terms and conditions set forth in this
Agreement, to purchase, at any time and from time to time during the term of the
Area F Parcel Lots Option, the Area F Parcel Lots or any of them, together with
all improvements now or hereafter located on the Area F Parcel Lots, and
together with all easements, appurtenances, rights, privileges, reservations and
hereditaments belonging to or pertaining to the Area F Parcel Lots, and all of
the right, title and interest of Seller in and to all streets, roads and rights-
of-way adjacent to the Area F Parcel Lots.
(F) Seller hereby gives and grants to Purchaser and,
subject to the provisions of paragraph 22 of this Agreement, its successors and
assigns the exclusive right, privilege and continuing option (herein called the
"Club Cottages Parcel Lots Option"), upon the terms and conditions set forth in
this Agreement, to purchase, at any time and from time to time during the term
of the Club Cottages Parcel Lots Option, the Club Cottages Parcel Lots or any of
them, together with all improvements now or hereafter located on the Club
Cottages Parcel Lots, and together with all easements, appurtenances, rights,
privileges, reservations and hereditaments belonging to or pertaining to the
Club Cottages Parcel Lots, and all of the right, title and interest of Seller in
and to all streets, roads and rights-of-way adjacent to the Club Cottages Parcel
Lots.
(ii) The Existing Single-Family Lots Option, the Magnolia Drive
Parcel Lots Option, the Fifteenth Hole Parcel Lots Option, the Meadow Parcel-
Phase II Lots Option, the Meadow Parcel-Phase III Lots Option, the Meadow
Parcel-Phase IV Lots Option, the Area F Parcel Lots Option and the Club Cottages
Parcel Lots Option are herein together sometimes called the "Options" or
individually an "Option."
(iii) Each grant of the right, title and interest of Seller in
and to all streets, roads and rights-of-way adjacent to any Lot shall be non-
exclusive and subject to the rights of Seller and others to utilize same for
pedestrian and vehicular access and for the development of the Properties.
(c) Term.
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(i) Subject to the terms of the following subparagraph (ii):
(A) The Existing Single-Family Lots Option may be exercised
with respect to any Existing Single-Family Lot at any time and from time to time
during the period (the "Existing Single-Family Lots Option Period") commencing
on the Closing Date and ending on the date which is two (2) years after the
Closing Date.
(B) The Magnolia Drive Parcel Lots Option may be exercised
with respect to any Magnolia Drive Parcel Lot at any time and from time to time
during the period (the "Magnolia Drive Parcel Lots Option Period") commencing on
the Magnolia Drive Parcel Completion Date (hereinafter defined) and ending on
the date which is two (2) years after the Magnolia Drive Parcel Completion Date;
provided, however, that if Purchaser shall fail to deliver the Magnolia Drive
Parcel Development Notice, as defined below, to Seller by August 31, 1999, the
Magnolia Drive Parcel Lots Option will terminate on August 31, 1999.
(C) The Fifteenth Hole Parcel Lots Option may be exercised
with respect to any Fifteenth Hole Parcel Single-Family Lot at any time and from
time to time during the period (the "Fifteenth Hole Parcel Lots Option Period")
commencing on the Fifteenth Hole Parcel Completion Date (hereinafter defined)
and ending on the date which is two (2) years after the Fifteenth Hole Parcel
Completion Date; provided, however, that if Purchaser shall fail to deliver the
Fifteenth Hole Parcel Development Notice, as defined below, to Seller by August
31, 1999, the Fifteenth Hole Parcel Lots Option will terminate on August 31,
1999.
(D) (I) The Meadow Parcel-Phase II Lots Option may be
exercised with respect to any Meadow Parcel-Phase II Lot at any time and from
time to time during the period (the "Meadow Parcel-Phase II Lots Option Period")
commencing on the Meadow Parcel-Phase II Completion Date (hereinafter defined)
and ending on the date which is two (2) years after the Meadow Parcel-Phase II
Completion Date; provided, however, that if Purchaser shall fail to deliver the
Meadow Parcel-Phase II Notice, as defined below, to Seller by August 31, 1999,
the Meadow Parcel-Phase II Lots Option, the Meadow Parcel-Phase III Lots Option
and the Meadow Parcel-Phase IV Lots Option will terminate on August 31, 1999.
(II) The Meadow Parcel-Phase III Lots Option may be
exercised with respect to any Meadow Parcel-Phase III Lot at any time and from
time to time during the period (the "Meadow Parcel-Phase III Lots Option
Period") commencing on the Meadow Parcel-Phase III Completion Date (hereinafter
defined) and ending on the date which is two (2) years after the Meadow Parcel-
Phase III Completion Date; provided, however, that if Purchaser shall fail to
deliver the Meadow Parcel-Phase III Notice, as defined below, to Seller within
six (6) months after the first day on which Purchaser shall be entitled to
deliver the Meadow Parcel-Phase III Notice pursuant to the provisions of
subparagraph 9(b)(iii) of this Agreement, the Meadow Parcel-Phase III Lots
Option and the Meadow Parcel-Phase IV Lots Option will terminate on the date
which is six months after the first day on which Purchaser shall be entitled to
deliver the Meadow Parcel-Phase III Notice.
(III) The Meadow Parcel-Phase IV Lots Option may be
exercised with respect to any Meadow Parcel-Phase IV Lot at any time and from
time to time during the period (the "Meadow
Parcel-Phase IV Lots Option Period") commencing on the Meadow Parcel-Phase IV
Completion Date (hereinafter defined) and ending on the date which is two (2)
years after the Meadow Parcel-Phase IV Completion Date; provided, however, that
if Purchaser shall fail to deliver the Meadow Parcel-Phase IV Notice, as defined
below, to Seller within six (6) months after the first day on which Purchaser
shall be entitled to deliver the Meadow Parcel-Phase IV Notice pursuant to the
provisions of subparagraph 9(c)(iii) of this Agreement, the Meadow Parcel-Phase
IV Lots Option will terminate on the date which is six months after the first
day on which Purchaser shall be entitled to deliver the Meadow Parcel-Phase IV
Notice.
(E) The Area F Parcel Lots Option may be exercised with
respect to any Area F Parcel Lot at any time and from time to time during the
period (the "Area F Parcel Lots Option Period") commencing on the Area F Parcel
Completion Date (hereinafter defined) with respect to such Area F Parcel Lot and
ending on the date which is two (2) years after the Area F Parcel Completion
Date with respect to such Area F Parcel Lot; provided, however, that except for
the Area F Parcel Phase (hereinafter defined) in which is located the first Area
F Parcel Lot for which Purchaser exercises the Area F Parcel Lots Option, the
Area F Parcel Lots Option may be exercised in an Area F Parcel Phase only if at
least fifty percent (50%) of the Area F Parcel Lots located in each other Area F
Parcel Phase with respect to which Purchaser shall have exercised the Area F
Parcel Lots Option have been purchased by Purchaser; provided, however, that if
Purchaser shall fail to deliver the first Area F Parcel Notice, as defined
below, to Seller within six (6) months after the first day on which Purchaser
shall be entitled to deliver the first Area F Parcel Notice pursuant to the
provisions of subparagraph 9(d)(iii) of this Agreement, the Area F Parcel Lots
Option will terminate on the date which is six months after the first day on
which Purchaser shall be entitled to deliver the first Area F Parcel Notice.
(F) The Club Cottages Parcel Lots Option may be exercised
with respect to any Club Cottages Parcel Lot at any time and from time to time
during the period (the "Club Cottages Parcel Lots Option Period") commencing on
the Club Cottages Parcel Completion Date (hereinafter defined) with respect to
such Club Cottages Parcel Lot and ending on the date which is two (2) years
after the Club Cottages Parcel Completion Date with respect to such Club
Cottages Parcel Lot; provided, however, that if Purchaser shall fail to deliver
the first Club Cottages Parcel Notice, as defined below, to Seller by August 31,
2001, the Club Cottages Parcel Lots Option will terminate on August 31, 2001.
(ii) (A) Notwithstanding anything to the contrary contained in
the foregoing subparagraph 1(c)(i), in the event of the occurrence of a Non-
Monetary Termination Event (as hereinafter defined), Seller, at its option, may
elect to terminate the right of Purchaser to thereafter deliver any Development
Notice (hereinafter defined), it being understood and agreed that Seller, at its
option, may waive any Non-Monetary Termination Event; provided, that nothing in
this paragraph 1(c)(ii)(A) shall in any way modify, amend, void or terminate the
obligations of Seller and Purchaser pursuant to this Agreement with respect to a
Property or portion thereof with respect to which Purchaser shall have delivered
a Development Notice prior to a Non-Monetary Termination Event. A "Non-Monetary
Termination Event" shall mean a default by Purchaser in any of its obligations
under subparagraphs (a), (b), (c), (d) [unless such default shall have resulted
from Seller's failure or refusal to pay the amounts payable by Seller
thereunder], (e) [unless such default shall have resulted from Seller's failure
or refusal to pay the amounts payable by Seller thereunder], (f) [unless such
default shall have resulted from Seller's failure or refusal to pay the amounts
payable by Seller thereunder], (g) [unless such default shall have resulted from
Seller's failure or refusal to pay the amounts payable by Seller thereunder],
(h), (i), (j), (k) [other than a default in the payment of any sum, including
principal and interest, payable under the documents evidencing and securing the
Construction Loan, which payment default is a Monetary Termination Event under
subparagraph 1(c)(ii)(C) of this Agreement], (o), (p), (q), (r), (s), (t), (u)
or (v) of paragraph 15 of this Agreement, and the continuance of such default
for a period of thirty (30) days after the receipt by Purchaser of a written
notice from Seller setting forth such default; provided that if such default
cannot be cured within said 30-day period, but Purchaser has commenced to cure
such default and diligently prosecutes such cure to completion, Purchaser shall
have such additional time as shall be reasonably necessary to cure such default.
The rights of Seller under this paragraph 1(c)(i)(A) are in addition to and not
in limitation of any other right of Seller in this Agreement.
(B) (I) Notwithstanding anything to the contrary contained
in subparagraph 1(c)(i) above, and subject to the provisions of the following
subparagraph 1(c)(ii)(B)(II), in the event of the occurrence of a Paragraph 15A
Termination Event (as hereinafter defined), Seller, at its option, may elect to
terminate the right of Purchaser to thereafter deliver any Exercise Notice
(hereinafter defined) and/or any Development Notice, and/or may cease to perform
any work that Seller shall have commenced pursuant to the delivery of any
previously-delivered Development Notice; it being understood and agreed that
Seller, at its option, may waive any Xxxxxxxxx 00X Xxxxxxxxxxx Event. A
"Paragraph 15A Termination Event" shall mean the occurrence of a default by
Purchaser of any of its obligations under paragraph 15A of this Agreement. The
rights of Seller under this paragraph 1(c)(i)(B)(I) are in addition to and not
in limitation of any other right of Seller in this Agreement.
(II) In the event that Seller shall elect to exercise its
rights pursuant to the preceding subparagraph 1(c)(ii)(B)(I), then:
(a) Purchaser's obligations under paragraph 15A of
this Agreement shall survive such election, and Seller and Purchaser shall
close, in accordance with the provisions of the following paragraph
1(c)(ii)(B)(II)(b) and paragraph 21 of this Agreement, the purchase of the
following number of Lots within thirty (30) days after receipt by Purchaser from
Seller of a notice in which Seller elects to exercise its termination rights
under subparagraph 1(c)(ii)(B)(I) of this Agreement:
(1) if the 15A Termination Event shall have
occurred during the first 365 days after the Closing Date, such number of Lots
which, when aggregated with the number of Lots for which Seller shall have
received, from and after the Closing Date, payment of the purchase price and the
Xxxxxx Fees in accordance with the provisions of paragraph 21 of this Agreement,
shall permit the construction by Purchaser of thirty (30) Units;
(2) if the 15A Termination Event shall have
occurred during the second 365 days after the Closing Date, such number of Lots
which, when aggregated with the number of Lots for which Seller shall have
received, from and after the Closing Date, payment of the purchase price and the
Xxxxxx Fees in accordance with the provisions of paragraph 21 of this Agreement,
shall permit the construction by Purchaser of sixty-five (65) Units.
(b) (1) Within ten (10) days after receipt by
Purchaser from Seller of a notice in which Seller elects to exercise its
termination rights under subparagraph 1(c)(ii)(B)(I) of this Agreement,
Purchaser shall present a list of the Lots that Purchaser proposes to purchase
in order to satisfy Purchaser's obligations under subparagraph
1(c)(ii)(B)(II)(a) above [which number is the same number of Lots that is set
forth in paragraph 15A(a) of this Agreement] (the "15A Purchase List"). Seller
shall have the right, by written notice to Purchaser within ten (10) days after
receipt of the 15A Purchase List, to object to such 15A Purchase List; provided,
that if Seller shall not so object to the 15A Purchase List within said 10-day
period, Seller shall be deemed to have waived its right to so object.
(2) If Seller objects to the 15A Purchase
List, Seller may add any Lot that Seller owns to the 15A Purchase List, which
modified list is hereinafter referred to as the "Modified 15A Purchase List."
From the Modified 15A Purchase List, Purchaser shall first select the Lot that
has the lowest minimum release price on Exhibit L attached hereto; provided,
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that if more than one Lot has the lowest minimum release price on Exhibit L,
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Purchaser may select any of the Lots with the lowest minimum release price. For
the next Lot, if any, that Purchaser is required to purchase, Purchaser shall
select from the Modified 15A Purchase List the Lot that has the highest
minimum release price on Exhibit L; provided, that if more than one Lot has
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the highest minimum release price on Exhibit L, Purchaser may select any of
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the Lots with the highest minimum release price. With respect to additional Lots
that must be purchased by Purchaser as required under paragraph 15A of this
Agreement, Purchaser shall alternate between purchasing a Lot with the lowest,
and a Lot with the highest minimum release prices on the Modified 15A Purchase
List.
(3) Notwithstanding anything to the contrary
contained in this subparagraph 1(c)(ii)(B)(II), in no event shall Purchaser be
obligated to purchase any of the Existing Single-Family Lots listed on Exhibit
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GG attached hereto and made a part hereof.
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(c) Upon the consummation of the closings required
pursuant to subparagraph 1(c)(ii)(B)(II)(a)(1) or 1(c)(ii)(B)(II)(a)(2) above,
as the case may be, the 15A Termination Event shall be deemed to have been cured
in full, and the terms of this Agreement shall be reinstated and shall be in
full force and effect, and Purchaser shall have all of its rights under this
Agreement as if such 15A Termination Event shall not have occurred.
(C) (I) Notwithstanding anything to the contrary contained
in subparagraph 1(c)(i) above, and subject to the provisions of the following
subparagraph 1(c)(ii)(C)(II), in the event of the occurrence of a Monetary
Termination Event (as hereinafter defined), Seller, at its option, may elect to
terminate the right of Purchaser to thereafter deliver any Development Notice,
and may cease to perform any work that Seller shall have commenced pursuant to
the delivery of any previously-delivered Development Notice; it being understood
and agreed that Seller, at its option, may waive any Monetary Termination Event.
A "Monetary Termination Event" shall mean the occurrence of a default by
Purchaser in the payment of any money due to Seller or Xxxxxx pursuant to this
Agreement other than pursuant to paragraph 15A of this Agreement, and the
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continuance of such default for a period of thirty (30) days after the receipt
by Purchaser of a written notice from Seller specifying such default. The rights
of Seller under this paragraph 1(c)(i)(C)(I) are in addition to and not in
limitation of any other right of Seller in this Agreement.
(II) In the event that Seller shall exercise its rights
pursuant to the preceding subparagraph 1(c)(ii)(C)(I), then:
(a) Within ten days after the receipt by Purchaser
from Seller of a notice in which Seller elects to exercise its rights under
subparagraph 1(c)(ii)(C)(I) of this Agreement, Purchaser and Seller shall
prepare a list of all (1) Existing Single-Family Lots with respect to which
Purchaser shall not yet have exercised the Existing Single-Family Lots Option
and all (2) all Lots then zoned, platted and subdivided in accordance with
paragraphs 7, 8 and/or 9 of this Agreement (the "Finished Lots List").
(b) Purchaser may exercise Options and effect Lot
Closings with respect to Lots on the Finished Lots List within the Option
Periods (hereinafter defined) in accordance with the terms of this Agreement,
subject to the terms of paragraph 15A of this Agreement.
(iii) The Existing Single-Family Lots Option Period, the Magnolia
Drive Parcel Lots Option Period, the Fifteenth Hole Parcel Lots Option Period,
the Meadow Parcel Lots Option Period, the Area F Parcel Lots Option Period and
the Club Cottages Parcel Lots Option Period are herein together sometimes called
the "Option Periods" or individually an "Option Period."
(iv) The Magnolia Drive Parcel Development Notice (hereinafter
defined), the Fifteenth Hole Parcel Development Notice (hereinafter defined),
the Meadow Parcel-Phase II Notice (hereinafter defined), the Meadow Parcel-Phase
III Notice (hereinafter defined), the Meadow Parcel-Phase IV Notice (hereinafter
defined), the Area F Parcel Notice (hereinafter defined) and the Club Cottages
Parcel Notice (hereinafter defined) are herein together sometimes called the
"Development Notices" or individually a "Development Notice."
(d) Exercise. (i) In order to exercise an Option with respect to a Lot,
--------
Purchaser shall deliver a written notice (an "Exercise Notice") to Seller
during the Option Period relating to such Option, which Exercise Notice shall
identify the Lot with respect to which Purchaser is exercising an Option (an
"Exercised Lot").
(ii) An Option may be exercised and closed with
respect to any Lot without any requirement for the exercise and/or closing of
any Option with respect to any other Lot; and the expiration of
an Option without the exercise or closing of such Option with respect to all of
the Lots which are subject to such Option shall have no effect whatsoever on all
prior exercises of such Option. Nothing in this subparagraph (d)(i) shall
relieve Purchaser of its obligations to exercise Options in accordance with
paragraph 15A of this Agreement.
(e) Lot Closings. The closing (a "Lot Closing") of the purchase by
------------
Purchaser of an Exercised Lot shall take place upon the date (a "Lot Closing
Date") which is the earliest to occur of (i) one year after the date of receipt
by Seller of an Exercise Notice with respect to such Exercised Lot, or (ii) one
year after the date of execution of a Sale Agreement with respect to a Unit on
such Exercised Lot, or (iii) such date as may be fixed by Purchaser in a written
notice (a "Closing Notice") from Purchaser to Seller, provided that the date
fixed by Purchaser in a Closing Notice shall be not less than five (5) business
days after receipt by Seller of such Closing Notice.
(f) Purchase Price of an Exercised Lot.
----------------------------------
(i) For purposes of this Agreement:
(A) The term "Detached Unit Sale Agreement" shall mean an
agreement between Purchaser and a bona fide third-party buyer (a "Third-Party
Buyer") for the purchase by such Third-Party Buyer of a Single-Family Lot and a
Detached Unit located on such Single-Family Lot.
(B) The term "Detached Unit Package Price" shall mean the
sum of (I) (a) the base price for a Single-Family Lot and a Detached Unit
located on such Single-Family Lot, as set forth in the Detached Unit Sale
Agreement with respect to such Single-Family Lot and Detached Unit, less (b)
$10,000 [being the amount that is payable or shall have been paid to Xxxxxx
(hereinafter defined) pursuant to the Xxxxxx Agreements (hereinafter defined),
and less (c) any lot premium [including, without limitation, the Applicable
Single-Family Lot Golf Premium (hereinafter defined)], plus (II) the price of
all extras, upgrades and options, if any, relating to such Detached Unit that
are set forth in such Detached Unit Sale Agreement.
(C) The term "Tract Unit Sale Agreement" shall mean an
agreement between Purchaser and a Third-Party Buyer for the purchase by such
Third-Party Buyer of a Tract Unit.
(D) The Detached Unit Sale Agreements and the Tract Unit
Sale Agreements are herein together sometimes called the "Sale Agreements" or
individually a "Sale Agreement."
(E) The term "Tract Unit Package Price" shall mean the sum
of (I) (a) the base price for a Tract Unit, as set forth in the Tract Unit Sale
Agreement with respect to such Tract Unit, less (b) $10,000 (being the amount
that is payable or shall have been paid to Xxxxxx pursuant to the Xxxxxx
Agreements), and less (c) any lot premium [including, without limitation, the
Applicable Tract Lot Golf Premium (hereinafter defined)], plus (II) the price of
all extras, upgrades and options, if any, relating to such Tract Unit that are
set forth in such Tract Unit Sale Agreement.
(ii) The purchase price payable by Purchaser to Seller for an
Exercised Lot shall be as follows:
(A) If such Exercised Lot is a Single-Family Lot, then the
purchase price for such Exercised Lot shall be the sum of (I) fourteen percent
(14%) of the Detached Unit Package Price of such Exercised Lot and the Detached
Unit located thereon, as set forth in the Detached Unit Sale Agreement, if any,
for such Exercised Lot, plus (II) if such Exercised Lot is located directly
adjacent to the Club at Longleaf golf course (such an Exercised Lot being herein
sometimes called a "Golf Course Lot"), twenty thousand dollars ($20,000) (the
"Applicable Single-Family Lot Golf Premium"); it being understood and agreed
that the lot premium, if any, in excess of twenty thousand dollars for a Golf
Course Lot shall be the sole and absolute property of Purchaser, and that
all of the lot premium, if any, set forth in a Detached Unit Sale Agreement with
respect to a Single-Family Lot that is not a Golf Course Lot shall be the sole
and absolute property of Purchaser.
(B) If such Exercised Lot is a Tract Lot, then the purchase
price for such Exercised Lot shall be the sum of (I) fourteen percent (14%) of
the aggregate of the Tract Unit Package Prices of all of the Tract Units to be
constructed by Purchaser on such Exercised Lot, as set forth in the Tract Unit
Sale Agreements, if any, for the Tract Units to be constructed on such Exercised
Lot, plus (II) the Applicable Tract Lot Golf Premium (hereinafter defined), if
any, regarding such Tract Lot. For purposes of this Agreement, the term
"Applicable Tract Lot Golf Premium" shall mean such portion of the premiums, if
any, set forth in the Tract Unit Sale Agreements with respect to Tract Units to
be located on Meadow Parcel-Phase III Lots (hereinafter defined) that are
directly adjacent to the Club at Longleaf golf course or on Meadow Parcel-Phase
IV Lots (hereinafter defined) that are directly adjacent to the Club at Longleaf
golf course as shall be agreed upon by Seller and Purchaser, it being understood
and agreed that the lot premium, if any, in excess of the agreed-upon portion of
the premium for any of said Tract Units shall be the sole and absolute property
of Purchaser; provided that in any event, the Applicable Tract Lot Golf Premium
for a Tract Lot shall not exceed the product of five thousand dollars and the
number of Tract Units to be constructed on such Tract Lot.
(g) Xxxxxx Fees. (i) Subject to the provisions of the following
-----------
subparagraph (ii), at the Lot Closing of an Exercised Lot, Purchaser, in
addition to paying to Seller the purchase price for such Exercised Lot, shall
cause to be paid to Xxxxxx (or to Seller if Seller, pursuant to the terms of the
Xxxxxx Agreement, shall have already paid to Xxxxxx) the following amount,
unless said amount shall have already been paid by Purchaser:
(A) With respect to a Single-Family Lot, ten thousand
dollars ($10,000); and
(B) With respect to a Tract Lot, an amount equal to the
product of (I) ten thousand dollars ($10,000) and (II) the number of Tract Units
to be constructed by Purchaser on such Tract Lot.
(ii) Notwithstanding anything to the contrary contained in the
foregoing subparagraph (i), Seller will pay to Xxxxxx all amounts payable under
the Xxxxxx Agreements with respect to the Lots described in Exhibit M attached
---------
hereto and made a part hereof.
(h) Option Memorandum. At the Closing (hereinafter defined), Seller
-----------------
and Purchaser shall execute, deliver and record in the Office of the Register of
Deeds of Xxxxx County, North Carolina (the "Recorder's Office") a memorandum of
the Option (the "Option Memorandum"), in the form attached hereto as Exhibit N.
---------
(i) Cost of the Options. In consideration of the Options, Purchaser,
-------------------
concurrently with the execution of this Agreement, has paid to Seller the sum of
one thousand dollars ($1,000), the receipt of which is hereby acknowledged by
Seller.
2. Sale and Encumbrance of a Lot, and Construction on a Lot, Prior to a
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Lot Closing. Notwithstanding anything to the contrary contained in this
-----------
Agreement:
(a) Purchaser's Rights.
------------------
(i) During the respective Option Periods relating to the Single-
Family Lots, Purchaser shall have the following rights with respect to each
Single-Family Lot:
(A) the right, whether or not Purchaser shall have
exercised its Option with respect to a Single-Family Lot, to enter into a
Detached Unit Sale Agreement with a Third-Party Buyer with respect to such
Single-Family Lot [a copy of which Detached Unit Sale Agreement shall be
delivered by Purchaser to Seller within ten (10) business days after the
execution of such Detached Unit Sale Agreement by both parties thereto], and
receipt of such copy of such Detached Unit Sale Agreement by Seller shall be
deemed to be receipt of an Exercise Notice with respect to the Single-Family Lot
which is the subject of such Detached Unit Sale Agreement; and
(B) if Purchaser shall have exercised its Option with
respect to a Single-Family Lot, the right to (I) commence construction of a
Detached Unit on such Single-Family Lot, (II) borrow money for the construction
of a Detached Unit on such Single-Family Lot, (III) require Seller to (and
Seller agrees to) execute and deliver, and to cause to be executed and
delivered, such documents (including, without limitation, subordinations of
recorded deeds of trust affecting such Single-Family Lot) as shall be required
to cause such Single-Family Lot and the Detached Unit to be constructed on such
Single-Family Lot to be encumbered by a first lien to secure a loan made to
Purchaser pursuant to the Construction Loan, as defined below, to construct a
Detached Unit on such Single-Family Lot, and (IV) require Seller to (and Seller
agrees to) execute and deliver such documents as shall be required to subject
such Single-Family Lot and Detached Unit to mechanics' liens in favor of
Purchaser's contractors with respect to the construction by Purchaser of a
Detached Unit on such Single-Family Lot; provided, however, that Seller shall
not be required to incur any expense or personal liability with respect to the
matters described in the foregoing subparagraphs (I) through (IV).
(ii) During the respective Option Periods relating to the Tract
Lots, Purchaser shall have the following rights with respect to each Tract Lot:
(A) the right, whether or not Purchaser shall have
exercised its Option with respect to a Tract Lot, to enter into Tract Unit Sale
Agreements with Third-Party Buyers with respect to Tract Units on such Tract Lot
[a copy of which Tract Unit Sale Agreements shall be delivered by Purchaser to
Seller within ten (10) business days after the execution of such Tract Unit Sale
Agreements by both parties thereto], and receipt by Seller of a copy of the
first Tract Unit Sale Agreement received by Seller with respect to a Tract Lot
shall be deemed to be receipt of an Exercise Notice with respect to such Tract
Lot; and
(B) if Purchaser shall have exercised its Option with
respect to a Tract Lot, the right to (I) commence construction of Tract Units on
such Tract Lot, (II) borrow money for the construction of Tract Units on such
Tract Lot,(III) require Seller to (and Seller agrees to) execute and deliver,
and to cause to be executed and delivered, such documents (including, without
limitation, subordinations of recorded deeds of trust affecting such Tract Lot)
as shall be required to cause such Tract Lot and the Tract Units to be
constructed on such Tract Lot to be encumbered by a first lien to secure a loan
made to Purchaser pursuant to the Construction Loan to construct Tract Units on
such Tract Lot, and (IV) require Seller to (and Seller agrees to) execute and
deliver such documents as shall be required to subject such Tract Lot and Tract
Units to mechanics' liens in favor of Purchaser's contractors with respect to
the construction by Purchaser of Tract Units on such Tract Lot; provided,
however, that Seller shall not be required to incur any personal expense or
liability with respect to the matters described in the foregoing subparagraphs
(I) through (IV).
(b) No Interest. Except as specifically set forth in this Agreement
-----------
or as set forth in any construction or permanent loan document encumbering a
Unit, or in Seller's Subordinate Deed of Trust, as defined below, Seller shall
have no right, title or interest in any Unit, or any right to sell any Unit.
(c) Terms of Sale Agreements.
------------------------
(i) All terms and conditions of all Sale Agreements shall be
determined by Purchaser, in its sole and absolute discretion; provided that, all
Sale Agreements shall include a statement that Seller is not the seller under
such Sale Agreements, that Seller is not a member of Purchaser, that Seller does
not warrant the quality of Units constructed by Purchaser, and that Seller does
not bear any liability to any Third-Party Buyer in connection with the sale, use
or occupancy of any Unit.
(ii) Purchaser shall have the right, in its sole and absolute
discretion, for any reason whatsoever, to reject any offer of a third party to
purchase a Lot or a Lot and a Unit; provided, however, that in no
event shall Purchaser violate any applicable federal, state, county or local
anti-discrimination law, ordinance, code, rule or regulation.
(iii) Seller shall not have the authority to enter into, and
shall not enter into, any agreement on behalf of Purchaser with respect to any
Lot or the construction of a Unit on any Lot; and no agreement which Seller
purports to execute on behalf of Purchaser shall be binding upon Purchaser.
(d) Terms of Construction Loan Made to Purchaser. The terms and
--------------------------------------------
provisions of the construction loan to be made to Purchaser in connection with
the construction of Units on the Properties (the "Construction Loan") shall be
in form and substance reasonably acceptable to Purchaser and Seller; provided
that, in any event, the terms and provisions of the Construction Loan shall,
inter alia, impose no personal liability upon Seller for the failure of
----------
Purchaser to repay the Construction Loan or perform any obligations of Purchaser
with respect to the Construction Loan; impose no liability upon Seller to pay
any expenses with respect to the Construction Loan; require the lender under the
Construction Loan to give written notice to Seller of any default by Purchaser
under the Construction Loan; permit Seller to cure any defaults of Purchaser
under the Construction Loan; entitle Seller to purchase the Construction Loan
from the lender at par; and permit Seller to encumber Lots encumbered by the
Construction Loan with a junior deed of trust securing payment of the purchase
price for such Lots and the Xxxxxx Fees payable in connection with such Lots
("Seller's Subordinate Deed of Trust").
3. Conditions Precedent to Purchaser's Performance.
-----------------------------------------------
(a) In addition to any other conditions precedent set forth in this
Agreement to the obligations of Purchaser under this Agreement, the parties
hereto hereby agree that the obligations of Purchaser under the terms of this
Agreement are subject to the satisfaction of all of the following conditions
precedent as of one hundred twenty (120) days after the Closing Date
(hereinafter defined):
(i) the Construction Loan shall have closed, and the lender of
the Construction Loan shall be prepared to disburse the proceeds of the
Construction Loan to Purchaser;
(ii) all persons, including, without limitation, Seller, whose
approval, in the reasonable judgment of Purchaser shall be required, shall have
approved in writing of (A) the terms and conditions of the Construction Loan,
and (B) the documents evidencing and securing the Construction Loan;
(iii) all persons, including, without limitation, Seller, whose
approval, in the reasonable judgment of Purchaser shall be required, shall have
delivered written approvals of all items with respect to which such persons'
approval is required under the terms of the documents evidencing and securing
the Construction Loan; and
(iv) all persons, including, without limitation, Seller, all
homeowners' associations, all condominium associations, the declarants under all
recorded homeowners' and condominium declarations, and the owner of the private
roadways (the "Private Roadways") in the Development that provide access to and
from the Properties and dedicated public rights-of-way, whose authorization, in
the reasonable judgment of Purchaser, shall be required, shall have (A)
irrevocably authorized in writing the grant of an irrevocable easement (the
"Private Roadway Easement"), in form and substance reasonably acceptable to
Purchaser and Seller, for the benefit of Purchaser, over the Private Roadways
for the purposes of ingress and egress and movement of personnel, equipment, and
materials to and from any of the Properties during such times as Purchaser shall
engage in the development of any of the Properties, and (B) delivered the
Private Roadway Easement, in recordable form, to Purchaser; and, for purposes of
this Agreement, the Private Roadways shall include, without limitation, all of
the following roadways on the Development, unless such roadways shall have
become dedicated public rights-of-way: Meadow Parcel Roadway I (hereinafter
defined), and the roadways providing access to the existing improvements which
are subject to the Club Cottages Declaration (hereinafter defined.
Purchaser shall use its best efforts to satisfy the conditions precedent in this
paragraph 3(a).
(b) In addition to any other conditions precedent set forth in this
Agreement to the obligations of Purchaser under this Agreement, the parties
hereto hereby agree that the obligations of Purchaser under the terms of this
Agreement are subject to the satisfaction of all of the following conditions
precedent as of the Closing Date:
(i) Intentionally Omitted
(ii) all persons, including, without limitation, Seller, all
homeowners' associations, all condominium associations, the declarants under all
recorded homeowners' and condominium declarations, and the owner of the Private
Roadways (hereinafter defined), whose authorization, in the reasonable judgment
of Purchaser, shall be required, shall have irrevocably, in writing, authorized
Purchaser and its agents, employees, affiliates, contractors and subcontractors
to construct, maintain and operate such facilities and structures, and to
conduct such activities, as Purchaser shall determine are necessary, convenient
or incidental to the construction, improvement, completion and sale of Units and
related improvements on the Properties, including, without limitation, the
construction, maintenance and operation of sales and construction trailers and
offices, signs and model units, and the right to use Units as model residences,
for offices for the sale of Units, and for related activities;
(iii) all persons, including, without limitation, Seller, all
homeowners' associations, all condominium associations, the declarants under all
recorded homeowners' and condominium declarations, and the owner of the Private
Roadways, whose approval, in the reasonable judgment of Purchaser, shall be
required, shall have irrevocably approved in writing (A) all sales and
construction activities of Purchaser and its agents, employees, affiliates,
representatives, contractors and subcontractors in connection with the
Properties; (B) all signs and advertising posters which Purchaser and its
agents, employees, affiliates, representatives, contractors and subcontractors
intend to use in connection with the development of the Properties; (C) the non-
exclusive use by Purchaser and its agents, employees, affiliates and
representatives of the names "Longleaf" and the "Club at Longleaf" in connection
with the marketing and sale by Purchaser of Units on the Properties; (D) the
recordation with respect to such portions of the Properties as Purchaser shall
desire of condominium declarations, homeowners' declarations, or declarations of
covenants, conditions and restrictions reasonably necessary to develop Units;
and (E) the placement and location within the Development of all utilities,
service lines and all appurtenances thereto necessary in order for Purchaser to
develop the Properties;
(iv) (A) Seller shall have obtained the Xxxxxx Amendment
(hereinafter defined);
(B) the following agreements (herein together sometimes
called the "Xxxxxx Agreements") shall be in full force and effect, and, except
as set forth in the Xxxxxx Amendment, shall not have been modified, amended or
changed in any way that is material and adverse to the rights of Purchaser under
this Agreement, or terminated, without the prior written consent of Purchaser:
(I) that certain Restated Contract (the "Restated
Contract"), dated March 23, 1990, between Seller and Xxxxxx Properties, Inc., a
North Carolina corporation ("Xxxxxx"), as amended by that certain First
Amendment to Restated Contract (the "Xxxxxx Modification"), dated January 1,
1991, between Seller and Xxxxxx (the Restated Contract, as amended by the Xxxxxx
Modification, being herein sometimes called the "Xxxxxx Contract");
(II) that certain Declaration (the "Golf Club
Declaration"), dated March 23, 1990, by and between Seller and Xxxxxx, recorded
with the Recorder's Office on May 8, 1990 in book 719 at page 30; and
(III) that certain Easement of Enjoyment (the "Easement
of Enjoyment"), dated March 23, 1990, between Seller and Xxxxxx, recorded with
the Recorder's Office on May 8, 1990 in book 719 at page 85; and
(IV) the rules and regulations (the "Golf Club
Rules"), dated October 22, 1992, of the Club at Longleaf;
(C) no event of default shall exist under any of the Xxxxxx
Agreements, as modified by the Xxxxxx Amendment; and no event shall have
occurred which, with the passage of time or the giving of notice or both, would
constitute an event of default under any of the Xxxxxx Agreements, as modified
by the Xxxxxx Amendment;
(D) all rights of Seller under the Xxxxxx Agreements, as
modified by the Xxxxxx Amendment, shall be available to Purchaser;
(E) Purchaser shall have the right, under the Easement of
Enjoyment, to convey not less than three hundred nineteen (319) easements of
enjoyment to purchasers of Units in the Development; and
(v) the Properties shall be free and clear of any mortgages,
deeds of trust, liens or encumbrances other than the Acceptable Option Title
Exceptions.
(c) In addition to any other conditions precedent set forth in this
Agreement to the obligations of Purchaser under this Agreement, the parties
hereto hereby agree that the obligations of Purchaser under the terms of this
Agreement are subject to the satisfaction of the following condition precedent
as of forty-five days after the Closing Date: Provided that Purchaser shall have
delivered to Seller, not more than thirty (30) days after the Effective Date,
designs of the improvements (the "Proposed Improvements"), including Unit types,
which Purchaser desires to construct on the Lots, all persons, including,
without limitation, Seller, all homeowners' associations, all condominium
associations, the declarants under all recorded homeowners' and condominium
declarations, and all architectural review committees, whose approval is
required with respect to the Proposed Improvements shall have delivered to
Purchaser their irrevocable written approvals (other than building permits)
(together the "Design Approvals") of the Proposed Improvements.
(d) In addition to any other conditions precedent set forth in this
Agreement to the obligations of Purchaser under this Agreement, the parties
hereto hereby agree that the obligations of Purchaser under the terms of this
Agreement are subject to the satisfaction of the following condition precedent
within ten (10) days after the Closing Date: The owner of the Sales Center
(hereinafter defined), Seller and Purchaser shall have entered into a written
agreement (the "Sales Center Agreement"), in form and substance reasonably
acceptable to Seller and Purchaser, for the use by Purchaser of the Sales Center
in connection with the marketing and sale by Purchaser of Units and of the
Properties and of the Seller's Lots (hereinafter defined).
(e) In the event that any condition precedent to Purchaser's
obligations under this Agreement, including, without limitation, any condition
precedent set forth in the foregoing subparagraphs 3(a), 3(b), 3(c) or 3(d)
shall not be timely satisfied in accordance with the terms of this Agreement,
Purchaser shall give to Seller written notice reasonably describing the
condition precedent which shall not have been timely satisfied by Seller in
accordance with the terms of this Agreement. Seller shall have thirty (30) days
from the receipt of such written notice to satisfy any condition precedent not
satisfied. If, at the end of such thirty (30) day period, Seller shall have
failed to satisfy such condition precedent, Purchaser may, at its election,
either waive any such unsatisfied condition precedent, or terminate this
Agreement; and, in the event Purchaser elects to terminate this Agreement, this
Agreement shall become null and void, and the parties hereto shall have no
further rights, obligations or liabilities under this Agreement [other than the
obligations of Seller under subparagraphs 11(a), 18(b), 19(b) and 20(b) of this
Agreement and the obligations of Purchaser under subparagraphs 11(b), 12(b),
18(d) and 19(c) of this Agreement].
(f) Purchaser shall notify Seller in writing of the persons whose
approval or authorization, in the reasonable judgment of Purchaser, is required
under the provisions of subparagraphs 3(a) and 3(b) above. If
Purchaser shall not so identify such persons, Seller shall reasonably determine
which persons' approvals and authorizations are required under said
subparagraphs.
4. Conditions Precedent to Seller's Performance.
--------------------------------------------
(a) In addition to any other conditions precedent set forth in this
Agreement to the obligations of Seller under this Agreement, the parties hereto
hereby agree that the obligations of Seller under the terms of this Agreement
are subject to the satisfaction of all of the following conditions precedent as
of the Closing Date:
(i) Seller shall have obtained from Xxxxxx an amendment to the
Xxxxxx Contract (the "Xxxxxx Amendment") mutually acceptable to Seller and
Purchaser clarifying that:
(A) No transfer fee is due to Xxxxxx in connection with the
sale of a Unit by Purchaser to a Third-Party Buyer if a deed for such Unit
and/or the property upon which such Unit is located shall have been previously
delivered by Seller to Purchaser;
(B) No dues or fees are payable by Purchaser to Xxxxxx with
respect to a Unit during the period that Purchaser owns such Unit if Purchaser
shall relinquish its rights, as the owner of such Unit (but not of any other
Unit), to use the Golf Course Facilities during such time as Purchaser owns such
Unit; and
(ii) Purchaser shall have performed all of its obligations under
the terms of the Interim Agreement, dated April 2, 1998, by and between Seller
and Purchaser, as amended, a copy of which Interim Agreement is attached hereto
as Exhibit O and made a part hereof.
---------
(b) In addition to any other conditions precedent set forth in this
Agreement to the obligations of Seller under this Agreement, the parties hereto
hereby agree that the obligations of Seller under the terms of this Agreement
are subject to the satisfaction of the following condition precedent: Whichever
affiliate of Purchaser will act as the general contractor for Purchaser in
connection with the construction of the Units shall be duly licensed and in good
standing under the laws of the State of North Carolina at the time of
performance of its duties as such general contractor.
(c) In the event that any condition precedent to Seller"s obligations
under this Agreement, including, without limitation, any condition precedent set
forth in the foregoing subparagraph 4(a), shall not be timely satisfied in
accordance with the terms of this Agreement, Seller shall give to Purchaser
written notice reasonably describing the condition precedent which shall not
have been timely satisfied by Purchaser in accordance with the terms of this
Agreement. Purchaser shall have thirty (30) days from the receipt of such
written notice to satisfy any condition precedent not satisfied. If, at the end
of such thirty (30) day period, Purchaser shall have failed to satisfy such
condition precedent, Seller may, at its election, either waive any such
unsatisfied condition precedent, or terminate this Agreement; and, in the event
Seller elects to terminate this Agreement, this Agreement shall become null and
void, and the parties hereto shall have no further rights, obligations or
liabilities under this Agreement [other than the obligations of Seller under
paragraphs 11(a), 18(b), 19(b) and 20(b) of this Agreement and the obligations
of Purchaser under paragraphs 11(b), 12(b), 18(d) and 19(c) of this Agreement].
5. Title Insurance at Closing.
--------------------------
(a) (i) At the Closing, Seller, at its sole cost and expense, shall
deliver to Purchaser an owner's ALTA form B title insurance policy (the "Option
Policy"), issued by Chicago Title Insurance Company (the "Title Insurer"), in
the amount of Seven Million Two Hundred Seventy-Five Thousand dollars
($7,275,000), covering title to the Properties, showing Purchaser as the insured
under the Options, showing title to the Properties in Seller subject only to the
title exceptions shown on Exhibit P attached hereto and made a part hereof
---------
(together the "Acceptable Option Title Exceptions") and the Option Memorandum;
containing extended coverage over general exceptions 1 through 5 contained
therein; containing an endorsement that each of the Existing Single-Family Lots
has been legally
subdivided and platted; containing an ALTA 3.0 zoning endorsement insuring that
a Detached Unit can be constructed on each of the Existing Single-Family Lots;
containing an endorsement that each of the Existing Single-Family Lots has
unrestricted access to and from dedicated public rights-of-way; and containing
an ALTA 3.0 zoning endorsement that each of the Magnolia Drive Parcel, the
Fifteenth Hole Parcel, and each of the Undeveloped Multi-Family Tracts is zoned
for residential use for single-family dwellings and/or multi-family dwellings;
and containing an endorsement that the Magnolia Drive Parcel has unrestricted
access to and from, and unrestricted use for pedestrian and vehicular ingress
and egress of, dedicated public rights-of way; and containing an endorsement
that the Fifteenth Hole Parcel and each of the Undeveloped Multi-Family Tracts
has unrestricted access to and from dedicated public rights-of way; and
containing an endorsement that any conveyance, sale, assignment, transfer, lien,
pledge, mortgage, security interest or other encumbrance or alienation by Seller
of any of the Properties or any part thereof or any interest therein to any
person other than Purchaser will be subject and subordinate to the right, title
and interest of Purchaser under the Options; and containing an endorsement that
each owner of a Unit shall have an easement of enjoyment under the Easement of
Enjoyment to use the Golf Course Facilities (hereinafter defined) so long as
such owner is a member in good standing of the golf club provided for in the
Golf Club Declaration; and containing an endorsement that neither of the Golf
Club Declaration nor the Easement of Enjoyment can be unilaterally modified,
amended or revoked by Xxxxxx; and containing an endorsement that the Golf Course
Facilities must be used in perpetuity as a golf club with related amenities.
(ii) For purposes of this Agreement, where an endorsement to a
title policy insures that a Lot has unrestricted access to and from a dedicated
right-of-way or a Private Roadway, such access shall be deemed to be for
vehicular and pedestrian access normally associated with the uses contemplated
under this Agreement, including, but not limited to, access for construction and
maintenance purposes.
(iii) Whenever in this Agreement Seller is obligated to deliver
any form of title policy deleting general exceptions 1 through 5, Seller shall
not be obligated to obtain a new survey to remove a survey exception, whether as
a general exception or otherwise.
(b) If, on the Closing Date, the Title Insurer shall not be prepared
to deliver to Purchaser the Option Policy, then Seller shall have a period of
thirty (30) days after the Closing Date to cause Seller to issue the Option
Policy, and the Closing Date shall be extended for such period; and if, at the
end of such 30-day period, the Title Insurer shall not be prepared to issue the
Option Policy, Purchaser shall have the right to terminate this Agreement, in
which case the parties hereto shall have no further rights, obligations or
liabilities under this Agreement [other than the obligations of Seller under
paragraphs 11(a), 18(b) and 19(b) and 20(b) of this Agreement and the
obligations of Purchaser under paragraphs 11(b), 12(b) and 18(d) and 19(c) of
this Agreement].
6. Conveyance. Seller shall convey the Lots to Purchaser by special
----------
warranty deeds in the form attached hereto as Exhibit Q and made a part hereof,
---------
which deed shall contain, inter alia, a grant of an easement of enjoyment in
----- ----
favor of the Lots pursuant to the Easement of Enjoyment with respect to the Golf
Course Facilities.
7. Zoning, Platting and Subdivision of the Magnolia Drive Parcel.
-------------------------------------------------------------
(a) For purposes of this Agreement, the following terms shall have the
following meanings:
(i) "Magnolia Drive Parcel Development Notice" shall mean a
written notice from Purchaser to Seller requesting the subdivision and platting
by Seller of the Magnolia Drive Parcel.
(ii) "Magnolia Drive Parcel Lots" shall mean the lots to be
created by the subdivision and platting of the Magnolia Drive Parcel in
accordance with the Magnolia Drive Parcel Site Plan (hereinafter defined).
(iii) "Magnolia Park Declaration" shall mean that certain Longleaf
Magnolia Park Declaration of Covenants, Conditions and Restrictions, dated
January 9, 1995, made by Seller, recorded with the
Recorder's Office in book 1059 at page 186, as amended by the First Amendment
Longleaf Magnolia Park Declaration of Covenants, Conditions and Restrictions,
dated October 1, 1996, made by Seller, recorded with the Recorder's Office in
book 1248 at page 328.
(iv) "Magnolia Drive Parcel Development Notice Date" shall mean
the date of the giving of the Magnolia Drive Parcel Development Notice.
(b) Within fifteen (15) days after the Magnolia Drive Parcel
Development Notice Date, Purchaser and Seller shall agree upon a final site plan
(the "Magnolia Drive Parcel Site Plan") for the Magnolia Drive Parcel. The date
of agreement by Purchaser and Seller to the Magnolia Drive Parcel Site Plan is
herein sometimes called the "Magnolia Drive Parcel Site Plan Date."
(c) Within sixty (60) days after the Magnolia Drive Parcel Site Plan
Date, Seller will deliver to Purchaser plans and plats (together the "Magnolia
Drive Parcel Plans") for the development of the Magnolia Drive Parcel in
accordance with the Magnolia Drive Parcel Site Plan; provided, that in the
event, within forty-five (45) days after the Magnolia Drive Parcel Site Plan
Date, Seller shall deliver written notice to Purchaser requesting additional
time to prepare the Magnolia Drive Parcel Plans, Seller shall be entitled to
extend the delivery period by thirty (30) days. The period within which the
Magnolia Drive Parcel Plans must be delivered to Purchaser is herein called the
"Magnolia Drive Parcel Plan Delivery Period."
(d) (i) For purposes of this Agreement, the "Magnolia Drive Parcel
Completion Date" shall mean the earliest to occur of (A) one hundred twenty
(120) days after the date of delivery of the Magnolia Drive Parcel Plans, or (B)
one hundred twenty (120) days after the expiration of the Magnolia Drive Parcel
Plan Delivery Period, or (C) the date of completion of all of the conditions set
forth in the following subparagraph (ii).
(ii) Within one hundred twenty (120) days after the earlier to
occur of the date of delivery of the Magnolia Drive Parcel Plans or the
expiration of the Magnolia Drive Parcel Plan Delivery Period, Seller, at its
sole cost and expense, shall cause:
(A) all governmental authorities having jurisdiction over the
development of the Magnolia Drive Parcel to approve the Magnolia Drive Parcel
Site Plan;
(B) the Magnolia Drive Parcel to be subdivided and platted
in accordance with the Magnolia Drive Parcel Site Plan;
(C) the zoning of the Magnolia Drive Parcel to permit the
construction on each of the Magnolia Drive Parcel Lots of a detached single-
family dwelling unit of a size at least as large as the minimum size permitted
by the Magnolia Park Declaration;
(D) the amendment of the Magnolia Park Declaration by an
amendment, in form and substance reasonably acceptable to Purchaser and Seller,
that submits the Magnolia Drive Parcel Lots to the provisions of the Magnolia
Park Declaration, and that ensures that the owners of the Magnolia Drive Parcel
Lots have the same rights and obligations as the owners of all of the other lots
which are subject to the Magnolia Park Declaration;
(E) the taking of such actions, in addition to those
described in the preceding subparagraph (D), as shall be necessary to grant to
the owners of the Magnolia Drive Parcel Lots unrestricted access to and from,
and unrestricted use for pedestrian and vehicular ingress and egress of, the
Private Roadways (including, without limitation, Magnolia Drive), and
unrestricted access to and from the Private Roadways (including, without
limitation, Magnolia Drive) and dedicated public rights-of-way (including,
without limitation, Xxxxx Road);
(F) the delivery to Purchaser of (I) a copy of the recorded
plat of subdivision of the Magnolia Drive Parcel into the Magnolia Drive Parcel
Lots, and (II) copies of all approvals, consents and authorizations of all
governmental entities having jurisdiction over the Magnolia Drive Parcel to (a)
the subdivision of the Magnolia Drive Parcel into the Magnolia Drive Parcel Lots
and (b) the Magnolia Drive Parcel Site Plan;
(G) the delivery to Purchaser of a copy of all ordinances,
approvals, consents and authorizations of all governmental entities having
jurisdiction over the Magnolia Drive Parcel to the zoning of each of the
Magnolia Drive Parcel Lots for the construction thereon of a detached single-
family dwelling unit of a size at least as large as the minimum size permitted
by the Magnolia Park Declaration; and
(H) the delivery to Purchaser of an endorsement (the
"Magnolia Drive Parcel Endorsement") to the Option Policy, later-dating the
Option Policy to a date after the effectuation of the subdivision, platting and
zoning requirements with respect to the Magnolia Drive Parcel set forth above in
this paragraph 7, and containing no changes to the Option Policy other than (I)
the substitution of the Magnolia Drive Parcel Lots for the Magnolia Drive Parcel
on Schedule A of the Option Policy, (II) the changes permitted by the Fifteenth
Hole Parcel Endorsement (hereinafter defined), (III) the changes permitted by
the Meadow Parcel-Phase II Endorsement (hereinafter defined), (IV) the changes
permitted by the Meadow Parcel-Phase III Endorsement (hereinafter defined), (V)
the changes permitted by the Meadow Parcel-Phase IV Endorsement (hereinafter
defined), (VI) the changes permitted by the Area F Parcel Endorsements
(hereinafter defined), (VI) the changes permitted by the Club Cottages Parcel
Endorsements (hereinafter defined), (VIII) the deletion from Schedule A of the
Option Policy of any Lots which have been conveyed to Purchaser, (IX) the
addition of an endorsement insuring that each of the Magnolia Drive Parcel Lots
has been legally subdivided and platted, (X) the addition of an ALTA 3.0 zoning
endorsement insuring that a detached single-family dwelling unit of a size at
least as large as the minimum size permitted by the Magnolia Park Declaration
can be constructed on each of the Magnolia Drive Parcel Lots, and (XI) the
addition of an endorsement insuring that each of the Magnolia Drive Parcel Lots
has unrestricted access to and from, and unrestricted use for pedestrian and
vehicular ingress and egress of, dedicated public rights-of-way (including,
without limitation, Magnolia Drive and Xxxxx Road).
(e) Within seventy-five (75) days after the Magnolia Drive Parcel
Completion Date, Seller shall commence, and within one hundred twenty (120) days
after the date of such commencement, Seller, at its sole cost and expense, shall
complete, all such actions as shall be necessary to make sanitary sewer, storm
sewer, water, electrical, gas, telephone and cable television systems and
facilities available at the boundary of each of the Magnolia Drive Parcel Lots.
8. Zoning, Platting and Subdivision of the Fifteenth Hole Parcel.
-------------------------------------------------------------
(a) For purposes of this Agreement, the following terms shall have the
following meanings:
(i) "Fifteenth Hole Parcel Development Notice" shall mean a
written notice from Purchaser to Seller requesting the subdivision and platting
by Seller of the Fifteenth Hole Parcel, which notice may request that Seller
submit the Fifteenth Hole Single-Family Lots (hereinafter defined), if any,
requested in the notice to the terms and provisions of the Patio Homes "G"
Declaration (hereinafter defined).
(ii) "Fifteenth Hole Parcel Single-Family Lots" shall mean the
single-family residential lots to be created by the subdivision and platting of
the Fifteenth Hole Parcel in accordance with the Fifteenth Hole Parcel Site Plan
(hereinafter defined).
(iii) "Fifteenth Hole Parcel Accessways" shall mean the roadways
to be created by the subdivision and platting of the Fifteenth Hole Parcel in
accordance with the Fifteenth Hole Parcel Site Plan.
(iv) "Patio Homes 'G' Declaration" shall mean that certain
Longleaf Patio Homes "G" Declaration of Covenants, Conditions and Restrictions,
dated January 24, 1994, made by Seller, recorded in the
Recorder's Office on February 3, 1994 in book 977 at page 318, as amended by the
First Amendment to Declaration of Covenants, Conditions and Restrictions of
Longleaf Patio Homes 'G,' dated May 31, 1994, made by Seller, recorded in the
Recorder's Office on July 15, 1994 in book 1017 at page 20.
(v) "Fifteenth Hole Parcel Development Notice Date" shall mean
the date of the giving of the Fifteenth Hole Parcel Development Notice.
(b) Within fifteen (15) days after the Fifteenth Hole Parcel
Development Notice Date, Purchaser and Seller shall agree upon a final site plan
(the "Fifteenth Hole Parcel Site Plan") for the Fifteenth Hole Parcel. The date
of agreement by Purchaser and Seller to the Fifteenth Hole Parcel Site Plan is
herein sometimes called the "Fifteenth Hole Parcel Site Plan Date."
(c) Within sixty (60) days after the Fifteenth Hole Parcel Site Plan
Date, Seller will deliver to Purchaser plans and plats (together the "Fifteenth
Hole Parcel Plans") for the development of the Fifteenth Hole Parcel in
accordance with the Fifteenth Hole Parcel Site Plan; provided, that in the
event, within forty-five (45) days after the Fifteenth Hole Parcel Site Plan
Date, Seller shall deliver written notice to Purchaser requesting additional
time to prepare the Fifteenth Hole Parcel Plans, Seller shall be entitled to
extend the delivery period by thirty (30) days. The period within which the
Fifteenth Hole Parcel Plans must be delivered to Purchaser is herein called the
"Fifteenth Hole Parcel Plan Delivery Period."
(d) (i) For purposes of this Agreement, the "Fifteenth Hole Parcel
Completion Date" shall mean the earliest to occur of (A) one hundred twenty
(120) days after the delivery of the Fifteenth Hole Parcel Plans, or (B) one
hundred twenty (120) days after the expiration of the Fifteenth Hole Parcel
Plan Delivery Period, or (C) the date of completion of all of the conditions set
forth in the following subparagraph (ii).
(ii) Within one hundred twenty (120) days after the earlier to
occur of the date of delivery of the Fifteenth Hole Parcel Plans or the
expiration of the Fifteenth Hole Parcel Plan Delivery Period, Seller, at its
sole cost and expense, shall cause:
(A) all governmental authorities having jurisdiction over
the development of the Fifteenth Hole Parcel to approve the Fifteenth Hole
Parcel Site Plan;
(B) the Fifteenth Hole Parcel to be subdivided and platted
in accordance with the Fifteenth Hole Parcel Site Plan;
(C) the zoning of the Fifteenth Hole Parcel to permit the
construction on each of the Fifteenth Hole Parcel Single-Family Lots of a
detached single-family dwelling unit of a size at least as large as the minimum
size permitted by the Patio Homes 'G' Declaration;
(D) if Purchaser shall have requested that Seller submit the
Fifteenth Hole Parcel Single-Family Lots to the terms and provisions of the
Patio Homes "G" Declaration, the amendment of the Patio Homes "G" Declaration by
an amendment, in form and substance reasonably acceptable to Purchaser, that
submits the Fifteenth Hole Parcel Single-Family Lots and the Fifteenth Hole
Parcel Accessways to the provisions of the Patio Homes "G" Declaration, and that
ensures the owners of the Fifteenth Hole Parcel Single-Family Lots have the same
rights and obligations as the owners of all of the other lots which are subject
to the Patio Homes 'G' Declaration;
(E) the taking of such actions, in addition to those
described in the preceding subparagraph (D), as shall be necessary to grant to
the owners of the Fifteenth Hole Parcel Single-Family Lots unrestricted access
to and from, and unrestricted use for pedestrian and vehicular ingress and
egress of, the Fifteenth Hole Parcel Accessways, and unrestricted access to and
from the Fifteenth Hole Parcel Accessways and Xxxxx Road, and unrestricted
access to and from, and unrestricted use for pedestrian and vehicular ingress
and egress of, the Private Roadways;
(F) the amendment, in form and substance reasonably
acceptable to Purchaser, of the Private Roadway Easement to extend the easements
granted in the Private Roadway Easement to the Fifteenth Hole Parcel
Accesssways;
(G) the delivery to Purchaser of (I) a copy of the recorded
plat of subdivision of the Fifteenth Hole Parcel into the Fifteenth Hole Parcel
Single-Family Lots and the Fifteenth Hole Parcel Accessways, and (II) copies of
all approvals, consents and authorizations of all governmental entities having
jurisdiction over the Fifteenth Hole Parcel to (a) the subdivision of the
Fifteenth Hole Parcel into the Fifteenth Hole Parcel Single-Family Lots and the
Fifteenth Hole Parcel Accessways and (b) the Fifteenth Hole Parcel Site Plan;
(H) the delivery to Purchaser of a copy of all ordinances,
approvals, consents and authorizations of all governmental entities having
jurisdiction over the Fifteenth Hole Parcel to the zoning of the Fifteenth Hole
Parcel Single-Family Lots for the construction thereon of dwelling units at
least as large as the minimum size permitted by the Patio Home 'G' Declaration;
and
(I) the delivery to Purchaser of an endorsement (the
"Fifteenth Hole Parcel Endorsement") to the Option Policy, later-dating the
Option Policy to a date after the effectuation of the subdivision, platting and
zoning requirements with respect to the Fifteenth Hole Parcel set forth above in
this paragraph 8, and containing no changes to the Option Policy other than (I)
the substitution of the Fifteenth Hole Parcel Single-Family Lots for the
Fifteenth Parcel on Schedule A of the Option Policy, (II) the changes permitted
by the Magnolia Drive Parcel Endorsement, (III) the changes permitted by the
Meadow Parcel-Phase II Endorsement, (IV) the changes permitted by the Meadow
Parcel-Phase III Endorsement, (V) the changes permitted by the Meadow Parcel-
Phase IV Endorsement, (VI) the changes permitted by the Area F Parcel
Endorsements, (VII) the changes permitted by the Club Cottages Parcel
Endorsements, (VIII) the deletion from Schedule A of the Option Policy of any
Lots which have been conveyed to Purchaser, (IX) the addition of an endorsement
insuring that each of the Fifteenth Hole Parcel Lots has been legally subdivided
and platted, (X) the addition of an ALTA 3.0 zoning endorsement insuring that a
detached single-family dwelling unit of a size at least as large as the minimum
size permitted by the Patio Homes 'G' Declaration can be constructed on each of
the Fifteenth Hole Parcel Single-Family Lots, (XI) the addition of an
endorsement insuring that each of the Fifteenth Hole Parcel Single-Family Lots
has unrestricted access to and from, and unrestricted use for pedestrian and
vehicular ingress and egress of, the Fifteenth Hole Parcel Accessways, and
unrestricted access to and from the Fifteenth Hole Parcel Accessways and Xxxxx
Road, and unrestricted access to and from, and unrestricted use for pedestrian
and vehicular ingress and egress of, the Private Roadways, and (XII) the
addition of an endorsement insuring the rights of Purchaser under the Private
Roadway Easement with respect to the Fifteenth Hole Parcel Accessways.
(e) Within seventy-five (75) days after the Fifteenth Hole Parcel
Completion Date, Seller shall commence, and within one hundred twenty (120) days
after the date of such commencement, Seller, at its sole cost and expense, shall
complete, the following:
(i) all such actions as shall be necessary to make sanitary
sewer, storm sewer, water, electrical, gas, telephone and cable television
systems and facilities available at the boundary of each of the Fifteenth Hole
Parcel Single-Family Lots; and
(ii) the construction of the Fifteenth Hole Parcel Accessways,
which shall be of the same quality and type as the Private Roadways.
9. Zoning, Platting and Subdivision of the Undeveloped Multi-Family
----------------------------------------------------------------
Tracts.
------
(a) Meadow Parcel-Phase II.
----------------------
(i) For purposes of this Agreement, the following terms shall
have the following meanings:
(A) "Meadow Parcel-Phase II" shall mean the real estate
outlined on Exhibit G-2 attached hereto and made a part hereof.
-----------
(B) "Meadow Parcel-Phase II Plan A" shall mean a site plan
which shows Meadow Parcel-Phase II subdivided into five multi-family lots that
substantially reflect the proposed location of buildings as shown on Exhibit G-2
-----------
attached hereto.
(C) "Meadow Parcel-Phase II Notice" shall mean a written
notice from Purchaser to Seller requesting the subdivision and platting by
Seller of Meadow Parcel-Phase II, which notice shall indicate whether or not
Purchaser desires that Meadow Parcel-Phase II be subdivided in accordance with
Meadow Parcel-Phase II Plan A.
(D) "Meadow Parcel-Phase II Notice Date" shall mean the
date of the giving of the Meadow Parcel-Phase II Notice.
(E) "Meadow Parcel-Phase II Lots" shall mean the lots to be
created by the subdivision and platting of Meadow Parcel-Phase II in accordance
with the Meadow Parcel-Phase II Site Plan (hereinafter defined).
(F) "Meadow Parcel-Phase II Site Plan" shall mean the
following:
(I) If the Meadow Parcel-Phase II Notice shall
request the subdivision and platting of Meadow Parcel-Phase II substantially in
accordance with Meadow Parcel-Phase II Plan A, the "Meadow Parcel-Phase II Site
Plan" shall mean a site plan substantially in accordance with Meadow Parcel-
Phase II Plan A.
(II) If the Meadow Parcel-Phase II Notice shall
request the subdivision and platting of Meadow Parcel-Phase II other than
substantially in accordance with Meadow Parcel-Phase II Plan A, the "Meadow
Parcel-Phase II Site Plan" shall mean the Alternate Meadow Parcel-Phase II Site
Plan (hereinafter defined).
(G) "Meadow Villas Declaration" shall mean that certain
Meadow Villas Declaration of Condominium, dated September 11, 1997, made by
Seller, recorded with the Recorder's Office in book 1322 at page 381.
(H) "Meadow Parcel-Phase II Completion Date" shall mean the
following:
(I) If the Meadow Parcel-Phase II Notice shall request
the subdivision and platting of Meadow Parcel-Phase II substantially in
accordance with Meadow Parcel-Phase II Plan A, the "Meadow Parcel-Phase II
Completion Date" shall be thirty (30) days after the Meadow Parcel-Phase II
Notice Date.
(II) If the Meadow Parcel-Phase II Notice shall request
the subdivision and platting of Meadow Parcel-Phase II other than in accordance
with Meadow Parcel-Phase II Plan A, the "Meadow Parcel-Phase II Completion Date"
shall be the earliest to occur of (a) one hundred fifty (150) days after the
date of delivery of the Alternate Meadow Parcel-Phase II Plans (hereinafter
defined), or (b) one hundred fifty (150) days after the expiration of the
Alternate Meadow Parcel-Phase II Plan Delivery Period (hereinafter defined), or
(c) the date of completion of all of the conditions set forth in subparagraph
9(a)(iii) of this Agreement.
(ii) If the Meadow Parcel-Phase II Notice shall request the
subdivision and platting of Meadow Parcel-Phase II other than in accordance with
Meadow Parcel-Phase II Plan A, then:
(A) within fifteen (15) days after the Meadow Parcel-Phase
II Notice Date, Seller and Purchaser shall agree upon a final site plan (the
"Alternate Meadow Parcel-Phase II Site Plan") for Meadow Parcel-Phase II (the
date of agreement by Purchaser and Seller to the Alternate Meadow Parcel-Phase
II Site Plan being herein sometimes called the "Alternate Meadow Parcel-Phase II
Site Plan Date"); and
(B) within sixty (60) days after the Alternative Meadow
Parcel-Phase II Site Plan Date, Seller will deliver to Purchaser plans and plats
(the "Alternate Meadow Parcel-Phase II Plans") for the development of Meadow
Parcel-Phase II in accordance with the Alternative Meadow Parcel-Phase II Site
Plan; provided, that in the event, within forty-five (45) days after the
Alternate Meadow Parcel-Phase II Site Plan Date, Seller shall deliver written
notice to Purchaser requesting additional time to prepare the Alternate Meadow
Parcel-Phase II Plans, Seller shall be entitled to extend the delivery period by
thirty (30) days (the period within which the Alternate Meadow Parcel-Phase II
Plans must be delivered to Purchaser being herein called the "Alternate Meadow
Parcel-Phase II Plan Delivery Period").
(iii) On or before the Meadow Parcel-Phase II Completion Date,
Seller, at its sole cost and expense, shall cause:
(A) Meadow Parcel-Phase II to be subdivided and platted in
accordance with the Meadow Parcel-Phase II Site Plan;
(B) the zoning of Meadow Parcel-Phase II to permit the
construction on each of the Meadow Parcel-Phase II Lots of attached residential
dwelling units of a number and size set forth in the Meadow Parcel-Phase II Site
Plan;
(C) sanitary sewer, storm sewer, water, electrical, gas,
telephone and cable television systems and facilities to be available at the
boundary of each of the Meadow Parcel-Phase II Lots;
(D) the amendment of the Meadow Villas Declaration by an
amendment, in form and substance reasonably acceptable to Purchaser, that
submits the Meadow Parcel-Phase II Lots to the provisions of the Meadow Villas
Declaration, and that ensures that the owners of the Meadow Parcel-Phase II Lots
have the same rights and obligations as the owners of all of the other lots
which are subject to the Meadow Villas Declaration;
(E) the taking of such actions, in addition to those
described in the preceding subparagraph (D), as shall be necessary to grant to
the owners of the Meadow Parcel-Phase II Lots unrestricted access to and from,
and unrestricted use for pedestrian and vehicular ingress and egress of, the
roadway ("Meadow Parcel Roadway I") outlined on Exhibit G-3 attached hereto and
-----------
made a part hereof, and unrestricted access to and from Meadow Parcel Roadway I
and Xxxxx Road, and unrestricted use of the Private Roadways for pedestrian and
vehicular ingress and egress, and unrestricted access to and from the Private
Roadways and dedicated public rights-of-way;
(F) the amendment, in form and substance reasonably
acceptable to Purchaser, of the Private Roadway Easement to extend the easements
granted in the Private Roadway Easement to Meadow Parcel Roadway I;
(G) the delivery to Purchaser of (I) a copy of the recorded
plat of subdivision of Meadow Parcel-Phase II showing the subdivision of Meadow
Parcel-Phase II into the Meadow Parcel-Phase II Lots, and (II) copies of all
approvals, consents and authorizations of all governmental entities having
jurisdiction over the Meadow Parcel to the subdivision of Meadow Parcel-Phase II
into the Meadow Parcel-Phase II Lots;
(H) the delivery to Purchaser of a copy of all ordinances,
approvals, consents and authorizations of all governmental entities having
jurisdiction over the Meadow Parcel to the zoning of each of the
Meadow Parcel Lots for the construction thereon of attached residential dwelling
units of the number and size set forth in the Meadow Parcel-Phase II Site Plan;
and
(I) the delivery to Purchaser of an endorsement (the
"Meadow Parcel-Phase II Endorsement") to the Option Policy, later-dating the
Option Policy to a date after the effectuation of the subdivision, platting and
zoning requirements with respect to Meadow Parcel-Phase II set forth above in
this subparagraph 8(a), and containing no changes to the Option Policy other
than (I) the substitution of the Meadow Parcel-Phase II Lots for Meadow Parcel-
Phase II on Schedule A of the Option Policy, (II) the changes permitted by all
Area F Parcel Endorsements, (III) the changes permitted by the Club Cottages
Parcel Endorsements, (IV) the changes permitted by the Magnolia Drive Parcel
Endorsement, (V) the changes permitted by the Fifteenth Hole Parcel Endorsement,
(VI) the changes permitted by the Meadow Parcel-Phase III Endorsement
(hereinafter defined), (VII) the changes permitted by the Meadow Parcel-Phase IV
Endorsement (hereinafter defined), (VIII) the deletion from Schedule A of the
Option Policy of any Lots which have been conveyed to Purchaser, (IX) the
addition of an endorsement insuring that each of the Meadow Parcel-Phase II Lots
has been legally subdivided and platted, (X) the addition of an ALTA 3.0 zoning
endorsement insuring that attached residential dwelling units of the number and
size set forth in the Meadow Parcel-Phase II Site Plan can be constructed on
each of the Meadow Parcel-Phase II Lots, (XI) the addition of an endorsement
insuring that each of the Meadow Parcel-Phase II Lots has unrestricted access to
and from, and unrestricted use for pedestrian and vehicular ingress and egress
of, Meadow Parcel Roadway I, and unrestricted access to and from Meadow Parcel
Roadway I and Xxxxx Road, and unrestricted use of the Private Roadways for
pedestrian and vehicular ingress and egress, and unrestricted access to and from
the Private Roadways and dedicated public rights-of-way, and (XII) the addition
of an endorsement insuring the rights of Purchaser under the Private Roadway
Easement with respect to Meadow Parcel Roadway I; and
(J) all governmental authorities having jurisdiction over
the development of the Meadow Parcel-Phase III to approve the Meadow Parcel-
Phase III Site Plan.
(b) Meadow Parcel-Phase III.
-----------------------
(i) For purposes of this Agreement, the following terms shall
have the following meanings:
(A) "Meadow Parcel-Phase III" shall mean the real estate
outlined on Exhibit G-4 attached hereto and made a part hereof.
-----------
(B) "Meadow Parcel-Phase III Notice" shall mean a written
notice from Purchaser to Seller requesting the subdivision and platting by
Seller of Meadow Parcel-Phase III.
(C) "Meadow Parcel-Phase III Notice Date" shall mean the
date of the giving of the Meadow Parcel-Phase III Notice.
(D) "Meadow Parcel-Phase III Lots" shall mean the lots to be
created by the subdivision and platting of Meadow Parcel-Phase III in accordance
with the Meadow Parcel-Phase III Site Plan (hereinafter defined).
(E) "Meadow Parcel-Phase III Accessways" shall mean the
roadways to be created by the subdivision and platting of Meadow Parcel-Phase
III in accordance with the Meadow Parcel-Phase III Site Plan, which roadways
shall provide access to and from the Meadow Parcel-Phase III Lots and Meadow
Parcel Roadway I.
(ii) Within fifteen (15) days after the Meadow Parcel-Phase III
Notice Date, Seller and Purchaser shall agree upon a final site plan (the
"Meadow Parcel-Phase III Site Plan") for Meadow Parcel-Phase III (the date of
agreement by Purchaser and Seller to the Meadow Parcel-Phase III Site Plan being
herein called the "Meadow Parcel-Phase III Site Plan Date").
(iii) Within sixty (60) days after the Meadow Parcel-Phase III
Site Plan Date, Seller will deliver to Purchaser plans and plats (together the
"Meadow Parcel-Phase III Plans") for the development of Meadow Parcel-Phase III
in accordance with the Meadow Parcel-Phase III Site Plan; provided, that in the
event, within the first forty-five (45) days of such sixty-day period, Seller
shall deliver written notice to Purchaser requesting additional time to prepare
the Meadow Parcel-Phase III Plans, Seller shall be entitled to extend the 60-day
delivery period for the Meadow Parcel-Phase III Plans by thirty (30) days;
further provided, that Purchaser may not deliver the Meadow Parcel-Phase III
Notice until Purchaser shall have closed the purchase from Seller of at least
fifty percent (50%) of the Meadow Parcel-Phase II Lots and Seller shall have
received the purchase price therefor, and all sums due to Xxxxxx or Seller with
respect to such Meadow Parcel-Phase II Lots under subparagraph 1(g) of this
Agreement shall have been paid. The period within which the Meadow Parcel-Phase
III Plans must be delivered to Purchaser is herein called the "Meadow Parcel-
Phase III Plan Delivery Period."
(iv) (A) For purposes of this Agreement, the "Meadow Parcel-
Phase III Completion Date" shall mean the earliest to occur of (I) one hundred
twenty (120) days after the delivery of the Meadow Parcel-Phase III Plans, or
(II) one hundred twenty (120) days after the expiration of the Meadow Parcel-
Phase III Plan Delivery Period, or (III) the date of completion of all of the
conditions set forth in the following subparagraph (B).
(B) Within one hundred twenty (120) days after the
earlier to occur of the date of delivery of the Meadow Parcel-Phase III Plans or
the expiration of the Meadow Parcel-Phase III Plan Delivery Period, Seller, at
its sole cost and expense shall cause:
(I) all governmental authorities having jurisdiction
over the development of Meadow Parcel-Phase III to approve the Meadow Parcel-
Phase III Site Plan;
(II) Meadow Parcel-Phase III to be subdivided and
platted in accordance with the Meadow Parcel-Phase III Site Plan;
(III) the zoning of Meadow Parcel-Phase III to permit
the construction on each of the Meadow Parcel-Phase III Lots of attached
residential dwelling units of a number and size set forth in the Meadow Parcel-
Phase III Site Plan;
(IV) the amendment of the Meadow Villas Declaration
by an amendment, in form and substance reasonably acceptable to Purchaser, that
submits the Meadow Parcel-Phase III Lots and the Meadow Parcel-Phase III
Accessways to the provisions of the Meadow Villas Declaration, and ensures that
the owners of the Meadow Parcel-Phase III Lots have the same rights and
obligations as the owners of all of the other lots which are subject to the
Meadow Villas Declaration;
(V) the taking of such actions, in addition to those
described in the preceding subparagraph (IV), as shall be necessary to grant to
the owners of the Meadow Parcel-Phase III Lots unrestricted access to and from
the Meadow Parcel-Phase III Lots and the Meadow Parcel-Phase III Accessways, and
unrestricted use of the Meadow Parcel-Phase III Accessways for pedestrian and
vehicular ingress and egress, and unrestricted access to and from the Meadow
Parcel-Phase III Accessways and Meadow Parcel Roadway I, and unrestricted use of
Meadow Parcel Roadway I for pedestrian and vehicular ingress and egress, and
unrestricted access to and from Meadow Parcel Roadway I and Xxxxx Road, and
unrestricted use of the Private Roadways for pedestrian and vehicular ingress
and egress, and unrestricted access to and from the Private Roadways and
dedicated public rights-of-way;
(VI) the amendment, in form and substance reasonably
acceptable to Purchaser, of the Private Roadway Easement to extend the easements
granted in the Private Roadway Easement to the Meadow Parcel-Phase III
Accessways;
(VII) the delivery to Purchaser of (a) a copy of the
recorded plat of subdivision of Meadow Parcel-Phase III showing the subdivision
of Meadow Parcel-Phase III in accordance with the Meadow Parcel-Phase III Site
Plan, and (b) copies of all approvals, consents and authorizations of all
governmental entities having jurisdiction over the Meadow Parcel to (1) the
subdivision of Meadow Parcel-Phase III in accordance with the Meadow Parcel-
Phase III Site Plan, and (2) the Meadow Parcel-Phase III Site Plan;
(VIII) the delivery to Purchaser of a copy of all
ordinances, approvals, consents and authorizations of all governmental entities
having jurisdiction over the Meadow Parcel to the zoning of each of the Meadow
Parcel-Phase III Lots for the construction thereon of attached residential
dwelling units of a number and size set forth in the Meadow Parcel-Phase III
Site Plan; and
(IX) the delivery to Purchaser of an endorsement (the
"Meadow Parcel-Phase III Endorsement") to the Option Policy, later-dating the
Option Policy to a date after the effectuation of the subdivision, platting and
zoning requirements with respect to Meadow Parcel-Phase III set forth above in
this subparagraph 8(b), and containing no changes to the Option Policy other
than (a) the substitution of the Meadow Parcel-Phase III Lots for Meadow Parcel-
Phase III on Schedule A of the Option Policy, (b) the changes permitted by the
Area F Parcel Endorsements, (c) the changes permitted by the Club Cottages
Parcel Endorsements, (d) the changes permitted by the Magnolia Drive Parcel
Endorsement, (e) the changes permitted by the Fifteenth Hole Parcel Endorsement,
(f) the changes permitted by the Meadow Parcel-Phase II Endorsement, (g) the
changes permitted by the Meadow Parcel-Phase IV Endorsement, (h) the deletion
from Schedule A of the Option Policy of any Lots which have been conveyed to
Purchaser, (i) the addition of an endorsement insuring that each of the Meadow
Parcel-Phase III Lots has been legally subdivided and platted, (j) the addition
of an ALTA 3.0 zoning endorsement insuring that attached residential dwelling
units of a number and size set forth in the Meadow Parcel-Phase III Site Plan
can be constructed on each of the Meadow Parcel-Phase III Lots, (k) the addition
of an endorsement insuring that each of the Meadow Parcel-Phase III Lots has
unrestricted access to and from the Meadow Parcel-Phase III Accessways, and
unrestricted use of the Meadow Parcel-Phase III Accessways for pedestrian and
vehicular ingress and egress, and unrestricted access to and from, and
unrestricted use for pedestrian and vehicular ingress and egress of, Meadow
Parcel Roadway I, and unrestricted access to and from Meadow Parcel Roadway I
and Xxxxx Road, and unrestricted use of the Private Roadways for pedestrian and
vehicular ingress and egress, and unrestricted access to and from the Private
Roadways and dedicated public rights-of-way, and (l) the addition of an
endorsement insuring that the rights of Purchaser under the Private Roadway
Easement extend to the Meadow Parcel-Phase III Accessways.
(v) Within seventy-five (75) days after the Meadow Parcel-Phase
III Completion Date, Seller shall commence, and within one hundred twenty (120)
days after the date of such commencement, Seller, at its sole cost and expense,
shall complete, the following:
(A) all actions as shall be necessary to make sanitary
sewer, storm sewer, water, electrical, gas, telephone and cable television
systems and facilities available at the boundary of each of the Meadow Parcel-
Phase III Lots; and
(B) the construction of the Meadow Parcel-Phase III
Accessways, which shall be of the same quality and type as the Private Roadways.
(c) Meadow Parcel-Phase IV.
----------------------
(i) For purposes of this Agreement, the following terms shall
have the following meanings:
(A) "Meadow Parcel-Phase IV" shall mean the real estate
outlined on Exhibit G-5 attached hereto and made a part hereof.
-----------
(B) "Meadow Parcel-Phase IV Notice" shall mean a written
notice from Purchaser to Seller requesting the subdivision and platting by
Seller of Meadow Parcel-Phase IV.
(C) "Meadow Parcel-Phase IV Notice Date" shall mean the
date of the giving of the Meadow Parcel-Phase IV Notice.
(D) "Meadow Parcel-Phase IV Lots" shall mean the lots to
be created by the subdivision and platting of Meadow Parcel-Phase IV in
accordance with the Meadow Parcel-Phase IV Site Plan (hereinafter defined).
(E) "Meadow Parcel-Phase IV Accessways" shall mean the
roadways to be created by the subdivision and platting of Meadow Parcel-Phase IV
in accordance with the Meadow Parcel-Phase IV Site Plan, which roadways shall
provide access to and from the Meadow Parcel-Phase IV Lots and the Meadow
Parcel-Phase III Accessways.
(G) Meadow Parcel-Phase II, Meadow Parcel-Phase III and
Meadow Parcel-Phase IV are herein together sometimes called the "Meadow Parcel
Phases" or individually a "Meadow Parcel Phase."
(H) The Meadow Parcel-Phase II Lots, the Meadow Parcel-
Phase III Lots and the Meadow Parcel-Phase IV Lots are herein together sometimes
called the "Meadow Parcel Lots" or individually a "Meadow Parcel Lot."
(I) The Meadow Parcel-Phase III Accessways and the Meadow
Parcel-Phase IV Accessways are herein together sometimes called the "Meadow
Parcel Accessways" or individually a "Meadow Parcel Accessway."
(ii) Within fifteen (15) days after the Meadow Parcel-Phase IV
Notice Date, Seller and Purchaser shall agree upon a final site plan (the
"Meadow Parcel-Phase IV Site Plan") for Meadow Parcel-Phase IV (the date of
agreement by Purchaser and Seller to the Meadow Parcel-Phase IV Site Plan being
herein called the "Meadow Parcel-Phase IV Site Plan Date").
(iii) Within sixty (60) days after the Meadow Parcel-Phase IV
Site Plan Date, Seller will deliver to Purchaser plans and plats (together the
"Meadow Parcel-Phase IV Plans") for the development of Meadow Parcel-Phase IV in
accordance with the Meadow Parcel-Phase IV Site Plan; provided, that in the
event, within the first forty-five (45) days of such sixty-day period, Seller
shall deliver written notice to Purchaser requesting additional time to prepare
the Meadow Parcel-Phase IV Plans, Seller shall be entitled to extend the 60-day
delivery period for the Meadow Parcel-Phase IV Plans by thirty (30) days;
further provided, that Purchaser may not deliver the Meadow Parcel-Phase IV
Notice until Purchaser shall have (A) closed the purchase from Seller of at
least fifty percent (50%) of the Meadow Parcel-Phase II Lots and Seller shall
have received the purchase price therefor, and all sums due to Xxxxxx or Seller
with respect to such Meadow Parcel-Phase II Lots under subparagraph 1(g) of this
Agreement shall have been paid, and (B) closed the purchase from Seller of at
least fifty percent (50%) of the Meadow Parcel-Phase III Lots and Seller shall
have received the purchase price therefor, and all sums due to Xxxxxx or Seller
with respect to such Meadow Parcel-Phase III Lots under subparagraph 1(g) of
this Agreement shall have been paid. The period within which the Meadow Parcel-
Phase IV Plans must be delivered to Purchaser is herein called the "Meadow
Parcel-Phase IV Plan Delivery Period."
(iv) (A) For purposes of this Agreement, the "Meadow Parcel-
Phase IV Completion Date" shall mean the earliest to occur of (I) one hundred
twenty (120) days after the delivery of the Meadow Parcel-Phase IV Plans, or
(II) one hundred twenty (120) days after the expiration of the Meadow Parcel-
Phase IV Plan Delivery Period, or (III) the date of completion of all of the
conditions set forth in the following subparagraph (B).
(B) Within one hundred twenty (120) days after the earlier
to occur of the date of delivery of the Meadow Parcel-Phase IV Plans or the
expiration of the Meadow Parcel-Phase IV Plan Delivery Period, Seller, at its
sole cost and expense, shall cause:
(I) all governmental authorities having jurisdiction
over the development of Meadow Parcel-Phase IV to approve the Meadow Parcel-
Phase IV Site Plan;
(II) Meadow Parcel-Phase IV to be subdivided and
platted in accordance with the Meadow Parcel-Phase IV Site Plan;
(III) the zoning of Meadow Parcel-Phase IV to permit
the construction on each of the Meadow Parcel-Phase IV Lots of attached
residential dwelling units of a number and size set forth in the Meadow Parcel-
Phase IV Site Plan;
(IV) the amendment of the Meadow Villas Declaration
by an amendment, in form and substance reasonably acceptable to Purchaser, that
submits the Meadow Parcel-Phase IV Lots and the Meadow Parcel-Phase IV
Accessways to the provisions of the Meadow Villas Declaration, and that ensures
that the owners of the Meadow Parcel-Phase IV Lots have the same rights and
obligations as the owners of all of the other lots which are subject to the
Meadow Villas Declaration;
(V) the taking of such actions, in addition to those
described in the preceding subparagraph (IV), as shall be necessary to grant to
the owners of the Meadow Parcel-Phase IV Lots unrestricted access to and from
the Meadow Parcel-Phase IV Lots and the Meadow Parcel-Phase IV Accessways, and
unrestricted use of the Meadow Parcel-Phase IV Accessways for pedestrian and
vehicular ingress and egress, and unrestricted access to and from the Meadow
Parcel-IV Accessways and the Meadow Parcel-III Accessways, and unrestricted use
of the Meadow Parcel-Phase III Accessways for pedestrian and vehicular ingress
and egress, and unrestricted access to and from the Meadow Parcel-Phase III
Accessways and Meadow Parcel Roadway I, and unrestricted use of Meadow Parcel
Roadway I for pedestrian and vehicular ingress and egress, and unrestricted
access to and from Meadow Parcel Roadway I and Xxxxx Road, and unrestricted use
of the Private Roadways for pedestrian and vehicular ingress and egress, and
unrestricted access to and from the Private Roadways and dedicated public
rights-of-way;
(VI) the amendment, in form and substance reasonably
acceptable to Purchaser, of the Private Roadway Easement to extend the easements
granted in the Private Roadway Easement to the Meadow Parcel-Phase IV
Accessways;
(VII) the delivery to Purchaser of (a) a copy of the
recorded plat of subdivision of Meadow Parcel-Phase IV showing the subdivision
of Meadow Parcel-Phase IV in accordance with the Meadow Parcel-Phase IV Site
Plan, and (b) copies of all approvals, consents and authorizations of all
governmental entities having jurisdiction over the Meadow Parcel to (1) the
subdivision of Meadow Parcel-Phase IV in accordance with the Meadow Parcel-Phase
IV Site Plan, and (2) the Meadow Parcel-Phase IV Site Plan;
(VIII) the delivery to Purchaser a copy of all
ordinances, approvals, consents and authorizations of all governmental entities
having jurisdiction over the Meadow Parcel to the zoning of each of the Meadow
Parcel-Phase IV Lots for the construction thereon of attached residential
dwelling units of a number and size set forth in the Meadow Parcel-Phase IV Site
Plan; and
(IX) the delivery to Purchaser of an endorsement (the
"Meadow Parcel-Phase IV Endorsement") to the Option Policy, later-dating the
Option Policy to a date after the effectuation of the subdivision, platting and
zoning requirements with respect to Meadow Parcel-Phase IV set forth above in
this subparagraph 8(c), and containing no changes to the Option Policy other
than (a) the substitution of the Meadow Parcel-Phase IV Lots for Meadow Parcel-
Phase IV on Schedule A of the Option Policy, (b) the changes permitted
by the Area F Parcel Endorsements, (c) the changes permitted by the Club
Cottages Parcel Endorsements, (d) the changes permitted by the Magnolia Drive
Parcel Endorsement, (e) the changes permitted by the Fifteenth Hole Parcel
Endorsement, (f) the changes permitted by the Meadow Parcel-Phase II
Endorsement, (g) the changes permitted by the Meadow Parcel-Phase III
Endorsement, (h) the deletion from Schedule A of the Option Policy of any Lots
which have been conveyed to Purchaser, (i) the addition of an endorsement
insuring that each of the Meadow Parcel-Phase IV Lots has been legally
subdivided and platted, (j) the addition of an ALTA 3.0 zoning endorsement
insuring that attached residential dwelling units of a number and size set forth
in the Meadow Parcel-Phase IV Site Plan can be constructed on each of the Meadow
Parcel-Phase IV Lots, (k) the addition of an endorsement insuring that each of
the Meadow Parcel-Phase IV Lots has unrestricted access to and from the Meadow
Parcel-Phase IV Accessways, and unrestricted use of the Meadow Parcel-Phase IV
Accessways for pedestrian and vehicular ingress and egress, and unrestricted
access to and from the Meadow Parcel IV Accessways and the Meadow Parcel-Phase
III Accessways, and unrestricted use of the Meadow Parcel-Phase III Accessways
for pedestrian and vehicular ingress and egress, and unrestricted access to and
from, and unrestricted use for pedestrian and vehicular ingress and egress of,
Meadow Parcel Roadway I, and unrestricted access to and from Meadow Parcel
Roadway I and Xxxxx Road, and unrestricted use of the Private Roadways for
pedestrian and vehicular ingress and egress, and unrestricted access to and from
the Private Roadways and dedicated public rights-of-way, and (l) the addition of
an endorsement insuring that the rights of Purchaser under the Private Roadway
Easement extend to the Meadow Parcel-Phase IV Accessways.
(v) Within seventy-five (75) days after the Meadow Parcel-Phase
IV Completion Date, Seller shall commence, and within one hundred twenty (120)
days after the date of such commencement, Seller, at its sole cost and expense,
shall complete, the following:
(A) all actions as shall be necessary to make sanitary
sewer, storm sewer, water, electrical, gas, telephone and cable television
systems and facilities available at the boundary of each of the Meadow Parcel-
Phase IV Lots; and
(B) the construction of the Meadow Parcel-Phase IV
Accessways, which shall be of the same quality and type as the Private Roadways.
(d) Area F Parcel
-------------
(i) For purposes of this Agreement, the following terms shall
have the following meanings:
(A) "Area F Parcel Notice" shall mean a written notice from
Purchaser to Seller setting forth the uses and site plan desired by Purchaser
with respect to a portion of the Area F Parcel. Any Area F Parcel Notice may
include a request that the Area F Parcel Lots and the Area F Parcel Accessways
in the portion of the Area F Parcel described in such Area F Parcel Notice be
submitted to the Single-Family Declaration.
(B) "Area F Parcel Notice Date" shall mean the date of the
giving of an Area F Parcel Notice.
(C) "Area F Parcel Lots" shall mean the lots to be created
by the subdivision and platting of the Area F Parcel in accordance with the Area
F Parcel Site Plans (hereinafter defined).
(D) "Area F Parcel Accessways" shall mean the roadways to
be created by the subdivision and platting of the Area F Parcel in accordance
with the Area F Parcel Site Plans, which roadways shall provide access to and
from the Area F Parcel Lots and Xxxxx Road, a dedicated public right-of-way.
(E) "Area F Parcel Phase" shall mean a portion of the Area
F Parcel with respect to which Seller and Purchaser shall agree upon an Area F
Parcel Site Plan.
(F) "Single-Family Declaration" shall mean that certain
Longleaf Single-Family Declaration of Covenants, Conditions and Restrictions,
dated March 1, 1991, made by Seller, and recorded with the Recorder's Office in
book 767 at page 296, as amended by that certain First Amendment Longleaf
Single-Family Declaration of Covenants, Conditions and Restrictions, dated April
16, 1993, and recorded in the Recorder's Office in book 905 at page 481, and as
amended by that certain Second Amendment to Declaration - Longleaf Single-
Family, dated June 1, 1994, and recorded in the Recorder's Office in book 1017
at page 22, and as amended by that certain Third Amendment Longleaf Single
Family Declaration of Covenants, Conditions and Restrictions, dated August 28,
1995, and recorded in the Recorder's Office in book 1110 at page 319.
(ii) It is contemplated that the Area F Parcel will be
developed in phases. Within fifteen (15) days after an Area F Parcel Notice
Date, Purchaser and Seller shall agree upon a final site plan (an "Area F Parcel
Site Plan") for the portion of the Area F Parcel described in the subject Area F
Parcel Notice (or such adjusted portion of the Area F Parcel as Purchaser and
Seller shall agree), and shall agree upon the Minimum Release Price with respect
to each of the Lots shown on such Area F Site Plan. The date of agreement by
Purchaser and Seller to an Area F Parcel Site Plan is herein sometimes called an
"Area F Parcel Site Plan Date. "
(iii) Within sixty (60) days after an Area F Parcel Site Plan
Date, Seller will deliver to Purchaser plans and plats (together the "Area F
Parcel Plans") for the development of the subject Area F Parcel Phase in
accordance with the Area F Parcel Site Plan for such Area F Parcel Phase;
provided, that in the event, within the first forty-five (45) days of such
sixty-day period, Seller shall deliver written notice to Purchaser requesting
additional time to prepare such Area F Parcel Plans, Seller shall be entitled to
extend the 60-day delivery period for such Area F Parcel Plans by thirty (30)
days; further provided, that Purchaser may not deliver the first Area F Parcel
Notice until the earlier to occur of the following: (A) Purchaser shall have
closed the purchase from Seller of sixty percent (60%) of the Existing Single-
Family Lots, and Seller shall have received the purchase price for such Existing
Single-Family Lots, and all sums payable to Xxxxxx or Seller pursuant to
subparagraph 1(g) of this Agreement with respect to such Existing Single-Family
Lots shall have been paid, or (B) Purchaser shall be entitled to deliver the
Meadow Parcel-Phase III Notice. The period within which Area F Parcel Plans must
be delivered to Purchaser is herein called an "Area F Parcel Plan Delivery
Period."
(iv) (A) For purposes of this Agreement, an "Area F Parcel
Completion Date" shall mean the earliest to occur of (I) one hundred twenty
(120) days after the date of delivery of the Area F Parcel Plans for an Area F
Parcel Phase, or (II) one hundred twenty (120) days after the expiration of the
Area F Parcel Plan Delivery Period for such Area F Parcel Phase, or (III) the
date of completion of all of the conditions set forth in the following
subparagraph (B) with respect to such Area F Parcel Phase.
(B) Within one hundred twenty (120) days after the
earlier to occur of the date of delivery of the Area F Parcel Plans for an Area
F Parcel Phase or the expiration of the Area F Parcel Plan Delivery Period for
such Area F Parcel Phase, Seller, at its sole cost and expense, shall cause:
(I) all governmental authorities having
jurisdiction over the development of such Area F Parcel Phase to approve the
Area F Parcel Site Plan for such Area F Parcel Phase;
(II) such Area F Parcel Phase to be subdivided and
platted in accordance with the Area F Parcel Site Plan for such Area F Parcel
Phase;
(III) the zoning of such Area F Parcel to permit the
construction on each of the Area F Parcel Lots on such Area F Parcel Phase of
residential dwelling units of a type, number and size set forth in the Area F
Parcel Site Plan for such Area F Parcel Phase;
(IV) if Purchaser shall have so requested in the
Area F Parcel Notice for such Area F Parcel Phase, the amendment of the Single-
Family Declaration by an amendment, in form and substance reasonably acceptable
to Purchaser, that submits the Area F Parcel Lots and the Area F Parcel
Accessways on such
Area F Parcel Phase to the provisions of the Single-Family Declaration, and that
ensures that the owners of such Area F Parcel Lots have the same rights and
obligations as the owners of all of the lots which are subject to the Single-
Family Declaration;
(V) the taking of such actions, in addition to those
described in the preceding subparagraph (IV), as shall be necessary to grant to
the owners of the Area F Parcel Lots on such Area F Parcel Phase unrestricted
access to and from, and unrestricted use for pedestrian and vehicular ingress
and egress of, the Area F Parcel Accessways, and unrestricted access to and from
the Area F Parcel Accessways and Xxxxx Road, and unrestricted access to and
from, and unrestricted use for pedestrian and vehicular ingress of, the Private
Roadways;
(VI) the amendment, in form and substance reasonably
acceptable to Purchaser, of the Private Roadway Easement to extend the easements
granted in the Private Roadway Easement to the Area F Parcel Accessways;
(VII) the delivery to Purchaser of (a) a copy of the
recorded plat of subdivision of such Area F Parcel Phase showing the subdivision
of such Area F Parcel Phase in accordance with the Area F Parcel Site Plan for
such Area F Parcel Phase, and (b) copies of all approvals, consents and
authorizations of all governmental entities having jurisdiction over such Area F
Parcel Phase to (1) the subdivision of such Area F Parcel Phase in accordance
with the Area F Parcel Site Plan for such Area F Parcel Phase and (2) the Area F
Parcel Site Plan for such Area F Parcel Phase;
(VIII) the delivery to Purchaser of a copy of all
ordinances, approvals, consents and authorizations of all governmental entities
having jurisdiction over such Area F Parcel Phase to the zoning of each of the
Area F Parcel Lots on such Area F Parcel Phase for the construction thereon of
residential dwelling units of a type, number and size set forth in the Area F
Parcel Site Plan for such Area F Parcel Phase; and
(IX) the delivery to Purchaser of an endorsement (an
"Area F Parcel Endorsement") to the Option Policy, later-dating the Option
Policy to a date after the effectuation of the subdivision, platting and zoning
requirements with respect to an Area F Parcel Phase set forth above in this
subparagraph 8(d), and containing no changes to the Option Policy other than (a)
the substitution of Area F Parcel Lots for such Area F Parcel Phase on Schedule
A of the Option Policy, (b) the changes permitted by the Meadow Parcel-Phase II
Endorsement, (c) the changes permitted by the Meadow Parcel-Phase III
Endorsement, (d) the changes permitted by the Meadow Parcel-Phase IV
Endorsement, (e) the changes permitted by the Club Cottages Parcel Endorsements,
(f) the changes permitted by the Magnolia Drive Parcel Endorsement, (g) the
changes permitted by the Fifteenth Hole Parcel Endorsement, (h) the deletion
from Schedule A of the Option Policy of any Lots which have been conveyed to
Purchaser, (i) the addition of an endorsement insuring that each of the Area F
Parcel Lots on such Area F Parcel Phase has been legally subdivided and platted,
(j) the addition of an ALTA 3.0 zoning endorsement insuring that residential
dwelling units of a type, number and size set forth in the Area F Parcel Site
Plan for such Area F Parcel Phase can be constructed on each of the Area F
Parcel Lots on such Area F Parcel Phase, (k) the addition of an endorsement
insuring that each of the Area F Parcel Lots on such Area F Parcel Phase has
unrestricted access to and from, and unrestricted use for pedestrian and
vehicular ingress and egress of, the Area F Parcel Accessways, and has
unrestricted access to and from the Area F Parcel Accessways and Xxxxx Road, and
has unrestricted access to and from, and unrestricted use for pedestrian and
vehicular ingress and egress of, the Private Roadways, and (l) the addition of
an endorsement insuring the rights of Purchaser under the Private Roadway
Easement with respect to the Area F Parcel Accessways on such Area F Parcel
Phase.
(v) Within seventy-five (75) days after the Area F Parcel
Completion Date for an Area F Parcel Phase, Seller shall commence, and within
one hundred twenty (120) days after the date of such commencement, Seller, at
its sole cost and expense, shall complete, the following:
(A) all such actions as shall be necessary to make sanitary
sewer, storm sewer, water, electrical, gas, telephone and cable television
systems and facilities available at the boundary of each of the Area F Parcel
Lots on such Area F Parcel Phase; and
(B) the construction of the Area F Parcel Accessways on
such Area F Parcel Phase, which Area F Parcel Accessways shall be of the same
quality and type as the Private Roadways.
(e) Club Cottages Parcel
--------------------
(i) For purposes of this Agreement, the following terms shall
have the following meanings:
(A) "Club Cottages Parcel Notice" shall mean a written
notice from Purchaser to Seller setting forth the site plan desired by Purchaser
with respect to a portion of the Club Cottages Parcel.
(B) "Club Cottages Parcel Notice Date" shall mean the date
of delivery of a Club Cottages Parcel Notice.
(C) "Club Cottages Parcel Lots" shall mean the lots to be
created by the subdivision and platting of the Club Cottages Parcel in
accordance with the Club Cottages Parcel Site Plans (hereinafter defined).
(D) "Club Cottages Parcel Accessways" shall mean the
roadways to be created by the subdivision and platting of the Club Cottages
Parcel in accordance with the Club Cottages Parcel Site Plans, which roadways
shall provide access to and from the Club Cottages Parcel Lots and Xxxxx Road, a
dedicated public right-of-way.
(E) "Club Cottages Parcel Phase" shall mean a portion of
the Club Cottages Parcel with respect to which Seller and Purchaser shall agree
upon a Club Cottages Parcel Site Plan.
(F) "Club Cottages Declaration" shall mean that certain
Longleaf Club Cottages Declaration of Condominium, dated August 31, 1989, made
by Seller, and recorded with the Recorder's Office in book 680 at page 517, as
amended by that certain Amendment to Declaration of Condominium - Longleaf Club
Cottages, dated February 27, 1990, and recorded in the Recorder's Office in book
707 at page 447.
(ii) It is contemplated that the Club Cottages Parcel will be
developed in phases. Within fifteen (15) days after a Club Cottages Parcel
Notice Date, Purchaser and Seller shall agree upon a final site plan (a "Club
Cottages Parcel Site Plan") for the portion of the Club Cottages Parcel
described in the subject Club Cottages Parcel Notice (or such adjusted portion
of the Club Cottages Parcel as Purchaser and Seller shall agree), and shall
agree upon the Minimum Release Price with respect to each of the Lots shown on
such Club Cottages Site Plan. The date of agreement by Purchaser and Seller to
a Club Cottages Parcel Site Plan is herein sometimes called a "Club Cottages
Parcel Site Plan Date."
(iii) Within sixty (60) days after a Club Cottages Parcel Site
Plan Date, Seller will deliver to Purchaser plans and plats (together the "Club
Cottages Parcel Plans") for the development of the subject Club Cottages Parcel
in accordance with the Club Cottages Parcel Site Plan for such Club Cottages
Parcel Phase; provided, that in the event, within the first forty-five (45) days
of such sixty-day period, Seller shall deliver written notice to Purchaser
requesting additional time to prepare such Club Cottages Parcel Plans, Seller
shall be entitled to extend the 60-day delivery period for such Club Cottages
Parcel Plans by thirty (30) days; provided, however, that Purchaser may not
deliver the first Club Cottages Parcel Notice for a period of two (2) years
after the Effective Date. The period within which Club Cottages Parcel Plans
must be delivered to Purchaser is herein called a "Club Cottages Parcel Plan
Delivery Period."
(iv) (A) For purposes of this Agreement, a "Club Cottages Parcel
Completion Date" shall mean the earliest to occur of (I) one hundred twenty
(120) days after the date of delivery of the Club Cottages Parcel Plans for a
Club Cottages Parcel Phase, or (II) one hundred twenty (120) days after the
expiration of the Club Cottages Parcel Plan Delivery Period for such Club
Cottages Parcel Phase, or (III) the date of completion of all of the conditions
set forth in the following subparagraph (B) with respect to such Club Cottages
Parcel Phase.
(B) Within one hundred twenty (120) days after the earlier
to occur of the date of delivery of the Club Cottages Parcel Plans for a Club
Cottages Parcel Phase or the expiration of the Club Cottages Parcel Plan
Delivery Period for such Club Cottages Parcel Phase, Seller, at its sole cost
and expense, shall cause:
(I) all governmental authorities having jurisdiction
over the development of such Club Cottages Parcel Phase to approve the Club
Cottages Parcel Site Plan for such Club Cottages Parcel Phase;
(II) such Club Cottages Parcel Phase to be subdivided
and platted in accordance with the Club Cottages Parcel Site Plan for such Club
Cottages Parcel Phase;
(III) such Club Cottages Parcel Phase to be zoned to
permit the construction on each of the Club Cottages Parcel Lots on such Club
Cottages Parcel Phase of attached residential dwelling units of a number and
size set forth in the Club Cottages Parcel Site Plan for such Club Cottages
Parcel Phase;
(IV) the taking of such actions as shall be necessary
to grant to the owners of the Club Cottages Parcel Lots on such Club Cottages
Parcel Phase unrestricted access to and from, and unrestricted use for
pedestrian and vehicular ingress and egress of, the Private Roadways, and
unrestricted access to and from the Private Roadways and dedicated public
rights-of-way;
(V) the taking of such actions, in addition to those
described in the preceding subparagraph (IV), as shall be necessary to grant to
the owners of the Club Cottages Parcel Lots on such Club Cottages Parcel Phase
unrestricted pedestrian and vehicular access to and from the Club Cottages
Parcel Lots and Xxxxx Road, a dedicated public right-of-way, including
unrestricted access to and from, and unrestricted use for pedestrian and
vehicular ingress and egress of, the Club Cottages Parcel Accessways;
(VI) the amendment, in form and substance reasonably
acceptable to Purchaser, of the Private Roadway Easement to extend the easements
granted in the Private Roadway Easement to the Club Cottages Parcel Accessways;
(VII) the delivery to Purchaser of (a) a copy of the
recorded plat of subdivision of such Club Cottages Parcel Phase showing the
subdivision of such Club Cottages Parcel Phase in accordance with the Club
Cottages Site Plan for such Club Cottages Parcel Phase, and (b) copies of all
approvals, consents and authorizations of all governmental entities having
jurisdiction over such Club Cottages Parcel Phase to (1) the subdivision of such
Club Cottages Parcel Phase in accordance with the Club Cottages Parcel Site Plan
for such Club Cottages Parcel Phase and (2) the Club Cottages Parcel Site Plan
for such Club Cottages Parcel Phase;
(VIII) the delivery to Purchaser of a copy of all
ordinances, approvals, consents and authorizations of all governmental entities
having jurisdiction over such Club Cottages Parcel Phase to the zoning of each
of the Club Cottages Parcel Lots on such Club Cottages Parcel Phase for the
construction thereon of attached residential dwelling units of a number and size
in accordance with the Club Cottages Parcel Site Plan for such Club Cottages
Parcel Phase; and
(IX) the delivery to Purchaser of an endorsement (a
"Club Cottages Parcel Endorsement") to the Option Policy, later-dating the
Option Policy to a date after the effectuation of the subdivision, platting and
zoning requirements with respect to a Club Cottages Parcel Phase set forth above
in this subparagraph
8(e), and containing no changes to the Option Policy other than (a) the
substitution of Club Cottages Parcel Lots for such Club Cottages Parcel Phase on
Schedule A of the Option Policy, (b) the changes permitted by the Meadow Parcel-
Phase II Endorsement, (c) the changes permitted by the Meadow Parcel-Phase III
Endorsement, (d) the changes permitted by the Meadow Parcel-Phase IV
Endorsement, (e) the changes permitted by the Area F Parcel Endorsements, (f)
the changes permitted by the Magnolia Drive Parcel Endorsement, (g) the changes
permitted by the Fifteenth Hole Parcel Endorsement, (h) the deletion from
Schedule A of the Option Policy of any Lots which have been conveyed to
Purchaser, (i) the addition of an endorsement insuring that each of the Club
Cottages Parcel Lots on such Club Cottages Parcel Phase has been legally
subdivided and platted, (j) the addition of an ALTA 3.0 zoning endorsement
insuring that attached residential dwelling units of a number and size in
accordance with the Club Cottages Parcel Site Plan for such Club Cottages Parcel
Phase can be constructed on each of the Club Cottages Parcel Lots on such Club
Cottages Parcel Phase, (k) the addition of an endorsement insuring that each of
the Club Cottages Parcel Lots on such Club Cottages Parcel Phase has
unrestricted access to and from, and unrestricted use for pedestrian and
vehicular ingress and egress of, the Club Cottages Parcel Accessways, and
unrestricted access to and from the Club Cottages Parcel Accessways and Private
Roadways providing access to and from Xxxxx Road, a dedicated public right-of-
way, and unrestricted use for pedestrian and vehicular ingress and egress of
such Private Roadways, and unrestricted use of all other Private Roadways for
pedestrian and vehicular ingress and egress, and unrestricted access to and from
all other Private Roadways and dedicated public rights-of-way, and (l) the
addition of an endorsement insuring the rights of Purchaser under the Private
Roadway Easement with respect to the Club Cottages Parcel Accessways on such
Club Cottages Parcel Phase.
(v) Within seventy-five (75) days after the Club Cottages Parcel
Completion Date for a Club Cottages Parcel Phase, Seller shall commence, and
within one hundred twenty (120) days after the date of such commencement,
Seller, at its sole cost and expense, shall complete the following:
(A) all actions as shall be necessary to make sanitary
sewer, storm sewer, water, electrical, gas, telephone and cable television
systems and facilities available at the boundary of each of the Club Cottages
Parcel Lots on such Club Cottages Parcel Phase; and
(B) the construction of the Club Cottages Parcel Accessways
on such Club Cottages Parcel Phase, which Club Cottages Parcel Accessways shall
be of the same quality and type as the Private Roadways.
10. Construction Agreement. The obligations of Seller under subparagraphs
----------------------
7(e), 8(e), 9(a)(iii)(C), 9(b)(v), 9(c)(v), 9(d)(v) and 9(e)(v) of this
Agreement (collectively the "Work") shall be performed on behalf of Seller, at
Seller's sole cost and expense, by a site contractor ("Site Contractor")
designated by Purchaser, pursuant to an agreement in form and substance
reasonably acceptable to Purchaser and Seller, by and between Seller and Site
Contractor. The Work shall be supervised by LCCI (hereinafter defined) after
LCCI shall have been duly licensed as a general contractor in the State of North
Carolina. If the supervisory activities of LCCI with respect to the Work
require any time in excess of nominal time periods, the parties shall engage in
good faith negotiations to determine the reasonable value of the supervisory
services of LCCI in excess of nominal time.
11. Indemnifications.
----------------
(a) Seller agrees to indemnify, defend and hold harmless the
Purchaser Group (hereinafter defined), LCL (hereinafter defined) and LCCI from
and against any and all claims, damages, demands, judgments, orders, decrees,
losses, costs, expenses (including consultants' and attorneys' fees and
expenses), forfeitures, charges, liabilities, amounts paid in settlement, fines,
penalties and other sanctions, of any nature whatsoever, which the Purchaser
Group, LCL, LCCI or any of them may suffer or incur by reason of the acts or
omissions or violations of law (including, without limitation, acts or omissions
or violations of law resulting in injury to or death of, or loss or damage to
the property of, any person or persons whomsoever), whether negligent or
willful, of the Seller Group (hereinafter defined) or any of them, including,
without limitation, act or omissions or violations of law of the Seller Group or
any of them occurring after the expiration or earlier termination of this
Agreement.
(b) Purchaser agrees to indemnify, defend and hold harmless the
Seller Group from and against any and all claims, damages, demands, judgments,
orders, decrees, losses, costs, expenses (including consultants' and attorneys'
fees and expenses), forfeitures, charges, liabilities, amounts paid in
settlement, fines, penalties and other sanctions, of any nature whatsoever,
which the Seller Group or any of them may suffer or incur by reason of the acts
or omissions or violations of law (including, without limitation, acts or
omissions or violations of law resulting in injury to or death of, or loss or
damage to the property of, any person or persons whomsoever), whether negligent
or willful, of the Purchaser Group or any of them, including, without
limitation, acts or omissions or violations of law of any of the Purchaser Group
after the expiration or earlier termination of this Agreement.
(c) The terms and provisions of this paragraph 11 shall survive the
expiration or the earlier termination of this Agreement.
(d) Either party's rights to recover damages under (a) and (b) above
shall be limited to the recovery of direct and actual damages and shall exclude
any right to recover indirect, consequential or incidental damages.
12. Land Evaluations.
----------------
(a) Seller hereby grants to Purchaser and its agents, employees,
representatives, contractors and potential lenders a license during the period
commencing April 1, 1998 and terminating upon the earlier to occur of the
expiration of the last of the Option Periods to expire or the termination of
this Agreement to enter upon the Properties at any time and from time to time
for the purposes of making such inspections, tests, observations, surveys,
analyses and studies and investigations (together "Land Evaluations") as
Purchaser may reasonably desire.
(b) In connection with the exercise of the rights set forth in the
preceding subparagraph (a), Purchaser will (i) use its best efforts to minimize
any interference with the residents of the Properties and other persons with
rights to utilize the Development; (ii) indemnify, defend and hold harmless
Seller from and against any and all claims, causes of action or liabilities for
personal injury or property damage suffered or incurred by Seller by reason of
the activities of Purchaser or others acting on Purchaser's behalf on the
Properties; (iii) repair any damage to the Properties caused by activities of
Purchaser or others acting on Purchaser's behalf in connection with the Land
Evaluations; and (iv) restore the Properties to substantially the same condition
they were in prior to the Land Evaluations.
13. Representations and Warranties of Seller. The parties hereto hereby
----------------------------------------
agree as follows:
(a) Seller hereby represents and warrants to Purchaser, as of the
date of this Agreement and as of the Closing Date, as follows:
(i) The preambles to this Agreement are hereby incorporated in
this Agreement as the representations and warranties of Seller, and are made a
part hereof.
(ii) (A) Seller is a limited partnership duly organized,
validly existing and in good standing under the laws of the State of North
Carolina, with full power to conduct its business as presently conducted and to
execute, deliver, and perform the terms and provisions of this Agreement.
(B) The sole general partner in Seller is Longleaf
Investors Corporation ("General Partner"), a North Carolina corporation. General
Partner is duly organized, validly existing and in good standing under the laws
of the State of North Carolina.
(C) All requisite actions on the part of Seller, General
Partner and the limited partners in Seller to authorize the execution, delivery
and performance by Seller of this Agreement have been duly and validly taken;
and this Agreement was duly executed and delivered by Seller, and constitutes
the legal, valid and
binding obligation of Seller, and is enforceable in accordance with its terms;
and the execution, delivery and performance by Seller of this Agreement do not
contravene any provision of existing law or regulation, and do not and will not
conflict with or result in any breach of the terms, conditions or provisions of,
or constitute a default under, the limited partnership agreement creating
Seller, or any resolutions of Seller, or any other agreement binding upon
Seller, or any order, writ, injunction, decree or demand of any court or any
governmental authority affecting Seller or General Partner; and no further
approval, consent, order or authorization of, or designation, registration,
declaration or filing with, any governmental authority is required in connection
with the valid execution and delivery by Seller of this Agreement or the
carrying out by Seller of the transactions contemplated by this Agreement; and
except for the approvals, consents and authorizations contemplated herein, all
approvals, consents and authorizations required in connection with the valid
execution and delivery of this Agreement by Seller or the carrying out by Seller
of the transactions contemplated by this Agreement have been obtained by Seller
and are in full force and effect; and except for the approvals, consents and
authorizations contemplated herein, no further approval, consent or
authorization of any other person is required in connection with the valid
execution and delivery of this Agreement by Seller or the carrying out by Seller
of the transactions contemplated by this Agreement.
(iii) Seller has dealt with no broker, finder or other
intermediary other than Xxxxx X. Xxxxxx ("Seller's Broker") in connection with
the transactions which are the subject of this Agreement; and there are no, and
there will be no, claims by any broker, finder or other person for any
commission, compensation or remuneration arising out of, or in any way related
to, this Agreement or the conveyance of the Properties other than amounts
payable by Seller to Seller's Broker, which amounts shall be the sole and
absolute obligations of Seller, and which amounts shall be paid by Seller when
due and payable.
(iv) To the best of Seller's knowledge, after reasonable
inquiry, there is no existing, proposed or contemplated public plan, public
project or public work affecting the Development or any part thereof that would
materially and adversely affect the use of the Properties contemplated under
this Agreement or the zoning of the Properties.
(v) To the best of Seller's knowledge, after reasonable
inquiry, there is no condemnation proceeding or eminent domain proceeding of any
kind pending, proposed or contemplated against the Development or any part
thereof.
(vi) Except as set forth in Exhibit R attached hereto and made
---------
a part hereof, there is no lease in effect with respect to any of the
Properties.
(vii) Except as set forth in Exhibit S attached hereto and made
---------
a part hereof, there is no party in possession of any portion of the Properties
as lessee, tenant at sufferance or trespasser.
(viii) There is no litigation or proceeding pending or, to the
best of Seller's knowledge, contemplated or threatened against or affecting the
Properties or any portion thereof or Seller or General Partner that, if
adversely determined, would have a material adverse effect on the Properties or
any portion thereof or on Seller or General Partner.
(ix) (A) Pursuant to the terms of the PUD Approval, all of the
Properties are zoned to permit the use of the Properties for residential
purposes.
(B) Each of the Existing Single-Family Lots is zoned for
the construction thereon of a detached single-family dwelling unit.
(C) Seller has no actual knowledge of any fact, or any
action or proceeding, whether pending or threatened, which could result in a
modification of the PUD Approval or of the zoning of the Properties or any
portion thereof that would materially and adversely interfere with the uses of
the Properties contemplated under this Agreement.
(x) Except for this Agreement and any documents listed in this
Agreement or in any exhibit to this Agreement as being documents to which Seller
is a party, the PUD Approval, the matters set forth in the Option Policy to be
delivered pursuant to this Agreement, and the documents listed in Exhibit T
---------
attached hereto and made a part hereof, there is no agreement of any kind
whatsoever in effect with respect to any of the Properties.
(xi) No person has (A) any right now or at any time in the
future to purchase the Properties or any portion thereof, or (B) any option,
exercisable now or at any time in the future, to purchase the Properties or any
portion thereof, or (C) any right of first refusal, exercisable now or at any
time in the future, to purchase the Properties or any portion thereof.
(xii) Except as set forth in Exhibit U attached hereto and made
---------
a part hereof, there is no judgment, writ, injunction, decree or order
outstanding with respect to the Properties or any portion thereof or Seller or
General Partner.
(xiii) Seller has received no written notice of any violation of,
and, to the best of Seller's knowledge, Seller has not materially or adversely
violated, any applicable federal, state, county, water district, conservation
district, municipal utility district, river authority or local statutes, laws,
regulations, rules ordinances, codes, licenses or permits, including, without
limitation, statutes, laws, regulations, rules, ordinances, codes, licenses or
permits regarding health, safety or environmental matters.
(xiv) Except for wetlands located on those portions of the Area
F Parcel outlined on Exhibit I attached hereto and made a part hereof, and
---------
except for that certain Red Cockaded Woodpecker Habitat Improvement Cooperative
Agreement (the "Woodpecker Agreement"), dated September 15, 1995, between the
United States Fish and Wildlife Service and Seller, Seller has no actual
knowledge of any material adverse fact relating to the physical condition of the
Properties, including, without limitation, (A) adverse soil, groundwater or
surface conditions, (B) the location of any portion of the Properties in a flood
plain or flood-prone area within the meaning of the Flood Disaster Protection
Act of 1973, (C) the presence of wetlands within the confines of any of the
Properties, (D) the presence in, on or about any portion of the Properties of
any threatened or endangered species, (E) any portion of the Properties being
subject to historical preservation, (F) the presence of any above-ground storage
tanks or underground storage tanks within the confines of any of the Properties,
or (G) except for materials normally associated with the construction of
residential housing, the maintenance and repair of such housing and the normal
operation of a golf course, the discharge, disposal, deposit, injection,
dumping, spilling, leaking, leaching, placing, presence, pumping, pouring,
emitting, emptying, escaping or release on or at any of the Properties of any
hazardous material, including, without limitation, radioactive materials,
asbestos and asbestos-containing materials (whether or not friable), urea-
formaldehyde in any of its forms, polychlorinated biphenyls, oil, used oil,
petroleum products and their by-products, lead-based paint, radon, or any
substances defined as "hazardous substances", "hazardous materials", "hazardous
wastes", "toxic substances", "solid waste", "hazardous chemicals", "hazardous
air pollutants", "pollutants", "contaminants", or "toxic chemicals" under any
federal, state or local law, ordinance, regulation or rule regarding the
environment .
(xv) Except as set forth in Exhibit V attached hereto and made
---------
a part hereof, to the best of Seller's knowledge, after reasonable inquiry, no
current or future owner of any of the Properties has any obligation to any
governmental agency, utility company, school board, church or other religious
body, homeowner, homeowners' association or any other person to make any
contribution of money or dedication of land, or to construct, install or
maintain any improvements of a public or private nature on or off the
Properties; and no governmental authority has imposed any requirement that the
owner of all or any part of the Properties pay, directly or indirectly, any
special fees or contributions, or incur any expenses or obligations, in
connection with any construction on the Properties or any part thereof.
(xvi) To the best of Seller's knowledge, after diligent inquiry,
there is no easement, claim of easement, actual or contemplated mechanic's lien
or materialmen's lien, or tax or special assessment relating to any of the
Properties that is not shown of public record except for potential mechanics' or
materialmen's liens in
connection with Seller's construction of residential dwellings, which potential
liens Seller promptly will cause to be discharged if recorded.
(xvii) (A) Sanitary sewer, storm sewer, water, electrical, gas,
telephone and cable television systems and facilities are available at the
boundary of each of the Existing Single-Family Lots, all of which systems and
facilities are operational and in good working order, and all of which systems
and facilities are publicly owned; and the owners of such systems and facilities
are required by law to provide sanitary sewer, storm sewer, water, electrical,
gas, telephone and cable television services to the Units located at any time
and from time to time on each of the Existing Single-Family Lots; and all of
such systems and facilities have adequate capacity to provide sanitary sewer,
storm sewer, water, electrical, gas, telephone and cable television services to
the Units located at any time and from time to time on the each of the Existing
Lots.
(B) Sanitary sewer, storm sewer, water, electrical, gas,
telephone and cable television systems and facilities adequate to service not
less than eleven (11) Detached Units on the Magnolia Drive Parcel are available
at the boundary of the Magnolia Drive Parcel, all of which systems and
facilities are operational and in good working order, and all of which systems
and facilities are publicly owned; and the owners of such systems and facilities
are required by law to provide sanitary sewer, storm sewer, water, electrical,
gas, telephone and cable television services to not less than 11 Detached Units
located at any time and from time to time on the Magnolia Drive Parcel; and all
of such systems and facilities have adequate capacity to provide sanitary sewer,
storm sewer, water, electrical, gas, telephone and cable television services to
not less than 11 Detached Units located at any time and from time to time on the
Magnolia Drive Parcel.
(C) Sanitary sewer, storm sewer, water, electrical, gas,
telephone and cable television systems and facilities adequate to service not
less than four (4) Units on the Fifteenth Hole Parcel are available at the
boundary of the Fifteenth Hole Parcel, all of which systems and facilities are
operational and in good working order, and all of which systems and facilities
are publicly owned; and the owners of such systems and facilities are required
by law to provide sanitary sewer, storm sewer, water, electrical, gas, telephone
and cable television services to not less than 4 Units located at any time and
from time to time on the Fifteenth Hole Parcel; and all of such systems and
facilities have adequate capacity to provide sanitary sewer, storm sewer, water,
electrical, gas, telephone and cable television services to not less than 4
Units located at any time and from time to time on the Fifteenth Hole Parcel.
(D) Sanitary sewer, storm sewer, water, electrical, gas,
telephone and cable television systems and facilities adequate to service not
less than seventy-one (71) Units on the Meadow Parcel are available at the
boundary of the Meadow Parcel, all of which systems and facilities are
operational and in good working order, and all of which systems and facilities
are publicly owned; and the owners of such systems and facilities are required
by law to provide sanitary sewer, storm sewer, water, electrical, gas, telephone
and cable television services to not less than 71 Units located at any time and
from time to time on the Meadow Parcel; and all of such systems and facilities
have adequate capacity to provide sanitary sewer, storm sewer, water,
electrical, gas, telephone and cable television services to not less than 71
Units located at any time and from time to time on the Meadow Parcel.
(E) Sanitary sewer, storm sewer, water, electrical, gas,
telephone and cable television systems and facilities adequate to service not
less than fifty-seven (57) Units on the Area F Parcel are available at the
boundary of the Area F Parcel, all of which systems and facilities are
operational and in good working order, and all of which systems and facilities
are publicly owned; and the owners of such systems and facilities are required
by law to provide sanitary sewer, storm sewer, water, electrical, gas, telephone
and cable television services to not less than 57 Units located at any time and
from time to time on the Area F Parcel; and all of such systems and facilities
have adequate capacity to provide sanitary sewer, storm sewer, water,
electrical, gas, telephone and cable television services to not less than 57
Units located at any time and from time to time on The Area F Parcel.
(F) Sanitary sewer, storm sewer, water, electrical,
gas, telephone and cable television systems and facilities adequate to service
not less than forty-two (42) Units on the Club Cottages Parcel are available at
the boundary of the Club Cottages Parcel, all of which systems and facilities
are operational and in good working order, and all of which systems and
facilities are publicly owned; and the owners of such systems and facilities are
required by law to provide sanitary sewer, storm sewer, water, electrical, gas,
telephone and cable television services to not less than 42 Units located at any
time and from time to time on the Club Cottages Parcel; and all of such systems
and facilities have adequate capacity to provide sanitary sewer, storm sewer,
water, electrical, gas, telephone and cable television services to not less than
42 Units located at any time and from time to time on the Club Cottages Parcel.
(xviii) All permits, approvals, authorizations and licenses
(herein together called the "Permits") required for the development of the
Properties for residential purposes, other than building permits, have been
issued or will be issued by all governmental authorities having jurisdiction
over the Properties, and all such existing Permits are in full force and effect,
and have not been modified, amended or changed in any manner whatsoever; and
there are no defaults under such Permits, nor has any event occurred which, with
the passage of time or the giving of notice or both, would constitute a default
under such Permits; and all of the existing Permits are issued to, held by, and
assignable by Seller; and to the extent required by law to effect the
transactions contemplated under this Agreement all of the issuers of the Permits
have consented or will consent if required by law to the assignment by Seller to
Purchaser of all of Seller's right, title and interest in, to and under the
Permits.
(xix) All of the Existing Single-Family Lots have been
properly registered pursuant to the Interstate Land Sales Act and any comparable
state act in effect in North Carolina. Purchaser shall be entitled to amend any
of such registrations to the extent necessary to cover the sale by Purchaser of
Lots and Units; provided, however, (A) Purchaser shall pay for any and all
costs, including but not limited to attorneys' fees, associated with the
amendment or updating by Purchaser of any of Seller's existing registrations or
any of Seller's new registrations that are required in order to cover the sale
by Purchaser of Lot/Unit packages (it being understood and agreed that Purchaser
shall have no obligations whatsoever with respect to any existing registrations
or any new registrations of Seller relating solely to the sale by Seller of
lots) and (B) such amendments and updates shall be true and accurate. Purchaser
shall indemnify and hold Seller harmless against any violation by Purchaser of
any state or federal law requiring the registration by Purchaser of the sale by
Purchaser of Lot/Unit packages, including payment of attorneys' fees and fines
or penalties suffered or incurred by Seller by reason of such violation.
(xx) No governmental authority or agency having jurisdiction
over the Properties has declared or effected any moratorium on (A) the issuance
of permits for the construction of Units on the Properties, or (B) the issuance
of certificates of occupancy for Units on the Properties, or (C) the purchase of
sewer and/or water taps for Units on the Properties.
(xxi) To the best of Seller's knowledge, after diligent
inquiry, there are no water xxxxx located on or under any of the Properties.
(xxii) The Development is located entirely within the
boundaries of the Town.
(xxiii) (A) (I) For purposes of this Agreement, the "Hunter
Trail Declaration" shall mean the Longleaf Hunter Trail Declaration of
Covenants, Conditions and Restrictions, dated March 11, 1991, made by Seller,
recorded with the Recorder's Office on March 19, 1991 in book 767 at page 99; as
amended by the First Amendment Longleaf Hunter Trail Declaration of Covenants,
Conditions and Restrictions, dated October 23, 1991, made by Seller, recorded
with the Recorder's Office on December 9, 1991 in book 806 at page 509; as
amended by the Second Amendment Longleaf Hunter Trail Declaration of Covenants,
Conditions and Restrictions, dated April 26, 1992, made by Seller, recorded with
the Recorder's Office on June 5, 1992 in book 842 at page 26; as amended by the
Third Amendment Longleaf Hunter Trail Declaration of Covenants, Conditions and
Restrictions, dated April 16, 1993, made by Seller, recorded with the Recorder's
Office on April 22, 1993 in book 905 at page 49; and as
amended by the Fourth Amendment Longleaf Hunter Trail Declaration of Covenants,
Conditions and Restrictions, dated June 1, 1994, made by Seller, recorded with
the Recorder's Office on July 15, 1994 in book 1017 at page 25.
(II) For purposes of this Agreement, the "Single-
Family Declaration" shall mean the Longleaf Single-Family Declaration of
Covenants, Conditions and Restrictions, dated March 1, 1991, made by Seller,
recorded with the Recorder's Office on March 22, 1991 in book 767 at page 296;
as amended by the First Amendment Longleaf Single-Family Declaration of
Covenants, Conditions and Restrictions, dated April 16, 1993, made by Seller,
recorded with the Recorder's Office on April 22, 1993 in book 905 at page 481;
as amended by the Second Amendment to Declaration - Longleaf Single-Family,
dated June 1, 1994, made by Seller, recorded with the Recorder's Office on July
15, 1994 in book 1017 at page 22; and as amended by the Third Amendment Longleaf
Single-Family Declaration of Covenants, Conditions and Restrictions, dated
August 28, 1995, made by Seller, recorded with the Recorder's Office on August
30, 1995 in book 1110 at page 319.
(III) For purposes of this Agreement, the "Master
Declaration" shall mean the Articles of Incorporation of Longleaf Master
Homeowners Association, Inc., dated September 15, 1989, recorded with the
Recorder's Office on September 25, 1989 in book 681 at page 514; as amended by
Statement of Change of Registered Office or Registered Agent of Longleaf Master
Homeowners Association, Inc., dated June 1, 1990, recorded with the Recorder's
Office on August 27, 1990 in book 737 at page 443; as amended by Amended and
Restated Charter of Longleaf Master Homeowners Association, Inc., dated May 31,
1991, made by Seller, recorded with the Recorder's Office on June 19, 1991 in
book 781 at page 339; and as amended by the Third Amendment Longleaf Single-
Family Declaration of Covenants, Conditions and Restrictions, dated August 28,
1995, made by Seller, recorded with the Recorder's Office on August 30, 1995 in
book 1110 at page 319.
(IV) For purposes of this Agreement, the "Lakeside
Villas Declaration" shall mean The Longleaf Lakeside Villas Declaration of
Condominium, dated August 31, 1989, made by Seller, recorded in the Recorder's
Office on September 27, 1989 in book 681 at page 1; as amended by an Amendment
to Declaration of Condominium - Longleaf Lakeside Villas, dated April 19, 1990,
made by Seller, recorded in the Recorder's Office on April 26, 1990 in book 716
at page 366; and as amended by Amendment to Declaration of Condominium -
Longleaf Lakeside Villas, dated January 29, 1991, made by Seller, recorded in
the Recorder's Office on February 14, 1991 in book 762 at page 507; and as
amended by Amendment to Declaration of Condominium - Longleaf Lakeside, dated
June 7, 1993, made by Seller, recorded in the Recorder's Office on June 9, 1993
in book 917 at page 12; and as amended by Amendment to Declaration of
Condominium - Longleaf Lakeside Villas, dated November 19, 1993, made by Seller,
recorded in the Recorder's Office on December 2, 1993 in book 961 at page 274;
and as amended by Longleaf Lakeside Villas Amended Declaration of Condominium,
dated April 14, 1994, made by Seller, recorded in the Recorder's Office on April
29, 1994 in book 998 at page 370; and as amended by Longleaf Lakeside Villas
Amended Declaration of Condominium, dated June 22, 1995, made by Seller,
recorded in the Recorder's Office on June 22, 1995 in book 1093 at page 425; and
as amended by Longleaf Lakeside Villas Amended Declaration of Condominium, dated
February 29, 1996, made by Seller, recorded in the Recorder's Office on March 4,
1996 in book 1155 at page 21; and as amended by Longleaf Lakeside Villas Amended
Declaration of Condominium, dated March 1, 1996, made by Seller, recorded in the
Recorder's Office on March 26, 1996 in book 1160 at page 517; and as amended by
Longleaf Lakeside Villas Amended Declaration of Condominium, dated November 15,
1996, made by Seller, recorded in the Recorder's Office on November 26, 1996 in
book 1224 at page 416; and as amended by Longleaf Lakeside Villas Amended
Declaration of Condominium, dated February 29, 1996, made by Seller, recorded in
the Recorder's Office on May 21, 1997 in book 1270 at page 74; and as amended by
Longleaf Lakeside Villas Amended Declaration of Condominium, dated August 27,
1997, made by Seller, recorded in the Recorder's Office on August 29, 1997 in
book 1299 at page 132.
(IV) For purposes of this Agreement, the "Master
Declaration By-Laws" shall mean the Restated By-Laws of Longleaf Master
Homeowners Association, dated March 1, 1991.
(V) The Hunter Trail Declaration, the Single-Family
Declaration, the Patio Homes 'G' Declaration, the Lakeside Villas Declaration,
the Magnolia Park Declaration, the Meadow Villas
Declaration, the Club Cottages Declaration and the Master Declaration are herein
together sometimes called the "Declarations" or individually a "Declaration."
(B) Each of the Declarations is in full force and effect,
and has not been modified or amended in any way.
(C) The Master Declaration By-Laws are in full force and
effect, and have not been modified or amended in any way.
(D) Seller is the declarant (the "Declarant") under each of
the Declarations, and owns, holds and is entitled to exercise all of the right,
title, interest, and privileges of the Declarant under the Declarations.
(E) Seller is the owner of the Private Roadways; and none
of the Private Roadways has been dedicated or transferred to any other person.
(F) The roadways in the Development that are known as Xxxxx
Road, Steeplechase Way, Steeplechase Court, Paddock Lane, Preakness Court,
Belmont Court, Triple Crown Circle, Hunter Trail, Hunter Court and Magnolia
Drive (herein together called the "Dedicated Roadways") are all dedicated public
rights-of-way which have been accepted by, and are owned and maintained by, the
Town; and Xxxxx Road has direct access to and from Airport Road and Midland
Road, both of which are dedicated public rights-of-way.
(G) The Private Roadways have been completely installed,
are in good condition, and are open and available for use by vehicular and
pedestrian traffic; and all of the Private Roadways are and will be available
for use by all of the owners of Units constructed on the Properties for
vehicular and pedestrian use; and the Private Roadways have direct access to
Xxxxx Road.
(H) Pursuant to the terms of the Master Declaration,
Longleaf Master Homeowners Association, Inc. (the "Master Association") has the
power to directly or indirectly administer and enforce the covenants,
conditions, restrictions, charges and liens of the Declarations; and the Master
Association is a corporation duly organized, validly existing and in good
standing under the laws of the State of North Carolina.
(I) The Master Association is currently exercising all of
the rights and duties of the associations (herein together sometimes called the
"Individual Associations" or individually an "Individual Association") created
by the Hunter Trail Declaration, the Single-Family Declaration, the Patio Homes
'G' Declaration, the Lakeside Villas Declaration, the Magnolia Park Declaration,
the Meadow Villas Declaration and the Club Cottages Declaration other than the
rights and duties set forth in Exhibit W attached hereto and made a part hereof.
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(J) Seller currently controls the Master Association and
each of the Individual Associations except for the Individual Associations known
as Longleaf Lakeside Villas Homeowners Association, Inc. and Longleaf Club
Cottage Homeowners Association, Inc. Seller has turned over control of the
Longleaf Lakeside Villas Homeowners Association, Inc. and of the Longleaf Club
Cottages Homeowners Association, Inc. to the Longleaf Lakeside Villas Homeowners
Association, Inc. and the Club Cottage Homeowners Association, Inc.,
respectively, subject to the provisions of their by-laws and the by-laws of the
Master Association.
(K) Seller will retain control of each of the Individual
Associations referenced in the Hunter Trail Declaration, the Patio Homes 'G'
Declaration and the Magnolia Park Declaration until such time as a total of four
hundred fifty dwelling units that are subject to any of the Hunter Trail
Declaration, the Patio Homes 'G' Declaration and the Magnolia Park Declaration
shall have been conveyed to third-party purchasers; and, as of the Closing Date,
the units that are subject to said three Individual Declarations that have been
conveyed to third-
party purchasers, and the units that are subject to any of said three
Individual Declarations that are subject to contracts for sale with third-party
purchasers, are as set forth in Exhibit X attached hereto and made a part
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hereof.
(L) The rights of Seller, as Declarant under each of the Declarations,
are and will be available to Purchaser to the extent necessary to effect the
terms of this Agreement.
(M) The assessments and reserves currently payable under the
Declarations are set forth on Exhibit Y attached hereto and made a part hereof.
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(N) No assessments and reserves relating to each of the Hunter Trail
Declaration, the Patio Homes 'G' Declaration and the Magnolia Park Declaration
are held by The Longleaf Hunter Trail Homeowners' Association, Inc.
(O) Exhibit Z attached hereto and made a part hereof sets forth the
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portions of the common areas created by the Declarations that have been
transferred, and the name of the transferees.
(P) All casualty insurance, public liability insurance, fidelity
insurance and other insurance required to be maintained pursuant to the terms of
the Declarations is in full force and effect.
(Q) The only architectural guidelines and standards that have been
adopted pursuant to the Declarations are the Longleaf Architectural Guidelines
and Review Procedures for Custom Built Single-Family Homes (the "Single-Family
Architectural Guidelines"), dated September, 1990, adopted by the Longleaf
Architectural Review Board; which Single-Family Architectural Guidelines were
approved by the Master Association; and which Single-Family Architectural
Guidelines are in full force and effect, and have not been modified or amended.
(R) There are no rules and regulations governing the day-to-day
operation of the Properties other than the rules and regulations contained in
the Declarations.
(S) Any portion of any of the Properties can be made subject to any of
the Declarations other than the Club Cottages Declaration and the Lakeside
Villas Declaration.
(T) The definition of "Living Area" in the Patio Homes 'G' Declaration
is the same as the definition of "Living Area" that is contained in the Hunter
Trail Declaration.
(U) No consent, approval, authorization or permission is required from
Seller, as Declarant under the Master Declaration, or the Master Association in
order to subdivide and plat the Properties.
(V) Attached hereto as Exhibit AA and made a part hereof is a list of
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the members of the boards of directors of the Master Association and each of the
Individual Associations, together with a list of the officers of each of the
Master Association and the Individual Associations.
(W) On the Closing Date, the members of the Architectural Review
Committee will be the following persons: Xxxxxxxx X. Xxxxx, Xxxxxx X.
Xxxxxxxxxx, Xx. and Xxxxxx X. Xxxx.
(X) So long as Seller controls the Master Association, Seller will
have the power to appoint the members of the Architectural Review Committee.
(xxiv)(A) Fire protection is provided to the Development by the Town.
(B) Police protection is provided to the Development by the Town.
(C) Educational services and facilities are provided to the
Development by the Town.
(xxv) Seller is the fee simple owner of the sales center (the "Sales
Center") for the Properties, which Sales Center is located near the intersection
of Xxxxx Road and Magnolia Drive in the Development; which Sales Center is
subject to no lien or encumbrance of any nature whatsoever other than a first
mortgage and a second mortgage, recorded in the Recorder's Office in book 656 at
page 1, and in book 447 at page 72, respectively, made by Seller to respectively
NationsBank, N.A. and O. Xxxxx Xxxxx, Trustee (as assigned to Xxxx X. Xxxxxx,
Xx.) (which mortgages, as amended, are herein together sometimes called the
"Sales Center Mortgages"); which Sales Center is subject to no lease of any
kind; and which Sales Center is used by Seller for the purpose of marketing the
sale of Lots in the Properties.
(xxvi)(A) To the best of Seller's knowledge, Xxxxxx is the sole owner
in fee simple of all of the following (herein together called the "Golf Course
Facilities"):
(I) the eighteen-hole golf course located on the
Development and known as "The Club at Longleaf";
(II) the golf course clubhouse and surrounding facilities,
including, without limitation, the parking areas and practice putting green,
located on the Development;
(III) the driving range located on the Development;
(IV) the tennis and swimming facilities located on the
Development; and
(V) the golf maintenance center located on the
Development.
(B) The use of the Golf Course Facilities, including the use of the
Golf Course Facilities by members of The Club at Longleaf (the "Club"), are
governed by the Xxxxxx Agreements.
(C) Notwithstanding anything to the contrary contained in the Golf
Club Rules, the number of residential lots and condominium units in the
Development with respect to which Seller is entitled to grant easements of
enjoyment under the Easement of Enjoyment is five hundred nine (509), three
hundred nineteen (319) of which easements of enjoyment are available for
conveyance to purchasers of Units.
(D) (I) Each owner of a Unit who purchases a membership in the Club
and remains a member in good standing of the Club under the Golf Club Rules is
entitled to a membership in the Club upon payment of the applicable membership
fees and dues. The membership fees and dues payable with respect to the Club as
of the Closing Date, and the recipient of such fees and dues, are set forth in
Exhibit BB attached hereto and made a part hereof.
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(II) Pursuant to the Restated Contract, Seller has contracted with
Xxxxxx to purchase six hundred eighteen memberships in the Club. Purchaser does
not have, and shall at no time have, any personal obligation to purchase any
memberships in the Club other than with respect to those Lots which are conveyed
by Seller to Purchaser. Purchaser shall have no obligation to make any payments
of any amounts under the Xxxxxx Agreements except for the amounts payable
pursuant to subparagraph 1(g) of this Agreement.
(E) The swimming pool, bathhouse and tennis courts comprising part of
the Golf Course Facilities were completed in accordance with the Xxxxxx
Contract, and the $300,000 letter of credit delivered to Seller by Xxxxxx to
ensure such completion was returned to Xxxxxx.
(xxvii) (A) The only real estate that is currently subject to the terms
of the Meadow Villas Declaration is the real estate outlined on Exhibit G-6
-----------
attached hereto and made a part hereof ("Meadow Parcel-Phase I"), which includes
ten condominium units located in three separate buildings (the "Meadow Parcel-
Phase I Buildings"), as shown on Exhibit G-6.
-----------
(B) (I) Pursuant to that plat recorded at Plat Cabinet 6,
Page 686 at the Recorder's Office (the "Meadow Parcel Roadway Agreement"),
condominium units in the Meadow Parcel-Phase I Buildings have unrestricted
access to and from the Meadow Parcel-Phase I Buildings and Meadow Parcel Roadway
I, and have unrestricted use of Meadow Parcel Roadway I for pedestrian and
vehicular ingress and egress, and have unrestricted access to and from Meadow
Parcel Roadway I and Xxxxx Road, a dedicated public right-of-way.
(II) Meadow Parcel Roadway I is owned by The Xxxxxxx
Condominium, subject to the terms of the Meadow Parcel Roadway Agreement.
(III) Meadow Parcel Roadway I has been completely
installed; is of the same quality and type and the Private Roadways; is in good
condition; and is open and available for use by vehicular and pedestrian
traffic.
(IV) Complete engineering plans ("Existing Meadow
Parcel-Phase II Plans") exist for the development of Meadow Parcel-Phase II with
five separate buildings as shown on Exhibit G-2 attached hereto.
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(b) Purchaser acknowledges that Seller has made no representations and
warranties other than the representations contained in this Agreement. All of
the representations and warranties made by Seller in this Agreement shall be
deemed to be remade on the Closing Date and shall survive the Closing.
(c) If any of the representations and warranties made by Seller in
this Agreement are not materially true as of the date of execution of this
Agreement or any time thereafter prior to the Closing Date, such falsity shall
constitute a default by Seller under this Agreement, and Seller shall have
thirty (30) days from the receipt of written notice thereof to cure such
default. If, at the end of such thirty (30) day period, Seller shall have
failed to cure such default, Purchaser shall have the right to terminate this
Agreement. If Purchaser shall so elect to terminate this Agreement, then the
parties hereto shall have no further rights, obligations or liabilities under
this Agreement [other than the obligations of Seller under subparagraphs 11(a),
18(b), 19(b) and 20(b) of this Agreement and the obligations of Purchaser under
subparagraphs 11(b), 12(b), 18(d) and 19(c) of this Agreement].
(d) When a representation or warranty is made "to the actual knowledge
of Seller" or "to the best of Seller's knowledge," such term shall mean the
current actual knowledge of Xxxxxx X. Xxxx or Xxxxxx X. Xxxxxxxxxx, Xx.
(e) Seller will include a grant of the Easement of Enjoyment in each
special warranty deed delivered to Purchaser conveying a Lot, and will not cause
a termination of its right to grant such Easements of Enjoyment.
14. Representations and Warranties of Purchaser. The parties hereto
-------------------------------------------
hereby agree as follows:
(a) Purchaser hereby represents and warrants to Seller, as of the date
of execution of this Agreement and as of the Closing Date, as follows:
(i) (A) Purchaser is a limited liability company duly organized,
validly existing and in good standing under the laws of the State of Delaware,
and duly qualified and in good standing under the laws of the State of North
Carolina, with full power to conduct its business as presently conducted and to
execute, deliver, and perform the terms and provisions of this Agreement.
(B) The sole member of Purchaser is CMC. CMC is duly
organized, validly existing and in good standing under the laws of the State of
Delaware.
(C) All requisite actions on the part of Purchaser and CMC to
authorize the execution, delivery and performance by Purchaser of this Agreement
have been duly and validly taken; and this Agreement was duly executed and
delivered by Purchaser, and constitutes the legal, valid and binding obligation
of Purchaser, and is enforceable in accordance with its terms; and the
execution, delivery and performance by Purchaser of this Agreement do not
contravene any provision of existing law or regulation, and do not and will not
conflict with or result in any breach of the terms, conditions or provisions of,
or constitute a default under, the limited liability company agreement creating
Purchaser, or any resolutions of Purchaser, or any other agreement binding upon
Purchaser, or any order, writ, injunction, decree or demand of any court or any
governmental authority affecting Purchaser or CMC; and no further approval,
consent, order or authorization of, or designation, registration, declaration or
filing with, any governmental authority is required in connection with the valid
execution and delivery by Purchaser of this Agreement or the carrying out by
Purchaser of the transactions contemplated by this Agreement; and all approvals,
consents and authorizations required in connection with the valid execution and
delivery of this Agreement by Purchaser or the carrying out by Purchaser of the
transactions contemplated by this Agreement have been obtained by Purchaser and
are in full force and effect; and no further approval, consent or authorization
of any other person is required in connection with the valid execution and
delivery of this Agreement by Purchaser or the carrying out by Purchaser of the
transactions contemplated by this Agreement.
(ii) Purchaser has dealt with no broker, finder or other
intermediary in connection with the transactions which are the subject of this
Agreement other than Seller's Broker; and there are no, and there will be no,
claims by any broker, finder or other person against Purchaser for any
commission, compensation or remuneration arising out of, or in any way related
to, this Agreement or the conveyance of the Properties.
(iii) Purchaser has received a copy of, and has reviewed, each of
(A) that certain Property Report, dated May 2, 1997, prepared by Seller with
respect to the Development, and (B) the Woodpecker Agreement.
(b) Seller acknowledges that Purchaser has made no representations and
warranties other than the representations contained in this Agreement. All of
the representations and warranties made by Purchaser in this Agreement shall be
deemed to be remade on the Closing Date and shall survive the Closing.
(c) If any of the representations and warranties made by Purchaser in
this Agreement are not true as of the date of execution of this Agreement or any
time thereafter prior to the Closing Date, such falsity shall constitute a
default by Purchaser under this Agreement, and Purchaser shall have thirty (30)
days from the receipt of written notice thereof to cure such default. If, at
the end of such thirty (30) day period, Purchaser shall failed to cure such
default, Seller shall have the right to terminate this Agreement. If Seller
shall so elect to terminate this Agreement, then the parties hereto shall have
no further rights, obligations or liabilities under this Agreement [other than
the obligations of Seller under paragraphs 11(a), 18(b), 19(b) and 20(b) of this
Agreement and the obligations of Purchaser under paragraphs 11(b), 12(b), 18(d)
and 19(c) of this Agreement].
15. Covenants of Purchaser; Purchaser's Obligations During the Option
-----------------------------------------------------------------
Periods. Until the expiration of the last of the Option Periods to expire or the
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earlier termination of this Agreement, Purchaser shall do the following:
(a) Cause the Detached Units, if any, that may be built by
Purchaser on Single-Family Lots to be constructed in conformance with the
Single-Family Architectural Guidelines;
(b) Comply with the applicable registration requirements with
respect to the sale by Purchaser of Units and/or Lots under federal law, and
comply with the applicable registration requirements under the laws of all
states in which Purchaser is offering Units and/or Lots for sale, provided,
however, that Purchaser shall pay for any and all costs, including but not
limited to attorneys' fees, associated with the amendment or updating by
Purchaser of any of Seller's existing registrations or any of Seller's new
registrations that are required in order to cover the sale by Purchaser of
Lot/Unit packages (it being understood and agreed that Purchaser shall have no
obligations whatsoever with respect to any existing registrations or any new
registrations of Seller relating solely to the sale by Seller of lots;
(c) Comply with all applicable federal and state laws regarding
the solicitation of purchasers for Units, including, without limitation, all
applicable federal and state laws regarding advertising;
(d) Manage, at the sole cost and expense of Seller, the twelve
(12) existing condominium units governed by the Club Cottages Declaration
pursuant to the Management Agreement attached hereto as Exhibit CC and made a
----------
part hereof,and manage the Club Cottage Rental Program pursuant to the
checklist set forth on Exhibit DD attached hereto and made a part hereof, for
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which services Seller shall pay to Purchaser a fee in an amount to be
agreed upon by Seller and Purchaser by December 1, 1998;
(e) Maintain, at the sole cost and expense of Seller, the
Properties, for which service Seller shall pay to Purchaser a fee in an amount
to be agreed upon by Seller and Purchaser by December 1, 1998;
(f) Maintain, with funds collected pursuant to the Declarations,
the common areas, if any, of the Master Association and of the Individual
Associations that are set forth on Exhibit Z; provided that any amounts in
---------
excess of those collected pursuant to the Declarations that are required to
maintain such common areas shall be the sole responsibility of, and shall be
promptly paid to Purchaser by, Seller; further provided, that Seller shall pay
to Purchaser a fee for such service in an amount to be agreed upon by Seller and
Purchaser by December 1, 1998;
(g) Beginning January 1, 1999, conduct, for a fee in an amount to
be agreed upon by Seller and Purchaser by December 1, 1998, the administrative
services of the Master Association and Individual Associations, including but
not limited to setting budgets and collecting fees and dues, all as set forth on
Exhibit EE, Schedule of Administrative Services, attached hereto and made a part
----------
hereof, the cost of the provision of which administrative services shall be paid
to Purchaser from the amounts collected pursuant to the Declarations, provided
that any amounts in excess of those collected pursuant to the Declarations that
are required to conduct such administrative services shall be the sole
responsibility of, and shall be promptly paid to Purchaser by, Seller;
(h) Meet with Seller on a weekly basis utilizing an agenda
reasonably acceptable to both Seller and Purchaser;
(i) Provide Seller with copies of Sales Agreements and of the
RESPA statements provided to Third-Party Buyers in connection with the closings
of Units;
(j) Continue to be a limited liability company duly organized,
validly existing and in good standing under the laws of the State of Delaware,
and duly qualified and in good standing under the laws of the State of North
Carolina, with full power to conduct its business as presently conducted, the
controlling member of which shall be CMC Heartland Partners, a Delaware general
partnership;
(k) Perform all of its obligations under the documents evidencing
and securing the Construction Loan;
(l) During the term of the Sales Center Agreement, pay the
interest payable with respect to the Sales Center Mortgages not in excess of
$1,546.00 per month, and the real estate taxes payable with respect to the Sales
Center not in excess of $2,659.00 per year;
(m) From and after Purchaser shall have exercised an Option with
respect to a Lot to and including the Lot Closing with respect to such Lot, pay
the real estate taxes payable with respect to the improvements constructed by
Purchaser on such Lot (but not with respect to such Lot);
(n) Pay the costs of all utilities services used by Purchaser in
connection with the construction of Units;
(o) maintain general liability insurance, in a reasonable amount,
with respect to the improvements constructed on the Properties (so long as the
portions of the Properties on which such improvements are located shall be owned
by Seller), and name Seller as an additional insured under the insurance policy
providing such general liability insurance;
(p) maintain automobile liability insurance, in reasonable
amounts, with respect to such of the Properties as are owned by Seller, and name
Seller as an additional insured under the insurance policy providing such
automobile liability insurance;
(q) maintain workmen's compensation insurance, in the statutorily-
required amount, with respect to such of the Properties as are owned by Seller;
(r) cause the Facilitating Broker (hereinafter defined) to keep
its North Carolina real estate broker's license in full force and effect;
(s) cause each such person who shall be acting as a general
contractor for Purchaser with respect to the construction of improvements on the
Properties to keep its North Carolina general contractor's license in full force
and effect;
(t) cause the Tract Units, if any, constructed by Purchaser on
Meadow Parcel-Phase II to be of generally the same exterior architectural
design, and the same general quality in terms of materials and labor, as the
tract units constructed by Seller on Meadow Parcel-Phase I;
(u) cause the Tract Units, if any, constructed by Purchaser on
Meadow Parcel-Phase III, Meadow Parcel-Phase IV and the Club Cottages Parcel to
be submitted to Seller for approval, which approval shall not be unreasonably
withheld provided that such Tract Units are generally consistent with the
exterior design of, and have the same general quality in terms of materials and
labor as, other units in the Development; and
(v) cause the Tract Units, if any, constructed by Purchaser on any
Property other than the Meadow Parcel or the Club Cottages Parcel to be
submitted to Seller for approval, which approval shall not be unreasonably
withheld provided that such Tract Units are generally consistent with the
exterior design of, and have the same general quality in terms of materials and
labor as, other units in the Development;
(w) comply with the terms and conditions of this Agreement; and
(x) pay all sums due to Seller and Xxxxxx pursuant to the terms
of this Agreement.
In addition to any other right of Seller in this Agreement, if Purchaser shall
default in any of its covenants or obligations set forth in this paragraph 15,
and such default shall continue for a period of thirty (30) days after receipt
by Purchaser of a written notice from Seller reasonably describing such default
(of if such default cannot be cured within said 30-day period, but Purchaser has
commenced to cure such default and diligently prosecutes such cure to
completion, such additional time as shall be reasonably necessary to cure such
default), Seller may, at its election, do the following: (A)(i) exercise such,
if any, of Seller's rights as Seller may then be entitled to exercise under the
provisions of subparagraphs 1(c)(ii)(A), 1(c)(ii)(B) or 1(c)(ii)(C) of this
Agreement, as the case may be, and/or (ii) enforce specific performance of this
Agreement against Purchaser (unless Purchaser's default is due to a change in
the law), and (B) in either event, unless Purchaser's default is due to a change
in the law, recover damages from Purchaser for Purchaser's failure to comply
with the covenants and obligations set forth in this paragraph 15 (including,
without limitation, attorneys' fees and expenses). Notwithstanding anything to
the contrary contained in this Agreement, in the event of such default, Seller's
recovery of damages shall be limited to direct and actual damages, and shall
exclude any right to recover indirect, consequential or incidental damages.
In addition to any other right or obligations of the parties that survive a
termination of this Agreement, the covenants of Purchaser under subparagraphs
(a), (b), (c), (j), (k), (m), (n), (o), (p), (s), (t), (u), (v), (w) and (x) of
paragraph 15 of this Agreement shall survive.
15A. Minimum Lot Closings. Notwithstanding anything to the contrary
--------------------
contained in this Agreement, Purchaser shall be obligated as follows:
(a) First Two 365-Day Periods After Closing Date.
--------------------------------------------
(i) During the period between the date of this Agreement and
September 1, 1999, Purchaser shall purchase from Seller Lots on which at least
thirty (30) Units will be constructed.
(ii) During the period between September 2, 1999 and September 1,
2000, Purchaser shall purchase from Seller additional Lots on which at least
thirty-five (35) Units will be constructed.
(b) Area F Parcel Lots. During the Area F Parcel Lots Option
------------------
Period with respect to an Area F Parcel Phase, Purchaser shall purchase from
Seller at least thirty-three percent (33%) of the total number of Area F Parcel
Lots in such Area F Parcel Phase.
(c) Applicability of Purchases Regarding Area F Parcel Lots. Each
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purchase by Purchaser of an Area F Parcel Lot during the first two 365-day
periods after the Closing Date shall be applied to satisfy both (i) Purchaser's
obligations pursuant to paragraph 15A (b) and (ii) Purchaser's obligations
---
pursuant to subparagraphs 15A(a)(i) or 15A(a)(ii), as the case may be.
16. Default By Seller under Paragraphs 7 Through 9. In the event of a
----------------------------------------------
default by Seller of any of its obligations under paragraphs 7, 8 or 9 of this
Agreement, Purchaser shall give to Seller written notice reasonably describing
the default. Seller shall have thirty (30) days from the receipt of such written
notice to cure such default. If, at the end of such thirty (30)-day period,
Seller shall have failed to cure such default, Purchaser may, at its election,
do the following: (A) either (i) terminate this Agreement [in which case this
Agreement shall become null and void, and the parties hereto shall have no
further rights, obligations or labilities under this Agreement other than the
obligations of Seller under subparagraphs 11(b), 12(b), 18(d) and 19(c) of this
Agreement and the obligations of Purchaser under subparagraphs 11(b), 12(b),
18(d) and 19(c) of this Agreement], or (ii) enforce specific performance of this
Agreement against Seller, and in either event (B) recover damages from Seller
for Seller's failure to comply with its obligations under paragraphs 7, 8 or 9
of this Agreement (including, without limitation, attorneys' fees and expenses).
Notwithstanding anything to the contrary contained in this Agreement,
Purchaser's recovery of damages under this paragraph 16 shall be limited to
direct and actual damages, and shall exclude any right to recover indirect,
consequential or incidental damages.
17. Closing. The parties hereto hereby agree as follows:
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(a) Closing Date. The closing (the "Closing") of this Agreement
------------
shall take place on September ___, 1998 (the "Closing Date") at the offices of
Xxxxxxx May & Rich, 00 Xxxxxxxxx Xxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, or at
such other time and place as the parties hereto shall agree in writing.
(b) Seller's Documents. At the Closing, and as a condition precedent
------------------
to Purchaser's obligations under this Agreement, Seller, in addition to
delivering all other items required under this Agreement to be delivered by
Seller, shall deliver to Purchaser the following documents:
(i) documents, in form and substance reasonably acceptable to
Purchaser and Seller, (A) authorizing the execution and delivery by Seller of
this Agreement and of the documents required to be executed and delivered by
Seller pursuant to this Agreement, and (B) evidencing the authority of the
persons signing this Agreement and the documents to be executed and delivered by
Seller pursuant to this Agreement; and
(ii) an executed assignment, in form and substance reasonably
acceptable to Purchaser and Seller, of all of the right, title and interest of
Seller in, to and under all agreements with, and all Permits issued by, all
governmental authorities having jurisdiction over the Properties, together with
the written consents by all such governmental authorities to such assignments by
Seller, and together with a fully-executed original (or a copy certified as true
and correct by Seller) of each of the agreements and Permits with respect to
which Seller is assigning its rights;
(iii) the Option Policy;
(iv) Intentionally Omitted
(v) the Private Roadway Easement, in form and substance
reasonably acceptable to Purchaser and Seller;
(vi) the authorizations that are described in paragraph
3(b)(ii) of this Agreement, in form and substance reasonably acceptable to
Purchaser and Seller;
(vii) the approvals that are described in paragraph 3(b)(iii) of
this Agreement, in form and substance reasonably acceptable to Purchaser and
Seller;
(viii) a copy of the fully-executed Xxxxxx Amendment, certified
as true and correct by Seller;
(ix) the Sales Center Agreement, in form and substance
reasonably acceptable to Purchaser and Seller, in duplicate;
(x) the Attornment Agreement, in form and substance reasonably
acceptable to Purchaser and Seller, in duplicate; and
(xi) such other documents, instruments, certifications,
confirmations, ALTA statements, gap undertakings and assignments as may be
reasonably required to fully effect and consummate the transactions contemplated
by this Agreement.
(c) Purchaser's Documents. At the Closing, and as a condition
---------------------
precedent to Seller's obligations under this Agreement, Purchaser, in addition
to delivering all other items required under this Agreement to be delivered by
Purchaser, shall deliver to Seller documents, in form and substance reasonably
acceptable to Purchaser and Seller, (i) authorizing the execution and delivery
by Purchaser of this Agreement and of the documents required to be executed and
delivered by Purchaser pursuant to this Agreement, and (ii) evidencing the
authority of the persons signing this Agreement and the documents to be executed
and delivered by Purchaser pursuant to this Agreement.
(d) Joint Documents. On the Closing Date, Seller and Purchaser shall
---------------
execute triplicate originals of the Option Memorandum, one of which fully-
executed originals shall be delivered to Seller, the second
of which fully-executed originals shall be delivered to Purchaser, and the third
of which fully-executed originals shall be delivered to Escrowee in connection
with the Closing Escrow (hereinafter defined).
(e) Escrow Closing. The closing and consummation of the transaction
--------------
contemplated by this Agreement shall be effected through an escrow (the "Closing
Escrow") with the Title Insurer, pursuant to which the Title Insurer shall act
as the escrowee ("Escrowee"). Delivery of the Option Memorandum, the Option
Policy and the other closing documents shall be made through the Closing Escrow.
Each party shall have the right to review and approve all documents prior to
their deposit into the Closing Escrow. In the event of conflict between the
terms of this Agreement and the Closing Escrow, the terms of this Agreement
shall control as between the parties hereto.
(f) Transfer Taxes. Seller shall pay any transfer taxes, if any,
--------------
with respect to the Option. Seller shall pay all recording fees with respect to
the Option Memorandum.
(g) Other Documents. The parties hereto hereby agree to deliver to
---------------
each other such additional documents as may be necessary to in order to close
the transactions contemplated in this Agreement.
(h) Waiver. Either party, at its option, may waive, in whole or in
------
part, any unsatisfied condition precedent to its obligations under this
Agreement, or may elect to extend the time within which any such unfulfilled
condition precedent may be satisfied.
18. Broker's Commissions and Fees.
-----------------------------
(a) For purposes of this Agreement, the term "Purchaser Group" shall
mean collectively Purchaser, Heartland Technology, Inc., a Delaware corporation
("HTI"), Heartland Partners, L.P., a Delaware limited partnership ("HPLP"), CMC
Heartland Partners, a Delaware general partnership ("CMC"), and all of the
shareholders, partners, unit owners, directors, officers, affiliates, agents,
employees, representatives, contractors, attorneys, successors and assigns of
each of Purchaser, HTI, HPLP and CMC.
(b) Seller, on its own behalf and on behalf of its successors and
assigns, hereby agrees to indemnify, defend and hold harmless the Purchaser
Group and each of them from and against any and all claims, demands, causes of
action, damages, fines, costs, forfeitures, amounts paid in settlement,
judgments, expenses (including reasonable attorneys' fees and expenses),
charges, liabilities, penalties, and losses of any nature whatsoever which the
Purchaser Group or any of them may suffer or incur by reason of, or in
connection with, all claims for brokerage commissions, fees or other
compensation by all brokers (including, without limitation, the Seller's
Broker), finders or intermediaries with whom Seller has dealt in connection with
the transactions contemplated by this Agreement.
(c) For purposes of this Agreement, the term "Seller Group" shall mean
collectively Seller, General Partner, General Investment & Development Co.
("GID") and all of the shareholders, partners, directors, officers, trustees,
affiliates, agents, employees, representatives, contractors, attorneys,
successors and assigns of each of Seller, General Partner and GID.
(d) Purchaser, on its own behalf and on behalf of its successors and
assigns, hereby agrees to indemnify, defend and hold harmless the Seller Group
and each of them from and against any and all claims, demands, causes of action,
damages, fines, costs, forfeitures, amounts paid in settlement, judgments,
expenses (including reasonable attorneys' fees and expenses), charges,
liabilities, penalties, and losses of any nature whatsoever which the Seller
Group or any of them may suffer or incur by reason of, or in connection with,
all claims for brokerage commissions, fees or other compensation by all brokers,
finders or intermediaries with whom Purchaser has dealt in connection with the
transactions contemplated by this Agreement excluding fees payable to Seller's
Broker.
(e) The obligations set forth in this paragraph 18 shall survive the
Closing or earlier termination of this Agreement.
19. Environmental Matters.
---------------------
(a) For purposes of this Agreement, the following terms shall have
the following meanings:
(i) The term "Environmental Laws" shall mean all federal, state
and local laws, ordinances, permits and regulations, and any common laws,
regarding health, safety, radioactive materials or the environment [including,
without limitation, the Clean Air Act (42 U.S.C. (S)(S) 7401 et seq.)("CAA"),
the Clean Water Act (33 U.S.C. (S)(S) 1251 et seq.)("CWA"), the Resource
Conservation and Recovery Act (42 U.S.C. (S)(S) 6901 et seq.)("RCRA"), the
Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C.
(S)(S) 9601 et seq.)("CERCLA"), the Emergency Planning and Community Right-to-
Know Act (42 U.S.C. (S)(S) 11001 et seq.)("EPCRA"), the Safe Drinking Water Act
(42 U.S.C. (S)(S) 300f et seq.)("SDWA"), the Toxic Substances Control Act (15
U.S.C. (S)(S) 2601 et seq.)("TSCA"), the Endangered Species Act of 1973 (16
U.S.C. (S)(S) 1531 et seq.)("ESA"), the Federal Insecticide, Fungicide and
Rodenticide Act (7 U.S.C. (S)(S) 136 et seq.)("FIFRA"), the Occupational Safety
and Health Act (29 U.S.C. (S)(S) 651 et seq.)("OSHA")], each as amended, and all
regulations promulgated thereunder, all guidances and directives issued with
respect thereto, and all policies adopted by authority thereunder.
(ii) The term "Release" shall mean the discharge, disposal,
deposit, injection, dumping, spilling, leaking, leaching, placing, presence,
pumping, pouring, emitting, emptying, escaping, or other release of any
Hazardous Material.
(iii) The term "Hazardous Material" shall mean (A) any
radioactive material; (B) any substance or material the transportation, storage,
treatment, handling, use, removal or Release of which is subject to any
Environmental Law; or (C) any substance or material for which standards of
conduct are imposed under any Environmental Law. Without limiting the generality
of the foregoing, "Hazardous Materials" shall include asbestos and asbestos-
containing materials (whether or not friable); urea-formaldehyde in any of its
forms; polychlorinated biphenyls; oil; used oil; petroleum products and their
by-products; lead-based paint; radon; and any substances defined as "hazardous
substances", "hazardous materials", "hazardous waste", "toxic substances",
"solid waste" "hazardous chemicals", "hazardous air pollutants", "pollutants",
"contaminants", "toxic chemicals" or any other formulations intended to define,
list or classify substances by reason of deleterious properties such as
ignitability, corrosovity, reactivity, carcinogenicity, toxicity, reproductive
toxicity, "TLP toxicity" or "EP toxicity" or words of similar import under any
of the CAA, CWA, RCRA, CERCLA, EPCRA, SDWA, TSCA, OSHA or other Environmental
Laws. The term "Hazardous Material" shall exclude any materials normally found
on, or used in, the operation of a residential community or the Golf Course
Facilities.
(iv) The term "Environmental Matter" shall mean any of the
following: (A) any Release on or at any of the Properties; (B) the migration of
any Hazardous Material onto or from any of the Properties; (C) the
environmental, health, or safety aspects of the transportation, storage,
treatment, handling, use or Release, whether any of the foregoing occurs on or
off any of the Properties, of any Hazardous Material in connection with the
operation or past operation of any of the Properties; (D) the violation, or
alleged violation, with respect to any of the Properties of any Environmental
Law, order, permit or license of or from any governmental authority, agency or
court relating to environmental, health or safety matters; (E) the presence of
any above-ground storage tanks or any underground storage tanks within the
confines of any of the Properties; (F) the presence of wetlands within the
confines of any of the Properties except as disclosed in writing to Purchaser;
(G) the presence of any endangered species on, in or around any of the
Properties; (H) the characterization of any of the Properties as historical in
nature in any way; or (I) soil, groundwater and surface conditions on, in or
around any of the Properties which may have an adverse effect upon the use or
value of any of the Properties.
(b) Effective as of the Closing, Seller, on its own behalf and on
behalf of its successors and assigns, hereby agrees to indemnify, defend and
hold harmless the Purchaser Group and each of them from and
against any and all claims, damages, fines, costs, forfeitures, amounts paid in
settlement, judgments, expenses (including attorneys' fees and expenses),
charges, liabilities, penalties, and losses of any nature whatsoever, now
existing or hereafter arising, which the Purchaser Group or any of them may
suffer or incur by reason of, or in connection with, any Environmental Matter
that occurred prior to, or was in existence at time of, the Closing Date and was
not caused by Purchaser or its employees, contractors or agents, or that was
subsequently caused by the Seller Group or any of them.
(c) Effective as of the Closing, Purchaser, on its own behalf and on
behalf of its successors and assigns, hereby agrees to indemnify, defend and
hold harmless the Seller Group and each of them from and against any and all
claims, damages, fines, costs, forfeitures, amounts paid in settlement,
judgments, expenses (including attorneys' fees and expenses), charges,
liabilities, penalties, and losses of any nature whatsoever, now Existing or
hereafter arising, which the Seller Group or any of them may suffer or incur by
reason of, or in connection with, any Environmental Matter relating to a Lot
that was caused by Purchaser or its employees, contractors or agents.
(d) Seller hereby acknowledges and agrees that the provisions
contained in subparagraph 19(b) of this Agreement were essential components of
the consideration for the agreement of Purchaser to enter into this Agreement.
(e) Purchaser hereby acknowledges and agrees that the provisions
contained in subparagraph 19(c) of this Agreement were essential components of
the consideration for the agreement of Seller to enter into this Agreement.
(f) The terms and provisions of this paragraph 19 shall survive the
Closing and shall not be merged into the deeds for the Properties to be
delivered by Seller to Purchaser or to Third-Party Buyers pursuant to the terms
of this Agreement.
20. Marketing.
---------
(a) Lots and Units.
--------------
(i) From and after the Closing Date to and including one
(1) year after the expiration of an Option or the earlier termination of this
Agreement, Purchaser shall have the sole and exclusive right to (A) market and
sell the Lots which are the subject of such Option and the Units to be
constructed by Purchaser on such Lots, and (B) subject to the terms and
conditions of this Agreement, construct residential dwellings and related
improvements on such Lots .
(ii) From and after the Closing Date to and including one
(1) year after the expiration of an Option, subject to the terms and conditions
of this Agreement, Seller shall not, except as provided in this Agreement,
create, effect, contract for, commit to, consent to, or suffer or permit any
conveyance, sale, assignment, transfer, lien, pledge, mortgage, security
interest or other encumbrance or alienation of any portion of the Parcel which
is the subject of such Option.
(iii) Except as specifically set forth herein, no commission
or other sum shall be due and payable by Purchaser to Seller in connection with
the sale of any Lot with the Unit thereon.
(iv) From and after the Closing Date to and including one
(1) year after the expiration of an Option, Seller shall refrain from (A)
performing any grading, excavation or construction on or about the Parcel which
is the subject of such Option except to maintain or improve previously-sold lots
in a manner that does not materially and adversely affect such Parcel, and (B)
committing any waste, nuisance or dumping on or about such Parcel.
(v) If, after the occurrence of a Paragraph 15A Termination
Event or a Monetary Termination Event, Purchaser shall not consummate the
closings required pursuant to subparagraph 1(c)(ii) of this Agreement, then, in
addition to any other rights of Seller under this Agreement, Seller may market
and sell such of the Properties as shall be owned by Seller.
(b) Remaining Seller's Lots in the Development.
------------------------------------------
(i) Seller hereby represents and warrants that Seller is the
owner in fee simple of the lots in the Development that are listed in Exhibit FF
----------
attached hereto and made a part hereof; that Seller has either completed, or is
in the process of completing, the construction of a dwelling on each of the said
lots; and that none of said Lots or any improvement thereon is subject to any
sale contract, any option to purchase or any right of first refusal. Said lots
and the improvements constructed by Seller thereon are herein together sometimes
called the "Seller's Lots" or individually a "Seller's Lot."
(ii) Seller hereby grants to Lifestyle Communities, Ltd., a
Delaware corporation ("LCL"), a wholly-owned subsidiary of CMC, or such other
person as Purchaser shall designate in writing to Seller (which other person
shall be subject to Seller's prior written approval, which approval shall not be
unreasonably withheld or delayed) (LCL or such other person being herein called
the "Facilitating Broker"), the sole and exclusive right, during the term of
this Agreement, to cause Seller's Lots to be sold.
(iii)(A) Seller hereby represents and warrants that (I) Longleaf
Contracting, Inc., a North Carolina corporation ("LCI"), is a corporation duly
organized, validly existing and in good standing under the laws of the State of
North Carolina; (II) LCI is a duly licensed general contractor under the laws of
the State of North Carolina; (III) LCI's general contracting license (the "LCI
License") under the laws of the State of North Carolina (a) is an unlimited
license, (b) is in full force and effect, and (c) has not been modified, amended
or changed in any manner; (III) LCI is not in default of any of its obligations
under the LCI License; (IV) certain work required to be performed by LCI has not
been completed; and (V) Seller and LCI desire that LCI subcontract with LCCI for
the completion by LCCI of such uncompleted work. LCCI will not perform any
general contracting activities in North Carolina until it has qualified to do
business in North Carolina and has received its general contractor's license
from North Carolina.
(B) Purchaser hereby represents and warrants that
Lifestyle Construction Company, Inc., a Delaware corporation ("LCCI"), an
affiliate of Purchaser, is in the process of qualifying to transact business in
the State of North Carolina and of applying for a general contractor's license
from the State of North Carolina.
(iv) Upon the closing of a Seller's Lot pursuant to a
contract executed during the term of this Agreement, and the receipt by Seller
of the proceeds of such sale, Seller shall pay to LCL a commission in the amount
of six percent (6%) of the sale price of such Seller's Lot.
(v) (A) For purposes of this paragraph 20(b), a "Protected
Prospect" shall mean a prospective purchaser of a Seller's Lot with whom the
Facilitating Broker has either met in person, spoken to by telephone, or
corresponded with during the term of this Agreement, and who is listed as a
prospective purchaser by the Facilitating Broker on a written list delivered by
the Facilitating Broker to Seller on or before thirty (30) days after the
expiration of the Option.
(B) If, on or before six (6) months after the expiration
of the Option, Seller enters into a contract with a Protected Prospect for the
sale of a Seller's Lot, then, upon the closing of the sale of such Seller's Lot,
and the receipt by Seller of the proceeds of such sale, Seller shall pay to the
Facilitating Broker a commission in the amount of six percent of the sale price
of such Seller's Lot .
21. Closing of an Exercised Lot.
---------------------------
(a) Purchaser's Conditions Precedent.
--------------------------------
(i) In addition to any other conditions precedent set forth in
this Agreement to the obligation of Purchaser to consummate the purchase of any
Exercised Lot, the parties hereto hereby agree that the obligation of Purchaser
to consummate the purchase of an Exercised Lot is subject to the satisfaction of
all of the following conditions precedent as of the Lot Closing of such
Exercised Lot:
(A) Purchaser shall have received the Design Approvals for
such Exercised Lot, and all such Design Approvals shall be in full force and
effect, and shall not have been modified, amended or changed in any way without
the prior consent of Purchaser;
(B) the Private Roadway Easement shall have been recorded,
and shall be in full force and effect, and shall not have been modified, amended
or changed in any way without the prior consent of Purchaser; and no event of
default shall exist under the Private Roadway Easement; and no event shall have
occurred which, with the passage of time or the giving of notice or both, would
constitute an event of default under the Private Roadway Easement;
(C) all of the authorizations described in subparagraph
3(b)(i) of this Agreement shall have been issued and shall be in full force and
effect, and shall not have been modified, amended or changed in any way without
the prior consent of Purchaser;
(D) all of the approvals described in subparagraph 3(b)(iii)
of this Agreement shall have been issued and shall be in full force and effect,
and shall not have been modified, amended or changed in any way without the
prior consent of Purchaser;
(E) the Xxxxxx Agreements, as amended by the Xxxxxx
Amendment, shall be in full force and effect, and shall not have been modified,
amended or changed in any way without the prior consent of Purchaser; and no
event of default shall exist under any of the Xxxxxx Agreements, as amended by
the Xxxxxx Amendment; and no event shall have occurred which, with the passage
of time or the giving of notice or both, would constitute an event of default
under any of the Xxxxxx Agreements, as modified by the Xxxxxx Amendment; and
there shall be available for conveyance to purchasers of Units easements of
enjoyment of a number equal to (I) three hundred nineteen (319) less (II) the
number of easements of enjoyment as shall have been previously conveyed by
Seller to Purchaser;
(F) the Sales Center Agreement shall have been fully
executed and delivered; and the Sales Center Agreement shall be in full force
and effect, and shall not have been modified, amended or changed in any way
without the prior consent of Purchaser; and no event of default shall exist
under the Sales Center Agreement; and no event shall have occurred which, with
the passage of time or the giving of notice or both, would constitute an event
of default under the Sales Center Agreement;
(G) the Attornment Agreements shall have been fully executed
and delivered; and the Attornment Agreements shall be in full force and effect,
and shall not have been modified, amended or changed in any way without the
prior consent of Purchaser; and no event of default shall exist under any of the
Attornment Agreements; and no event shall have occurred which, with the passage
of time or the giving of notice or both, would constitute an event of default
under any of the Attornment Agreements;
(H) all of the representations and warranties of Seller
contained in paragraph 13 of this Agreement shall be true and correct;
(I) Seller shall have completed the performance of all of
its obligations with respect to the Exercised Lot under paragraph 7, paragraph 8
or paragraph 9 of this Agreement, as the case may be; provided, that if Seller
shall have failed to satisfy any of its obligations under paragraph 7, paragraph
8 or paragraph 9 of this Agreement, as the case may be, solely by reason of the
failure of LCCI to adequately supervise the Work of the Site Contractor, then,
provided that the failure of LCCI to adequately supervise
the Work of the Site Contractor shall not have been caused by a default by
Seller under this Agreement or under the agreement between Seller and the Site
Contractor, and provided that Seller shall not then be in default of any of its
obligations under the agreement between Seller and the Site Contractor,
Purchaser shall not be entitled to refuse to close its purchase of an Exercised
Lot because of the failure of Seller to satisfy such obligation under paragraph
7, paragraph 8 or paragraph 9, as the case may be, of this Agreement;
(J) The sanitary sewer, storm sewer, water, electrical, gas,
telephone and cable television systems and facilities adequate to service the
Units at any time and from time to time located on the Exercised Lot which is
the subject of such Lot Closing shall be operational and in good working order;
and the owners of such systems and facilities shall be required by law, and
shall have agreed, to provide sanitary sewer, storm sewer, water, electrical,
gas, telephone and cable television services to the Units located at any time
and from time to time on such Exercised Lot; and
(L) if the Construction Loan shall have closed, all of the
approvals described in subparagraphs 3(a)(ii) and 3(a)(iii) shall have been
issued and shall be in full force and effect, and shall not have been modified,
amended or changed in any way without the prior written consent of Purchaser.
(ii) In the event that any condition precedent to Purchaser's
obligations under this paragraph 21, including, without limitation, any
condition precedent set forth in the foregoing subparagraph 21(a)(i), shall not
be timely satisfied in accordance with the terms of this Agreement, Purchaser
shall give to Seller written notice reasonably describing the condition
precedent which shall not have been timely satisfied in accordance with the
terms of this Agreement. Seller shall have ten days from the receipt of such
written notice to cure or satisfy any condition precedent not satisfied. If, at
the end of such ten-day period, Seller shall have failed to satisfy such
condition precedent, Purchaser may, at its election, do the following: (A)
either (I) terminate Purchaser's obligations to purchase such Exercised Lot, or
(II) enforce specific performance of this Agreement against Seller unless
Seller's failure is due to a change in the law, and (B) in either event, unless
Seller's failure is due to a change in the law, recover damages from Seller for
failure to perform this Agreement (including, without limitation, attorneys'
fees and expenses). The termination by Purchaser of its obligation to purchase
an Exercised Lot shall not terminate the rights and obligations of the parties
hereto under this Agreement with respect to any other Property.
(iii) Notwithstanding any other term to the contrary in this
Agreement, in the event of a failure of any condition precedent to Purchaser's
obligations under this Agreement, any right by Purchaser to recover damages from
Seller shall be limited to direct and actual damages and shall exclude any right
to claim or recover indirect, consequential or incidental damages.
(b) Seller's Conditions Precedent.
-----------------------------
(i) In addition to any other conditions precedent set forth in this
Agreement to the obligation of Seller to consummate the sale of any Exercised
Lot, the parties hereto hereby agree that the obligation of Seller to consummate
the sale of an Exercised Lot is subject to Purchaser not then being in breach or
default of any of the terms or conditions of this Agreement.
(ii) In the event that any condition precedent to Seller's obligations
under this paragraph 21, including, without limitation, any condition precedent
set forth in the foregoing subparagraph 21(b)(i), shall not be timely satisfied
in accordance with the terms of this Agreement, Seller shall give to Purchaser
written notice reasonably describing the condition precedent which shall not
have been timely satisfied in accordance with the terms of this Agreement.
Purchaser shall have ten days from the receipt of such written notice to cure or
satisfy any condition precedent not satisfied. If, at the end of such ten-day
period, Purchaser shall have failed to satisfy such condition precedent, Seller
may, at its election, do the following: (A) either (I) terminate Seller's
obligations to sell such Exercised Lot, or (II) enforce specific performance of
this Agreement against Purchaser (unless Purchaser's failure is due to a change
in the law), and (B) in either event, unless Purchaser's failure is due to a
change in the law,
recover damages from Purchaser for failure to perform this Agreement (including,
without limitation, attorneys' fees and expenses). The termination by Seller of
its obligation to sell an Exercised Lot shall not terminate the rights and
obligations of the parties hereto under this Agreement with respect to any other
Property.
(iii) Notwithstanding any other term to the contrary in this
Agreement, in the event of a failure of any condition precedent to Seller's
obligations under this Agreement, any right by Seller to recover damages from
Purchaser shall be limited to direct and actual damages and shall exclude any
right to claim or recover indirect, consequential or incidental damages.
(c) Terms.
-----
(i) Conveyance. At a Lot Closing, Seller shall convey to
----------
Purchaser the Exercised Lot which is the subject of such Lot Closing, together
with all improvements located thereon, and together with all easements,
appurtenances, rights, privileges, reservations and hereditaments belonging to
or pertaining thereto, and together with all of the right, title and interest of
Seller in and to all streets, roads and rights-of-way adjacent to such Exercised
Lot, and together with an easement of enjoyment pursuant to the Easement of
Enjoyment, all upon the terms and conditions set forth in this Agreement. The
grant of the right, title and interest of Seller in and to all streets, roads
and rights-of-way adjacent to such Lot shall be non-exclusive and subject to the
rights of Seller and others to utilize same for pedestrian and vehicular access
and for the development of the Properties.
(ii) Payment of Purchase Price. (A) Subject to the provisions of
-------------------------
the following subparagraph (B), at a Lot Closing, Purchaser shall pay or shall
cause to be paid to Seller the purchase price payable under this Agreement for
the Exercised Lot which is the subject of such Lot Closing, together with the
$10,000 Xxxxxx Fee payable with respect to the Exercised Lot (and the Units
thereon) which is the subject of said Lot Closing, by wired funds or by a
cashier's or certified check, which amount may be paid with the proceeds of the
sale of such Exercised Lot and Units thereon pursuant to one or more Sale
Agreements with respect to such Exercised Lot provided such proceeds are in the
form of wired funds or a cashier's or certified check.
(B) Notwithstanding anything to the contrary contained in the
foregoing subparagraph (A), if, at the time of a Lot Closing, Sale Agreements
shall not have been executed with respect to all of the Units to be constructed
on the Exercised Lot which is the subject of such Lot Closing, the purchase
price for the Exercised Lot which is the subject of such Lot Closing and the
Xxxxxx Fee payable with respect to the Exercised Lot which is the subject of
such Lot Closing shall be paid as follows:
(I) Purchaser shall pay to Seller, by wired funds or by a
cashier's or certified check, an amount equal to the Minimum Release Price for
such Exercised Lot (the "Minimum Release Price", as set forth on Exhibit L
---------
attached hereto and made a part hereof), plus or minus prorations, plus
the Xxxxxx Fee payable with respect to all units to be built on such Exercised
Lot; and
(II) Seller and Purchaser shall execute, deliver and
record an agreement (a "Lot Adjustment Agreement"), in form and substance
reasonably acceptable to Seller and Purchaser, with respect to such Exercised
Lot, which Lot Adjustment Agreement shall provide, inter alia, as follows:
----- ----
(a) upon the earlier to occur of the closing of all
of the Sale Agreements with respect to Units on such Exercised Lot or twelve
months after the Lot Closing Date of such Exercised Lot, the purchase price for
such Exercised Lot shall be adjusted as follows:
(1) if Sale Agreements with respect to all of
the Units on such Exercised Lot shall have closed, then the purchase price for
such Exercised Lot shall be determined in accordance with the terms of
subparagraph 1(f) of this Agreement, and if the purchase price for such
Exercised Lot is greater than the Minimum Release Price for such Exercised Lot,
Purchaser shall pay to Seller the amount by
which the purchase price for such Exercised Lot exceeds the amounts previously
paid by Purchaser for such Exercised Lot; and
(2) if Sale Agreements with respect to all of the
Units on such Exercised Lot shall not have closed, then:
(A) if such Exercised Lot is a Single-Family
Lot, the purchase price for such Exercised Lot shall be determined as follows:
(I) if there is a Detached Unit Sale
Agreement for such Exercised Lot that shall not yet have closed, the Detached
Unit Package Price of such Exercised Lot shall be deemed to be the Detached Unit
Package Price set forth in such Detached Unit Sale Agreement;
(II) if there is no Detached Unit Sale
Agreement with respect to such Exercised Lot, the Detached Unit Package Price of
such Exercised Lot shall be deemed to be Purchaser's then-current listed sale
price for such Exercised Lot and a Detached Unit located thereon less $10,000
and less any lot premium (including any Applicable Single-Family Lot Golf
Premium) with respect to such Exercised Lot;
(III) the purchase price for such Exercised
Lot shall be determined in accordance with the provisions of subparagraph
1(f)(ii)(A) of this Agreement and the preceding subparagraphs (I) and (II), and
if the purchase price for such Exercised Lot is greater than the Minimum Release
Price for such Exercised Lot, Purchaser shall pay to Seller the amount by which
the purchase price for such Exercised Lot exceeds the amounts previously paid by
Purchaser for such Exercised Lot; and
(B) if such Exercised Lot is a Tract Lot, the
purchase price for such Exercised Lot shall be determined as follows:
(I) if there is no Tract Unit Sale Agreement
for any Tract Unit on such Exercised Lot, the Tract Unit Package Prices of all
of the Tract Units to be constructed by Purchaser on such Exercised Lot shall be
deemed to be the product of (a)(1) the average of Purchaser's then-current
listed sale prices [excluding the $10,000 per Tract Unit Xxxxxx Fees, and
excluding any lot premiums (including any Applicable Tract Lot Golf Premiums)
with respect to such Tract Units] for the Tract Units on such Exercised Lot, and
(b) the number of Tract Units to be constructed by Purchaser on such Exercised
Lot (as reflected on the Site Plan for such Exercised Lot);
(II) if there is a Tract Unit Sale Agreement
for at least one, but not each, Tract Unit to be constructed by Purchaser on
such Exercised Lot (as reflected on the Site Plan for such Exercised Lot), the
Tract Unit Package Prices of all of the Tract Units to be constructed by
Purchaser on such Exercised Lot (as reflected on the Site Plan for such
Exercised Lot) shall be deemed to be the sum of (a) the Tract Unit Package
Prices of the Tract Units on such Exercised Tract that are the subject of Tract
Unit Sale Agreements, and (b) the product of (i) the average of the Tract Unit
Package Prices of all of the Tract Units to be constructed by Purchaser on such
Exercised Lot (as reflected on the Site Plan for such Exercised Lot) that are
the subject of Tract Unit Sale Agreements and (ii) the number of Tract Units on
such Exercised Lot that are not subject to Tract Unit Sale Agreements;
(III) the purchase price for such Exercised
Lot shall be determined in accordance with the provisions of subparagraph
1(f)(ii)(B) of this Agreement and the preceding subparagraphs (I) and (II), and
if the purchase price for such Exercised Lot is greater than the Minimum Release
Price for such Exercised Lot, Purchaser shall pay to Seller the amount by which
the purchase price for such Exercised Lot exceeds the amounts previously paid by
Purchaser for such Exercised Lot; and
(b) concurrently with the recording of such Lot
Adjustment Agreement, Seller shall execute and deliver to an escrowee mutually
acceptable to Seller and Purchaser a release, in recordable form, of all right,
title and interest of Seller under such Lot Adjustment Agreement, which release
shall be deliverable by such escrowee to Purchaser upon the deposit with such
escrowee of either (1) the amount by which the purchase price for such Exercised
Lot exceeds the amounts previously paid by Purchaser for such Exercised Lot or
(2) a written confirmation that the Minimum Release Price is the purchase price
for such Exercised Lot.
(iii) Title and Survey Matters. The parties hereto hereby agree
------------------------
as follows:
(A) At a Lot Closing, Seller, at its sole cost and
expense, shall deliver to Purchaser an owner's ALTA form B title insurance
policy (an "Exercised Lot Title Policy"), issued by the Title Insurer, in the
amount of the purchase price payable by Purchaser under the terms of this
Agreement for the Exercised Lot which is the subject of such Lot Closing,
insuring title to such Exercised Lot in Purchaser subject only to the Acceptable
Option Title Exceptions that relate to such Exercised Lot; containing extended
coverage over general exceptions 1 through 5 contained therein; containing an
endorsement that such Exercised Lot has been legally subdivided and platted; in
the event the Exercised Lot is a Single-Family Lot, containing an ALTA 3.0
zoning endorsement insuring that a detached single-family dwelling unit can be
constructed on said Exercised Lot; in the event the Exercised Lot is a Tract
Lot, containing an ALTA 3.0 zoning endorsement insuring that attached
residential dwelling units of a number, type and size required by the terms of
this Agreement can be constructed on said Exercised Lot; and containing an
endorsement that such Exercised Lot has unrestricted access to and from, and
unrestricted use of, the Private Roadways, and has unrestricted access to and
from the Private Roadways and dedicated public rights-of-way; and insuring the
rights of Seller to use the Golf Facilities pursuant to the Easement of
Enjoyment.
(B) If, on a Lot Closing Date [as same may be extended
pursuant to the provisions of this Agreement], the Title Insurer shall not be
prepared to deliver to Purchaser the Exercised Lot Title Policy with respect to
the Exercised Lot which is the subject of a Lot Closing on such Lot Closing
Date, then Purchaser shall have the right to either terminate its obligation to
purchase such Exercised Lot, in which case the parties hereto shall have no
further rights, obligations or liabilities under this Agreement with respect to
such Exercised Lot [other than the obligations of Seller under subparagraphs
11(a), 18(b), 19(b) and 20(b) of this Agreement and the obligations of Purchaser
under subparagraphs 11(b), 12(b), 19(c) and 18(d) of this Agreement] or elect to
take title to such Exercised Lot as it then is with the right to deduct from the
Purchase Price the cost required by the Title Insurer to issue a waiver of any
lien or encumbrance of an unascertainable amount, and the premium payable on a
surety bond required by the Title Insurer to insure over any lien or encumbrance
of an unascertainable amount.
(iv) Conveyance. Seller shall convey each Exercised Lot by a
----------
warranty deed in the form of deed attached hereto as Exhibit Q.
---------
(v) Delivery of Documents. The parties hereto hereby agree as
---------------------
follows:
(A) Seller's Documents. At a Lot Closing, as a condition
------------------
precedent to Purchaser's obligations to purchase the Exercised Lot which is the
subject of such Lot Closing, Seller, in addition to delivering all other items
required by this Agreement to be delivered by Seller, shall deliver to Purchaser
the following documents, all of which shall be in form and substance acceptable
to Purchaser:
(I) an executed, stamped, recordable special
warranty deed in the form attached hereto as Exhibit Q and made a part hereof,
---------
with release of dower and homestead rights, if any, if required under local
practice, conveying to Purchaser good and merchantable title in fee simple
absolute to the Exercised Lot which is the subject of such Lot Closing, subject
only to the Acceptable Option Tract Title Exceptions relating to such Exercised
Lot, and a Lot Adjustment Agreement, if applicable, and conveying to Purchaser
an easement of enjoyment pursuant to the Easement of Enjoyment;
(II) an executed affidavit of title with respect to
the Exercised Lot which is the subject of such Lot Closing, covering the Lot
Closing Date [as same may be extended pursuant to the provisions of this
Agreement] for such Exercised Lot, and showing title in Seller subject only to
the Acceptable Option Tract Title Exceptions relating to such Exercised Lot, and
a Lot Adjustment Agreement, if applicable;
(III) an executed certification from Seller with
respect to Seller's non-foreign status sufficient to comply with the
requirements of section 1445 of the Internal Revenue Code of the United States
of America and all regulations applicable thereto; and
(IV) documents (a) authorizing the execution and
delivery by Seller of the documents required to be executed and delivered by
Seller at such Lot Closing, and (b) evidencing the authority of the persons
signing the documents to be executed and delivered by Seller at such Lot Closing
pursuant to this Agreement; and
(V) the Exercised Lot Title Policy with respect to
the Exercised Lot which is the subject of such Lot Closing; and
(VI) such other documents, instruments,
certifications, confirmations, ALTA statements, gap undertakings and assignments
as may be reasonably required to fully effect and consummate the consummation of
the exercise by Purchaser of its Option to purchase such Exercised Lot.
(B) Joint Documents. At a Lot Closing, Seller and
---------------
Purchaser shall execute triplicate originals of each of the following documents,
one of which fully-executed originals shall be delivered to Seller, the second
of which fully-executed originals shall be delivered to Purchaser, and the third
of which fully-executed originals shall be delivered to Escrowee in connection
with the Lot Closing Escrow (hereinafter defined):
(I) a closing statement; and
(II) all transfer tax declarations required by law
to be executed and delivered in connection with the conveyance of the Exercised
Lot which is the subject of such Lot Closing.
(C) Lot Closing Escrow. The closing of the sale of an
------------------
Exercised Lot shall be effected through a "New York-style" escrow (a "Lot
Closing Escrow") with Escrowee in accordance with the usual form of deed and
money escrow agreement than in use by Escrowee, with such changes and additions
as may be necessary to conform to the terms of this Agreement. One-half of the
cost of each Lot Closing Escrow shall be paid by Seller, and one-half of the
cost of each Lot Closing Escrow shall be paid by Purchaser. The agreement for a
Lot Closing Escrow shall provide, among other things, that all prorations shall
be computed as of the date Escrowee is prepared to record all of the documents.
Delivery of the deed for the Exercised Lot which is the subject of such Lot
Closing Escrow, and the other closing documents, shall be made through such Lot
Closing Escrow. Each party shall have the right to inspect all documents two
(2) business days prior to or at the time of their deposit into a Lot Closing
Escrow. In the event of conflict between the terms of this Agreement and a Lot
Closing Escrow, the terms of this Agreement shall control as between the parties
hereto.
(D) Transfer Taxes. Seller shall pay all transfer taxes
--------------
with respect to an Exercised Lot (other than transfer taxes attributable to the
improvements, if any, constructed by Purchaser on such Exercised Lot).
Purchaser shall pay or cause to be paid all recording fees with respect to the
deed for an Exercised Lot.
(E) Prorations.
----------
(I) As applicable, general real estate taxes,
assessments, homeowner's association dues, condominium association dues,
condominium fees, utility payments and other items that are customarily prorated
shall be prorated with respect to an Exercised Lot as of the time of the Lot
Closing regarding such Exercised Lot.
(II) All prorations are final unless otherwise
indicated in this Agreement.
(III) If the amount of the current real estate taxes
and assessments is not then ascertainable, said taxes and assessments shall be
prorated on the basis of the most recent ascertainable real estate taxes and
assessments, and the parties shall reprorate the taxes and assessments when the
actual bills therefor shall be issued; provided, however, that if an Exercised
Lot is not assessed as a separate parcel for tax purposes, then (a) taxes and
assessments attributable to such Exercised Lot shall be based upon an amount
equal to the most recent ascertainable taxes and assessments for the tax parcel
of which such Exercised Lot is a part multiplied by a fraction the denominator
of which shall be the total number of square feet in the tax parcel of which
such Exercised Lot is a part and the numerator of which shall be the number of
square feet in such Exercised Lot, and (b) said taxes and assessments shall be
reprorated when the actual separate bills for such Exercised Lot shall be
issued.
(IV) If, at the time of a Lot Closing, the Exercised
Lot which is the subject of such Lot Closing is not being treated as a separate
tax parcel, then, within thirty days after such Lot Closing, the parties shall
file the necessary petitions and applications to have said Exercised Lot
assessed as a separate tax parcel.
(V) The obligations set forth in this subparagraph
(E) shall survive the Closing.
(F) Other Documents. The parties hereto hereby agree to
---------------
deliver to each other such additional documents as may be reasonably necessary
to in order to close the sale of an Exercised Lot pursuant to this Agreement.
(G) Possession. At a Lot Closing, Seller shall deliver
----------
to Purchaser possession of the Exercised Lot that is the subject of such Lot
Closing.
(H) Waiver. Purchaser, at its option, may waive, in
------
whole or in part, any unsatisfied condition precedent to Purchaser's obligations
to purchase an Exercised Lot, or may elect to extend the time within which any
such unfulfilled condition precedent may be satisfied. Seller, at its option,
may waive, in whole or in part, any unsatisfied condition precedent to Seller's
obligations to sell an Exercised Lot, or may elect to extend the time within
which any such unfulfilled condition precedent may be satisfied.
(I) Condemnation. The parties hereto hereby agree as
------------
follows:
(I) If, prior to a Lot Closing, any portion of the
Exercised Lot which is the subject of such Lot Closing is taken by condemnation
or eminent domain proceedings, or condemnation or eminent domain proceedings are
commenced to take any portion of such Exercised Lot, then Seller shall give
immediate notice to Purchaser prior to such Lot Closing of such taking or
commencement of proceedings, as the case may be, and Purchaser shall have thirty
days after receipt of notice from Seller of such taking or commencement of such
proceedings to elect in writing to terminate Purchaser's obligation to purchase
such Exercised Lot. In the event that said 30-day election period shall extend
beyond the Lot Closing Date, the Lot Closing Date shall be automatically
extended to the last day of such 30-day period.
(II) In the event Purchaser shall timely elect to
terminate its obligations in accordance with the preceding subparagraph
21(b)(v)(I)(I), Purchaser and Seller shall have no further rights, obligations
or liabilities to each other with respect to such Exercised Lot
[other than the obligations of Seller under subparagraphs 11(a), 18(b), 19(b)
and 20(b) of this Agreement and the obligations of Purchaser under subparagraphs
11(b), 12(b), 18(d) and 19(c) of this Agreement].
(III) In the event that Purchaser shall not timely
elect to terminate its obligations in accordance with subparagraph
21(b)(v)(I)(I) above, then Purchaser shall be deemed to have waived its right to
terminate said obligations by reason of such taking or commencement of taking
proceedings, and the parties shall proceed to close the conveyance of the
Exercised Lot; and, at the Lot Closing, (a) the awards or other proceeds, if
any, actually received by Seller for any such taking shall be paid to Purchaser,
and (ii) Seller shall assign to Purchaser all of Seller's right, title and
interest in and to any proceeds of awards not yet received by Seller and to all
future awards by reason of such taking.
22. Assignment. Without the consent of Seller, Purchaser may not sell,
----------
assign, transfer, or convey its rights under this Agreement to any person other
than CMC or a wholly-owned subsidiary of CMC. Any sale, assignment, transfer or
conveyance by Purchaser of its rights under this Agreement in violation of the
foregoing sentence shall be void, and shall be a material breach of this
Agreement, and such assignee shall acquire no rights hereunder. The provisions
of this paragraph 22 shall survive the Closing.
23. Survival. The terms, covenants, conditions, indemnities,
--------
representations, warranties, disclaimers and agreements of the parties hereto
under this Agreement shall survive, and remain enforceable after, the Closing
and each Lot Closing, except as expressly provided herein, and shall survive the
recording of the deeds and shall not be merged therein.
24. Notices. Any notice, demand, request, election or other
-------
communication required or permitted to be given under this Agreement shall be in
writing, and shall be given (and shall be deemed to have been given by) (a) the
deposit of same in the United States mail, postage prepaid, registered or
certified, with return receipt requested, or (b) the delivery of same in person
to the intended recipient or to his agent, or (c) the deposit of same into the
custody of a nationally-recognized overnight delivery service such as Federal
Express Corporation, Airborne Express, Xxxxx, or Purolator, or (d) the sending
of same by facsimile, telegram or telex, evidenced by a confirmed receipt; in
each case properly addressed as follows:
In the case of notices directed to Purchasers:
CMC Heartland Partners VII, LLC
c/o CMC Heartland Partners
000 X. Xxxxxxx Xxxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxxx X. Xxxxxxx, General Counsel
Telephone No.: 312/000-0000
Fax No.: 312/000-0000
In the case of notices directed to Seller:
Longleaf Associates Limited Partnership
x/x Xxxxxxx Xxxxxxxxxx & Xxxxxxxxxxx Xx.
Xxxxx 0000
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxx
Telephone No.: 617/000-0000, X202
Fax No.: 617/000-0000
With a copy directed to:
General Investment & Development Co.
Suite 2000
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxxxx, Xx.
Telephone No.: 617/000-0000 X000
Fax No.: 617/000-0000
Each such notice, demand, request, election or other communication shall be
deemed to have been given to the intended recipient upon the deposit or delivery
of same in the manner provided above. Any party hereto may change its address
for the service of notice hereunder by delivering written notice of said change
to the other parties hereunder, in the manner specified above, ten (10) days
prior to the effective date of said change.
25. Automatic Extensions. If the day on which any action must be taken
--------------------
under the terms of this Agreement or on which any period expires shall be a
Saturday, Sunday or legal holiday, such action shall be due or such period shall
expire on the next regular business day.
26. Headings. The paragraph headings or captions appearing in this
--------
Agreement are for convenience only, are not part of this Agreement, and are not
to be considered in interpreting this Agreement.
27. Entire Contract; Modification. This Agreement constitutes the entire
-----------------------------
and complete agreement between the parties hereto and supersedes any prior oral
or written agreements between the parties. The parties hereto expressly agree
that there are no verbal understandings or agreements which in any way change
the terms, covenants, and conditions herein set forth. No modification of this
Agreement, and no waiver of any of the terms and conditions of this Agreement,
shall be effective unless made in writing and duly executed by the parties
hereto.
28. Binding Effect. All covenants, agreements, warranties,
--------------
representations and provisions of this Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
permitted assigns.
29. Form of Offer. Delivery of an unexecuted copy of this Agreement by
-------------
Purchaser shall not constitute an offer by Purchaser, and Seller acknowledges
that this Agreement shall not be deemed to be a binding contract unless and
until it is fully executed by Purchaser and Seller.
30. Time. Time is of the essence of this Agreement and the performance of
----
the terms and conditions hereof.
31. Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which shall be deemed to be an original, and all of which
taken together shall be deemed to constitute one and the same instrument.
32. Interpretation. The provisions of this Agreement shall not be
--------------
construed against or in favor of either party on the basis of which party
drafted this Agreement.
33. Miscellaneous. All days are calendar days.
-------------
34. Applicable Law. This Agreement shall be governed by the laws of the
--------------
State of North Carolina.
35. Covenants of Seller Regarding the Xxxxxx Agreements. During the term
---------------------------------------------------
of this Agreement, Seller shall not, without the prior written consent of
Purchaser, modify or amend, or agree to the modification or amendment of, any of
the Xxxxxx Contract, the Golf Club Declaration or the Easement of Enjoyment; and
any such modification or amendment without Purchaser's prior written consent
shall be null and void and of no force or effect. Seller shall take not action
which shall prevent, obstruct or jeopardize the granting of easements of
enjoyment under the Easement of Enjoyment with respect to each Exercised Lot
which Seller shall be obligated under this Agreement to convey to Purchaser.
IN WITNESS WHEREOF, the parties hereto have executed this Option,
Management and Marketing Agreement.
CMC HEARTLAND PARTNERS VII, LLC, a LONGLEAF ASSOCIATES LIMITED
Delaware limited liability company PARTNERSHIP, a North Carolina
limited partnership
By: CMC Heartland Partners, a Delaware By: Longleaf Investors Corporation,
general partnership, its sole member a North Carolina corporation
By:_____________________________ By: ____________________________
Name:___________________________ Name:___________________________
Title:__________________________ Title:__________________________
Date of execution of this Agreement Date of execution of this Agreement
by Purchaser: by Seller:
__________________, 1998 _________________, 1998
STATE OF _______________________ )
)SS
COUNTY OF ______________________ )
I, ______________________, a Notary Public in and for the County and
State aforesaid, do hereby certify that ______________________________________,
the ______________ of Longleaf Investors Corporation, a North Carolina
corporation, who is personally known to me to be the same person whose name is
subscribed to the foregoing instrument, appeared before me this day in person
and acknowledged he signed and delivered said instrument as his own free and
voluntary act and as the free and voluntary act of said corporation, as the
general partner in LONGLEAF ASSOCIATES LIMITED PARTNERSHIP, a North Carolina
limited partnership, for the uses and purposes therein set forth.
Given under my hand and notarial seal this _____ day of _____, 199__.
__________________________________
Notary Public
My Commission Expires:
________________, _____
STATE OF ILLINOIS )
)SS
COUNTY OF XXXX )
I, ______________________, a Notary Public in and for the County and
State aforesaid, do hereby certify that Xxxxxxx X. Xxxxxxxxxxxx, the vice
president of CMC HEARTLAND PARTNERS, a Delaware general partnership (the
"Partnership"), the sole member of CMC HEARTLAND PARTNERS VII, LLC, a Delaware
limited liability company (the "Company"), who is personally known to me to be
the same person whose name is subscribed to the foregoing instrument as such
officer of the Partnership, appeared before me this day in person and
acknowledged that he signed and delivered said instrument as his own free and
voluntary act and as the free and voluntary act of the Partnership, as the sole
member of the Company, for the uses and purposes therein set forth.
Given under my hand and notarial seal this 9th day of September, 1998.
___________________________
Notary Public
My Commission Expires:
________________, ______
EXHIBIT B
---------
LEGAL DESCRIPTION OF MAGNOLIA DRIVE PARCEL
------------------------------------------
EXHIBIT D
--------
LEGAL DESCRIPTION OF FIFTEENTH HOLE PARCEL
------------------------------------------
EXHIBIT F
--------
LEGAL DESCRIPTION OF THE MEADOW PARCEL
--------------------------------------
EXHIBIT G-1
-----------
DRAWING OF THE MEADOW PARCEL
----------------------------
EXHIBIT G-2
-----------
DRAWING OF MEADOW PARCEL-PHASE II
---------------------------------
EXHIBIT G-3
-----------
DRAWING OF MEADOW PARCEL-PHASE III
----------------------------------
EXHIBIT G-4
-----------
DRAWING OF MEADOW PARCEL-PHASE IV
---------------------------------
EXHIBIT G-5
-----------
DRAWING OF MEADOW PARCEL ROADWAY I
----------------------------------
EXHIBIT G-6
-----------
DRAWING OF MEADOW PARCEL-PHASE I
--------------------------------
EXHIBIT H
---------
LEGAL DESCRIPTION OF THE AREA F PARCEL
--------------------------------------
EXHIBIT J
---------
LEGAL DESCRIPTION OF THE CLUB COTTAGES PARCEL
---------------------------------------------
EXHIBIT L
---------
SCHEDULE OF MINIMUM EXERCISES OF OPTIONS
----------------------------------------
EXHIBIT M
---------
LOTS WITH RESPECT TO WHICH SELLER WILL PAY TO XXXXXX ALL AMOUNTS PAYABLE
-------------------------------------------------------------------------
UNDER THE XXXXXX AGREEMENTS
---------------------------
EXHIBIT N
---------
FORM OF OPTION MEMORANDUM
-------------------------
EXHIBIT O
---------
COPY OF INTERIM AGREEMENT, AS AMENDED
-------------------------------------
EXHIBIT P
---------
ACCEPTABLE OPTION TITLE EXCEPTIONS
----------------------------------
EXHIBIT Q
---------
FORM OF DEED
------------
EXHIBIT R
---------
EXISTING LEASES
---------------
EXHIBIT S
---------
PARTIES IN POSSESSION
---------------------
EXHIBIT T
---------
ADDITIONAL EXISTING DOCUMENTS
-----------------------------
EXHIBIT U
---------
JUDGMENTS, WRITS, INJUNCTIONS, DECREES AND ORDERS
-------------------------------------------------
EXHIBIT V
---------
DRAWING OF WETLANDS ON THE AREA F PARCEL
----------------------------------------
EXHIBIT W
---------
OBLIGATIONS TO DONATE MONEY OR LAND
-----------------------------------
EXHIBIT X
---------
RIGHTS AND DUTIES NOT BEING EXERCISED BY MASTER ASSOCIATION
-----------------------------------------------------------
EXHIBIT Y
---------
CONVEYANCES OF CERTAIN UNITS
----------------------------
1. Units Subject to the Hunter Trail Declaration, the Patio Homes 'G'
Declaration or the Magnolia Park Declaration That Have Been Conveyed to
-----------
Third Parties:
-------------
2. Units Subject to the Hunter Trail Declaration, the Patio Homes 'G'
Declaration or the Magnolia Park Declaration That Are Subject to Contracts
---------
for Sale with Third Parties:
---------------------------
EXHIBIT Z
---------
CURRENT ASSESSMENTS AND RESERVES PAYABLE UNDER THE DECLARATIONS
---------------------------------------------------------------
EXHIBIT AA
----------
TRANSFERRED COMMON AREAS
------------------------
EXHIBIT BB
----------
OFFICERS AND DIRECTORS OF THE MASTER ASSOCIATION AND THE INDIVIDUAL
--------------------------------------------------------------------
ASSOCIATIONS
------------
EXHIBIT CC
----------
SCHEDULE OF CLUB MEMBERSHIP FEES AND DUES
-----------------------------------------
EXHIBIT DD
----------
MINIMUM MARKETING SCHEDULE
--------------------------
EXHIBIT EE
----------
CLUB COTTAGES MANAGEMENT AGREEMENT
----------------------------------
EXHIBIT FF
----------
CLUB COTTAGES RENTAL PROGRAM CHECKLIST
--------------------------------------
EXHIBIT GG
----------
SCHEDULE OF ADMINISTRATIVE SERVICES
-----------------------------------
EXHIBIT HH
----------
SELLER'S LOTS
-------------
EXHIBIT JJ
----------
SCHEDULE OF MINIMUM RELEASE PRICES
----------------------------------
EXHIBIT KK
----------
FORM OF DEED
------------
