UNIT PURCHASE AGREEMENT
This Purchase Agreement (“Agreement”) is made and entered into this the day of , 20, by and between (a) RDRPropertiesLLC, a West Virginia limited liability company, or (b)CMC Company LLC, a West Virginia limited liability company, party of the first part (“Seller”), and party(ies) of the second part (whether one or more, collectively “Purchaser”).
Witnesseth: That, for and in consideration of an earnest money deposit in the amount of Dollars ($), paid by Purchaser to either (a) Seller or (b) an escrow agent, concurrently herewith, the receipt and sufficiency of which is hereby acknowledged (“Deposit”), to be held in escrow until closing and applied to the purchase price at that time, or otherwise paid, applied, or returned as provided in this Agreement, Seller hereby covenants and agrees to sell to Purchaser and Purchaser hereby covenants and agrees to purchase from Seller, for the principal amount of Dollars ($), Unit No. of Phase No. of Northpointe, located and situate at the address of , Morgantown, in Morgan District, Monongalia County, West Virginia, together with the improvements thereon, appurtenances thereto, affixtures thereto, personal property itemized and listed in Paragraph (21) of this Agreement, and an undivided fractional interest in the Common Elements of Northpointe (collectively, “Property”), upon the following terms, provisions, and conditions:
(1)Incorporation: Unless specifically provided otherwise in this Agreement, or the context otherwise requires, the defined terms and words of art set forth in Article II of the Northpointe Declaration recorded in the office of the Clerk of the County Commission of Monongalia County, West Virginia, in Deed Book No. , at Page , as amended, modified, and supplemented, shall have the same meaning in this Agreement.
(2)Cancellation: Notwithstanding any other provision set forth and contained in this Agreement, Purchaser may cancel this Agreement and the rights and obligations of Seller and Purchaser under this Agreement without penalty or obligation within fifteen (15) days after Purchaser’s receipt of the Public Offering Statement for Northpointe. In the event Purchaser elects to cancel this Agreement and the rights and obligations of Seller and Purchaser under this Agreement within fifteen (15) after receipt of the Public Offering Statement for Northpointe, Purchaser shall notify Seller in writing of Purchaser’s intent to cancel. To be effective, such notice shall be received by Seller within such fifteen (15) day time period. In the event such notice shall not be received by Seller within such fifteen (15) day time period, such attempt at cancellation shall not be effective. In the event Purchaser has received the Public Offering Statement for Northpointe more than fifteen (15) days prior to executing this Agreement, Purchaser may only cancel this Agreement and the rights and obligations of Seller and Purchaser under this Agreement in accordance with and pursuant to the terms, provisions, and conditions of this Agreement. Time is of the essence with respect to the provisions of this paragraph.
(3)Association: Purchaser hereby covenants and agrees that in the event Purchaser shall acquire the Property from Seller, Purchaser shall (a) comply with all of the provisions of the Declaration and articles of incorporation and bylaws of the Association, and any and all amendments and modifications thereof and supplements thereto, (b) abide by all of the rules and regulations adopted or promulgated by the Association, as amended from time to time, and (c) pay and acknowledge a continuing liability to pay all assessments, charges, dues, fines, and fees levied or assessed against the Property and Purchaser by the Association.
(4)Amendment and Modification of Declaration: Seller expressly reserves the right at any time prior to closing, to make and effect such amendments and modifications of and supplements to the Public Offering Statement for Northpointe and the exhibits appended thereto, including, without limitation, the Declaration, as Seller may elect.
(5)Reference: For title examination purposes, it is hereby referenced that RDR Properties LLC acquired title to the real property comprising the Property from Robert Louis Shuman by that deed dated September 4, 2002, of record in the Office of the Clerk of the CountyCommission of Monongalia County, West Virginia, in Deed Book No. 1238, at Page 438.
(6)Payment of Purchase Price: The aggregate purchase price shall be payable in full upon delivery of the deed referenced in Paragraph (8) of this Agreement.
(7)Prorations and Closing Costs: Real and personal property taxes assessed or levied against the Property shall be prorated on a calendar year basis as of the closing date using the tax figures or amounts set forth and contained in the most current land book or personal property book within the Office of the Clerk of the County Commission of Monongalia County, West Virginia. Seller and Purchaser hereby covenant and agree that in the event the Property shall not be assessed for real property tax purposes for the calendar year following the year in which closing occurs separate and independent of the property of Seller or Seller’s predecessor, and as a result, shall be assessed for such purposes as a part of Seller’s or Seller’s predecessor’s property, then, within thirty (30) days following Seller’s or Seller’s predecessor’s payment of such real property tax for such subsequent calendar year, Purchaser shall pay to Seller or Seller’s predecessor that part or portion of such tax attributable or allocable to the Property. Such covenant and agreement shall not merge with the delivery of the deed referenced in Paragraph (8) of this Agreement. Seller shall pay for the preparation of the deed referenced in Paragraph (8) of this Agreement, excise taxes imposed upon the transfer of the Property, Seller’s prorated share of real and personal property taxes, improvements for which mechanic’s liens could be filed, recording any releases executed by creditors of Seller, and brokerage fees. Purchaser shall pay all other closing costs, including, without limitation, survey costs, Purchaser’s legal fees, recording costs, Purchaser’s prorated share of real and personal property taxes, title insurance premiums, and financing costs and expenses.
(8)Deed: Upon the fulfillment and satisfaction of all conditions to be performed by Purchaser under this Agreement, Seller hereby covenants and agrees to transfer and convey the Property to Purchaser by a deed containing covenants of general warranty which substantially conforms with the proposed form deed appended to the Public Offering Statement for Northpointe, free and clear from liens, but subject to (a) all exceptions, reservations, conditions, covenants, restrictions, agreements, municipal zoning ordinances, land use regulations, assessments, charges, rights-of-way, easements, mineral severances, and limitations of use as have been imposed upon the Property by Seller and its predecessors in title, including, without limitation, those encumbrances and matters specifically referenced in the proposed form deed, and (b) liens securing taxes and assessments, general and special, which are not due and payable as of the closing date.
(9)Risk of Loss: The risk of loss or damage to the Property by fire or other casualty shall remain with Seller until the deed referenced in Paragraph (8) of this Agreement, duly executed and acknowledged, shall be delivered to Purchaser.
(10)Inspection and Condition: Purchaser hereby certifies that Purchaser has inspected the Property, including, without limitation, all boundary lines, all areas subject to or encumbered by an easement or right of way, and all parts of all structures, buildings, improvements, fixtures, and personal property located and situate on the Property, and accepts the same in their present state and condition and not in reliance upon any representations made by Seller or Seller’s agents. Purchaser hereby covenants, agrees, understands, and acknowledges that neither Seller nor any agent of Seller has made any warranties or representations, either expressed or implied, except as set forth in this Agreement, as to the condition of the Property or the contents thereof and that Purchaser is not relying on any such warranty or representation as a condition to purchase the Property. Seller acknowledges that Seller has disclosed to Purchaser any and all defects and faults which are not readily visible or ascertainable to the extent that Seller is aware of or knows of the same. Purchaser acknowledges that Purchaser is purchasing the Property on an “as is” basis and that the purchase price reflects the present condition of the Property. Seller hereby grants to Purchaser, or Purchaser’s agents, at Purchaser’s sole and exclusive expense, the right to inspect the Property. The inspection of the structural, physical, and mechanical components of the Property shall be made and notice of any and all findings shall be given to Seller within twenty (20) days of the date of this Agreement. Failure to inspect or notify Seller of any findings resulting from an inspection within such time period shall be deemed an irrevocable release and waiver of Purchaser’s rights of cancellation under this paragraph. In the event Purchaser (a) inspects or causes the Property to be inspected within such time period, (b) is not satisfied with the condition of the Property and such dissatisfaction is reasonably based upon the findings and results of the Property’s inspection, and (c) notifies Seller, in writing, of such dissatisfaction and the bases for the same within such time period, then Purchaser, subject to the rights of Seller to cure as set forth in the following sentence, shall have the right to cancel this Agreement and the rights and obligations of Seller and Purchaser under this Agreement and the Deposit shall be refunded to Purchaser in accordance with and pursuant to Paragraph (17) of this Agreement. In the event Purchaser duly and timely notifies Seller of any such dissatisfaction and the bases for the same, Seller shall have the option of curing or remedying the same within ten (10) days of Seller’s receipt of notice of the same from Purchaser or canceling this Agreement and the rights and obligations of Seller and Purchaser under this Agreement and refunding the Deposit in accordance with and pursuant to Paragraph (17) of this Agreement.
(11)Warranties: The West Virginia Uniform Common Interest Ownership Act, specifically West Virginia Code § 36B-4-116, provides that a judicial proceeding for the breach of an express or implied warranty of quality must be commenced within six (6) years after the cause of action accrues, and further provides that such period of limitation, upon agreement, may be reduced to a period of not less than two (2) years. In light thereof, Seller and Purchaser, each hereby agree to reduce such period of limitation to two (2) years. And, in connection therewith, Purchaser, by executing this Agreement, hereby waives, releases, discharges, and disclaims the maximum six (6) year period of limitation for the commencement of a judicial proceeding for the breach of an express or implied warranty of quality, with the acknowledgment and understanding that the same, together with all other periods of limitation for the breach of an expressed or implied warranty, a warranty of fitness for a particular purpose, a warranty of merchantability, or any other warranty, however arising, whether under the Uniform Commercial Code, statute, common law, or otherwise, are hereby reduced to a two (2) year period of limitation from the date of accrual of such cause of action. Furthermore, notwithstanding Purchaser’s lack or absence of knowledge of a breach of a warranty, Purchaser hereby agrees with Seller that any such cause of action shall accrue as of the date Purchaser takes possession of the Property. Seller and Purchaser hereby covenant and agree that this Agreement is intended to be a separate instrument evidencing the reduction of such period of limitation as contemplated by and in full satisfaction of the requirements of West Virginia Code § 36B-4-116(a).
(12)Pest Treatment: Seller hereby warrants and represents to Purchaser that Seller has pre-treated the foundation of the structure constructed on the real property comprising the Property with respect to woodeating insects.
(13)Appraisal:Purchaser shall have the right to have the Property appraised. Such appraisal shall be made and notice of the appraised value determined shall be given to Seller within twenty (20) days of the date of this Agreement. In the event the Property, in turnkey condition, shall not appraise for an amount equal to the purchase price set forth and contained in this Agreement, and Seller shall be notified of the same in writing within such time period, then this Agreement and the rights and obligations of Seller and Purchaser under this Agreement may be canceled at the option of Purchaser and upon such cancellation the Deposit shall be refunded to Purchaser in accordance with and pursuant to Paragraph (17) of this Agreement. Failure to obtain an appraisal or notify Seller of the appraised value determined within such time period shall be deemed an irrevocable release and waiver of Purchaser’s rights of cancellation under this paragraph.
(14)Financing: This Agreement is subject to and contingent upon the ability of Purchaser to obtain a written commitment for purchase money financing for at least eighty percent (80.00%) of the purchase price within seven (7) days of the date of this Agreement. In the event Purchaser shall not obtain a written commitment for such purchase money financing within seven (7) days of the date of this Agreement, and Seller shall be notified of the same in writing within such time period, then this Agreement and the rights and obligations of Seller and Purchaser under this Agreement may be canceled at the option of Purchaser and upon such cancellation the Deposit shall be refunded to Purchaser in accordance with and pursuant to Paragraph (17) of this Agreement. Failure to obtain such written commitment and notify Seller of the same within such time period shall be deemed an irrevocable release and waiver of Purchaser’s rights of cancellation under this paragraph.
(15)Radon: Purchaser shall have the right to have the Property tested for radon. Such testing shall be made and notice of the results thereof shall be given to Seller within twenty (20) days of the date of this Agreement. In the event the results of such radon inspection are not within the EPA standard 4.0 picoucuries per liter, and Seller shall be notified of the same in writing within such time period, then this Agreement and the rights and obligations of Seller and Purchaser under this Agreement may be canceled at the option of Purchaser and upon such cancellation the Deposit shall be refunded to Purchaser in accordance with and pursuant to Paragraph (17) of this Agreement. Failure to obtain a radon test or notify Seller of the results of the same within such time period shall be deemed an irrevocable release and waiver of Purchaser’s rights of cancellation under this paragraph.
(16)Possession: Purchaser shall have the right to take possession of the Property as of the delivery of the deed referenced in Paragraph (8) of this Agreement.
(17)Time and Deposit: Time is of the essence with respect to each and every facet of this Agreement. Upon the execution of this Agreement by Seller and Purchaser, Seller and Purchaser shall have () days within which to consummate the sell and purchase of the Property. In the event Purchaser defaults in the performance of any of Purchaser’s duties or obligations under this Agreement, Seller may, at Seller’s option, treat this Agreement and Seller’s obligations under this Agreement as null, void, and cancelled, retain the Deposit as partial liquidated damages, and, in addition to any other rights, remedies, recourses, or damages available to Seller, hold Purchaser liable and responsible for all expenses suffered or incurred by Seller in preserving the Property and attempting to sell the same, including, without limitation, interest paid on loans secured by the Property from the date of such default through and including the date of such sell, loss of use of equity, the difference between the net proceeds arising under this Agreement and the net proceeds actually received as a result of such sale, and all reasonable legal fees and court costs suffered or incurred by Seller as a result of Purchaser's default. In the event of default or breach of this Agreement upon the part of Seller in complying with and performing the covenants and conditions imposed upon Seller under and by this Agreement, the Deposit shall, upon Purchaser’s request, be returned to Purchaser within ten (10) days of Seller’s receipt of such request, and the return of the Deposit shall be Purchaser’s sole and exclusive remedy. In the event Purchaser shall have the right to request that the Deposit be refunded or returned to Purchaser under the provisions of this Agreement, the Deposit shall, upon Purchaser’s request, be returned to Purchaser within ten (10) days of Seller’s receipt of such request.
(18)Assignment: This Agreement and the interest, rights, duties, and obligations of Purchaser in and under this Agreement may not be transferred or assigned, in whole or in part, by Purchaser, without the prior written consent of Seller, which consent may be granted or withheld in Seller’s sole and absolute discretion.