AMENDMENT TO AGREEMENT FOR PURCHASE AND SALE
Exhibit
10.44
AMENDMENT TO AGREEMENT FOR
PURCHASE AND SALE
This Amendment to Agreement for
Purchase and Sale (the “Amendment”) is made and
entered into by and between M/I
HOMES OF WEST PALM BEACH, LLC, a Florida limited liability company
(“Seller”) and KLP EAST LLC, a Florida
limited liability company (“Purchaser”).
BACKGROUND
Seller and Purchaser entered into that
certain Agreement for Purchase and Sale dated December 21, 2007 (the “Agreement”). Seller
and Purchaser have agreed to amend the terms and provisions of the Agreement as
more particularly set forth herein.
AGREEMENT
1. The above
recitals are true and correct and are incorporated herein by
reference. Capitalized terms which are not defined in this Amendment
shall have the same meaning as defined in the Agreement.
2. Pursuant
to Paragraph 1.2 of the Agreement, subsequent to the Effective Date of this
Agreement, Purchaser entered into contracts to sell two (2) of the Models and
Spec Homes. The sold Models and Spec Homes are as follows: lot 67 of
the Oaks and xxx 00, xxxxx 0 xx Xxxxxx. Such sold Models and Spec
Homes are being deleted from the Schedule of Model Homes and Spec
Homes as described in this Amendment. Seller and Purchaser agree that the
Purchase Price attributable to such sold Models and Spec Homes shall be reduced
as follows:
Model and
Spec
Homes Agreed
Price Reduction
Lot 67 –
the
Oaks $275,811.00
Lot 89,
block 1 –
Paloma $433,721.00
The agreed allocations attached to the
Agreement as Exhibit
“B” is replaced in its entirety and revised Exhibit
“B” is hereby attached hereto.
3. The
Schedule of Agreed Values attached to the Agreement as Exhibit
“C”, is replaced in its entirety and revised Exhibit
“C” is hereby attached hereto.
4. Paragraph
6.3 of the Agreement is modified as follows. Seller acknowledges that
in connection with the traffic signalization, Seller shall deliver a letter of
credit to the City of Palm Beach Gardens (“City”) in the amount of
$748,000.00 within the time frames required by the City, which is required for
the Seller’s obligations for the installation of traffic signalization plus ten
(10) years of traffic studies. In addition, Seller shall deliver a
letter of credit in the amount of $172,000.00 to the City as required by the
City for the installation of a pedestrian lighting. Further, as
required by the Development Approvals for Paloma, Seller shall remain
responsible for maintaining its payment and performance bonds and/or letters of
credit through the time period for maintenance of the Improvements as required
by the City. Once the Improvements in Paloma have been accepted by
the City and all other governmental agencies, Seller shall execute an
assignment of such Development Approvals to Purchaser as provided in Paragraph
6.2 of the Agreement, but Seller shall remain responsible for the installation
of and cost of surety related to the traffic signalization and pedestrian
lighting.
5. The
Escrow Agreement attached to the Agreement as Exhibit
“H” is replaced in its entirety and revised Exhibit
“H” is hereby attached hereto.
6. Paragraph
8.1 of the Agreement is modified as follows. The Schedule of Model
Homes and Spec Homes which was attached as Exhibit
“I” to the Agreement, is hereby replaced in its entirety with the revised
Schedule of Model Homes and Spec Homes attached hereto as Exhibit
“I”.
7. Paragraph
8.2 of the Agreement is modified as follows. The Schedule of
Incomplete Model Homes and Spec Homes which was attached as Exhibit
“J” to the Agreement, is hereby replaced in its entirety with the revised
Schedule of Incomplete Model Homes and Spec Homes attached hereto as Exhibit
“J”.
8. Paragraph
8.3 of the Agreement is modified as follows: The Back
Log Schedule which was attached as Exhibit
“K” to the Agreement, is hereby deleted in its entirety and replaced with
Exhibit
“K” attached hereto. In the event that any of the Contract
Purchasers who contracted to purchase homes from Seller subsequent to the
Effective Date of the Agreement as described in Paragraph 2 hereof, cancel their
contracts, Purchaser shall purchase such designated Cancelled Homes from Seller,
upon completion, for the same price by which the Purchase Price was reduced, as
set forth in Paragraph 2 of this Amendment. In addition, the purchase
price to be paid by Purchaser for each of the Cancelled Homes as described in
such Paragraph 8.3 shall be the Xxxxxx Acquisition Price as identified on Exhibit
“K”, attached to this Amendment.
9. Paragraph
8.4 of the Agreement is modified as follows. Seller and Purchaser
have determined that the billboard lease (the “Billboard Lease”) which is
described on Exhibit
“L” to the Agreement is not assignable. Therefore, on the
Closing Date, such Billboard Lease will not be assigned by Seller to Purchaser,
but Seller shall continue to make all payments due in connection with the
Billboard Lease which are approximately $8,700.00 per month and Purchaser shall
be entitled to utilize such billboard for its own advertising
purposes. On a monthly basis, commencing as of the Closing Date,
Purchaser shall reimburse Seller for such monthly rental fee, together with any
and all other expenses incurred by Seller in connection with the Billboard Lease
up through the termination of such lease.. The parties agree to
cooperate to attempt to cause the Billboard Lease to be terminated in Seller’s
name and a new Billboard Lease executed by Purchaser. In such event,
Purchaser shall not be responsible for reimbursing Seller for any expenses
incurred in connection with the Billboard Lease as of the date of termination
thereof.
10. A new
Paragraph 10.3(i) is hereby added to the Agreement as follows: Seller
and Purchaser hereby agree that each of the Acquisition Entities shall be
treated as a disregarded entity for federal tax purposes and Seller
and Purchaser each hereby agrees not to file an election (pursuant to Internal
Revenue Service Form 8832 or otherwise) to classify any of the Acquisition
Entities as an association taxable as a corporation for federal tax
purposes.
11. Paragraph
18 is modified as follows. For purposes of notices to Purchaser,
notices should be delivered as follows:
PURCHASER: KLP
East LLC
000
Xxxxxx Xxxxxx X, Xxxxx 000
Xx.
Xxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxx
X. Xxxxxx
Telephone:
(000) 000-0000
Fax: (000)
000-0000
E-Mail: xxxxxxx@xxxxxx.xxx
Copy
to: Xxxxxx
Communities Florida LLC
0000 Xxxxx Xxxxx, Xxxxx
000
Xxxx Xxxx Xxxxx, Xxxxxxx
00000
Attn: General
Counsel
Telephone: (000)
000-0000
Fax: (000)
000-0000
E-mail: xxxxxxxxxxx@xxxxxx.xxx
12. Exhibit
“N” to the Agreement is hereby deleted and replaced with Exhibit
“N” to this Amendment.
13. In the
event of any conflict between the terms of the Agreement and the terms of this
Amendment, the terms of this Amendment shall control. Except as
amended and modified herein, the remaining terms and provisions of the Agreement
shall remain in full force and effect as originally set forth
therein.
[SIGNATURES
ON FOLLOWING PAGE]
BOC1\REALEST\223984.2
21991/0055
IN WITNESS WHEREOF, the parties have
executed this Amendment as of the last date set forth below.
WITNESSES SELLER:
M/I HOMES
OF WEST PALM BEACH, LLC, a
Florida
limited liability company
Print
Name:
Print
Name: By:
Name:
Title:
Date: December 27, 0000
X/X XXXXX
XX XXXX XXXX XXXXX, LLC, a
Florida
limited liability company
Print
Name:
Print
Name: By:
Name:
Title:
Date:
December 27, 2007
PURCHASER:
KLP EAST
LLC, a Florida limited
liability
company
Print
Name:
By:
Print
Name: Name:
Title:
Date:
December 27, 2007
EXHIBIT
“B”
AGREED
ALLOCATIONS
BOC1\REALEST\223984.2
21991/0055
MI Portfolio – Values for
Contract Allocations
12/26/07
Number
Lots Lot
Value Total
Value
Tres
Belle 99
53,590
5,305,400
Paloma
50’ 166
34,265
5,688,000
XX Xxxxx
0 92
21,241
1,954,200
TH-Phase
2 56
19,364
1,084,400
Total 314
8,726,600
Oaks
45’ 51
65,920 3,361,900
60’
12
60,425 725,100
Total 63
4,087,000
Woodwinds 1
4,279,000
4,279,000
Construction
Agreement for
Infrastructure 8,010,000
Personal
Property
680,000
Total 477
31,088,000
Models
and
Specs 34
13,290,468
Grand
Total
44,378,468
BOC1\REALEST\223984.2
21991/0055
EXHIBIT
“C”
SCHEDULE OF AGREED
VALUES
BOC1\REALEST\223984.2
21991/0055
M/I
HOMES OF WEST PALM BEACH, LLC
Work in
Progress/Budget/Cost to Complete Reconciliation
Job
Detail Report
December
26, 2007
|
Community
Parcel
Lot/Blk/Phase
|
Job
Number
|
House
Type
|
Square
Footage
|
Current
M/I
Retail
Price
|
Kolter
Acquisiton
Price
|
C.O.
Issued Date
|
Unsold Inventory (excluding
Models)
Paloma
50’
4/1 255401001004 Xxxxx 2136 474,990 386,061 12/3/2007
5/1 255401001005 Cordoba 3546 574,990 516,826 10/22/2007
7/1 255401001007 Navarra 2681 474,990 390,644
8/1 255401001008 Navarra 2681 474,990 389,716
27/1 255401001027 Gibraltar 2084 498,245 408,522 10/17/2007
38/1 255401001038 Cordoba 3546 599,990 492,760 12/12/2007
39/1 255401001039 Xxxxx 2136 465,596 396,075 12/12/2007
46/1 255401001046 Sierra 3011 574,990 531,688 11/20/2007
64/1 255401001064 Cordoba 3546 624,990 559,515 Complete
76/1 255401001076 Navarra 2681 474,990 388,474
Paloma Grand
Carriage
2/2 255410002002 Madrid 2261 339,990 312,752 11/20/2007
3/2 255410002003 Cadiz 2251 339,990 316,018 11/20/2007
11/2 255410002011 Cadiz 2251 359,990 311,939 11/20/2007
13/2 255410002013 Granada 2213 369,990 312,978 Complete
14/2 255410002014 Madrid 2261 359,990 320,472 Complete
15/2 255410002015 Cadiz 2251 359,990 312,679 Complete
18/2 255410002018 Madrid 2261 369,990 320,258 Complete
19/2 255410002019 Cadiz 2251 359,990 310,592 11/20/2007
20/2 255410002020 Granada 2213 359,990 331,902
21/2 255410002021 Granada 2213 359,990 328,599
24/2 255410002024 Granada 2213 369,990 315,011
129/2 255410002129 Granada 2213 379,990 305,497
132/2 255410002132 Granada 2213 379,990 305,498
133/2 255410002133 Granada 2213 379,990 297,507
134/2 255410002134 Cadiz 2251 387,490296,242
136/2 255410002136 Granada 2213 379,990 296,809
Laurel Preserve @ Hobe
Sound
202 255379000202 Sedona 2392 309,990 324,343
203 255379000203 Sonoma 1675 269,990 257,813
The Oaks @ Hobe Sound
60’
63 255404000063 Bayfield 2219 380,284 343,700 12/13/2007
172 255404000172 Whitney 3280 449,474 429,223
Tres
Belle
5/1 255409001005 San
Remo 2931 519,990 409,289
29/1 255409001029 Cielo 3793 604,990 503,726
96/1 255409001096 Belle
Mar 4238 754,169 868,530 Complete
Total Unsold
Inventory 14,384,988 12,591,658
Models
Tres
Belle
108/1 255409001108 Calabria 2845 685,126 698,809 Complete
Total
Models 685,126 698,809
Grand
Total 13,290,468
BOC1\REALEST\223984.2
21991/0055
EXHIBIT
“H”
ESCROW
AGREEMENT
This
Escrow Agreement (the “Escrow
Agreement”), is made and entered into this ____ day of December, 2007 by
and between M/I HOMES OF WEST
PALM BEACH, LLC, a Florida limited liability company (“Seller”), KLP EAST LLC, a Florida
limited liability company (“Purchaser”) and BROAD AND XXXXXX, Attorneys at
Law (“Escrow
Agent”).
BACKGROUND
Seller and Purchaser are simultaneously
with the execution of this Escrow Agreement closing pursuant to an Agreement for
Purchase and Sale dated even date herewith (the “Purchase
Agreement”). Pursuant to the terms of the Purchase Agreement,
Purchaser and Seller have agreed to enter into this Escrow Agreement to govern
the delivery of certain Letter of Credit (hereinafter defined) and to govern the
collection and disbursement of any proceeds thereof in accordance with the
Purchase Agreement and the terms and provisions of this Escrow
Agreement. Escrow Agent has agreed to serve as the Escrow Agent in
accordance with the terms of this Escrow Agreement.
NOW THEREFORE, Seller, Purchaser and
Escrow Agent hereby agree as follows:
1. Recitals. The
foregoing recitals are true and correct and are hereby incorporated by
reference. All capitalized terms which are not defined in this Escrow
Agreement shall have the same meaning as defined in the Purchase
Agreement.
2. Letter of
Credit. Pursuant to the terms of the Purchase Agreement,
Seller has delivered to Escrow Agent a letter of credit as described on Exhibit
“A”, attached hereto and made a part hereof (“Letter of
Credit”). Escrow Agent shall hold the Letter of Credit in
accordance with the terms of the Purchase Agreement and this Escrow
Agreement. With respect to the Letter of Credit, Escrow Agent agrees
as follows:
Escrow
Agent shall draw upon the Letter of Credit if Escrow Agent receives from
Purchaser a written statement that Seller is in “default under Paragraph 7 of
the Purchase Agreement, and all applicable cure periods have expired without
Seller curing such default.” Escrow Agent shall then hold the
proceeds of such Letter of Credit as the Escrow Fund (hereinafter
defined).
In the
event that the Letter of Credit is due to expire pursuant to its own terms and
the obligations under the Purchase Agreement secured by such Letter of Credit
have not yet been completed, Seller shall, at least, forty-five (45) days prior
to the expiration of such Letter of Credit, either (i) provide Escrow Agent with
an amendment to such expiring Letter of Credit, extending the expiration date
thereof, or (ii) substitute a new letter of credit for the expiring Letter of
Credit upon identical terms and conditions and complying with the
terms and conditions of the Purchase Agreement and this Escrow Agreement, or
(iii) replace the expiring Letter of Credit with a cash deposit by wire transfer
of funds to the Escrow Agent. If Escrow Agent receives the cash
deposit to replace the expiring Letter of Credit, Escrow Agent shall return the
expiring Letter of Credit to Seller. If Seller fails to take any of
the foregoing actions, then Escrow Agent shall, and each of Seller and Purchaser
hereby unconditionally authorize Escrow Agent to (x) present any such Letter of
Credit due to expire for payment and (y) hold the cash proceeds thereof in
escrow as part of the Escrow Fund, subject to disbursement as provided in
Paragraph 4 hereof.
The
Letter of Credit is subject to reduction, from time to time, in accordance with
the terms and provisions of Paragraph 7.2 of the Purchase
Agreement. To the extent that such reduction is permitted by the
terms of such paragraph, the parties shall cooperate as necessary to execute any
and all consents required by the issuing bank to so reduce the Letter of Credit
as permitted under the Purchase Agreement.
3. Establishment
of Escrow Fund. To the extent that Escrow Agent receives cash
deposits pursuant to drawing upon the Letter of Credit as provided herein,
Escrow Agent shall hold such Cash Deposits (the “Escrow Fund”) in accordance
with the terms of this Escrow Agreement. Escrow Agent shall deposit the Escrow
Fund in Wachovia Bank, N.A. and shall hold and disburse the Escrow Fund in
accordance with the terms and provisions of Paragraph 4 hereof. If
Seller delivers to Escrow Agent a Form W-9, satisfactory to Escrow
Agent’s bank, the Escrow Fund shall be deposited in an interest bearing money
market account. All interest earned on the Escrow Fund shall be added
to the Escrow Fund, subject to disbursement as provided in Paragraph 4
hereof.
4. Disbursement
of Escrow Fund. All disbursements shall be made from the
Escrow Fund pursuant to the provisions of Paragraph 7.7 of the Purchase
Agreement.
5. Liability
of Escrow Agent. In performing any of its duties under this
Escrow Agreement, Escrow Agent shall not be liable for any loss, costs or damage
which it may incur as a result of serving as Escrow Agent hereunder, except for
any loss, cost or damages arising out of willful acts of malfeasance or gross
negligence. Accordingly, Escrow Agent shall not incur any liability
with respect to any action taken or omitted to be taken: (i) in good faith upon
advice of its counsel given with respect to any questions relating to the duties
and responsibilities of the Parties pursuant to the Purchase Agreement or this
Escrow Agreement; or (ii) in reliance upon any document, including any written
notice of instruction provides for in the Purchase Agreement or this Escrow
Agreement, not only as to its due execution and the validity and effectiveness
of its provisions, but also to the truth and accuracy of any information
contained therein, which Escrow Agent shall in good faith believe to be genuine,
to have been signed or presented by a proper person or persons and to conform
with the provisions of this Escrow Agreement.
6. Notices. Any
notice, request, demand, instruction or other communication to be given to
either party, except where required by the terms of this Agreement to be
delivered at the Closing, shall be in writing and shall be sent by registered or
certified mail, return receipt requested, by express overnight courier, by
facsimile or by hand delivery to the other party hereto, with a copy sent by
e-mail on the same day as the other method utilized to the addresses set forth
below, or to such address as the parties hereafter may specify in
writing:
SELLER: M/I
Homes of West Palm Beach, LLC
0 Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxx,
Xxxx 00000
Attn: J.
Xxxxxx Xxxxx, Esquire, General Counsel
Telephone: (000)
000-0000
Fax: (000)
000-0000
E-mail: xxxxxx@xxxxxxx.xxx
Copy
to: Broad
and Xxxxxx
0000
Xxxxxx Xxxx, Xxxxx 000
Xxxx
Xxxxx, Xxxxxxx 00000
Attn: Xxxxxxx
X. XxxXxxxxxx, P.A.
Telephone: (000)
000-0000
Fax: (000)
000-0000
E-mail: xxxxxxxxxxx@xxxxxxxxxxxxxx.xxx
PURCHASER: KLP
East LLC
000
Xxxxxx Xxxxxx X, Xxxxx 000
Xx.
Xxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxx
X. Xxxxxx
Telephone:
(000) 000-0000
Fax: (000)
000-0000
E-Mail: xxxxxxx@xxxxxx.xxx
Copy
to: Xxxxxx
Communities Florida LLC
0000 Xxxxx Xxxxx, Xxxxx
000
Xxxx Xxxx Xxxxx, Xxxxxxx
00000
Attn: General
Counsel
Telephone: (000)
000-0000
Fax: (000)
000-0000
E-mail: xxxxxxxxxxx@xxxxxx.xxx
]
Notice
shall be deemed given if forwarded by certified or registered mail through the
facilities of the United States Postal Office on the day following the date that
the notice in question is deposited in the facilities of the United States
Postal Service. If notice is forwarded by express overnight courier,
it shall be deemed given on the day that the notice in question is deposited in
the facilities of an express overnight courier. If notice is
delivered by hand delivery, notice shall be deemed given when actually
delivered. If notice is delivered by facsimile it shall be deemed
given on the day that it is sent by facsimile, provided that it is received by
the other party prior to 5:00 p.m. on such day, if a business day, otherwise it
shall be deemed given on the next business day following the date the facsimile
has been sent, provided, further, that a confirmatory copy is delivered by
either certified or registered mail or express overnight courier as provided
herein.
7. Interpleader. In
the event of disagreement about the interpretation of this Escrow Agreement, or
about the rights and obligations or the propriety of any action contemplated by
the Escrow Agent hereunder, Escrow Agent may, at its sole discretion, file an
action in interpleader to resolve the said disagreement. Escrow Agent shall be
indemnified by Purchaser and Seller for all costs, including reasonable
attorney's fees, in connection with the aforesaid interpleader action and shall
be fully protected in suspending all or part of its activities under this Escrow
Agreement until a final judgment or other appropriate order in the interpleader
action is entered.
8. Joinder-in-Lawsuit. In
the event Escrow Agent is joined as a party to a lawsuit by virtue of the fact
that it is holding the Letters of Credit or the Escrow Fund, Escrow Agent shall,
at its option, either tender said deposit to the registry of the court or
disburse same in accordance with the court's ultimate disposition of the cause
and Escrow Agent shall be entitled to reimbursement by Seller for its reasonable
attorney's fees and court costs. In no event will Purchaser be
responsible for any of Escrow Agent’s fees, other than as provided in paragraph
7 hereof.
9. Governing
Law; Venue. This Agreement shall be construed and enforced
according to the laws of the State of Florida. Venue for any action
arising out of the terms of this Agreement shall lie only in the applicable
federal and/or state courts located in Palm Beach County, Florida.
[SIGNATURES
APPEAR ON THE FOLLOWING PAGE]
BOC1\REALEST\223984.2
21991/0055
IN WITNESS WHEREOF, the
parties have executed this Escrow Agreement as of the date and year first above
written.
WITNESSES: SELLER:
M/I HOMES OF WEST PALM
BEACH,
LLC, a Florida limited liability
company
Print
Name:
By:
Print
Name: Name:
Title:
PURCHASER:
KLP EAST LLC, a Florida limited
liability
company
Print
Name:
By:
Print
Name: Name:
Title:
ESCROW AGENT:
BROAD AND XXXXXX
By: Xxxxxxx X. XxxXxxxxxx,
P.A., a partner
By:
Xxxxxxx X.
XxxXxxxxxx, President
BOC1\REALEST\223984.2
21991/0055
EXHIBIT
“A”
LETTER OF
CREDIT
BOC1\REALEST\223984.2
21991/0055
LETTER
OF CREDIT NUMBER F851514
ISSUANCE
DATE: DECEMBER 21, 2007
APPLICANT:
M/I
HOMES OF WEST PALM BEACH, LLC
0
XXXXXX XXXX, XXXXX 000
XXXXXXXX,
XXXX 00000
BENEFICIARY:
BROAD
AND XXXXXX
0000
XXXXXX XXXX, XXXXX 000
XXXX
XXXXX, XX 00000
FOR
USD 9,000,000.00
(NINE
MILLION 00/100 U.S. DOLLARS)
DATE
OF EXPIRATION: DECEMBER 20, 2008
PLACE
OF EXPIRATION: AT OUR COUNTERS
DEAR
SIRS:
WE
HEREBY ISSUE IN YOUR FAVOR THIS IRREVOCABLE STANDBY LETTER OF CREDIT WHICH IS
AVAILABLE BY PRESENTATION OF YOUR DRAFT(S) AT SIGHT DRAWN ON US BEARING THE
CLAUSE “DRAWN UNDER STANDBY CREDIT NO. F851514 DATED DECEMBER 21, 2007,”
ACCOMPANIED BY THE FOLLOWING DOCUMENTS:
1. THE
ORIGINAL OF THIS LETTER OF CREDIT.
2. BENEFICIARY’S
SIGNED STATEMENT THAT:
“BENEFICIARY
IS OBLIGATED TO DRAW UPON THE LETTER OF CREDIT PURSUANT TO THE AGREEMENT FOR
PURCHASE AND SALE DATED DECEMBER 21, 2007 BETWEEN APPLICANT AND KLP EAST LLC
(THE “PURCHASE AGREEMENT”), OR
“BENEFICIARY
HAS RECEIVED A WRITTEN STATEMENT FROM KLP EAST LLC THAT APPLICANT IS IN DEFAULT
UNDER THE PURCHASE AGREEMENT.”
WE
HEREBY ENGAGE WITH YOU THAT ALL DRAFTS DRAWN AND/OR DOCUMENTS PRESENTED UNDER
AND IN COMPLIANCE WITH THE TERMS OF THIS LETTER OF CREDIT WILL BE DULY HONORED
UPON PRESENTATION TO SUNTRUST BANK AT 00 XXXX XXXXX, 00XX XXXXX,
XX: GA-ATL-3706, ATTN: STANDBY LC DEPT., XXXXXXX, XX 00000 OR BEFORE
EXPIRATION OF THIS LETTER OF
CONTINUED
ON NEXT PAGE
LETTER
OF CREDIT NUMBER
F851514 PAGE
NO. 2
CREDIT. DOCUMENTS
SHOULD BE SENT VIA HAND DELIVERY, AIRMAIL OR OVERNIGHT COURIER
SERVICE.
PARTIAL
DRAWINGS ARE PERMITTED.
THIS
CREDIT IS SUBJECT TO “UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY CREDITS (2007
REVISION), INTERNATIONAL CHAMBER OF COMMERCE PUBLICATIONS NO. 600.”
PLEASE
DIRECT ALL INQUIRIES TO:
PHONE: 000-000-0000
OPTION 3.
SINCERELY,
SUNTRUST
BANK
AUTHORIZED
SIGNATURE
105
BOC1\REALEST\223984.2
21991/0055
EXHIBIT
“I”
SCHEDULE OF MODEL HOMES AND
SPEC HOMES
PALOMA
Xxxx 0,
0, 0, 0, 00, 00, 00, 00, 64, and 76, of Block 1, according to the Plat of
Paloma, P.U.D. recorded in Plat Book 108, Page 144 of the Public Records of Palm
Beach County, Florida.
Lots 2,
3, 11, 13, 14, 15, 18, 19, 20, 21, 24, 129, 132, 133, 134, and 136 of Block 2,
according to the Plat of Paloma, P.U.D. recorded in Plat Book 108, Page 144 of
the Public Records of Palm Beach County, Florida.
TRES
BELLE
Lots 5,
29, 96, and 108 according to the Plat of Tres Belle P.U.D., Plat No. 1 recorded
in Plat Book 16, Page 4 of the Public Records of Xxxxxx County,
Florida.
THE OAKS AT HOBE
SOUND
Lots 63,
172, 202 and 203 according to the Plat of Pastelle P.U.D. recorded in Plat Book
16, Page 19 of the Public Records of Xxxxxx County, Florida.`
BOC1\REALEST\223984.2
21991/0055
EXHIBIT
“J”
INCOMPLETE MODEL HOMES AND
SPEC HOMES
PALOMA
Xxxx 0,
0, xxx 00 xx Xxxxx 1
Lots 20,
21, 24, 129, 132, 133, 134 and 136 of Block 2
TRES
BELLE
Lots 5
and 29
OAKS
Lots 172,
202 and 203
BOC1\REALEST\223984.2
21991/0055
EXHIBIT
“K”
BACKLOG
SCHEDULE
BOC1\REALEST\223984.2
21991/0055
M/I
HOMES OF WEST PALM BEACH, LLC
Work in
Progress/Budget/Cost To Complete Reconciliation
Job
Detail Report
December
26, 2007
|
Community
Parcel
Lot/Blk/Phase
|
Job
Number
|
House
Type
|
Square
Footage
|
Sales
Contract
Price
|
Xxxxxx
Acquisition
Price
|
Backlog Under
Construction
Paloma
50’
|
14
/ 1
|
255401001014
|
Xxxxx
|
2136
|
450,000
|
278,726
|
|
22
/ 1
|
255401001022
|
Navarra
|
2681
|
561,735
|
287,204
|
|
36
/ 1
|
255401001036
|
Navarra
|
2681
|
578,050
|
286,640
|
|
63
/ 1
|
255401001063
|
Sierra
|
3011
|
510,000
|
390,740
|
|
67
/ 1
|
255401001067
|
Xxxxxxx
|
2715
|
527,730
|
266,761
|
|
75
/ 1
|
255401001075
|
Navarra
|
2681
|
528,559
|
264,548
|
|
85
/ 1
|
255401001085
|
Sierra
|
3011
|
599,990
|
346,631
|
|
86
/ 1
|
255401001086
|
Cordoba
|
3546
|
650,000
|
358,858
|
|
88
/ 1
|
255401001088
|
Sierra
|
3011
|
650,000
|
354,407
|
|
89
/ 1
|
255401001089
|
Cordoba
|
3546
|
618,990
|
433,721
|
Paloma Grand
Carriage
|
5 /
2
|
255410002005
|
Granada
|
2213
|
325,491
|
236,791
|
|
6 /
2
|
255410002006
|
Madrid
|
2261
|
344,091
|
251,895
|
|
17
/ 2
|
255410002017
|
Granada
|
2213
|
345,000
|
237,561
|
|
22
/ 2
|
255410002022
|
Madrid
|
2261
|
406,545
|
228,570
|
|
23
/ 2
|
255410002023
|
Madrid
|
2261
|
369,990
|
231,043
|
|
95
/ 2
|
255410002095
|
Madrid
|
2261
|
367,073
|
240,339
|
|
130
/ 2
|
255410002130
|
Madrid
|
2261
|
379,990
|
217,282
|
|
131
/ 2
|
255410002131
|
Madrid
|
2261
|
379,990
|
217,282
|
|
135
/ 2
|
255410002135
|
Madrid
|
2261
|
438,906
|
235,760
|
The Oaks @ Hobe Sound
45’
|
88
|
255379000088
|
Catalina
|
2681
|
377,162
|
222,348
|
|
91
|
255379000091
|
Catalina
|
2681
|
398,427
|
236,659
|
|
97
|
255379000097
|
Catalina
|
2681
|
395,660
|
232,661
|
|
107
|
255379000107
|
Catalina
|
2681
|
397,637
|
233,734
|
|
131
|
255379000131
|
Laguna
|
2715
|
398,371
|
259,157
|
Laurel Preserve @ Hobe
Sound
|
211
|
255379000211
|
Sonoma
|
1675
|
280,019
|
176,864
|
|
216
|
255379000216
|
Sedona
|
2392
|
320,895
|
198,890
|
|
222
|
255379000222
|
Sonoma
|
1675
|
290,802
|
177,101
|
|
236
|
255379000236
|
Sedona
|
2392
|
317,936
|
199,229
|
The Oaks @ Hobe Sound
60’
|
61
|
255404000061
|
Whitney
|
3280
|
440,728
|
311,720
|
|
67
|
255404000067
|
Bayfield
|
2219
|
380,873
|
275,811
|
Total Backlog Under Construction 13,030,640 7,888,933
BOC1\REALEST\223984.2
21991/0055
M/I
HOMES OF WEST PALM BEACH, LLC
Work in
Progress/Budget/Cost To Complete Reconciliation
Job
Detail Report
December
26, 2007
|
Community
Parcel
Lot/Blk/Phase
|
Job
Number
|
House
Type
|
Square
Footage
|
Sales
Contract
Price
|
Xxxxxx
Acquisition
Price
|
Land
Only
Value
|
Backlog Not
Started
Paloma
50’
|
24
/ 1
|
255401001024
|
Cordoba
|
3546
|
694,040
|
327,430
|
77,000
|
The Oaks @ Hobe Sound
45’
|
32
|
255379000032
|
Catalina
|
2681
|
395,749
|
283,409
|
60,000
|
|
33
|
255379000033
|
Catalina
|
2681
|
395,895
|
283,508
|
60,000
|
|
84
|
255379000084
|
Gulfstar
B
|
1777
|
295,990
|
236,373
|
60,000
|
Laurel Preserve @ Hobe
Sound
|
224
|
255379000224
|
Sonoma
|
1675
|
269,990
|
169,098
|
60,000
|
|
232
|
255379000232
|
Sedona
|
2392
|
331,813
|
213,578
|
60,000
|
|
233
|
255379000233
|
Sedona
|
2392
|
309,990
|
198,848
|
60,000
|
Tres
Belle
|
43
/ 1
|
255409001043
|
San
Remo
|
2931
|
509,990
|
334,148
|
94,000
|
_________________________________
Total
Backlog Not
Started 3,203,457 2,046,392 531,000
BOC1\REALEST\223984.2
21991/0055
EXHIBIT
“N”
GUARANTY
In order
to induce Seller to execute deliver the foregoing Agreement for Purchase
and Sale (the “Agreement”), and for other
good and valuable considerations, the receipt and sufficiency of which are
hereby acknowledged, Xxxxxx Communities Florida LLC, a Florida limited liability
company (the “Guarantor”), hereby absolutely
and unconditionally guarantees to Seller, its successors and assigns, full and
prompt payment and performance by Purchaser of all obligations of Purchaser to
Seller under or pursuant to Paragraph 8 of the Agreement (the “Guaranteed
Obligations”). Guarantor acknowledges that Purchaser is an
Affiliate of Guarantor and that Guarantor therefore has received and will
receive valuable benefits as a result of the conveyance of the Real Property by
Seller to Purchaser.
Guarantor
hereby waives acceptance and notice of acceptance of this Guaranty, and notice
of non-payment, non-performance or non-observance, and all other notices, proofs
or demands, except for notice of Purchaser’s breach or failure to perform as
provided above, and any and all other suretyship defenses to enforcement of this
Guaranty. Guarantor agrees that its obligations hereunder will not be
terminated, affected or impaired by reason of the granting by Seller of any
indulgences to Purchaser or by reason of the assertion against Purchaser of any
of the rights or remedies reserved to Seller pursuant to the provisions of the
Agreement, or by the relief of Seller from any of the Purchaser's obligations
with respect to the Guaranteed Obligations, by operation of law or otherwise,
including, without limitation, rejection of the Guaranteed Obligations in a
bankruptcy proceeding. Guarantor further agrees that its liability
hereunder for the Guaranteed Obligations is and will be primary, and that in any
right of action which accrues to Seller with respect to the Guaranteed
Obligations, Seller may, at its option, proceed against the Guarantor and
Purchaser jointly or severally, and may proceed against Guarantor without having
commenced any action against or having obtained any judgment against
Purchaser. Failure of Seller to insist in any one or more instances
upon strict performance or observance of any of the terms, provisions, or
covenants of this Guaranty, or to exercise any right therein or herein
contained, will not be construed or deemed to be a waiver or relinquishment for
the future of such term, provision, covenant or right, but the same will
continue and remain in full force and effect. No assignment or other
transfer of the Agreement, or any interest therein, will operate to extinguish
or diminish the liability of Guarantor hereunder. If Seller obtains a
judgment against Guarantor by reason of a breach of this Guaranty, Guarantor
will pay the reasonable attorneys' fees and costs incurred in any collection or
attempted collection of the obligations hereby guaranteed or in enforcing this
Guaranty. If claim is ever made upon Seller for repayment or recovery of any
amount or amounts received in payment or on account of any of the Guaranteed
Obligations and Seller repays all or part of said amount by reason of (i) any
judgment, decree or order of any court or administrative body having
jurisdiction over Seller or any of its property or (ii) any settlement or
compromise of any such claim effected by Seller with any such claimant
(including Purchaser) then and in such event Guarantor agrees that any such
judgment, decree, order, settlement or compromise will be binding upon
Guarantor, notwithstanding any revocation hereof or other instrument evidencing
any liability of Purchaser, and Guarantor will be and remain liable to Seller
hereunder for the amount so repaid or recovered to the same extent as if such
amount had never originally been received by Seller. This Guaranty
will be binding upon and inure to the benefit of the parties and their
respective heirs, administrators, executors, successors and
assigns.
IN WITNESS WHEREOF, this Guaranty is
executed this ____ day of December, 2007.
Xxxxxx Communities Florida LLC, a
Floridalimited liability company
By:____________________________
Xxxxxx Xxxxxx, Manager
