REAL ESTATE PURCHASE CONTRACT
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THIS AGREEMENT, made as of the 18TH day of MAY, 1996 between Xxxxx X.
Xxxxxxx c/o American Business Machines at 000 Xxxx 00xx Xxxxxx, Xxxx, XX 00000
("Seller"), and Essex Partners Inc., a New York corporation with offices at 000
Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxx, Xxx Xxxx 00000 ("Purchaser"),
WITNESSETH:
1. Seller agrees to sell Purchaser and Purchaser agrees to buy from Seller,
in accordance with the terms, conditions and stipulations set forth in this Real
Estate Purchase Contract ("Contract"), all of Seller's right, title and interest
in that real property with all improvements located thereon, as outlined on
Exhibit A attached hereto and made a part hereof, containing 2.5 acres, together
with an Ingress/Egress and Sign Easement set forth in Section 15 of this
Contract (the "Land"). Further, Purchaser shall have the option of increasing
the size of the Land after receipt of its market study and/or preliminary site
plan. It is expressly understood and agreed that Seller has no right, title or
interest in the parcel currently owned by Xxxxxxx X. and May X. Xxxx, 0000 Xxx
Xxxxxx Xxxx, Xxxx, XX 00000 Xxxx Xxxxxx Index Number 40-017-073-002.01 for which
Purchaser is entering into a separate Real Estate Purchase Contract. At the time
of Closing, that portion of the Xxxx property which lies outside of the
boundaries of the Land as shown on Exhibit A shall become the property of
Seller.
2. PURCHASE PRICE: The total purchase price to be paid to Seller by
Purchaser for the Land (the "Purchase Price") shall be Three Hundred Sixty One
Thousand Dollars ($361,000). If Purchaser exercises its option to purchase more
than the Land as set forth in Exhibit A, the Purchase Price shall be increased
in the amount of $6.89 per square foot.
3. PAYMENT OF PURCHASE PRICE: Subject to the terms and conditions of this
Contract, the Purchase Price shall be payable to Seller at the Closing in
immediately available U.S. funds.
4. DEPOSIT: Upon receipt of a fully executed Contract (the "Time Line
Date"), Purchaser shall deliver its check in the amount of five
thousand dollars ($5,000) to Seller's attorney which shall constitute
Purchaser's good faith deposit ("Deposit"). Purchaser shall have 90 days after
the Time Line Date to notify Seller of its intent to cancel this Contract for
any reason whatsoever and the full Deposit as set forth herein shall be directly
returned to Purchaser. Thereafter in the event this Contract does not close as a
result of failure of any condition in Section 20 or through no fault of
Purchaser and Purchaser waives its right to specific performance of this
Contract then the Deposit and any Additional Deposit as described in Section 12
shall be directly returned to Purchaser. If Purchaser does not terminate this
Contract pursuant to Section 21 and Purchaser shall fail or refuse to perform
its obligations herein specified at or before the date of Closing (or any agreed
upon extension), the Deposit and Additional Deposit, if any, shall be forfeited
as liquidated damages which the parties hereto agree is a reasonable and proper
amount in light of the
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circumstances, and which forfeiture shall be Seller's sole remedy in law and
equity.
5. CONDITION OF OWNERSHIP: A portion of the Land is comprised of a parcel
that Seller does not own, specifically the parcel with Erie County Index Number:
00-00-00-000 (the "Not Owned Parcel"). At the time of execution of this
Contract, Seller shall deliver to Purchaser evidence of such control over the
Not Owned Parcel sufficient to enable Seller to convey title to the Land to
Purchaser in accordance with all terms of this Contract.
6. TITLE: Promptly after the Time Line Date, Seller shall provide Purchaser
with a copy of any Abstract of Title and any title policy pertaining to the Land
in its possession and Purchaser shall order evidence of title to the Land by the
issuance of a current title insurance binder (the "Title Binder") through a
major national title insurance company selected by Purchaser (the "Title
Company") in the amount of the Purchase Price. The Title Binder shall set forth
the state of title to the Land and to other property that is or will be subject
to any easements or restrictions (existing or to be created pursuant to this
Contract) benefitting the Land, together with all exceptions or conditions to
such title, including, but without limitation to, all easements, restrictions,
rights-of-way, covenants, reservations, and all other encumbrances affecting the
Land which would appear in the owner's title policy.
7. EXCLUSIVE USE AND RIGHT OF FIRST REFUSAL: Seller convenants and agrees
that, provided Purchaser fully performs its obligations under this Contract,
Purchaser shall have
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the exclusive right to develop a hotel facility on other lands which Seller
currently owns or controls fronting on Old Xxxxxx Road and all lands contiguous
to such lands fronting on Old Xxxxxx Road and such other lands which Seller may
own or control in the future contiguous to such lands (the "Adjacent Lands").
The exclusive right shall commence on Closing, shall run with the Adjacent Lands
and continue for a period of five (5) years. After expiration of the five (5)
year period, if Seller proposes to sell all or a portion of the Adjacent Lands
for the development of a hotel facility, Purchaser shall have a right of first
refusal exercisable within 30 days of presentation of an executed contract from
a bonafide purchaser acceptable to Seller. A memorandum evidencing the rights
contained herein shall be recorded at the time of Closing.
8. SURVEY: Promptly after execution of this Contract, Seller agrees to
provide Purchaser with the most recent instrument survey pertaining to the Land
in its possession.
9. REVIEW OF TITLE BINDER AND SURVEY: Purchaser shall have 60 days after
the Time Line Date to deliver in writing to Seller Purchaser's objections to
title. Purchaser's failure to object to any item on the Title Binder or survey
within the time limitation imposed hereby shall be deemed to be approval of same
by Purchaser.
10. OTHER DOCUMENTATION: Seller shall deliver to Purchaser upon execution
of this Contract the originals or copies of any Phase I and Phase II
environmental studies, soils
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test, utility information, topographical maps and subdivision plots and
correspondence, information and documentation which would relate to the use
and/or occupancy of the Land which are in possession of Seller or to which
Seller has access without cost other than copying or duplicating charges.
11. PURCHASER'S OBJECTION TO TITLE; DEFECTS IN TITLE: Should Purchaser as
described in Section 9 above deliver to Seller its written objections to title
or to matters contained in the survey, Seller shall have 60 days either to
remove all such defects or objections or to provide assurances acceptable to
Purchaser that same will be removed at or before Closing; mortgages, deeds of
trust or other liens of a specific amount shall be cleared before or at Closing,
by Seller or, if requested by the Seller, by Purchaser by deduction from
proceeds due Seller. Should Seller be unable to cure (or provide assurances with
respect to) any and all such defects or objections (except liens as provided
above) on or before expiration of the 60 day period, then Purchaser may, at its
option, elect to terminate this Contract and receive a full refund of the
Deposit, or to waive its objections and proceed to Closing. Seller shall not
further intentionally encumber or restrict the title to the Land without
Purchaser's prior written consent which shall not be unreasonably withheld.
12. CLOSING: The Closing shall be on or before the sooner of ( i ) the date
which is thirty (30) days after the date upon which Purchaser has received site
plan approval
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for the Improvements (as hereinafter defined), or ( ii ) 210 days after the Time
Line Date, and shall take place in the offices of the Erie County Clerk, or such
other place mutually designated by the parties; provided, however, that
Purchaser may designate an earlier date for the Closing by written notice
delivered to Seller not less than fifteen (15) days prior to such earlier date
for the Closing so designated in such notice by Purchaser. Provided, however,
that if Purchaser has shown due diligence in endeavoring to satisfy all
contingencies herein and has been delayed by any agency or entity having control
over satisfaction of those contingencies, then it is agreed that upon written
notice to Seller of such delay, Purchaser shall be entitled to an extension of
two months to enable Purchaser to satisfy those contingencies and close this
transaction. An Additional Deposit of $5,000 shall be paid to the Seller on or
before the first day of each month of the extension period.
13. PRORATIONS AND ADJUSTMENTS AT CLOSING: Ad Velorem and similar taxes
assessed against the Land shall be prorated between Seller and Purchaser at the
time of Closing on the basis of a 365 day year. Prorations shall be based upon
current year's taxes and assessments, if available, or upon figures for the last
preceding year, in which event Purchaser and Seller shall readjust the
prorations when the current year's taxes and assessments become available. Any
special assessments applicable to the Land including, but not limited to,
"rollback" or other similar assessments or taxes which apply on a change in use
of the Land, if any, whether payable in a lump sum, in installments or
otherwise, shall be paid by Seller. The foregoing obligations shall survive the
Closing.
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14. TRANSACTION COSTS: Seller and Purchaser shall each be responsible for
the payment of one-half of all transfer, state and documentary stamps to be
affixed to the instrument. Purchaser shall be responsible for all other costs,
including the cost of the Title Policy, Survey and recording the deed, provided,
however, that each party shall pay its own attorneys' fee.
15. INGRESS/EGRESS AND SIGN EASEMENT: Serving the demised property is a 30-
foot wide access and sign easement from Peach Street (Route 19) through land
designated as Residue of Land of Travelers Motel, also known as Muggs Restaurant
and Lounge and connecting on the west with Old Xxxxxx Road ("Easement"). The
resulting Easement will benefit the Land as well as the lands remaining with the
Seller. A condition of this Contract will be the successful establishment of an
Easement Maintenance Agreement between the Seller and the Purchaser. This
condition must be satisfied within ninety (90) days of the Time Line Date.
A. Conditions of the Easement Maintenance Agreement shall include but
are not limited to the following:
1. Purchaser shall improve and maintain to established standards the
entire surface of the Easement. A proportionate share of improvement and
maintenance expenses, based on lineal feet of frontage, may be assessed against
properties using or served by the Easement. Said expenses may be liened against
the properties.
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2. Bids for expenditures of said improvements and maintenance are to be
presented for approval by the parties which approval may not be unreasonably
withheld prior to the award of Contract. All accounting for said work will be
made available at all times to the affected parties.
3. Obligations for such expenditures for improvements, upkeep and
maintenance are to run with the lands effected by the Easement. A copy of the
Easement Maintenance Agreement shall be recorded at the time of Closing.
4. Purchaser shall be solely responsible for any signs which Purchaser
places in the Easement for its benefit.
16. WARRANTY DEED AND OTHER DOCUMENTS REQUIRED FOR CLOSING:
A. At the Closing, Seller shall deliver the following:
1. Warranty Deed in fee simple, free and clear of all liens and
encumbrances, except subject to the following items now of record: utility,
rights-of-way and easements for the purpose of providing utility service to the
property herein described, common driveway or party wall agreements, recorded
restrictions, and zoning regulations; otherwise the title to the above-described
real estate shall be good and marketable and such as will be insured at the
regular rates by a title insurance company licensed to do business
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in Pennsylvania. Also, access to a public road may require issuance of a highway
occupancy permit from the Department of Transportation. A speciman deed shall be
delivered by Seller to Purchaser's attorney for review at least ten (10) days
before closing.
2. Documents evidencing the legal status, standing and authority
of Seller and such other documents, including standard form Seller's affidavits,
as may be required by Title Company for issuance of the Title Policy.
B. At the Closing, Purchaser shall deliver the following:
1. The Purchase Price plus any costs to be shared by Purchaser in
cash, certified funds, or a bank draft.
2. Such documents evidencing the legal status, standing and
authority of Purchaser.
17. POSSESSION: Possession of the premises shall be delivered to
the Purchaser up to 120 days of Closing provided, however, that possession of
the Not Owned Parcel shall be delivered to Purchaser either ( i ) 120 days after
Closing, or ( ii ) 120 days after Purchaser has provided written notice to
vacate, but in no event prior to the Closing Date, and Purchaser has deposited
with Seller's attorney twenty-five thousand dollars ($25,000) which together
with the Deposit and Additional Deposit, if any, would be
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forfeited as liquidated damages in the event that Closing does not occur through
no fault of Seller. At Closing, the twenty-five thousand dollars ($25,000)
together with the Deposit and Additional Deposit, if any, will be applied
against the Purchase Price.
18. DEMOLITION: Within 120 days after Closing, Seller, at its sole cost and
expense, shall remove all structural improvements to their foundation levels,
all tanks whether above ground or underground and all other material and
non-organic debris from the Land provided, however, that Buyer shall be
responsible for all demolition on the Not Owned Parcel. Such removal shall be
done in a manner that prevents contamination of the Land by any environmentally
sensitive or toxic material or liquid.
19. REPRESENTATIONS AND WARRANTIES: For the purpose of inducing Purchaser
to enter into and consummate this transaction, Seller represents and warrants to
Purchaser that to the best of his knowledge and belief:
( i ) The Land is not currently being used, has never been used,
as a hazardous waste disposal facility as defined in 40 C.F.R. Section 260.10;
the Land is free of any lien or encumbrance which may be created under any
applicable state or federal law, statute or regulation pertaining to hazardous
waste; and no hazardous waste has been placed onto or into the Land (for
purposes hereof, the term "hazardous waste" includes those substances listed in
40 C.F.R. Section 261.30 and those substances previously determined to be
hazardous by any applicable state or federal law, statute or regulation),
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( ii ) There is no pending or threatened condemnation or any road
widening respecting all or any part of the Land,
( iii ) Seller is currently or has entered into a contract by
which he will become the owner and holder of fee simple title to the Land and
has full power and authority to execute this Contract and all other documents
necessary to consummate the transaction.
( iv ) Seller warrants that he has no knowledge of any deed
restrictions or other contractual restrictions or covenants which would restrict
or other impair the Purchaser from developing and operating a limited service
hotel on the land.
20. CONDITIONS TO CLOSING: Purchaser's obligation to purchase the Land at
the Closing is subject to all of the following conditions, which shall have been
fulfilled to Purchaser's satisfaction:
A. At the Closing, the following conditions shall have been satisfied:
1. Good and marketable fee simple title to the Land shall be in
the name of the Seller and any beneficial easements and/or restrictions
appurtenant to the Land are not subject to any interest, the termination,
enforcement, exercise or foreclosure of which could terminate or prevent the
enforcement of such easement or restriction.
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2. No portion of the Land has been taken by or is the subject of a
condemnation proceeding or is under threat of condemnation.
3. There has been no material or adverse change to the condition
of the Land or to the representations and warranties of Seller set forth in
Section 18 hereof.
B. The following conditions shall have been satisfied by the
Purchaser or be deemed waived by the Purchaser on or before
Closing:
1. That zoning and the conditions of zoning, including any use
permit, site plan approval, curb cut permit, demolition permit, variances and
other similar governmental approvals required by law or necessitated by
Purchaser's planned use of the property for the construction and operation
thereon of a three-story, limited service hotel having a minimum of 100 guest
rooms, along with all facilities and amenities attendant thereto (hereinafter
the "Improvements"), shall have been received.
2. That all platting or replatting requirements in respect of the
Land have been satisfied by the Purchaser to permit the transfer of title and to
accommodate construction and operation of the Improvements under applicable laws
and regulations.
3. That Purchaser has reasonably determined that all permits
necessary, in Purchaser's sole opinion, for the construction and operation of
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the Improvements on the Land, are available to Purchaser after receipt of site
plan approval.
4. Easements: Purchaser, with Seller's assistance must be able to
obtain without cost any and all easements necessary to build the proposed
development. Said easements, including but not limited to the access easement,
shall be unencumbered and the title insurance in favor of Purchaser shall insure
such easements.
5. Soil Conditions: The soil, in its natural state, must have
sufficient load-bearing characteristics to support Purchaser's proposed
development, and must have adequate permeability to drain the proposed
development. Seller warrants that to the best of his knowledge, the Premises do
not contain a landfill, hazardous waste, underground mines, caves or underground
streams and that the soil condition and water table are such that Purchaser can
build the proposed development without incurring additional extraordinary
expenses.
6. That no federal, state or local governmental restrictions or
requirements would preclude construction and operation of the Improvements on
the Land.
7. That all utilities including but not limited to electric, gas,
telephone, cable TV, will be available for use by Purchaser along Old Xxxxxx
Road or on the Land. Water will be available at the intersection of Old Xxxxxx
Road and Xxxxxx Road. Purchaser will be responsible for bringing water to the
Land along Old Xxxxxx Road. Seller will pay
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a prorata share of the expense of installation upon Seller's hook-up, based upon
square footage of lands remaining with the Seller. (Tap-in size and location(s)
to be determined during installation.) Seller has the right to examine and
pre-approve cost to accomplish same which approval is not to be unreasonably
withheld. Seller warrants that to the best of his knowledge sanitary sewer is
currently available on the Land. Further, that a storm water management system
can be approved and installed without unreasonable cost. The capacity of these
various services, i.e., utilities, water and sewer, are not conditions to
Closing.
8. That Purchaser has reasonably determined that the Land is free
of any hazardous substances or wastes that would preclude the Construction of
the Improvements on the Land.
9. That Purchaser is able to secure a franchise for the national
hotel brand of its choice.
C. During the term of this Contract, Purchaser shall have the right to
enter upon the Land for the purpose of making the tests and investigations, at
its expense, necessary or appropriate to satisfy the foregoing conditions.
Purchaser shall defend, indemnify and hold Seller harmless from any liability
which may arise due solely to such entry. Purchaser shall repair any damage to
the Land in the event this transaction is not consummated.
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21. FAILURE OF CONDITIONS: If any of the conditions precedent to
Purchaser's obligation to close have not occurred or been satisfied or been
deemed satisfied on or before 210 days after the Time Line Date or any extension
thereof as set forth in Section 12, Purchaser at its sole option may: (a)
terminate this Contract by written notice delivered to Seller on or before the
Closing Date, or (b) waive such conditions precedent and proceed to Closing.
22. BROKERS: Seller shall be solely responsible for, and shall pay Orlando
Realtors' real estate commission fee of seven (7%) percent. Seller agrees to
indemnify, defend, and hold Purchaser harmless for any claim for such
commission. Orlando Realtors shall be solely responsible for paying Holland
Metro Inc., REALTORS its share of the commission. Purchaser represents that it
has dealt with no broker other than Holland Metro Inc., REALTORS.
Notwithstanding anything contained herein to the contrary, these indemnities
shall survive the closing.
23. NOTICES: All notices and other communications hereunder shall be in
writing and shall be delivered personally against receipt or shall be sent by
registered mail, certified
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mail, or Express Mail services, postage prepaid and return receipt requested, or
by nationally utilized overnight delivery service, addressed to the parties as
follows:
As to Seller: Xxxxx X. Xxxxxxx
c/o American Business Machines
000 Xxxx 00xx Xxxxxx
Xxxx, XX 00000
As to Purchaser: ESSEX PARTNERS INC.
000 Xxxxxxxxx Xxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxx
Any notice in accordance herewith shall be deemed received when delivery is
received or refused, as the case may be. Additionally, notices may be given by
telephone facsimile transmission, provided that an original copy of said
transmission shall be delivered to the addressee by nationally utilized
overnight delivery services on the day following such transmission. Telephone
facsimiles shall be deemed delivered on the date of such transmission.
24. PARTIES BOUND: This Contract shall be binding upon and inure to the
benefit of Seller and Purchaser, their respective heirs, personal
representatives, successors and assigns.
25. ASSIGNMENT: Purchaser may assign this Contract to a partnership in
which it is a general partner or a corporation in which it is a shareholder,
provided that Purchaser
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shall remain responsible for the faithful performance of its obligations under
the Contract.
26. GOVERNING LAW: The laws of the Commonwealth of Pennsylvania shall
govern the validity, construction, enforcement and interpretation of this
Contract.
27. EXPIRATION: The offer of Purchaser extended by the delivery of this
Contract to Seller shall be automatically revoked unless Seller shall execute
and deliver an executed facsimile copy of the Contract to Purchaser on or before
5:00 p.m., May 18, 1996 to be followed by originals in overnight mail.
28. MULTIPLE COUNTERPARTS: This Contract may be executed in a number of
identical counterparts. If so executed, each of such counterparts shall,
collectively, constitute one agreement, but in making proof of this Contract, it
shall not be necessary to produce or account for more than one such counterpart.
If requested by Purchaser, Seller agrees to execute a memorandum of this
Contract in form recordable in the real property records where the Land is
situate.
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29. ENTIRE AGREEMENT: This Contract embodies the entire agreement of the
parties in respect of the transaction herein contemplated, superseding all prior
agreements whether oral or written. Any amendments hereto shall be in writing
and executed by the parties hereto.
SELLER
/S/ Xxxxx X. Xxxxxxx
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Witness
PURCHASER
ESSEX PARTNERS INC.
Xxxxxx X. Xxxxxxxxxxxx
/s/ Xxxxxxx X. Purvis_______________ By: _____________________
Witness Exec. V. P.
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