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EXHIBIT 10.05
CONTRACT OF SALE AND OPTION
THIS CONTRACT OF SALE AND OPTION ("Contract") is made this 29TH day of
SEPTEMBER, 1995 by and between MCDONOGH SCHOOL, INCORPORATED, a Maryland
Corporation, (the "Seller") and TRP SUBURBAN SECOND, INC. a Maryland
Corporation, (the "Buyer").
RECITALS
A. Seller is the owner of certain real property located in Baltimore
County, Maryland known as Parcel 3 A of the Owings Mills Corporate Campus
containing thirty-two (32) acres, more or less, which is more particularly
described in EXHIBIT A attached as part of this Contract (the "Property").
B. Seller has granted to Buyer an option to purchase the Property from
the Seller, pursuant to an Option Agreement dated June 30, 1995 (the "Option
Agreement") which option Buyer desires to exercise through the execution and
delivery of this Contract.
C. Seller has agreed, if Buyer exercises its option to purchase the
Property, to provide road access and utilities to the Property.
D. Buyer desires to purchase the Property for the purpose of
constructing office buildings and related improvements thereon.
E. Seller has the option to purchase certain additional property
containing thirty-eight (38) acres, more or less, known as Parcel 3 B in the
Owings Mills Corporate Campus and has agreed, at the election of the Buyer
and for the consideration hereinafter set forth, to exercise its option in
such manner as to cause Parcel 3 B to be conveyed to Buyer.
NOW, THEREFORE, in consideration of a mutual covenants and promises of
the parties, the parties hereto agree as follows:
1. PURCHASE AND SALE. Seller agrees to sell the Property to Buyer and
Buyer agrees to purchase the Property from Seller upon the terms and subject
to the covenants and conditions hereinafter set forth.
2. PURCHASE PRICE. The purchase price for the Property is a sum of
Seven Million Six Hundred Thousand Dollars ($7,600,000) subject to the credit
hereinafter set forth.
2.1 CREDIT AGAINST PURCHASE PRICE. In connection with the sale
and future development of the Property, Seller may be required by Baltimore
County to make, or pay for, certain off-site improvements to Painters Mill
Road including the construction of acceleration/deceleration lanes and the
installation of a traffic light at the intersection of Painters Mill and
Lyons Mill Roads. At such time as the cost of these improvements (which
shall not include any items specified in Section 9 hereof except the Painters
Mill Road improvements) are finally determined, Seller shall submit to Buyer
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documentation of the required improvements and the cost thereof. To the
extent that the cost is less than Two Hundred Thousand Dollars ($200,000),
Seller shall credit the amount by which Two Hundred Thousand Dollars
($200,000) exceeds the actual cost against the purchase price at settlement,
or if the cost is not determined until after settlement, shall deliver a
check in that amount to Buyer within fifteen (15) days after the actual costs
have been determined. The provisions of this Section 2.1 shall survive
settlement and the conveyance of the Property.
3. TERMS OF PAYMENT. The purchase price shall be paid by Buyer to
Seller as follows:
3.1. The sum of Fifty Thousand Dollars ($50,000) shall be paid by
Buyer to Seller concurrently with Buyer's execution of this Contract.
Additional sums of Seventy-five Thousand Dollars ($75,000.00) each shall be
paid thirty (30) and sixty (60) days, respectively, from the date of this
Contract. These sums, together with all amounts paid by Buyer to Seller
under the Option Agreement, shall constitute the Deposit. The Deposit,
unless otherwise specified herein, shall be applied toward the purchase price
due at settlement. Any interest earned on the Deposit shall be the property
of Seller and shall not be applied to the purchase price.
3.2. BALANCE OF PURCHASE PRICE. The entire unpaid balance of the
purchase price shall be paid by Buyer to Seller at settlement by certified or
cashier's check or by wire transfer.
4. ENTRY ONTO PROPERTY.
4.1. RIGHT TO ENTER. Buyer shall have the right, so long as this
Contract remains in effect, to enter upon the Property to make all
inspections and investigations of the condition of the Property which Buyer
may deem necessary, including, but not limited to, soil borings, percolation
tests, engineering, environmental and topographical studies and investigation
of zoning and availability of utilities, all of which inspections and
investigations shall be undertaken at Buyer's sole cost and expense. Such
entry shall be upon twenty-four (24) hours prior oral or written notice or
such lesser notice (but not less than eight (8) hours) as Buyer is able to
give based upon the scheduling request of parties performing the work. Buyer
shall at its sole cost and expense promptly fill any holes or test pits and
repair any damage it has caused to the Property.
4.2. LIABILITY INSURANCE. Prior to any entry upon the Property for
the purpose of conducting the inspections and tests described in this Section
4.1., Buyer shall furnish to Seller a certificate of insurance for the
liability insurance policy carried by Buyer or parties engaged by Buyer to
perform such inspections and tests. Such policy shall evidence liability
insurance in an amount reasonably satisfactory to Seller and shall name
Seller as an additional insured.
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4.3. INDEMNIFICATION. Buyer hereby agrees to indemnify and hold
Seller harmless against any claims, demands and liability, including
attorney's fees, for non-payment for services rendered to Buyer, for
construction liens, or for damage to property or for injury or death to
persons arising out of Buyer's investigation of or entries onto the Property.
The provisions of this Section 4.3 shall survive settlement.
5. TITLE.
5.1. CONDITION OF TITLE. Good and merchantable fee simple title to
the Property shall be conveyed by Seller to Buyer at settlement subject to no
liens, encumbrances or restrictions except those shown on the title report
submitted by Buyer to Seller upon exercise of its option to purchase the
Property (and such other liens, encumbrances and restrictions as are
consented to by Buyer) but subject to the Declaration of Covenants and
Restrictions referred to in Section 5.2 hereof.
5.2. DECLARATION OF COVENANTS AND RESTRICTIONS. A Declaration of
Covenants and Restrictions in the form attached hereto as EXHIBIT B (the
"Declaration"), shall be recorded among the Land Records of Baltimore County
prior to the recording of a deed to Buyer.
6. SETTLEMENT.
6.1. TIME AND PLACE OF SETTLEMENT. Settlement pursuant to this
Contract shall be held in Baltimore, Maryland, at such time, in such place
and on such date as the parties may establish to their mutual convenience,
but in any event no later than December 29, 1995. In the event the parties
fail to agree mutually upon a date, time and/or place, as aforesaid,
settlement shall be held on said December 29, 1995 at the offices of Ober,
Kaler, Grimes & Shriver, 120 E. Baltimore Street, Baltimore, Maryland 21202.
In connection herewith, Buyer undertakes and agrees to provide Seller, or
cause Seller to be provided, at least three (3) days prior to closing, with a
pro forma settlement statement prepared by Buyer's settlement agent,
indicating all charges to be paid, and all sums to be received, by Seller in
connection with the closing.
6.2. PRORATIONS. All taxes, general and special, and all other
public or governmental charges or assessments against the Property which are
payable or may be paid in annual installments (including metropolitan
district, sanitary commission or other benefit charges, assessments, liens or
encumbrances for sewer, water, drainage or public improvements completed or
commenced on, prior to, or subsequent to the date of this Contract) shall be
prorated between Seller and Buyer as of the date of settlement and paid
thereafter by Buyer, whether or not such assessments or charges have been
levied as of the date of settlement. Said prorations shall be effected on
the basis of the latest available tax bills and other applicable statements
and on the basis of thirty (30) day months.
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6.3. EXPENSES OF SETTLEMENT. Other than as provided in Section
6.4, all closing or settlement costs, other than fees of Seller's attorneys,
shall be paid by Buyer, including but not limited to:
6.3.1. The full cost of securing the title insurance policy
referred to herein together with any endorsements thereto or other title
insurance required by Buyer.
6.3.2. The cost of preparing and recording the deed or other
instrument required to convey title to the Property to Buyer.
6.3.3 All costs, fees and expenses incident to Buyer's
financing of the Property, including, but not limited to, the preparation and
recording of loan documents, any loan origination fees, credit reports, fire
and casualty insurance premiums, mortgage service and loan inspection fees.
6.4. All State and County recordation and transfer taxes payable
upon recordation of the deed shall be borne one-half by Seller and one-half
by Buyer. Any agricultural transfer tax shall be paid by Seller.
7. DELIVERY OF DEED. At settlement, upon payment of the purchase
price in the manner set forth in Section 3, Seller, at Buyer's expense, shall
execute and deliver to Buyer a deed containing covenants of special warranty
and further assurances, by which fee simple title to the Property shall be
conveyed to Buyer, subject to the Declaration referred to in Section 5.2
hereof and any exceptions in Buyer's title report. If so requested by
Seller, Buyer hereby undertakes and agrees to join in the execution of said
deed for the purpose of incorporating therein the covenants, conditions,
restrictions and provisions set forth in the Declaration, and Buyer's
assumption thereof and agreement to be bound thereby.
8. AMENDMENT OF LEASE BETWEEN SELLER AND TRP SUBURBAN, INC.. TRP
Suburban, Inc. is an affiliate of Buyer and is the Tenant under a land lease
dated April 17, 1990 from Seller, as Landlord, of Lot 7 in the Owings Mills
Corporate Campus (the "Lease"). The undertakings set forth herein as to the
Lease are a material part of the consideration for this Contract.
8.1. AMENDMENT OF LEASE. At settlement under this Contract, Seller
agrees to execute and Buyer agrees to cause TRP Suburban, Inc. to execute a
Second Amendment to Lease in the form attached hereto as EXHIBIT C.
8.2. CONTINGENT PAYMENT FOR LEASE EXTENSION. In the event that
Buyer is deemed to have "exited" the Property on or before ten (10) years
from the date of settlement under this Contract, Buyer shall pay to Seller,
within fifteen (15) days of exiting the Property, the sum of Two Hundred
Thousand Dollars ($200,000) in consideration for the extension of the term of
the Lease contained in the Second Amendment to Lease. For all purposes of
this Contract, Buyer shall have been deemed to have exited the Property upon
the occurrence of the following event:
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Buyer or its permitted assigns shall not be occupying (which
term shall not include occupancy by an unrelated sub-lessee) the entire
building leased from Seller on Lot 7 in the Owings Mills Corporate Campus
unless it is occupying all of a building owned by it and containing at least
One Hundred Fourteen Thousand (114,000) gross square feet of floor area on
the Property.
9. SELLER'S DEVELOPMENT OBLIGATIONS. Seller shall undertake the
following actions in connection with the conveyance of the Property in the
preparation of the Property for Buyer's development:
9.1. MAIN ENTRANCE. Seller shall construct a formal main entrance
with associated signage at the intersection of Painters Mill and Lyons Mill
Roads together with an entrance road constructed to Baltimore County
specification of approximately 500 feet dividing the Property from Parcel 3 B
and providing access to Painters Mill Road from the Property and Parcel 3 B.
9.2. PUBLIC WATER. Seller shall extend public water to the
Property at the entrance road set forth in Section 9.1 hereof. Seller shall
be entitled to any rebates from Baltimore County in connection with the
extension of the water line.
9.3. SANITARY SEWER. Seller shall extend sanitary sewer to the
rear of the Property from the Horsehead Branch interceptor.
Seller shall be entitled to any rebates from Baltimore County in connection
with the extension of the sanitary sewer.
9.4. PAINTERS MILL ROAD IMPROVEMENTS. If required by Baltimore
County, Seller shall provide or pay for acceleration and deceleration lanes
on Painters Mill Road in connection with the main entrance and the secondary
entrance to the Property and a traffic light at the intersection of Painters
Mill and Lyons Mill Roads. Such work shall be completed in conformance with
Baltimore County requirements.
9.5. TIME FOR COMPLETION. Seller's responsibilities under Sections
9.1., 9.2., 9.3. and 9.4. shall be completed by Seller within ten (10) months
of the date of settlement on the Property. If Seller, acting diligently, is
unable to complete such items to the reasonable satisfaction of Buyer within
such ten (10) month period, Seller shall have an additional two (2) months to
complete any such item. If any of such items are not completed by one year
from the date of settlement on the Property, Buyer may complete any such
item, and the reasonable cost thereof shall be the responsibility of Seller.
9.6. SUBDIVISION PLAT. Prior to settlement, Seller shall cause to
be prepared, in cooperation with Buyer, and shall file a subdivision plat
constituting the property as a separate conveyable lot pursuant to Baltimore
County requirements.
9.7. STORM WATER. Seller shall permit Buyer to discharge storm
water into the existing pond lying to the east of the Property and shall
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grant Buyer a storm water easement leading from the Property to the pond at a
location satisfactory to Seller and Buyer. Seller shall have no other
obligations to Buyer in connection with storm water management.
9.8. NO OTHER OBLIGATIONS. Except as specifically set forth above
and except for Seller's obligation to cooperate with Buyer as set forth in
Section 10 hereof, Seller shall have no other obligations in connection with
the development of the Property.
10. BUYER'S DEVELOPMENT OBLIGATIONS.
10.1. DEVELOPMENT EXPENSES. Except as expressly set forth in
Section 9 hereof, Buyer shall be responsible for all costs and expenses in
connection with its proposed development of the Property. Without limiting
the generality of the foregoing, Buyer shall obtain all necessary state and
county approvals and permits at its own cost and expense. Seller agrees, at
the sole risk and expense of Buyer, to cooperate in executing applications
and other documents necessary in connection with such approvals.
10.2. UTILITY HOOK-UP AND METER CHARGES. All costs of connecting
any improvements constructed by Buyer on the Property to utility service
mains, conduits or lines located within or contiguous to the boundaries of
the Property, or on beds of streets, rights of way and/or easement areas
bordering the Property shall be at the sole cost and expense of and shall be
paid by Buyer.
11. CONDEMNATION. If at any time prior to settlement, any proceeding
shall be commenced for the taking of all of the Property or any material
portion thereof, for public or quasi public use pursuant to the power of
eminent domain, Seller shall furnish Buyer written notice of any proposed
condemnation within fifteen (15) days after Seller's receipt of written
notification thereof but in no event later than the date of settlement. In
such event, (a) the Buyer may terminate this Contract in writing within
fifteen (15) days following receipt of such notice and the Deposit shall be
promptly returned to Buyer, or (b) the transaction as contemplated hereby and
settlement shall progress as herein provided without reduction of the
purchase price, Buyer shall have the right to participate in the negotiation
of any condemnation awards or other compensation for taking, and Seller shall
assign to Buyer any and all awards and other compensation for such taking to
which it would be otherwise entitled as owner of the Property and Seller
shall convey the portion of the Property, if any, which remained after the
taking.
12. DEFAULT.
12.1. BUYER'S DEFAULT. In the event that this transaction fails to
close due to a default on the part of Buyer, Seller shall have the right to
terminate the Contract and retain the Deposit as liquidated damages, in which
event the parties shall be released from any and all liability under this
Contract and under the Option Agreement, except as otherwise expressly
provided herein or therein. The foregoing shall be Seller's sole remedy in
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the event of Buyer's default hereunder, Seller hereby waiving and
relinquishing any other rights or remedies, including but not limited to, any
right to seek or receive any other monetary damages, except to the right of
indemnification under Section 4.3.
12.2. SELLER'S DEFAULT. In the event that this transaction fails
to close due to a default on the part of Seller, Buyer shall have the right
to either (i) terminate the Contract and receive back the Deposit and all
amounts paid to Seller under the Option Agreement, in which event the parties
shall be released from any and all liability under this Contract and under
the Option Agreement, except as otherwise expressly provided herein or
therein, or (ii) seek specific performance of Seller's obligations hereunder,
plus Buyer's reasonable expenses and Attorneys' Fees arising from such
action. The foregoing shall be Buyer's sole remedies in the event of
Seller's default hereunder, Buyer hereby waiving and relinquishing any other
rights or remedies, including but not limited to, any right to seek or
receive any other monetary damages.
13. BUYER'S RIGHT TO PURCHASE PARCEL 3 B. Parcel 3 B in the Owings
Mills Corporate Campus as shown on EXHIBIT A consists of thirty-eight (38)
acres of land more or less of which Twenty-five and 7/10 (25.7) acres more or
less (the "Prochazka Portion") are owned by Frances D. H. Prochazka and
Alexander M. Prochazka (together with the survivor and the personal
representative of the survivor, the "Prochazkas") and the balance (the
"McDonogh Portion") is owned by Seller. Seller is Optionee under an Option
Agreement dated December 10, 1986 from the Prochazkas, as optionors (the
"Prochazka Option"), a copy of which is attached hereto as EXHIBIT D, by
which Seller is given the option to purchase Thirty-one and 33/100 (31.33)
acres of land more or less owned by the Prochazkas (the "Prochazka
Property"), which includes the Prochazka Portion, subject to all of the
provisions of the Prochazka Option including the right of the Prochazkas to
lease back three (3) acres of land containing the residence, gardens and
cemetery as long as either of them occupy the residence on the Prochazka
Portion. The Prochazka Option is exercisable by Seller within thirty (30)
days after receiving notice from the Prochazkas that the option must be
exercised or thirty (30) days after Seller receives notice of the death of
the survivor of the Prochazkas. As a material part of the consideration for
this Contract, Seller agrees, at the election of the Buyer, made at a time
that Buyer has not "exited" the Property as that term is defined in Section
8.2 hereof, to convey all of Parcel 3 B to Buyer on the following terms and
conditions:
13.1. EXERCISE OF RIGHT TO PURCHASE PARCEL 3 B. Within three (3)
business days after Seller receives notice that the Prochazka Option is
exercisable, Seller shall give Buyer written notice of the date by which the
Prochazka Option must be exercised and the latest date on which settlement on
the Prochazka Property must be held, and Buyer shall exercise its right to
acquire all of Parcel 3 B by notice in writing to Seller given not later than
sixty (60) days following the date that Buyer receives notice from Seller
that the Prochazka Option is exercisable. Such notice shall be accompanied
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by a copy of a title report on Parcel 3 B obtained by Buyer which indicates a
state of title which Buyer is willing to accept. Seller will not impose on
Parcel 3 B any title encumbrances during such time as Buyer has the option to
purchase Parcel 3 B as provided in this Agreement and continuing until
closing if Buyer exercises such option.
13.2. PURCHASE PRICE. For a period of eighteen (18) months from
the date of settlement on the Property, the purchase price for Parcel 3 B
shall be an amount per acre equal to the amount per acre actually paid by
Buyer for the Property as set forth in Section 2 hereof.
13.3. ADJUSTMENTS TO PURCHASE PRICE.
13.3.1 SETTLEMENT ON PARCEL 3 B WITHIN TEN YEARS OF DATE OF
SETTLEMENT ON THE PROPERTY. Commencing on the date which is eighteen (18)
months from the date of settlement on the Property, and continuing on each
anniversary of that date which occurs within ten (10) years from the date of
settlement on the Property, the purchase price shall be increased by four
percent (4%) per annum, compounded annually, provided that settlement on
Parcel 3 B is held not later than ten (10) years from the date of settlement
on the Property.
13.3.2. SETTLEMENT ON PARCEL 3 B MORE THAT TEN YEARS AFTER
DATE OF SETTLEMENT ON THE PROPERTY. If settlement on Parcel 3 B occurs more
than ten (10) years after the date of settlement on the Property, the
adjusted purchase price shall be the higher of the two figures obtained by
adjusting the purchase price as hereinafter set forth in subsections (i) and
(ii) hereof, respectively.
(i) The purchase price shall continue to be
increased by four percent (4%) per annum, compounded annually, beginning on
the date which is eighteen (18) months from the date of settlement on the
Property as set forth in Section 13.3.1. hereof and on each anniversary of
that date occurring prior to settlement on Parcel 3 B.
(ii) The purchase price shall be adjusted to the
fair market value of Parcel 3 B, determined as set forth in Section 13.3.3.
hereof, on the date that Buyer exercises its right to purchase Parcel 3 B.
13.3.3. DETERMINATION OF FAIR MARKET VALUE. Buyer and Seller
shall attempt to agree on the fair market value of Parcel 3 B within ten (10)
days after Buyer exercises its right to purchase Parcel 3 B. If Seller and
Buyer are unable to agree on the fair market value of Parcel 3 B within such
ten (10) day period, each shall nominate one person, who shall have a current
proficiency in land value appraisals in Baltimore County, Maryland and shall
be a member of the American Institute of Real Estate Appraisers having an
M.A.I. designation and having an office in the Baltimore Metropolitan area,
to appraise and determine the Fair Market Value of Parcel 3 B. The
nomination must be in writing and must be given by each party to the other
within thirty (30) days from the date that Buyer exercised its right to
purchase Parcel 3 B. If the two persons nominated and appointed as
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appraisers by the parties shall differ in judgment by more than 10% as to the
Fair Market Value shown on the higher appraisal, then they shall appoint an
appraiser having an M.A.I. designation and having a current proficiency in
land value appraisals in Baltimore County, Maryland to be the third
appraiser, if they can agree upon such person. However, if they cannot
agree, then the Chief Judge of the Circuit Court for Baltimore County shall
appoint an appraiser having an M.A.I. designation and having a current
proficiency in land value appraisals in Baltimore County, Maryland as the
third appraiser, but if such Chief Judge shall fail or refuse to act, then
either party may apply to any court having jurisdiction for the appointment
of such third appraiser. If the two appraisers so chosen shall agree in
writing upon the fair market value, then such value shall be binding upon
Seller and Buyer; if the fair market value established by the two appraisers
differs by 10% or less of the value shown on the higher appraisal, then the
average of the two appraisals shall be binding on Seller and Buyer; but if
the fair market value established by the two appraisers, which shall be
submitted within thirty (30) days after the second of the two appraisers
shall have been nominated, differs by more than 10% of the value shown on the
higher appraisal, then the selection of the third appraiser shall be made as
above provided within ten (10) days thereafter. The decision of the third
appraiser so selected as to the fair market value shall be rendered in
writing to the parties within thirty (30) days after the selection of such
third appraiser. In the event the third appraiser is used, the Fair Market
Value of Parcel 3 B shall be determined as follows: (i) if the fair market
value established by the third appraiser is lower than both of the fair
market values established by the two appraisals, then the lower of the fair
market values established by the two appraisals shall be conclusive and
binding upon Seller and Buyer, (ii) if the fair market value established by
the third appraiser is equal to or between the fair market values established
by the two appraisals, then the fair market value established by the third
appraiser shall be conclusive and binding upon Seller and Buyer, or (iii) if
the fair market value established by the third appraiser is higher than both
of the fair market values established by the two appraisals, then the higher
of the fair market values established by the two appraisals shall be
conclusive and binding upon Seller and Buyer. Each party shall bear the
expense of its own appraiser, but the fees and expenses of the third
appraiser shall be shared equally.
13.4. SETTLEMENT. Settlement on Parcel 3 B will be held on, or by
mutual consent before, the date specified as the latest date on which
settlement under the Prochazka Option must be held in the notice from Seller
given pursuant to Section 13.1.
13.5. MANNER OF CONVEYANCE. At the election of Seller, Parcel 3 B
shall be conveyed to Buyer pursuant to the provisions of either sub-section A
or sub-section B hereof. Seller shall give Buyer notice in writing of which
provisions it elects not less than thirty (30) days prior to settlement.
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A. SELLER ACQUIRES PROCHAZKA PROPERTY.
(i) Seller shall acquire the Prochazka Property
pursuant to the provisions of the Prochazka Option.
(ii) Upon payment of the purchase price by Buyer,
Seller shall convey Parcel 3 B to Buyer.
B. SELLER PARTIALLY ASSIGNS PROCHAZKA OPTION.
(i) Seller shall assign the Prochazka Option as it
relates to the Prochazka Portion to Buyer. In consideration for such
assignment, Buyer shall pay Seller an amount equal to the part of the
purchase price allocable to the Prochazka Portion on an acreage basis less
the purchase price payable by Buyer to acquire the Prochazka Portion and such
part of the recordation, transfer and agricultural transfer taxes as are
attributable to such purchase price. At settlement under the Prochazka
Option, Seller shall reimburse Buyer for any agricultural transfer taxes paid
by Buyer.
(ii) Seller and Buyer shall acquire their respective
portions of the Prochazka Property pursuant to the provisions of the
Prochazka Option.
(iii) Upon payment of the balance of the purchase price
by Buyer, Seller shall convey the balance of Parcel 3 B to Buyer.
13.6. CONDITION OF TITLE. Acceptable fee simple title to Parcel 3
B shall be conveyed to Buyer at settlement subject to no liens, encumbrances
or restrictions except those shown on the title report submitted by Buyer to
Seller upon exercise of its right to purchase Parcel 3 B (and such other
liens, encumbrances and restrictions as are consented to by Buyer).
13.7. AGREEMENT IMPOSING RESTRICTIONS. Seller and Buyer shall
execute an agreement imposing certain covenants and restrictions on Parcel 3
B, in the form attached hereto as EXHIBIT E, which agreement shall be
recorded among the Land Records of Baltimore County immediately after the
deed conveying title to Parcel 3 B to Buyer and before any mortgage or other
lien is placed on Parcel 3 B.
13.8. RECORDATION AND TRANSFER TAXES. Any County or State
recordation or transfer taxes, including agricultural transfer taxes, based
on the consideration paid to the Prochazkas pursuant to the Prochazka Option,
shall be paid by Seller either directly or as a credit against the purchase
price as set forth in Section 13.4.B. All other State and County recordation
and transfer taxes except agricultural transfer taxes shall be borne one-half
by Seller and one-half by Buyer. Any agricultural transfer taxes shall be
paid by Seller.
13.9. PRORATIONS. Prorations shall be as set forth in Section 6.2.
hereof.
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13.10. DEFAULT BY PROCHAZKAS.
13.10.1. In the event that the Prochazkas default in their
obligation to convey the Prochazka Property pursuant to the terms of the
Prochazka Option, Seller shall in no event have any liability to Buyer for
its failure to cause the conveyance of Parcel 3 B to Buyer by reason of the
Prochazkas' default.
13.10.2. In the case of such default, unless Buyer notifies
Seller within thirty (30) days of the date provided for settlement under the
Prochazka Option that it wishes Seller to file a suit for specific
performance against the Prochazkas, at Buyer's expense, and is willing to
postpone settlement until the conclusion of the suit, neither party shall
have any further rights under this Section 13. If Buyer does so notify
Seller, Seller shall with reasonable promptness file a suit for specific
performance against the Prochazkas and shall diligently prosecute same at
Buyer's expense. If the suit results in a decree refusing specific
performance, Seller shall not be obligated to appeal, and neither party shall
have any further rights under this Section 13 unless Buyer directs Seller to
prosecute an appeal of the adverse decision at Buyer's expense, and further
agrees to defer settlement until after a favorable decision on appeal.
Settlement shall be held, if at all, within five (5) days after all appeal
rights have expired after entry of a decree for specific performance of the
Prochazka Option by a court of competent jurisdiction and performance of the
decree by the Prochazkas.
14. GENERAL PROVISIONS.
14.1. POSSESSION. Possession of the Property, free and clear of
all tenancies and rights of occupancy in third parties, shall be delivered
to, and all risk of loss and damage to the Property from whatever source
shall pass to Buyer at settlement. Prior to settlement, all such risk of
loss and damage, except as otherwise agreed herein, shall be the sole
responsibility of Seller.
14.2. NOTICES. All notices or other communications made pursuant
hereto shall be in writing and shall be deemed properly delivered, given or
served when (i) personally delivered against receipted copy; (ii) mailed by
certified or registered mail, return receipt requested, postage prepaid, or
(iii) sent by Federal Express or a comparable overnight courier service to
the parties at the following addresses:
Seller: McDonogh School, Incorporated
10075 Red Run Boulevard
Suite 505
Owings Mills, Maryland 21117-6128
Attention: Mr. D. Terrence MacHamer
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with a copy to: William L. Balfour, Esq.
Ober, Kaler, Grimes & Shriver
A Professional Corporation
120 E. Baltimore Street
Baltimore, Maryland 21202
Buyer: T. Rowe Price Associates, Inc.
100 E. Pratt Street
9th Floor
Baltimore, Maryland 21202
Attention: Andrew C. Goresh
with a copy to: Donald P. McPherson, III, Esquire
Piper & Marbury
36 South Charles Street
Baltimore, Maryland 21201-3019
All notices so mailed shall be effective when received. A signed return
receipt shall be sufficient evidence of receipt. Either party may change its
address for the purposes of this Section by giving five (5) days prior
written notice of such change to the other party in the manner provided in
this Section.
14.3. BROKER'S COMMISSION. Each of the parties hereto warrants and
represents to the other that no broker or agent has been instrumental in
procuring this Contract. Seller and Buyer agree to indemnify and hold each
other harmless from any and all claims for any brokerage fees or commissions
asserted by brokers claiming by, through or under the indemnifying party.
14.4. SUCCESSORS. Subject to Section 14.9 below, this Contract
shall be binding upon and inure to the benefit of the successors and assigns
of the parties hereto.
14.5. ENTIRE AGREEMENT. This Contract contains the entire
agreement of the parties hereto with respect to the matters covered hereby,
and supersedes all prior arrangements and understandings between the parties;
and no other agreement, statement or promise made by either party hereto
which is not contained herein shall be binding or valid.
14.6. AMENDMENTS. This Contract may only be amended by written
document signed by each of the parties hereto.
14.7. WARRANTIES. No person acting on behalf of Seller is
authorized to make, and by execution hereof Buyer acknowledges that no such
person has made, any representation, warranty, guaranty or promise except as
set forth herein; and no agreement, statement, representation or promise made
by any such person which is not contained herein shall be valid or binding on
Seller. The only representations or warranties outstanding with respect to
the subject matter of this transaction, either express or implied by law, are
set forth herein, and Buyer expressly waives the right to any warranty
implied by law. Buyer acknowledges that an authorized agent of Buyer has
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independently and personally inspected the Property and that Buyer has
entered into this Contract based upon such personal examination and
inspection of the Property, and except for the specific express warranties of
Seller contained in this Agreement, Buyer acknowledges that the Property is
purchased in "AS IS" condition.
14.8. FURTHER DOCUMENTS. Each party will, whenever and as often as
it shall be requested by the other party, execute, acknowledge and deliver,
or cause to be executed, acknowledges and delivered, such further instruments
and documents, including closing instructions, as may be necessary in order
to complete the sale, conveyance and transfer herein provided and to do any
and all other acts and to execute, acknowledge and deliver any and all
documents as may be requested in order to carry out the intent and purpose of
this Agreement.
14.9. ASSIGNMENT. This Contract may be assigned by Buyer to T.
Rowe Price Associates, Inc. or any entity of which T. Rowe Price Associates,
Inc. owns, directly or indirectly, in excess of fifty percent (50%) of the
voting control of such entity, without the consent of Seller. Except as set
forth above, this Contract may not be assigned by Buyer without the prior
written consent of Seller, which consent may be withheld by Seller in its
sole and absolute discretion. The transfer of voting control of Buyer or any
permitted assignee other than T. Rowe Price Associates, Inc. shall constitute
an assignment within the meaning of this Section 14.9.
14.10. SEVERABILITY. Should any part, term or provision of this
Contract or any document required herein to be executed or delivered at the
closing be declared invalid, void or unenforceable, all remaining parts,
terms and provisions hereof shall remain in full force an effect and shall in
no way be invalidated, impaired or affected thereby.
14.11. EXHIBITS. All exhibits attached to this Contract are
incorporated herein as though set forth herein in full.
14.12. APPLICABLE LAW. This Contract shall be construed and
interpreted under, and governed and enforced according to, the laws of the
State of Maryland.
14.13. REMEDIES NOT EXCLUSIVE AND WAIVERS. Unless specifically set
forth therein, no remedy conferred by any of the specific provisions in this
Contract is intended to be exclusive of any other remedy and each and every
remedy shall be cumulative and shall be in addition to every other remedy
given hereunder or now or hereafter existing at law or in equity or by
statute or otherwise. The election of any one or more remedies shall not
constitute a waiver of the right to pursue other available remedies.
14.14. COUNTERPARTS. This Contract may be executed by the parties
on the same copy or copies or in counterparts, each of which shall be deemed
an original, but all of which together containing the signatures of all
parties shall constitute one and the same agreement.
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14.15. INDEPENDENT INVESTIGATION AND INSPECTION. Buyer
acknowledges that authorized agents of Buyer have independently inspected the
Property, and Buyer has made and entered into this Contract based upon such
inspection and its own authorized examination of the condition of the
Property.
14.16. INTERPRETATIONS AND DEFINITIONS.
14.16.1. DEFINITIONS. For purposes of this Agreement, the
following terms shall have the meaning respectively hereafter set forth: (i)
"closing" or "settlement" shall mean the consummation of the purchase and
sale transaction evidenced by the delivery by Seller of the deed to the
subject Property described above and the payment by Buyer of the full
purchase price therefor, and (ii) "date of this Contract" shall mean the date
set forth in the preamble paragraph of the first page hereof, which date
shall be the date upon which Seller executes this Contract and shall be
inserted by Seller upon Seller's execution of this Contract.
14.16.2. CONSTRUCTION. Any rule of construction to the
effect that ambiguities are to be resolved against the drafting party shall
not apply in the interpretation of this Agreement or any amendments or
exhibits thereto.
14.16.3. RECITALS AND CAPTIONS. The recitals and captions of
the Section and subsections of this Contract are for convenience and
reference only, and the words contained therein shall in no way be held to
explain, modify, amplify, or aid in the interpretation, construction or
meaning of the provisions of this Contract.
14.16.4. DATES. All references herein to the expiration of a
certain number of days refer to calendar days, rather than business days.
Therefore, if the expiration of a certain number of calendar days occurs on a
Saturday, Sunday or banking holiday, such calendar days shall be deemed to
occur on the next, succeeding calendar day, which is not a Saturday, Sunday
or banking holiday.
15. PROPER AUTHORITY. Each party agrees that at the request of the
other party it will provide such other party with evidence of proper
authority to enter into and consummate this Contract and with evidence that
the person or persons signing on behalf of such party are so authorized.
16. TIME OF ESSENCE. Time is and shall be of the essence of this
Contract.
17. ATTORNEYS' FEES. In the event either party hereto prevails against
the other in a legal action concerning any part of this Contract, such
successful party shall be entitled to its reasonable attorneys' fees and
costs connected with such action in addition to all other recovery or relief.
18. NO RECORDATION. Buyer undertakes and agrees not to record this
Contract, or any memorandum hereof, without Seller's prior written consent.
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IN WITNESS WHEREOF, the parties hereto have executed this Contract, or
caused it to be executed by their duly authorized representatives, the day
and year set forth below their respective signatures.
McDONOGH SCHOOL, INCORPORATED
By: /s/ Christine Alexander
Title: President
Date: 9/29/95
Seller
TRP SUBURBAN SECOND, INC.
By: /s/ Andrew C. Goresh
Title: Vice President
Date: 9/27/95
Buyer