Exhibit 10.2
LOT PURCHASE AGREEMENT
THIS LOT PURCHASE AGREEMENT (this "Agreement") is made as of the Effective
Date (hereinafter defined) by and between WILDEWOOD RESIDENTIAL, LLC, a Maryland
limited liability company, hereinafter called "Seller," and WILDEWOOD
NEIGHBORHOODS, LLC, a Maryland limited liability company, hereinafter called
"Purchaser."
WITNESSETH:
WHEREAS, Seller is the owner of certain property located in St. Mary's
County (the "County"), Maryland, in the subdivision known as Wildewood, as more
fully shown and designated for single family home construction on the attached
Exhibit "A" (said property being hereinafter referred to as the "Property"); and
WHEREAS, Purchaser wishes to acquire a portion of the Property containing
the single family lots set forth on SCHEDULE 1 attached hereto (the "Lots"),
which lots will be duly and properly created upon the Property as shown on the
attached Exhibit "A."
NOW, THEREFORE, in consideration of the premises and of the promises
hereinafter set forth, the parties agree as follows:
1. Bargain and Sale.
Seller hereby promises and agrees to sell, and Purchaser hereby promises
and agrees to purchase, the Lots in accordance with the provisions of this
Agreement.
2. Deposit.
Within five (5) business days of the Effective Date, Purchaser shall
deliver to Seller a deposit in the amount of One Million Dollars
($1,000,000.00), by good check or wire transfer (the "Deposit"). Seller and
Purchaser hereby agree as follows with respect to the Deposit:
a. Should Purchaser refuse to settle on said Lots or in the event of
any breach, failure of default by Purchaser under the terms of this Agreement
(which breach, failure or default is not remedied or cured by Purchaser pursuant
to any other provisions hereof), Seller's sole and exclusive right and remedy
shall be to retain the Deposit, or so much thereof as shall then be remaining
after reduction pursuant to the provisions of Section 4 hereof, as full fixed
and liquidated damages, and not as a penalty; it being the agreement of the
parties that Purchaser shall have no liability or obligation for default
hereunder except to the extent of the Deposit made herein and in no event shall
Purchaser's liability or responsibility for any failure, breach or default
hereunder exceed the total amount of the Deposit as constituted after
application of the Deposit to any Lot closed for by Purchaser hereunder, and in
no event shall Seller be entitled to specific performance of this Agreement.
b. Purchaser and Seller hereby expressly understand and agree that the
Deposit may be pledged as collateral by Seller or otherwise used by Seller
during the term of this Agreement in any manner and for any purpose whatsoever
in connection with the Property; provided, however, that such use shall not
affect the obligation of Seller to return the Deposit to Purchaser in the event
of Seller's default, in accordance with the provisions of Section 11.b. hereof.
3. Purchase Price.
a. The base purchase price for the Lots shall be as set forth on
SCHEDULE 1 attached hereto (the "Base Purchase Price").
b. In the event that twenty percent (20%) of the contract price on
outsales of Lots to homeowners exceeds the Base Purchase Price theretofor paid
by Purchaser for such Lots (such excess amount being referred to herein as the
"Additional Purchase Price"), then, in such event, at settlement on the outsale
of each such Lot, Purchaser shall pay Seller the Additional Purchase Price, if
any, with respect to such Lot.
4. Payment of Purchase Price.
a. The Base Purchase Price for each Lot purchased hereunder shall be
paid in cash, by wire transfer, title company check, or certified funds or the
equivalent at closing on the purchase thereon. At settlement with respect to
each Lot, the amount of Seven Hundred Fifty Dollars ($750.00) per Lot shall be
applied from the Deposit against the Base Purchase Price for such Lot and the
Deposit shall thereupon mean the initial Deposit as reduced by the provisions of
this sentence.
b. The Additional Purchase Price, if any, for each Lot sold by
Purchaser to homeowners, shall be paid in cash, by wire transfer, title company
check, or certified funds or the equivalent at closing on such outsale to
homeowners.
c. As used herein, the term "Purchase Price," for any particular Lot
or Lots shall mean and refer to (i) the Base Purchase Price and (ii) the
Additional Purchase Price, if any.
5. Closing.
Purchaser and Seller hereby agree that Purchaser shall take down Lots on a
per "Quarter" (as defined below) basis in accordance with the takedown schedule
as set forth on Schedule 1 attached hereto. If in any Quarter purchases exceed
the then required takedown schedule, Purchaser shall be given a credit for such
Lots against the next required takedown schedule. Purchaser reserves the right
to accelerate the takedown schedule, subject to the availability of Lots. The
sequence of Lot takedowns shall be agreed upon by Seller and Purchaser.
Modifications to the sequence and/or the takedown schedule must be agreed upon
by both Seller and Purchaser. Notwithstanding the foregoing, Purchaser shall
have the right, exercisable in Purchaser's sole discretion by giving Seller not
less than ten (10) days prior written notice, to delay a scheduled takedown for
a period of ninety (90) days, in which event all subsequent
-2
takedowns shall occur ninety (90) days after the date originally scheduled for
such takedowns. Following the exercise of the foregoing deferral right, provided
Purchaser has subsequently satisfied the quarterly takedown obligation for not
less than three (3) consecutive Quarters, Purchaser shall have an additional
one-time right, exercisable in Purchaser's sole discretion by giving Seller not
less than ten (10) days prior written notice, to delay a scheduled takedown for
a period of ninety (90) days, in which event all subsequent takedowns shall
occur ninety (90) days after the date originally scheduled for such takedown.
a. "Quarter" as used herein shall mean the following calendar
quarters:
(i) January 1 to March 31 (first calendar Quarter);
(ii) April 1 to June 30 (second calendar Quarter);
(iii) July 1 to September 30 (third calendar Quarter); and
(iv) October 1 to December 31 (fourth calendar Quarter).
b. In the event Seller has not completed its obligations under this
Agreement and is unable to deliver finished Lots to satisfy Purchaser's takedown
obligations in accordance with the takedown schedule shown on Schedule 1, and
closing is delayed as a result thereof, the Purchase Price shall be the amount
Purchaser would have paid had the closing not been delayed, and increases in the
Purchase Price due to the application of the escalator shown on Schedule 1 shall
be abated accordingly.
c. Purchaser shall have the right at any time to settle on more Lots
than the number of Lots required to be purchased in such Quarter, provided
additional Lots are available for early settlement. Purchaser shall receive
credits toward the minimum number of Lots required to be purchased in any
period, for Lots purchased in excess of the minimum number, and such credits
shall be cumulative.
6. Additional Conditions to Closing for Lots.
Initial settlement for model Lots shall take place on or before fifteen
(15) days from the date on which Seller notifies Buyer that (i) building permits
for such model Lots are issuable by St. Mary's County, assuming timely filing of
all requisite applications and payment of standard fees; (ii) there is
construction access available to the model Lots; and (iii) the Lots are cleared
and graded as required under this Agreement. Thereafter, prior to all subsequent
settlements, each of the Lots shall have such improvements as would allow
Purchaser to obtain a building permit for the construction of a dwelling unit
thereon, and upon completion of such dwelling unit, a Certificate of Use and
Occupancy therefor assuming timely filing of all requisite applications and
payment of standard fees. Seller shall use commercially reasonable efforts to
complete the work described in Exhibit "B" attached hereto and incorporated
herein and in this section as to a number of Lots sufficient to enable the
initial settlement on the model lots within the third (3rd) calendar Quarter
following the acquisition of the Property by Seller, and shall thereafter
complete such work as to additional Lots such as will enable Purchaser to meet
its closing obligations set forth in Schedule 1.
-3
7. Transfer Imposts.
Seller shall pay all state and county transfer and recordation taxes
assessed at or related to each closing on Lots hereunder.
8. Settlement Costs.
Document preparation charges for the Deed, if any, shall be at the sole
expense of Seller and the cost of examination of title, title insurance,
Purchaser's settlement fees, and Purchaser's attorneys' fees shall be at the
sole expense of Purchaser. Seller shall be responsible for its own settlement
costs.
9. Place of Settlement.
Closings as herein required shall be held at Xxxxxx Xxxxx Xxxxx & Xxxx or
at such other settlement agent's office within the Washington, D.C. Metropolitan
Area or within the jurisdiction in which the Property is located as Purchaser
designates.
10. Adjustments.
All ad valorem taxes, metropolitan district charges, front foot or other
benefit charges or assessments, including deferred connection charges, if
applicable, and all other fees payable on an annual or periodic basis shall be
adjusted to the date(s) of closing and thereafter assumed by Purchaser. Seller
will be responsible for the payment of any presently enacted rezoning or
development tax which may be imposed on the Lots. Purchaser will be responsible
for any water and sewer capital facility connection charges and capital facility
assessment charges and any user fees applicable to the Lots, and if all or a
portion of the same has been paid by Seller prior to settlement, Purchaser shall
reimburse Seller at settlement for such charges on a pro-rata basis per Lots
settled.
11. Default.
a. Purchaser's Failure to Close. In the event of Purchaser's wrongful
failure to close upon a Lot or Lots as provided herein, Seller's sole remedy
shall be to retain the Deposit, as set forth more fully in Section 2.a. hereof.
b. Seller's Default. Except as set forth in the last paragraph of
Section 13 of this Agreement, in the event of default by Seller, Purchaser shall
have the right to (i) elect to terminate this Agreement and the Deposit (after
reduction pursuant to the provisions of Section 4 hereof) shall be returned to
Purchaser or (ii) bring a suit for specific performance against Seller with
regard to the obligations of Seller.
c. Notice and Cure. Except for payments by Purchaser required pursuant
to this Agreement, no failure or default by Purchaser or Seller, including
failure to timely exercise options, shall result in the termination or
limitation of any right hereunder or the exercise of any rights or remedies with
respect to such failure or default unless and until defaulting party shall
-4
have been notified in writing and shall have failed to remedy said failure
within fifteen (15) days after the receipt of said written notice. If such
failure or default is not curable within fifteen (15) days, then action to cure
shall begin within fifteen (15) days and be completed within thirty (30) days.
12. Seller's Representations.
As of the Effective Date of this Agreement, Seller represents, warrants and
covenants as follows, and it shall be a condition precedent to Purchaser's
obligation to consummate closing(s) that none of the following has been breached
or would be breached if remade as of their respective date(s) of closing(s):
a. For so long as this Agreement continues in effect, Seller shall not
cause any change in the Property from its present physical condition except as
required by governmental authorities and/or to finish the Lots, and shall not
commit any waste upon the Property.
b. Seller shall, during the terms of this Agreement, keep any existing
mortgage(s) against the Property current and not in default and cause to be paid
all taxes and other public charges against the Property so as to avoid
forfeiture of Purchaser's rights under this Agreement.
c. With the exception of restrictive covenants for the Wildewood
Community Association Inc., any other applicable homeowner association and all
other documents recorded or required to be recorded to subdivide the finished
Lots, Seller has not made and will not make any commitments or representations
to the applicable governmental authorities, any adjoining or surrounding
property owners, any civic association, any utility, or any other person or
entity, which would in any manner be binding upon Purchaser or interfere with
Purchaser's ability to utilize or develop the Property, without Purchaser's
prior written approval.
d. There is no violation of any law, ordinance, order or regulation
affecting the Lots resulting from Seller's actions, and Seller agrees to take
all necessary action to correct any such future violation caused or created by
Seller prior to closing and to convey the Property free thereof.
e. To the best knowledge of Seller, there are no hazardous or toxic
wastes or substances or petroleum waste or substances which are the subject of
any federal, state or local environmental or pollution control laws upon or
adjacent to the Property or any part thereof, and that it has received no
notification of, and has no knowledge of, any investigation of the Property or
any part thereof by the U.S. Environmental Protection Agency or any similar
federal, state or local governmental authority, and agrees to take all necessary
action to correct any such future violation caused or created by Seller prior or
after closing and to take such corrective action in order to convey the Property
free thereof.
-5
f. There is no action, suit, proceeding, inquiry or investigation at
law or in equity, before or by any court, public body or board or administrative
agency, pending or threatened, which in any way impairs title to the Lots and/or
creates an impediment to obtaining building permits for the Lots.
g. It has no knowledge of any pending or threatened condemnation
proceeding concerning any part of the Lots.
h. Connection with all utilities necessary to service residences upon
the Property, including but not limited to electric and public or private water
and sewer system, is reasonably available upon proper application.
i. The right of ingress to and egress from the Property, through
direct access to a dedicated public road or to a dedicated private road with
direct access to a dedicated public road, is reasonably available.
j. All dedications or fees in lieu thereof (other than as set forth in
Section 14 hereof), or as otherwise specified herein, shall have been made or
paid by Seller.
k. Seller shall provide Purchaser with all the information required to
be disclosed to Purchaser's third party purchasers, regarding the Homeowners'
Association for the Property. Seller shall have an ongoing responsibility to
deliver to Purchaser, in a timely manner, any substantial or material amendments
or changes to the information required to be delivered to Purchaser's third
party purchasers.
l. This Agreement has been duly authorized by Seller and all of its
individual and corporate stockholders, partners, members and participants, and
the terms hereof do not violate and are not inconsistent with any by-law,
statute, regulation, document, judicial or administrative proceeding, or
anything else to which Seller is legally bound and/or a party.
m. Seller is not a "foreign person" as defined in Section 1445(f)(3)
of the Internal Revenue Code as amended or replaced (the "Code"). At closing,
Seller shall execute the Affidavit required by Section 1445(b)(2) of the Code
and shall be responsible for filing such Affidavit as required. Seller shall
indemnify and hold Purchaser harmless against any and all claims arising out of
or relating to the execution, content or filing of the foregoing Affidavit.
Seller shall also comply with any other reporting requirements imposed by the
Code with respect to, or arising out of, the sale of the Property.
n. Seller shall grant and provide such licenses, easements, and
rights-of-way as Purchaser reasonably deems necessary for Purchaser's access to
the Property and for Purchaser's ingress and egress and such other easements or
rights-of-way needed for the purpose of Storm Water Quality Management or
utility service, all of the foregoing not to materially interfere with
development by Seller or materially devalue Seller's Property. All of the
foregoing licenses, easements and rights-of-way shall conform with County
requirements and approvals.
-6
o. As of each closing date, all sureties, bonds, and/or letters of
credit required by the County or all other governmental agencies (including
FHA/VA) in connection with Seller's development obligations shall have been
posted by Seller, in the amount required by appropriate governmental agencies.
p. Seller has disclosed, and provided Purchaser with copies of, any
and all proffers and agreements between Seller and the local government
officials, or otherwise affecting the Property, regarding the development of the
Property and construction of the Lots. Seller shall be solely responsible for
any and all monetary and development obligations set forth in any such proffers
and/or agreements, except for capital facility charges, impact fees and front
foot benefit assessments as hereinbefore set forth in this Agreement, which
shall be Purchaser's obligation except as otherwise provided in this Agreement.
13. Seller's Undertakings, Representations and Conditions Precedent.
In addition to the promises and agreements hereinabove made by Seller,
Seller, at its sole cost and expense, shall be responsible for further
undertakings as specified in this section. Purchaser's obligation to consummate
respective closings shall be conditioned upon the completion of the following
items as to the Lots to then be so closed upon (wherever in this Agreement there
is a reference to Seller having to take development activity "to a Lot and/or
Lot line," the same shall mean to a point five (5) feet beyond the curb in the
direction towards the Lot, such curb line being adjacent to the Lot):
a. Seller shall be responsible for all costs in connection with the
installation of the water and sewer mains to a Lot line and the construction and
implementation of on-site sewage and water treatment facilities.
b. The Lots shall be conveyed free of monetary liens, except for liens
previously set forth in this Agreement and those items to be adjusted as of each
closing hereunder, and zoned for the use contemplated herein.
c. Seller shall have obtained all off-site rights-of-way and easements
that may be necessary (i) for the installation of water and sanitary sewer to
the Lots and to serve each Lot therein, (ii) to accomplish all on-site and
off-site grading, (iii) for storm water management areas, and (iv) for streets
and roads to service the Lots.
d. Seller shall have prepared plans for public water and private
sanitary sewer distribution systems to serve each Lot, and obtained
authorization and approval of the same by the County and any other required
entity. Such payment or reimbursement shall occur simultaneously with the
settlement of each Lot. Water and sanitary sewer laterals shall be installed by
Seller to a Lot line, and otherwise complies with all governmental requirements.
Lateral ends and connections shall be clearly marked one time with a visible
pole or stake, at least 4 feet in height, for each location.
e. Seller shall install a duly authorized and approved public water
distribution system as a source of domestic water to each Lot subject hereto and
shall install the
-7
private sanitary sewer distribution system for each Lot subject hereto, such
installation to extend to a boundary of the Lot.
f. Seller shall have prepared plans for the grading and sediment
control, storm drains, streets, curb, gutter, sidewalk, paving, landscaping and
other improvements within the Property and/or the public right-of-way and any
areas to be conveyed to the Homeowners' Association and obtained necessary
approvals of such plans, including the site plan from the County, and all other
relevant jurisdictions.
g. Seller shall have obtained final and unappealable approval(s) from
the County and all appropriate governmental authorities of all documents
required of Seller necessary so that Purchaser can obtain building permits for
the dwelling units to be constructed on the Lots to be settled, including but
not limited to, site plans, authorizations, street construction permits, and
allocations for water and sewer with hook-up approvals. Any such allocation,
quarterly user fees and/or fees paid for by Seller prior to settlement shall be
reimbursed to Seller by Purchaser at settlement.
h. All engineering and site development plans for all Lots shall have
been completed and fully approved by all applicable governmental authorities.
Seller shall deliver to Purchaser a valid Engineer's Certificate, certifying to
Purchaser that the plans and specifications incident to the fulfillment of
Seller's obligations and all development improvements herein referred to meet,
exceed and conform to all applicable federal, state, county and other local
ordinances, regulations, standards and specifications.
i. Except as otherwise provided for in this Agreement, Seller shall be
responsible for all special assessments imposed or assessed upon the Property
for improvements by governmental authorities completed prior to the date hereof
or required to be installed to develop the Property for the purpose and use
contemplated under this Agreement, except for any deferred charges including
front foot benefit charges regularly assumed by eventual house purchasers, which
shall be adjusted to the date of transfer.
j. Seller shall cooperate with and deliver to Purchaser, at the sole
cost and expense of Purchaser, any and all things required to obtain, prepare or
cause to be prepared certain documents described in this subparagraph j., which
shall be in a form acceptable to Purchaser, such acceptance not to be
unreasonably withheld, and as may be required by the Veteran's Administration
(VA), Federal Housing Administration (FHA), and Federal National Mortgage
Association (FNMA). Seller agrees that it will, if required by any government
agency prior to the first settlement hereunder, amend any Declarations,
Articles, By-Laws or other Homeowners' Association documents to meet any agency
requirement, and supply Purchaser and the appropriate government agency all
information necessary to obtain requisite approvals. Anything to the contrary
notwithstanding, Seller shall not be entitled to reimbursement for overhead and
normal operating expenses in connection with the foregoing requirements of this
subparagraph j.
(i) A Declaration of Covenants, Conditions and Restrictions (the
"HOA Declaration") imposing architectural and residential use restrictions on
the Lots and, if
-8
required, providing for a Homeowners' Association with annual assessments
against each Lot for the purpose of providing funds for the maintenance of the
open space and recreation areas, if any, shown on the recorded subdivision plat,
which recreation areas, and open space within areas where said Lots are being
settled, have been conveyed to the Homeowners' Association by Seller prior to
the time homeowner(s) settle on the first Lot(s).
(ii) Articles of Incorporation for the Homeowners' Association.
(iii) By-Laws for the Homeowners' Association. Seller, at or
prior to the first settlement on the Lots, shall record the HOA Declaration
among the Land Records of the County and shall record and file the Articles of
Incorporation for the Homeowners' Association with the Virginia State
Corporation Commission.
k. The Lots to be conveyed hereunder shall be delivered free of
rubbish and/or debris.
l. It is a condition of closing(s) that water and sewer shall be
installed to a Lot line and approved by the appropriate authority, fully
contracted for and paid for by Seller to a Lot line (except as provided in
Section 10 hereof).
m. Seller shall be responsible to convey the Lots hereunder free from
any notices of violations by Seller of local ordinances or requirements issued
by legal authority or prosecutions of any court on account hereof.
If Seller is unable or unwilling to complete or fulfill its obligations as
set forth above in Sections 12 and 13 for the Lots to be closed or settled upon
by the herein specified times for the closings thereon, Purchaser may at its
option (i) settle on said Lots to be closed upon notwithstanding Seller's
failure but without waiving Seller's obligations to perform hereunder, or (ii)
delay closing until after Seller has satisfied its obligations, and all
subsequent closing obligations of Purchaser shall be delayed for an amount of
time equal to said delay and shall be subject to price, terms and conditions
that would have been in effect prior to said delay, (iii) terminate this
Agreement and receive a return of the Deposit (or so much thereof as shall then
be remaining), or (iv) proceed with such remedies as may be available to
Purchaser pursuant to Section 11 (entitled "Default") above. Anything to the
contrary notwithstanding, if Seller is unable to fulfill its obligations as set
forth in Sections 12 and 13 through no fault of Seller (e.g., moratorium imposed
by governmental action, acts of God, etc.), Purchaser's sole remedy in such
event shall be to (A) settle on said Lots notwithstanding such imposition, (B)
delay closing for a period not to exceed six (6) months or the end of such
moratorium, whichever shall first occur, or (C) terminate this Agreement and
receive a return of the Deposit (or so much thereof as shall then be remaining).
14. Additional Undertakings of Seller.
a. It shall be Seller's obligation to stabilize the Property in
accordance with governmental regulations. Except for construction of houses and
stabilization on Lots and green area, including building leadwalks, which shall
be constructed by Purchaser, Seller shall hold
-9
Purchaser harmless and indemnify it with respect to any condition or requirement
of Seller's Public Works Agreements, Sediment and Soil Erosion Agreements, and
Utility Agreements affecting the Lots, except for any negligent or intentional
act of Purchaser, its contractors, subcontractors or employees. Anything to the
contrary notwithstanding, Seller shall be responsible at all times for
stabilization of recreation areas, except for any negligence or intentional act
of Purchaser, its contractors, subcontractors or employees.
b. Seller, at its own expense, shall be responsible for snow removal
and street cleaning for public streets on the Property until the Homeowners'
Association or County or other local government entity shall assume such
responsibilities. Said public street cleaning and snow removal shall be the sole
responsibility and at the sole cost of Seller. However, any street cleaning
needed as a result of Purchaser's construction activities on the Lots shall be
the responsibility of Purchaser, at its sole cost.
15. Storage of Construction Equipment.
Seller shall provide space, within its Property, for the storage of
construction equipment, storage facilities and material which Purchaser's
subcontractors may from time to time reasonably require which shall be
temporarily screened from view if reasonably requested by Seller for aesthetic
reasons, which screening shall be comprised of the least expensive materials,
which do not materially detract from the aesthetics of the Property. Such space
shall be located in an area which would be easily accessible to Purchaser's
subcontractors and shall be located so it will not be detrimental to the
marketing of Purchaser's homes. Such space shall be made available at no cost to
Purchaser. Purchaser shall hold Seller harmless and indemnify it from any
liability Seller may incur for any damage to property or injury to third persons
which may result from Purchaser's utilization of the storage area. After the
settlement of the last Lot pursuant to the terms of this Agreement, or upon
earlier termination of this Agreement, any materials or equipment stored on the
storage area shall be removed and/or disassembled, and Purchaser shall be
responsible for restoring said area into the same condition as existed
immediately prior to Purchaser's utilization of the storage area.
16. Model Home Sites; Sales, Construction and Administration Trailers.
Purchaser and Seller shall coordinate and agree upon the number, location
and types of model homes, sales, construction and administration trailers or
offices that may placed upon the Lots, and such uses shall be in compliance with
all applicable governmental laws, rules and regulations.
17. Marketing Signs.
At all times during the term of this Agreement, Purchaser shall have the
right to erect and maintain marketing signs, of its own choice, on the Property
(including, without limitation, "For Sale" and "Sold" signs on any of the Lots)
in accordance with all governmental regulations, and subject to the approval of
Seller, which approval shall not be unreasonably withheld. It is the intention
of Seller and Purchaser that all signs within the community will be of similar
design and color as approved by Seller.
-10
18. Additional Undertakings and Warranties.
a. Purchaser shall not seek any site plan, phasing plan or development
plan amendment without the prior written approval of Seller, which approval
shall not be unreasonably withheld. In the event that Seller shall not have
responded to the submission of such plans within ten (10) days of receipt of
same, they shall be deemed approved by Seller.
b. Purchaser shall maintain all of its construction sites in an
orderly fashion and shall remove all debris and equipment, resulting from
Purchaser's activity, in a timely fashion.
c. Neither party shall permit mud, silt or construction debris to
accumulate upon any public or private street or road, and the responsible party
agrees to promptly clean such street or road, if required.
d. Purchaser shall defend and hold Seller harmless from and against
any and all claims or suits resulting from or arising out of the construction by
Purchaser of its houses upon the Property, including reasonable legal and expert
fees incurred, provided Seller shall have given prompt notice to Purchaser of
any claim against it.
e. Seller shall defend and hold Purchaser harmless from and against
any and all claims or suits resulting from or arising out of the conduct of
development or other work by Seller upon the Property provided Purchaser shall
have given prompt notice to Seller of any claim against it.
f. Purchaser's sales contracts with individual homeowners/purchasers
for the Lots shall reference the Wildewood Community Association Inc. and shall
require Purchaser to comply with all applicable provisions of the Maryland
Homeowners Association Act.
g. Purchaser's sales contracts with individual homeowners/purchasers
for the Lots shall comply with all applicable provisions of the Maryland Home
Builder Registration Act.
19. Quality of Title.
It is a condition of Purchaser's obligation hereunder that title to the
Lots be good and marketable, free of liens and encumbrances, and insurable by a
title insurance company holding membership in the American Land Title
Association at regular rates, subject to no conditions or encumbrances such as
would inhibit or prevent or impose any material burden or expense upon the
development of the Lots for residential purposes and the construction of
residential dwelling units thereon as Purchaser reasonably desires (other than
for expenses which Purchaser has agreed to pay). In the event title is
unacceptable to Purchaser and Purchaser so notifies Seller, Seller shall, within
five (5) days after receipt of such notice from Purchaser, notify Purchaser in
writing either (i) that Seller is unwilling or unable to correct such
unacceptable matters, or (ii) that Seller at its sole cost and expense shall
undertake promptly to eliminate or modify all such unacceptable matters to the
reasonable satisfaction of Purchaser. In the latter event, Seller agrees to use
its diligent efforts to promptly satisfy any such objections. In the event
Seller elects not to
-11
cure such unacceptable matters or is unable with the exercise of due diligence
to satisfy said objections within fifteen (15) days after said notice, Purchaser
may, at its option, (i) accept title and proceed to closing without an
adjustment of the Purchase Price, or (ii) rescind this Agreement with respect to
the affected Lot(s), whereupon this Agreement shall be of no further force and
effect with respect to the affected Lot(s) and the applicable pro-rata share of
the Deposit shall be returned Purchaser. The applicable pro-rata share of the
Deposit to be returned to Purchaser shall be equal to (a) the number of affected
Lots, divided by (b) the total number of Lots that Purchaser is obligated to
purchase under Section 2 above. Failure of Purchaser to notify Seller of title
defects prior to the scheduled date of closing shall be deemed an acceptance by
Purchaser of the then existing title of Seller.
Upon request by Purchaser, Seller shall execute such reasonable affidavits
and other similar type instruments as are required by Purchaser's title
insurance company relating to the status of title and for the elimination of any
standard or printed exceptions in Purchaser's final policy of title insurance,
including, without limitation, the exception for unfulfilled mechanics' liens.
20. Conveyance of Title.
Seller agrees to execute, acknowledge and deliver at each of the several
closings, deeds of conveyance containing covenants of special warranty and
further assurances as may be required.
21. Possession and Risk of Loss.
Possession of the Lots shall be delivered at time of closing thereon. The
risk of loss or damage to the respective Lots by fire or other casualty is
assumed by Seller until the date of closing thereon, except damage caused by
Purchaser in connection with Section 25 of this Agreement.
22. Brokerage.
Seller and Purchaser each represent to the other that they have dealt with
no agent or broker with respect to the transaction contemplated by this
Agreement. Seller shall defend, indemnify, and hold Purchaser harmless, and
Purchaser shall defend, indemnify, and hold Seller harmless, from and against
any loss, cost, expense, claim or cause of action of any nature (including, but
not limited to, court costs and reasonable attorneys' fees), arising from or out
of any breach of the foregoing representation by the respective indemnitors.
23. Notices.
All notices, demands, and communications ("Notices") permitted or required
to be given hereunder shall be in writing and shall be deemed duly given when
(i) hand delivered, or (ii) sent by commercial overnight courier, or (iii)
mailed, registered or certified United States Mail, return receipt requested,
first class, postage prepaid. Notices shall be addressed to Seller or Purchaser,
-12
as the case may be, at the address shown below or to such other address of which
either party shall notify the other in accordance with the provisions hereof:
To Seller: Wildewood Residential, LLC
0000 Xxxxxx Xxxxxxx Xxxxx
Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Alloy
With a copy to: Xxxxxxx Xxxxxx Companies, Inc.
0000 Xxxxxx Xxxxxxx Xxxxx
Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx, Esquire
To Purchaser: Wildewood Neighborhoods, LLC
0000 Xxxxxx Xxxxxxx Xxxxx
Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Alloy
With a copy to: Xxxxxxx Xxxxxx Companies, Inc.
0000 Xxxxxx Xxxxxxx Xxxxx
Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx, Esquire
24. Eminent Domain (Condemnation).
In the event condemnation or eminent domain proceedings (or private
purchase in lieu thereof) are commenced by any public or quasi-public authority
having jurisdiction against all or any part of the Lots, Seller shall promptly
so notify Purchaser. In the event that the condemnation takes all or any portion
of a Lot, Purchaser may, at its option by giving written notice to Seller, (i)
close on one less Lot than required under Schedule 1 hereof, or (ii) agree to
proceed to closing on such affected Lot, in which event Seller shall assign to
Purchaser at closing thereon any awards in condemnation and all rights in
connection with such condemnation relating to the affected Lot.
25. Right of Entry.
Provided there is no interference with Seller's development activities,
Seller shall permit Purchaser access to such portion of the Property as it shall
not have then acquired at all reasonable times for the purpose of performing
soil and engineering studies, sediment control or such other work as Purchaser
shall deem necessary or desirable in connection with its construction on the
Lots. Any damage by Purchaser to Property not conveyed to it shall be
-13
promptly repaired by Purchaser. The cost of all such undertakings by Purchaser
shall be borne by Purchaser. The provisions of this Section shall survive
termination of this Agreement.
26. Indemnification.
Purchaser agrees to indemnify, defend and hold Seller harmless from and
against any liabilities, obligations, claims, damages, demands, penalties,
causes of action, costs and expenses, including, without limitation, reasonable
attorneys' fees and expenses, whether arising out of injury or death to persons
or damage to the Property resulting from any wrongful act of Purchaser, its
contractors, subcontractors, officers, agents and employees in consequence of
Purchaser's entry onto such portions of the Property as shall then be owned by
Seller, as permitted by Section 25 above. The provisions of this Section shall
survive termination of this Agreement.
27. Approval of Purchaser's House Types.
Seller warrants and represents that to the best of its information and
belief, no private person, firm or corporation, except Seller and the homeowner
association architectural review committee and board of directors, has the right
to restrict or limit Purchaser in the size, design, placement on the Lot, cost
or any other aspect of the dwellings intended to be constructed by Purchaser on
the Lots. Seller shall timely review and not unreasonably withhold approval of
any house type, landscape plan and lot grading plan submitted by Purchaser for
approval, and shall deliver to Purchaser upon Purchaser's request confirmation
by Seller and the homeowner association architectural review committee (if
applicable) of their approval thereof.
28. Force Majeure.
In the event that after written notice to the other party either party
hereto shall be unintentionally or uncontrollably delayed, hindered or prevented
from the performance of any act required hereunder by reason of insurrection,
war, acts of God, governmental delay, adverse weather conditions, or other
reason of like nature, not the fault of the party delayed in performing work or
doing acts required under the terms of this Agreement, then performance of such
act shall be excused for the period of the delay, and the period for this
performance of any such act shall be extended for the lesser of (i) six (6)
months after written notice, or (ii) the time of such delay. If, upon the
expiration of the extension period, the required performance remains
unperformed, either party may at its option declare this Agreement null and
void; in such event, Purchaser's then remaining deposit shall be returned to
Purchaser, and there shall be no further liability on the part of either party
to the other. The aforesaid written notice must be given within ten (10) days
after the event of delay, or such delay shall be deemed waived.
29. Moratorium.
If the State or County, or any agency or subdivision thereof, declares a
moratorium on the issuance or use of permits for construction and/or occupancy
of residential dwellings within the Property and/or construction of improvements
required to be constructed by Seller, and because of such moratorium the County
will not issue any permits for the construction of Seller's
-14
improvements or use and occupancy of any single family dwellings upon the
Property, then either party hereto, upon written notice to the other party, may
extend the settlement date of the next occurring settlement for the length of
the moratorium, but not in excess of six (6) months. If, upon expiration of this
period, the moratorium remains in effect, Purchaser or Seller may at its option
either waive said condition and forthwith continue to settle Lots as provided
herein or declare this Agreement null and void; and there shall be no further
liability on the part of either party to the other. In the event of such delay,
the price, terms and conditions of the next occurring settlement shall be
subject to those which existed prior to said delay.
30. Survival.
All representations, warranties, covenants, agreements and indemnifications
set forth in or made pursuant to this Agreement shall remain operative and shall
survive the closing(s) on the purchase of Lots and the execution and delivery of
the deeds to Lots conveyed pursuant to this Agreement and shall not be merged
therein. In addition, if this Agreement is terminated pursuant to the terms
hereof, by either Purchaser or Seller, the representations, warranties,
covenants, agreements and indemnifications set forth herein or made pursuant to
this Agreement and accrued on or before the such termination, shall nevertheless
survive such termination and settlement of Lots.
31. Entire Agreement.
This Agreement, together with all exhibits and schedules attached hereto,
contains the entire agreement between the parties hereto and is intended to be
an integration of all prior agreements, conditions or undertakings between the
parties hereto. Except as expressly set forth herein or as contained in
contemporaneous written agreements, there are no promises, agreements,
conditions, undertakings, warranties or representations, oral or written,
expressed or implied, between Purchaser and Seller.
32. Relationship of the Parties.
Notwithstanding any other provision of this Agreement, or any agreements,
contracts or obligations which may derive herefrom, nothing herein shall be
construed to make the parties hereto partners or joint venturers, or to render
either party liable for any of the debts or obligations of the other party, it
being the intention of this Agreement to merely create the relationship of
Seller and Purchaser with regard to the Property and the particular Lots to be
conveyed hereby.
33. Amendments; Waivers.
No change or modification of this Agreement shall be valid unless the same
is in writing and signed by Purchaser and Seller. No purported or alleged waiver
of any of the provisions of this Agreement shall be binding or effective unless
in writing and signed by the party against whom it is sought to be enforced.
-15
34. Assignment of Agreement.
Purchaser shall not have the right to assign this Agreement, in whole or in
part, without prior written consent of Seller, which consent may be withheld in
Seller's sole and absolute discretion. Notwithstanding the above, Purchaser may
assign its rights and obligations hereunder, to an "Affiliate" (as hereinafter
defined) without Seller's consent. The term "Affiliate" shall mean and refer to
(a) any officer, director, trustee, partner, employee or holder of fifty percent
(50%) or more of any class of the voting securities of or equity interest in
Purchaser; (b) any corporation, partnership, trust or other entity controlling,
controlled by or under common control with Purchaser; (c) any officer, director,
trustee, partner, employee or holder of fifty percent (50%) or more of the
outstanding voting securities of any corporation, partnership, trust or other
entity controlling, controlled by or under common control with Purchaser; and
(d) any relative or spouse (or any relative of such spouse) of any natural
person included in clauses (a) or (c) above, who shares the same home as such
natural person.
35. Applicable Law.
This Agreement shall be governed by and construed in accordance with the
laws of the State of Virginia, without regard to its choice of law provisions.
36. Perpetuities.
If the rule against perpetuities or any other rule or law would invalidate
this Agreement or any portion hereof or would limit the time during which this
entire Agreement or any portion hereof shall be effective due to the potential
failure of any interest in property created herein to vest within a particular
time, then each such interest in property shall be effective only from the date
hereof until the passing of twenty-one (21) years after the death of the last
survivor of the members of the Senate of the United States of America
representing the State of Maryland who are serving on the date hereof, but each
such interest in property shall be extinguished after such time, and all other
interests in property created herein and all other provisions hereof shall
remain valid and effective without modification.
37. Counterparts.
This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
38. Authority.
Each party warrants to the other that it has full corporate authority to
enter into and perform this Agreement, and that the parties executing this
Agreement for each of them have been fully authorized to do so. Purchaser
represents to Seller that Purchaser is duly organized, validly existing and in
good standing under the laws of the State of Maryland, and qualified to do
business in the jurisdiction in which the property is located. Seller represents
to Purchaser that Seller is duly organized, validly existing and in good
standing under the laws of the State of Maryland.
-16
39. Effective Date.
The Effective Date of this Agreement shall be the later date on which it
has been executed by both Purchaser and Seller as indicated on the signature
page below.
40. Miscellaneous.
a. All notices of violations of orders or requirements noted or issued
by any County or local authority, or actions in any court on account thereof
against or affecting the Property at the date of settlement of this Agreement
shall be complied with by Seller and the Property conveyed free thereof.
b. Seller certifies that Seller has no knowledge of any published
preliminary or adopted zoning map amendment which may result in condemnation or
taking of any part of Seller's Property.
c. If any term, covenant or condition of this Agreement or the
application therefor to any person or circumstance shall be invalid or
unenforceable, then the remainder of this Agreement or the application of each
term or provisions to persons or circumstances other than those to which it is
held invalid or unenforceable shall not be affected thereby, and each term shall
be valid and enforceable to the fullest extent permitted by law.
d. This Agreement is and shall be unconditionally and irrevocably
subject and subordinate in all respects to the lien, legal effect and operation
of that certain Deed of Trust, Security Agreement and Fixture Filing with
Assignment of Rents, Proceeds and Agreements, dated as of January 20, 2004,
executed by Seller, as Grantor, for the benefit of Residential Funding
Corporation, as the same may be amended or otherwise modified from time to time
(the "Deed of Trust"), and to all renewals, consolidations, replacements and
extensions of the Deed of Trust, to the full extent of the principal amount and
all interest, fees and other charges secured thereby.
[REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK]
-17
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
indicated.
WITNESS: PURCHASER:
WILDEWOOD NEIGHBORHOODS, LLC,
a Maryland limited liability company
By:
------------------------------------- ------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Date:
----------------------------------
WITNESS: SELLER:
WILDEWOOD RESIDENTIAL, LLC,
a Maryland limited liability company
By:
------------------------------------- ------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Date:
----------------------------------
-18
SCHEDULE 1
EXHIBIT A
EXHIBIT B
