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REAL ESTATE PURCHASE CONTRACT
THIS AGREEMENT, made as of the 17th day of May, 1996 between Xxxxxxx X. and May
X. Xxxx at 0000 Xxx Xxxxxx Xxxx, 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 to 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"), that real property with all
improvements located thereon, known as 0000 Xxx Xxxxxx Xxxx, Xxxx, XX 00000
with Erie County Index Number 40-017-073.0002.01 (the "Land").
2. Purchase Price: The total purchase price to be paid to Seller by
Purchaser for the Land (the "Purchase Price") shall be two hundred ninety
thousand dollars ($290,000).
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.
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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 16 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 10 shall be directly
returned to Purchaser. If Purchaser does not terminate this Contract pursuant
to Section 17 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 circumstances, and which forfeiture shall be Seller's
sole remedy in law and equity. Deposit of Five Thousand Dollars ($5,000.00)
shall be given to Seller 90 days after Time Line Date. These monies are
non-refundable.
5. Title: Promptly after execution 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
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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.
6. 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. Purchaser acknowledges Seller is not in possession of
survey.
7. 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.
8. 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 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.
9. Purchaser's Objection to Title; Defects in Title: Should Purchaser
as described in Section 7 above deliver to Seller its written objections to
title or to matters
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contained in the survey, Seller shall have 60 days either to remove all such
defects or objections or to provide assurance 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.
10. 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 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
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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.
11. Prorations and Adjustments at Closing: Ad Valorem 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 no limited to,
"rollback" or other similar assessment 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.
12. 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 attorney's fees.
13. Warranty Deed and Other Documents Required For Closing:
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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 agreement, 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 in Pennsylvania. Also, access to a public road may require issuance
of a highway occupancy permit from the Department of Transportation. A specimen
deed shall be delivered by Seller to Purchaser's attorney for review at least
ten (10) days before closing.
2. Documents evidencing he 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
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of Purchaser.
14. Possession: Possession of the premises shall be delivered to the
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 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.
15. 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 of 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.
16. 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 condition 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 Land in conjunction with other land 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 or 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
the
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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 warrants.
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that to the best of his knowledge sanitary sewer is currently available on the
Land. 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.
17. 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
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before 210 days after the Time Line Date or any extension thereof as set forth
in Section 10, 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.
18. 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 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: Xxxxxxx X. and May X. Xxxx
0000 Xxx Xxxxxx Xxxx
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.
19. Parties Bound: This Contract shall be binding upon and inure to
the benefit
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of Seller and Purchaser, their respective heirs, personal representatives,
successors and assigns.
20. 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 shall remain responsible for the faithful performance of
its obligations under the Contract.
21. Governing Law: The laws of the Commonwealth of Pennsylvania shall
govern the validity, construction, enforcement and interpretation of this
Contract.
22. 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 13, 1996 to be followed by originals in overnight mail.
23. 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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24. 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.
Sellers may remove all or part of any building or building fixtures on the
property but are not obligated to do so.
SELLER
/s/ Xxxxx Xxxxxx /s/ Xxxxxxx X. Xxxx
-------------------------------- -------------------------------------
Witness
/s/ May X. Xxxx
-------------------------------------
PURCHASER
ESSEX PARTNERS INC.
/s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxxxxx
---------------------------------- ---------------------------------
Witness Executive V.P.
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A G R E E M E N T
THIS AGREEMENT made this 19th day of March, 1997, by and between
XXXXXXX X. XXXX and MAY X. XXXX, his wife
and
ESSEX PARTNERS, INC.
WITNESSETH:
WHEREAS, the parties have entered into an agreement dated May 17, 1996, and
which agreement has been continued and extended through February 28, 1997, and
WHEREAS, the parties desire to amend said agreement, as continued, as herein set
forth,
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NOW, THEREFORE, the parties acknowledged receipt of a valuable consideration,
state their intent to be legally bound hereby, and agree as follows:
1. The agreement between the parties dated May 17, 1996, as continued and
extended through February 28, 1997, shall be amended so that the settlement
date shall be ten (10) days after final approval of the sewer module for the
project and the entering of a development agreement with regard to the
intersection of Xxxxxx Road and Old Xxxxxx Road, but in no event later than May
16, 1997. Buyer shall have the right to extend the period of time within which
to close by payment of a further nonrefundable deposit of $1,000.00 for one two
week extensions.
2. The parties understand and agree that in addition to the deposits
previously made, an additional Five Thousand ($5,000.00) Dollar deposit is made
with the execution of this agreement, which down payment shall be applied
against the purchase price but which shall be nonrefundable in the event a
closing does not take place under the agreement, unless said closing does not
take place because of the fault of the Seller.
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3. Occupancy of the premises shall be delivered to Buyer no later than one
hundred twenty (120) days after closing.
IN WITNESS WHEREOF, the parties have executed this agreement this 19th day of
March, 1997.
/s/ Xxxxxxx X. Xxxx
--------------------------------
Xxxxxxx X. Xxxx
/s/ May X. Xxxx
--------------------------------
May X. Xxxx
ESSEX PARTNERS, INC.
By /s/ Xxxxxx X. Xxxxx
-------------------------------
Senior V.P.
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AGREEMENT
THIS AGREEMENT, made this 30th day of May, 1997, by and between
XXXXXXX X. XXXX and MAY X. XXXX, his wife
and
ESSEX PARTNERS, INC.
WITNESSETH:
WHEREAS, the parties have entered into an agreement dated May 17, 1996, and
which agreement has been continued and extended through February 28, 1997, and
WHEREAS, the parties have entered into an additional agreement dated March 19,
1997, in which the Buyer has the right to extend the settlement date under
certain terms and conditions, therein, until May 30, 1997.
WHEREAS, the parties desire to amend this agreement, as continued, as herein
set forth,
NOW, THEREFORE, the parties acknowledged the receipt of a valuable
consideration, state their intent to be legally bound hereby, and agree as
follows:
1. The agreement between the parties dated May 17, 1996, as continued and
extended through additional agreement dated March 19, 1997 shall be amended so
that
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the settlement date shall be June 4, 1997, or as soon thereafter as can be
scheduled between all parties, but in no case later than June 13, 1997.
2. The Buyer has received a Highway Occupancy Permit for PADOT for improvements
to Xxxxxx Xxxx xxx Xxx Xxxxxx Xxxx and approval of its sewer module as a
revision to the Official Sewer Plan of Summit Township by the Pennsylvania
Department of Environmental Protection.
3. The parties understand and agree that in addition to the deposits previously
made, an additional One Thousand ($1,000.00) Dollar deposit is made with the
execution of this agreement, which down payment shall be applied against the
purchase price but shall be non-refundable, unless closing does not take place
because of the fault of the Seller.
4. All other terms and conditions of the Real Estate Purchase Contract as
amended shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have executed this agreement this _________ day
of ________________________, 1997.
/s/ Xxxxxxx X. Xxxx
---------------------------------------
XXXXXXX X. XXXX
/s/ May X. Xxxx
---------------------------------------
MAY X. XXXX
ESSEX PARTNERS, INC.
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Senior V.P.
