AGREEMENT OF SALE
THIS AGREEMENT OF SALE ("this Agreement"), made this 16th
day of _July___, 2008, by and between FRP BIRD RIVER LLC, a Maryland
Limited Liability Company, having an address at 34 Loveton Circle,
Suite 100, Sparks, Maryland 21152 ("Seller"), and MACKENZIE INVESTMENT
GROUP, LLC, having an address at 2328 West Joppa Road, Suite 200,
Lutherville, Maryland 21093 ("Buyer"),
WITNESSETH, THAT IN CONSIDERATION of the covenants and
agreements of the parties hereto which are set forth herein, and for
other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged by each party hereto, Seller hereby sells
to Buyer and Buyer hereby purchases from Seller that certain parcel of
real property consisting of approximately 120.965 acres located in
Baltimore County, Maryland, depicted on the record plat attached hereto,
and incorporated herein, as Exhibit A ("the Land").
TOGETHER WITH all improvements ("Improvements") on the Land,
all of the Seller's right, title and interest in and to any real property
which lies within the dedicated area of any public roads contiguous to
the Property, and any and all rights, alleys, ways, waters, privileges,
appurtenances and advantages, to the same belonging or in any way
appertaining (all of which Land, Improvements and appurtenances are
hereinafter referred to collectively as the "Property").
ON THE TERMS AND SUBJECT TO THE CONDITIONS set forth herein:
Section 1. Purchase Price. Buyer shall pay Twenty-Five Million
Two Hundred Sixty-five Thousand and 00/100 Dollars ($25,265,000.00) to
Seller as the purchase price for the Property, subject to possible
adjustment as set forth below (the "Purchase Price"), in the following manner:
1.1. Deposit.
1.1.1. Upon the execution hereof, the Buyer shall deposit
with Chicago Title Insurance Company in Baltimore, Maryland 21202 ("Escrow
Agent"), a deposit of Two Hundred Thousand and 00/100 Dollars ($200,000.00)
(the "Initial Deposit"). If this Agreement is not terminated by Buyer prior
to the expiration of the Study Period (hereinafter defined), then the
Initial Deposit shall become nonrefundable. Provided Buyer has not elected
to terminate this Agreement, Buyer shall deliver to Escrow Agent an additional
nonrefundable deposit (the "Additional Deposit") of One Hundred Fifty Thousand
Dollars ($150,000.00) within one hundred fifty (150) days after the date of
this Agreement, subject to extension under subsection 10.13. Buyer shall
deliver to Escrow Agent the final nonrefundable deposit of Six Hundred Fifty
Thousand Dollars ($650,000.00) (the "Final Deposit") within the earlier of
(a) five (5) business days of the Baltimore County Planning Board's approval
of the planned unit development ("PUD") concept plan for the Property
(with the understanding that the Final Deposit shall be due and owing upon
the Planning Board's issuance of such approval, with payment thereof deferred
for five (5) business days) or (b) two hundred seventy (270) days after
the date of this Agreement, subject to extension under subsection 10.13.
The Initial Deposit, Additional Deposit and the Final Deposit are sometimes
collectively referred to hereafter as the "Deposit." The Deposit is to be
held in an interest-bearing account in a federally insured institution until
Closing hereunder unless previously forfeited to Seller or refunded to Buyer
in accordance with the terms of this Agreement.
1.1.2. At "Closing" (as that term is defined herein), the
Deposit shall be delivered by Escrow Agent to Seller in partial payment of
the Purchase Price.
1.2. Balance. At Closing, Buyer shall pay to Seller the
balance due on the Purchase Price, after the application of the Deposit,
by wired funds.
1.3. Adjustment to Purchase Price. The Purchase Price for
the Property is based on PUD approval for the number of residential building
lots (collectively the "Lots" and individually a "Lot") and the Lot type or
mix at the agreed upon purchase prices shown on the following schedule (the
"Schedule"):
Number of Front Width Purchase Total Purchase
Lot type Lots Price Per Lot Price
-------- ---------- ----------- ------------- --------------
Single-Family 50'
("Single-Family Lot") 109 $100,000 $10,900,000
Townhome ("24' 24'
Townhome Lot") 102 $ 50,000 $ 5,100,000
Townhome ("22' 22'
Townhome Lot") 149 $ 45,000 $ 6,705,000
Stacked Townhome 25'
("Stacked Townhome Lot") 64 $ 40,000 $ 2,560,000
-- -----------
Total 424 $25,265,000
--- -----------
If approval cannot be obtained for the projected number of Lots or
for the designated Lot mix as shown on the Schedule, the Purchase Price shall
be adjusted in accordance with the Purchase Price Per Lot shown on the
Schedule, provided that the minimum Purchase Price shall be Twenty-Two
Million Five Hundred Thousand Dollars ($22,500,000.00) (the
"Minimum Purchase Price"). For example, if Buyer is only able to obtain
one hundred (100) Single-Family Lots, one hundred (100) 24' Townhome Lots,
one hundred fifty (150) 22' Townhome Lots, and sixty (60) Stacked Townhome
Lots, the Purchase Price shall equal Twenty-Four Million One Hundred Fifty
Thousand Dollars ($24,150,000.00). That price is based on the Purchase
Price per Lot set forth above.
If Closing occurs before the final approval of the PUD, the Purchase
Price at Closing shall be Twenty-Two Million Five Hundred Thousand Dollars
($22,500,000.00), with an adjustment in the Purchase Price to be made within
ten (10) days after the final approval of the PUD and the expiration of any
appeal period based on the number of Lots and the Lot mix approved in the PUD.
In the event that Closing occurs after the final approval of a PUD and prior
to the recordation of a subdivision plat, the Purchase Price will be based
on the number of approved Lots and the Lot mix approved in the PUD. The
Purchase Price shall be adjusted within ten (10) days of the recordation of
the subdivision plat by the actual number of approved Lots and the Lot mix
established by the final recorded subdivision plat. In no event shall the
Purchase Price equal an amount less than the Minimum Purchase Price. If
Closing occurs following the recordation of the subdivision plat for the
Property, the Purchase Price shall be based upon the number of Lots and the
Lot mix established by the subdivision plat. The provisions of this section
shall survive Closing and the delivery of the Deed to Buyer.
1.4. Additional Purchase Price. After Closing, Seller
shall be entitled to receive an Additional Purchase Price (the "Additional
Purchase Price") based on the finished Lot sale prices and sales pace. If
the actual total finished Lot prices are seven percent (7%) or more greater
than Buyer's forecasted finished Lot price of Sixty-Eight Million Two
Hundred Eighty-Three Thousand One Hundred Forty-Eight Dollars
($68,283,148.00), and all of the finished Lots are sold within five (5)
years from the date of Closing (the "Additional Purchase Price Period"),
Buyer will pay to Seller an Additional Purchase Price of fifty percent
(50%) of the difference between Seventy-Three Million Sixty-Two Thousand
Nine Hundred Sixty-Eight Dollars ($73,062,968.00) and the total actual
finished Lot prices. If applicable, the Additional Purchase Price shall
be paid within thirty (30) days from the date that all finished Lots on
the Property have been sold and settled. Prior to the expiration of the
Study Period, Buyer shall provide Seller with the forecasted finished Lot
sales price menu and the forecasted sales pace. At the time of payment
of any Additional Purchase Price, Buyer shall prepare and submit to Seller
a calculation of the Additional Purchase Price based on verifiable HUD 1
settlement sheets along with any Additional Purchase Price owed.
Additionally, Buyer shall provide Seller with copies of executed HUD-1
settlement statements for sold Lots at least once every twelve (12) months
for the five (5) years following Closing unless Seller has elected to
Accept the Escalated Sales Price as described in Section 10.12 of this
Agreement. If there are Lots that are not under contract on that date
which is ninety (90) days prior to the end of the Additional Purchase
Price Period, Buyer shall provide Seller with written notice (the "Option
Notice") identifying the unsold Lots, and Seller shall have the option to
acquire such Lots at the
average price of the last ten (10) Lots of each such Lot type by providing
Buyer with written notice of such election within fifteen (15) days of its
receipt of the Option Notice of its election to exercise its option. If
Seller elects to exercise its option, settlement on such Lots shall occur
prior to the expiration of the Additional Price Purchase Period and the
state of title and settlement cost adjustments, including the sharing of
the costs of transfer and recordation taxes, shall all be in accordance
with the terms of this Agreement as they related to the initial sale to
Buyer. In such event, Seller would be entitled to a credit at settlement
for any Additional Purchase Price which may then be applicable. The
provisions of this section shall survive Closing and the delivery of the
Deed to Buyer.
Section 2. Closing, Title and Possession.
2.1. Closing. Provided that all Conditions Precedent
(hereinafter defined) to Closing have been satisfied, the settlement of
the purchase and sale of the Property hereunder ("Closing") shall take
place within sixty (60) days of the recordation of a subdivision plat for
the Property or seven hundred and thirty (730) days from the date of this
Agreement, whichever shall first occur or the next business day if such
day is a weekend or holiday (which date is referred to herein as the
"Outside Closing Date"), subject to Buyer's right to waive the Conditions
Precedent and proceed to Closing or terminate the Agreement if the
Conditions Precedent are not satisfied or waived as provided in Section 3
of this Agreement. Notwithstanding the foregoing sentence, Buyer shall
have the right to extend the Outside Closing Date for up to eighteen (18)
thirty (30) day periods by providing Seller with written notice of such
extension at least five (5) days prior to the then current Outside Closing
Date accompanied by a non-refundable fee of Two Thousand Dollars ($2,000.00)
for each of the first twelve (12) thirty (30) day periods and Five Thousand
Dollars ($5,000.00) for each of the next three (3) thirty (30) day periods
and Ten Thousand Dollars ($10,000.00) for each of the last three (3) thirty
(30) day periods (each, an "Extension Fee"), which Extension Fees shall not
be applicable to the Purchase Price.
2.2. Title and Survey.
2.2.1. State of Title. At Closing, Seller shall convey
to Buyer, title to the Property, in fee simple, by a special warranty deed
containing a covenant of further assurances, subject only to the operation
and effect of instruments and matters of record or in fact acceptable to
Buyer in its sole discretion (the "Permitted Encumbrances"). Buyer shall
provide Seller with written notice of any objections to title within
forty-five (45) days of the date of this Agreement, along with a copy of
Buyer's title commitment and legible copies of all title exceptions. All
title exceptions noted in such commitment shall be deemed "Permitted
Encumbrances" unless objected to by Buyer within said forty-five (45) day
period. As to all instruments and matters of record which are not
Permitted Encumbrances, following Buyer's objection to any such instrument
or matter, (a) if such instrument or matter consists of a mortgage, deed
of trust, or other lien on such title that can be satisfied with the payment
of money, Seller shall cause such lien to be released at or before Closing,
unless
it is to be specifically adjusted between the parties hereto at
Closing pursuant to subsection 2.4, and (b) as to other instruments or
matters, Seller shall have thirty (30) days from the date of Buyer's notice
in which to endeavor to cure such objections, if it so elects, failing
which Buyer may terminate this Agreement by notice to Seller within ten (10)
days after the expiration of the aforesaid thirty (30) day cure period and
the Deposit with all interest thereon shall be returned to the Buyer and
neither party shall have any further rights or obligations hereunder except
for indemnity obligations.
2.2.2. Further Encumbrances. While this Agreement is in
effect, Seller shall not further encumber or permit to be further encumbered
the title to any or all of the Property by any lien, easement agreement,
covenant, lease or other instrument or matter of record or in fact, without
obtaining Buyer's prior, express written consent thereto.
2.2.3. Assumption of Seller Obligations by Buyer;
Assignment of Rights. Buyer expressly agrees to assume the obligations
of Seller under all Permitted Encumbrances, including, specifically, but
not limited to, that certain Windlass Run Sewer Agreement (FRP, MIE and
MRBC) dated December 8, 2006, by and between FRP Bird River LLC, Middle
River Business Center, LLC, and Middle River-MIE Area 2/3, LLC, recorded
among the Land Records of Baltimore County in Book 24966, page 319, with
regard to the payment of sewer connection charge credits due to Middle
River-MIE Area 2/3, LLC and that certain Agreement dated October 17, 2007,
by and between Rosedale Roofing Company, Inc. and FRP Bird River LLC,
recorded among the Land Records of Baltimore County in Book 26312, page 477,
which are each hereby deemed Permitted Exceptions. At Closing, Seller
shall assign to Buyer any and all rights that it has to a right of first
refusal pursuant to that certain Deed of Partition and Exchange dated
January 11, 1983, by and between Universal Housing Development Company and
Charles G. Stoecker, Francis J. Stoecker and Irene M. Hubble, without
warranties or representations of any kind; and such assignment shall include
any rights of first refusal related to property to be retained by Seller and
not subject to this Agreement. If Seller receives notice of the right to
exercise the right of first refusal prior to Closing, and provided that Buyer
is not in default hereunder, Seller shall promptly forward such notice to
Buyer. To the extent possible, Seller shall, at that time, assign its rights
to Buyer to exercise the right of first refusal, subject to terms and
conditions to be agreed upon by the parties; such terms and conditions to
include, but not be limited to, an option in favor of Seller to acquire the
Stoecker property if Buyer does not go to Closing on the Property in
accordance with the terms of this Agreement.
2.3. Possession; Burden of Risk.
2.3.1. Possession. At Closing, the Seller shall deliver
to the Buyer possession of the Property, free of any and all tenancies and
other rights or claims of right to its use or occupancy, except for the
Permitted Encumbrances.
2.3.2. Maintenance. The Seller shall before Closing
maintain the Property, at the Seller's expense, in the manner in which it
is presently maintained; enter into no lease, agreement or renewal thereof
affecting the Property beyond Closing, except in accordance with the
provisions of paragraph 2.2; and promptly notify the Buyer if (a) the Seller
receives notice or acquires knowledge of any violation of any law, ordinance,
building code or regulation with respect to the Property, (b) the Seller
receives notice of any action of condemnation affecting the Property, or (c)
any of the Seller's representations under the provisions of this Agreement
is or becomes untrue or inaccurate in any respect.
2.4. Closing Costs; Adjustments.
2.4.1. Recordation Costs. Seller and Buyer shall each pay
one-half (1/2) of the cost of any recording fee and any state or local
recordation tax, documentary stamp tax or other transfer tax or fee
incurred in recording the said deed. Any agricultural transfer tax shall
be the responsibility of Seller.
2.4.2. Taxes. Except as otherwise provided herein, all
annual real property taxes and metropolitan district or other charges
levied or assessed against any of the Property by any public or
quasi-public authority, or by any person under any Permitted Encumbrance,
before, at or as a result of Closing, whether or not the same are liens
on real property as of the date of Closing and whether or not assessments
are levied before, on or after the date hereof (collectively "Taxes"), shall
be (a) apportioned between the parties hereto as of Closing, based on the
Taxes or (if payable in installments) installment thereof for the entire
year or other period during which Closing occurs (except for any penalty
for post-payment thereof, which shall be paid by Seller at or before
Closing), and any adjustment required to accomplish the same may be made
after Closing, if necessary, and (b) paid thereafter by Buyer.
2.4.3. Other Closing Expenses. Seller shall pay its own
attorney's fees and expenses. Except as otherwise set forth herein, all
other costs and expenses related to the transaction or this Agreement,
including but not limited to recording charges, survey costs, title
insurance costs, the Buyer's attorneys' fees and expenses, the Escrow
Agent's fees, any other taxes and any extra matters requested with respect
to the Buyer's review of title shall be paid by Buyer, notwithstanding
any local practice to the contrary.
2.4.4. Sewer Connection Charge Credits. Seller entered
into a Sewer Agreement dated October 20, 2006, between Seller, Middle
River Business Center, LLC, Middle River-MIE Area 2/3, LLC and Baltimore
County, Maryland, recorded among the Land Records of Baltimore County in
Book 24706, page 418 (the "Sewer Agreement"). Seller paid Baltimore
County $709,223.76 for a portion of the cost of the construction of a
sewer interceptor. Pursuant to the Sewer Agreement, Seller is entitled
to prepayment credits for sewer system
connection charges up to the amount of its financial contribution. Buyer
agrees to pay to Seller the amount of any prepayment credits for sewer
system connection charges pursuant to the Sewer Agreement within ten (10)
days of receipt of such credit by Buyer or Buyer's successors or assigns.
Buyer shall require that any purchaser of Lots from Buyer shall be
obligated to pay Buyer an amount equal to the prepayment credit for sewer
system connection charges pursuant to the Sewer Agreement when and if
such credit is received by such purchaser or property owner. Buyer shall
then immediately deliver such funds to Seller. The provisions of this
Section shall survive Closing.
Section 3. Conditions Precedent.
3.1. Benefiting Buyer. Buyer's obligation hereunder to
complete Closing shall be conditioned on the satisfaction (or Buyer's
written waiver) of each of the following conditions precedent (herein
referred to as "Conditions Precedent") (each of which shall be for the
benefit of Buyer alone), failing which, Buyer may terminate this
Agreement and receive an immediate refund of its Deposit:
3.1.1. Title and Possession. Seller shall have tendered
to Buyer (a) the conveyance of the title to the Property in accordance
with, and in the state specified by, the provisions of subsection 2.2,
and (b) possession of the Property in accordance with subsection 2.3.
3.1.2. Representations. Each of Seller's
representations under this Agreement shall be true and accurate as of
Closing, as if they were made at and as of Closing.
3.1.3. Study Period. For the period commencing on
the date of this Agreement and ending ninety (90) days after such date
(the "Study Period"), and, if Buyer does not terminate this Agreement
pursuant to this Section, during the term of this Agreement, Buyer, at
its sole cost and expense, shall have reasonable access to the Property,
with prior notice to Seller which may be verbal, for the purpose of
conducting such soil borings, soil analyses, engineering tests and
studies, economic and/or topographic tests, studies, and/or other
investigations with respect to the Property as Buyer may deem necessary
in order to determine whether the Property is suitable for Buyer's
intended use thereof. Buyer will, and will cause any consultant to, take
all reasonable precautions to avoid any damage to the Property from the
activities of its employees, contractors, or equipment. Any damage or
changes to the Property resulting from the activities of Buyer or its
agents or contractors, whether or not caused by negligence, will be
promptly restored at Buyer's expense to the condition prior to such
activities by Buyer or its consultants. Buyer shall provide specific
notice to Seller of the time, place and methods before destructive
sampling of the Property will be performed, and shall not proceed with
such sampling without the prior written approval of Seller, which
approval shall not be unreasonably withheld or delayed. Notwithstanding
the foregoing, it is acknowledged by the parties that soil samples will
likely be taken in connection with environmental studies
and no prior consent must be received in connection with such studies or
samples. In the event that Buyer determines, in its sole discretion, that
the Property is not suitable for Buyer's intended use, then Buyer may
terminate this Agreement by delivery of written notice thereof to Seller
prior to the expiration of the Study Period, and thereupon the parties
hereto shall have no further rights or obligations one to the other
hereunder, and the Deposit and all interest accrued thereon shall be
returned to Buyer. Buyer shall indemnify and hold Seller harmless from
and against all costs, expenses, claims (including mechanics' lien claims)
and liabilities incurred by Seller in connection with the tests and
studies conducted by Buyer and Buyer's entry upon the Property pursuant
to this paragraph, including, without limitation, attorneys' fees and
expenses. Buyer shall, upon request, furnish to Seller evidence of its
liability insurance before entering upon the Property. Buyer further
agrees, at its sole cost and expense, in the event that this Agreement
terminates or Closing does not occur hereunder, to deliver to Seller
copies of all surveys, site plans, applications, test results, studies,
appraisals and similar information obtained by Buyer concerning the
Property, as well as any background or due diligence materials provided
by Seller to Buyer (collectively, the "Study Materials"). Notwithstanding
any provision to the contrary herein, Buyer's obligations under this
section shall survive the expiration or termination of this Agreement,
and shall survive Closing.
3.1.4. Seller Deliveries. Seller shall deliver a copy
of each of the following to Buyer within seven (7) days after the date
of this Agreement in Seller's possession or control, without any
representations or warranties of any kind:
a. Seller's title insurance policy that relates
to the Property;
b. Most recent survey of the Property;
c. Most recent real property tax bills related
to the Property;
d. All agreements with respect to or affecting
the Real Property; and
e. All environmental and soil reports relating
to the Property.
If the Conditions Precedent are not satisfied on or before the
Outside Closing Date, and Buyer shall have the option to terminate this
Agreement by providing Seller with written notice of such election
within five (5) days after the Outside Closing Date, the Deposit shall
be returned to Buyer (upon Buyer's delivery to Seller of the Study
Materials), and neither party shall have any further rights or
obligations to the other except as otherwise specifically set forth
herein.
3.1.5 Purchase "AS IS." Buyer acknowledges and agrees
that Buyer is acquiring the Property in its "AS IS" condition, WITH ALL
FAULTS, IF ANY, AND
WITHOUT ANY WARRANTY, EXPRESS OR IMPLIED, except as set forth herein.
Other than as expressly set forth herein, neither Seller nor any agents,
representatives, or employees of Seller have made any representations or
warranties, direct or indirect, oral or written, express or implied, to
Buyer or any agents, representatives, or employees of Buyer with respect
to the condition of the Property, its fitness for any particular purpose,
or its compliance with any laws, and Buyer is not aware of and does not
rely upon any such representation to any other party. Buyer acknowledges
that the Study Period will have afforded Buyer the opportunity to make
such inspections (or have such inspections made by consultants) as it
desires of the Property and all factors relevant to its use, including,
without limitation, the condition of soils and subsurfaces. Any
information, documents or materials which have been or hereafter are
made available to Buyer are made available solely as an accommodation
to Buyer in the conduct of its due diligence, and Seller makes no
representation or warranty as to the accuracy thereof.
Section 4. Representations.
4.1. Subject to all matters disclosed in any document
delivered to Buyer by Seller or any exhibit attached hereto, and
subject to any information discovered by Buyer or other information
disclosed to Buyer by Seller or any other person after the date hereof
and prior to the end of the Study Period (all such matters and any
other information discovered by or disclosed to Buyer prior to Closing
being referred to herein as "Exception Matters"), to induce Buyer to
enter into this Agreement, Seller hereby represents and warrants to
Buyer as follows, as of the date hereof and as of the date of Closing:
4.1.1. Title. The Property is subject to no tenancy
or other right of use or occupancy. Seller has executed no rights-of-
first refusal, options, purchase agreements or similar agreements in
existence in connection with the Property which would in any way
interfere with Buyer's ability to purchase the Property as provided
herein.
4.1.2. Condemnation. Seller has no actual knowledge,
and has received no written notice, of any threatened or pending
condemnation proceeding or other litigation relating to or otherwise
affecting any or all of the Property.
4.1.3. Authority. Seller is a Maryland limited
liability company, duly organized, validly existing and in good
standing under the laws of the State of Maryland. Seller has full
power to execute, seal, acknowledge and deliver this Agreement and
to consummate each and all of the transactions contemplated hereby,
and has complied with all applicable laws to the extent necessary on
its part to consummate each and all of the transactions contemplated
hereby. This Agreement is Seller's legal and binding obligation,
enforceable against the Seller in accordance with its terms. All
persons whose signatures or consents are required as a condition to
Seller's execution of this Agreement and consummation of the
transactions contemplated hereby have also signed this Agreement,
thereby ratifying same.
4.1.4. Hazardous Materials. Except as otherwise
set forth in the environmental reports and other background materials
to be provided by Seller pursuant to Section 3.1.4 above, to Seller's
actual knowledge and without independent investigation, no Hazardous
Materials have been deposited on the Property by Seller or its
employees or agents or by any other person, either for purposes of
disposal or as an adjunct of construction or use of the Property, and
the Property does not contain any Hazardous Materials (whether brought
to the Property as waste materials, used on the Property, generated on
the Property as a product or by-product of activities on the Property,
or otherwise present), including, without limitation, any hazardous
substances that have leaked from underground storage tanks. As used
in this Agreement, the term "Hazardous Materials" (i) means any
"hazardous substance", as defined in (1) section 9601 of the
Comprehensive Environmental Response, Compensation, and Liability Act
of 1980 ("CERCLA"), as codified in 42 U.S.C. sections 9601 et seq.
(including but not limited to those amendments thereto made by the
Superfund Amendments and Reauthorization Act of 1986 ("SARA")), (2)
the Resource Conservation and Recovery Act ("RCRA"), as codified in
42 U.S.C. sections 6901 et seq., (3) the Federal Water Pollution
Control Act (the Clean Water Act) ("CWA"), as codified in 33 U.S.C.
sections 1251 et seq., (4) the Clean Air Act ("CAA"), as codified in
42 U.S.C. sections 7401 et seq., (5) the Toxic Substances Control Act
("TSCA"), as codified in 15 U.S.C. sections 2601 et seq., and (6) all
other federal, state or other local laws, regulations, statutes or
ordinances respecting Hazardous Materials; and (b) shall include any
other hazardous substance, environmentally dangerous condition or
dangerous asbestos condition, or lead paint and anything included
within the meanings of the term "Hazardous Materials" term in CERCLA,
SARA, RCRA, CWA, CAA and TSCA and under the laws of the United States
and Virginia respecting environmentally hazardous materials.
4.1.5. Prior Land Use. Seller represents and warrants
that it has not used the Property as a fill or dump site, and, to
Seller's knowledge, the Property has not been used as a fill or dump
site in the past.
4.1.6 Limitations Regarding Representations
and Warranties. As used in this Agreement, or in any other agreement,
document, certificate or instrument delivered by Seller to Buyer, the
phrase "to Seller's knowledge", "to Seller's actual knowledge", "to
the best of Seller's actual knowledge" or any similar phrase shall
mean the actual, not constructive or imputed, knowledge of David H.
deVilliers, Jr., without any obligation on his part to make any
independent investigation of the matters being represented and
warranted, or to make any inquiry of any other persons, or to search
or examine any files, records, books, correspondence and the like.
Seller shall have no liability whatsoever to Buyer with respect
to any Exception Matters. If Buyer obtains knowledge of any Exception
Matters before the Closing, Buyer may consummate the acquisition of
the Property subject thereto; provided, however, if
Buyer obtains knowledge of any Exception Matters between the end of the
Study Period and the Closing, which Exception Matters materially and
adversely affect the value to Buyer of the transactions contemplated by
this Agreement, Buyer may terminate this Agreement and receive a refund
of the Deposit. Upon any such termination of this Agreement, neither
party shall have any further rights or obligations hereunder except as
expressly provided for herein.
Buyer agrees to inform Seller promptly in writing if it discovers
that any representation or warranty of Seller is inaccurate in any
material respect, or if it believes that Seller has failed to deliver
to Buyer any document or material which it is obligated to deliver
hereunder.
Section 5. Buyer's Development Obligations. Buyer agrees, from
and after the expiration of the Study Period, to use its commercially
reasonable efforts to seek approval from Baltimore County of a Planned
Unit Development ("PUD") for the Property in accordance with the laws
of Baltimore County for the maximum density available and for the Lot
number and Lot mix set forth in the Schedule. Buyer shall also use
commercially reasonable efforts to seek approval for and record a
subdivision plat which conforms in all material respects to the
approved PUD. No PUD or subdivision plat shall be applied for that
provides for less than the maximum Lot number or for a different
Lot mix than shown on the Schedule, unless Buyer shall have previously
obtained the written approval of Seller, which approval shall not be
unreasonably denied; provided, however, that Seller shall not be
required to consent to a PUD or subdivision plat which provides for
less than four hundred (400) Lots. Buyer agrees to pursue the PUD
and subdivision plat approvals for the Property in accordance with the
Timeline Schedule set forth on Exhibit B. Notwithstanding anything to
the contrary contained herein, if a resolution authorizing the processing
of a concept plan as a PUD in accordance with the terms of this Section 5
and this Agreement is not issued by the Baltimore County Council within
two hundred ten (210) days of the date of this Agreement, this Agreement
shall be deemed to be terminated. In such event, the Initial Deposit
shall be deemed to have been forfeited to Seller and neither party shall
have any further rights or obligations hereunder except for indemnity
obligations which survive termination.
Section 6. Condemnation. If before Closing any of the Property
is taken by condemnation or the exercise of any power of eminent domain, or
if any formal or informal notice or advice of such condemnation or an
intention so to condemn is issued or becomes known to Seller, or if any
governmental entity or other person possessing condemnation powers demands
that any of the Property be conveyed to it in lieu of such condemnation,
Seller shall promptly give notice thereof to Buyer, and if Buyer reasonably
determines that such condemnation has a materially adverse impact upon its
use of the Property as contemplated by this Agreement, Buyer may terminate
this Agreement by giving notice to Seller within ten (10) days after this
giving of such notice by Seller, in which event the Deposit shall be
returned to Buyer and the parties hereto shall thereafter have no liability
to
each other hereunder. If Seller gives such notice to Buyer and Buyer does
not terminate this Agreement within such 10-day period, (a) Buyer shall be
deemed to have waived its right to terminate this Agreement on account of
such Condemnation, (b) the Purchase Price shall not be reduced on account
of such Condemnation, (c) at Closing Seller shall (i) pay to Buyer any
award made for such Condemnation and received by Seller before Closing,
and (ii) assign to Buyer all of Seller's right, title and interest in and
to any award made for such Condemnation after Closing, and (d) Buyer may
after Closing receive all of the proceeds of such Condemnation and contest,
in Seller's and/or Buyer's names, the validity of such Condemnation and/or
the amount of the proceeds offered or awarded therein. As long as this
Agreement remains in effect, Seller shall have the sole right to direct
and control the defense of any such Condemnation action.
Section 7. Default.
7.1. Before Closing or Termination of Agreement.
7.1.1. Rights. On any material default by either party
hereto in performing its obligations hereunder to complete Closing or in
a timely fashion to take any material action which it is required to take
before Closing, or in the event of any other material breach or default
hereunder, including any breach of a representation (collectively
"Default") the respective rights and obligations hereunder of the parties
hereto at law or in equity shall be limited to the following: the
nondefaulting party may, by giving notice thereof to the defaulting party,
either (a) postpone Closing and the Outside Closing Date on account
thereof, but not beyond the 60th day after the Original Outside Closing
Date, or (b) then (or at any time before such postponement period
expires, and provided that such default has not thereto before been
cured) declare such Default and exercise its rights under this section.
7.1.2. Buyer Default. If such Default is by Buyer
following written notice to Buyer and a thirty (30) day opportunity
to cure (a "Buyer Default"), Seller's sole and exclusive remedies on
account of such Buyer Default shall be to (a) declare a forfeiture
of the Deposit and terminate this Agreement by giving notice thereof
to Buyer and (b) sue Buyer to recover any portion of the Deposit
required to have been paid by Buyer pursuant to this Agreement but
not yet delivered to Escrow Agent. If Seller terminates this Agreement
and declares a forfeiture of the Deposit pursuant to this paragraph,
(i) the Deposit shall be delivered by Escrow Agent to Seller and
forfeited to Seller as liquidated damages, together with all Study
Materials and the assignment of any and all engineering and other
development work, (ii) this Agreement shall thereupon automatically
terminate, and (iii) the parties hereto shall thereafter have no
further obligation to each other hereunder except for any
obligations set forth herein which expressly survive such termination.
Notwithstanding the foregoing, the parties agree that the notice
and cure period for a Buyer Default shall not apply to Buyer's
obligation to pay money to Escrow
Agent or Seller under Sections 1 or 2 of this Agreement. This
subsection shall survive any termination of this Agreement before
Closing.
7.1.3. Seller Default. If such Default is by Seller
following written notice to Seller and a thirty (30) day opportunity
to cure (a "Seller Default"), and Buyer has complied with all of the
covenants and conditions herein and is ready, willing and able to
take title to the Property in accordance with this Agreement, Buyer
shall be entitled on account of such Seller Default to declare such
Seller Default by express notice to Seller, and thereafter, as its
sole and exclusive alternate remedies, (a) to commence an action for
specific performance, or (b) to terminate this Agreement by giving
notice thereof to Seller and receive a refund of the Deposit. If such
Seller Default relates to Seller's refusal to deliver a deed to the
Property, Buyer shall be entitled to reimbursement of all costs paid
by Buyer to third parties in Buyer's performance of its development
and due diligence obligations as set forth in this Agreement.
7.2. Escrow Agent. If a dispute arises between Seller and
Buyer as to whether, when or to whom the Deposit it is to be disbursed
by Escrow Agent, Escrow Agent may, in the exercise of its sole
discretion, in lieu of disbursing the Deposit to a party hereto, pay the
Deposit to the Clerk of the Circuit Court for the said County or any
other court having jurisdiction over disputes between the parties hereto
with respect to this Agreement, under such interpleader action or other
legal or equitable proceeding as Escrow Agent deems appropriate, pending
such court's resolution of such dispute. If Escrow Agent takes such
action, it shall have no further obligation hereunder concerning the
Deposit or otherwise. Escrow Agent shall be entitled to no fee for
performing its duties hereunder. The respective rights and obligations
of the parties hereto under this subsection shall survive Closing or
any termination of this Agreement before Closing.
Section 8. Notices. Any notice, demand, consent, approval,
request or other communication or document to be given hereunder to a
party hereto or Escrow Agent (a) shall be in writing; (b) shall be
deemed to have been given (i) (1) on the third business day after being
sent as certified or registered mail in the United States mails, postage
prepaid, return receipt requested, or (2) the next business day after
being deposited (in time for delivery by such service on such business
day) with Federal Express or another reputable overnight courier service,
or (3) (if such person's receipt thereof is acknowledged) on being sent
by telefax or another means of immediate electronic communication, in
each case to the address of such person set forth above or such other
address in the United States of America as such party may designate from
time to time by notice to each other party hereto, or (ii) (if such
person's receipt thereof is acknowledged in writing) on being given by
hand or other actual delivery to such person. All notices provided
hereunder shall be given as follows:
(a) If to Seller: FRP BIRD RIVER LLC
c/o FRP Development Corp.
34 Loveton Circle, Suite 100
Sparks, Maryland 21152
Attn: David H. deVilliers, Jr.
with a copy to:
Joseph N. Schaller, Esq.
Whiteford, Taylor & Preston, LLP
7 St. Paul Street
Baltimore, Maryland 21202
(b) If to Buyer: MacKenzie Investment Group, LLC
2328 W. Joppa Road, Suite 200
Lutherville, Maryland 21093
Attn: Andrew J. Poffel
with a copy to:
Robert J. Aumiller
2328 W. Joppa Road, Suite 200
Lutherville, Maryland 21093
Section 9. Commissions. In connection with the sale and
purchase of the Property hereunder, the parties hereto represent that
they have not used the services of a real estate broker. Buyer and
Seller agree to indemnify and hold the other harmless from and against
the claims of any person, firm, or corporation claiming any brokerage
commission, finder's fee, or similar compensation based on any
negotiations or dealings with that party contrary to the representations
set forth in this section. The representations and warranties as well
as the indemnification and other agreements in this section shall
survive closing and conveyance of title to the Property by deed or
any earlier termination of this Agreement.
Section 10. General.
10.1. Effect. This Agreement (a) shall become effective on
and only on its execution and delivery by each party hereto; and (b)
represents the complete understanding between or among the parties
hereto as to the subject matter hereof, and supersedes all prior
written or oral negotiations, representations, guaranties, warranties,
promises, statements or agreements between or among the parties
hereto as to the same. No determination by any court, governmental
body or otherwise that any provision hereof is invalid or unenforceable
in any instance shall affect the validity or enforceability of (a) any
other provision hereof, or (b) such provision in any circumstance not
controlled by such determination. Each such provision shall be valid
and enforceable to the fullest extent
allowed by, and be construed wherever possible as being consistent
with, applicable law. No party hereto shall be deemed to have waived
the exercise of any right which it holds hereunder unless such waiver
is made either expressly and in writing or pursuant to a provision
hereof which expressly permits such waiver to be made in any other
manner (and, without limiting the generality of the foregoing, no
delay or omission by any party hereto in exercising any such right
shall be deemed a waiver of its future exercise). No such waiver made
in any instance involving the exercise of any such right shall be
deemed a waiver as to any other such instance or right.
10.2. Assignment. This Agreement shall be binding on and
inure to the benefit of the parties hereto and their respective heirs,
personal representatives, successors and assigns in interest hereunder.
This Agreement and any of Buyer's rights under this Agreement may be
assigned by Buyer with the consent of Seller, but no such assignment
shall relieve the original Buyer of its obligations hereunder. No
consent shall be required for an assignment of this Agreement to an
entity wholly owned or controlled by Buyer, but Buyer shall notify
Seller in advance of any such assignment.
10.3. Time. Whenever the last day for the exercise of
any right or the discharge of any obligation hereunder is a Saturday,
Sunday or statutory holiday, the party having such right or obligation
shall have until 5:00 p.m. on the next day other than a Saturday,
Sunday or statutory holiday to exercise such right or discharge such
obligation. Time shall be of the essence hereunder.
10.4. Section 1031 Exchange. The sale of the Property by
Seller may be part of a tax-free exchange under Section 1031 of the
Internal Revenue Code, as amended (a "Section 1031 Exchange") and
all regulations thereunder. Buyer agrees to cooperate with Seller
and any qualified intermediary, at no additional cost to Buyer , by
executing any documents necessary to complete Buyer's Section 1031
Exchange. Seller shall remain liable to Buyer to fulfill all of the
obligations of Seller under this Agreement and shall defend,
indemnify and hold Buyer harmless from any liability, damages, or
costs that may result from Buyer's acquiescence to the like kind exchange.
10.5. Confidentiality. Prior to Closing, Buyer and Seller
agree to keep confidential, and not to disclose, the terms of this
Agreement, except (i) to each of their respective business, legal and
financial advisors on a "need to know" basis; (ii) as required by law;
or (iii) as required pursuant to applicable listing standards for
public companies such as Seller.
10.6. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original
but all of which when taken together shall constitute one agreement.
10.7. Recording. The parties agree that this Agreement shall
not be recorded.
10.8. Attorneys' Fees. In the event that any party hereto
shall prevail against the other in a legal action concerning any part
of this Agreement, such successful party shall be entitled to its
reasonable attorneys' fees and out-of-pocket costs attributable to those
issues prevailed upon in addition to all other recovery or relief.
10.9. Modifications. All statements, modifications, revisions,
and changes to this Agreement shall be in writing and shall be signed by
the parties hereto.
10.10. Construction. This Agreement shall be governed by and
construed in accordance with the laws of the State of Maryland, without
regard to choice of law.
10.11. Survival. Except as otherwise expressly set forth herein,
the provisions hereof shall not survive after the execution and delivery
of the deed executed hereunder and shall be merged therein.
10.12. Moratorium. Contrary to the limitation of subsection
10.13, in the event of a general moratorium imposed by any governmental
authority which will prohibit the issuance of building permits
affecting the Property (a "Moratorium"), the Outside Closing Date shall
be extended by the amount of time that the Moratorium is in effect,
provided that such extension does not extend beyond that date which is
2,555 days from the date of this Agreement, in which event, this
Agreement shall be deemed to be automatically terminated, and, upon the
return of the Deposit to the Buyer, neither party shall have any further
rights or obligations under this Agreement except for any obligations
which specifically survive the termination of this Agreement. In the
event of such a Moratorium, Seller shall have the option to terminate
this Agreement if Closing has not occurred by that date which is 1,825
days from the date of this Agreement upon thirty (30) days' prior
written notice to Buyer provided (1) Buyer elects not to waive its right
not to settle under this Agreement as a result of such Moratorium within
the aforesaid thirty (30) day period and (2) Seller delivers to Buyer the
Deposit and Buyer's actual out-of-pocket development expenses incurred to
third parties, which shall not exceed the sum of Three Million Dollars
($3,000,000.00). Buyer shall deliver written notice to Seller of Buyer's
actual third-party development costs accompanied by copies of paid
invoices within five (5) days of written request therefor. If Buyer
elects to extend the Outside Closing Date beyond thirty-six (36) months
from the date of the Agreement as a result of a Moratorium, the Purchase
Price shall escalate at the rate of two percent (2%) annually (the
"Escalated Purchase Price"). If an Escalated Purchase Price is triggered,
Seller shall have the right, at its sole option, to accept the Escalated
Purchase Price and forfeit its right to the Additional Purchase Price or
to retain its right to receive the Additional Purchase Price and forfeit
its right to collect the Escalated Purchase Price at Closing. In no
event shall Seller be entitled to both the Escalated Purchase Price and
the Additional Purchase Price.
10.13. Force Majeure. If Buyer is delayed in its performance
of any of the work contemplated under this Agreement by force majeure,
as described below, the Buyer shall be excused for the period of the
delay. For the purposes of this Agreement, force majeure shall consist
of restrictive governmental laws or regulations and lack of timely
action by any applicable governmental authority (assuming approvals
are timely applied for and diligently pursued by the Buyer). In no event
shall the excused delay allowed by this subsection extend for more than
60 days beyond the date that was previously required for Buyer's
performance.
[Remainder of page intentionally left blank]
[Signature blocks follow on next page]
IN WITNESS WHEREOF, each party hereto has executed and ensealed
this Agreement or caused it to be executed on its behalf by its duly
authorized representatives, the day and year first above written.
WITNESS or ATTEST: SELLER:
FRP BIRD RIVER LLC
By: FRP Development Corp., Sole Member
- ----------------------- By: David H. deVilliers, Jr. (SEAL)
Name: David H deVilliers, Jr.
Title: President
Date: July 16, 2008
WITNESS or ATTEST: BUYER:
MACKENZIE INVESTMENT GROUP, LLC
- ----------------------- By: Andrew J. Poffel (SEAL)
Name: Andrew J. Poffel
Title: President
Date: July 16, 2008
EXHIBIT A
---------
Legal Description of the Property
---------------------------------
EXHIBIT B
---------
Time Schedule
-------------
In connection with the PUD approval process, Buyer agrees
that:
1. Within forty-five (45) days of the execution of the
Agreement, Buyer shall apply for a resolution from the Baltimore
County Council for the concept plan to be processed as a PUD.
2. Within fourteen (14) days of the passage of the
Council resolution, Buyer shall apply for a Pre-concept Plan
Conference (PCPC) with Baltimore County related to the PUD Concept
Plan.
3. Within seventy-five (75) days of the passage of
the Council resolution, Buyer shall file the PUD Concept Plan
with Baltimore County.
FIRST AMENDMENT TO AGREEMENT OF SALE
------------------------------------
THIS FIRST AMENDMENT TO AGREEMENT OF SALE ("this Amendment")
is made this 14th day of October, 2008, by and between FRP BIRD
RIVER LLC, a Maryland limited liability company ("Seller"), and
MACKENZIE INVESTMENT GROUP, LLC, a Maryland limited liability company
("Buyer").
RECITALS:
---------
A. The parties have entered into that certain Agreement
of Sale dated July 16, 2008 (the "Agreement") for the purchase and
sale of certain real property described therein (the "Property").
B. The Agreement provides for a Study Period (as defined
in the Agreement) which expires at the end of business on October 14,
2008.
C. In order to satisfy certain outstanding issues, the
parties have agreed to extend the Study Period.
D. Seller also hereby consents to the assignment of
Buyer's rights under the Agreement to Windlass Run, LLC, a Maryland
limited liability company (the "Assignment").
NOW, THEREFORE, in consideration of the Recitals, which are
deemed a substantive part of this Amendment, the covenants of the
parties herein and in the Agreement, and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged,
Seller and Buyer hereby agree as follows:
1. Extension of Study Period. The Study Period is hereby
extended so that it will expire on the earlier of the satisfaction of
the issues set forth below or at 5:00 p.m. EST on November 13, 2008;
provided, however, that the Initial Deposit under the Agreement shall
be deemed non-refundable subject only to the satisfaction of the
conditions set forth below. The extension of the Study Period is solely
for purposes of providing Buyer and Seller with an opportunity to
resolve the following issues to Buyer's reasonable satisfaction:
(i) Confirm in a form reasonably satisfactory to
Buyer that it has the right to construct the future Campbell Boulevard
over lands currently owned by Baltimore Gas and Electric ("BGE").
Klein Enterprises also has an option to acquire a portion of the
property owned by BGE and must provide any necessary consents or
rights in connection with the construction of Campbell Boulevard over
the BGE property.
(ii) Obtain an amendment to that certain existing
Restrictive Covenants and Easement Agreement (Baltimore Crossroads @
95 Areas 4&7 and Windlass Run
Business Park) dated October 7, 2005 and recorded among the Land
Records of Baltimore County in Liber 23212, page 328 (the
"Restrictive Covenant Agreement") which will acknowledge that the
Property shall not be subject to the terms and conditions of the
Restrictive Covenant Agreement, subject only to the obligations to
turn over certain sewer allocation credits.
(iii) Receive an Estoppel Certificate in favor of
Seller as required by the Restrictive Covenant Agreement from Middle
River Business Center, LLC.
2. Assignment. Seller consents to the assignment of
Buyer's rights under the Agreement to Assignee, provided, however,
that such assignment shall not relieve Buyer of any of its
obligations under the Agreement. Assignee's notice address for
purposes of the Agreement shall be deemed to be that of Buyer.
3. Successors and Assigns. The terms covenants,
conditions and agreements contained in this Amendment shall bind and
inure to the benefit of Seller and Buyer and their respective
successors and permitted assigns.
4. Governing Law. This Amendment is made in the State
of Maryland and shall be governed and construed in all respects in
accordance with the laws of the State of Maryland.
5. Ratification. The Agreement is in full force and
effect and is hereby ratified. Except as amended by the terms hereof,
the Agreement has not been amended or modified, and the Agreement has
not been assigned except as set forth above.
6. Counterparts. This Amendment may be executed in any
number of identical counterparts. If so executed, each of such
counterpart shall, collectively, constitute one agreement, but in making
proof of this Amendment, it shall not be necessary to produce or account
for more than one such counterpart.
[Signatures contained on following page]
IN WITNESS WHEREOF, each party hereto has executed and ensealed
this Amendment or caused it to be executed on its behalf by its duly
authorized representatives, the day and year first above written.
WITNESS or ATTEST: SELLER:
FRP BIRD RIVER LLC
By: FRP Development Corp., Sole Member
- ---------------------- By: David H. deVilliers, Jr. (SEAL)
Name: David H deVilliers, Jr.
Title: President
Date: October 14, 2008
WITNESS or ATTEST: BUYER:
MACKENZIE INVESTMENT GROUP, LLC
- ---------------------- By: Andrew J. Poffel (SEAL)
Name: Andrew J. Poffel
Title: President
Date: October 14, 2008
Assignee joins in this Amendment to consent to the terms
hereof and to acknowledge its assumption of all rights and
obligations under the Agreement as modified hereby.
WITNESS or ATTEST: ASSIGNEE:
WINDLASS RUN, LLC
BY: Pinnacle Investment Corporation,
Manager
- ----------------------- By: Andrew J. Poffel (SEAL)
Name: Andrew J. Poffel
Title: President
Date: October 14, 2008
SECOND AMENDMENT TO AGREEMENT OF SALE
THIS SECOND AMENDMENT TO AGREEMENT OF SALE ("this Amendment")
is made this 13th day of November, 2008, by and between FRP BIRD
RIVER LLC, a Maryland limited liability company ("Seller"), and
WINDLASS RUN, LLC, a Maryland limited liability company ("Buyer").
RECITALS:
A. Seller and MacKenzie Investment Group, LLC (the
"Original Buyer") entered into that certain Agreement of Sale dated
July 16, 2008 (the "Agreement") for the purchase and sale of certain
real property described therein (the "Property").
B. The Agreement provides for a Study Period (as defined
in the Agreement) which originally expired at the end of business on
October 14, 2008.
C. On October 14, 2008, the parties entered into a First
Amendment to Agreement of Sale which extended the Study Period to
5:00 p.m. EST on November 13, 2008. In order to resolve certain open
issues described therein and assigned the Original Buyer's rights to
the Buyer.
D. In order to satisfy certain outstanding issues, the
parties have agreed to again extend the Study Period.
NOW, THEREFORE, in consideration of the Recitals, which are
deemed a substantive part of this Amendment, the covenants of the
parties herein and in the Agreement, and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged,
Seller and Buyer hereby agree as follows:
1. Extension of Study Period. The Study Period is hereby
extended so that it will expire on the earlier of the satisfaction of
the issue set forth below or at 5:00 p.m. EST on December 12, 2008;
provided, however, that the Initial Deposit under the Agreement shall
be deemed non-refundable subject only to the satisfaction of the
condition set forth below. The extension of the Study Period is solely
for purposes of providing Buyer and Seller with an opportunity to confirm
in a form of agreement reasonably satisfactory to Buyer that it has the
right to construct the future Campbell Boulevard over lands currently
owned by Baltimore Gas and Electric ("BGE"). Klein Enterprises also has
an option to
acquire a portion of the property owned by BGE and must provide any
necessary consents or rights in connection with the construction of
Campbell Boulevard over the BGE property.
2. Successors and Assigns. The terms covenants, conditions
and agreements contained in this Amendment shall bind and inure to the
benefit of Seller and Buyer and their respective successors and permitted
assigns.
3. Governing Law. This Amendment is made in the State of
Maryland and shall be governed and construed in all respects in
accordance with the laws of the State of Maryland.
4. Ratification. The Agreement is in full force and effect
and is hereby ratified. Except as amended by the terms hereof, the
Agreement has not been amended or modified, and the Agreement has not
been assigned except as set forth above.
5. Counterparts. This Amendment may be executed in any
number of identical counterparts. If so executed, each of such
counterpart shall, collectively, constitute one agreement, but in making
proof of this Amendment, it shall not be necessary to produce or account
for more than one such counterpart.
IN WITNESS WHEREOF, each party hereto has executed and ensealed
this Amendment or caused it to be executed on its behalf by its duly
authorized representatives, the day and year first above written.
WITNESS or ATTEST: SELLER:
FRP BIRD RIVER LLC
By: FRP Development Corp., Sole Member
- ---------------------- By: David H. deVilliers, Jr. (SEAL)
Name: David H deVilliers, Jr.
Title: President
Date: November 13, 2008
WITNESS or ATTEST: BUYER:
WINDLASS RUN, LLC
BY: Pinnacle Investment Corporation,
Manager
- ----------------------- By: Andrew J. Poffel (SEAL)
Name: Andrew J. Poffel
Title: President
Date: November 13, 2008