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Exhibit 10.14
REAL ESTATE CONTRACT
THIS REAL ESTATE CONTRACT ("Contract") is made this 5th day of
July, 2005
(the "Effective Date"), by and between The Shaeffer Family,
L.L.C., a West
Virginia limited liability company, and WEST END GROUP OF
INVESTORS, LLC, a WEST
Virginia limited liability company (hereinafter, collectively,
"Seller") and
STANLEY MARTIN COMPANIES, INC., a Maryland corporation
(hereinafter, "Buyer").
WITNESSETH:
WHEREAS, Seller is the owner of a certain parcel of unimproved
real
property once known as the "Burns Property" located in Jefferson
County, West
Virginia, described as Parcel ___, on Tax Map ____, containing,
in the
aggregate, 151 acres, more or less, and more particularly
described on Exhibit
"A" attached hereto and incorporated herein by this reference
(said parcel, as
finally configured, together with all improvements,
appurtenances, rights,
privileges, and easements benefiting, belonging or pertaining
thereto, being
hereinafter referred to as the "Property"); and
WHEREAS, Seller desires to sell, and Buyer desires to purchase,
the
Property in accordance with the terms and conditions hereinafter
set forth.
NOW THEREFORE, in consideration of the foregoing recitals, and
of the
covenants and undertakings provided for herein, and for other
good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the
parties hereto agree as follows:
1. AGREEMENT OF SALE AND PURCHASE. Seller agrees to sell and
convey the
Property to Buyer, and Buyer agrees to purchase the Property
from Seller, under
the terms and conditions set forth below.
2. PURCHASE PRICE. THE PURCHASE PRICE FOR THE PROPERTY (THE
"PURCHASE
PRICE") SHALL BE FIFTEEN MILLION DOLLARS
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($15,000,000.00) PAID IN CASH, WIRED FUNDS OR BANK CERTIFIED
CHECK ON THE
SETTLEMENT DATE LESS THE DEPOSIT TO BE POSTED WITH CONTRACT AS
RECITED BELOW.
3. DEPOSIT.
3.1 Within five (5) business days following the Effective Date
hereof,
Buyer shall deliver to The Law Offices of John McCormick,
Attorney for Seller,
as Escrow Agent, with offices in Chapel Hill, North Carolina an
initial deposit,
in the form of One hundred Thousand Dollars ($100,000.00) (Cash
or Check) and a
promissory note in the amount of Four Hundred Thousand Dollars
($400,000.00)
(the "Note Deposit) (collectively, the "Initial Deposit").
Provided this
Contract is not earlier terminated in accordance with the terms
contained
herein, within five (5) business days after the expiration of
the Study Period,
Buyer shall then deliver to Escrow Agent its certified or
cashier's check in the
amount of Four Hundred Thousand Dollars ($400,000.00) (the "Note
Replacement
Deposit") (the Initial Deposit and the Note Replacement Deposit
shall
hereinafter collectively be referred to as the "Deposit"). The
Deposit shall be
immediately disbursed by Escrow Agent to Seller c/o The West End
Group of
Investors, LLC, at which time Seller shall execute and deliver
to Buyer in
recordable form deed of trust covering the Property (the "Deed
of Trust") which
secures Seller's obligation to return to Buyer the Deposit in
accordance with
the terms and conditions of this Contract. The Deed of Trust
shall be in the
form attached hereto as Exhibit "B" and incorporated herein by
reference. After
release of the Deposit to Seller by Escrow Agent, Seller shall
be entitled to
hold, invest and otherwise utilize the Deposit in any manner in
which Seller
elects, in its sole discretion, and any interest earned by
Seller on the Deposit
shall be solely for the benefit of Seller. In the event any
provision of this
Contract entitles Buyer to obtain the return of the Deposit,
then Seller shall
return the Deposit to Buyer within ten (10) days after Seller's
obligation to
return such Deposit
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arises. In the event that Seller fails to return the Deposit to
Buyer within
such ten (10) day period, then interest shall thereafter accrue
on the amount of
the Deposit at the rate of twelve percent (12%) per annum,
prorated on a per
diem basis, for the time period commencing on the first (1st)
day after the
expiration of such ten (10) day period and ending on the date
that the Deposit
is received by Buyer. In addition, if the Deposit is not
returned to Buyer
within such ten (10) day period, then Buyer shall be entitled to
assert all
claims and causes of action which may be available to Buyer at
law or in equity
in order to obtain the return of the Deposit, including (without
limitation)
Buyer's right to exercise its remedies under the Deed of Trust.
Upon the return
of the Deposit by Seller to Buyer pursuant to the terms and
conditions of this
Contract, or upon any termination of this Contract for any
reason which would
entitle Seller to retain the Deposit hereunder, Buyer shall
promptly execute and
cause to be recorded among the County land records a release of
the Deed of
Trust.
3.2 The Deposit, unless otherwise applied in accordance with the
terms
of the Contract, shall be credited against the Purchase Price at
settlement
hereunder (as defined in Section 5 below) as hereinafter set
forth.
4. STUDY PERIOD, RIGHT OF ENTRY
4.1 Buyer is hereby granted the right, at its sole cost and
expense,
during the term of this Contract, to enter upon the Property and
to cause such
boring, engineering, environmental, water, percolation,
absorption, storm sewer,
traffic, utilities, topographic, and/or other tests,
investigations, market
studies and/or other studies as Buyer may determine to make. In
the event that
any of such tests, investigations and/or studies indicate, in
Buyer's sole
discretion, that Buyer's intended use of the Property would not
be economically
feasible or otherwise prudent, then, and in that event, Buyer
shall have the
right, at its option, at any time prior to the close of business
on a day which
is forty-five (45) days following the Effective Date (the "Study
Period"), to
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terminate this Contract by giving written notice to Seller, with
a copy to the
Escrow Agent (in the manner specified in paragraph 17 hereof),
whereupon, the
Initial Deposit together with the "NOTE" Deposit shall be
returned to Buyer and
both parties shall be released from any further liability or
obligation to each
other.
4.2 Buyer shall notify Seller prior to its entry onto the
Property by
telephone (and if Seller is unavailable, a voice message shall
be sufficient
notice) and shall be responsible for any damage which may result
from such entry
onto the Property, and that of its agents, employees, engineers
and contractors
("Related Parties"), and shall indemnify and hold Seller
harmless from and
against any loss, arising out of, or with respect to, such entry
by itself or
any Related Parties onto the Property. Buyer shall, at the
conclusion of such
tests, restore the Property to substantially the condition that
it was in prior
to such entry. This provision shall survive any termination of
this Contract.
Prior to Buyer's entry onto the Property, Buyer shall provide
Seller with
evidence reasonably satisfactory to Seller that Buyer has, in
full force and
effect, a paid liability policy with coverage in an amount no
less than One
Million Dollars ($1,000,000) per occurrence. Buyer shall, if so
requested by
Seller, instruct its insurance carrier to name Seller as an
additional insured
with respect to such policy and provide Seller with proof
thereof.
4.3 In the event that Buyer terminates this Contract, Buyer
shall
deliver to Seller, without warranty, at no cost to Seller, all
results of the
engineering, environmental, marketing and other studies
performed in connection
with, and all plans, agreements, approvals and permits secured
for the Property,
provided, however, Buyer shall not deliver any proprietary
information or
materials to Seller.
5. PAYMENT OF THE PURCHASE PRICE.
On the Settlement Date (as hereinafter provided for in Section
9),
Buyer shall pay the Purchase Price to Settlement Agent in cash,
by certified or
cashier's
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check, or by wire transfer of immediately available funds. The
Deposit shall be
credited against the Purchase Price payable at Settlement.
Immediately upon
recordation of the special warranty deed conveying the Property
to Buyer, which
recordation shall occur by close of business on the second
business day after
the date on which Seller delivers the deed to Settlement Agent
and satisfies all
related conditions of settlement provided for in this Contract
(the
"Settlement"), Settlement Agent shall disburse to Seller the
Purchase Price and
due to Seller less and except the Deposit and any closing costs
required to be
paid by Seller in accordance with the terms hereof.
6. ENGINEERING DATA AND OTHER INFORMATION. Sketch Plan Approval
was
obtained by the Ranson City Council on Monday, the 16th of May,
2005 and the
Seller agrees to deliver to the Buyer, within five (5) calendar
days after the
Effective Date of this Contract, without warranty, and free of
charge and cost
to the Buyer, copies of any and all engineering, application
fees, environmental
and architectural reports and data, all plans, including, but
not limited to
concept, preliminary, conservation and storm water management
plans, copies of
permits, the most current title report or policy issued to
Seller for the
Property, any surveys of the Property and current tax bills for
the Property
(collectively the "Data") heretofore caused to be prepared or
assembled with
respect to the Property, in Seller's possession or subject to
its control.
Seller makes no representation or warranty about the accuracy,
reliability or
completeness of the Data other than that Seller has no actual
knowledge of any
material inaccuracy or error in such Data, except as Seller may
disclose in
writing to Buyer simultaneously with the delivery of such Data
to Buyer. Seller
hereby agrees to fully cooperate during the Study Period with
all reasonable
requests by Buyer for documentation other than the Data related
to the Property.
In the event that the Buyer does not purchase the Property,
Buyer agrees to
return the Data received from Seller to Seller. PROVIDED THAT
BUYER DOES NOT
TERMINATE THE CONTRACT PRIOR TO THE EXPIRATION
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OF THE STUDY PERIOD, BUYER SHALL AGREE TO ASSUME THE FINANCIAL
OBLIGATIONS OF
THE ENGINEERING BEGINNING AT THE EXPIRATION OF THE STUDY PERIOD
AND CONTINUE TO
PURSUE, WITH DUE DILIGENCE, FINAL SITE PLAN APPROVAL AS OF THE
EXPIRATION OF THE
STUDY PERIOD. SUCH EFFORT AND COST SHALL BE AT BUYER'S EXPENSE.
BUYER SHALL
CONTINUE TO USE THE SERVICES OF RESOURCE INTERNATIONAL, LTD OF
ASHLAND, VIRGINIA
AND RANSON, WEST VIRGINIA. BUYER SHALL USE REASONABLE EFFORTS TO
ENGAGE RESOURCE
INTERNATIONAL AND ENTER INTO A MUTUALLY AGREEABLE CONTRACT WITH
RESOURCE
INTERNATIONAL DURING THE STUDY PERIOD.
7. TITLE. At Settlement, title to the Property is to be good of
record and
in fact, fully marketable and insurable by a recognized title
insurance company
of Buyer's selection authorized to do business in the State of
West Virginia at
regular rates without exception, except for such matters which
Buyer determines,
in its sole discretion, would not prevent, materially impair or
materially
increase the cost of Buyer's intended development and
construction on the
Property.
7.1 During the Study Period (the "Title Objection Period"),
Buyer
shall examine the status of title to the Property. If the
examination of title
discloses that title to the Property is not in a condition
acceptable to Buyer,
in its sole discretion, Buyer shall have the right, at Buyer's
option, (i) to
terminate this Contract prior to the expiration of the Title
Objection Period
and receive a refund of the Initial Deposit, whereupon both
parties shall be
relieved and discharged of any rights, liabilities or
obligations hereunder, or
(ii) give notice to Seller of Buyer's title objections, as
hereinafter set
forth.
7.2 In the event that title is not acceptable to Buyer, and
Buyer
elects option (ii) in Paragraph 7.1 above, Buyer shall notify
Seller of its
specific objections to title ("Buyer's Title Objections") within
the Title
Objection Period. The failure of Buyer to notify Seller of
Buyer's Title
Objections prior to the end of the Title Objection Period shall
be deemed
approval of the state of the title to the Property and Buyer
shall have
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no further right to object to the condition of title, except for
matters arising
after the effective date of Buyer's title examination together
with any
unacceptable matters which may be reflected on any survey of the
Property
obtained by Buyer. Within ten (10) days after receipt of the
Buyer's Title
Objections, Seller shall deliver written notice to Buyer
identifying those
matters contained in the Buyer's Title Objections that Seller
shall elect to
cure, or not to cure, prior to the Settlement Date ("Seller's
Election"). If
Seller shall fail to deliver the Seller's Election within such
ten (10) day
period, Seller shall be deemed to have elected not to cure
Buyer's Title
Objections. If Seller shall elect not to cure any or all of
Buyer's Title
Objections, Buyer shall, within ten (10) days after receiving
Seller's Election,
or within twenty (20) days after delivery of Buyer's Title
Objections, if no
such Seller's Election is received by Buyer, notify Seller as to
whether Buyer
shall elect to (i) terminate this Contract and receive a refund
of the Initial
Deposit, or (ii) waive its objections to those matters
identified in Buyer's
Title Objections that Seller shall not have affirmatively
elected to cure, in
which event such uncured title matters shall be deemed permitted
exceptions to
title. If Buyer shall fail to deliver its written election to
Seller within the
applicable period set forth in the preceding sentence, Buyer
shall be deemed to
have elected option (ii) (waiver of objections) and shall have
waived its right
to terminate this Contract pursuant to this Paragraph 7 on
account of said
identified Buyer's Title Objections and the same shall be deemed
permitted
exceptions to title. Seller covenants and agrees, at Seller's
expense, to
promptly take such legal action, or make such payment, as shall
be necessary to
cure such of Buyer's Title Objections as Seller shall have
elected to cure by
the Settlement Date herein specified.
7.3 No later than the Settlement Date, Seller shall discharge
and
release any liens, deeds of trust or other monetary encumbrances
affecting the
Property, with the cash portion of the Purchase Price proceeds
to be applied at
Settlement for this purpose, as necessary, and Buyer shall not
be required to
designate
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such liens or monetary encumbrances as Buyer's Title
Objections.
7.4 Following the Effective Date, Seller shall cooperate with
Buyer to
create, modify, or release easements, rights-of-way, covenants,
conditions or
restrictions with respect to the Property which the parties
reasonably agree are
necessary or appropriate for the subdivision, development or use
of the
Property. The recordation of any such instruments shall require
the consent of
both parties, such consent not to be unreasonably withheld,
conditioned or
delayed.
7.5. Following the Effective Date, Seller may not place new
financing
liens against Property and modify existing financing liens,
without the prior
written consent of Buyer. Any liens approved by Buyer shall be
released by
payment to the lender of an amount not exceeding the cash
portion of the
Purchase Price of the Property due to Seller at Settlement
hereunder.
8. SETTLEMENT COSTS.
8.1 Buyer will order the examination of title and the
preparation of
all necessary conveyance papers, and except as otherwise
provided herein, Buyer
shall be responsible for all Settlement and title charges, and
notary fees, if
any, and all other costs associated with Settlement. Seller and
Buyer shall each
pay their own attorneys' fees with respect to this Contract.
Seller shall pay a
reasonable fee, not to exceed One Hundred Dollars ($100.00), for
services
rendered by Settlement Agent in connection with its performance
of Settlement.
8.2 The payment of all normal transfer costs, including state
and
local taxes, documenting stamps and the West Virginia Excise Tax
on the
privilege of transferring real property shall be shared equally
by Seller and
Buyer at Settlement hereunder.
9. SETTLEMENT.
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9.1 Settlement on the Property shall be held within thirty (30)
days
following the date on which the Conditions to Settlement set
forth in Paragraph
9.3. have been satisfied (the "Settlement Date") but, in any
event, no later
then May 31, 2006, (the "Outside Settlement Date"). In the event
the Conditions
to the Settlement have not been met by the Outside Settlement
Date, then either:
(i) Buyer may waive the unsatisfied Condition or Conditions and
proceed to the
Settlement, or (ii) Buyer may elect to terminate this Contract
by written notice
to Seller, at which time the Deposit shall be returned to Buyer,
whereupon the
parties shall be relieved and discharged of any rights and
liabilities or
obligations hereunder except Buyer's obligation to restore the
Property as set
forth in Section 4.3 above. Notwithstanding the foregoing, in
the event that any
of the Conditions to Settlement set forth in Paragraph 9.3 have
not been
satisfied in Buyer's sole discretion on or before the Outside
Settlement Date,
then Buyer may extend the Outside Settlement Date for three (3)
consecutive
extension periods of one (1) month each by delivering written
notice of each
such extension to Seller on or before the then-applicable
Outside Settlement
Date.
9.2 Settlement shall be held in the Law Offices of James
Crawford,
Charles Town, West Virginia, or in another settlement agent's
office in West
Virginia selected by Buyer, which agency shall act as
"Settlement Agent". The
parties may tender its performance via federal express or other
commercially
recognized overnight delivery service. Deposit with the
Settlement Agent of the
Purchase Price due and payable at such Settlement, the special
warranty deed of
conveyance, the assignment and indemnification agreement
described in paragraph
21 below, and such other instruments as are required of either
party by the
terms of this Contract, and delivery of possession of the
Property free of any
tenancies or other possessory rights whatsoever other than the
permitted
exceptions to title shall be considered good and sufficient
tender of
performance of the terms hereof.
9.3 The obligation of Buyer under this Contract to proceed
to
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Settlement under the terms prescribed herein is subject to the
following
conditions precedent (the "Conditions to Settlement"):
(i) Title to the Property shall be in that condition required
by
the provisions of Paragraph 7 hereof.
(ii) The representations and warranties of Seller set forth
in
Paragraph 15 hereof shall be true and correct in all material
respects as of the
Settlement Date.
(iii) The City of Ranson shall have approved the Final Site
Plan
for the Property so that the Subdivision Plat is "Ready for
Bonding" as more
particularly set forth in Paragraph 14.1 herein.
(iv) The Property shall be free of tenants or occupants.
(v) Completion of the Storm Water Management Basin.
(vi) The parties hereby acknowledge that certain off-site
easements may be required in order for Buyer to develop the
Property in an
orderly and governmentally-approved manner in accordance with
the Plan and
Subdivision Plat. Therefore, this Contract shall be subject to
(a) Buyer
obtaining all such necessary (as determined by Buyer in Buyer's
reasonable
discretion) off-site easements that are required by applicable
governmental
authorities and are essential to develop a residential
community, including
retail establishments, on the Property in accordance with
Buyer's intended
development plans and (b) such easements being obtained and
recorded among the
applicable land records prior to the Settlement Date. If this
condition is not
satisfied on or before the Outside Closing Date (as the Outside
Closing Date may
be extended by Buyer pursuant to Paragraph 6 below), Buyer, at
its option, may
either (i) terminate this Contract by delivery of written notice
to Seller by
the Outside Closing Date, in which event the Deposit shall be
returned to Buyer
and the
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parties shall have no further rights or obligations under this
Contract, or (ii)
waive such contingency and proceed to Settlement.
(vii) On the Settlement Date, no action (such as the
imposition
of a sewer, water or building moratorium) shall have been taken
or shall have
been publicly announced to be taken or threatened to be taken by
any applicable
governmental authority which would materially and adversely
affect obtaining
building or occupancy permits or the installation of water and
sewer facilities
or other utilities to serve the houses and other improvements to
be constructed
on the Property, or which materially and adversely changes the
procedures or
extends the period for obtaining such permits or facilities or
in any other
manner prevents or materially delays construction of Buyer's
intended
improvements on the Property or prevents or materially delays
such dwellings and
other improvements from being effectively connected to a private
or public sewer
and water system or other private or public utilities.
9.4 Seller shall deliver or cause to be delivered to the
Settlement
Agent on the Settlement Date an affidavit executed by the
Seller, under penalty
of perjury, stating Seller's United States Taxpayer
Identification Number and
further stating that Seller is not a foreign person, as that
term is defined and
as required in accordance with the Internal Revenue Code Section
1445, and such
other customary and reasonable documents as the Settlement Agent
and/or Buyer's
title company may require.
10. ADJUSTMENTS. Taxes, general and special, are to be adjusted
to
Settlement Date, according to a statement of taxes issued by the
collector of
taxes. Annual benefit charges and assessments, if any, payable
on an annual
basis are to be adjusted to the Settlement Date and, thereafter,
assumed by
Buyer.
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11. DEFAULT.
11.1 If Seller wrongfully fails to settle on the Property, and
Buyer
is ready, willing and able to perform, or if Seller shall
otherwise default or
breach any of the provisions of this Contract, then, provided
Buyer has provided
to Seller, in accordance with the provisions of Paragraph 17,
written notice
from Buyer specifying the nature of the
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