AGREEMENT OF PURCHASE & SALE BANKSTON MEADOWS - PHASE 1
AGREEMENT
OF PURCHASE & SALE
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▇▇▇▇▇▇▇ -
PHASE 1
This
Agreement of Purchase and Sale (“Agreement”),
dated
to be effective June 3, 2005 (“Effective
Date”),
is
entered into by and between the following Parties (in the plural, “Parties”
and in
the singular, “Party”):
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SELLER:
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Genesis
Land Development
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With
a copy to:
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Attn:
▇▇▇ ▇▇▇▇▇▇▇▇
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________________________________
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▇▇▇ ▇▇▇▇
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________________________________
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▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇
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________________________________
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Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
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Telephone
(___) ____ - _______
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Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
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Facsimile:
(___) ____ - _______
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PURCHASER:
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Wall
Homes, Inc.
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With
copy to:
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Attn:
▇▇▇▇▇ ▇▇▇▇, CEO
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▇▇▇▇
▇▇▇▇▇▇▇
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Mailing
Address:
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Mailing
Address:
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▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, #▇▇▇
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▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, #▇▇▇
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▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇
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Office
Address:
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Office
Address:
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▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, #▇▇▇
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▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇
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Phone:
(▇▇▇) ▇▇▇-▇▇▇▇
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Phone:
(▇▇▇) ▇▇▇-▇▇▇▇
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Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
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WITNESSETH:
I.
AGREEMENT TO BUY AND SELL
1.1
Lots.
For
valuable consideration, the receipt of which is hereby acknowledged, and in
further consideration of the mutual promises of the Parties hereto, subject
to
all provisions hereof, Seller agrees to sell and convey to Purchaser and
Purchaser agrees to buy and pay for certain real property comprised of 173
Lots
of the numbered Plats in ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ -
▇▇▇▇▇ ▇,
an addition to the City of Mansfield, Texas as shown on the Preliminary Plat
prepared by Land Con and dated June 2, 2003 (“Preliminary
Plat”),
which
Plat reflects a total of approximately 173 Lots and which is attached hereto
as
Exhibit A-1 and made a part hereof for all purposes, together with any and
all
improvements situated thereon. At Seller’s
option,
Seller may delete ▇▇▇▇ ▇, ▇, ▇ ▇▇ ▇▇▇▇▇ 2 from the contract within 60 days
after
the Effective Date.
1.2
Right
of First Refusal.
In the
event Seller develops future phases of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Seller hereby grants
Purchaser a right of first refusal to purchase half of the Lots in said future
phases. Terms shall be generally the same as in the Agreement, except that
the
purchase price of the lots subject to this Right shall be at a price equal
to
the lower of (i) the price the Lots of Phase II will be available for purchase
in the open market, or (ii) the Purchase Price for Lots set forth in this
Agreement plus ten percent of such Purchase Price.
II.
▇▇▇▇▇▇▇ MONEY; FEASIBILITY PERIOD
2.1
▇▇▇▇▇▇▇
Money.
Within
ten (10) Business Days after the Effective Date, Purchaser shall deposit the
sum
of Five Thousand and No/100 Dollars ($5,000.00) in cash with
LandAmerica/American Title Company, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ Peace (the “Title
Company”).
Within
five (5) Business Days after the expiration of the Feasibility Period, Purchaser
shall deposit the sum of One Hundred Sixty Eight Thousand and No/100 Dollars
($168,000.00) with the Title Company. The deposits shall be held by the Title
Company and placed in a non-term interest bearing account at a financial
institution insured by the Federal Deposit Insurance Corporation. The deposits
shall be herein referred to as ▇▇▇▇▇▇▇ Money (“▇▇▇▇▇▇▇
Money”).
The
▇▇▇▇▇▇▇ Money shall be credited on a pro rata basis toward payment of the
Purchase Price (herein defined) at the Closing (herein defined) of the last
twenty (20) Lots; provided, however, that, at Purchaser’s
option,
the portion of the ▇▇▇▇▇▇▇ Money which represents interest accrual may be
released to Purchaser at such Closing. All interest accrued on the ▇▇▇▇▇▇▇
Money
shall be payable to Purchaser only.
2.2
Change
of Title Company.
In the
event Purchaser elects to change the Title Company, Purchaser shall provide
written notification of such change to Seller ten (10) days prior to such
change. Any such change in the Title Company shall not require an amendment
to
this Agreement and is not subject to Seller’s
approval.
2.3
Feasibility
Period.
Purchaser is hereby granted a period thirty (30) days from receipt of all the
following: Preliminary Plat, Grading Plan, Soils Report, and Deed Restrictions
(if applicable) within which to review the feasibility of the Property for
Purchaser’s
intended use as a single-family subdivision (the “Feasibility
Period”).
In
addition to the documents referenced herein, Purchaser’s
review
may include, but is not limited to: availability of utilities; determinations
regarding flood prone areas or designated wetlands; access; availability of
building permits with no moratoriums of any nature being in effect; and,
governmental zoning ordinances and building codes. In the event Purchaser
delivers timely disapproval by written notice to Seller that the Property is
not
suitable for Purchaser’s
intended use Purchaser may, at its option, (a) terminate this Agreement by
written notice to Seller, in which event the ▇▇▇▇▇▇▇ Money and any interest
earned thereon shall be returned to Purchaser or (b) accept the Property in
its
then current condition.
III.
PURCHASE PRICE OF LOTS
3.1
Total
Purchase Price.
The
Purchase Price to be paid by Purchaser to Seller for all the Lots shall be
the
sum of the following amounts (“Total
Purchase Price”):
a.
Base
Purchase Price.
With
respect to each Lot conveyed to Purchaser at the Initial Closing (herein
defined) of each phase, Purchaser shall pay to Seller the base price of THIRTY
EIGHT THOUSAND FIVE HUNDRED AND NO/100 DOLLARS ($38,500.00) (“Base
Purchase Price”).
b.
Increased
Purchase Price.
The Base
Purchase Price shall escalate from the latter of the Initial Closing or the
Completion Date to the date of purchase of a particular lot as a rate equal
to
6% per annum; provided, however, the escalation shall not accrue during any
period of time when (i) any repairs required to achieve the Completion Date
have
not been completed (ii) a closing is delayed due to the acts or omissions of
Seller or its agents or contractors, or due to Seller’s
breach
of its obligations hereunder, or (iii) there is a moratorium imposed by any
authority or utility suppliers with respect to the issuance of building permits
affecting the property or sanitary sewer, water, natural gas, electricity or
telephone connections with respect to the property.
3.2
Purchase
Price.
As used
herein, the term Purchase Price may refer to the Base Purchase Price and/or
the
Increased Purchase Price, as may be appropriate in the context of the
sentence.
3.3
Payment
in Cash.
The
Purchase Price for each Lot shall be payable all in cash or certified funds
at
each Closing.
3.4 Property
Taxes & ▇▇▇ ▇▇▇▇.
a.
Prorations
& Payment.
Real
property taxes and Homeowners Dues on all Lots shall be prorated as of the
date
of each Lot’s
closing. Said taxes shall be paid at each Lot’s
closing.
b.
Tax
Status Notification.
Prior to
the Initial Closing the Title Company shall notify Seller and Purchaser as
to
the tax status of each Lot, i.e., whether the taxes and prorations of those
taxes are being calculated on an agricultural basis or as a platted
lot.
3.5
Rollback
Taxes.
All
rollback taxes shall be paid by Seller on or before the date of each
Lot’s
closing
in compliance with the policies of the taxing jurisdictions.
3.6
Impact
Fees.
All
impact fees, inclusive of, but limited to water and sewer tap fees, that are
due
as a condition of final plat approval, shall be the responsibility of Seller
and
shall be paid prior to the Initial Closing. All other impact fees arising or
becoming due thereafter shall be the responsibility of the
Purchaser.
IV.
TITLE
TO BE CONVEYED
4.1
Conveyance
by Deed; Permitted Exceptions.
The
conveyance of the Lots from Seller to Purchaser shall take place in a series
of
closings, commencing with the Initial Closing and continuing in accordance
with
the Closing Schedule described in Article VII hereof until all the Lots have
been conveyed to Purchaser. At each closing hereunder, the Seller will have
and
will convey to Purchaser, and Purchaser will acquire, by General Warranty Deed
(“Deed”)
good
and marketable title. Each Lot will be conveyed to Purchaser free and clear
of
liens and encumbrances, except the following Permitted Exceptions (the
“Permitted
Exceptions”):
a.
Taxes
for the current, and subsequent years, which are not yet due and
payable;
b.
The
deed restrictions pertaining to the Property to be filed of record by Seller
(“Deed
Restrictions”),
which
are approved by Purchaser, and a copy of which are attached hereto as Exhibit
“D”;
c.
Zoning
ordinances of the City; and
d.
Any
other exceptions to title, including the exceptions to title set forth in the
Title Commitment issued by the company named herein to issue a title opinion
to
the Buyer which exceptions are not objected to in writing by the
Purchaser.
4.2
Commitment
for Title Insurance Objections.
Seller
shall deliver a Commitment for Title Insurance (“Commitment”)
issued
by the Title Company, together with true and legible copies of all items
referred to as exceptions therein (“Exceptions”)
within
fifteen (15) Business Days following the Effective Date. The Commitment shall
be
dated not earlier than this Agreement, and shall show title to be vested in
Seller. Purchaser shall have fifteen (15) Business Days after receipt of such
Commitment and copies of the Exceptions in which to approve or disapprove the
Commitment and the Exceptions. If Purchaser deems any Exceptions to be
unacceptable, Purchaser shall, prior to the expiration of said fifteen (15)
Business Day period, notify Seller in writing of such fact. If Purchaser shall
fail to provide Seller written notice of any objection thereto (“Objection(s)”)
prior
to the expiration of such fifteen (15) Business Day period, Purchaser shall
be
deemed to have approved the Commitment and the Exceptions and shall have waived
any Objections(s) it may have. Seller may, but shall not be obligated to, then
undertake to eliminate or modify such Objection(s) to the satisfaction of
Purchaser. Seller must notify Purchaser in writing within three (3) business
days following the date upon which Seller receives Purchaser’s
notice
of Objection(s) as to whether Seller intends to attempt to cure such
Objection(s). In the event Seller is unwilling or unable to eliminate or modify
such Objection(s) to the satisfaction of Purchaser within twenty (20) Business
Days after receipt of notice of such Objection(s), Purchaser may, at its option,
(a) terminate this Agreement by written notice to Seller within five (5)
Business days thereafter, in which event the ▇▇▇▇▇▇▇ Money and any interest
earned thereon shall be returned to Purchaser or (b) accept title to the
Property in the condition set forth in the Commitment. The failure of Purchaser
to terminate the Agreement within such five (5) Business Day period shall be
deemed an election by Purchaser to not so terminate.
4.3
Possession.
Possession of each Lot conveyed to Purchaser shall be delivered to Purchaser
on
the date of such conveyance, free and clear of any party in possession of each
Lot.
V.
FAILURE TO PERFORM
5.1
Seller’s
Default.
In the
event Seller fails to consummate any or all of the transactions contemplated
hereby or breaches any of the representations, warranties or covenants herein
made by Seller, and Purchaser is not then in default hereunder, at
Purchaser’s
option
and as Purchaser’s
exclusive remedies, Purchaser (a) shall be entitled to the refund of the
remaining ▇▇▇▇▇▇▇ Money and any interest earned thereon, in which event neither
Party shall have any right, duty or future obligation to the other, or (b)
enforce specific performance of Seller’s
obligations hereunder. Notwithstanding the foregoing, Seller shall not be deemed
to be in default hereunder unless Purchaser first provides Seller with a written
notice identifying the default and Seller has failed to cure such default within
twenty (20) Business Days after receipt of such notice of default.
5.2
Purchaser’s
Default.
In the
event Purchaser fails to purchase any of the Lots on or prior to the Closing
Schedule for such purchase, and Seller is not then in default hereunder, Seller
may, at Seller’s
option
and as Seller’s
exclusive remedies, declare that Purchaser is in default hereunder by delivering
written notice thereof to Purchaser in which event the remaining ▇▇▇▇▇▇▇ Money
currently on deposit shall be deemed forfeited by Purchaser, the Title Company
shall immediately deliver the remaining ▇▇▇▇▇▇▇ Money to Seller, as liquidated
damages, as Seller’s
sole
and exclusive remedy, and this Agreement shall be deemed terminated, and the
Parties hereto shall have no further rights, obligations or responsibilities
hereunder. Seller hereby waives all claims against Purchaser for damages of
every kind except for the liquated damages set forth herein and damages caused
to the land by the Purchaser, its employees, contractors, agents, or invitees.
Notwithstanding the foregoing, Purchaser shall not be deemed to be in default
hereunder unless Seller first provides Purchaser with a written notice
identifying the default and Purchaser has failed to cure such default within
twenty (20) Business Days after receipt of such notice of default.
VI.
CONDITIONS PRECEDENT TO CLOSING
6.1
Intentionally
deleted.
6.2
Condition
Precedent to Purchaser’s
Obligation to Close: City’s
Approval of Preliminary Plat and Engineering Plans.
Purchaser’s
obligation to consummate the transaction contemplated hereby is expressly
subject to (a) Seller’s
obtaining approval by the City of the Preliminary Plat and engineering plans
for
the Property, generally shown on the Preliminary Plat attached hereto as Exhibit
“A”
and (b)
Purchaser’s
approval of the Preliminary Plat in Purchaser’s
discretion. In the event Seller is unable to obtain approval by the City of
the
Preliminary Plat and engineering plans for the Property acceptable to Purchaser,
this Agreement may be terminated by Purchaser, and the ▇▇▇▇▇▇▇ Money must be
returned to Purchaser and neither Party has any further right, duty or
obligations to the other Party.
VII.
CLOSING SCHEDULE AND LOCATION
7.1
Initial
Lot Closing & Early Lot Closing.
For
Lots closed at the Initial Closing or prior to the Initial Closing the following
shall apply:
a.
Initial
Closing.
Subject
to the provisions of Article VIII hereof, the Closing of the purchase and sale
of the first Lots (“Initial
Closing”)
shall
occur within the latter to occur of (a) fifteen (15) Business Days after the
Completion Date, or (b) fifteen (15) Business Days following the recording
of
the Final Plat, or (c) fifteen business days following the expiration of the
Feasibility Period. At the Initial Closing Purchaser shall purchase a minimum
of
sixty (60) Lots.
b.
Closings
Prior to Completion Date.
In the
event Purchaser elects to purchase Lots prior to the Completion Date (herein
defined) such closing(s) shall not waive Seller’s
obligations regarding completion of construction of any of the Lots. Further,
any Lots purchased prior to the Completion Date shall not trigger obligations
regarding the Initial Closing, the Closing Schedule in Exhibit “B”
or Price
Appreciation. Said Lots shall be applicable to future takedown
obligations.
7.2
Subsequent
Closing Periods.
Purchaser shall purchase additional Lots after the Initial Closing according
to
the Closing Schedule in Exhibit “B”.
The
exact number of Lots to be purchased by Purchaser at any particular closing
shall be determined by Purchaser, but not less than those shown on Exhibit
“B”.
All
Lots purchased during any Subsequent Closing Period in excess of those required
in this Section 7.2 shall serve to satisfy the requirements of Purchaser to
acquire Lots during the next Subsequent Closing Period(s).
7.3
Suspension
of Closing Schedule.
If the
requirements of Paragraph 8.1 hereof are not timely met, the Closing Schedule
set forth in Article VII and the Price Appreciation referenced in Section 3.1b
shall be suspended until such requirements are met.
7.4 Location
of Closing.
Closing
shall take place at the office of Title Company.
7.5
Purchaser’s
Failure to Close.
If at
any time Purchaser fails to close at least the number of Lots in the time
periods and in the manner described by Section 7.1 and 7.2 hereof, Purchaser
shall be deemed to have failed to perform hereunder and Seller shall have the
rights prescribed in Section 5.2 hereof.
7.6
Property
Inspection.
Prior
to the Initial Closing and any subsequent Quarter Annual Period closings
Purchaser shall have the right, but not the obligation, to physically inspect
the Lots to ensure that the Lots have been maintained within the Development
Specifications (herein defined) set forth in Section VIII and Exhibit
“C”
below.
VIII.
DEVELOPMENT SPECIFICATIONS; PROPERTY REPORTS REVIEW PERIOD; COMPLETION
DATE
8.1
Development
Specifications.
Development of the Lots shall be complete upon satisfaction by Seller, at
Seller’s
sole
cost and expense, of the Development Specifications for the Lots (“Development
Specifications”),
a copy
of which are attached hereto as Exhibit “C”.
8.2
Review
of Grading Plan, Drainage Plan & Preliminary Soils Report.
On or
before forty-five (45) days following the Effective Date, Seller shall provide
Purchaser a Grading Plan (“Grading
Plan), Drainage Plan (“Drainage
Plan) and Preliminary Soils Report (“Preliminary
Soils Report) for the Property and the Lots, collectively referred to as the
Property Reports (“Property
Reports”).
Purchaser is hereby granted a period of fifteen (15) Business Days from the
date
the last of the Property Reports is received within which to review the Property
Reports and to determine the acceptability of the developed Lots for the
construction of single-family homes (the “Property
Reports Review Period”).
In
the
event Purchaser objects to any of the Property Reports, Purchaser shall provide
Seller, in writing, a list of such objections and Seller shall resolve such
objections to the satisfaction of the Purchaser within fifteen (15) Business
Days thereafter at Seller’s
sole
cost and expense. In the event Seller cannot or will not resolve such
objection(s), Purchaser may, at its option, (a) terminate this Agreement, in
which event all ▇▇▇▇▇▇▇ Money shall be returned to Purchaser and the Parties
have no further obligation to one another or (b) accept the Property Reports
and
the condition of the Property. At any time prior to the expiration of the
Property Reports Review Period Purchaser may terminate this Agreement by written
notice to Seller that the Lots are not acceptable for Purchaser’s
intended use and all ▇▇▇▇▇▇▇ Money and any interest earned thereon must be
returned to Purchaser.
a.
Grading
Plan.
The
Grading Plan (“Grading
Plan) shall indicate for each completed Lot the final elevation of each
Lot’s
corners, the final elevation of each building pad and the slope of each Lot
(including from the back lot line to the front lot line, from the side lot
line
to the opposite side lot line, and from the final elevation of the building
pad
to the front, side and rear lot lines). Any retaining walls that are required
along any lot lines shall be shown on the Grading Plan. All retaining walls
required to be constructed by Seller have been completed as of the Effective
Date of this Agreement.
b.
Drainage
Plan.
The
Drainage Plan (“Drainage
Plan”)
shall
indicate for each completed Lot the direction of all surface water flow across
each Lot upon the completion of construction.
c.
Preliminary
Soils Report.
The
Preliminary Soils Report (“Preliminary
Soils Report”)
shall
consist of number of borings spaced no further than three hundred (300) feet
apart with a minimum of one (1) boring per acre. The samples taken may consist
of borings taken for street design and from the locations of completed Lots.
Each boring shall be a minimum of 15 feet in depth. The Preliminary Soils Report
shall include data on PVR (potential vertical rise), effective PI (plasticity
index) and PTI (Post Tension Institute) parameters. The Preliminary Soils Report
shall not
include
any recommendations regarding foundation design from the firm preparing the
report.
8.3
Completion
Date.
Within
fifteen (15) Business Days of the Effective Date Seller shall provide Purchaser
a Development Timeline (the “Development
Timeline”)
indicating the estimated start and completion dates of the stages of the
development of the Property. The stages may include preliminary engineering,
zoning, preliminary plat approval, engineering, clearing & grubbing,
installation of water/waste water/storm water facilities, curbs & gutters,
paving, utilities, installation of EPA, TCEQ and/or Municipal Separate Storm
Sewer System storm water management items and municipal sign-off. Seller shall
keep Purchaser advised as to the status of the development of the Lots and
shall
provide an updated Development Timeline to Purchaser as needed.
When
Seller believes that the Development Specifications have been satisfied, Seller
or Seller’s
engineer shall promptly furnish Purchaser (a) written certification that the
Development Specifications have been completed on a lien-free basis (except
for
the Loan) and (b) the various materials outlined in the Development
Specifications. The date Purchaser approves Seller’s
certification and the materials outlined in the development Specifications
shall
be the Completion Date (the “Completion
Date”).
Upon
actual receipt of Seller’s
certification and the materials outlined in Exhibit “C”,
Purchaser or its designated agents shall have ten (10) Business Days within
which to review the materials from the Development Specifications, inspect
the
Lots and conduct such other investigations Purchaser deems necessary to
determine if the Development Specifications have been satisfied. Purchaser
must
notify Seller within such ten (10) Business Day period Purchaser’s
acknowledgement of the satisfaction of the Development
Specifications.
If,
in
the opinion of Purchaser the Development Specifications have not been satisfied,
Purchaser shall within such ten (10) Business Day period notify Seller in
writing of any non-compliance with the Development Specifications, whereupon
Seller shall promptly correct, at its sole cost and expense, any such
non-compliance. The date on which Seller actually has corrected all
non-compliance with the Development Specifications and has furnished written
notice of same to Purchaser shall then be referred to herein as the Completion
Date.
Seller
and Seller’s
engineer shall certify in writing to Purchaser that none of the Lots are within
the one hundred-(100) year flood plain. In the event any portion of any Lot
or
Lots are reclaimed from land within the 100-year flood plain, Seller shall
be
solely responsible for processing, in a timely manner, any revisions to any
Federal Emergency Management Administration (“FEMA”)
maps.
In the event more than thirty percent (30%) of the Lots in any phase of the
development of the Property are reclaimed from the 100-year flood plain, and
the
FEMA maps have not been revised and provided to Purchaser, none of the Lots
in
the affected phase shall be considered substantially complete under this Section
8.3. However, Purchaser, at Purchaser’s
sole
option, may proceed to close Lots prior to completion of these FEMA issues.
In
the event required revisions to the FEMA maps are not completed within one
hundred twenty (120) days from the Completion Date, Purchaser, at
Purchaser’s
option
may suspend the Closing Schedule until a revised FEMA map has been provided
to
Purchaser.
Seller
must complete all of Seller’s
obligations under this Section 8 on or before June 30, 2005 (the “Outside
Completion Date”).
For
every 30-day increment the Lots are not completed after the Outside Completion
Date, the Base Purchase Price shall be reduced Three Hundred and No/100 Dollars
($300.00).
8.4
Amenity.
With
the approval of Seller and Purchaser of the design and cost of an amenity,
Seller agrees to pay one third the cost of said amenity feature. The Purchase
Price of the Lot utilized for the Amenity shall be applied to Seller’s
pro
rata amount of the Amenity.
8.5
Mail
Boxes.
In the
event the United States Postal Service (“USPS”)
requires the use of Cluster Mail Boxes (“Mail
Boxes”)
within
the subdivision Seller shall install the Mail Boxes within thirty (30) days
of
the Completion Date in a location or locations mutually acceptable to Seller,
Purchaser and the USPS. The Mail boxes will be constructed by Seller and at
Seller’s
expense. In the event individual mail boxes are to be used within the
subdivision, installation of such individual mail boxes will be the
responsibility of Purchaser.
IX.
ACTION AT CLOSINGS
9.1
Deeds.
At each
Closing hereunder, Seller shall deliver to Purchaser a General Warranty Deed
subject only to the Permitted Exceptions in form and substance appropriate
to
convey the Lots to be conveyed in accordance herewith.
9.2
Payment
of Purchase Price.
At each
Closing hereunder, Purchaser shall pay to Seller the Purchase Price for each
Lot
being conveyed in accordance with the provisions of Sections 3.1 and 3.2
hereof.
X.
MISCELLANEOUS
10.1
Survival.
The
provisions hereof shall survive each Closing and delivery of each Deed to
Purchaser hereunder with respect to the remainder of the Lots to be conveyed
at
Subsequent Closings.
10.2
Assignment.
This
Agreement and the agreements contained herein are not assignable by either
Party
hereto without the written approval of the other Party; provided however, that
Seller hereby consents to an assignment by Purchaser of its rights hereunder
to
Purchaser’s
affiliate companies and/or officers or directors thereof, provided that any
such
assignee has title to the Property and assumes all obligations of Purchaser
hereunder.
10.3
Notices.
Any
written notices given pursuant to this Agreement shall be deemed delivered
three
(3) Business Days following the date upon which the same is deposited in the
United States Mail, Registered or Certified Mail with Return Receipt Requested,
Postage Prepaid to the addresses shown above. The date of receipt of Email
or
fax notification may be substituted for notification via the United States
Postal Service.
10.4
Time
of Essence.
Time is
of the essence in the performance of the obligations set forth
herein.
10.5
Exhibits
to this Agreement.
All
exhibits attached hereto are incorporated herein by reference and hereby made
a
part hereof.
10.6
Entire
Agreement; Modifications.
This
Agreement contains the entire agreement between the Parties concerning the
Lots,
and neither Party shall be bound by any verbal statement or agreement made
heretofore. This Agreement cannot be varied except by the written agreement
of
the Parties.
10.7
No
Partnerships.
The
terms, provisions, conditions, covenants and agreements set forth herein are
not
intended to create a partnership or any other kind of joint venture between
the
Parties, and neither Party hereto is hereby authorized or appointed to act
as
the agent or representative of the other in any respect.
10.8
Facilities
Agreement.
Seller
agrees not to execute a Facilities Agreement (Facilities Agreement”)
with
the City that would bind Purchaser to make any of the improvements within such
Facilities Agreement including, but not limited to, screening fences, sidewalks
and tie walls, without the expressed written consent of Purchaser.
10.9
Maintenance
of Lots.
Seller
agrees to maintain and mow all Lots not yet closed by Purchaser.
10.10 Intentionally
deleted.
10.11
EPA
Permit Requirement.
Purchaser specifically agrees to obtain and comply with a permit for storm
water
discharge from the Environmental Protection Agency (“EPA”),
the
Texas Commission on Environmental Quality (“TCEQ”)
and/or
any other relevant governmental authority having jurisdiction over the approval
and development of the Property and Lots concerning all of Purchaser’s
activities while the permits are in force and for temporary sediment and erosion
control once each Lot is closed. Purchaser’s
responsibilities shall also include timely filing of the Notice of Intent prior
to the commencement of home construction, proper tracking and record keeping
while the permits are in force, temporary sediment and erosion control from
the
commencement of home construction until each home is closed and timely filing
of
the Notice of Termination. Purchaser agrees that any damage caused to
Seller’s
temporary sediment and erosion controls by Purchaser, Purchaser’s
agents
or Purchaser’s
subcontractors will be promptly repaired or replaced by Purchaser at
Purchaser’s
sole
cost.
10.12
Modifications
to Preliminary or Final Plat.
Any
modifications to the Preliminary Plat or Final Plat (before or after filing)
are
subject to the reasonable approval of Purchaser. Seller must notify Purchaser
within five (5) days of any modifications made to the Preliminary Plat or Final
Plat.
10.13
Regulatory
Fee Increases.
If any
city, county, state or other governmental authority increases the cost of any
fee, permit, assessment or other charge prerequisite to the construction or
sale
of improvements on the Lots such that the cumulative cost of all increases
subsequent to the Effective Date exceeds One Thousand and No/100 Dollars
($1,000.000) per Lot, Purchaser may in its sole discretion terminate this
Agreement and receive all ▇▇▇▇▇▇▇ Money and interest earned thereon.
XI.
REPRESENTATIONS AND WARRANTIES
11.1
By
Seller.
Seller
hereby makes the following representations and warranties to Purchaser, all
of
which shall be deemed to have been made by the Seller to Purchaser as of the
date of each Closing and which shall survive the Closing;
a.
Litigation;
Condemnation.
There
is no pending or threatened litigation or condemnation proceeding affecting
the
Lots;
b.
Non-Foreign
Status.
Seller
is not a foreign person within the meaning of Section 7701 (a) (5) of the
Internal Revenue Code of 1986, as amended;
c.
Parties
in Possession.
There
are no adverse or other parties in possession of any of the Lots and no party
has been granted any license, lease, or other right relating to the use or
possession of any of the Lots;
d.
Utility
Services.
All the
municipal utility services of the City are available, or will be available
at
the Initial Closing, to all the Lots and are sufficient for single family
residential service on the Property subject to this Agreement;
e.
Compliance.
Seller
has complied with all applicable laws, ordinances, regulations, statutes, rules
and restrictions relating to the Lots, or any part thereof;
f.
Environmental
Condition.
The
environmental and ecological condition of the Property is not in violation
of
any law, ordinance, rule or regulation applicable thereto.
g.
EPA
Permit Requirement and Storm Water Control.
Seller
specifically agrees to obtain and comply with a permit for storm water discharge
from the EPA, TCEQ and/or any other relevant governmental authority having
jurisdiction over the approval and development of the Property and Lots
concerning all of Seller’s
activities with respect to the Property and the Lots. These requirements shall
include timely filing of the Notice of Intent prior to the commencement of
construction, proper tracking and record keeping while the permits are in force,
temporary sediment and erosion control from the commencement of construction
until each Lot is closed and timely filing of the Notice of Termination. Seller
shall be responsible for any permanent structural controls required on the
Property because of the construction activity while the permits are in force
and
for temporary sediment and erosion control before each Lot is
closed.
h.
Governmental
Acts.
Seller
represents that it has complied with both the National Historic Preservation
Act
and the Endangered Species Act and that none of the Lots are subject to any
restrictions because of either act.
11.2
Real
Estate Commissions.
Seller
warrants to Purchaser and represents that no real estate commission, fee or
other form of compensation is due or owing upon the sale of any portion of
the
Property covered by this Agreement. Seller hereby indemnifies, saves and holds
Purchaser harmless from any and all claims for such real estate commission,
fee
or other forms of compensation.
XII.
LENDER
12.
Lender.
This
Agreement is made and accepted by Purchaser with the understanding that the
Property is subject to a Deed of Trust lien existing in favor of first
lienholder and a second lien in favor of the ▇▇▇▇▇▇▇▇ First Family Limited
Partnership for purposes of securing payment of a Promissory Note for a certain
indebtedness, bearing interest and payable as therein stipulated, which Deed
of
Trust appears of record in the Deed of Trust records of Tarrant County, Texas.
However, it is expressly agreed and understood that Seller shall, upon demand
and payment by Purchaser of the Purchase Price, cause to be obtained from said
lienholder a properly executed and recordable Partial Release of Lien against
the Property, contemporaneously with the execution and delivery of the General
Warranty Deed conveying the Property to Purchaser. Purchaser further recognizes
that this Agreement and any subsequent Amendments may be assigned by Seller
to
lender as collateral securing Seller’s
loan.
In the event that Seller should receive notice of default from
Seller’s
lender
relating to any note or loan agreement secured by the Property, Seller will
immediately notify Purchaser in order to allow Purchaser the option and
opportunity, but not the obligation, to cure such default or to arrange with
Seller and Seller’s
lender
to assume Seller’s
position in the Subdivision. Additionally, Seller will endeavor, but does not
guarantee, to have Seller’s
lender
include in the loan agreement between the Seller and the lender an agreement
and
commitment to notify Purchaser of any default by Seller under its note and/or
loan agreement with such lender.
XIII.
MORATORIUM
13.1
Moratorium.
Notwithstanding any contrary provision herein, if any City, County, state or
governmental authority or any other agency declares or effects any moratorium
on
the issuance of permits for the construction of dwellings and/or the purchase
of
sewer and/or water taps, which moratorium the City, County, state or
governmental authority or any other agency will not issue any permit for the
construction and/or purchase of sewer and/or water taps for dwellings to be
erected upon any of the Lots or Certificates of Occupancy for those dwellings,
then in such event, Purchaser’s
obligation to purchase Lots in accordance with the takedown requirements of
Section VII shall ▇▇▇▇▇, and the interest provided for in Section III shall
cease to accrue on all of the Lots. Upon the discontinuation of any such
moratorium and the takedown requirement and said interest shall resume as of
the
date of the discontinuation of such moratorium and continue as per the
provisions of this Agreement. If, however, any such moratorium, shall last
a
total of ninety (90) days, Purchaser shall have the right, but not obligation,
to terminate this Agreement. In the event of such termination, all ▇▇▇▇▇▇▇
Money
and any interest earned thereon shall be refunded to Purchaser and the Parties
shall have no further obligation or liability on to the other
hereunder.
13.2
No
Charge.
This
Agreement is expressly contingent upon there being no change prior to the
Initial Closing or any Subsequent Closings in the nature or condition of or
circumstance affecting the Property or the Lots, including, without limitation,
any change in:
| a. |
availability
of utilities;
|
| b. |
the
areas determined to be “Flood
Prone Areas”
or
designated wetlands areas;
|
| c. |
access;
|
| d. |
availability
of building permits with no moratorium of any nature being in
effect;
|
| e. |
governmental
ordinances and building codes; and
|
| f. |
all
of Seller’s
representations and warranties remaining true as of each
Closing.
|
XIV.
INDEPENDENT CONSIDERATION
14.
Independent
Consideration.
Upon
execution of this Agreement, Purchaser is paying to Seller the sum of $10.00
cash, (the “Independent
Consideration”)
for
Purchaser’s
discretionary rights to terminate this Agreement, which rights are specified
in
other provisions of this Agreement. Seller’s
receipt
and the sufficiency of the Independent Consideration are hereby acknowledged
and
confessed by Seller. The Independent Consideration shall be deemed fully earned
by Seller upon execution of this Agreement, and shall not be refunded to
Purchaser under any circumstance or condition, including the termination of
this
Agreement by Purchaser or Seller.
EXECUTED
TO BE EFFECTIVE on the Effective Date.
| SELLER: | PURCHASER: | ||
| Genesis Land Development, LLC | Wall Homes, Inc. | ||
| a Delaware Corporation | |||
| By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇ | By: /s/ ▇▇▇▇▇ ▇▇▇▇ | ||
|
▇▇▇
▇▇▇▇▇▇▇▇
|
▇▇▇▇▇
▇▇▇▇, CEO
|
||
|
Sole
Manager
|