SECOND AMENDMENT TO AGREEMENT OF PURCHASE AND SALE
SECOND AMENDMENT
TO
AGREEMENT OF PURCHASE AND SALE
This SECOND AMENDMENT
TO AGREEMENT OF
PURCHASE AND SALE (this “Amendment”) is executed this 21st day of
December,
2007, by and between LOUDOUN LAND VENTURE LLC, a Delaware limited liability
company (“Seller”), and NATIONAL RURAL UTILITIES COOPERATIVE FINANCE
CORPORATION, a District of Columbia cooperative association (“Purchaser”).
RECITALS:
X-x Purchaser and
Seller have entered
into an Agreement of Purchase and Sale dated November 28, 2007 as amended
by
First Amendment to Agreement of Purchase and Sale dated December 17, 2007
(the “Contract”), pursuant to which Seller agreed to sell to Purchaser and
Purchaser agreed to purchase from Seller that certain parcel of real property
located in Loudoun County, Commonwealth of Virginia, consisting of approximately
27.6177 acres of land, as more particularly described in such Contract (the
“Property”);
R-2 The due diligence
period under the
Contract expires on December 21, 2007 at 5:00 PM EST;
R-3 It is the intent
of Seller and
Purchaser to amend the Contract to, among other things, include certain
additional conditions to Closing, and to establish Seller’s and Purchaser’s
respective rights and obligations with respect to such conditions.
WITNESSTH:
NOW, THEREFORE,
in consideration of Ten
Dollars ($10.00) in hand paid, the mutual covenants and responsibilities
reflected herein, the premises herein contained and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the
undersigned parties hereby agree as follows:
1. Terminology.
All
capitalized terms not otherwise defined herein shall have the meanings given
them in the Contract
2. Incorporation
of
Recitals. The recitals set forth above are incorporated herein as if set
forth at length.
3. Amendments.
a.
Section 3 of the Contract is hereby amended by modifying the Purchase Price
to Sixteen Million and No/100 Dollars ($16,000,000.00).
b. Title:
(i)
That certain Sanitary Sewer Easement and Cost Sharing Agreement dated
September 14, 2004 and recorded as Instrument No. 20041007-0108681,
among the land
records
of Loudoun County, Virginia (the “Cost Sharing Agreement”) provides for the
payment to Xxxxxxxx Loudoun Station, L.C. (“Xxxxxxxx”) of a sum equal to 12.7%
of the cost of engineering, construction, permitting, bonding, land/easement
acquisition and associated fees for the construction of certain Facilities
(as
defined in the Cost Sharing Agreement). It is the understanding of Seller
and
Purchaser that such Facilities have been constructed. As contemplated in
Section 18 of that certain Contract between Reliance Insurance Company as
Seller and TC MidAtlantic Development, Inc (as subsequently assigned to TC
Epicenter, LLC) as Purchaser dated February 8, 2005 (the “Reliance
Contract”), the sum due to Xxxxxxxx from the Property under the Cost Sharing
Agreement was fixed at an amount equal to 5.1% of the total costs of the
Facilities with a maximum reimbursement of $130,650.00. Unless on or before
Closing, Seller provides a certificate executed by Xxxxxxxx in recordable
form
that the payment required from the Property under the Cost Sharing Agreement
has
been made then the Purchase Price shall be reduced by $130,650.00 and Purchaser
shall release Seller from all obligation for any payment due from the owner
of
the Property under or pursuant to the Cost Sharing Agreement.
(ii) That
certain Access, Easement and Maintenance Agreement dated September 28,
1993, recorded in Deed Book 1256, at Page 277, among the land records of
Loudoun
County, Virginia created an access easement that bisects the Property.
Purchaser’s title company has agreed not to take exception to such access
easement if Seller executes an affidavit in recordable form affirming to
the
best of its knowledge that such easement has terminated in accordance with
its
terms. Seller hereby agrees to execute such an affidavit in form and substance
satisfactory to Seller, containing no indemnification and limited to the
best of
Seller’s knowledge. In the event Seller and Purchaser’s title company are unable
to agree on the form of such affidavit, the same shall not be deemed a failed
condition to closing and Purchaser shall irrespective thereof be obligated
to
proceed with Settlement.
(iii) That
certain Easement Agreement dated December 11, 1997 between Xxxxxx and Xxxxx
at Xxxxxx Parkway Center, L.L.C. and Reliance Insurance Company purports
to
grant to Xxxxxx and Xxxxx certain easements over the Reliance Property (as
defined in such agreement) generally in the area defined in such agreement
as
“Xxxxxx and Xxxxx Easement Areas”. The Xxxxxx and Xxxxx Easement Areas are
described as shown on a plat that is not attached to such agreement. Seller
shall use good faith efforts to obtain from Xxxxxx and Xxxxx and deliver
to
Purchaser prior to closing an estoppel certificate in recordable form (and
in a
form to be supplied by Purchaser) confirming that such easement agreement
does
not encumber the Property; provided the same shall under no circumstances
be
deemed a condition precedent to closing under the Contract.
c. As
contemplated in Section 10(vi) of the Contract, all required off-site
easements or off-site right-of-way necessary for the construction of Purchaser’s
Improvements including with respect to the Xxxxxxxxx Road Improvements (as
defined herein) are to be recorded prior to Closing. Such condition is amended
to provide that Seller shall obtain and record in the land records of Loudoun
County an executed “Agreement to Cooperate” from each party for which an offsite
easement or right-of-way is required in order to construct the Xxxxxxxxx
Road
Improvements which agreements shall be in the form attached hereto as Exhibit D except
such agreements shall also be executed by any trustees and lenders under
any
deeds of
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trusts encumbering
the
property of such off-site owners. A list of the plats depicting the off-site
easements and right-of-way known to be required to date for such Xxxxxxxxx
Road
Improvements is set forth on Exhibit A
attached hereto and incorporated herein by reference. Any costs associated
with
the acquisition of such off-site right-of-way and easements including any
payment to, or construction for the benefit of, the party granting such
right-of-way or easement shall be paid by Seller.
d.
Section 13 of the Contract contemplated that Purchaser would be seeking
certain written confirmation from Loudoun County of what Proffers were the
obligation of the Property, including what Proffers must be performed to
develop
the Property with the Purchaser’s Improvements. A copy of the written
confirmation that Purchaser shall submit is set forth as Exhibit B
attached hereto and incorporated herein by reference. Receipt of such written
confirmation shall not be deemed a condition precedent to Settlement hereunder.
x. Xxxxxxxxx
Road
Construction. Seller shall, during the pendency of the Contract, at its
sole cost and expense, and MidAtlantic Realty Partners, LLC (“MRP”), shall,
subsequent to Closing, at its sole cost and expense, diligently and continuously
pursue the approval of the Xxxxxxxxx Road Improvements along the Property’s
entire frontage including obtaining any required wetlands permit required
in
connection with the CPAP (as defined below) (the “Xxxxxxxxx Road Improvements”)
as such improvements are shown on those Construction Plans and Profiles XXXX
0000-0000 prepared by Urban Engineering & Associates dated December 11,
2007 and as ultimately approved by Loudoun County, Virginia (“Xxxxxxxxx Road
CPAP”). In addition to obtaining the approval of the Xxxxxxxxx Road CPAP, Seller
(prior to Closing) and MRP (subsequent to Closing) shall diligently and
continuously pursue obtaining the approval of the flood plain alteration
study
prepared by Urban Engineering & Associates dated September 24, 2007
(County Reference No. XXXX 0000-0000) and associated easements (the “Flood
Plain Alteration”) which easement (or in lieu thereof Agreements to Cooperate)
shall be part of the agreements to be obtained prior to Closing pursuant
to
Section 3.c. hereof. Purchaser’s sole responsibility with respect to
obtaining the approval of the Xxxxxxxxx Road CPAP and the Flood Plain Alteration
shall be to post the bonds required by Loudoun County and the Virginia
Department of Transportation with respect to the same. Within thirty
(30) days of the Xxxxxxxxx Road CPAP being approved by Loudoun County,
subject only to the posting of such bonds, and Purchaser being given written
notice of the same by Seller, Purchaser shall give MRP written notice (at
the
address set forth on the signature page hereof) of whether it desires to
have
MRP construct the Xxxxxxxxx Road Improvements shown thereon, which improvements
shall include any required utility relocations associated with the Xxxxxxxxx
Road Improvements. If Purchaser elects to have MRP construct the Xxxxxxxxx
Road
Improvements, MRP shall commence such improvements within thirty (30) days
of Purchaser’s notice to proceed (but not later than 60 days subsequent to
the approval of the Xxxxxxxxx Road CPAP) and shall diligently and continuously
pursue such construction to “Completion”. Completion shall be defined as the
acceptance of such road by the Virginia Department of Transportation for
maintenance and the release of all bonds posted with Loudoun County and the
Virginia Department of Transportation with respect to such improvements.
Purchaser shall pay to MRP the sum of One Million Five Hundred Thousand and
No/100 Dollars ($1,500,000.00) in payment of MRP’s construction of the Xxxxxxxxx
Road Improvements. Such funds shall be disbursed by Purchaser to MRP based
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on monthly draws
on a
standard AIA form draw request, including lien waivers from the contractors
and
subcontractors performing the work and satisfactory inspections by a third
party
engineer reasonably acceptable to Purchaser and MRP that the work for such
draw
is requested has been completed in accordance with the approved plans therefore.
Any cost incurred in the construction of Xxxxxxxxx Road Improvements in excess
of the sum of One Million Five Hundred Thousand and No/100 Dollars
($1,500,000.00) shall be paid by MRP. Any portion of the $1,500,000 which
has
not been previously funded to MRP shall be paid to MRP within ten (10) days
of Completion.
f.
Pursuant to Proffer IX.F of the Proffers, “In the event that any one or more of
the individual roadway improvements proffered by the Applicant is substantially
performed by others prior to bonding for such construction by the Applicant,
the
actual paid and reasonable construction costs of such individual improvements
shall be contributed by the Applicant to the County in lieu of Applicant’s
construction obligation.” Figure I in Exhibit C to the Proffers, which
includes the Property indicates that, as a part of the development of the
Property, Xxxxx 000 xxxxxxxxx xx Xxxxxxxxx Xxxx was to be constructed by
the
owner of the Property as four lanes of a six lane divided roadway. Such road
construction was performed by others thereby potentially triggering the cash
in
lieu of construction proffer set forth in Proffer IX.F. Seller agrees to
escrow
at closing the sum of $326,550.15 (the “Loudoun County Parkway Extension
Escrow”). If (i) at the time of site plan approval for the Purchaser’s
Improvements Loudoun County has not as part of such site plan approval required
the payment of the cash in lieu of the Loudoun County Parkway Extension,
and
(ii) in response to the Purchaser’s Proffer interpretation (but not later
than such site plan approval), Loudoun County has indicated that the owner
of
Property is not responsible for paying the cash in lieu of construction proffer
for the Loudoun County Parkway Extension, then such escrow funds shall be
released to the Seller. On the other hand, if at the time of such site plan
approval or receipt of the proffer interpretation from Loudoun County (but
not
later than site plan approval), whichever occurs later, Loudoun County has
indicated that the owner of the Property is responsible for the cash in lieu
of
construction proffer associated with such Loudoun County Parkway Extension,
then
the escrow funds shall be released to Purchaser up to the amount required
to be
paid by Purchaser to Loudoun County with any balance to be paid to Seller.
In
consideration of the foregoing, Purchaser covenants and agrees that it shall
continue to prosecute to completion (or until the County has indicated pursuant
to the preceding sentence that such cash in lieu payment is due) at its cost
and
expense, approval of the site plan in the form as previously submitted for
the
Property by Seller, which prosecution shall be diligent, in good faith and
without interruption. Notwithstanding the foregoing, in the event Loudoun
County
determines that the owner of the Property is responsible for the entirety
of the
cash in lieu of construction proffer associated with such Loudoun County
Parkway
Extension (as opposed to a pro rata portion thereof) Seller shall have the
right
to appeal such determination and each of Purchaser and Seller acknowledge
and
agree that Seller may retain Xxxxx X. Xxxxxx for purposes of prosecuting
such
negotiation and appeal; with any refund of the amount so paid being the sole
property of Seller.
g.
Section 18 and 19(h) of the Contract are modified to permit Purchaser to
make any disclosures required by applicable law, court order or governmental
authority, including, but not limited to, any disclosures required to be
made by
the Securities Exchange Commission as part of any periodic filing requirement.
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4. Full
Force and
Effect. Except as modified herein, all of the provisions of the Contract
shall remain in full force and effect as originally written.
5. Counterpart
Execution. This Amendment may be executed in multiple counterparts, all
of which when taken together shall constitute one original.
IN WITNESS WHEREOF,
the parties hereto
have executed or have caused to be executed under seal this Amendment as
of the
day and year first above written,
SELLER:
LOUDOUN LAND VENTURE, LLC, a Delaware limited liability company
|
||||
By: | Cornerstone Real Estate Advisers LLC, | |||
its manager | ||||
By: | /s/ Xxxxx X. Xxxxx | |||
Name: | Xxxxx X. Xxxxx | |||
Title: | Vice President |
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PURCHASER: NATIONAL RURAL UTILITIES COOPERATIVE FINANCE CORPORATION, a District of Columbia cooperative association |
||||
By: | /s/ Xxxx X. Xxxxx | |||
Name: | Xxxx X. Xxxxx | |||
Title: | Senior Vice President |
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MidAtlantic
Realty Partners, LLC joins in the execution hereof for the purposes of
evidencing its agreement to pursue the approvals and easements and to construct
the Xxxxxxxxx Road Improvements as set forth in Section 3(e) hereof.
MIDATLANTIC REALTY PARTNERS,
LLC, a
Virginia limited, liability company |
||||
By: | /s/ Xxxxxx X. Xxxxxx | |||
Name: | Xxxxxx X. Xxxxxx | |||
Title: | Authorized Member | |||
Address For Notices
to
MRP:
MidAtlantic Realty
Partners, LLC
0000 00xx Xxxxxx, XX
Xxxxx 000
Xxxxxxxxxx, XX 00000
Attn: X. Xxxxxxx Saas
0000 00xx Xxxxxx, XX
Xxxxx 000
Xxxxxxxxxx, XX 00000
Attn: X. Xxxxxxx Saas
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Exhibit B
Form of Proffer
Interpretation Request
December 7, 2007
Ms. Xxxxx
Xxxxx
Xxxxxxx Manager
Department of Building & Development
Zoning Administration
0 Xxxxxxxx Xxxxxx, X.X., 0xx Xxxxx
Xxxxxxxx, XX 00000
Xxxxxxx Manager
Department of Building & Development
Zoning Administration
0 Xxxxxxxx Xxxxxx, X.X., 0xx Xxxxx
Xxxxxxxx, XX 00000
Re: Loudoun
Parkway Center; ZMAP 1990-0015
Dear Xxxxx:
I. | BACKGROUND |
As a follow-up
to our meeting of
November 29, 2007, with you and Xxxxxxx, we represent National Rural
Utilities Cooperative Finance Corporation (“CFC”) which is contemplating
relocating its corporate headquarters from Fairfax County to Loudoun County
and
specifically to that portion of Loudoun Parkway Center known as Land Bay
M. On
February 3, 1993, the Loudoun County Board of Supervisors approved ZMAP
1990-0015 for Loudoun Parkway Center subject to the Proffer Statement dated
December 11, 1992 and the letter of clarification dated February 2,
1993. A copy of the Copy Teste and Proffers with the letter of clarification
are
enclosed as Tab A. Additionally, by Proffer Determination dated
September 13, 2006, you clarified certain matters with respect to the
phasing of the construction of Route 643, also known as Xxxxxxxxx Road. A
copy
of such Proffer Determination is attached as Tab B.
II. | PURPOSE |
Loudoun Parkway
Center was originally
conceived as a large planned community, the development of which would be
overseen by Reliance Insurance Company as a master developer. Reliance
experienced financial difficulty and the ownership of the project has been
splintered into several different owners. The purpose of this request is
to
determine (i) what proffers must be complied with in order to obtain permits
for
the development and use of Land
11
Bay M and
(ii) what proffers could potentially restrict the development of Land Bay
M, in both cases for development, at an FAR of 0.5 for PD-OP uses (subject
to
the entire PD-OP portions of the project not exceed an FAR of 0.4).
III. | DETERMINATION REQUEST |
In contemplation
of its potential
acquisition of Land Bay M, CFC would request your determination with respect
to
the following matters:
1. Proffer IX.A. provides,
among
other things that
“Consistent
with the Concept Plan,
the Applicant shall construct or bond for the construction the four lanes
of
on-site roads prior to final approval of any subdivision or site plan in
the
project that is projected to cause any on-site road to reach 8,000 vehicle
trips
per day based on the trip generation rate established by the ITE Trip Generation
Manual, 5th edition, and as agreed to by the County and the
Applicant”.
As we discussed,
it is our
understanding of this proffer that it is intended to provide that if a
particular road exceeds 8,000 vehicle trips per day, then that particular
road
must be four laned prior to the approval of the subdivision or site plan
that
would result in that particular road exceeding 8,000 vehicle trips per day.
We
do not read this language to contemplate that if any on-site road reaches
8,000
vehicle trips per day then all the on-site roads must be four laned. Please
confirm our understanding is
correct (“Request Number 1”).
Additionally, please
confirm that the
development of Land Bay M at an FAR of 0.5 for a total gross floor area of
590,238 of PD-OP uses in conjunction with any other existing development
in
Loudoun Parkway Center will not require that the owner of Land Bay M four
lane
any other road other than Xxxxxxxxx Road from the eastern boundary of Land
Bay M
to its intersection with Loudoun County Parkway, i.e.,
please confirm that our
development will not be deemed “to cause any on-site road to reach 8,000 vehicle
trips per day” other then on-site roads that have already been “four
laned" other
than Xxxxxxxxx Road to the eastern
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boundary
of Land Bay M (“Request Number 2”).
Attached as Tab C is an annotated version of Exhibit C to the Proffers
which shows which roads have been four-laned.
2. Additionally, Proffer
IX.B.
provides:
“The
Applicant’s development
utilizing on-site linkages only shall generate no more than 20,000 average
daily
trips as determined by reference to the ITE Trip Generation Manual, 5th edition,
and as agreed upon by the County and Applicant”.
This
Proffer further provides that:
“No
zoning permits shall be issued
for development on the Property which generates more than 20,000 average
daily
trips . . . unless off-site roadway links are in place sufficient to accommodate
the ADT’s generated by development based upon the ADT increments shown on such
figures, and provided further that each such off-site link is connected to
an
appropriate on-site roadway link as well as to the point of off-site terminus
set forth on Exhibit C”.
This in
essence creates a bank of average daily trips against which the Loudoun Parkway
Center’s development must be phased. Based on your follow-up e-mail to me, we
should use the 7th
edition of the ITE Trip Generation Manual in calculating how many average
daily
trips are currently generated by Loudoun Parkway Center. The annotated version
of Exhibit C of the Proffers attached as Tab C shows that a total of 37,400
average daily trips are available to Loudoun Parkway Center. Please
confirm that you agree with
this number (“Request Number 3”). Assuming you agree that there a
total of 37,400 average daily trips available to Loudoun Parkway Center,
the
number of average daily trips that are currently in the “bank” against which the
owner of Land Bay M must make sure that its development does not generate
average daily trips in excess of equals 37,400 less the number of trips
generated by the existing development at Loudoun Parkway Center (which at
this
point is just the residential development). For example, if the current average
daily trips generated by
13
the Loudoun Parkway
Center project is 11,000, then based on the current status of the on and
off-site road improvements the number of trips available to Land Bay M would
be
37,400 - 11,000=26,400. Additionally,
please confirm that
upon obtaining site plan approval for Land Bay M, such Land Bay shall be
deemed
to have been allocated a number of average daily trips from the “Bank”
sufficient to accommodate the development shown on such site plan, i.e.,
Land
Bay M will be vested in the development shown on the site plan for so long
as
such site plan remains valid (“Request Number 4”).
3. Proffer IX.F. provides
that
“In
the event that any one or more
of the individual roadway improvements proffered by the Applicant herein
is
substantially performed by others prior to bonding for such construction
by the
Applicant, the actual paid and reasonable construction costs of such individual
improvements shall be contributed by the Applicant to the County in lieu
of the
Applicant’s construction obligation. Such contributions in lieu of actual
construction shall occur at the time specified in the applicable Proffer
for
construction or bonding of a specific improvement and shall be used for off-site
roadway improvements in the vicinity and for the benefit of the Property
... ”
The annotated version
of Exhibit C
to the Proffers (attached as Tab C) shows which of the “on-site” proffered road
improvements might have been constructed by others. Please
confirm that if the County
seeks a cash contribution for any of these improvements it will do so pro
rata
from all the owners within Loudoun Parkway Center (including the residential)
not just one particular owner (“Request Number 5”). CFC
has no objection to
paying a pro rata share for such road improvements but would not want to
pay the
entire amount as a condition of a plan approval or permit, i.e. there should
be
no selective enforcement.
4. Proffer XI requires
the
creation of a Lot Owners Association. A now defunct former owner/developer
of
Loudoun Parkway Center had created an association, however, Land
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Bay M was never
subjected to such association and such association is inactive to the best
of
our knowledge. Proffer 11 provides that:
“Lots
proposed to be, or which are
in fact apart of the lot Owners Association may be withdrawn and made a part
of
another Lot Owners Association “.
Again, Land Bay
M was never made a part
of the Lot Owners Association created by the defunct developer, but
please confirm that the owner of
Land Bay M may establish a separate Lot Owners Association for Land Bay M
and be
in compliance with Xxxxxxx XXX (“Request
Number 6”).
Should you have
any questions
concerning the above, please call me.
Very truly yours, Xxxxxxxx X. Xxxxxxxx |
BFT/der
Enclosures
15
Exhibit D
Form of Agreement
to
Cooperate
(To Be Modified To Include Trustees and
Lenders Under Any Deeds Of Trust)
(To Be Modified To Include Trustees and
Lenders Under Any Deeds Of Trust)
AGREEMENT
TO
COOPERATE
This Agreement
(“Agreement”)
is
executed this
___ day of ___, 2007 among XXXXXX XXXXX
and XXXXXXX XXXXX,
their
successors and assigns
(hereinafter collectively referred to as the “Owners”) ; and LOUDOUN
LAND VENTURE
LLC, a
Delaware limited liability company, its successors and assigns (hereinafter
referred to as “LLV”).
RECITALS:
A. The Owners are
the owners and
proprietors of certain real property located in Loudoun County, Virginia,
identified as Loudoun County Tax Parcel Identification Number (PIN)
062-25-7314-000, containing approximately 20.0000 acres of land, more or
less
(the “Property”), which
Property is more particularly shown and depicted on that certain plat numbered
R.P. #12247-3, dated November, 2007, entitled “Plat Showing Street Dedication
&Various
Easements on the Property of
XXXXXX & XXXXXXX XXXXX,” prepared by Urban, Ltd., of Chantilly,
Virginia, and attached hereto as “Exhibit A”
and incorporated herein by reference, (the “Plat”).
B. LLV is the owner
and proprietor
of certain real property located in Loudoun County, Virginia, identified
and
known to the parties hereto as Loudoun County Tax Map Parcel Identification
Number (PIN) 090-48-5422-000, containing approximately 27.6177 acres of
land, more or less (the “LLV
Property”).
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C. LLV is in the process
of
developing the LLV Property and will be constructing certain road and
infrastructure improvements adjacent to the Owners’ Property, which may include,
without limitation, clearing and grading improvements, construction of road
improvements, and construction and extension of utilities and storm drainage
facilities, including sewer and/or water facilities, and the dedication of
public street right-of-way and/or easements, which improvements, facilities
and
dedications shall hereinafter to referred to collectively as the “Facilities.”
D. The general location
of the
Facilities to be installed on the Owners’ Property are more particularly
depicted on Exhibit A.
E. The parties agree
that
installation of the Facilities upon the Owners’ Property will be mutually
beneficial to both the Owners and LLV.
F. The Owners have
agreed to
dedicate roads and to grant easements permitting the installation, construction,
repair and replacement of the Facilities, or to such public agency or provider
of services as LLV directs.
AGREEMENT:
NOW, THEREFORE,
in consideration of the
facts reflected by the foregoing recitations, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged
as
evidenced by the signatures of the parties hereto, under seal,
the parties
hereby agree as follows:
1. The foregoing recitations,
Exhibit A and Exhibit B, as defined herein below, are a material part
of this Agreement and are incorporated herein by this reference.
2. The Owners shall,
within fifteen
(15) calendar days following submission by LLV, execute such reasonable
applications, easements, deeds, plats, licenses, or other
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instruments presented
by LLV to support the creation, establishment, grant, construction and/or
use of
the Facilities over, under and/or upon the Owners’ Property. The Owners agree to
exercise good faith efforts to secure any required lender and Trustee consents,
subordinations and releases for all dedications and/or easements needed for
construction of the Facilities on the Owners’ Property.
3. An easement, dedication,
and/or
facility to be established shall be deemed reasonable if located substantially
within the area(s) depicted on Exhibit A. A deed, plat and/or other
instrument shall be deemed reasonable if it is consistent with forms approved
by
the applicable governmental agencies or providers of public services. A draft
form of the Deed for the dedication/conveyance of right-of-way and/or easements
for the Facilities is attached hereto and incorporated herein as “Exhibit B,”
which
shall be subject to
any changes required for approval of governmental agencies and/or providers
of
public services.
4. The Owners further
agree to
continue to cooperate with LLV in connection with the planned development
of
LLV’s Property, including the grant and conveyance of currently unanticipated
easements, provided that such easements do not materially interfere with
the
Owners’ intended use of the Property and that there is no cost or expense
incurred by the Owners in such cooperation.
5. The Owners shall
provide reasonable
cooperation in the creation, establishment, dedication, grading and construction
of the Facilities, which cooperation shall include, but not be limited to,
the
vacation and/or relocation of all or a portion of the public street
right-of-way(s) and/or easement(s) as necessary for the dedication, grading
and
construction of the Facilities, further including but not limited to, those
referred to herein.
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6. This Agreement
is intended to
be recorded among the land records of Loudoun County, Virginia, and shall
be for
the benefit of the parties and their successors and assigns in title, and
the
owner or owners of all or any portion of LLV’s Property and their heirs,
successors and assigns in title, and shall burden the Owners’ Property and the
owner or owners of all or any portion thereof and their successors and assigns
in title. This Agreement shall automatically become null and void at such
time
as construction of the Facilities is complete and all bonds for construction
of
the Facilities have been release by the applicable governmental agencies
and/or
providers of public services. Upon termination of this Agreement, upon request
by either the Owners or LLV, the parties hereto mutually agree to execute
a
recordable confirmation of termination of this Agreement.
7. This Agreement
shall be
construed in accordance with the laws of the Commonwealth of Virginia.
8. If any term, covenant,
or
condition of this Agreement or the application thereof to any person or
circumstance shall to any extent be invalid or unenforceable, then the remainder
of this Agreement or the application of such term, covenant or condition
to any
other person or circumstance shall not be affected thereby, and each such
term,
covenant and condition shall be valid and enforceable to the fullest extent
permitted by law.
9. This Agreement
may be signed in
two or more counterparts, each of which shall be deemed an original and all
of
which together shall constitute one and the same instrument.
10. In the event
the Owners breach this
Agreement, LLV shall be entitled to specific performance, which shall further
include the right to collect costs of enforcement, including, without
limitation, attorney’s fees. In addition to the foregoing, LLV shall have a
limited power of attorney for the sole and specific purpose of granting any
reasonable easements which the
23
Owners refuse to
execute. This power of attorney shall be irrevocable but shall be limited
to the
purposes set forth in this Agreement.
WITNESS the following
signatures and
seals:
[SIGNATURE PAGES
FOLLOW]
24
OWNERS: |
||||
(SEAL) | ||||
XXXXXX XXXXX | ||||
(SEAL) | ||||
XXXXXXX XXXXX | ||||
STATE/COMMONWEALTH
OF
,
CITY/COUNTY OF , to wit:
CITY/COUNTY OF , to wit:
I, the undersigned
Notary Public, in
and for the jurisdiction aforesaid, do hereby certify that XXXXXX XXXXX,
whose
name is signed to the foregoing Agreement, appeared before me and personally
acknowledged the same in my jurisdiction aforesaid.
GIVEN under my
hand and seal this day
of
,
2007.
My Commission
expires:
|
||
|
||
|
|
STATE/COMMONWEALTH
OF
,
CITY/COUNTY OF , to wit:
CITY/COUNTY OF , to wit:
I, the undersigned
Notary Public, in
and for the jurisdiction aforesaid, do hereby certify that XXXXXXX XXXXX,
whose
name is signed to the foregoing Agreement, appeared before me and personally
acknowledged the same in my jurisdiction aforesaid.
GIVEN under my
hand and seal this
day of
,
2007.
My Commission
expires:
|
||
|
||
|
|
25
LOUDOUN LAND VENTURE LLC, a Delaware
limited liability company
|
||||
By: | (SEAL) | |||
Name: | ||||
Title: | ||||
STATE/COMMONWEALTH
OF
,
CITY/COUNTY OF , to wit:
CITY/COUNTY OF , to wit:
I, the undersigned
Notary Public, in
and for the jurisdiction aforesaid, do hereby certify that ,
as
of LOUDOUN LAND VENTURE LLC, whose name is signed to the foregoing Agreement,
appeared before me and personally acknowledged the same in my jurisdiction
aforesaid.
GIVEN under my
hand and seal this
day of ,
2007.
My Commission
expires:
|
||
|
||
|
|
26
TRUSTEES
CONSENT AND
SUBORDINATION
The undersigned
Trustees, at the request of the Beneficiary as evidenced hereinafter, join
in,
without liability or obligation, for the sole purpose of subordinating the
lien
of the Deed of Trust, as described hereinafter in the Consent of Beneficiary
to
Agreement to Cooperate, to the terms and conditions of said Agreement to
Cooperate, dated ,
2007, and further to evidence its agreement to subordinate the lien of the
Deed
of Trust to the easement and/or dedications referenced hereinto.
TRUSTEES: (either of whom may act) |
||||
(SEAL) | ||||
XXXXXX X. XXXXX, TRUSTEE | ||||
(SEAL) | ||||
XXXX X. TITLE, TRUSTEE | ||||
COMMONWEALTH/STATE
OF
,
CITY/COUNTY OF , to wit:
CITY/COUNTY OF , to wit:
I, the undersigned
Notary Public, in
and for the jurisdiction aforesaid, do hereby certify that XXXXXX X. XXXXX,
TRUSTEE, whose name is signed to the foregoing Trustees Consent and
Subordination, appeared before me and personally acknowledged the same in
my
jurisdiction aforesaid.
GIVEN under my
hand and seal this
day of
,
2007.
My commission
expires:
|
||
|
||
|
|
COMMONWEALTH/STATE
OF
CITY/COUNTY OF , to wit:
CITY/COUNTY OF , to wit:
I, the undersigned
Notary Public, in
and for the jurisdiction aforesaid, do hereby certify that XXXX X. TITLE,
TRUSTEE, whose name is signed to the foregoing Trustees Consent and
Subordination, appeared before me and personally acknowledged the same in
my
jurisdiction aforesaid.
GIVEN under my
hand and seal this
day of
2007.
My commission
expires:
|
||
|
||
|
|
27
CONSENT
OF BENEFICIARY TO
AGREEMENT TO COOPERATE
The undersigned,
as beneficiary
(“Beneficiary”) under that certain Deed of Trust, dated November 11, 2004,
and recorded among the land records of Loudoun County, Virginia (“Land
Records”), as Instrument Number 20041115-0121182, as modified by Allonge and
Modification Agreements recorded as Instrument Numbers 20060501-0038482,
20060929-0083657 and 20070629-0049437, among the Land Records (collectively,
the
“Deed of Trust”), hereby consents and agrees to the execution and recordation of
the foregoing Agreement to Cooperate, dated ,
2007 (the “Agreement”), and the subordination of the lien of the Deed of Trust
to the terms and conditions of the Agreement, and for such purposes hereby
directs the Trustees under the Deed of Trust to join in the execution and
delivery of the Agreement.
BENEFICIARY VIRGINIA COMMERCE BANK |
||||
By: | ||||
Name: | ||||
Title: | ||||
STATE/COMMONWEALTH
OF
CITY/COUNTY OF , to wit:
CITY/COUNTY OF , to wit:
I, the undersigned
Notary Public, in
and for the jurisdiction aforesaid, do hereby certify that
as
of the VIRGINIA COMMERCE BANK, BENEFICIARY, whose name is signed to the
foregoing Consent of Beneficiary to Agreement to Cooperate, appeared before
me
and personally acknowledged the same in my jurisdiction aforesaid.
GIVEN under my
hand and seal this
day of
, 2007.
My Commission
expires:
|
||
|
||
|
|
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