EX-10.1 2 d561583dex101.htm PURCHASE AND SALE AGREEMENT PURCHASE AND SALE AGREEMENT
Exhibit 10.1
THIS PURCHASE AND SALE AGREEMENT is made and entered into as of 5th day of March, 2012 (the “Effective Date”), by and between Boulevard Forest & Trees LLC, a North Carolina limited liability company ("Seller"), and Bainbridge Communities Acquisition I, LLC, a Florida limited liability company ("Buyer"). Seller and Buyer are sometimes referred to herein as the “Parties.”
1. Definitions. The following terms shall have the following meanings when used in this Agreement:
"Agreement" shall mean this Purchase and Sale Agreement, including all exhibits attached hereto.
"Broker" has the meaning set forth in Section 11.1.
"Business Day" shall mean a day other than a Saturday, Sunday or day on which banking institutions in the City of Durham, State of North Carolina are authorized or required by law or executive order to be closed.
"Buyer's Objections" has the meaning set forth in Section 5.1.
"Cash" shall mean United States currency represented by cash in hand or federally insured wire transfer.
"City Approvals" has the meaning set forth in Section 5.8.
"Closing" or "Close of Escrow" shall mean the consummation of the Transaction, as evidenced by the delivery of all required funds and documents to Escrow Agent, Buyer, or Seller as the case may be.
"Closing Date" shall mean 60 days from the date of Buyer's receipt of the City Approvals, provided however that in no event shall the Closing Date be later than December 31, 2012, unless extended pursuant to Section 6.1.
“Xxxxxxxx Property” has the meaning set forth in the Option Agreement.
"Xxxxxxx Money Deposit" shall collectively mean the Initial Xxxxxxx Money Deposit, the Second Xxxxxxx Money Deposit, the Extension Fees and all accrued interest thereon.
"Escrow" shall mean the escrow created pursuant to this Agreement.
"Escrow Agent" shall mean First American Title Insurance Company.
“Extension Fees” has the meaning set forth in Section 6.1.
"Initial Xxxxxxx Money Deposit" has the meaning set forth in Section 3.1.
“Initial Option Payment” has the meaning set forth in the Option Agreement.
"Inspection" has the meaning set forth in Section 5.5.
"Inspection Period" has the meaning set forth in Section 5.6.
“Inspection Reports” has the meaning set forth in Section 5.5(b).
“Option Agreement” shall mean the Option Agreement to be executed and delivered by J. Xxxxxxx Xxxxxxxx, Trustee of The J. Xxxxxxx Xxxxxxxx Living Trust Dated January 26, 2007, Marc Xxxxx Xxxxxxxx, Xxxxxxx Xxxxx Xxxxxxx and Boulevard Properties LLLP (collectively, “Grantor”) and Buyer at Closing in the form attached hereto as Exhibit E.
"Permitted Exceptions" shall mean all matters affecting title to the Property approved, deemed approved or waived by Buyer in accordance with Sections 5.1, 5.2 and 5.3.
"Personal Property" shall mean all of Seller's right, title and interest, if any, in and to (i) all land use or other consents, authorizations, variances, waivers, licenses, permits and other approvals issued by any governmental or quasi-governmental authority pertaining solely to the Property; (ii) all entitlements, plans and specifications, engineering and other reports and surveys pertaining solely to the Property; and (iii) all other items of tangible and intangible personal property used solely in connection with the Property.
"Property" shall mean the real property owned by Seller and located in Durham, North Carolina, which is generally depicted on Exhibit A attached hereto, together with all right, title and interest, if any, of Seller in and to all strips and gores and any land lying in the bed of any street, road or avenue, opened or proposed, in front of or adjoining the Property, and all easements, rights-of-way, privileges, licenses, and all appurtenances thereto. At such time as the property depicted in Exhibit A is subdivided pursuant to the terms of this Agreement, and a subdivision plat (“Plat”) is recorded effectuating such subdivision, the legal description of the Property as set forth in the Plat shall be substituted in place of the depiction attached hereto as Exhibit “A” and shall be the description of the Property conveyed to Buyer as part of the Closing.
"Purchase Price" shall mean the total purchase price to be paid by Buyer for the Property, as set forth in Section 3.
"Second Xxxxxxx Money Deposit" has the meaning set forth in Section 3.2.
“Seller’s Affiliates” shall collectively mean (i) BP Phase2 LLC, (ii) Boulevard Properties LLLP, (iii) LH Boulevard LLC, (iv) Barnyard LLC, (v) J. Xxxxxxx Xxxxxxxx, Trustee of The J. Xxxxxxx Xxxxxxxx Living Trust Dated January 26, 2007, (vi) Marc Xxxxx Xxxxxxxx, (vii) Xxxxxxx Xxxxx Xxxxxxx, and (viii) J. Xxxxxxx Xxxxxxxx.
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“Seller’s Property” shall mean the real property identified in Exhibit A-1 attached hereto, owned by Seller or Seller’s Affiliates and located in Durham, North Carolina, less and except the Property but including, without limitation, the Xxxxxxxx Property.
"Survey" has the meaning set forth in Section 5.2.
"Title Commitment" has the meaning set forth in Section 5.1.
"Transaction" shall mean the purchase and sale contemplated by this Agreement.
"1445 Affidavit" has the meaning set forth in Section 6.2(b).
3.1 Xxxxxxx Money Deposit of Fifty Thousand and No/100 Dollars ($50,000) (the "Initial Xxxxxxx Money Deposit"), in Cash, to be deposited by Buyer with Escrow Agent on or prior to three (3) Business Days following the Effective Date, time being of the essence;
3.2 Fifty Thousand and No/100 Dollars ($50,000) (the "Second Xxxxxxx Money Deposit", in Cash, to be deposited by Buyer with Escrow Agent on or prior to three (3) Business Days immediately following Buyer’s receipt of the City Approvals, time being of the essence; and
3.3 the amount equal to the total Purchase Price less the Xxxxxxx Money Deposit to be paid by Buyer to Seller, in Cash, at the Closing.
4.1 In the event the Transaction is consummated, the Xxxxxxx Money Deposit shall be paid and delivered immediately to Seller at Closing and shall be applied against the Purchase Price that shall be paid to Seller;
4.2 In the event the Transaction is not consummated due to Seller's failure to perform all of Seller's obligations under this Agreement (beyond any applicable notice or grace
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period), then Buyer shall give written notice to Escrow Agent and Seller that Seller has defaulted in the performance of its obligations under this Agreement beyond the applicable grace period (the "Buyer’s Notice"). Seller shall have five (5) business days after receipt of the copy of the Buyer's Notice to deliver written notice to Escrow Agent objecting to the release of the Xxxxxxx Money Deposit to Buyer ("Seller's Objection Notice"), with a copy of Seller’s Objection Notice simultaneously delivered to Buyer. If Escrow Agent does not receive a timely Seller's Objection Notice, the Escrow Agent shall deliver the Xxxxxxx Money Deposit then on deposit with Escrow Agent to Buyer on the next business day. If Escrow Agent does receive a timely Seller's Objection Notice, the Escrow Agent shall release the Xxxxxxx Money Deposit only upon receipt of, and in accordance with, written instructions signed by Seller and Buyer or the final order of a court of competent jurisdiction.
4.3 In the event the Transaction is not consummated due to Buyer's cancellation of this Agreement pursuant to any provision herein which permits Buyer to terminate this Agreement (other than in connection with Seller’s failure to perform any of its obligations under this Agreement) then the Xxxxxxx Money Deposit shall be paid and delivered immediately to Buyer upon such termination; and
4.4 In the event the Transaction is not consummated due to Buyer's failure to perform all of Buyer's obligations under this Agreement (beyond any applicable notice or grace period), then Seller shall give written notice to Escrow Agent and Buyer that Buyer has defaulted in the performance of its obligations under this Agreement beyond the applicable grace period (the "Seller's Notice"). Buyer shall have five (5) business days after receipt of the copy of the Seller's Notice to deliver written notice to Escrow Agent objecting to the release of the Xxxxxxx Money Deposit to Seller ("Buyer's Objection Notice"), with a copy of Buyer’s Objection Notice simultaneously delivered to Seller. If Escrow Agent does not receive a timely Buyer's Objection Notice, the Escrow Agent shall deliver the Xxxxxxx Money Deposit then on deposit with Escrow Agent to Seller on the next business day. If Escrow Agent does receive a timely Buyer's Objection Notice, the Escrow Agent shall release the Xxxxxxx Money Deposit only upon receipt of, and in accordance with, written instructions signed by Seller and Buyer or the final order of a court of competent jurisdiction.
5. Preliminary Title Commitment and Objections; Survey; Title Insurance Policy; Inspection.
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assessments not due and payable which may constitute a lien on the Property) ("Buyer's Objections"). If Buyer fails to object timely, then the Title Commitment shall be deemed approved by Buyer. If Buyer's Objections are timely made, Seller will use commercially reasonable efforts to cure the matters covered by Buyer's Objections on or before the date which is thirty (30) days from the expiration of the Inspection Period or will advise Buyer, in writing, of Seller’s election not to so cure. If Seller is unable or unwilling to cure the matters covered by Buyer's Objections on or before such date upon terms acceptable to Buyer in Buyer's sole and absolute discretion, then Seller, in writing prior to the expiration of the date which is thirty (30) days from the expiration of the Inspection Period shall so notify Buyer and Buyer, within five (5) Business Days from receipt of Seller's notice, time being of the essence, shall, in writing, either (a) waive such of Buyer's Objections as Seller shall have been unable or unwilling to cure (without a reduction in the Purchase Price) or (b) cancel this Agreement, whereupon, the Xxxxxxx Money Deposit shall be returned to Buyer and all rights and liabilities arising hereunder shall automatically terminate, with the exception of the obligations which expressly survive termination of this Agreement. If Buyer does not provide its election notice timely, then Buyer shall be deemed to have waived such uncured Buyer’s Objections and to have elected to proceed with the Transaction on the terms and conditions of this Agreement. Notwithstanding anything to the contrary contained in this Agreement, Seller shall pay all monetary liens and encumbrances (up to the amount of the Purchase Price) prior to or at Closing and Buyer shall have no obligation to object thereto.
(a) Buyer shall have the right to obtain a new survey of the Property (as contemplated as of the Effective Date) during the Investigation Period (the "Preliminary Survey"). Prior to the expiration of the Investigation Period, time being of the essence, Buyer shall provide to Seller any objections to the boundaries and legal description of the Property (as contemplated as of the Effective Date) and all easements, encroachments, improvements and other matters shown on the Preliminary Survey, in writing (the "Survey Objections"). If Buyer fails to object timely, then the Property's easements, encroachments, improvements as reflected on the Preliminary Survey and all other matters reflected on the Preliminary Survey (other than the boundaries and legal description) shall be deemed approved by Buyer. If the Survey Objections are timely made, Seller will use commercially reasonable efforts to cure the matters covered by the Survey Objections on or before the date which is thirty (30) days from the expiration of the Inspection Period or will advise Buyer, in writing, of Seller’s election not to so cure. If Seller is unable or unwilling to cure the matters covered by the Survey Objections on or before such date upon terms acceptable to Buyer in Buyer's sole and absolute discretion, then Seller, in writing prior to the expiration of the date which is thirty (30) days from the expiration of the Inspection Period shall so notify Buyer and Buyer, within five (5) Business Days from receipt of Seller's notice, time being of the essence, shall, in writing, either (a) waive such of the Survey Objections as Seller shall have been unable or unwilling to cure (without a reduction in the Purchase Price) or (b) cancel this Agreement, whereupon, the Xxxxxxx Money Deposit shall be returned to Buyer and all rights and liabilities arising hereunder shall automatically terminate, with the exception of the obligations which expressly survive termination of this Agreement. If Buyer does not provide its election notice timely, then Buyer shall be deemed to have waived such uncured Survey Objections and to have elected to proceed with the Transaction on the terms and conditions of this Agreement.
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(b) Notwithstanding anything to the contrary contained in this Agreement, Buyer shall have the right to obtain a new or updated survey of the Property once the subdivision plat contemplated in Section 5.12 has been approved by both Buyer and Seller (the "Final Survey"). No later than fifteen (15) Business Days after Buyer and Seller have approved the subdivision plat, time being of the essence, Buyer shall provide to Seller any objections to the boundaries and legal description of the Property and all easements, encroachments, improvements and other matters shown on the Final Survey not previously shown to affect the Property in the Preliminary Survey, in writing (the "Updated Survey Objections"). If Buyer fails to object timely, then the legal description and the boundaries of the Property, the Property's easements, encroachments, improvements as reflected on the Final Survey and all other matters reflected on the Final Survey shall be deemed approved by Buyer. If the Updated Survey Objections are timely made, Seller will use commercially reasonable efforts to cure the matters covered by the Updated Survey Objections before the date which is thirty (30) days following Seller’s receipt of the Updated Survey Objections (and the Closing may be extended up to such thirty (30) day period to the extent necessary). If Seller is unable or unwilling to cure the matters covered by the Updated Survey Objections before such date upon terms acceptable to Buyer in Buyer's sole and absolute discretion, Seller, in writing prior to the date which is thirty (30) days following Seller’s receipt of the Updated Survey Objections, shall notify Buyer and Buyer, within five (5) Business Days from receipt of Seller's notice, time being of the essence, shall, in writing, either (a) waive such of the Updated Survey Objections as Seller shall have been unable or unwilling to cure (without a reduction in the Purchase Price) or (b) cancel this Agreement, whereupon the Xxxxxxx Money Deposit shall be returned to Buyer and all rights and liabilities arising hereunder shall automatically terminate, with the exception of the obligations which expressly survive termination of this Agreement. If Buyer does not provide its election notice timely, then Buyer shall be deemed to have waived such uncured Updated Survey Objections and to have elected to proceed with the Transaction on the terms and conditions of this Agreement.
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(a) During the term of this Agreement, Buyer, with the reasonable cooperation of Seller, at Buyer's expense, has the right to inspect, test, analyze, study and evaluate the Property and Personal Property, otherwise investigate the feasibility and desirability of acquiring the Property and the Personal Property from Seller and complete any studies of the Property and the Personal Property as Buyer may desire (collectively and individually, "Inspection"). Seller shall provide to Buyer, within seven (7) Business Days after the Effective Date, all information concerning the Property in Seller's possession or reasonably available to Seller, including but not limited to zoning information, engineering studies, geotechnical investigations, environmental investigations, easements, water/storm water and sanitary sewer capacity letters relating to the Property, ad valorem property tax bills for 2009, 2010 and 2011, any covenants, conditions and restrictions and related architectural guidelines affecting the Property and any other written agreements impacting the use of the Property, in all cases on the express condition that Buyer agrees to treat such information and materials as confidential (collectively, the “Evaluation Materials”). In addition, Seller shall deliver to Buyer any additional Evaluation Materials with respect to the Property within three (3) business days of the Seller’s receipt thereof. Buyer acknowledges and agrees that any Evaluation Material prepared by third parties are being provided by Seller as an accommodation to Buyer and without representation, recourse or warranty by Seller as to the accuracy or completeness thereof or the suitability of the information contained therein for any purpose whatsoever.
(b) Seller hereby grants to Buyer and Buyer's agents, employees and contractors a non-exclusive right and license to enter upon the Property to conduct the Inspection at reasonable times and, with respect to any invasive testing only, upon reasonable prior notice to Seller (at least one (1) Business Day) and subject to Seller’s prior approval, not to be unreasonably withheld, conditioned or delayed. Upon completion of each Inspection, Buyer shall restore the Property inspected to its condition prior to the Inspection. Buyer hereby indemnifies and defends Seller, its members, managers, officers and employees (collectively, the “Seller Parties”), against, and agrees to hold the Seller Parties harmless for, from and against all claims, costs, fees (including witness and attorneys' fees), expenses, loss, damage and liability of any kind that may be asserted against or incurred by any of the Seller Parties as a result of the Inspection; provided, however, the indemnity shall not extend (a) to protect the Seller Parties from any pre-existing liabilities for matters merely discovered by Buyer (i.e., latent environmental contamination) or (b) to the extent any claims, costs, fees, expenses, loss, damage or liability are attributable to the action or inaction of the Seller Parties. The obligations of Buyer under this Section 5.5 shall survive Closing and/or termination of this Agreement. All studies, reports and other written materials derived from or reflecting the Inspection are hereinafter referred to, collectively, as “Inspection Reports”.
(c) All actions taken by or on behalf of Buyer in connection with the Inspection shall be in accordance with all applicable laws, rules and regulations of the appropriate governmental authorities having jurisdiction over the Property. Buyer shall (A) not unreasonably interfere with the use of the Property, (B) promptly pay when due the cost of all Inspections, (C) not permit any liens to attach to the Property by reason of the exercise of its rights hereunder, (D) provide Seller with copies of all Inspection Reports, and (E) prior to and as a condition to any Inspections, deliver to Seller certificates of insurance evidencing
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comprehensive liability insurance (including coverage for contractual indemnities) with a combined single limit of at least $1,000,000 in a form reasonably acceptable to Seller, and naming Seller as an additional insured.
(d) The obligations of Buyer under this Section 5.5 shall survive Closing and/or termination of this Agreement.
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(collectively, the "City Approvals"). The City Approvals shall be deemed obtained when final, unappealable approvals for such City Approvals are adopted by the City of Durham and the statutory periods for any appeal, protest or referendum have expired without an appeal, protest or referendum being filed or pursued, or if such appeal shall have been taken, such appeal(s) shall have been finally and conclusively resolved in favor of the applicable approval. Buyer shall pursue the City Approvals on the following terms and conditions:
(a) | Prior to the expiration of the Inspection Period, Buyer shall provide written notice to Seller of Buyer’s third party professional consultants that Buyer intends to engage to assist in obtaining City Approvals (“Buyer’s Consultants”). Buyer shall select Buyer’s Consultants who are in Buyer’s opinion experienced in working with the Durham City-County Planning Department (the “Planning Department”) and in pursuing project approvals similar to the City Approvals. |
(b) | Buyer and Buyer’s Consultants shall prepare, at Buyer’s sole cost and expense, such documents and applications as may be required to obtain all of the City Approvals Buyer and Buyer’s Consultants determine to be required (collectively, the “Applications”) and shall submit the Applications to Seller for its review and approval (which shall not be unreasonably withheld or delayed) no later than forty-five (45) days following expiration of the Inspection Period, time being of the essence, provided that nothing contained in this Agreement shall prohibit Buyer from preparing the Applications and pursuing their submittal in accordance with this Section 5.8 prior to the expiration of the Inspection Period. In no event shall the Applications include any proposal that would adversely affect any Seller’s Property, or be conditioned on any entitlements from any such other Seller’s Property, or materially enlarge or reconfigure the Property as of the Effective Date, without Seller’s prior consent, which consent shall not be unreasonably withheld, conditioned or denied. Notwithstanding the foregoing, to the extent that Buyer has reasonably determined that the City of Durham will not permit any existing road to serve as a second means of access to the proposed development on the Property, the Applications (as applicable) shall include a road to be located on Seller’s Property between "OUTPARCEL 1" and “OUTPARCEL 2”, in the location outlined on Exhibit D, for the purpose of providing additional access for the Property as well as the balance of Seller’s Property to Southwest Durham Parkway (the “Additional Road”); provided however, Seller shall have the right, in its sole discretion and at any time prior to the re-submittal of Application materials following the first round of comments from Planning Department staff, to require that Buyer relocate the proposed location of the Additional Road to the “Alternative” alignment set forth on Exhibit D if an Additional Road is required by the City of Durham, and in such event Seller shall bear all additional design, engineering and construction costs that arise directly as a result of such relocation, as reasonably determined by Seller and Buyer. Subject to Seller's right to require the relocation of the Additional Road in accordance with the remainder of this Section 5.8(b), within five (5) days following Seller’s receipt of the proposed Applications, Seller shall provide Buyer with any comments and required revisions to the Applications (which comments shall be limited to items which directly impact the Seller’s Property, such as access and |
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shared storm water. If Buyer is unwilling to effectuate the changes to the Applications in accordance with Seller’s comments and required revisions, the Parties shall work in good faith in an attempt to reach an agreement on the form of the Applications. In the event that the Parties are unable to reach agreement on the form of the Applications on or before the 75th day following the expiration of the Inspection Period, this Agreement shall automatically terminate, whereupon the Xxxxxxx Money Deposit shall be returned to Buyer and all rights and liabilities arising hereunder shall automatically terminate, with the exception of the obligations which expressly survive termination of this Agreement. This Section 5.8(b) shall survive Closing. |
(c) | If the Parties reach agreement on the form of the Applications, Buyer shall promptly submit same to the applicable governmental authority(ies) at Buyer’s sole cost and expense, no later than five (5) Business Days after the later of (i) the date that the Parties reach agreement on the form of the Applications or (ii) the expiration of the Inspection Period. Thereafter, Buyer shall (and shall cause Buyer’s Consultants to): |
(i) | diligently pursue the City Approvals, including, without limitation, promptly responding to all requests by members of the Planning Department staff, attending all meetings with Planning Department staff, and timely making all required submissions to the Planning Department. |
(ii) | be prohibited from making or causing any material changes to the Applications without Seller’s prior consent, which consent shall not be unreasonably withheld, conditioned or denied, if those changes relate to access to the Property or to the size or configuration of the Property, or which otherwise negatively affect Seller’s Property. |
(iii) | promptly advise Seller of Buyer’s receipt of the City Approvals or any denial of the City Approvals, and provide to Seller the corresponding approval or denial documentation. |
(d) | Buyer and Seller (at no additional cost to Seller) shall reasonably cooperate with each other and with the governmental authorities in an effort to obtain the City Approvals as quickly as possible (subject to the parties’ respective rights to exercise their sole discretion in agreeing to the Applications). In connection with the foregoing, Seller shall execute and deliver such documents as may be reasonably required by the governmental authorities in connection with the Applications and City Approvals, as applicable, within five (5) days of request thereof from Buyer. |
(e) | If, at anytime during the term of this Agreement, (i) the City Approvals are denied or (ii) Buyer, in its reasonable judgment, believes that the conditions associated with the City Approvals would render the purchase of the Property and construction of the Property not economically feasible, then Buyer shall have the right to terminate this Agreement by providing written notice to Seller, |
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whereupon the Xxxxxxx Money Deposit shall be returned to Buyer and all rights and liabilities arising hereunder shall automatically terminate, with the exception of the obligations which expressly survive termination of this Agreement. |
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without Buyer’s prior consent provided that such amendment (i) does not require any modification to Buyer's existing signage and (ii) does not render Buyer’s existing signage non-conforming or in violation of the Signage Plan, as amended, thereby allowing full reconstruction of the original design in the event of damage or destruction. In the event that the City of Durham requires in the future additional confirmation of the foregoing from Buyer, Buyer and Buyer’s successors in title to the Property shall promptly provide same in writing and this obligation shall be memorialized at Closing in the Memorandum of Agreement. This provision shall survive the Closing.
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6.2 Seller's Closing Deliveries. At the Closing, Seller shall deliver to Buyer or to Escrow Agent:
(a) Special Warranty Deed in the form of Exhibit B, fully executed and properly acknowledged by Seller, conveying to Buyer the Property (the “Deed”);
(b) Affidavit in a form and having the substance mutually acceptable to Buyer and Seller, fully executed and properly acknowledged by Seller, as required by Internal Revenue Code Section 1445(b)(2) (the "1445 Affidavit");
(c) A Xxxx of Sale in the form of Exhibit C, fully executed by Seller, assigning and transferring to Buyer all of Seller's right, title and interest in and to the Personal Property;
(d) A no-lien and exclusive possession affidavit executed by Seller, sufficient for the Escrow Agent to delete any exceptions for parties in possession and mechanic’s or materialmen’s liens from the Title Policy;
(e) Such evidence of the power and authority of Seller to consummate the transactions described in this Agreement as may be reasonably required by Buyer or the Escrow Agent;
(f) A duly executed certification that every representation and warranty of the Seller under this Agreement is true and correct in all material respects as of the Closing as if made by the Seller at such time, or stating any such representations and warranties which are no longer true and correct in any material respect;
(g) Memorandum of Agreement;
(h) Originals or, if originals are not available, true and correct copies of all records and files pertaining solely to the Property and in Seller's possession or reasonable control;
(i) Such documents as may be required pursuant to Sections 5.9, 5.10 and 5.11, fully executed and properly acknowledged (as applicable) by Seller;
(j) One or more closing statements, agreed upon by the Parties and consistent with this Agreement, in a form acceptable to the Escrow Agent (the “Closing Statement”), fully executed by Seller;
(k) The Option Agreement, fully executed by the owner(s) of the Xxxxxxxx Property; and
(l) Such other funds, instruments or documents as may be reasonably requested by Escrow Agent or reasonably necessary to effect or carry out the purposes of this Agreement.
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6.3 Buyer's Closing Deliveries. At the Closing, Buyer shall deliver to Escrow Agent:
(a) The Purchase Price (subject to Sections 3, 6.5 and 6.6 of this Agreement;
(b) Such other funds, instruments or documents as may be reasonably requested by Escrow Agent, or necessary, to effect or carry out the purposes of this Agreement;
(c) Such documents as may be required pursuant to Sections 5.9, 5.10 and 5.11, fully executed and properly acknowledged (as applicable) by Buyer;
(d) The Closing Statement, fully executed by Buyer;
(e) The Option Agreement, fully executed by Buyer;
(f) The Initial Option Payment;
(g) Written certificate executed by Buyer certifying that Buyer is not a person or entity listed on Appendix A to Title 31, Chapter V of the Code of Federal Regulations (the “Suspected Terrorist List”). Buyer understands that Executive Order 13224 and the regulations promulgated pursuant thereto provide that any transfer of property or interest in property with a person or entity listed on the Suspected Terrorist List (such person or entity being hereinafter referred to as a “Blocked Person”) is “null and void” and the party entering such transaction with a Blocked Person could be subject to monetary penalties or imprisonment in accordance with 31 CFR '594.701;
(h) Such evidence of the power and authority of Buyer to consummate the transactions described in this Agreement as may be reasonably required by Seller or the Escrow Agent;
(i) A duly executed certification that every representation and warranty of the Buyer under this Agreement is true and correct in all material respects as of the Closing as if made by Buyer at such time, or stating any such representations and warranties which are no longer true and correct in any material respect; and
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(a) Closing Costs. Except as expressly provided in this Agreement, each party shall bear its own costs and expenses (including attorneys' fees) in connection with its negotiation, due diligence investigation and conduct of the Transaction. Escrow fees shall be divided equally between the parties. Buyer shall pay the costs of the Title Policy and the cost of the Survey. Seller shall pay the cost of recording the Deed and any other documents to be recorded at Closing, along with any stamps to be affixed to the deed, transfer fees, transfer taxes, excise stamps or any other tax or fee imposed by law. Buyer shall pay for any endorsements requested by Buyer and for any mortgagee policy obtained by Buyer. Buyer shall also be responsible for the payment of all the costs associated with preparing the Applications and pursuing and obtaining City Approvals, including without limitation, the cost of Buyer’s Consultants. All other costs associated with the closing of the Transaction shall be borne by the parties in accordance with custom in Durham County, North Carolina, as determined by Escrow Agent, unless otherwise specified in this Agreement.
7. Seller's Representations and Warranties.
7.1 Seller hereby represents, warrants and covenants to Buyer that:
(a) Organization and Standing. Seller is a limited liability company, is duly organized, validly existing, in good standing in the state of its formation and qualified to do business in the State of North Carolina and has full power and authority to enter into this Agreement and complete the Transaction.
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(b) Binding Agreement. The acceptance and performance of the terms and provisions of this Agreement by Seller have been duly authorized and approved by all necessary parties, subject to the approval of the formal subdivision of the Property. Upon Seller's execution and delivery of this Agreement, this Agreement shall be binding and enforceable against Seller in accordance with its terms, and upon Seller's execution of the additional documents contemplated by this Agreement, they shall be binding and enforceable against Seller in accordance with their terms.
(c) Consents. To Seller’s actual knowledge, neither the execution or delivery of this Agreement nor the consummation of the Transaction is subject to any requirement that Seller obtain any consent, approval or authorization of, or make any declaration or filing with, any governmental authority or third party which has not been obtained or which, in the aggregate, if not obtained or made would render such execution, delivery or consummation illegal or invalid, or would constitute a default under, result in the creation of any lien, charge or encumbrance upon the Property or the Personal Property, other than the approval of the formal subdivision of the Property, and the City Approvals that Buyer is responsible to obtain under this Agreement.
(d) Litigation. There is no litigation, arbitration or administrative proceeding pending, nor to the actual knowledge of Seller, threatened against Seller with respect to the Property, the Personal Property or this Agreement.
(e) Conflict. Subject to the approval of the formal subdivision of the Property, neither the execution of this Agreement, the consummation of the Transaction hereby contemplated, nor the fulfillment of the terms hereof, will conflict with or result in a breach of any of the terms, conditions, or provisions of, or constitute a default under, any agreement or instrument to which Seller is, or to Seller’s actual knowledge is asserted to be, a party affecting the Property or to which the Property is subject or any applicable laws or regulations of any governmental body having jurisdiction.
(f) Environmental. To Seller’s knowledge, no hazardous substances are, will be, or have been, stored, treated, disposed of or incorporated into, on or around the Property in violation of any applicable statutes, ordinances or regulations; and Seller has no notice of any pending or, to the Seller’s knowledge, threatened action or proceeding arising out of the condition of the Property, or any alleged violation of environmental, health or safety statutes, ordinances or regulations.
(g) Condemnation. There are no condemnation or eminent domain proceedings pending or, to Seller’s knowledge, threatened against the Property or any part thereof, and the Seller has received no notice of the desire of any public authority to take or use the Property or any part thereof.
(h) Parties in Possession. There are no parties in rightful possession of any portion of the Property, whether as lessees, tenants-at-sufferance or otherwise.
(i) Service Contracts. There are no contracts related to the use, ownership or operation of the Property which will be binding upon Buyer after the Closing.
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(j) OFAC. Seller is not, and will not be, a person or entity with whom Buyer is restricted from doing business with under the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, H.R. 3162, Public Law 107-56 (commonly known as the “USA Patriot Act”) and Executive Order Number 13224 on Terrorism Financing, effective September 24, 2001 and regulations promulgated pursuant thereto (collectively, “Anti-Terrorism Laws”), including without limitation persons and entities named on the Office of Foreign Asset Control Specially Designated Nationals and Blocked Persons List.
(k) Unrecorded Agreements. To Seller’s knowledge, there are no unrecorded agreements, easements, restrictions or encumbrances, or violations thereof, affecting all or any part of the Property.
(l) Prior Agreement. Seller has not committed nor obligated itself in any manner whatsoever to sell the Property or any portion thereof to any party other than Buyer. Seller has not entered into any agreement to lease, sell, or otherwise dispose of its interest in the Property or any part thereof. No person, firm, corporation or other entity has any right or option to acquire the Property, or any part thereof, from Seller, other than Buyer as herein provided.
(m) Attachment. There are no attachments, executions or assignments for the benefit of creditors, receiverships, conservatorship or voluntary or involuntary proceedings in bankruptcy or pursuant to any other debtor relief law which have been filed by Seller or are pending in current judicial or administrative proceedings against Seller.
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8.1 Organization and Standing. Buyer is a Florida limited liability company, is duly organized, validly existing, in good standing in the state of its formation and at Closing will be qualified to do business in the State of North Carolina and has full power and authority to enter into this Agreement and complete the Transaction.
9. Condition Precedent; Survival of Representations and Warranties; Disclaimer.
9.1 Condition Precedent to Buyer’s Obligations. The obligations of Buyer to pay the Purchase Price and to perform Buyer’s other obligations at the Closing under this Agreement are and shall be subject to the satisfaction of each of the following conditions on or prior to the Closing Date.
(a) The Escrow Agent shall be able to deliver at Closing the Title Policy or a marked-up copy of the Title Commitment, insuring Buyer’s right, title and interest in the Property in the amount of the Purchase Price, excepting no matters other than the Permitted Exceptions;
(b) All of the representations and warranties of Seller contained in this Agreement shall have been true and correct in all material respects when made, and shall be true and correct in all material respects on the Closing Date with the same effect as if made on and as of such date;
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(c) Seller shall have performed, observed, and complied with all covenants, agreements, and conditions required by this Agreement to be performed, observed, and complied with on Seller’s part prior to or as of the Closing Date;
(d) There shall be no moratoriums or restrictions on platting, building, schools, transportation, sewer and/or water hookups that, in Buyer’s reasonable opinion, would materially impede, delay or prohibit the development of the Property for Buyer’s intended use; and
(e) The City Approvals shall have been obtained and the Plat shall have been recorded.
If any of the foregoing conditions benefiting the Buyer have not been satisfied as of the Closing Date, and such non-satisfaction is not a result of a Buyer default hereunder, then Buyer may, in Buyer’s sole discretion: (i) terminate this Agreement by delivering written notice to the Seller, in which event the Xxxxxxx Money Deposit shall be immediately returned to the Buyer (unless otherwise provided for in Section 4), and the Parties shall be released from any further liability or obligation hereunder except for those rights and obligations which specifically survive termination hereunder, (ii) the Buyer may waive such condition and elect to close, notwithstanding the non-satisfaction of such condition without reduction in the Purchase Price, or (iii) extend the Closing Date for thirty (30) days to permit the conditions to be met and, if such condition(s) are still not met at the end of such extension, elect to pursue either option (i) or (ii).
9.2 Condition Precedent to Seller’s Obligations. The obligations of Seller to perform Seller’s obligations at the Closing under this Agreement are and shall be subject to the satisfaction of each of the following conditions on or prior to the Closing Date.
(a) All of the representations and warranties of Buyer contained in this Agreement shall have been true and correct in all material respects when made, and shall be true and correct in all material respects on the Closing Date with the same effect as if made on and as of such date;
(b) Buyer shall have performed, observed, and complied with all covenants, agreements, and conditions required by this Agreement to be performed, observed, and complied with on Buyer’s part prior to or as of the Closing Date, including, without limitation, payment of the Purchase Price; and
(c) the Plat shall have been recorded.
If any of the foregoing conditions benefiting the Seller have not been satisfied as of the Closing Date, and such non-satisfaction is not a result of a Seller default hereunder, then Seller may, in Seller’s sole discretion: (i) terminate this Agreement by delivering written notice to the Buyer, in which event the Xxxxxxx Money Deposit shall be released to Seller in accordance with Section 4 of this Agreement, unless the failure of the condition precedent is the recording of the Plat in which case the Xxxxxxx Money Deposit shall be immediately returned to the Buyer (unless otherwise provided for in Section 4), and the Parties shall be released from any further liability or obligation hereunder except for those rights and obligations which specifically survive termination hereunder, (ii) the Seller may waive such condition and elect to close,
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notwithstanding the non-satisfaction of such condition without increase in the Purchase Price, or (iii) extend the Closing Date for thirty (30) days to permit the conditions to be met and, if such condition(s) are still not met at the end of such extension, elect to pursue either option (i) or (ii).
9.3 Survival of Representations and Warranties. All representations and warranties by Seller and Buyer set forth in this Agreement shall survive the execution and delivery of this Agreement, the recordation of the Deed and the Close of Escrow for a period of two hundred seventy (270) days. All claims for breach of representation and warranty shall be made in writing and any action for enforcement thereof commenced prior to the expiration of such 270 day period.
9.4 Disclaimer. Buyer acknowledges and agrees that, except as set forth in Section 7 and in any closing documents delivered by Seller to Buyer at Closing, Buyer is acquiring the Property in its "AS IS" condition, WITH ALL FAULTS, IF ANY, AND WITHOUT ANY WARRANTY, EXPRESS OR IMPLIED. Except as set forth herein or in the documents executed and delivered by Seller to Buyer at Closing, neither Seller nor any agents, representatives, or employees of Seller have made any representations or warranties, direct or indirect, oral or written, express or implied, to Buyer or any agents, representatives, or employees of Buyer with respect to the Property, including, without limitation, the physical condition of the Property or the Personal Property. Seller expressly disclaims and negates, as to the Property: (i) any implied or express warranty of merchantability; (ii) any implied or express warranty of fitness for a particular purpose; and (iii) any implied warranty with respect to the condition of the Property, the past or projected financial condition of the Property (including, without limitation, the income or expenses thereof) or the uses permitted on, the development requirements for, or any other matter or thing relating to all or any portion of the Property. Except as set forth herein, Seller makes no warranty, representation or covenant with respect to any of the foregoing. NOTWITHSTANDING ANYTHING STATED TO THE CONTRARY IN THIS AGREEMENT, THE DISCLAIMERS PROVIDED FOR IN THIS SECTION 9.4 SHALL NOT APPLY TO OR PREVENT ANY CLAIMS ARISING FROM A BREACH OF THE REPRESENTATIONS, WARRANTIES OR OBLIGATIONS OF SELLER UNDER THIS AGREEMENT OR THE DOCUMENTS EXECUTED AND DELIVERED BY SELLER TO BUYER AT CLOSING THAT SURVIVE THE CLOSING. The provisions of this Section 9.4 shall survive the cancellation or termination of this Agreement and shall survive the Close of Escrow.
9.5 Release. Without in any way limiting the generality of the preceding Section 9.4, except as otherwise expressly set forth in this Agreement or in the documents executed and delivered by Seller to Buyer at Closing, Buyer specifically acknowledges and agrees that it hereby waives, releases and discharges all claims, demands, legal or administrative proceedings, losses liabilities, damages, penalties, fines, liens, judgments, costs for expenses known or unknown, foreseen or unforeseen, it has, might have had, or may have, against each and/or any of Seller and its affiliates, and their managers, members, officers, directors, employees and agents, relating to, arising out of with respect to or any way connected with (i) the condition of the Property, either patent or latent, (ii) the actual or potential income, or profits, to be derived from the Property, (iii) the real estate, or other, taxes or special assessments, now or hereafter payable on account of, or with respect to, the Property, (iv) Buyer’s ability or inability to develop the Property, (v) the environmental condition of the Property, (vi) the
20
condition of title to the Property; (vii) the Property’s compliance with any applicable federal, state or local, law, rule or regulation, or (viii) any other matter relating to the Property. The release set forth in this Section 9.5 includes claims of which Buyer is presently unaware or which Buyer does not presently suspect to exist which, if known by Buyer, would materially affect Buyer’s release of Seller.
10. Covenants; Subdivision Condition.
(a) From and after the Effective Date and until Closing or any termination or cancellation of this Agreement, Seller, without the prior written consent of Buyer, not to be unreasonably withheld, conditioned or delayed, and except as otherwise permitted in this Agreement, shall not (i) enter into a contract or agreement for the sale, transfer or conveyance, exchange, encumbrance or other disposition of all or any portion of the Property; (ii) xxxxx x xxxx, pledge, encumbrance, security interest, option, right of first refusal, charge, license, right of way, dedication or easement against or across the Property which will not be released or removed prior to Close of Escrow; (iii) enter into any maintenance, management or service contracts for the Property which will remain in force and effect after the Closing; or (iv) terminate any liability insurance for the Property prior to Close of Escrow.
(b) Provided that Closing occurs, then for a period of eighteen (18) months following the date on which 85% of the multi-family units approved for development at the Property, pursuant to the City Approvals, have received certificates of occupancy, Seller and Seller’s Affiliates will not sell any other of Seller’s Property that is described in Exhibit “A-1” to any other third party which will develop such property for multi-family rental use, other than multi-family senior housing which is expressly permitted. The terms of this provision shall be memorialized in a written agreement (“Memorandum of Agreement”), evidencing this provision as a covenant running with the Seller’s Property, and recorded as part of the Closing, which shall benefit the Buyer and its successors and assigns for the time period set forth herein. This Section 10(b) shall survive Closing.
(c) Seller and the Seller’s Affiliates hereby covenant and agree that, so long as the Property is being operated as a multi-family apartment complex, no portion of the applicable Seller’s Property shall be used for any of the prohibited uses set forth on the applicable Exhibits G-K, respectively. The terms of this Section 10(c) shall be memorialized at Closing in the Memorandum of Agreement.
(d) Neither Buyer nor any of Buyer’s affiliates, members, principals or agents shall protest any application by Seller or Seller’s successors in title to Seller’s Property for the rezoning of, or any other City of Durham or Durham County approvals related to, Seller’s Property or any other real property owned by Seller or any affiliate of Seller, and Buyer shall cause Buyer’s affiliates, members, principals and agents to comply with this Section 10(d). In addition, Buyer shall, at no cost to Buyer, also timely support and reasonably cooperate with Seller and Seller’s Affiliates in their efforts to replace the current “mixed-use” zoning designation applicable to Seller’s Property with any future rezoning classification which either allows greater density, greater owner design flexibility or otherwise provides beneficial regulatory advantages over the current “mixed-use” zoning classification, and in the event that the City requires the inclusion or participation of the Property in such change, Buyer shall
21
reasonably cooperate, at no cost to Buyer, with Seller in effecting such change. Notwithstanding anything contained in this Agreement to the contrary, Buyer’s breach of this Section 10(d) shall entitle Seller to all rights and remedies available at law or in equity, including, without limitation, the right to specific performance and injunctive relief. The terms of this Section 10(d) shall be memorialized at Closing in the Memorandum of Agreement.
(e) Upon Closing, the Property may not be used for any purpose other than exclusively for multifamily residential purposes, which may include apartments, townhomes, and condominiums, but shall expressly exclude, among other things, single family residences. Such restriction shall be in effect for a period of three (3) years following the date on which 85% of the multi-family units approved for development at the Property, pursuant to the City Approvals, have received certificates of occupancy. Furthermore, no portion of the Property shall be used for any of the prohibited uses set forth on Exhibit F. The terms of this Section 10(e) shall be memorialized at Closing in the Memorandum of Agreement or as express restrictions in the Deed.
(f) Notwithstanding anything contained herein to the contrary, in the event that this Agreement is terminated for any reason other than as the result of a breach of this Agreement by Seller, at the request of Seller, Buyer shall promptly assign (to the extent assignable) over and transfer to Seller all agreements with (and work product generated by) Buyer’s Consultants related to the pursuit of the City Approvals and Buyer shall cooperate with Seller (at no cost to Buyer) to obtain the consent of each Buyer’s Consultant to such assignment(s). This Section 10(f) shall survive the termination of this Agreement.
11.1 Seller and Buyer warrant, each to the other, that they have not dealt with any finder, broker or realtor in connection with the Transaction other than Real Estate Associates ("Broker").
11.2 Seller shall pay the commission to Broker in accordance with a separate agreement between Seller and Broker only upon the occurrence of the Close of Escrow.
11.3 Seller shall and does hereby indemnify Buyer against, and agrees to hold Buyer harmless for and from any claim, demand or suit for any brokerage commission, finder's fee or similar charge in respect of the execution of this Agreement or the Transaction based on any act by or agreement or contract with Seller, and for all losses, obligations, costs, expenses and fees (including attorneys' fees) incurred by Buyer on account of or arising from any such claim, demand or suit. This Section 11.3 shall survive Closing.
11.4 Except for the commission payable by Seller to Broker pursuant to Section 11.2, Buyer shall and does hereby indemnify Seller against, and agrees to hold Seller harmless for and from any claim, demand or suit for any brokerage commission, finder's fee or similar charge in respect of the execution of this Agreement or the Transaction based on any agreement or contract with Buyer, and for all losses, obligations, costs, expenses and fees (including attorneys' fees) incurred by Seller on account of or arising from any such claim, demand or suit. This Section 11.4 shall survive Closing.
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The provisions of this Section 11 shall survive the Closing Date and the delivery of the Deed.
23
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Seller: | Boulevard Forest & Trees LLC | |
Attn: J. Xxxxxxx Xxxxxxxx | ||
0000 XxXxxxxxx Xx., Xxxxx 000 | ||
Xxxxxx, XX 00000 | ||
E-mail: xxxxxxxx@xxxxxxxxxx.xxx | ||
with a copy to: | Boulevard Forest & Trees LLC | |
Attn: Xxxx X. Xxxxxxxx | ||
X.X. Xxx 000000 | ||
Xxxxxx, XX 00000 | ||
E-mail: xxxxxxxxxxxx@xx.xxx | ||
and a copy to: | Xxxxxxx X. Xxxxxxxxx | |
K&L Gates LLP | ||
000 Xxxxx Xxxxx – Xxxxx 000 | ||
Xxxxxxxxxxx, XX 00000 | ||
E-mail: xxxxxxx.xxxxxxxxx@xxxxxxx.xxx | ||
Buyer: | Bainbridge Communities Acquisition I, LLC | |
Attn: Xxxxxx X. Xxxxxx | ||
0000 Xxxxx Xxxx, Xxxxx 000 | ||
Xxxx, XX 00000 | ||
E-mail: xxxxxxx@xxxxxxxxxxxx.xxx | ||
and a copy to: | Broad and Xxxxxx | |
0000 Xxxxxx Xxxx, Xxxxx 000 | ||
Xxxx Xxxxx, Xxxxxxx 00000 | ||
Telephone: 000-000-0000 | ||
Facsimile: 000-000-0000 | ||
Attn: Xxxxxxx X. Xxxxxx, Esq. | ||
Xxxxxxxxxxx Xxxxxxx, Esq. | ||
Email: xxxxxxxx@xxxxxxxxxxxxxx.xxx |
25
Escrow Agent: | First American Title Insurance Company | |
National Commercial Services | ||
000 X Xxxxxx Xxxxxx, Xxxxx 0000, | ||
Xxxxxxx, XX | ||
Telephone: 000-000-0000 | ||
Facsimile: 888-216-9921 | ||
Attn: Xxxxxxx Xxxxxx | ||
Email: xxxxxxx@xxxxxxx.xxx |
21. Governing Law. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of North Carolina.
26
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Property; (c) Seller shall indemnify and pay all costs, fees and expenses related to the exchange; (d) Buyer shall have no obligation with respect to the exchange except to cooperate with Seller; and (e) Seller shall hold harmless Buyer from all costs, expenses and liabilities arising from the exchange or the effectiveness of the exchange.
35.1 Not more than forty-five (45) days following the Effective Date, Buyer shall specify to Seller in writing (a) the third-party reports or certifications Buyer requires for its normal inspection process with respect to the Xxxxxxxx Property, (b) the names of Buyer’s preferred consultants, and (c) Buyer’s budget for each individual report. Seller shall engage such consultants directly and use commercially reasonable efforts to cause them to promptly prepare and deliver to Buyer the third party reports and certifications requested by Buyer in accordance with Buyer’s budget, provided however that in the event that the cost of any report or certification will exceed Buyer’s budget, Seller shall first provide Buyer with notice of such fact, and Buyer shall have the right to revise its budget, designate a different third party consultant, or withdraw its request for such report or certification.
35.2 Not more than forty-five (45) days following the Effective Date, Buyer shall also provide Seller with a conceptual building layout of the Xxxxxxxx Property which shall seek to achieve a minimum project unit count of 325 multi-family units, and which shall have sufficient detail to allow Seller to conduct soil testing, per Buyer’s direction (and subject to the Buyer’s budget as described above) as to number and location of borings, to the extent and on the terms and conditions acceptable to Seller, in its sole and absolute discretion. Seller shall cause the results of such soil-testing to be immediately delivered to Buyer.
35.3 The investigations contemplated in Sections 35.1 and 35.2 shall be undertaken at Seller’s initial cost and expense, provided however that Buyer shall reimburse Seller for such costs and expenses (a) at the time of the closing of the Xxxxxxxx Property pursuant to the Option Agreement, or (b) immediately upon the expiration or earlier termination of the Option Agreement unless such termination is caused by Grantor’s default thereunder or is the result of Grantor having entered into a purchase and sale agreement for the sale of the Xxxxxxxx Property to anyone other than Buyer or an assignee of Buyer, or (c) immediately upon the termination of this Agreement, except in the case of a Seller default hereunder or in the case of a failure of a condition precedent benefiting Buyer as described in Section 9.1 above. This Section 35.3 shall survive Closing and/or termination of this Agreement.
35.4 Pursuant to the terms of the Option Agreement, Buyer shall have the right, following Closing, to purchase the Xxxxxxxx Property. The terms of the purchase and sale of the Xxxxxxxx Property pursuant to the Option Agreement shall be consistent with the terms of this Agreement applicable to the Property, subject to the express terms and conditions of the Option Agreement.
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SELLER: | ||||||||||
BOULEVARD FOREST & TREES LLC | ||||||||||
By: | Boulevard Properties LLLP, | |||||||||
a North Carolina limited liability limited partnership, its Manager | ||||||||||
By: | Thunderbird, Inc., | |||||||||
a California corporation, | ||||||||||
its General Partner | ||||||||||
By: | /S/ May X. Xxxxxxxx | (SEAL) |
Name: | May X. Xxxxxxxx | |||||||||
Title: | President | |||||||||
BUYER: | ||||||||||
BAINBRIDGE COMMUNITIES ACQUISITION I, LLC, a Florida limited liability company | ||||||||||
By: | /S/ Xxxxxx X. Xxxxx | |||||||||
Name: | Xxxxxx X. Xxxxx | |||||||||
Title: | Vice President |
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The undersigned Escrow Agent hereby joins in this Agreement and, by doing so, Escrow Agent hereby acknowledges its duties and obligations under the terms and provisions of this Agreement and hereby agrees to be bound by and to perform such duties and obligations in accordance with such terms and provisions.
ESCROW AGENT: | ||||
FIRST AMERICAN TITLE INSURANCE COMPANY | ||||
By: | /S/ Xxxxxxx Xxxxxx | |||
Name: | Xxxxxxx Xxxxxx | |||
Title: | Commercial Closer |
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EXHIBIT A
DEPICTION OF THE PROPERTY
[Omitted as not necessary to an understanding of the Agreement]
EXHIBIT A-1
LIST OF THE SELLER’S PROPERTY
[Omitted as not necessary to an understanding of the Agreement]
2
EXHIBIT B
SPECIAL WARRANTY DEED
[Omitted as not necessary to an understanding of the Agreement]
EXHIBIT C
XXXX OF SALE
[Omitted as not necessary to an understanding of the Agreement]
EXHIBIT D
DEPICTION OF ADDITIONAL ROAD
[Omitted as not necessary to an understanding of the Agreement]
EXHIBIT E
OPTION AGREEMENT
[Omitted as not necessary to an understanding of the Agreement]
EXHIBIT F
RESTRICTED USES APPLICABLE TO THE PROPERTY
[Omitted as not necessary to an understanding of the Agreement]
EXHIBIT G
RESTRICTED USES APPLICABLE TO PORTION OF SELLER’S PROPERTY
[Omitted as not necessary to an understanding of the Agreement]
EXHIBIT H
RESTRICTED USES APPLICABLE TO PORTION OF SELLER’S PROPERTY
[Omitted as not necessary to an understanding of the Agreement]
EXHIBIT I
RESTRICTED USES APPLICABLE TO PORTION OF SELLER’S PROPERTY
[Omitted as not necessary to an understanding of the Agreement]
EXHIBIT J
RESTRICTED USES APPLICABLE TO PORTION OF SELLER’S PROPERTY
[Omitted as not necessary to an understanding of the Agreement]
FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT
This First Amendment to Purchase and Sale Agreement (“Amendment”) is entered into between BOULEVARD FOREST & TREES LLC, a North Carolina limited liability company (“Seller”), and BAINBRIDGE COMMUNITIES ACQUISITION I, LLC, a Florida limited liability company (“Buyer”).
Seller and Buyer entered into Purchase and Sale Agreement with an effective date of March 5, 2012 (“Agreement”). Seller and Buyer desire to amend the Agreement as more particularly set forth below.
1. | RECITALS. The above stated recitals are true and correct and are incorporated herein by this reference. |
2. | DEFINED TERMS. Capitalized terms which are not defined in this Amendment shall have the same meaning as defined in the Agreement. The term “Agreement” shall include this Amendment. |
3. | RECIPROCAL EASEMENT AND OPERATION AGREEMENT. Reference is made to paragraph 6 of the letter from Seller to Buyer dated June 1, 2012 (“Response Letter”), wherein Seller recognizes Buyer’s title objection to Item 8 in Schedule B - Section II (“Item 8 Exception”) of the Title Commitment. Pursuant to the Response Letter, Buyer and Seller agreed that Buyer would have until July 6, 2012 to cancel the Agreement upon written notice to Seller if, by such date, Seller was unable to cure the Item 8 Exception to Buyer’s written satisfaction. The parties hereby reaffirm and ratify that agreement and extend the July 6, 2012 to July 20, 2012, such that if Seller is unable to cure the Item 8 Exception by July 20, 2012, then Buyer may cancel the Agreement, whereupon the Xxxxxxx Money Deposit shall be returned to Buyer and all rights and liabilities arising thereunder shall automatically terminate, with the exception of the obligations which expressly survive termination of the Agreement. |
4. | CONFLICTING TERMS. 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. |
5. | COUNTERPARTS FACSIMILE SIGNATURES. This Amendment may be executed in multiple counterparts, each of which shall be deemed an original but all of which, together, shall constitute one instrument. For the purposes of this Amendment, an executed facsimile counterpart copy of this Amendment shall be deemed an original for all purposes. |
6. | RATIFICATION. The remaining terms and provisions of the Agreement and are ratified and confirmed by Seller and Buyer and are incorporated in this Amendment by reference as if set forth fully herein. |
This Amendment has been entered into as of the day and year first above written.
BUYER: | ||||
BAINBRIDGE COMMUNITIES ACQUISITION I, LLC, a Florida limited liability company |
By: | /S/ Xxxxxx Xxxxx |
|
Name: | Xxxxxx Xxxxx |
Title: | Vice President |
Dated: July 6, 2012 | ||||
SELLER: | ||||
BOULEVARD FOREST & TREES LLC, a North Carolina limited liability company |
By: | /S/ Xxxxxxx Xxxxxxxx |
Name: | Xxxxxxx Xxxxxxxx |
Title: | Registered Agent | |||
Dated: July 5, 2012 |
2
SECOND AMENDMENT TO PURCHASE AND SALE AGREEMENT
This Second Amendment to Purchase and Sale Agreement (“Amendment”) is entered into between BOULEVARD FOREST & TREES LLC, a North Carolina limited liability company (“Seller”), and BAINBRIDGE COMMUNITIES ACQUISITION I, LLC, a Florida limited liability company (“Buyer”).
Seller and Buyer entered into Purchase and Sale Agreement with an effective date of March 5, 2012 (“Purchase Agreement”), as amended by that certain First Amendment to Purchase and Sale Agreement dated July 6, 2012 (“First Amendment”, and together with the Purchase Agreement, the “Agreement”). Seller and Buyer desire to amend the Agreement as more particularly set forth below.
1. RECITALS. The above stated recitals are true and correct and are incorporated herein by this reference.
2. DEFINED TERMS. Capitalized terms which are not defined in this Amendment shall have the same meaning as defined in the Agreement. The term “Agreement” shall include this Amendment.
3. RECIPROCAL EASEMENT AND OPERATION AGREEMENT. Reference is made to paragraph 6 of the Response Letter (as defined in the First Amendment), wherein Seller recognizes the Item 8 Exception (as defined in the First Amendment). The parties agree that Buyer will have the right and option to cancel the Agreement upon written notice to Seller if Seller is unable to cure the Item 8 Exception to Buyer’s written satisfaction by July 27, 2012. Upon such cancellation, the Xxxxxxx Money Deposit shall be returned to Buyer and all rights and liabilities arising under the Agreement shall automatically terminate, with the exception of the obligations which expressly survive termination of the Agreement.
4. CONFLICTING TERMS. 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.
5. COUNTERPARTS; FACSIMILE SIGNATURES. This Amendment may be executed in multiple counterparts, each of which shall be deemed an original but all of which, together, shall constitute one instrument. For the purposes of this Amendment, all executed facsimile counterpart copy of this Amendment shall be deemed an original for all purposes.
6. RATIFICATION. The remaining terms and provisions of the Agreement and are ratified and confirmed by Seller and Buyer and are incorporated in this Amendment by reference as if set forth fully herein.
[SIGNATURE PAGE TO SECOND AMENDMENT
TO PURCHASE AND SALE AGREEMENT]
This Amendment has been entered into as of the day and year first above written.
BUYER: | ||||
BAINBRIDGE COMMUNITIES ACQUISITION I, LLC, a Florida limited liability company |
By: | /S/ Xxxxxx Xxxxx |
Name: | Xxxxxx Xxxxx |
Title: | Vice President |
Dated: July 20, 2012 | ||||
SELLER: | ||||
BOULEVARD FOREST & TREES LLC, a North Carolina limited liability company |
By: | /S/ Xxxxxxx Xxxxxxxx |
Name: | Xxxxxxx Xxxxxxxx |
Title: | Registered Agent |
Dated: July 18, 2012 |
2
THIRD AMENDMENT TO PURCHASE AND SALE AGREEMENT
This Third Amendment to Purchase and Sale Agreement (“Amendment”) is entered into between BOULEVARD FOREST & TREES LLC, a North Carolina limited liability company (“Seller”), and BA1NBRIDGE COMMUNITIES ACQUISITION I, LLC, a Florida limited liability company (“Buyer”).
Seller and Buyer entered into Purchase and Sale Agreement with an effective date of March 5, 2012 (“Purchase Agreement”), as amended by that certain First Amendment to Purchase and Sale Agreement dated July 6, 2012 (“First Amendment”) and that certain Second Amendment to Purchase and Sale Agreement dated July 20, 2012 (“Second Amendment”, and together with the First Amendment and Purchase Agreement, the “Agreement”). Seller and Buyer desire to amend the Agreement as more particularly set forth below.
1. RECITALS. The above stated recitals are true and correct and are incorporated herein by this reference.
2. DEFINED TERMS. Capitalized terms which are not defined in this Amendment shall have the same meaning as defined in the Agreement. The term “Agreement” shall include this Amendment.
3. RECIPROCAL EASEMENT AND OPERATION AGREEMENT. Reference is made to paragraph 6 of the Response Letter (as defined in the First Amendment), wherein Seller recognizes the Item 8 Exception (as defined in the First Amendment). The parties agree that Buyer will have the right and option to cancel the Agreement upon written notice to Seller if Seller is unable to cure the Item 8 Exception to Buyer’s written satisfaction by August 3, 2012. Upon such cancellation, the Xxxxxxx Money Deposit shall be returned to Buyer and all rights and liabilities arising under the Agreement shall automatically terminate, with the exception of the obligations which expressly survive termination of the Agreement.
4. CONFLICTING TERMS. 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.
5. COUNTERPARTS; FACSIMILE SIGNATURES. This Amendment may be executed in multiple counterparts, each of which shall be deemed an original but all of which, together, shall constitute one instrument. For the purposes of this Amendment, an executed facsimile counterpart copy of this Amendment shall be deemed an original for all purposes.
6. RATIFICATION. The remaining terms and provisions of the Agreement and are ratified and confirmed by Seller and Buyer and are incorporated in this Amendment by reference as if set forth fully herein.
[SIGNATURE PAGE TO THIRD AMENDMENT
TO PURCHASE AND SALE AGREEMENT]
This Amendment has been entered into as of the day and year first above written.
BUYER: | ||||
BAINBRIDGE COMMUNITIES ACQUISITION I, LLC, a Florida limited liability company |
By: | /S/ Xxxxxx Xxxxx |
Name: | Xxxxxx Xxxxx |
Title: | Vice President |
Dated: July 27, 2012 | ||||
SELLER: | ||||
BOULEVARD FOREST & TREES LLC, a North Carolina limited liability company |
By: | /S/ Xxxxxxx Xxxxxxxx |
Name: | Xxxxxxx Xxxxxxxx |
Title: | Registered Agent |
Dated: July 26, 2012 |
2
FOURTH AMENDMENT TO PURCHASE AND SALE AGREEMENT
This Fourth Amendment to Purchase and Sale Agreement (“Amendment”) is entered into between BOULEVARD FOREST & TREES LLC, a North Carolina limited liability company (“Seller”), and BAINBRIDGE COMMUNITIES ACQUISITION I, LLC, a Florida limited liability company (“Buyer”).
Seller and Buyer entered into Purchase and Sale Agreement with an effective date of March 5, 2012 (“Purchase Agreement”), as amended by that certain First Amendment to Purchase and Sale Agreement dated July 6, 2012 (“First Amendment”), that certain Second Amendment to Purchase and Sale Agreement dated July 20, 2012 (“Second Amendment”) and that certain Third Amendment to Purchase and Sale Agreement dated July 27, 2012 (“Third Amendment”, and together with the First Amendment, Second Amendment and Purchase Agreement, the “Agreement”). Seller and Buyer desire to amend the Agreement as more particularly set forth below.
1. RECITALS. The above stated recitals are true and correct and are incorporated herein by this reference.
2. DEFINED TERMS. Capitalized terms which are not defined in this Amendment shall have the same meaning as defined in the Agreement. The term “Agreement” shall include this Amendment.
3. RECIPROCAL EASEMENT AND OPERATION AGREEMENT. Reference is made to paragraph 6 of the Response Letter (as defined in the First Amendment), wherein Seller recognizes the Item 8 Exception (as defined in the First Amendment). The parties agree that Buyer will have the right and option to cancel the Agreement upon written notice to Seller if Seller is unable to cure the Item 8 Exception to Buyer’s written satisfaction by August 17, 2012. Upon such cancellation, the Xxxxxxx Money Deposit shall be returned to Buyer and all rights and liabilities arising under the Agreement shall automatically terminate, with the exception of the obligations which expressly survive termination of the Agreement.
4. CONFLICTING TERMS. 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.
5. COUNTERPARTS; FACSIMILE SIGNATURES. This Amendment may be executed in multiple counterparts, each of which shall be deemed an original but all of which, together, shall constitute one instrument. For the purposes of this Amendment, an executed facsimile counterpart copy of this Amendment shall be deemed an original for all purposes.
6. RATIFICATION. The remaining terms and provisions of the Agreement and are ratified and confirmed by Seller and Buyer and are incorporated in this Amendment by reference as if set forth fully herein.
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[SIGNATURE PAGE TO FOURTH AMENDMENT
TO PURCHASE AND SALE AGREEMENT]
This Amendment has been entered into as of the day and year first above written.
BUYER: | ||||
BAINBRIDGE COMMUNITIES ACQUISITION I, LLC, a Florida limited liability company |
By: | /S/ Xxxxxx X. Xxxxxxx |
Name: | Xxxxxx X. Xxxxxxx |
Title: | Authorized Representative |
Dated: August 3, 2012 | ||||
SELLER: | ||||
BOULEVARD FOREST & TREES LLC, a North Carolina limited liability company |
By: | /S/ Xxxx X. Xxxxxxxx |
Name: | Xxxx X. Xxxxxxxx |
Title: | Vice President |
Dated: August 3, 2012 |
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FIFTH AMENDMENT TO PURCHASE AND SALE AGREEMENT
This Fifth Amendment to Purchase and Sale Agreement (“Amendment”) is entered into between BOULEVARD FOREST & TREES LLC, a North Carolina limited liability company (“Seller”), and BAINBRIDGE COMMUNITIES ACQUISITION I, LLC, a Florida limited liability company (“Buyer”).
Seller and Buyer entered into Purchase and Sale Agreement with an effective date of March 5, 2012 (“Purchase Agreement”), as amended by that certain First Amendment to Purchase and Sale Agreement dated July 6, 2012 (“First Amendment”), that certain Second Amendment to Purchase and Sale Agreement dated July 20, 2012 (“Second Amendment”), that certain Third Amendment to Purchase and Sale Agreement dated July 27, 2012 (“Third Amendment”) and that certain Fourth Amendment to Purchase and Sale Agreement dated August 3, 2012 (“Fourth Amendment”, and together with the First Amendment, Second Amendment, Third Amendment and Purchase Agreement, the “Agreement”). Seller and Buyer desire to amend the Agreement as more particularly set forth below.
1. RECITALS. The above stated recitals are true and correct and are incorporated herein by this reference.
2. DEFINED TERMS. Capitalized terms which are not defined in this Amendment shall have the same meaning as defined in the Agreement. The term “Agreement” shall include this Amendment.
3. RECIPROCAL EASEMENT AND OPERATION AGREEMENT. Reference is made to paragraph 6 of the Response Letter (as defined in the First Amendment), wherein Seller recognizes the Item 8 Exception (as defined in the First Amendment). The parties agree that Buyer will have the right and option to cancel the Agreement upon written notice to Seller if Seller is unable to cure the Item 8 Exception to Buyer’s written satisfaction by August 24, 2012. Upon such cancellation, the Xxxxxxx Money Deposit shall be returned to Buyer and all rights and liabilities arising under the Agreement shall automatically terminate, with the exception of the obligations which expressly survive termination of the Agreement.
4. MISCELLANEOUS TERMS. 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. This Amendment may be executed in multiple counterparts, each of which shall be deemed an original but all of which, together, shall constitute one instrument. For the purposes of this Amendment, an executed facsimile counterpart copy of this Amendment shall be deemed an original for all purposes. The remaining terms and provisions of the Agreement and are ratified and confirmed by Seller and Buyer and are incorporated in this Amendment by reference as if set forth fully herein.
[SIGNATURE PAGE TO FIFTH AMENDMENT
TO PURCHASE AND SALE AGREEMENT]
This Amendment has been entered into as of the day and year first above written.
BUYER: | ||||
BAINBRIDGE COMMUNITIES ACQUISITION I, LLC, a Florida limited liability company |
By: | /S/ Xxxxxx Xxxxx |
Name: | Xxxxxx Xxxxx |
Title: | Vice President |
Dated: August 17, 2012 | ||||
SELLER: | ||||
BOULEVARD FOREST & TREES LLC, a North Carolina limited liability company |
By: | /S/ Xxxxxxx Xxxxxxxx |
Name: | Xxxxxxx Xxxxxxxx |
Title: | Project Manager/Registered Agent |
Dated: August 17, 2012 |
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SIXTH AMENDMENT TO PURCHASE AND SALE AGREEMENT
This Sixth Amendment to Purchase and Sale Agreement (“Amendment”) is entered into between BOULEVARD FOREST & TREES LLC, a North Carolina limited liability company (“Seller”), and BAINBRIDGE COMMUNITIES ACQUISITION I, LLC, a Florida limited liability company (“Buyer”).
Seller and Buyer entered into Purchase and Sale Agreement with an effective date of March 5, 2012, as amended by that certain First Amendment to Purchase and Sale Agreement dated July 6, 2012, that certain Second Amendment to Purchase and Sale Agreement dated July 20, 2012, that certain Third Amendment to Purchase and Sale Agreement dated July 27, 2012, that certain Fourth Amendment to Purchase and Sale Agreement dated August 3, 2012 and that certain Fifth Amendment to Purchase and Sale Agreement dated August 17, 2012 (collectively, the “Agreement”). Seller and Buyer desire to amend the Agreement as more particularly set forth below.
1. RECITALS. The above stated recitals are true and correct and are incorporated herein by this reference.
2. DEFINED TERMS. Capitalized terms which are not defined in this Amendment shall have the same meaning as defined in the Agreement. The term “Agreement” shall include this Amendment
3. CLOSING DATE. The Closing Date is hereby modified to mean “60 days from the date of Buyer’s receipt of the City Approvals, provided however that in no event shall the Closing Date be later than March 29, 2013, unless extended pursuant to Section 6.1”.
4. MISCELLANEOUS TERMS. 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. This Amendment may be executed in multiple counterparts, each of which shall be deemed an original but all of which, together, shall constitute one instrument. For the purposes of this Amendment, an executed facsimile counterpart copy of this Amendment shall be deemed an original for all purposes. The remaining terms and provisions of the Agreement and are ratified and confirmed by Seller and Buyer and are incorporated in this Amendment by reference as if set forth fully herein.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
[SIGNATURE PAGE TO SIXTH AMENDMENT
TO PURCHASE AND SALE AGREEMENT]
This Amendment has been entered into as of the day and year first above written.
BUYER: | ||||
BAINBRIDGE COMMUNITIES ACQUISITION I, LLC, a Florida limited liability company |
By: | /S/ Xxxxxx Xxxxx |
Name: | Xxxxxx Xxxxx |
Title: | Vice President |
Dated: December 12, 2012 | ||||
SELLER: | ||||
BOULEVARD FOREST & TREES LLC, a North Carolina limited liability company |
By: | /S/ Xxxxxxx Xxxxxxxx |
Name: | Xxxxxxx Xxxxxxxx |
Title: | Registered Agent |
Dated: December 11, 2012 |
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