PURCHASE AND SALE AGREEMENT
Exhibit
10.48
THIS PURCHASE AND SALE AGREEMENT (“Agreement”) is made this 21st day of December, 2006, by and
between Xxxxxxxx Countryside, L.C. (“Seller”), a Virginia limited liability company and
Merion-Loudoun, LC, a Virginia limited liability company (“Purchaser”).
WITNESSETH:
WHEREAS, Seller is the Declarant of The Villas at Countryside Condominium in Sterling,
Virginia (the “Condominium”), and owns thirty (30) units therein, as identified on
Exhibit A attached hereto (the “Units”);
WHEREAS, Seller desires to sell and Purchaser desires to purchase the Units, and, in
conjunction therewith, Seller desires to transfer and Purchase desires to accept certain Special
Declarant Rights (as such term is defined in Section 55-79.41 of the Virginia Condominium Act)
relating to the Units, all in accordance with the terms and conditions hereof.
NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Agreement of Purchase and Sale. Seller hereby agrees to sell and convey
unto the Purchaser, and Purchaser hereby agrees to purchase from Seller, the Units at the price and
upon the terms and conditions hereinafter set forth.
2. Purchase Price. The purchase price for the Units shall be Four Million
Two Hundred Thousand and No/100 Dollars ($4,200,000) (the “Purchase Price”). The Purchase
Price shall be paid by Purchaser to Seller by wire transfer in immediately available funds at
closing hereunder (“Closing”).
3. Closing. Purchaser and Seller shall close on the sale of the Units no
later than December 27, 2006. Closing shall be conducted at the offices of Premier Title Company
(“Closing Agent”). At Closing, Seller shall convey the Units to Purchaser by special
warranty deed, which shall thereupon be recorded among the applicable land records. Seller shall
also deliver actual possession of the Units to Purchaser at Closing free and clear of all leases
and tenancies. Seller and Purchaser agree to execute and deliver such documents as may be
requested by Closing Agent to effect Closing. Seller shall pay the transfer tax applicable to this
transaction. Purchaser shall pay all other costs of Closing, including without limitation the cost
of obtaining title insurance and financing for the Units. Each party shall pay for its own
attorneys fees. All real estate taxes, utility bills, Condominium assessments and other charges
and fees related to the Units shall be prorated as of the date of Closing such that all such
expenses from and after the date of Closing shall be borne by Purchaser. Purchaser and Seller
agree to cooperate after Closing with respect to any adjustments to the prorations provided for
hereunder.
1
4. Marketing and Sales Agreement. At Closing, Seller and Purchaser shall
enter into an agreement, in the form attached hereto as Exhibit B, whereby Seller shall
become the exclusive agent for the marketing and sales of the Units.
5. Unit Outsale Contracts. At Closing, Seller and Purchaser shall enter in a
document which assigns the deposits, rights and obligations under existing unsettled contracts for
the sale of Units to retail purchasers (“Unit Outsale Contracts"). The Units which are subject to
a Unit Outsale Contract shall be as stated in Exhibit C-1 and copies of all Unit Outsale
Contracts shall be attached thereto as Exhibit C-2. The form of the assignment of Unit
Outsale Contracts is attached hereto as Exhibit C-3.
6. Special Declarant Rights. At Closing, Seller and Purchaser shall enter
into a document, in the form attached hereto as Exhibit D, whereby Seller shall transfer to
Purchaser certain Special Declarant Rights in order to facilitate the sale of Units and whereby
Purchaser becomes of Co-Declarant with the right to offer Units for sale under the governing
documents of the Condominium (the “Condominium Documents”). Said document shall thereupon
be recorded among the applicable land records immediately following the recordation of the special
warranty deed. Immediately thereafter, Purchaser shall cause the Condominium Registration
Application and the Public Offering Statement of the Condominium to be amended to reflect the
conveyance of the Units and transfer of Special Declarant Rights from Seller to Purchaser. Seller
and Purchaser each agree to promptly take all action necessary to effect the foregoing amendments.
7. Purchaser’s Default; Seller’s Remedy. In the event that Seller
performs all of its obligations hereunder and Purchaser fails to meet any of its obligations under
the Agreement or to complete settlement hereunder, Seller shall be entitled to terminate this
Agreement and shall have all remedies available at law or in equity, and thereupon the parties
hereto shall have no further rights or obligations hereunder.
8. Seller’s Default; Purchaser’s Remedy. In the
event that Seller fails to settle on the Property pursuant to the terms hereof or otherwise
breaches the terms hereof, Purchaser shall have, as its sole remedy, (i) the right to seek specific
performance under this Agreement and to recover all costs associated with obtaining specific
performance, including reasonable attorneys’ fees, and (ii) the license, without cost, to use all
marketing materials, brochures and the like to continue to market the Units; provided, however,
that Purchaser shall not use the name “Xxxxxxxx” in any such marketing.
9. Representations and Warranties. Seller hereby represents and warrants
that it is selling the Units to Purchaser with all of the representations and warranties made to
prospective purchasers in the Public Offering Statement for the Condominium and the Exhibits
thereto (collectively, the “POS”). Seller hereby acknowledges and agrees that any
warranty work on Units, or on any other units or the Common Elements in the Condominium, for which
Seller is responsible as Declarant under the Condominium Documents or as otherwise mandated by the
Virginia Condominium Act — shall be performed by Seller at its sole cost and expense. Seller and Purchaser hereby acknowledge that as Co-Declarants of the Condominium the statutory
warranty period provided in the Virginia Condominium Act shall not commence until each Unit has
been conveyed to a third party purchaser.
2
Except as expressly set forth in the POS or as otherwise mandated by the Virginia Condominium Act, Seller shall sell and convey to Purchaser, and
Purchaser shall accept, the Units in “as-is”, “where-is” condition. Planned renovations of the
Units, as more particularly described in Exhibit E attached hereto, shall be completed by
the Seller at the Seller’s sole expense within sixty (60) days of Closing. Seller shall remain
responsible for all obligations incurred or outstanding with regard to improvements to the Units.
10. Receipt of POS. Purchaser hereby acknowledges having received the POS,
and hereby waives its right to rescind this Agreement following the full-execution hereof.
11. General Provisions.
a. Broker. Purchaser and Seller warrant that they have not dealt with any broker in
the transaction contemplated hereby. Seller and Purchaser each agree to indemnify and hold
harmless the other party from any claim for commission by any broker or agent claiming any such
commission for or through either Seller or Purchaser other than referenced herein.
b. Applicable Law. The provisions of this Agreement and the application thereof shall
be governed by the laws of the Commonwealth of Virginia, without regard to its conflicts of laws
principles.
c. Merger. Unless otherwise expressly stated to the contrary, the provisions of this
Agreement shall be merged into the execution and delivery of the deed and shall not survive
closing.
d. Computation of Time. In the event that any period of time provided for under this
Agreement expires, or falls upon, a Saturday, Sunday or legal holiday, then said period of time
will be deemed to be extended to the immediately following business day. Time shall be of the
essence for all purposes under this Agreement.
e. Entire Agreement. This Agreement constitutes the entire agreement by and between
the parties. No amendment, modification, or waiver under this Agreement shall be effective unless
in writing and signed by both parties.
f. Notices. Unless otherwise agreed to by the parties any and all notices required
hereunder shall be sent to the parties by hand delivery or overnight delivery service or by
certified or registered mail, return receipt requested, (or by facsimile transmission when followed
by delivery of the original) at the following addresses:
If to Seller: |
Xxxxxxxx Countryside, L.C. |
c/x Xxxxxxxx Homebuilding Companies, Inc. |
00000 Xxxxxx Xxxxx Xxxx, 0xx Xxxxx |
Xxxxxx, Xxxxxxxx 00000 |
Attn: Xxxxxxxxxxx Xxxxxxxx |
3
If to Purchaser: |
Xxxxxxx X. Xxxxxxx |
000 Xxxxxxx Xxxxxx |
XxXxxx, Xxxxxxxx 00000 |
Fax: (000) 000-0000 |
Any party shall have the right to change the place where notices are to be sent by written notice
to the other party.
g. Assignment. This Agreement and the benefits hereunder are assignable by
Purchaser only upon the prior written consent of Seller. This Agreement is assignable by Seller to
parties under common control of Seller and shall be binding upon its successors and assigns.
h. Counterparts. This Agreement may be executed in counterparts, each of which shall
constitute an original.
g. Survival. The obligations contained in Sections 4 through 9 and 11 of this
Purchase and Sale Agreement shall survive Closing and shall not be merged into the deed of
conveyance for the Units.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
4
IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective as of the date
first set forth above.
| SELLER: | ||||||||
| Xxxxxxxx Countryside, L.C., a Virginia limited liability company | ||||||||
| By: | Xxxxxxxx Homebuilding Companies, Inc., Its Manager |
|||||||
| By: | /s/ Xxxxxxxxxxx Xxxxxxxx | |||||||
| Xxxxxxxxxxx Xxxxxxxx | ||||||||
| Chief Executive Officer | ||||||||
| PURCHASER: | ||||||||
| Merion-Loudoun, LC, a Virginia limited liability company |
||||||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||||||
| Name: | Xxxxxxx X. Xxxxxxx | |||||||
| Title: | Managing Member | |||||||
5
