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Home My WebLink AboutWPO201600024 Agreement - Nutrient Credits WPO VSMP 2016-08-15Chesapeake Bay Nutrient Land Trust, LLC 5735 S. Laburnum Ave. Richmond, Virginia 23231 PURCHASE AND SALE AGREEMENT THIS PURCHASE AND SALE AGREEMENT (this "Agreement"), dated as of August 12,-2016, is made by and between CHESAPEAKE BAY NUTRIENT LAND TRUST, LLC, a Virginia limited liability company ("Seller"), and TEXAS ROADHOUSE HOLDINGS LLC, a Kentucky limited liability company ("Purchaser"). RECITALS: 1. Seller owns certain rights in and to certain real property consisting of approximately 110.24+- acres of land'conversion areas located in Appomattox County, Virginia (the "Property"). Pursuant to Va Code § 62.1-44.15:35 the Virginia Department of Environmental Quality ("DEQ") and the Virginia Department of Conservation and Recreation ("DCR") have authorized the generation and sale of nonpoint- source nutrient credits ("Credits") generated at the Property to third parties to offset nutrient -related water quality permit needs. 2. Pursuant to DEQ Permit No. Pending ("Permit"), DEQ has approved the use of Credits for the project site described in the Permit (the "Project") upon the condition that Purchaser acquire 0.22 pounds of phosphorus Credits from Seller (the "Credit Obligation") and that Seller retire 0.82 pounds of the Property's associated nitrogen Credits. 3. Purchaser wishes to purchase and Seller wishes to sell on the terms set forth in this Agreement the phosphorus Credits for the purpose of satisfying the Credit Obligation. AGREEMENT: NOW, THEREFORE, in consideration of the sum of TEN DOLLARS ($10.00), cash in hand paid by Purchaser to Seller and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Seller and Purchaser hereby agree as follows: 1. Agreement to Sell and to Purchase. Seller shall. sell to Purchaser, and Purchaser shall buy from Seller, the phosphorus Credits for the purpose of satisfying the Credit Obligation. 2. Purchase Price. In consideration of Seller entering into this Agreement, Purchaser shall pay to Seller the sum of Three Thousand Five Hundred and Twenty and 00/100 Dollars 3 5c 20.00at Closing by company, certified or cashier's check or by wired transfer of immediately available funds to an account and financial institution designated in writing by Seller. Intentionally Deleted. Chesapeake Bay Nutrient Land Trust, LLC Wildwood Farm l 8/15/2016 Purchase And Sale Agreement Chesapeake Bay Nutrient Land Trust, LLC 5735 S. Laburnum Ave. Richmond, Virginia 23231 4. Closing. (a) Date and Location. Closing under this Agreement ("Closing") shall occur on or before 5:00 p.m. on or before the seventh (7t') business day following the date of this Agreement ("Closing Date") unless Seller agrees in writing to a later date. Closing shall occur on the Closing Date via an escrow closing coordinated by Seller's attorney. TIME IS OF THE ESSENCE as to the Closing Date. (b) Deliveries at Closing. At Closing, Seller shall (i) execute and deliver to Purchaser an Affidavit of Phosphorus Credit Sale in substantially the form attached hereto as Exhibit A (the "Affidavit"), and (ii) execute and deliver to Purchaser a Bill of Sale in substantially the form attached hereto'as Exhibit B. At Closing, Purchaser shall pay the Purchase Price to Seller. (c) Delivery to DEO. Promptly following Closing, Seller shall provide DEQ with an original, executed Affidavit. (d) Closing Costs. Seller shall pay the cost of preparing the Bill of Sale and Affidavit, and Seller's attorney's fees. Purchaser shall pay Purchaser's attorney's fees and other costs of Closing, if any. (e) Water Quality Enhancement Fee. Promptly following Closing, Seller shall pay the water quality enhancement fee required by Va Code § 62.1-44,15:35 Subsection E. 5. Seller's Representations and Warranties. Seller hereby makes the following representations and warranties: (a) Authorization, Execution and Delivery. This Agreement has been duly authorized, executed and delivered by all necessary action on the part of Seller, constitutes the binding agreement of Seller and is enforceable in accordance with its terms. (b) Reservation of Credit Capacity. During the period beginning on the date of execution of this Agreement and ending upon the earlier of (i) Closing or (ii) termination of this Agreement, Seller will not sell Credits from the Property that would cause the remaining Credits to be insufficient for the purpose of satisfying Seller's obligations under this Agreement. (c) Compliance with Laws. Seller will comply with all applicable laws and regulations relating to the sale of the phosphorus Credits to Purchaser. 6. Purchaser's Representations and Warranties. Purchaser hereby makes the following representations and warranties as of the date of this Agreement. Chesapeake Bay Nutrient Land Trust, LLC Wildwood Farm 2 8/15/2016 Purchase And Sale Agreement Chesapeake Bay Nutrient Land Trust, LLC 5735 S. Laburnum Ave. Richmond, Virginia 23231 (a) Authorization, Execution and Delivery. This Agreement has been duly authorized, executed and delivered by all necessary action on the part of Purchaser, constitutes the valid and binding agreement of the Purchaser and is enforceable in accordance with its terms. (b) Reliance. In entering into this Agreement, Purchaser has not been induced by, and has not relied upon, any representations, warranties or statements, whether express or implied, made by the Seller or any agent, employee or other representative of the Seller, which are not expressly set forth herein. Default. (a) By Purchaser. If Purchaser defaults in performing any of Purchaser's obligations under this Agreement, and if such default continues for a period of ten (10) days after Seller has provided written notice to Purchaser of such default, Seller may terminate this Agreement by providing written notice to Purchaser. Seller hereby expressly waives any right that Seller may have to damages, whether compensatory, consequential or otherwise, or to seek specific performance from Purchaser as a result of such default. (b) By Seller. If Seller defaults in performing any of Seller's obligations under this Agreement, and such default continues for a period of ten (10) days after Purchaser has provided written notice to Seller of such default, the Purchaser's sole remedies shall be to terminate this Agreement by providing written notice thereof to Seller, in which event neither party shall have any further rights or obligations hereunder, except as expressly provided herein. Purchaser hereby expressly waives any right that Purchaser may have to damages, whether compensatory, consequential or otherwise as a result of Seller's default. (c) Attorneys' Fees. In the event of any litigation between Seller and Purchaser, the prevailing party shall be entitled to an award of its costs incurred in such litigation, including reasonable attorneys' fees and costs, and court costs. 8. Effect of Condemnation, Regulatory Action or Unavoidable Delays. (a) Condemnation. If the Property or any partthereofis taken prior to Closing pursuant to eminent domain proceedings, or if such proceedings are commenced prior to Closing, and as a result Seller determines that it will be unable to sell the phosphorus Credits to Purchaser at Closing as specified in this Agreement, then Seller may terminate this Agreement by providing written notice to Purchaser at any time prior to Closing. (b) Regulatory Action. (i) If Seller is unable to sell the phosphorus Credits to Purchaser as provided in this Agreement because of the action or order of any regulatory agency, regardless of whether or not Seller has contested or challenged such action or order, Seller may terminate this Agreement by providing written notice to Purchaser. If Seller elects to terminate this Agreement as provided in this subparagraph, and such termination occurs prior Chesapeake Bay Nutrient Land Trust, LLC Wildwood Farm 3 8/15/2016 Purchase And Sale Agreement Chesapeake Bay Nutrient Land Trust, LLC 5735 S. Laburnum Ave. Richmond, Virginia 23231 to Closing, then neither pary shall have any further rights or obligations hereunder, except as expressly provided herein. (ii) If prior to Closing Purchaser is prevented by any regulatory agency from satisfying the Credit Obligation by purchasing the phosphorus Credits as provided in this Agreement, Purchaser may terminate this Agreement by providing written notice to Seller. If Purchaser elects to terminate this Agreement as provided in this subparagraph, then neither party shall have any further rights or obligations hereunder, except as expressly provided herein. 9. Indemnities. (a) Seller's Indemnities. Seller shall indemnify, defend and hold harmless Purchaser and Purchaser's authorized successors and assigns from and against any action, order, investigation or proceeding initiated by any government agency and arising from or based upon Seller's breach of the representations and warranties contained in Paragraph 5. (b) Purchaser's Indemnities. Purchaser shall indemnify, defend and hold harmless the Seller from and against any action, order, investigation or proceeding initiated by any government agency and arising from or based upon Purchaser's breach of the representations and warranties contained in Paragraph 6. (c) Survival. The indemnity provisions of this Paragraph shall survive Closing and termination of this Agreement for a period of three (3) years after the date of this Agreement. 10. Notices. Each notice, request, demand or other communication hereunder will be in writing and will be deemed to have been duly given (i) when delivered by hand, or (ii) three (3) business days after deposit in United States certified or registered mail, postage pre- paid, return receipt requested, or (iii) one (1) business day after delivery to a recognized overnight courier service, in each case addressed to the parties at the following addresses: [signature pages to follo.wl Chesapeake Bay Nutrient Land Trust, LLC Wildwood Farm 4 8/15/2016 Purchase And Sale Agreement Chesapeake Bay Nutrient Land Trust, LLC 5735 S. Laburnum Ave. Richmond, Virginia 23231 If to Seller: Chesapeake Bay Nutrient Land Trust, LLC ATTN: Brent L. Fults, Manager 5735 S. Laburnum Avenue Richmond, Virginia 23231 If to Purchaser: Texas Roadhouse Holdings LLC 6040 Dutchmans Lane Louisville, Kentucky 40205 Attention: Legal Department Each party shall have the right to change its address by providing the other party with at least ten (10) days prior written notice of the change. 11. Brokers. Each party hereunder represents and warrants that, except for the "Broker" identified below, if any, it did not consult or deal with any broker or agent with regard to this Agreement or the transactions contemplated hereby, and each party agrees to indemnify and hold harmless the other party from all liability, expense, loss, cost or damage, including reasonable attorney's fees, that may arise by reason of any claim, demand or suit of any agent or broker arising out of or constituting a breach by the indemnifying party of the foregoing representation and warranty. This indemnity shall survive Closing and termination of this Agreement and shall not be limited by any provision specifying liquidated damages. Seller shall pay a commission to N/A ("Broker") if and when Closing occurs equal to N/A percent (N/A%) of the Purchase Price. 12. Entire Agreement and Modifications. There are no other agreements or understandings, written or oral, between the parties regarding this Agreement or the subject matter hereof. This Agreement shall not be modified or amended except by a written document executed by both parties to this Agreement. 13. Gove ing Law. The validity, interpretation and performance of this Agreement shall be governed by and construed in accordance with -the laws of the Commonwealth of Virginia without regard to its conflict of laws principals. 14. Compliance with Applicable Laws. Both parties shall comply with all applicable federal, state and local laws, regulations and restrictions in the conduct of their obligations under this Agreement. 15. Severability. The provisions of this Agreement shall be deemed severable and, if any portion shall be held invalid, illegal or unenforceable for any reason, the remainder of this Agreement shall be effective and binding upon the, parties. The Recitals are incorporated as part of this Agreement as provided herein. 16. Binding Agreement. This Agreement shall bind and inure to the benefit of the parties hereto and their respective successors and assigns. Any proposed assignment shall be Chesapeake Bay Nutrient Land Trust, LLC wildwood Farm 5 8/15/2016 Purchase And Sale Agreement Chesapeake Bay Nutrient Land Trust, LLC 5735 S. Laburnum Ave. Richmond, Virginia 23231 subject to the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed. 17. Counterparts. This Agreement may be executed in counterparts, each of which shall constitute an original and all of which together shall constitute one and the same Agreement. WITNESS the following signatures: SELLER: CHESAPEAKE BAY NUTRIENT LAND TRUST, LLC, a Virginia limited liability company By: L r, & 6.:..� Manager TIN: 20-5197105 PURCHASER: TEXAS ROADHOUSE HOLDINGS LLC, a Kentucky limited liability company Texas Roadhouse, Inc., a Delaware corporation, its Manager Name: 1{�rt��trt�C�a Title: .Sko, EXHIBITS Exhibit A - Affidavit of Phosphorus Credit Sale Exhibit B - Bill of Sale Chesapeake Bay Nutrient Land Trust, LLC Wildwood Farm 6 8/15/2016 Purchase And Sale Agreement Chesapeake Bay Nutrient Land Trust, LLC 5735 S. Laburnum Ave. Richmond, Virginia 23231 Exhibit A CHESAPEAKE BAY NUTRIENT LAND TRUST, LLC — WILDWOOD FARM AFFIDAVIT OF PHOSPHORUS CREDIT SALE CHESAPEAKE BAY NUTRIENT LAND TRUST, LLC, a Virginia limited liability company (the "Company"), hereby certifies the following: 1. Pursuant to that certain Purchase and Sale Agreement dated August 12, 2016 (the "Agreement"), between the Company (as Seller) and Texas Roadhouse Holdings LLC, a Kentucky limited liability company ("Purchaser"), the Company, for the benefit of the Purchaser, agreed to sell 0.22 pounds of nonpoint source phosphorus Credits to Purchaser and retire the associated ratio of nonpoint source nitrogen Credits at the credit generating facility in the amount of 0.82 pounds of nitrogen Credits; 2. The Company and the Purchaser, as of the date hereof, have closed the transaction contemplated by the Agreement and the Company has sold to Purchaser the phosphorus Credits. WITNESS the following signature: CHESAPEAKE BAY NUTRIENT LAND TRUST, LLC, a Virginia limited liability company By: c. e .- Manager Date:. /ZYA, Sworn to and ubscribed before me this day of 2016, by � t ,Manager, on behalf of Che�ake Bay Nutrient Land Trust, LLC, a Virginia limited liability company. My commission expires: {� L�r•t 1 Z-t �l li City/County of: Notary Public Purchaser: TEXAS ROADHOUSE HOLDINGS LLC, a Kentucky limited liability company Name of Project: Texas Roadhouse Charlottesville, VA TNIP: 06100-00-00-1.2300 Bank Sponsor: Chesapeake Bay Nutrient Land Trust, LLC CASEY J. JENSEN HUC Number 02080203 NOTARY PUBLIC Phosphorus Credits: 0.22 pounds REGISTRATION #7618796 Associated Nitrogen Credits: 0.82 pounds COMMONWEALTH OF VIRGINIA MY COMMJS SIQN EXPIRES 10/31/18 Chesapeake Bay Nutrient Land Trust, LLC Wildwood Farm 7 Purchase And Sale Agreement 8/24/2016 Chesapeake Bay Nutrient Land Trust, LLC 5735 S. Laburnum Ave. Richmond, Virginia 23231 Exhibit B CHESAPEAKE BAY NUTRIENT LAND TRUST, LLC — WILDWOOD FARM BILL OF SALE BILL OF SALE, made as of August 24, 2016, by CHESAPEAKE BAY NUTRIENT LAND TRUST, LLC, a Virginia limited liability company ("Seller"), to TEXAS ROADHOUSE HOLDINGS LLC, a Kentucky limited liability company ("Purchaser"). WHEREAS, Seller and Purchaser have entered into that certain Purchase and Sale Agreement as of August 12, 2016 (the "Agreement"), with respect to the sale by the Seller and purchase by the Purchaser of nonpoint source phosphorus Credits generated within the Wildwood Farm Property in Appomattox County, Virginia. NOW, THEREFORE, for and in consideration of the payment of the Purchase Price (as defined in the Agreement) and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Seller hereby sells, transfers, assigns, conveys, delivers and sets over to Purchaser, its successors and assigns, 0.22 pounds of phosphorus Credits and retires 0.82 pounds of nitrogen Credits associated with the phosphorous Credits generated at the Wildwood Farm Property as such are described in the Agreement. TO HAVE AND TO HOLD all such phosphorus Credits hereby sold and transferred to Buyer and its successors and assigns forever. IN WITNESS WHEREOF, Seller has caused this Bill of Sale to be executed by its duly authorized representative as of the date first above written. CHESAPEAKE BAY NUTRIENT LAND TRUST, LLC, a Virginia Limited Liability Company By: J ,r` e- 'e L Manager Chesapeake Bay Nutrient Land Trust, LLC Wildwood Farm 8 8/23/201.6 Purchase And Sale Agreement Chesapeake Bay Nutrient Land Trust, LLC 5735 S. Laburnum Ave. Richmond, Virginia 23231 Exhibit A CHESAPEAKE BAY NUTRIENT LAND TRUST, LLC - WILDWOOD FARM AFFIDAVIT OF PHOSPHORUS CREDIT SALE CHESAPEAKE BAY NUTRIENT LAND TRUST, LLC, a Virginia limited liability company (the "Company"), hereby certifies the following: 1. Pursuant to that certain Purchase and Sale Agreement dated August 12, 2016 (the "Agreement"), between the Company (as Seller) and Texas Roadhouse Holdings LLC, a Kentucky limited liability company ("Purchaser"), the Company, for the benefit of the Purchaser, agreed to sell 0.22 pounds of nonpoint source phosphorus Credits to Purchaser and retire the associated ratio of nonpoint source nitrogen Credits at the credit generating facility in the amount of 0.82 pounds of nitrogen Credits; 2. The Company and the Purchaser, as of the date hereof, have closed the transaction contemplated by the Agreement and the Company has sold to Purchaser the phosphorus Credits. WITNESS the following signature: CHESAPEAKE BAY NUTRIENT LAND TRUST, LLC, a Virginia limited liability company By: Z,r C. -4- Manager % Date: 17 y1 (�, SwoLrn tQ d subscribed before me this day of .—A CA LkS- , 2016, by cn�C N 11A Manager, on behalf of Chesapeake Bay Nutrient Land Trust, LLC, a Virginia limited liability company. My commission expires: C Ao `A F,- 31,2c��b City/County of: Notary Public Purchaser: TEXAS ROADHOUSE HOLDINGS LLC, a Kentucky limited liability company Name of Project: Texas Roadhouse Charlottesville, VA TMP: 06100-00-00-12300 Bank Sponsor: Chesapeake Bay Nutrient Land Trust, LLC CASEY J. JENSEN HUC Number 02080203 NOTARY PUBLIC Phosphorus Credits: 0.22 pounds REGISTRATION #7618796 Associated Nitrogen Credits: 0.82 pounds COMMONWEALTH OF VIRGINIA MY COMMISSION EXPIRES 10/31/18 Chesapeake Bay Nutrient Land Trust, LLC Wildwood Farm 7 8/24/2016 Purchase And Sale Agreement