Exhibit 10.1
Execution Copy
CONTRIBUTION AGREEMENT
THIS CONTRIBUTION AGREEMENT ("Agreement") is made as of March
30, 2012 ("Contract Date"), between (i) Florida Rock Properties, Inc., a Florida
corporation ("FRP"), and (ii) MRP SE Waterfront Residential, LLC, a District
of Columbia limited liability company ("MRP").
ARTICLE 1. INTERPRETATION
1.1 Definitions. For purposes of this Agreement, the following
capitalized terms shall have the meanings indicated:
1.1.1 Access Agreement: that certain Access Agreement dated as of
the date hereof between FRP and MRP.
1.1.2 Action: any action, suit, arbitration, governmental
investigation or other legal proceeding.
1.1.3 Actual Knowledge: actual, conscious (and non-constructive)
knowledge of a Person, which, if such Person is FRP, an FRP affiliate or
an FRP Representative, will be limited to FRP's Knowledge, and if the
Person is MRP, MRP Designee, an MRP Representative or an MRP
Affiliate, will be limited to MRP's Knowledge.
1.1.4 Agreement: as defined in the Preamble.
1.1.5 Apportionment Time: 12:01 a.m. local Washington, D.C.
time on the Closing Date.
1.1.6 A&T Lot: the separate assessment and taxation lot that
will be created for the Company Parcel.
1.1.7 Ballpark District: the area bounded by the Anacostia
River to the South, the Southwest Freeway to the North, South
Capitol Street to the West and 0xx Xxxxxx SE to the East.
1.1.8 Business Day: any Monday through Friday on which
commercial banks are authorized to do business and are not required
by law or executive order to close in the District of Columbia.
1.1.9 Cap: as defined in Section 10.2.8.
1.1.10 Cleanup Standard: the lowest cost alternative (unless
otherwise agreed to by the parties) to address, remediate or dispose
of any Known Hazardous Substance or any materials (such as soil,
other solid materials or water) impacted by any Known Hazardous
Substances, provided that such alternative (i) is commercially
reasonable and available, (ii) is approved by all Governmental
Authorities with jurisdiction over such matters if such approval is
required, and (iii) complies with applicable Environmental Laws.
1.1.11 Closing: the consummation of the transactions
contemplated by this Agreement
..
1.1.12 Closing Date: the date on which Closing occurs.
1.1.13 Code: the Internal Revenue Code of 1986, as amended.
1.1.14 Collateral Assignment of Development Work Product: as
defined in Section 3.5.
1.1.15 Company: Riverfront Investment Partners I LLC, a
Delaware limited liability company.
1.1.16 Company Agreement: the Limited Liability Company
Agreement of the Company to be entered into by MRP and FRP
(or any FRP Affiliate) at Closing in substantially the form attached
hereto as Exhibit C.
1.1.17 Company Parcel: that portion of the Site generally
depicted on Exhibit A attached hereto, together with all right, title
and interest of FRP in and to (i)all rights, ways, easements,
privileges and appurtenances to such parcel, (ii)all strips and
gores appurtenant to such parcel, and (iii)any land lying in the
bed of any streets, roads and alleys appurtenant to such parcel.
1.1.18 Confidential FRP Information: as defined in Section
12.5.1.
1.1.19 Confidential MRP Information: as defined in Section
2.5.3.
1.1.20 Consultants: as defined in Section 3.3.
1.1.21 Contract Date: as defined in the Preamble.
1.1.22 Control (Controlled; Controlling): the possession,
directly or indirectly, of the power to direct or cause the direction
of the management and policies of such Person, through the
ownership of voting securities, by contract or otherwise.
1.1.23 Current Year Tax Appeal: as defined in Section
9.3.
1.1.24 Damages: out of pocket damages, liabilities,
losses, claims, costs and expenses (including reasonable attorneys'
fees and expenses), excluding consequential and punitive damages.
1.1.25 Deed: as defined in Section 8.3.1.
1.1.26 Developer: Midatlantic Realty Partners, LLC, a
Virginia limited liability company, which is an Affiliate of MRP.
1.1.27 Development Agreement: as defined in Section 3.2.
1.1.28 Development Costs: all Pre-Closing Development
Costs and Post-Closing Development Costs. Notwithstanding the
foregoing, both Pre-Closing Development Costs and Post-Closing
Development Costs shall specifically exclude all (a) Due Diligence
Costs, (b) attorney's and other advisor's fees and expenses
incurred by MRP in connection with the negotiation of this
Agreement and/or the transaction described herein (other than the
fees of Zoning and Land Use Counsel or such other zoning and
land use counsel as may be approved by FRP pursuant to
Section 3.3), and (c) overhead or personnel costs of MRP.
1.1.29 Development Work Product: collectively, the
full right, title and interest of MRP (or any affiliate of MRP) in
(a) all studies, tests, reports and investigations relating to the
Site or the design, development, construction, operation,
management or use of the Site, (b) all plans, drawings,
specifications, site plans, plats, renderings and other
architectural or engineering documents related to the Site or
the design, development, construction, operation, management
or use of the Site, (c) all contracts, agreements and purchase
orders with any Person for the preparation of any of the
materials described in the foregoing clauses (a) or (b), (d) all
licenses, permits, approvals, authorizations, and permissions
relating to the Site or the design, development, construction,
operation, management or use of the Site, (e) all applications
for Zoning Approval and the approvals of any other
Governmental Authority or other third party in connection
with the Site or the design, development, construction,
operation, management or use of the Site, and (f) to the
extent not otherwise covered by the foregoing clauses (a)-(e),
all entitlements and general intangibles relating to the
Site or the design, development, operation, management and
use of the Site.
1.1.30 Due Diligence Costs: costs incurred by MRP in connection with
its due diligence and investigation of the Site and the Company Parcel prior to
the Contract Date.
1.1.31 Environmental Laws: all Legal Requirements in effect as of
the Contract Date relating to the protection of the environment or to human
health, or regulating the manufacture, use or disposal of Hazardous
Substances.
1.1.32 Escrow Agent: as defined in Section 8.2.
1.1.33 Existing LUST Case: as defined in Section 4.3.3.
1.1.34 Existing PUD: the PUD for the Site approved by Zoning
Commission Order No. 910-B (Case No. 01-31TE/98-17F/95-16P), as
amended pursuant to Zoning Commission Order Xx. 00-00X
(Xxxx Xx. 00-00X).
1.1.35 Extended Outside Closing Date: January 31, 2014, as may
be extended as a result of FRP Delay pursuant to Section 3.1.3(c).
1.1.36 Force Majeure Event: any act of God, war, riot, civil
insurrection, cyclone, hurricane, flood, fire, explosion, earthquake, storm,
epidemic, plague, act of terrorism, Processing Delay, strike or labor unrest,
shortage of labor or materials despite reasonable diligence, and any other
cause that is not within the reasonable control of MRP (or any affiliate
thereof) so long as such act or event, in each case, (a) was not due to
the default of MRP under this Agreement or the negligence of MRP or
any affiliate of MRP, (b) was not reasonably foreseeable and avoidable
through the exercise of commercially reasonable efforts by MRP or any
affiliate of MRP, (c) was not caused, in whole or in substantial part, by
MRP's failure to use commercially reasonable efforts, (d) results in delay
in MRP performing an obligation or achieving a milestone date otherwise
provided for herein, and (e) is identified by MRP to FRP in writing as a
potential Force Majeure Event within five (5) Business Days after MRP
first has Actual Knowledge or notice of the occurrence thereof (and the
potential of such occurrence to impact the Zoning Approval Schedule or
otherwise result in a performance delay).
1.1.37 FRP: as defined in the Preamble.
1.1.38 FRP Affiliate: shall mean FRP or any entity Controlled,
Controlling or under common Control with FRP.
1.1.39 FRP Delay: any actual delay in seeking, processing or
obtaining the Zoning Approval occurring as a result of FRP's failure
(either directly or through any FRP Representative) to comply with
its obligations under this Agreement, including FRP's failure to
approve or disapprove, within the time period allotted herein (and
subject to the standards provided herein in relation to any such
request for approval) (1) any formal submissions, supporting
documentation or responses provided or required in connection
with the parties' Initial PUD Modification Application, and/or
any modifications or changes thereto, and/or (2) any other plan,
document or other item which is subject to FRP's approval under
this Agreement and which impacts any of the milestone dates
provided for under the Zoning Approval Schedule (and including
the failure after such approval is given to execute or deliver
documentation necessary to process such modification or plan
submission with applicable governmental authorities).
Notwithstanding anything to the contrary in this Agreement:
(a) in no event shall an FRP Delay include FRP's
failure to approve or disapprove (1) any extension under the
Zoning Approval Schedule, or (2) any increases in amounts
provided for under the Pre-Development Budget or the Project
Budget, to the extent such extension or budget increase (i) is
rendered necessary, or sought by MRP, as a result of MRP's
failure to comply with its obligations under this Agreement, or
(ii) is in accordance with the approval standards provided for
under this Agreement;
(b) for MRP to obtain the benefit of any extension
of the Outside Closing Date due to FRP Delay, MRP shall be
required to provide notice of such failure to FRP within ten
(10) days after MRP has Actual Knowledge or notice
thereof, and, subject to subparagraphs (c) and (d), FRP shall
be afforded an opportunity to cure such failure;
(c) if a request that FRP approve any matter required
hereunder is
provided in the form of a Qualifying Approval Notice, then any
delay in achieving satisfaction of the Zoning Approval Condition
which results from FRP's failure to respond to such Qualifying
Approval Notice shall be measured as of the date such approval
was originally required to be provided by FRP under the terms of
such Qualifying Approval Notice; and
(d) if a request that FRP approve any matter required
hereunder is not provided in the form of a Qualifying Approval
Notice, or if FRP fails to comply with its obligations under this
Agreement, then in order for the same to constitute an FRP Delay,
MRP shall be required to give FRP written notice of the
applicable failure within ten (10) days after MRP has Actual
Knowledge or notice thereof, and any FRP Delay shall, in such
event, be measured beginning on the second business day after the
date of MRP's written notice of such failure to FRP, and shall
continue until the applicable FRP Delay ceases.
1.1.40 FRP Indemnified Parties: as defined in Section
11.4.2.
1.1.41 FRP Representative: any employee, agent, consultant,
representative or contractor of FRP in connection with any matters
that are within the scope of this Agreement and the LLC Agreement.
1.1.42 FRP's Knowledge: the actual current knowledge of
the Persons listed on Schedule 1.1.42, without any obligation to
review any files or make inquiry of any Person. No knowledge of any
other Person shall be imputed to FRP.
1.1.43 Governmental Authority: the federal or District of
Columbia government, including any agency, bureau, department
or subdivision thereof, or independent commission or authority
constituted thereby.
1.1.44 Gross Floor Area: as defined in the Zoning
Regulations.
1.1.45 Hazardous Substance: any pollutant, contaminant
or any toxic, radioactive or otherwise hazardous substance,
including petroleum, its derivatives, byproducts and others
hydrocarbons, asbestos, and toxic mold, in each case as
regulated under Environmental Laws.
1.1.46 Initial Capital Contributions: as defined in the
Company Agreement.
1.1.47 Initial Improvements: all buildings, common
areas, and other improvements or areas to be constructed by
the Company pursuant to the Zoning Approval, including any
Shared Improvements (defined herein) required or agreed in
writing to be developed by the Company concurrently with
its construction of the Project in order to complete all first
phase development obligations under the Zoning Approval
(and for the Project to qualify for occupancy permits or
their equivalent upon the completion of such construction).
1.1.48 Initial Outside Closing Date: January 31,
2013, as may be extended as a result of FRP Delay
pursuant to Section 3.1.3(c).
1.1.49 Initial PUD Modification Application: as defined
in Section 3.1.2.
1.1.50 Key Consultants: as defined in Section 3.3.
1.1.51 Known Hazardous Substances: the possible
presence on the Company Parcel of total petroleum
hydrocarbons - diesel range organics, as described in the
Limited Phase II Environmental Site Assessment and
Geophysical Survey dated February 8, 2000, prepared by
Engineering Consulting Services, Ltd. (which is listed on
Schedule 5.10).
1.1.52 Land Records: the land records of the
District of Columbia.
1.1.53 Lease: any lease, license or other occupancy
agreement with respect to all or a portion of the
Company Parcel.
1.1.54 Legal Requirement: any and all applicable
federal, state, local or municipal constitutions, laws, statutes,
orders, rulings, findings, directives, standards, procedural
requirements, ordinances, rules and/or regulations.
1.1.55 Master Development: the development of
the Site, including the Company Parcel, in accordance with
the PUD Modification, as amended by any modifications
adopted at any time with respect to the Project and/or the
Site with governmental approval, and, to the extent required
hereunder or under the LLC Agreement, with approval of all
of the Members of the Company.
1.1.56 Monetary Encumbrances: as defined in Section
4.2.2.
1.1.57 MRP: as defined in the Preamble.
1.1.58 MRP Affiliate: a Person (a) that is Controlled by
any two or more of the MRP Principals, as long as those MRP
Principals at all times include Xxxxxx Xxxxxx and Xxxxxxxxx
Xxxxxxxxxx, and (b) in which two or more of the MRP
Principals own, directly or indirectly at least fifty-one percent
(51%), including at least fifty-one percent (51%) of the capital
and profits, so long as those MRP Principals at all times include
Xxxxxx Xxxxxx and Xxxxxxxxx Xxxxxxxxxx.
1.1.59 MRP Designee: as defined in Section
12.1.1.
1.1.60 MRP Indemnified Parties: as defined in Section
11.4.1.
1.1.61 MRP Principals: Xxxxxx Xxxxxx, Xxxxxxxxx
Xxxxxxxxxx, Xxxx Xxxx and X. Xxxxxxx Saas.
1.1.62 MRP Representatives: as defined in Section
4.1.
1.1.63 MRP's Knowledge: the actual current
knowledge of the Persons listed on Schedule1.1.63, without
any obligation to review any files or make inquiry of any
Person. No knowledge of any other Person shall be
imputed to MRP.
1.1.64 New Title Matter: as defined in Section
4.2.4.
1.1.65 Objection: as defined in Section 4.2.1.
1.1.66 Outside Application Date: the outside date
for application for building permits for the initial improvements
under the Existing PUD, as the same may be unconditionally
modified by the PUD Modification or any other modification
or amendment to the Existing PUD, as approved by applicable
Governmental Authorities in the District of Columbia. The
parties acknowledge that (a) under the Existing PUD, the
Outside Application Date is currently June 27, 2012, and
(b) the Outside Application Date is a fluid date that
may repeatedly change based on modifications to the
Existing PUD, and/or other actions taken by applicable
Governmental Authorities in the District of Columbia which
have the effect of extending the Outside Application Date.
1.1.67 Outside Closing Date: as applicable, the
Initial Outside Closing Date or the Extended Outside Closing
Date, as may be extended pursuant to Section 7.2 of this
Agreement.
1.1.68 Parcel Value: an amount equal to (i) the
maximum number of square feet of Gross Floor Area
that is authorized to be built on the Company Parcel
pursuant to the Zoning Approval multiplied by (ii) Forty
Five and 00/100 Dollars ($45.00), provided that in no
event shall the Parcel Value be less than Ten Million Five
Hundred Thousand and 00/100 Dollars ($10,500,000.00).
1.1.69 Permitted Exceptions: collectively, (i) the
matters set forth on Schedule 1.1.69, (ii) the matters set
forth on Schedule B of the Title Commitment and the matters
that would be shown by a survey of the Company Parcel
performed on the last day of the Title Objection Period in
accordance with the Survey Standards, other than those
matters that FRP is required to cure pursuant to Section
4.2, and (iii) any matters approved or deemed approved
by MRP pursuant to Section 4.2.
1.1.70 Person: a natural person or any legal or
governmental entity.
1.1.71 Post-Closing Development Costs: all
out-of-pocket third party costs incurred by MRP in
connection with the performance of its pre-development
obligations under Article 3 and, as applicable, under
the Company Agreement, to the extent such costs are
incurred in accordance with the "Development Budget"
adopted by Company in accordance with the terms of
the Company Agreement after the Closing Date
hereunder, and as the same may be modified, or deemed
modified, in accordance with the terms of the Company
Agreement. Notwithstanding the foregoing, Post-
Closing Development Costs shall specifically exclude all
(a) Due Diligence Costs, (b) attorney's and other advisor's
fees and expenses incurred by MRP in connection with
the negotiation of this Agreement and/or the transaction
described herein (other than the fees of zoning and land
use counsel approved by FRP pursuant to Section 3.3),
and (c) overhead or personnel costs of MRP.
1.1.72 Pre-Closing: as defined in Section 8.2.
1.1.73 Pre-Closing Development Costs: all out-of-
pocket third party costs incurred by MRP in connection
with the performance of its obligations under Article 3, to the
extent such costs are incurred in accordance with the Pre-
Development Budget prior to the Closing Date hereunder.
Notwithstanding the foregoing, Pre-Closing Development
Costs shall specifically exclude all (a) Due Diligence Costs,
(b) attorney's and other advisor's fees and expenses
incurred by MRP in connection with the negotiation of this
Agreement and/or the transaction described herein
(other than the fees of zoning and land use counsel
approved by FRP pursuant to Section 3.3), and (c)
overhead or personnel costs of MRP.
1.1.74 Pre-Development Budget: as defined in
Section 3.4.1, and as the same may be modified, or deemed
modified, prior to the Closing Date in accordance with this
Agreement.
1.1.75 Prior Lease: that certain Lease Agreement
dated April 1, 1986, by and between FRP, as landlord, and
Prior Tenant, as tenant, as amended by Addendum dated April 1,
2001, Second Lease Addendum dated October 1, 2007, and
Third Addendum dated August 2011.
1.1.76 Prior Tenant: DC Materials, Inc., a District of
Columbia corporation, its successors and assigns.
1.1.77 Processing Delay: any delay in obtaining the
Zoning Approval beyond the time periods provided for in the
Zoning Approval Schedule that is not attributable to the failure
of MRP to use commercially reasonable and diligent efforts
to pursue the Zoning Approval, including delay attributable
to (i) postponements or adjournment of hearings and/or
meetings; (ii) requests for the inclusion of additional owner
commitments, or other modifications to the terms of PUD
Modification, as originally submitted, that were not anticipated
as of the date of execution of this Agreement by FRP and
MRP; and/or (iii) Persons involved in the process of
reviewing, commenting upon, and/or approving any
applications, plans and other supporting materials submitted
as part of the PUD Modification taking more time than
the Zoning Approval Schedule contemplates for
completing their review and/or approval, including due
to indecision or disagreement, as required to reconcile
conflicting demands or requests, or obtain input from
additional sources.
1.1.78 Project: the development of a mixed used
multifamily and retail commercial real estate project on the
Company Parcel by the Company.
1.1.79 Project Budget: as defined in Section 3.4.2,
as the same may be modified, or deemed modified, prior to
the Closing Date in accordance with this Agreement.
1.1.80 PUD: a planned unit development, as
defined in the Zoning Regulations.
1.1.81 PUD Modification: as defined in Section
3.1.1, as the same may be
modified prior to the Closing Date in accordance with
this Agreement.
1.1.82 Qualifying Approval Notice: a written
notice which seeks or requests the consent or approval of
the recipient of such notice to an action or decision
specified therein, or which triggers the recipient's
right to make an election under the express terms
of this Agreement, which (1) identifies the Section of
this Agreement which references the requirement for
such consent or approval, or the election to which such
Qualifying Approval Notice relates, (2) states the
number of days allotted under this Agreement to the
recipient of such notice to provide the requested
written approval or consent, or to make the election
triggered by such notice, and (3) then conspicuously
states, in all capitalized letters and bold print, that the
recipient's failure to respond to such Qualifying Approval
Notice within the time period allotted under this Agreement
will bedeemed either (i) to constitute the recipient's
approval of the action or decision in question, or (ii) to
constitute the recipient's deemed decision not to make the
applicable election identified therein.
1.1.83 REA: as defined in Section 3.2.
1.1.84 Reimbursable Costs: as defined in Section
10.2.4.
1.1.85 Remediation Activities: as defined in Section
10.2.1.
1.1.86 Service Contracts: as defined in Section 5.7.
1.1.87 Settlement Statement: as defined in Section
8.3.10.
1.1.88 Shared Improvements: all buildings, common
areas, and other improvements or areas located outside of the
Company Parcel and which are intended for the benefit of the
owners of all parcels within the entire Site, and their tenants,
occupants, invites, licensees and business visitors, pursuant to
the terms of the REA, but solely to the extent required to be
constructed by the Company as part of the development of the
Project pursuant to the terms of the Zoning Approval or to
ensure compliance with applicable Development Approvals
for the Project.
1.1.89 Site: the real property consisting of 5.82 acres
of land, more or less, located at 00 Xxxxxxx Xxxxxx, XX,
Xxxxxxxxxx D.C. as more particularly described in Exhibit B
attached hereto.
1.1.90 Survey: as defined in Section 4.2.1.
1.1.91 Survey Standards: the Minimum Standard Detail
Requirements and Classifications for ALTA/ACSM Land Title
Surveys jointly established and adopted in 2011.
1.1.92 Tenant: a tenant, lessee, licensee or any other Person
who holds a leasehold interest in all or any portion of the Company
Parcel pursuant to a Lease.
1.1.93 Third Party Claims: as defined in Section 10.1.3.
1.1.94 Title Commitment: as defined in Section 4.2.1.
1.1.95 Title Company: Commonwealth Land Title Insurance
Company, with an address of 0000 00xx Xxxxxx, XX, Xxxxx 000,
Xxxxxxxxxx, XX 00000, Attn: Xxxxx X. Xxxxxx, or such other title
company as MRP and FRP may mutually approve.
1.1.96 Title Objection Notice: as defined in Section 4.2.1.
1.1.97 Title Objection Period: as defined in Section 4.2.1.
1.1.98 Title Response Notice: as defined in Section 4.2.1.
1.1.99 Transaction Documents: collectively, this Agreement,
the Collateral Assignment of Development Work Product and the
other documents executed at or in connection with Closing by FRP,
MRP (or MRP Designee), and/or the Company.
1.1.100 WASA: as defined in Section 10.2.4(c).
1.1.101 Zoning and Land Use Counsel: as defined in Section
3.3.
1.1.102 Zoning Approval: the publication in the D.C. Register
of a final order by the Zoning Commission approving the PUD
Modification.
1.1.103 Zoning Approval Condition: as defined in Section 7.2.
1.1.104 Zoning Approval Schedule: as defined in Section
3.1.3, as the same may be modified, or deemed modified, prior to
the Closing Date in accordance with this Agreement.
1.1.105 Zoning Commission: the Zoning Commission of the
District of Columbia.
1.1.106 Zoning Regulations: the Zoning Regulations of the
District of Columbia, 11 D.C.M.R. (February, 2003), and the zoning
maps accompanying them.
1.2 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the District of Columbia
(without reference to conflicts of laws principles).
1.3 Captions, Numbering and Headings. Captions, numbering
and headings of Articles, Sections, Schedules and Exhibits in this
Agreement are for convenience of reference only and shall not be
considered in the interpretation of this Agreement. References in this
Agreement to Articles, Sections, Schedules and Exhibits shall be
deemed to be references to such Articles, Sections, Schedules
and Exhibits in this Agreement unless otherwise expressly specified.
1.4 Number; Gender. Whenever required by the context, the
singular shall include the plural, the neuter gender shall include the
male gender and female gender, and vice versa.
1.5 Business Day. In the event that the date for performance
of any obligation or the exercise of any right or option under this
Agreement falls on a day other than a Business Day, then such
obligation shall be performed on the next succeeding Business
Day.
1.6 Severability. In the event that one or more of the
provisions of this Agreement shall be held to be illegal, invalid
or unenforceable, each such provision shall be deemed
severable and the remaining provisions of this Agreement
shall continue in full force and effect.
1.7 No Oral Modifications or Waivers. No modification
of this Agreement shall be valid or effective unless the same is
in writing and signed by FRP and MRP. No purported waiver
of any of the provisions of this Agreement shall be valid or
effective unless the same is in writing and signed by the party
against whom it is sought to be enforced. Notwithstanding the
foregoing, the parties agree that the time for performance of
any matter to be performed pursuant to this Agreement
may be modified by electronic mail sent by the party against
whom it is sought to be enforced or such party's counsel.
1.8 Exhibits. All Schedules and Exhibits referenced in
this Agreement are incorporated by this reference as if fully set
forth in this Agreement, and all references to this Agreement
shall be deemed to include all such Schedules and Exhibits.
1.9 Integration. This Agreement, all Schedules and Exhibits
appended to this Agreement, and the documents and agreements
referenced in this Agreement, contain the entire understanding
between FRP and MRP with respect to the development of the
Company Parcel, the formation of the Company and contribution
of the Company Parcel to the Company, and are intended to be
a full integration of all prior or contemporaneous agreements,
conditions, understandings or undertakings between FRP and
MRP with respect thereto. There are no promises, agreements,
conditions, undertakings, understandings, warranties or
representations, whether oral, written, express or implied,
between FRP and MRP with respect to the development of
the Company Parcel, the formation of the Company and
contribution of the Company Parcel to the Company other
than as are expressly set forth in this Agreement, the
Schedules and Exhibits appended to this Agreement, and the
documents and agreements referenced in this Agreement.
1.10 No Construction Against Drafter. This Agreement
has been negotiated and prepared by FRP and MRP and their
respective counsels and, should any provision of this Agreement
require judicial interpretation, the court interpreting or
construing such provision shall not apply the rule of construction
that a document is to be construed more strictly against one party.
1.11 Including. The term "including," "include," "includes"
and other variants thereof, shall be construed is if immediately
followed by the words "without limitation."
ARTICLE 2. FORMATION OF COMPANY
2.1 Formation. At Closing, subject to and in accordance with
the terms of this Agreement, (i) FRP and MRP shall form the
Company and enter into the Company
Agreement, (ii) FRP shall contribute the Company Parcel to the
Company, and (iii) MRP shall contribute the Development Work
Product to the Company.
2.2 Initial Capital Contributions.
2.2.1 At Closing, FRP shall be credited pursuant to the
Company Agreement with an Initial Capital Contribution equal to the
sum of (a) the Parcel Value, plus or minus (b) the net proration amount
owed to or from FRP under Article 9, respectively, plus (c) if applicable,
the sum of all ad valorem real estate taxes, and other taxes, levies and
assessments with respect to the Company Parcel, and all insurance
premiums associated with the Company Parcel, in each case allocable
to the period beginning on the first anniversary of the Contract Date
and ending at the Apportionment Time.
2.2.2 At Closing, MRP shall be credited pursuant to the
Company Agreement with an Initial Capital Contribution equal to the
sum of (a) the Development Costs actually paid by MRP prior to the
Closing Date in accordance with the Pre-Development Budget (as
modified pursuant to Section 3.4.1), plus (b) any cash contribution
made by MRP to pay amounts due from MRP or the Company in
connection with the Closing under Section 8.2.
ARTICLE 3. PUD MODIFICATION
3.1 PUD Modification; Extension of Outside Application Date.
3.1.1 (a) PUD Modification. MRP shall seek a modification
to the Existing PUD for the Site (the "PUD Modification") to (i) approve
the development of the Company Parcel as first phase of development
for the Site, and (ii) revert to a modified first stage PUD for the remaining
three phases of development for the Site. The PUD Modification shall
include the following terms:
(i) approval of approximately 293,460 square feet of
Gross Floor Area of concrete residential and ground floor retail
improvements to be constructed on the Company Parcel, in lieu of the
250,000 square feet of gross floor area of commercial office and retail
use which is currently approved for the Company Parcel under the
Existing PUD (as more particularly described therein);
(ii) the preservation of density allocated to the
remainder of the Site under the Existing PUD; and
(iii) such other terms as FRP and MRP may approve.
(b) Extension of Outside Application Date. As part of the
PUD Modification process, MRP and/or FRP, as applicable, shall seek
an extension of the Outside Application Date under the Existing PUD
from June 27, 2012 to June 27, 2014 or such other date as the parties
(in consultation with Zoning and Land Use Counsel) determine, at such
time as MRP and FRP, in consultation with Zoning and Land Use
Counsel, reasonably deem is appropriate or necessary, but in all events
such extension request shall be filed with the Zoning Commission no later
than May 1, 2012 (unless Zoning Approval has been obtained
before then). The parties herby agree that any such extension shall be
deemed part of the PUD Modification for purposes of this Agreement.
3.1.2 Initial PUD Modification Application; Cooperation.
(a) On December 1, 2011, a PUD Modification Application
was submitted to the Zoning Commission for approval and assigned Case
Number 4-14B (in the form submitted on December 1, 2011, the "Initial
PUD Modification Application").
(b) MRP and FRP will work cooperatively with one another to
discuss, and, as applicable, modify the Initial PUD Modification Application
(under MRP's supervision and at MRP's expense), in response to any
comments received from Governmental Authorities, or otherwise as agreed
by them in consultation with Zoning and Land Use Counsel until the Zoning
Approval has been obtained or this Agreement has terminated, whichever
first occurs, subject to the following review and approval standards:
(i) Any modification to the terms of the Initial PUD
Modification Application that affects the remainder of the Site to more
than a de minimis extent shall be subject to the approval of FRP, which
(1) as to matters involving common areas, common infrastructure, shared
private roadways or other shared amenities upon which the development
of the Company Parcel is dependent, shall not be unreasonably withheld,
conditioned or delayed (provided that the parties hereby agree that it
shall be reasonable for FRP to withhold its consent to any such matters
because such matters have a material non de minimis and adverse
economic impact on the balance of the Site relative to that which is
applicable under the Initial PUD Modification Application, including,
but not limited to, a non de minimis increase in cost or a decrease in
Gross Floor Area for the balance of the Site relative to that which
is applicable under the Initial PUD Modification Application), and (2)
as to all other matters, may be granted or withheld in FRP's sole and
absolute discretion;
(ii) FRP shall not incur any material liability or material
out-of-pocket cost in connection with any modifications to the Initial
PUD Modification Application (other than the costs of FRP's own
counsel and consultants) and it shall be reasonable for FRP to
withhold its approval of any modifications to the Initial PUD
Modification Application that result in the same; and
(iii) If neither subparagraph (i) nor subparagraph (ii)
is applicable, any modifications to the Initial PUD Modification
Application shall be subject to the prior approval of both FRP and
MRP, not to be unreasonably held, conditioned or delayed.
Except as otherwise approved by the other, (1) MRP shall not
consent to, support or permit any PUD Modification or
modification to the Existing PUD or PUD Modification that is
not consistent in all non-de minimis respects with
the application materials approved by FRP, and (2) FRP shall
not consent to, support or permit any PUD Modification or
modification to the Existing PUD or PUD Modification that is
not consistent in all non-de minimis respects with the application
materials approved by MRP (except that MRP shall have no
approval right with respect to any modification to the Existing
PUD or PUD Modification that affects only the balance of the
site other than the Company Parcel). Likewise the Zoning
Approval shall be consistent in all non-de minimis respects with
the Initial PUD Modification Application, as the same may
modified pursuant to this Section 3.1.2(b).
(c) FRP, as the fee owner of the Company Parcel,
shall cooperate with MRP in such manner as MRP reasonably
requests to obtain Zoning Approval. Such cooperation by FRP
may include (a) meetings with interested Persons, groups or
stakeholders, (b) meetings with, presentations to, and testimony
before, the Office of Planning, the Zoning Commission and other
Governmental Authorities, (c) submitting letters of support to the
Zoning Commission and other Governmental Authorities, and
(d) executing applications for Zoning Approval to the Zoning
Commission and other Governmental Authorities. The form and
substance of any PUD covenant or other covenant or agreement
related to Zoning Approval shall be subject to the prior review
and approval of FRP in accordance with the standards set forth
in Section 3.1.2(b).
(d) In the absence of a specific provision in this
Agreement which contemplates a different time period for FRP to
review or approve any specific request for approval received by
FRP from MRP, or for FRP to respond to a notice from MRP
seeking some other action by FRP in connection with MRP's
effort to satisfy Zoning Approval Condition, the parties agree FRP
shall reply or respond to MRP within seven (7) Business Days
following receipt of such request or notice from MRP.
3.1.3 Processing of PUD Modification.
(a) From and after the date hereof, MRP, at its sole
cost and expense, shall diligently pursue all applications, filings,
hearings, meetings, outreach, processes and appeals reasonably
necessary to obtain the Zoning Approval in accordance with the
schedule set forth on Schedule 3.1.3 (as the same may be modified
from time to time in accordance with any applicable provision of this
Agreement, the "Zoning Approval Schedule"). MRP shall coordinate
such activities with FRP and shall provide FRP with reasonable prior
notice of all scheduled meetings regarding the Zoning Approval with
any interested Persons, groups or stakeholders and all meetings or
hearings with any Governmental Authority in connection with the
Zoning Approval. FRP shall have the right to have its representatives
attend, and, in a manner coordinated with MRP (and as to which
MRP takes the "lead" in representing the interests of the applicant
therein), participate in, all such meetings and hearings.
(b) The Zoning Approval Schedule may be modified by
mutual agreement of the parties by executing a written amendment to
this Agreement attaching a revised Zoning Approval Schedule.
(c) The Zoning Approval Schedule shall be modified to
extend each applicable milestone date set forth therein by one (1) day
for each day of delay in achieving such milestone date, to the extent the
same is attributable solely to FRP Delay.
3.1.4 Unless FRP is then in default under this Agreement, FRP
shall have the right to terminate this Agreement as follows:
(a) If FRP reasonably determines that MRP will not be
able to achieve the Zoning Approval by the Extended Outside Closing
Date other than as a result of any FRP Delay(s), FRP may deliver written
notice of termination to MRP; or
(b) If FRP reasonably determines that the terms and
conditions under which the District is willing to grant approval to the PUD
Modification are financially infeasible or otherwise unacceptable from a
marketing or development perspective, then FRP shall have the right to
terminate this Agreement by written notice to MRP.
3.1.5 Unless MRP is then in default under this Agreement, MRP
shall have the right to terminate this Agreement as follows:
(a) If MRP reasonably determines that it will not be able to
achieve the Zoning Approval by the Extended Outside Closing Date
other than as a result of a failure of MRP to perform its obligations
under this Agreement, MRP may deliver written notice of termination to
FRP;
(b) If MRP reasonably determines that the terms and conditions
under which the District is willing to grant approval to a modification of
the Existing PUD are financially infeasible or otherwise unacceptable from
a marketing or development perspective, then MRP shall have the right to
terminate this Agreement by written notice to FRP; or
(c) FRP's failure to approve reasonable changes to the Pre-
Development Budget, provided that it will be deemed unreasonable for
FRP to withhold its approval to increases in the Pre-Development
Budget requested solely in order to account for additional costs incurred
in satisfying the Zoning Approval Condition to the extent attributable to
Processing Delays, Force Majeure and/or FRP Delays (except to the
extent any of the foregoing are attributable to MRP's failure to use diligent
efforts to satisfy the Zoning Approval Condition or other default under
this Agreement).
Prior to either party delivering a termination notice under Section
3.1.4 or 3.1.5, as applicable, such party shall meet and confer with the
other party regarding the basis for such termination and to determine
whether there is any feasible alternative to termination that MRP and
FRP should pursue; provided that the foregoing shall not be construed
to deny FRP or MRP the right to terminate this Agreement if the
conditions for such termination are met.
3.1.6 Upon any termination of this Agreement effectuated
pursuant to Section 3.1.4 or Section 3.1.5, (i) this Agreement shall
otherwise be of no further force and effect, (ii) subject to any rights
FRP has under Section 11.1 or MRP has under Section 11.2, Section
11.3 shall apply, and (iii) other than as set forth in subclause (ii), neither
party shall have any further rights, obligations or liabilities to the other
party other than those that expressly survive termination of this
Agreement.
3.2 REA; Development Agreement. Promptly following the
Contract Date, FRP and MRP, each acting reasonably and in good
faith, shall endeavor to agree upon the form of (A) a reciprocal
easement agreement that will encumber the Site (including the
Company Parcel) (the "REA"), consistent with the PUD Modification,
and (B) a development management agreement to be entered into
by the Company and the Developer (the "Development Agreement").
If FRP and MRP shall agree upon a form of REA and a form of
Development Agreement, they shall promptly reflect the same in an
amendment to this Agreement. If such amendment shall not have been
executed by the date that is sixty (60) days after the Contract Date,
then either FRP or MRP may terminate this Agreement by written
notice to the other given at any time thereafter and prior to execution
of such amendment by both parties. Upon any such termination, (i)
this Agreement shall be of no further force and effect, (ii) subject to
any rights FRP has under Section 11.1 or MRP has under Section
11.2, Section 11.3 shall apply, and (iii) other than as set forth in
subclause (ii), neither party shall have any further rights, obligations
or liabilities to the other party other than those that expressly survive
termination of this Agreement. The REA shall be recorded in
the Land Records at Closing, at the expense of the Company. The
Development Agreement shall be executed by the applicable parties
at Closing.
3.3 Consultants. MRP shall engage SK&I as the design
architect and architect of record for the Initial Improvements,
Goulston & Storrs as the zoning and land use counsel for obtaining
Zoning Approval and other Development Activities (the "Zoning and
Land Use Counsel"), Xxxxx Xxxxxx as civil engineer for the Project,
Xxxxxx Xxxxx as traffic consultant, Oculus as the landscape architect,
and either ECS or Xxxxxxxx as environmental and soils consultant,
and FRP hereby approves of the foregoing consultants (the "Key
Consultants"). The parties hereby agree that the Zoning and
Land Use Counsel shall represent the joint interests of MRP
and FRP, and that MRP and FRP shall both be the client. FRP
shall have the right to approve (which approval shall not be
unreasonably withheld, conditioned or delayed): (A) other
consultants and contractors involved in connection with obtaining
Zoning Approval (e.g. land planners, public space and landscaping
consultants, and community relations and outreach specialists) and
the other Development Activities (such approved additional
consultants together with the Key Consultants, the "Consultants"),
and (B) the fee structure and fee schedules for the Consultants
(and, upon FRP giving such approval, the Pre-Development
Budget will be deemed amended to the extent necessary to
integrate such approved fee structure and fee schedules therein).
MRP shall have the right to replace any Consultants upon
obtaining FRP's prior approval, which approval shall not be
unreasonably withheld, conditioned or delayed.
3.4 Pre-Development Budget; Project Budget.
3.4.1 As of the date hereof, MRP has provided to
FRP a budget (the "Pre-Development Budget") setting forth all
anticipated Pre-Closing Development Costs. From time to time
prior to Closing, if MRP shall determine that the Pre-Development
Budget does not accurately reflect the anticipated Pre-Closing
Development Costs, MRP may propose to FRP updates to the
Pre-Development Budget. Each such update shall be subject to
the prior approval of FRP, which approval shall not be unreasonably
withheld, conditioned or delayed (and which shall be deemed
approved if not disapproved by FRP within five (5) Business Days
after being submitted for approval). MRP shall keep complete
and accurate
books and records relating to Development Costs, and such
books and records shall be open and available to FRP for
inspection, copying and audit during normal business hours.
From and after the Contract Date and prior to Closing, MRP
shall provide to FRP, on or before the fifteenth (15th) day of each
month, a report showing (on a reasonably itemized basis) all
Development Costs which have been paid by MRP through
the end of the preceding month.
3.4.2 As of the date hereof, MRP has provided to
FRP a preliminary Project budget (the "Project Budget")
setting forth MRP's preliminary estimate of all Development
Costs and all hard and soft costs projected to be incurred in
connection with the entitlement, development, construction,
completion and initial lease up of the Initial Improvements.
MRP shall update the Project Budget (i) at Closing, and (ii) at
such other times as FRP and MRP may mutually agree. Each
such update shall be subject to the prior approval of FRP, which
approval shall not be unreasonably withheld, conditioned or
delayed (and which shall be deemed approved if not disapproved
by FRP within five (5) Business Days after being submitted
for approval). MRP shall keep complete and accurate
books and records relating to Development Costs, and
such books and records shall be open and available to FRP for
inspection, copying and audit during normal business hours.
3.5 Collateral Assignment of Development Work Product.
Concurrently with the execution of this Agreement, MRP shall
execute and deliver to FRP the Collateral Assignment of
Development Work Product attached to this Agreement as Exhibit
H (the "Collateral Assignment of Development Work Product").
In connection with each third-party contract executed by MRP
in connection with its pre-Closing responsibilities under this
Agreement, MRP shall obtain the consent of the applicable
third party to the assignment of such contract (and any work
product thereunder) pursuant to the Collateral Assignment of
Development Work Product. This Section 3.5 shall survive
the termination of this Agreement.
ARTICLE 4. MATTERS PENDING CLOSING
4.1 Access. Subject to the terms and conditions of the Access
Agreement, MRP and its representatives, agents and contractors
(collectively, "MRP Representatives") shall have the right
to enter onto the Company Parcel to undertake such
inspections and investigations of the Company Parcel as MRP
deems desirable to evaluate the financial and physical condition
of the Company Parcel and such other matters that MRP may
deem relevant.
4.2 Title and Survey.
4.2.1 Within thirty (30) days following the Contract
Date ("Title Objection Period"), MRP shall cause (a) the Title
Company to issue and deliver to MRP a commitment for an
ALTA Owner's Policy of Title Insurance ("Title Commitment")
for the Company Parcel (and affirmatively insuring the Company's
rights under the REA and any other easements appurtenant to
the Property, as part of the insured legal description of the
property insured thereunder) naming the Company as the
insured, and (b) a survey ("Survey") to be performed of the
Company Parcel (based upon the projected boundaries as
shown on Exhibit A) in accordance with the Survey Standards.
Promptly after receipt, MRP shall deliver a copy of the Title
Commitment and the Survey to FRP. Prior to the
expiration of the Title Objection Period, MRP shall notify FRP
in writing (the "Title Objection Notice") of any matter set
forth on the Title Commitment or Survey (other than matters
described on Schedule 1.1.68) that in MRP's reasonable
judgment materially and adversely impacts development of the
Company Parcel in accordance with this Agreement (each such
matter, an "Objection"). All matters existing as of the date of the
Title Commitment and not addressed in MRP's Title Objection
Notice (other than the Objections FRP is obligated to cure or
has elected to cure pursuant to this Section 4.2), shall constitute
Permitted Exceptions. Within five (5) Business Days following
receipt of the Title Objection Notice, FRP shall notify
MRP in writing (the "Title Response Notice") which
Objections FRP elects to cure at or before the Closing.
4.2.2 Notwithstanding anything to the contrary contained
in Section 4.2.1, FRP shall be obligated to cause the release or
removal of, at or before the Closing (i)any mortgage lien
encumbering the Company Parcel, (ii)any mechanics' lien or
materialmen's lien encumbering the Company Parcel except to the
extent attributable to work performed for MRP, and (iii)any judgment
lien, tax lien (other than taxes not yet due and payable) or other lien
securing a monetary amount, which encumbers the Company Parcel
and is capable of being removed by the payment of a liquidated sum
of money (the items referenced in clauses (i)-(iii) being referred to
collectively as "Monetary Encumbrances"). Subject to MRP's
approval, which will not be unreasonably withheld, conditioned or
delayed, FRP may provide affirmative title insurance to insure over
any Objection as a sufficient cure of such Objection.
4.2.3 In the event that FRP fails to respond to MRP's
Objections, if any, pursuant to the Title Response Notice by the
date that is five (5) Business Days following receipt of the Title
Objection Notice, FRP shall be conclusively deemed to have elected
not to cure such Objections, other than those FRP is obligated to cure
pursuant to Section 4.2.2. If FRP does not agree to cure such
Objections, then during the five (5) Business Day period following
MRP's receipt of the Title Response Notice (or if FRP fails to
respond to MRP's Objections, within five (5) Business Days after the
outside date for the Title Response Notice), MRP shall have the right
to terminate this Agreement by written notice to FRP. If MRP fails
to so terminate this Agreement, then any Objections which FRP has
not agreed to cure (excluding Monetary Encumbrances, which must
be cured by FRP) shall constitute Permitted Exceptions. Upon any
such termination, (i) this Agreement shall be of no further force and
effect, (ii) neither party shall have any further rights, obligations or
liabilities to the other party other than those that expressly survive
termination of this Agreement, and (iii) Section 11.3 shall apply.
If FRP indicates that it will cure one or more Objections in its Title
Response Notice, the same shall constitute FRP's unconditional
covenant to cure such Objection on or before the Closing Date
in accordance with the requirements of Section 4.2.2 or Section
4.2.4 hereof, as applicable.
4.2.4 If after expiration of the Title Objection Period
and prior to Closing, any update of the Title Commitment shall
disclose any matter ("New Title Matter") affecting title to the
Company Parcel that (i) first arose or was recorded after the
date of the Title Commitment, (ii) is not a Permitted Exception,
and (iii) is not otherwise expressly permitted under this Agreement
or caused by MRP or any MRP Representatives, then MRP shall
promptly notify FRP of any such New Title Matter and FRP shall
be obligated to cure
the same at or before Closing; provided that FRP shall have the
right to extend the Closing for a period not to exceed sixty (60)
days in the aggregate if necessary to effect such cure. The cure
provisions of Section 4.2.2 shall apply to any Objection by MRP
to a New Title Matter, with the same force and effect as if Section
4.2.2 were restated herein and made expressly applicable hereto.
Except to the extent that MRP so notifies FRP of its Objection to
any New Title Matter pursuant to this Section 4.2.4, any item
reflected in any update of the Title Commitment shall be deemed
to have been approved by MRP and shall be a Permitted
Exception for all purposes under this Agreement.
4.2.5 If, on or before Closing, FRP fails to cure any
Objection that FRP elects or is obligated to cure pursuant to Section
4.2.1 or Section 4.2.2, or FRP fails to cure any New Title Matter
that FRP is obligated to cure pursuant to Section 4.2.4, then MRP
may (i) waive such Objection or New Title Matter, in which event
such waived Objection or New Title Matter shall become a
Permitted Exception for all purposes under this Agreement, (ii)
extend the Closing for a period not to exceed sixty (60) days in the
aggregate to allow FRP to effect the cure of such Obligation or
New Matter, or (iii) declare FRP in default under this Agreement
and proceed to exercise MRP's rights under Section 11.2.
4.2.6 Prior to Closing, MRP shall cause the Survey to be
updated and the boundaries of the Company Parcel shown on the
Survey to conform to the boundaries of the first phase of the PUD
Modification. Such updated boundaries shall be the basis for the
A&T Lot, and FRP and MRP shall execute a modification of this
Agreement confirming the final boundaries and legal description of
the Company Parcel.
4.3 Contracts and Leases.
4.3.1 Prior to Closing, FRP may enter into contracts and
agreements relating to the operation, maintenance and security of the
Company Parcel, provided that except to the extent otherwise
agreed by FRP and MRP, such contracts and agreements shall not
be assigned to the Company at Closing and shall remain the sole
obligation of FRP. All such contracts and agreements relating to the
Company Parcel shall be terminated in their entirety or
unconditionally released with respect to the Company
Parcel, at FRP's sole cost, on or before the Closing Date.
4.3.2 Prior to Closing, FRP reserves the right to enter
into Leases for all or any portion of the Company Parcel, provided
that all such Leases shall provide (i) that such Leases will terminate
as of (or prior to) the Closing Date, or no later than thirty (30) days
after notice of termination from FRP, (ii) that the tenant thereunder is
deemed to be either a tenant-at-sufferance or a trespasser if it fails
to surrender possession of its premises under such Lease upon the
expiration of the term thereof, and (iii) that the tenant thereunder
indemnifies Landlord (and its successors and assigns in title to the
Company Parcel) from and against any and all damages, losses
and/or expenses arising from such tenant's failure to surrender
possession of its premises upon expiration of the term thereof. If
any such Lease provides that it will terminate no later than thirty
(30) days after notice of termination from FRP, then, unless
otherwise approved by MRP at the time, FRP shall deliver a
notice of termination of such Lease no later than thirty (30) days
prior to the Closing Date hereunder,
and thereafter enforce such tenant's compliance with its surrender
obligations thereunder, all at FRP's sole cost and expense.
4.3.3 On or prior to the Closing Date, FRP shall use all
reasonable and diligent efforts to enforce the obligation of the
Prior Tenant under the Prior Lease to obtain a closure letter with
respect to the D.C. Department of the Environment Underground
Storage Tank Case No. 95078 ("Existing LUST Case"). If such
closure letter shall not have been obtained prior to Closing, the
Hazardous Substances covered by the Existing LUST Case shall be
deemed to be a Known Hazardous Substance and shall be addressed
pursuant to Section 10.2.
4.3.4 Between the Title Commitment Date and the Closing
Date, FRP shall not enter into, record or suffer any modification of the
status of title to the Property, nor enter into any licenses, easements,
rights of way, covenants, conditions, restrictions and/or other title
matters that affect any portion of the Company Parcel and would be
binding upon the Company Parcel after Closing, unless (a)
contemplated or permitted by the terms of this Agreement, (b) MRP
consents thereto (in MRP's sole and absolute discretion), or (c) such
instrument or title matter, by its terms, either terminates, is automatically
released of record and/or is otherwise extinguished on or before the
Closing Date.
4.4 Updated Disclosure Obligations. For so long as this
Agreement is in effect, FRP and MRP shall each promptly notify the
other in writing if it has Actual Knowledge of any fact or condition:
4.4.1 which is inconsistent in any material respect with (i) the
representations or warranties given by either party under this
Agreement, (ii) the PUD Modification, (iii) the Pre-Development
Budget, (iv) the Project Budget, (v) any of the milestone dates
provided for in the Zoning Approval Schedule, and/or the (vi) any
other timing provisions of this Agreement or the Company Agreement,
or
4.4.2 which has a significant potential (i) to adversely affect
MRP's ability to obtain the Zoning Approval, or to satisfy any other
condition to Closing under this Agreement, (ii) to adversely affect
the Company's ability to obtain building permits for development
and/or construction of the Project after Closing, or (iii) to increase
or modify the costs of developing the Company Parcel for its
intended purposes hereunder (and under the Company Agreement)
to any material extent.
4.5 Exclusivity and Non-Compete.
4.5.1 Prior to the earlier of Closing or termination of this
Agreement, FRP shall not, directly or indirectly, market the
Company Parcel for sale, ground lease or a contribution and joint
venture transaction like that provided for under this Agreement, and
shall not solicit or negotiate with any third party for the sale or
ground lease of, or a contribution and joint venture transaction like
that provided for under this Agreement with respect to, the
Company Parcel. The foregoing limitation shall not apply to any
portion of the Site other than the Company Parcel, provided that,
unless otherwise approved in advance by MRP, in writing, any
transfer of any portion of the Site other than the Company
Parcel prior to Closing shall be subject to all terms of the
PUD Modification as then pending before the Zoning Commission,
and to the terms of the REA (or if the form of REA has not yet
been agreed to in accordance with Section 3.2, subject to the
REA to be negotiated by FRP and MRP in accordance with Section
3.2).
4.5.2 Prior to the earlier of Closing or termination of this
Agreement, neither MRP nor any Person which is Controlled by the
MRP Principals or in which the MRP Principals have, directly or
indirectly, more than a one percent (1%) beneficial interest, shall
acquire, lease or develop, or provide leasing or development
services as a direct or indirect owner or co-owner, or on a fee
for services basis, for or with respect to any real estate of which
the principal use is (or planned to be) multifamily rental in the Ballpark
District; provided that the foregoing shall not prohibit MRP or such
other Person from acquiring, leasing or managing a multifamily rental
building in which at least ninety percent (90%) of the individual units
have previously been leased to, or occupied by, third party tenants.
4.5.3 Prior to the earlier of Closing or termination of this
Agreement (or March 1, 2016 if Closing shall not have previously
occurred), neither FRP nor any FRP Affiliate shall commence
construction on Phase 2 of the approved PUD Modification (as
defined therein) for the principal use of multifamily rental.
4.6 Condemnation.
4.6.1 FRP and MRP shall each notify the other of any
pending or threatened condemnation affecting any part of the
Company Parcel prior to Closing of which it becomes aware.
4.6.2 If prior to Closing, condemnation proceedings are
commenced against any portion of the Company Parcel and such
proceedings do not materially adversely affect the development of the
Company Parcel as contemplated by this Agreement or the Company
Agreement (including any material increase in the cost or time that it
would take to commence and/or complete such development), as
determined by MRP and by FRP in their respective sole, but
reasonable, judgment, then this Agreement shall continue in full force
and effect, and upon consummation of Closing the condemnation
awards payable in respect of such condemnation (other than any
portion of the award expended by FRP prior to Closing to restore
the Company Parcel) shall be assigned to the Company, and FRP
shall have no obligation to repair or restore the Company Parcel.
4.6.3 If prior to Closing, condemnation proceedings are
commenced against any portion of the Company Parcel and such
proceedings do materially adversely affect the development of the
Company Parcel as contemplated by this Agreement or the
Company Agreement (including any material increase in the cost or
time that it would take to commence and/or complete such
development), as determined by MRP and by FRP in their
respective sole, but reasonable, judgment, then MRP and FRP
shall each have the right, upon notice in writing to other delivered
within thirty (30) days after the date it receives notice of such
condemnation, to terminate this Agreement, following which (i) this
Agreement shall be of no further force and effect, (ii) neither
party shall have any further
rights, obligations or liabilities to the other party other than those
that expressly survive termination of this Agreement, (iii) Section
11.3 shall apply. If MRP and FRP do not elect to terminate this
Agreement under this Section 4.6.3, then the following provisions
shall apply:
(a) This Agreement shall continue in full force and
effect, and, upon consummation of Closing, the full condemnation
award payable in respect of such condemnation shall be allocated to
and, if applicable, paid over to the Company (or treated as a direct
offset and reduction to the capital contribution credit otherwise being
allocated to FRP as part of its Initial Capital Contribution hereunder
in respect of the Parcel Value of the Company Parcel being
contributed by FRP to the Company at Closing if such award is
retained by or paid to FRP or any FRP Affiliate, and not
subsequently paid over by the recipient thereof to the Company
(as aforesaid)).
(b) The Parcel Value shall be recalculated using the
maximum square feet of Gross Floor Area that may be constructed
on the Company Parcel taking into account the condemnation, without
reference to the minimum amount set forth in Section 1.1.65.
4.6.4 If MRP and FRP shall not agree as to whether any
condemnation materially adversely affects the development of the
Company Parcel as contemplated by the Master Plan, such dispute
shall be resolved by binding, expedited arbitration before a single
arbitrator in accordance with the rules of the American Arbitration
Association for expedited commercial arbitration.
4.7 Other Pre-Closing Covenant of FRP. Prior to Closing
(A) FRP, at its sole cost and expense, shall (i) maintain the Company
Parcel in substantially the same condition as exists on the Contract Date,
reasonable wear and tear and damage by uninsured casualty excepted,
(ii) comply with all of its obligations under any Leases of the Company
Parcel which are entered into by FRP in accordance with the terms of
this Agreement, and under any Service Contracts or other agreements
affecting the Company Parcel which are entered into by FRP in
accordance with the terms of this Agreement, and (iii) enforce the
obligations of the Prior Tenant and any other tenants and/or
contractual counterparties under the Prior Lease, and any other leases,
Service Contracts and/or other agreements affecting the Company
Parcel which are entered into by FRP in accordance with the terms
of this Agreement, and (B) FRP shall not (i) enter into any leases,
licenses, easements or other title matters with respect to the Company
Parcel other than pursuant to Section 4.3, without MRP's consent
(in its sole and absolute discretion), or (ii) enter into any easements or
other title matters with respect to the balance of the Site, to the
extent the same is inconsistent with the PUD Modification as then
under consideration (or as approved) by the Zoning Commission, or
with any REA that is attached to this Agreement by an amendment
hereto, or (iii) enter into any voluntary liens, or suffer any involuntary
liens, against the Company Parcel which are not fully released on
or before the Closing Date hereunder.
4.8 No Change of Control. Prior to Closing, MRP shall not cause
or permit the transfer of any direct or indirect interests in MRP which
shall result in (i) the MRP Principals (which for this purpose must
include both Xxxxxx Xxxxxx and Xxxxxxxxx Xxxxxxxxxx) ceasing
to Control MRP, and/or (ii) the MRP Principals (which for this
purpose must include both Xxxxxx Xxxxxx and Xxxxxxxxx Xxxxxxxxxx)
ceasing to own, directly or indirectly, at least fifty-one percent
(51%) of MRP, including at least fifty-one (51%) of the capital and
profits.
4.9 Legal Violations. If prior to Closing, FRP shall receive from
any Governmental Authority a written notice of violation of any
Legal Requirement affecting the Company Parcel (expressly excluding
any Legal Requirement under any Environmental Laws, which shall be
governed by Section 10.2), FRP shall cure the same prior to Closing.
All third party costs incurred by FRP in connection with such cure
shall be credited against the Cap.
ARTICLE 5. FRP'S REPRESENTATIONS AND WARRANTIES
FRP hereby represents and warrants to MRP as follows:
5.1 Good Standing. FRP is a Florida corporation, duly formed,
validly existing and in good standing under the laws of the State of
Florida, and is duly qualified to transact business and in good standing
under the laws of the District of Columbia. FRP has full power and
authority to execute this Agreement and to consummate the
transaction contemplated by this Agreement.
5.2 Due Authorization. The execution, delivery and performance
of this Agreement by FRP and the consummation by FRP of the
transactions contemplated by this Agreement have been duly and
validly authorized by all requisite actions of FRP and all entities with
authority over such actions by FRP (if any) and constitute the valid
and binding obligations of FRP. No consent or authorization which
has not been obtained prior to the date of this Agreement is required
in connection with the execution, delivery and performance of this
Agreement by FRP. Assuming the due execution and delivery of
this Agreement by MRP, this Agreement constitutes the valid and
binding obligation of FRP, enforceable against FRP in accordance
with its terms.
5.3 No Violations. The execution, delivery and performance
of this Agreement by FRP and the consummation by FRP of the
transactions contemplated by this Agreement will not:(i)violate
any Legal Requirement or any order of any court or
Governmental Authority that is binding on FRP or the Company
Parcel; or (ii)result in a breach of or default under (A) any
contract or other agreement to which FRP is a party or by
which the Company Parcel is bound, or (B) any provision of the
organizational documents of FRP.
5.4 Bankruptcy. FRP is not the subject debtor under any
federal, state or local bankruptcy or insolvency proceeding, or
any other proceeding for dissolution, liquidation or winding up of its
assets.
5.5 Litigation. There are no Actions pending or, to FRP's
Knowledge, threatened against FRP before any court or
Governmental Authority, which (i) if adversely determined, would
materially and adversely affect FRP's financial condition or FRP's
power and authority to enter into or perform its obligations
under this Agreement and/or the Company Agreement, or (ii) relate
to the Company Parcel and/or the ownership, operation,
development, use or occupancy of the Company Parcel.
5.6 Leases. As of the Contract Date there are no Leases in
effect with respect to the Company Parcel, and as of Closing there
shall be no leases other than as expressly permitted pursuant to this
Agreement.
5.7 Contracts. There are no service contracts or other agreement
to which FRP or its management agent is a party (or successor-by-
assignment), and that affect or pertain to, and are currently in effect
with respect to, the Company Parcel, or which impose any obligation to
pay any fees, commissions or other amounts (whether accrued on or
before the Closing Date, or after the Closing Date) that will be binding
upon the Company or the Company Parcel after Closing (the "Service
Contracts").
5.8 Foreign Person. FRP is not a "foreign person" as defined in
Section 1445(f)(3) of the Code.
5.9 Terrorist Organizations Lists. FRP is not acting, directly or
indirectly, for or on behalf of any Person named by the United States
Treasury Department as a Specifically Designated National and
Blocked Person, or for or on behalf of any Person designated in
Executive Order13224 as a Person who commits, threatens to
commit, or supports terrorism. FRP is not engaged in the transaction
contemplated by this Agreement directly or indirectly on behalf of, or
facilitating such transaction directly or indirectly on behalf of, any such
Person.
5.10 Environmental Matters
5.10.1 Except as described in any report listed on Schedule
5.10, as of the Contract Date, FRP has received no written notice
from any Governmental Authority of any actual or potential violation
of or failure to comply with any Environmental Laws with respect to
the Company Parcel which remains uncorrected to FRP's Knowledge.
Schedule 5.10 is a true, correct and complete list of all reports
pertaining to the environmental condition and water quality of the
Company Parcel and any buildings or improvements thereon that are
in FRP's possession, custody or control.
5.10.2 To FRP's Knowledge, as of the Contract Date, no
Hazardous Substances are present on or in the Company Parcel,
other than (i) Hazardous Substances used as fuels, lubricants or
otherwise in connection with vehicles, machinery and equipment
located at the Company Parcel in commercially reasonable
amounts, which, to FRP's Knowledge (and except as disclosed in
any report listed on Schedule 5.10), have been stored and disposed
of in accordance with all applicable Legal Requirements and
Environmental Laws, and (ii) Hazardous Substances described in
any report listed on Schedule 5.10 as being present on the
Company Parcel.
5.10.3 To FRP's Knowledge and except as disclosed in
any report listed on Schedule 5.10, as of the Contract Date, (1) there
are no uncured violations of any Environmental Law with respect to
the Company Parcel or any portion thereof, (2) there is no on-site
or off-site contamination resulting from activities on the Company
Parcel (or any adjacent land or properties), and (3) other than the
underground storage tank that was the subject matter of the Existing
LUST Case, there are no storage tanks located on the Property
(either above or below ground) which contain Hazardous
Substances.
5.11 No Commitments. Except for commitments that are
expressly a part of the Existing PUD or set forth in the Initial PUD
Modification Application, FRP has not made or entered into any
material binding agreements with any Governmental Authority, utility
company, school board, church or other religious body, or any
public or private organization or individual, which agreements
would impose any obligation upon MRP or the Company after
Closing, whether to make any contribution of money or
dedications of land or to construct, install or maintain any
improvements of a public or private nature on or off the
Company Parcel, or otherwise, which would restrict or prohibit,
or otherwise materially and adversely affect (or render materially
more costly) the Company's development of the Company
Parcel in accordance with the PUD Modification .
5.12 Full Disclosure. To FRP's Knowledge, all written
information and documents delivered by FRP (or its representatives)
to MRP pursuant to this Agreement constitute true, correct and
complete copies of the originals, and have not been altered by
FRP (or such representatives) in any way. FRP has not knowingly
withheld from MRP any material information regarding the
Company Parcel (or bearing upon the planned Zoning Approval,
the future development the Company Parcel or, as it relates to the
future development of the Company Parcel, the integration of
Company Parcel and the balance of the Site), which is within
FRP's possession, custody or control other than confidential FRP
Information.
5.13 Brokers. Other than Xxxxx Lang LaSalle (which the Company
shall pay pursuant to a separate agreement), no broker, finder or similar
consultant has acted on FRP's behalf in connection with this Agreement
or the transaction contemplated by this Agreement.
ARTICLE 6. MRP'S REPRESENTATIONS AND WARRANTIES
MRP hereby represents and warrants to FRP as follows:
6.1 Good Standing. MRP is a limited liability company, duly
organized, validly existing and in good standing under the laws of the
District of Columbia and has full power and authority to conduct the
business in which it is now engaged.
6.2 Due Authorization. The execution, delivery and performance of
this Agreement by MRP and the consummation by MRP of the
transactions contemplated by this Agreement have been duly and validly
authorized by all requisite actions of MRP. No consent or authorization
which has not been obtained prior to the date of this Agreement is
required in connection with the execution, delivery and performance of
this Agreement by MRP. Assuming the due execution and delivery of
this Agreement by FRP, this Agreement constitutes the valid and binding
obligation of MRP, enforceable against MRP in accordance with its terms.
6.3 No Violations. The execution, delivery and performance of
this Agreement by MRP and the consummation by MRP of the
transactions contemplated by this Agreement will not:(i)violate any
Legal Requirement or any order of any court or Governmental
Authority that is binding on MRP; or (ii)result in a breach of or
default under (A)any contract or other agreement to which MRP is a
party or (B) any provision of the organizational documents of
MRP.
6.4 Bankruptcy. MRP is not the subject debtor under any
federal, state or local bankruptcy or insolvency proceeding, or any
other proceeding for dissolution, liquidation or winding up of its assets.
6.5 Litigation. There are no Actions pending or, to MRP's
Knowledge, threatened against MRP before any court or
Governmental Authority which, if adversely determined, would materially
and adversely affect MRP's ability to enter into or perform its
obligations under this Agreement and/or the Company Agreement.
6.6 Terrorist Organizations Lists. MRP is not acting,
directly or indirectly, for or on behalf of any Person named by
the United States Treasury Department as a Specifically
Designated National and Blocked Person, or for or on behalf of any
Person designated in Executive Order13224 as a Person who
commits, threatens to commit, or supports terrorism. MRP is
not engaged in the transaction contemplated by this Agreement
directly or indirectly on behalf of, or facilitating such
transaction directly or indirectly on behalf of, any such Person.
6.7 Ownership of MRP. The organizational chart set
forth in Schedule 6.7 is a complete and accurate description of
the direct and indirect owners of MRP.
6.8 Brokers. No broker, finder or similar consultant has
acted on MRP's behalf in connection with this Agreement or the
transaction contemplated by this Agreement.
ARTICLE 7. CONDITIONS TO CLOSING
7.1 Mutual Condition to Closing. The obligation of MRP and
FRP to consummate the Closing shall be conditioned upon the
Zoning Approval having been obtained and the period for the filing
of any appeal to the Zoning Approval having lapsed without the filing
of any such appeal, or, if any appeal of the Zoning Approval is filed
in a timely manner, the successful and final resolution of any such
appeal(s) and any remands resulting therefrom, and the expiration
of the time period for the filing of any further appeal (the "Zoning
Approval Condition"). The foregoing mutual condition may be
waived upon the mutual written agreement of MRP and FRP.
7.2 Failure of Mutual Condition.
7.2.1 In the event that the Zoning Approval Condition is
not satisfied by the Initial Outside Closing Date, and provided
the PUD Modification is then still pending before, and under
consideration by, the Zoning Commission, then the Initial
Outside Closing Date shall automatically be extended to the
Extended Outside Closing Date, unless FRP, in its reasonable
discretion, determines that MRP is not diligently pursuing the
Zoning Approval, and notifies MRP of such determination in
writing no later than three (3) business days prior to the Initial
Outside Closing Date.
7.2.2 If the Initial Outside Closing Date is extended, as
aforesaid, and the Zoning Approval Condition is still not satisfied
as of the Extended Outside Closing Date, then FRP, in its sole and
absolute discretion, may elect to do one of the following by written
notice to MRP given within ten (10) Business Days after the
Extended Outside Closing Date (and any failure by FRP to give such
notice shall be deemed an election by FRP, pursuant to Section
7.2.2(i) below, to further extend the Extended Outside Closing Date
for a single period of thirty (30) days):
(i) further extend the Extended Outside Closing Date for such
additional period of not less than thirty (30) days as FRP determines
to be appropriate, in its sole and absolute discretion (provided
that if the Zoning Approval is not obtained by such modified
Extended Outside Closing Date, FRP may again elect, in its sole and
absolute discretion, to exercise any of the options described in this
Section 7.2.2, including this Section 7.2.2(i));
(ii) continue to pursue the Zoning Approval and replace or
remove MRP as Developer and development manager, in which case
FRP will be deemed to have elected to take an assignment
of the Development Work Product from MRP pursuant to the
Collateral Assignment of Development Work Product, Section 11.3
shall apply, and this Agreement, and the rights, liabilities, and/or
obligations of the parties under this Agreement other than those
which by their terms expressly survive any termination of this
Agreement, shall terminate; or
(iii) (A) terminate and withdraw the proposed PUD
Modification from consideration by the Zoning Commission, (B)
terminate the Collateral Assignment of Development Work Product
and FRP's rights thereunder (with no requirement for MRP to
assign all or any portion of the Development Work Product to FRP
and with MRP retaining sole ownership of such Development Work
Product, and with no requirement for FRP to reimburse MRP for
any Development Costs then incurred by MRP), and (C) terminate
this Agreement, following which neither party shall have any rights,
liabilities, or obligations under this Agreement except those that
expressly survive termination of this Agreement.
Notwithstanding anything to the contrary in this Agreement, this
Section 7.2 shall govern the rights and remedies of the parties
hereto to the extent that the Zoning Approval Condition is the
only condition to Closing not satisfied. Nothing set forth in this
Section 7.2, however, shall affect the rights or remedies of
MRP and FRP under (a) Sections 3.1.4 and 3.1.5 with
respect to the right to terminate, or (b) Section 11.1 and
Section 11.2 with respect to any breach of this Agreement by
the other party (including any breach which causes the failure
of the Zoning Approval Condition).
7.3 MRP's Conditions to Closing. The obligation of MRP
to consummate the Closing shall be subject to the satisfaction
of each of the following conditions on or before the Closing Date,
any or all of which may be waived in whole or in part by MRP:
7.3.1 Each of FRP's representations and warranties set
forth in this Agreement (other than in Section 5.5, which is
addressed in Section 7.3.4) shall be correct in
all material respects as of the Closing Date as if made by FRP
on and as of the Closing Date (except for those representations
and warranties that by their express terms only apply to the
Contract Date).
7.3.2 FRP shall have performed all of its material
obligations under this Agreement required at or prior to Closing,
including but not limited to delivery of the documents listed in
Section 8.3.
7.3.3 Title to the Company Parcel shall be good and
marketable fee simple title, subject only to the Permitted Exceptions,
and insurable at standard rates in an amount equal to the Parcel
Value.
7.3.4 The representations set forth in Section 5.5
continue to be true and correct in all material respects as of the
Closing Date, except to the extent that FRP agrees, in form and
substance reasonably acceptable to MRP, to indemnify MRP
and the Company from and after Closing against Damages
resulting from the Action that causes such representations not
to be true and correct. For the avoidance of doubt if FRP
indemnifies MRP with MRP's reasonable approval in accordance
with the previous sentence, this condition shall be deemed
satisfied. If the representations set forth in Section 5.5 shall
not, as of the Closing Date, continue to be true and correct in
all material respects other than as a result of a default by FRP
in any obligation under this Agreement, then such failure shall
not be a default by FRP under this Agreement.
7.3.5 The representations set forth in Section 5.10.1,
Section 5.10.2 and Section 5.10.3 continue to be true and
correct in all material respects as of the Closing Date, as if
such representations had been remade on the Closing Date
and the phrase "Contract Date" had been replaced by the
phrase "Closing Date" in each instance where such phrase
appears in Section 5.10.1, Section 5.10.2 and Section
5.10.3, except to the extent that any inaccuracy in such
representations is based upon or arises out of (i) the
Known Hazardous Substances, (ii) any other Hazardous
Substances existing on the Company Parcel as of the
Contract Date, and/or (iii) the introduction, discharge or
release of Hazardous Substances by MRP.
7.4 Failure of MRP's Condition. In the event of the
failure of any condition set forth in Section7.3, MRP, at its
sole election, may (i)terminate this Agreement by written
notice to FRP, (ii) extend the date for Closing by thirty (30)
days to permit such condition to be satisfied (but in no
event beyond the Outside Closing Date), or (iii) waive the
condition and proceed to Closing. Nothing set forth in this
Section 7.4 shall affect MRP's rights or remedies under
Section 11.2 with respect to any breach of this Agreement
by FRP (including any breach which causes or contributes
to the failure of any such condition to Closing).
7.5 FRP's Conditions to Closing. The obligation of FRP
to consummate the Closing shall be subject to the satisfaction
of each of the following conditions on or before the Closing Date,
any or all of which may be waived in whole or in part by FRP:
7.5.1 Each of MRP's representations and warranties
set forth in this Agreement shall be correct in all material respects
as of the Closing Date as if made by MRP
(or, if applicable, MRP Designee) on and as of the Closing
Date (except for those representations and warranties that by
their express terms only apply to the Contract Date); provided
that any change to the organizational chart of MRP shall be
permitted (without resulting in a violation of the representation
set forth in Section 6.7) so long as such changes do not violate
Section 4.8.
7.5.2 MRP shall have performed all of its material
obligations under this Agreement required at or prior to Closing,
including delivery of the documents listed in Section 8.4.
7.6 Failure of FRP's Condition. In the event of the failure of
any condition precedent set forth in Section 7.5, FRP, at its sole
election, may (i) terminate this Agreement by written notice to
MRP, (ii) extend the date for Closing by thirty (30) days to
permit such condition to be satisfied (but in no event beyond the
Outside Closing Date), or (iii) waive the condition and proceed to
Closing. Nothing set forth in this Section 7.6 shall affect FRP's
rights or remedies under Section11.1 with respect to any breach
of this Agreement by MRP (including any breach which causes
or contributes to the failure of any such condition to Closing).
ARTICLE 8. CLOSING
8.1 Timing of Closing. Subject to the satisfaction or written
waiver of all other applicable conditions to Closing, Closing shall
occur on a date which is not more than ten (10) Business Days
after the date upon which the Zoning Approval becomes final and
non-appealable, or such Zoning Approval condition has been
waived in writing by both MRP and FRP; provided that in no
event shall the Closing Date occur later than the Outside Closing
Date.
8.2 Conduct of Closing. Closing shall be conducted through
an escrow with the Title Company acting as escrow agent (in such
capacity, "Escrow Agent"), and FRP and MRP shall execute
(or cause their counsel to execute) such additional instructions to
Escrow Agent as may be required in connection therewith,
provided such instructions do not modify or amend, and are in
all respects consistent with, the terms of this Agreement.
Pre-closing ("Pre-Closing") shall be held on the Business Day
immediately preceding the Closing Date. At Pre-Closing, FRP
and MRP shall execute and deliver or cause to be executed and
delivered to Escrow Agent all documents and deliveries
required under Sections 8.3 and 8.4, other than the payment
of the amounts required on the Settlement Statement to be
advanced by MRP or the Company. FRP and MRP shall
complete and execute the Settlement Statement, and, provided
all required Closing deliveries to the Escrow Agent have been
made pursuant to Section 8.3 and Section 8.4, and no condition
to Closing remains both unsatisfied and unwaived at the time
such funding is otherwise required: (1) MRP shall advance and
cause the Company to advance the amounts required to be
paid by MRP and/or the Company on the Settlement
Statement by wire transfer of immediately available funds, and
(2) FRP shall advance any amount required to be paid by
FRP on the Settlement Statement (if any) by wire transfer
of immediately available funds, in both cases such that the
amounts payable pursuant to the Settlement Statement are
available to Escrow Agent be disbursed no later than 3:00
p.m. Washington, D.C. time on the Closing Date.
8.3 FRP's Closing Deliveries. At or prior to Closing,
FRP shall deliver (or cause to be delivered) to Escrow
Agent the following:
8.3.1 A deed for the Company Parcel substantially in
the form of Exhibit D ("Deed") conveying to the Company the
fee estate in the Company Parcel and the improvements thereon,
subject only to the Permitted Exceptions, duly executed and
acknowledged by FRP, and dated as of the Closing Date.
8.3.2 A xxxx of sale, substantially in the form of Exhibit E,
duly executed by FRP and dated as of the Closing Date.
8.3.3 A General Assignment, substantially in the form of
Exhibit F, duly executed by FRP and dated as of the Closing
Date (the "General Assignment").
8.3.4 The Company Agreement, executed by FRP and
dated as of the Closing Date.
8.3.5 A certificate, duly executed by FRP, confirming
that its representations and warranties set forth in this
Agreement are correct in all material respects as if made on
the Closing Date (or noting any exceptions).
8.3.6 A release and termination of the Collateral
Assignment of Development Work Product.
8.3.7 A title affidavit and gap indemnity, in customary
form reasonably satisfactory to the Title Company and FRP,
with respect to mechanics' liens, parties in possession and
unrecorded instruments, duly executed by FRP.
8.3.8 An affidavit, in the form required by the Code
and the regulations issued pursuant thereto, to the effect that
FRP is not a foreign person within the meaning of the Code.
8.3.9 Such evidence of the power and authority of
FRP to consummate the transactions described in this
Agreement as may be reasonably required by MRP or the
Title Company.
8.3.10 A settlement statement setting forth Closing
Costs, and all prorations and adjustments described in
Article 9, and otherwise consistent with the terms of this
Agreement, duly executed by FRP (the "Settlement Statement").
8.3.11 The REA, duly executed by FRP.
8.3.12 Such other documents and instruments as are
customary and as may be reasonably requested by MRP,
Escrow Agent or the Title Company, to effectuate the transactions
contemplated by this Agreement.
8.4 MRP's Closing Deliveries. At or prior to Closing, MRP
shall deliver to (or cause to be delivered to) Escrow Agent
the following:
8.4.1 The Company Agreement, duly executed by
MRP (or, if applicable, MRP Designee) and dated as of the
Closing Date.
8.4.2 An assignment to the Company of all Development
Work Product, duly executed by MRP (or, if applicable, MRP
Designee) and the Company, in form reasonably approved by
FRP, and dated as of the Closing Date.
8.4.3 The General Assignment, duly executed by
MRP for the Company in MRP's capacity as a Administrative
Member of the Company.
8.4.4 A certificate, duly executed by MRP, confirming
that its representations and warranties set forth in this
Agreement are correct in all material respects as if made on
the Closing Date (or noting any exceptions).
8.4.5 If applicable, a certificate from MRP Designee,
duly executed by MRP Designee, confirming that MRP's
representations and warranties set forth in the Agreement are
correct in all material respects as if made by such MRP
Designee on the Closing Date (or noting any exceptions).
8.4.6 Such evidence of the power and authority of
MRP, the MRP Designee, and/or the Company to
consummate the transactions described in this Agreement as
may be reasonably required by FRP or the Title Company.
8.4.7 The Settlement Statement, duly executed by
MRP, MRP Designee (if applicable) and/or the Company.
8.4.8 Any other normal and customary deliveries that
the Company, in its capacity as transferee of the Company
Parcel, is required to provide pursuant to Schedule B-Part 1
of the Title Commitment in order for the Title Company to issue
the Title Policy to the Company at regular rates (and which FRP
hereby authorizes MRP to execute and/or deliver on behalf of,
and/or in the name of, the Company).
8.4.9 The REA, duly executed by the Company.
8.4.10 The Development Agreement, duly executed by
the Company and the Developer.
8.4.11 Such other documents and instruments as are
customary and as may be reasonably requested by FRP,
Escrow Agent or the Title Company with respect to MRP,
MRP Designee and/or the Company to effectuate the transactions
contemplated by this Agreement.
8.5 Closing Costs. The Company shall pay the following
Closing costs: (i) all title insurance premiums and related costs;
(ii) all escrow charges and settlement fees; and (iii) all District
of Columbia Transfer Taxes and District of Columbia
Recordation Taxes applicable to the recordation of the
Transactions Documents. FRP and MRP shall each bear its
own consultant's and attorney's fees and expenses incurred
in connection with the transactions described in this Agreement
and the execution of the Transaction Documents. MRP shall
pay all of its Due Diligence Costs. All other costs incurred in
connection with this Agreement and the transactions
contemplated hereby shall be paid in accordance with the
express terms of this Agreement. Notwithstanding anything
to the contrary in this Agreement, the costs borne individually
by FRP and MRP under this Section 8.5 shall not be credited
to their respective Initial Capital Contributions, provided any
sums advanced by MRP or FRP to the Company so that the
Company can fund Closing costs required to be paid by the
Company in accordance herewith will be credited as part of
the Initial Capital Contribution of the party making such
advance to the Company.
ARTICLE 9. PRORATIONS
9.1 Prorations Generally. Subject to Section 2.2.1(c), all
items of income and expense of the Company Parcel with
respect to the period prior to the Closing Date shall be for the
account of FRP, and all items of income and expense of the
Company Parcel with respect to the period from and after the
Closing Date shall be for the account of the Company.
9.2 Taxes. All ad valorem real estate taxes, and other taxes,
levies and assessments with respect to the Company Parcel shall
be apportioned between FRP and the Company as of the
Apportionment Time. If the exact amount of such taxes cannot
be determined at Closing, such apportionment shall be based upon
reasonable estimates of such taxes, subject to readjustment
upon the date that actual taxes can be determined.
9.3 Tax Appeals. FRP shall have the right to initiate any
appeal of any taxes or assessments applicable to the Company
Parcel through Closing. If any appeal of any taxes or
assessments applicable to the Company Parcel is pending as of
the Closing Date with respect to any tax period that has closed
prior the Apportionment Time, FRP shall be entitled to receive
any rebate or credit resulting from such appeal, and shall pay all
expenses of prosecuting such appeal. If any appeal of any taxes
or assessments applicable to the Company Parcel is pending as
of the Closing Date with respect to any tax period in which the
Apportionment Time occurs or after the Apportionment Time
occurs (each, a "Current Year Tax Appeal"), then after Closing
the Company shall continue the prosecution of each such
Current Year Tax Appeal to the extent applicable to the
Company Parcel, FRP shall cooperate in connection therewith,
and such taxes or assessments shall be re-prorated between
FRP and the Company as of the Apportionment Time in
accordance with the results of such Current Year Tax Appeal.
FRP and the Company shall cooperate in the prosecution of
each Current Year Tax Appeal. All third party costs and fees
incurred in connection with any Current Year Tax Appeal,
including legal fees and expenses, shall be paid by FRP to
the extent equitably allocable to the period prior to the
Closing Date, and shall be paid by the Company to the
extent equitably allocable to the period on or after the
Closing Date. If such appeal relates to any tax period in
which the Company Parcel was not a separate tax parcel,
the cost and benefits associated with such appeal shall be
equitably allocated to all parcels or properties which are
within the scope of such appeal, for the period in which
they were not separate tax parcels, with such allocation
to be based on the relative share of each such property
or parcel in any tax reduction or refund sought or
obtained in such appeal.
9.4 Utilities. Water, sewer, electricity, gas, and other
utilities serving the Company
Parcel shall be apportioned between FRP and the Company as
of the Apportionment Time. To the extent the Company Parcel
is not separately metered from the remainder of the Site, the
parties will agree on a reasonable allocation of the utilities serving the
Company Parcel, on the one hand, and the remainder of the Site, on
the other hand.
9.5 Other Items. All other items shall be prorated as is
customary practice in Washington, D.C.
9.6 Survival. This Article 9 shall survive Closing.
ARTICLE 10. AS IS TRANSFER
10.1 Condition of Company Parcel.
10.1.1 MRP acknowledges that, except as expressly provided
for in this Agreement and the other Transaction Documents executed by
FRP: (i) as of the Contract Date MRP has been given a reasonable
opportunity to inspect and investigate the Company Parcel, all
improvements thereon and all aspects relating thereto, including all of
the physical, environmental and operational aspects of the Company
Parcel, either independently or through agents and experts of MRP's
choosing, and (ii) the Company will acquire the Company Parcel
based solely upon MRP's own investigation and inspection thereof
and the representations, warranties and covenants of FRP expressly
set forth in the Transaction Documents executed by FRP. FRP AND
MRP AGREE THAT, EXCEPT AS EXPRESSLY PROVIDED FOR
IN THIS AGREEMENT AND THE OTHER TRANSACTION
DOCUMENTS EXECUTED BY FRP, (I) THE COMPANY
PARCEL SHALL BE TRANSFERRED AND THE COMPANY
SHALL ACCEPT POSSESSION OF THE COMPANY PARCEL
ON THE CLOSING DATE "AS IS," "WHERE IS," AND "WITH
ALL FAULTS" AS THE SAME EXIST ON THE CONTRACT
DATE (SUBJECT TO REASONABLE WEAR AND TEAR AND
DAMAGE BY CASUALTY) AND (II) SUCH CONTRIBUTION
SHALL BE WITHOUT REPRESENTATION OR WARRANTY
OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY
OR OTHERWISE, INCLUDING ANY WARRANTY OF INCOME
POTENTIAL, OPERATING EXPENSES, USES,
MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE, AND FRP HEREBY DISCLAIMS AND RENOUNCES
ANY SUCH REPRESENTATION OR WARRANTY. MRP
FURTHER ACKNOWLEDGES AND AGREES THAT, EXCEPT
AS EXPRESSLY PROVIDED IN THE TRANSACTION
DOCUMENTS EXECUTED BY FRP, FRP SHALL BE UNDER
NO DUTY TO MAKE ANY AFFIRMATIVE DISCLOSURE
REGARDING ANY MATTER WHICH MAY BE KNOWN TO
FRP, OR ITS OFFICERS, DIRECTORS, CONTRACTORS,
AGENTS OR EMPLOYEES, AND THAT IT IS RELYING
SOLELY UPON ITS OWN INSPECTION OF THE
COMPANY PARCEL AND NOT UPON ANY
REPRESENTATIONS MADE TO IT BY ANY PERSON
WHOMSOEVER ON FRP'S BEHALF.
10.1.2 Except as provided in Section 10.1.3, MRP, on
behalf of itself and the Company, hereby waives, releases and
forever discharges FRP, and its officers, directors and employees,
from any and all Damages, whether known or unknown, which
MRP or the Company has or may have in the future, arising out
of or in connection with the Company Parcel, including the physical,
environmental, governmental, economic or legal condition of the
Company Parcel. For the foregoing purposes, MRP, on behalf of
itself and the Company, hereby specifically waives the provisions
of any law the import of which is that a general
release does not extend to claims which the creditor does not
know or suspect to exist in the creditor's favor at the time of
executing the release, which if known by the creditor must have
materially affected a settlement with the debtor.
10.1.3 Notwithstanding any waiver and/or release (and/or
any other exculpatory language) set forth in Section 10.1.1 and/or
Section 10.1.2 to the contrary, in no event will MRP or the
Company be deemed or construed to have released FRP from or
with respect to: (i) any Damages arising out of any breach of any
express representation, warranty or covenant set forth in this
Agreement or any other Transaction Document executed by
FRP, and ii) any Damages arising from a claim which is asserted
(in any form) against MRP or the Company by any Person that
is not an MRP Principal or affiliated with an MRP Principal, in
connection with the physical condition of the Company Parcel,
or otherwise relating to the Company Parcel, based upon acts,
omissions, events or circumstances occurring prior to the Closing
Date, but expressly excluding any such claim that is based upon
or arises out of Hazardous Substances (including the Known
Hazardous Substances) (the foregoing, collectively, "Third
Party Claims"). For clarity, Section 10.1.1 and Section 10.1.2
do not prohibit MRP or the Company from impleading FRP in
any litigation brought by third parties where FRP may have
liability to such third parties (even if MRP and the Company
have released FRP from such liability).
10.1.4 This Section10.1 shall survive the Closing
without limitation as to time.
10.2 Remediation of Known Hazardous Substances.
10.2.1 MRP and FRP agree that, in connection with
its construction of the Initial Improvements, the Company shall
conduct the following activities (which shall be collectively
referred to as "Remediation Activities"), unless otherwise
undertaken by FRP pursuant to Section 10.2.7: (i) remediate
or dispose of the Known Hazardous Substances (including
water, soil and other substances at the Company Parcel
impacted by Known Hazardous Substances), provided
however that such remediation or disposal shall be
consistent with the Cleanup Standard; (ii) remediate or
dispose of any Known Hazardous Substances as necessary
to obtain closure under the Existing LUST Case, provided
however that such remediation or disposal shall be consistent
with the Cleanup Standard; and (iii) obtain closure of the
Existing LUST Case.
10.2.2 FRP and MRP shall have the right to approve
(which approval shall not be unreasonably withheld, conditioned
or delayed): (i) all consultants and contractors that may be
conducting any Remediation Activities, and (ii) the disposal
sites, treatment facilities and/or methods for any Remediation
Activities.
10.2.3 The Company shall coordinate with its
contractors and consultants to develop a work plan (which may
include leaving the Known Hazardous Substances on the
Company Parcel, diluting the Known Hazardous Substances,
and/or the use of institutional controls) for the Remediation
Activities, and such work plan (including costs related thereto)
shall be subject to the prior written approval of MRP and FRP,
which approval shall not be unreasonably withheld, conditioned
or delayed.
10.2.4 Subject to Section 10.2.8, from and after the
Closing, FRP shall reimburse the Company for all reasonable
costs incurred by the Company in connection with the
Remediation Activities to the extent that, and only to the extent
that, the cost of such Remediation Activities are a direct result of
the Known Hazardous Substances and are in excess (on a net basis)
of the reasonable and customary expenses that would otherwise
be incurred in connection with development of the Company
Parcel and construction of the Initial Improvements (collectively,
"Reimbursable Costs"). As illustrations, only, and without
limitation and/or without prejudice:
(a) FRP will reimburse the Company for the sum of (i)
the excavation, transportation, disposal and, if applicable,
backfilling and/or soils replacement costs, for Remediation
Activities which require the excavation of contaminated soils
in a particular portion of the Company Parcel, as necessary to
achieve a Cleanup Standard with respect thereto, less (ii) the
excavation, transportation, disposal and, if applicable,
backfilling or soils replacement costs (if any) that would have
been incurred with respect to the same portion of the Company
Parcel absent the presence of contaminated soils consisting
solely of Known Hazardous Substances in such quantity
or concentration so as to require modified excavation,
transport, disposal or backfilling and/or soil replacement
(i.e., both the incremental additional cost associated with
proper lawful disposal of contaminated soils with a
governmentally licensed facility, and the cost of any additional
excavation, and related backfilling and/or soil replacement,
which is required because of the presence of contaminated
soils to the extent consisting of Known Hazardous Substances
in such portion of the Company Parcel).
(b) FRP will reimburse the Company for the sum of (i)
the extraction, transportation and disposal costs of water
necessary to achieve a Cleanup Standard less (ii) the extraction,
transportation and disposal costs of the same quantity of water,
if any, absent the presence of a Known Hazardous Substance in
such quantity or concentration so as to require modified extraction,
transport or disposal.
(c) If the disposal of water were a Remediation Activity,
and if, in order to achieve a Cleanup Standard it were necessary to
dispose the water into the District of Columbia Water and Sewer
Authority (WASA") system, and if there are additional net costs
associated with such disposal (such as pretreatment) as a result of
a Known Hazardous Substance, such additional net costs may
constitute Reimbursable Costs if such costs are otherwise
reimbursable pursuant to this Agreement.
(d) If the disposal of soil were a Remediation Activity,
and if, in order to achieve a Cleanup Standard it were necessary to
dispose of such soil in a particular landfill, and if there are additional
net costs associated with such disposal as a result of an Known
Hazardous Substance, such additional net costs may constitute
Reimbursable Costs if such costs are otherwise reimbursable
pursuant to this Agreement.
10.2.5 Reimbursable Costs may include: (i) any
groundwater monitoring
xxxxx as may be required by a Governmental Authority or as
approved by FRP, (ii) the operation and maintenance of any
institutional controls if approved as part of the work plan
pursuant to Section 10.2.3, (iii) the reasonable cost of an
environmental consulting firm and counsel hired to facilitate
and expedite the Remediation Activities (unless provided
directly by FRP or its insurer), and (iv) the reasonable
administrative and legal costs associated with obtaining
closure of the Existing LUST Case (unless provided directly
by FRP or its insurer). Without limitation, Reimbursable
Costs shall not include consequential or punitive damages.
10.2.6 FRP shall reimburse costs pursuant to this
Section 10.2 within thirty (30) days after presentation of an
invoice and such documentation of costs as may be reasonably
requested by FRP. If FRP in good faith disputes whether an
invoice constitutes a Reimbursable Cost, FRP shall, in lieu of
payment, notify the Company in writing within thirty (30) days
after presentation of an invoice the reason(s) why FRP believes
the expense does not constitute a Reimbursable Cost. The
parties agree to negotiate in good faith to resolve any
disagreement expeditiously. If, after thirty (30) days, the parties
are unable to resolve their disagreement, either party may
invoke the arbitration provisions of Exhibit B to the
Company Agreement. Any costs or other amounts which
are found to be due and owing from FRP to MRP or the
Company pursuant to this Section 10.2, but which was not
paid by FRP within the aforementioned thirty (30) day
period, shall bear interest from the date the amount in
question was paid by MRP or the Company until the date
such payment or reimbursement is made by FRP, at an
annual interest rate equal to the lesser of (1) twelve
percent (12%) per annum, or (2) the highest annual
interest rate permitted under applicable law.
10.2.7 Notwithstanding anything to the contrary
herein, FRP shall at all times prior to commencement of
construction of the Initial Improvements have the right to
enter onto the Company Parcel to excavate, remove,
stabilize, treat and/or dispose of Known Hazardous Substances,
provided that (i) such activities by FRP may not cause material
adverse delay or additional expense to the Company's plans
for Initial Improvements; (ii) all such activities shall be
performed in accordance with all applicable Environmental
Laws and approved by all Governmental Authorities with
jurisdiction over such matters (if and to the full extent such
approval is required); and (iii) all such activities shall be
funded by FRP, but subject to adjustment and reimbursement
by the Company on a net basis consistent with Section
10.2.4, if and to the extent applicable.
10.2.8 Promptly following the Contract Date, FRP
and MRP, each acting reasonably and in good faith, shall
endeavor to agree upon a maximum aggregate amount ("Cap")
for which FRP may be liable to the Company pursuant to this
Section 10.2. If FRP and MRP shall agree upon a Cap, they
shall promptly reflect the same in an amendment to this
Agreement (a "Cap Amendment"). If such Cap Amendment
shall not have been executed by the date that is sixty
(60) days after the Contract Date, then either FRP or
MRP may terminate this Agreement by written notice to
the other given at any time thereafter but prior to the
execution of such Cap Amendment, following which (i)
this Agreement shall be of no further force and effect, (ii)
Section 11.3 shall apply, and (iii) other than as set forth
in subclause (ii), neither party shall have any further rights,
obligations or liabilities to the other party other than those
that expressly survive termination of this Agreement
10.2.9 This Section 10.2 shall survive Closing
without limitation as to time.
ARTICLE 11. DEFAULT AND REMEDIES
11.1 MRP's Default at or prior to Closing. If (a) MRP
or MRP Designee defaults in any material obligation under this
Agreement prior to Closing, (b) MRP or MRP Designee defaults
in its obligation to proceed to the Closing in accordance with this
Agreement, or (c) if any condition set forth in Sections 7.5.1 or
7.5.2 is not satisfied and FRP elects not to proceed to the Closing,
then FRP shall give MRP written notice of such default or the failure
of such condition. If MRP shall fail to cure such default or satisfy
such condition within fifteen(15) Business Days after receipt of
such notice (but in no event later than the Outside Closing
Date), then FRP, as its exclusive and sole right and remedy,
shall have the right to (i) terminate this Agreement by written
notice to MRP, and (ii) exercise its rights under the Collateral
Assignment of Development Work Product. Upon any such
termination of this Agreement, this Agreement shall be of no
further force or effect and neither party shall have any further
rights, obligations or liabilities to the other party other than
those that expressly survive termination of this Agreement.
FRP hereby waives any right to recover damages (whether
actual, consequential, punitive or other) as a result of the
defaults or failure of the conditions described above,
except as described in this Section11.1.
11.2 FRP's Default at or prior to Closing. If (a) FRP
defaults in any material obligation under this Agreement prior
to Closing, (b) FRP defaults in its obligation to proceed to
Closing in accordance with this Agreement, or (c) if any
condition set forth in Section 7.3.1 or 7.3.2 is not satisfied
and MRP elects not to proceed to Closing, then MRP shall
give FRP written notice of such default or the failure of such
condition. If FRP shall fail to cure such default or satisfy such
condition within fifteen (15) Business Days after receipt of
such notice (but in no event later than the Outside Closing
Date), then MRP shall be entitled, as its exclusive and sole
remedy, to (i) receive from FRP reimbursement of the
Development Costs that MRP has then incurred in accordance
with the Pre-Development Budget, and (ii) terminate the
Collateral Assignment of Development Work Product and
FRP's rights thereunder (without being required to assign all or
any portion of the Development Work Product to FRP).
Upon termination, this Agreement shall be of no further
force and effect and neither party shall have any further
rights, obligations or liabilities to the other party other than
those that expressly survive termination of this Agreement.
In connection with FRP's reimbursement obligation, MRP
shall also have the right to recover interest from FRP on any
unpaid portion of such reimbursement, calculated at a rate of
twelve percent (12%) per annum (which interest shall accrue
and be payable from the date such reimbursement was originally
due and payable hereunder until the date such reimbursement
amount was actually paid in full), which shall survive any
termination of this Agreement. MRP hereby waives any right
to recover damages (whether actual, consequential, punitive
or other) as a result of the FRP defaults or failure of the
conditions described above except as described in this Section
11.2.
11.3 Failure to Close without Default. If the Agreement
is terminated at or prior to Closing for any reason other than
the default of FRP or MRP, which may include the failure of a
condition to Closing as long as such failure is not attributable
to the default of FRP or MRP, FRP shall have the right to
exercise its rights under the Collateral Assignment
of Development Work Product by (i) providing written notice
of such exercise to MRP, and (ii) reimbursing MRP for its
Development Costs as and when provided for in the next
sentence. If FRP shall so elect to exercise its rights under
the Collateral Assignment of Development Work Product,
FRP shall reimburse MRP for all Development Costs
incurred by MRP in accordance with the Pre-Development
Budget, within thirty (30) days after receipt by FRP of
reasonable substantiating documentation. In connection
with such reimbursement obligation, MRP shall also have
the right to recover interest from FRP on any unpaid portion
of such reimbursement amount, calculated at a rate of twelve
percent (12%) per annum (which interest shall accrue and be
payable from the date such reimbursement was originally due
and payable hereunder until the date such reimbursement is
actually paid in full), which shall survive any such termination
of this Agreement. Notwithstanding the foregoing, this
Section 11.3 shall not apply in the event of any termination of
this Agreement pursuant to Section 7.2.2 (iii).
11.4 Default after Closing. The provisions of this Section
11.4 shall apply solely to the extent Closing is consummated
under this Agreement, as follows:
11.4.1 Subject to any express provisions of this
Agreement to the contrary, from and after Closing, FRP hereby
agrees to indemnify MRP, MRP Designees, the Company, and
their respective directors, officers, employees, partners,
members and affiliates (collectively, "MRP Indemnified Parties"),
and to hold MRP Indemnified Parties harmless from and against,
any and all Damages paid or incurred by MRP Indemnified
Parties due to (i) any breach of any representation or warranty
made by FRP in this Agreement or any other Transaction
Document executed by FRP, and (ii) any breach of any
covenant made by FRP in this Agreement or any other
Transaction Document executed by FRP.
11.4.2 Subject to any express provisions of this
Agreement to the contrary, from and after Closing, MRP
hereby agrees to indemnify FRP, the Company, and their
respective directors, officers, employees, partners, members
and affiliates (collectively, "FRP Indemnified Parties"), and to
hold FRP Indemnified Parties harmless from and against, any
and all Damages paid or incurred by FRP Indemnified Parties
due to (i)any breach of any representation or warranty made
by MRP or MRP Designee in this Agreement or any other
Transaction Document executed by MRP or by MRP Designee,
and (ii)any breach of any covenant made by MRP or MRP
Designee in this Agreement or any other Transaction Document
executed by MRP or by MRP Designee.
11.4.3 With regard to each party's right to assert a
direct claim against the other party pursuant to Section 11.4.1(i)
and/or Section11.4.2(i), as applicable, such right shall survive
Closing until the date that is one (1) year after the Closing Date,
and shall thereafter expire, and be null and void. With regard to
each party's right to assert a claim against the other party
pursuant to Section 11.4.1(ii) and/or Section 11.4.2(ii), as
applicable, such right shall survive Closing without time limitation
other than any applicable statute of limitations. From and after
Closing, and excluding any other obligations and liabilities of the
parties provided for under the express terms of this Agreement
or under the express terms of any of the other Transaction
Documents being delivered at Closing hereunder (including the
Company Agreement), all of which shall survive Closing without
limitation,
the right to seek Damages and indemnification under this
Section 11.4 shall be the exclusive remedies of FRP, on the
one hand, and MRP, MRP Designee or the Company, on the
other hand, in connection with any post-Closing claims arising
out of the matters described in this Section11.4 and the
transaction described in this Agreement, each party hereby
waiving and releasing any and all other rights or remedies it may
have under applicable law or at equity in connection therewith.
11.4.4 Notwithstanding any other provision of this
Agreement to the contrary: (a) if at or prior to Closing MRP
obtains MRP's Knowledge that any representation or warranty
of FRP under this Agreement is inaccurate in any respect and/or
FRP has breached a covenant under this Agreement or the
Transaction Documents, but nonetheless proceeds to Closing,
MRP and the MRP Designee(s) shall be deemed to have
waived any right to make a claim arising out of such inaccuracy
or breach, and (b) if at or prior to Closing FRP obtains
FRP's Knowledge that any representation or warranty of MRP
or the MRP Designee(s) under this Agreement is inaccurate in
any respect and/or MRP has breached a covenant under this
Agreement or the Transaction Documents, but nonetheless
proceeds to Closing, FRP shall be deemed to have waived
any right to make a claim arising out of such inaccuracy or
breach, provided that (i) the foregoing notwithstanding, the
waiver provided for above shall not apply, and shall be null
and void, with respect to any knowing and deliberate
misrepresentation or intentional breach made by a party to
this Agreement at the time of final execution and delivery
hereof, or remade by such party as of the Closing Date, unless
the other party had Actual Knowledge of such misrepresentation
more than thirty (30) days prior to the Closing Date and failed
to avail itself of its rights and remedies with respect thereto
promptly after acquiring Actual Knowledge thereof. The
parties agree that the term "knowing and deliberate
misrepresentation" shall require the party making the
representation to have done so with Actual Knowledge that
the matter represented was false in some material respect.
11.5 Survival. Except where this Agreement expressly
provides for a longer period: (A) the representations and
warranties of FRP and MRP set forth in this Agreement and
the indemnities based thereon shall survive Closing until the
date that is one (1) year after the Closing Date (and
any Action for breach of such representation or warranty must
be instituted on or before such date), and (B) the covenants
and indemnities based thereon of FRP and MRP set forth in
this Agreement shall survive Closing and continue until the date
upon which an Action for the breach thereof is barred under
the statute of limitations applicable thereto (and any Action
for breach of such covenant or indemnity must be instituted
on or before such bar date). This Article 11 shall
survive termination of this Agreement and the Closing.
11.6 Attorneys' Fees. In the event that any party to this
Agreement shall default hereunder, then the other party shall
have the right to recover reasonable attorneys' fees in
enforcing this Agreement. This Section 11.6 shall survive any
termination of this Agreement.
ARTICLE 12. MISCELLANEOUS
12.1 Assignment.
12.1.1 MRP shall not assign this Agreement without the
consent of FRP, other than to an MRP Designee in accordance
with this Section 12.1. Upon thirty (30) days prior written notice
to FRP, MRP shall have the right to assign this Agreement to
another Person ("MRP Designee") that is an MRP Affiliate. MRP
shall provide to FRP such information as FRP may reasonably
request to confirm the direct and indirect ownership and Control
of MRP Designee. Upon the designation of MRP Designee, MRP
Designee shall be deemed to have assumed for the benefit of FRP
all obligations of MRP under this Agreement, but such designation
shall not relieve MRP of its obligations under this Agreement.
12.1.2 FRP shall not assign this Agreement, nor will FRP
transfer or assign (whether by sale, ground lease, contribution or
a joint venture transaction) or market any of its right, title and
interest in and to the Company Parcel prior to Closing, without
the consent of MRP.
12.2 Notices. Notices and other communications required
or permitted under this Agreement shall be in writing and
delivered by hand against receipt or sent by recognized overnight
delivery service, by certified or registered mail, postage prepaid,
with return receipt requested or by facsimile. All notices shall be
addressed as follows:
If to FRP:
Florida Rock Properties, Inc.
c/o FRP Development Corp.
00 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attn: Xxxxx X. xxXxxxxxxx, Xx., President
Phone: 410/000-0000
Fax: 410/000-0000
with a copy to:
Xxxxxx & Xxxxxx LLP
000 00xx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attn: Xxxxxxx X. Xxxxxxx, Esquire
Phone: 202/000-0000
Fax: 202/000-0000
If to MRP:
MRP SE Waterfront Residential, LLC
c/o MidAtlantic Realty Partners, LLC
0000 X Xxxxxx, X.X., Xxxxx 000
Xxxxxxxxxx XX 00000
Attn: Xxxxxx X. Xxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Xxxxxxxxx & Saas, PC
0000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxx Xxxxx, XX 00000
Attn: Xxxx X. Xxxxxxxxx, Esq.
Phone: (000) 000-0000
Fax: (000) 000-0000
If to the Title Company or Escrow Agent:
Commonwealth Land Title Insurance Company
0000 00xx Xxxxxx, X.X., Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Attn: Xxxxx X. Xxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
or to such other addresses as may be designated by a
proper notice. Notices shall be deemed to be effective
upon actual receipt (or refusal thereof) if personally
delivered, sent by recognized overnight delivery service,
or sent by certified or registered mail, postage prepaid,
with return receipt requested, or upon electronically
verified transmission, if such delivery is by facsimile.
Notices may be given on behalf of a party by such
party's legal counsel. Notices shall be deemed to
include all attachments, enclosures or other documents
delivered with such Notice.
12.3 Waiver of Jury Trial; Jurisdiction. FRP and
MRP each hereby waives any right to jury trial in the
event any party files an Action relating to this Agreement
or to the transactions or obligations contemplated by this
Agreement. Any Action arising out of this Agreement or
the transactions contemplated by this Agreement shall be
brought exclusively in federal or local courts having
jurisdiction over the District of Columbia, and FRP and
MRP agree that such courts are the most convenient
forum for resolution of any such Action and further agree
to submit to the jurisdiction of such courts and waive any
right to object to venue in such courts. Nothing in this
Section 12.3 is intended to limit or eliminate either
party's right to seek arbitration under the express
terms of this Agreement. This Section 12.3 shall
survive termination of this Agreement and the Closing.
12.4 Counterparts and Effectiveness. This
Agreement may be executed in any number of counterparts
which, when taken together, shall constitute a single binding
instrument. Delivery of an executed counterpart of this
Agreement (or of any document or instrument contemplated
herein) by electronic means, including by facsimile transmission
or by electronic mail delivery of a scanned counterpart hereof
(in PDF format), shall be sufficient for all purposes, shall be
binding on any Person who so executes this Agreement (or such
document or other instruments) and shall constitute good and
valid execution and delivery for all legal purposes.
12.5 Confidentiality.
12.5.1 MRP acknowledges that certain information
heretofore or hereafter furnished by or on behalf of FRP to
MRP Representatives with respect to the Company Parcel or
the Site has been and will be so furnished on the condition
that MRP Representatives maintain the confidentiality
thereof. Accordingly, but subject to the further terms and
limitation of this Section 12.5, MRP shall hold, and shall
cause the other MRP Representatives to hold, in strict
confidence, and MRP shall not disseminate or disclose,
and shall prohibit the other MRP Representatives from
disseminating and/or disclosing, to any other Person
without the prior written consent of FRP: (i) the terms of
this Agreement, (ii) any information delivered by or on
behalf of FRP to MRP Representatives pursuant to this
Agreement, and (iii) any information regarding the Company
Parcel and/or the Site that is obtained by MRP Representatives
in connection with their due diligence investigation of the
Company Parcel to the extent not excluded hereafter
(collectively, "Confidential FRP Information"). Notwithstanding
the foregoing, (1) Confidential FRP Information shall not
include any documents or other information which is a matter
of public record, or which is otherwise already in the public
domain other than as a result of a breach of this covenant by
MRP or an MRP representative, and (2) MRP may disclose the
Confidential FRP Information (A)on a need-to-know basis
to its employees, agents, accountants, counsel, actual or
potential financial advisors, contractors, actual or potential
lenders, and actual or potential investors (it being
understood that MRP will inform such Persons of the
confidential nature of the Confidential FRP Information
and MRP shall be responsible for any disclosure of such
Confidential FRP Information by them in violation of this
Section 12.5.1), (B)subject to Section 12.5.2, to the extent
required to comply with applicable law or a court order,
(C) subject to Section 12.5.2, to the extent required to
comply with the rules of any applicable securities exchange,
(D) in connection with any legal action brought to enforce,
or resolve any dispute under, this Agreement, and (E) upon
approval by FRP (which approval shall not be unreasonably
withheld, conditioned or delayed) or as otherwise permitted
hereunder, as necessary for MRP to obtain Zoning Approval.
Unless otherwise agreed by FRP and MRP, upon termination
of this Agreement, MRP shall promptly deliver to FRP all
Confidential FRP Information, and, if requested by FRP, MRP
shall promptly destroy all memoranda, notes and other writings
prepared by MRP and containing any information described in
the Confidential FRP Information. The foregoing
notwithstanding, MRP and its legal counsel will have the right
to retain its self-generated notes, reports and summaries as
necessary for legal compliance or legal record retention
purposes, all which shall continue to be held subject to the
terms of this Section 12.5.1.
12.5.2 If MRP is requested or required by subpoena,
deposition, interrogatory, civil investigation, demand, request
for information or documents under any applicable law, rule or
regulation or other similar judicial, regulatory or administrative
process to disclose any of the Confidential FRP Information,
or if MRP is required under the rules of any applicable securities
exchange to disclose any of the Confidential FRP Information,
MRP shall give FRP prompt notice of such request so that
FRP may seek an appropriate protective order at FRP's sole
risk, cost and expense. If, in the absence of a protective
order, MRP is compelled or required to disclose any of the
Confidential FRP Information, it may disclose the Confidential
FRP Information it is compelled or required to disclose without
liability hereunder; provided, however, that MRP shall give FRP
written
notice of the Confidential FRP Information to be disclosed as
far in advance of the required disclosure as is practicable and,
upon FRP's request and at FRP's sole cost and expense, MRP
shall use its reasonable efforts to obtain assurances that
confidential treatment will be accorded to the Confidential
FRP Information that is disclosed.
12.5.3 MRP may from time to time provide FRP with
information regarding MRP or the MRP Affiliates specifically
identified as confidential ("Confidential MRP Information").
FRP acknowledges and agrees (1) that the terms of this
Agreement shall constitute Confidential MRP Information, and
(2) that the Confidential MRP Information has been and will be
so furnished on the condition that FRP maintain the confidentiality
thereof. Accordingly, but subject to the further terms and
limitation of this Section 12.5.3, FRP (i) shall hold, and shall
cause its representatives and agents to hold, in strict confidence,
and FRP shall not disseminate or disclose, and shall prohibit
the other FRP Representatives from disseminating and/or
disclosing, the Confidential MRP Information to any other
Person without the prior written consent of MRP, and (ii) shall
not disseminate or disclose the Confidential MRP Information
to any other Person without the prior written consent of MRP.
Notwithstanding the foregoing, FRP may disclose the
Confidential MRP Information (w)on a need-to-know basis
to its employees, agents, trustees, accountants, counsel, actual or
potential financial advisors, contractors and actual or potential
lenders (it being understood that FRP will inform such Persons
of the confidential nature of the Confidential MRP Information
and FRP shall be responsible for any disclosure of such
Confidential FRP Information in violation of this Section 12.5.3),
(x)subject to Section 12.5.4, to the extent required to comply
with applicable law or a court order, (y)subject to Section
12.5.4, to the extent required to comply with the rules of any
applicable securities exchange, and (z)to the extent that such
information is a matter of public record. Unless otherwise
agreed by FRP and MRP, upon termination of this Agreement,
FRP shall promptly deliver to MRP all Confidential MRP
Information, and, if requested by MRP, FRP shall promptly
destroy all memoranda, notes and other writings prepared by
FRP and containing any information described in the Confidential
MRP Information.
12.5.4 If FRP is requested or required by subpoena,
deposition, interrogatory, civil investigation, demand, request for
information or documents under any applicable law, rule or
regulation or other similar judicial, regulatory or administrative
process to disclose any of the Confidential MRP Information,
or if FRP is required under the rules of any applicable securities
exchange to disclose any of the Confidential MRP Information,
FRP shall give MRP prompt notice of such request so that MRP
may seek an appropriate protective order at MRP's sole risk,
cost and expense. If, in the absence of a protective order,
FRP is compelled or required to disclose any of the
Confidential MRP Information, it may disclose the Confidential
MRP Information it is compelled or required to disclose without
liability hereunder; provided, however, that FRP shall give MRP
written notice of the Confidential MRP Information to be
disclosed as far in advance of the required disclosure as is
practicable and, upon MRP's request and at MRP's expense,
FRP shall use its reasonable efforts to obtain assurances that
confidential treatment will be accorded to the Confidential MRP
Information that are disclosed.
12.5.5 Notwithstanding Section 12.5.1 and Section
12.5.3 to the contrary,
MRP and FRP, following prior notice to and consultation with
the other, may disclose the transaction contemplated by this
Agreement to the extent necessary to obtain consents or
approvals contemplated by this Agreement.
12.5.6 The provisions of this Section 12.5 shall survive
any termination of this Agreement.
12.6 Public Announcements. Any announcement, press
release or other public disclosure of the transaction contemplated
by this Agreement and/or the development of the Company
Parcel as contemplated in this Agreement shall be subject to the
mutual approval of FRP and MRP. Notwithstanding the
foregoing and Section 12.5, each party may make such public
disclosure as it determines is required by applicable Legal
Requirements, the rules of any securities exchange on which its
stock (or the stock of any of its affiliates) is listed or traded,
subject to the other party's reasonable approval over any
non-compulsory portion of such disclosure (i.e., any portion
of such disclosure that is not compelled or required by the rules
of such securities exchange). The provisions of this Section
12.6 shall survive any termination of this Agreement.
12.7 Time of Essence. Time is of the essence with respect
to all obligations of FRP and MRP under this Agreement.
12.8 Soil Disclosure. The characteristics of soil on the
Company Parcel as described by the Soil Conservation Service
of the United States Department of Agriculture in the Soil Survey
of the District of Columbia and as shown on the Soil Maps of the
District of Columbia is Urban Land. For further information,
MRP may contact a soil testing laboratory, the District of Columbia
Department of Environmental Services or the Soil Conservation
Service of the Department of Agriculture.
12.9 UST Disclosure. Concurrently with its execution of
this Agreement, FRP has executed and delivered to MRP,
pursuant to the Underground Storage Tank Management Act
of 1990, an Underground Storage Tank Real Estate Transfer
Disclosure Form in the form attached to this Agreement as
Exhibit G.
[signatures on following page]
IN WITNESS WHEREOF, FRP and MRP have caused
this Agreement to be executed as of the Contract Date:
FRP:
FLORIDA ROCK PROPERTIES, INC.
By:
Name:
Its:
[signatures continue on the next page]
MRP:
MRP SE WATERFRONT RESIDENTIAL LLC,
a District of Columbia limited liability company
By: MIDATLANTIC REALTY PARTNERS, LLC,
its Managing Member
By:
Name:
Its:
[end of signatures]
SCHEDULES AND EXHIBITS
Schedules
-----------
1.1.42 FRP's Knowledge
1.1.63 MRP's Knowledge
1.1.69 Certain Permitted Exceptions
3.1.3 Zoning Approval Schedule
5.10 Environmental Reports
6.7 MRP Organizational Chart
Exhibits
--------
A Description of Company Parcel
B Description of Site
C Form of Company Agreement
D Form of Deed
E Form of Xxxx of Sale
F Form of General Assignment
G Form of Underground Storage Tank Real Estate
Transfer Disclosure Form
H Form of Collateral Assignment of Development
Work Product
Schedule 1.1.42
-----------------
FRP's Knowledge
Xxxxx X. xxXxxxxxxx, Xx.,
Schedule 1.1.63
-----------------
MRP's Knowledge
Xxxxxx X. Xxxxxx
Xxxxxxxxx X. Xxxxxxxxxx
Schedule 1.1.69
------------------
Certain Permitted Exceptions
None.
Schedule 3.1.3
---------------
Zoning Approval Schedule
(see attached)
Schedule 5.10
---------------
Environmental Reports
1. Comprehensive Site Assessment by ENSAT Corporation
dated December 26, 1995.
2. Phase I Environmental Site Assessment by Engineering
Consulting Services, Ltd. dated October 29, 1999.
3. Limited Phase II Environmental Site Assessment and
Geophysical Survey by Engineering Consulting Services,
Ltd. dated February 8, 2000.
4. Environmental Testing Report, Bulkhead Area by Xxxxxxxx
dated January 9, 2002.
5. Removal of Contaminated Soil Report by Xxxxxxxx Engineering
Associates, P.C. dated April 10, 2002.
6. Monitoring Well and Testing Report by Xxxxxxxx Engineering
North, LLC dated October 21, 2003.
7. LUST Case 95078, Current Status Report and Case Closure
Request by Xxxxxxxx Engineering North, LLC dated November
17, 2006.
8. Directive Letter from the Government of the District of
Columbia Department of the Environment Underground
Storage Tank Division dated December 18, 2006.
9. UST Leak Test Result by DC Materials dated July 10, 2009.
10. Voluntary Remediation Action Program Agreement with DDOE
approved August 16, 2010.
11. Well Installation and Sampling Report by Xxxxxxxx Engineering
Consultants, Inc. dated January 11, 2011.
12. Closure of One (1) 12,000 Gallon Diesel Underground Storage
Tank Report by ENSAT dated November 10, 2011.
13. LUST Case 95078, UST Removal and Case Closure
Request by Xxxxxxxx Engineering Consultants, Inc. dated
December 16, 2011.
14. Letter of Permanent Tank Closure (Registered Underground
Storage Tank System) from the Government of the District of
Columbia District Department of the Environment dated
December 20, 2011.
Schedule 6.7
-------------
MRP's Organizational Chart
(see attached)
Exhibit A
---------
Description of Company Parcel
(see attached)
Exhibit B
---------
Description of Site
All that certain lot or parcel of land together with all
improvements thereon located and being in the City of
Washington in the District of Columbia and being more
particularly described as follows:
Lot numbered Fourteen (14) in Square numbered Seven
Hundred Eight (708) in the subdivision made by Florida
Rock Properties, Inc., as per plat recorded in the Office
of the Surveyor for the District of Columbia in Liber 203
at folio 152.
NOTE: At the date hereof the described property is
designated on the Records of the Assessor for the District
of Columbia for assessment and taxation purposes as Lots
numbered Eight Hundred Ten (810), Eight Hundred Eleven
(811) and Eight Hundred Twelve (812) in Square numbered
Seven Hundred Eight (708) as shown on A&T Drawing
filed as No. 3842-X.
Exhibit C
---------
Form of Company Agreement
(see attached)
Exhibit D
---------
Form of Deed
(see attached)
Exhibit E
----------
Form of Xxxx of Sale
(see attached)
Exhibit F
---------
Form of General Assignment
(see attached)
Exhibit G
---------
Form of UST Disclosure
(see attached)
Exhibit H
----------
Form of Collateral Assignment of Development
Work Product
(see attached)
