EXHIBIT 10.5
REAL ESTATE PURCHASE AGREEMENT
5.683 ACRES, TUTTLE CROSSING BOULEVARD
DOMINION HOMES, INC., an Ohio corporation ("Buyer"), with an address of
5501 Frantz Road, Dublin, Ohio 43017, agrees to buy and CRAFTON PROPERTIES,
INC., an Ohio corporation ("Seller"), with an address of 3360 Tremont Road,
Columbus, Ohio 43221, agrees to sell, upon the terms hereinafter set forth, the
following real estate located in the State of Ohio, County of Franklin and City
of Dublin:
Being two parcels containing 3.002 acres (the "North Parcel") and 2.681
acres (the "South Parcel"), respectively, acres located on the north
side of Tuttle Crossing Boulevard, as more particularly described or
depicted on Exhibit A attached hereto and incorporated herein, together
with all easements, rights and appurtenances thereto, all buildings and
improvements situated thereon and all of Seller's rights, title and
interest in all public ways adjoining the same. The North Parcel and
the South Parcel are sometimes hereinafter referred to as the
"Premises."
1. Purchase Price and Expense Reimbursement. The purchase price of the
Premises shall be One Million Four Hundred Thousand Dollars ($1,400,000.00),
payable in cash at closing. The purchase price shall be allocated as follows:
$550,000.00 for the North Parcel and $850,000.00 for the South Parcel. In
addition, at closing Buyer shall reimburse Seller for any utility tap fees,
building permits or other expenses incurred by Seller in connection with its
development of the Premises, provided that the benefit of such expense is
entirely transferred to Buyer and that Seller provides Buyer with sufficient
documentation to substantiate such expense and benefit to Buyer's satisfaction.
2. Possession and Closing. Seller shall deliver exclusive possession of
the Premises to Buyer at the closing. The closing shall be held within thirty
(30) days after all conditions of this Agreement are satisfied or waived. The
closing shall be held in Columbus, Ohio, as mutually agreed by the parties.
3. Deposit. Within 10 days after expiration of the Investigation Period
(as hereinafter defined), Buyer agrees to deliver to Seller, as security for
Buyer's obligation to purchase the Premises, the amount of $10,000.00 (the
"Deposit"). The Deposit shall be held and returned or retained by Seller as
follows: (a) if this Agreement is terminated by Buyer pursuant to the provisions
of Section 6 or Section 7, the Deposit shall be returned to Buyer on the date of
termination; (b) if Seller defaults, or if any representations and warranties of
Seller set forth in this Agreement are untrue, the Deposit shall be returned to
Buyer, which return shall not in any way prejudice the rights of Buyer in any
action for damages or specific performance; (c) if Buyer purchases the Premises,
the Deposit shall be returned to Buyer or credited against the purchase price at
the closing; or (d) if for any reason, through no default of Seller, Buyer fails
to close on the Premises as required hereunder (after all conditions to closing
are satisfied or waived), the Deposit shall be retained by Seller, which
retention shall not in any way prejudice the rights of Seller in any action for
damages or specific performance.
4. Feasibility. Buyer shall have 60 days from acceptance hereof
(hereinafter the "Investigation Period") to conduct such physical examinations
of the Premises and such feasibility studies as Buyer deems necessary. Such
examinations and studies shall include, without limitation, examinations and
studies to determine that: (a) no portion of the Premises constitutes wetlands
or a final delineation of any wetland areas, under any applicable environmental
laws or regulations including, but not limited to, the Clean Water Act; (b) the
soil conditions on the Premises are adequate for construction of Buyer's
proposed office building(s) using normal methods of construction; (c) the
Premises does not contain any hazardous or toxic waste materials in violation of
any applicable environmental laws or regulations including, but not limited to,
the Comprehensive Environmental Response, Compensation and Liability Act; (d)
all necessary public utilities, including, but not limited to, water, sanitary
sewer, gas, electric, storm sewer and drainage facilities are or can be made
available in sufficient quantities and capacities and at reasonable cost to
service Buyer's intended overall development; and (e) Buyer's intended
development of the Premises is economically feasible. If, within the
Investigation Period, Buyer shall notify Seller in writing that this Agreement
is terminated, then thereafter neither party shall have any further obligation
hereunder.
5. Condition to Closing. Notwithstanding any provision contained
herein, Buyer's obligation to purchase the Premises is contingent upon Buyer,
within the period of time commencing upon Seller's acceptance hereof and ending
on December 31, 2002 (the "Contingency Period"), obtaining all governmental
approvals and permits as deemed necessary by Buyer for it to commence
construction of its proposed office building(s), including, without limitation,
final approval of Buyer's development plan and issuance of all requested
building permits and utility tap permits. Seller shall fully cooperate with
Buyer as necessary to satisfy the foregoing condition, and shall execute and
deliver, or join with Buyer in executing and delivering, such applications for
licenses, variances, approvals, permits and consents from governmental bodies,
utility companies, financial institutions and other entities, and shall take
such other actions, as Buyer may reasonably request in order to proceed with and
fully implement Buyer's intended development, including dedication of any
required right-of-way.
6. Satisfaction or Waiver of Conditions. In the event that the
condition set forth in Section 5 is not satisfied or waived within the
Contingency Period, Buyer, at its option, may elect to terminate this Agreement,
to waive said condition, or to continue to attempt to satisfy said condition, as
follows:
(a) Termination. If Buyer elects to terminate this Agreement,
Buyer shall so notify Seller in writing, and thereafter neither party
shall have any further obligation hereunder, except as provided in
Section 3 with respect to return of the Deposit.
(b) Waiver. If Buyer elects to waive said condition, the
purchase and sale of the Premises shall be closed as provided in
Section 2.
(c) Extension. If Buyer elects to continue to attempt to
satisfy said condition, prior to expiration of the Contingency Period
Buyer shall deposit with Seller the sum of $5,000.00 (the "Additional
Deposit") and thereby the Contingency Period shall be extended for an
additional period of 60 days (the "Extension Period"). In the event
that the foregoing condition is not satisfied or waived within the
Extension Period, if any,
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Buyer, at its option, may elect either to terminate this Agreement, as
provided in Section 6(a), to waive said condition, as provided in
Section 6(b), or to continue to attempt to satisfy said condition. If
Buyer elects to continue to attempt to satisfy said condition, prior to
expiration of the Extension Period Buyer shall deposit with Seller the
additional sum of $5,000.00 and thereby the Contingency Period shall be
extended for a second additional period of 60 days (the "Second
Extension Period"). In the event that the foregoing condition is not
satisfied or waived within the Second Extension Period, if any, Buyer,
at its option, may elect either to terminate this Agreement, as
provided in Section 6(a), or to waive said condition, as provided in
Section 6(b). The deposit(s) delivered to Seller in connection with the
Extension Period and Second Extension Period, if any, shall be referred
to herein, collectively, as the "Additional Deposit." The Additional
Deposit shall be non-refundable, except in the event that Buyer
terminates this Agreement pursuant to the provisions of Section 7 or
Seller defaults or any representations and warranties of Seller set
forth in this Agreement are untrue. At the closing, the Additional
Deposit shall neither be returned to Buyer nor credited against the
purchase price.
7. Evidence of Title. Within thirty (30) days after acceptance hereof,
Seller shall furnish Buyer with a title insurance commitment for the Premises in
the amount of the purchase price of the Premises. The title insurance commitment
shall be issued by a title insurance company selected by Seller and reasonably
acceptable to Buyer (the "Title Company") and shall be updated with an
endorsement at the closing. Such commitment and endorsement shall show in Seller
marketable title in fee simple, free and clear of all liens and encumbrances
except: (a) those created by or assumed by Buyer; (b) those specifically set
forth in this Agreement; (c) the lien of real estate taxes and assessments, if
any, not due at the time of conveyance; (d) zoning ordinances; (e) legal
highways; and (f) covenants, restrictions, conditions and easements of record
which in Buyer's judgment will not interfere with its intended use of the
Premises or its intended overall development. Based on such commitment and
endorsement, at the closing Seller shall provide Buyer with an owner's title
insurance policy in the amount of the purchase price of the Premises. Seller
shall pay for the cost of owner's title insurance. Buyer shall pay any
additional costs incurred in connection with mortgagee title insurance issued
for the protection of Buyer's lender.
If title to all or part of the Premises is unmarketable, as determined
by Ohio law with reference to the Ohio State Bar Association's Standards of
Title Examination, or is subject to liens, encumbrances, easements, conditions,
restrictions or encroachments other than those excepted in this Agreement,
Seller shall use its best efforts to, within thirty (30) days after written
notice thereof, remedy or remove any such defect, lien, encumbrance, easement,
condition, restriction or encroachment or obtain title insurance without
exception therefor; provided, however, that if such title defect cannot be cured
within said period and if Buyer refuses to waive same, this Agreement will
terminate at Buyer's option.
At the closing, Seller shall execute and deliver to Buyer and the title
insurance company an owner's affidavit as to mechanics' and materialmen's liens,
persons in possession of the Premises, and similar title matters required by the
Title Company as a condition of its deletion of the standard printed general
exceptions from the title policy. Seller shall apply the proceeds of
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the closing to effectuate the release of any monetary encumbrances set forth in
the title insurance commitment.
8. Seller's Representations and Warranties. Seller's representations
and warranties contained elsewhere in this Agreement and the following
representations and warranties shall survive the closing and passing of title to
Buyer whether made in this section or elsewhere herein:
(a) There are no actions, suits or proceedings, pending or
threatened against Seller with respect to the Premises or affecting any
of its rights with relation to the Premises, at law or in equity, or
before any federal, state, municipal or other governmental agency or
instrumentality, nor is Seller aware of any facts which to its
knowledge might result in any action, suit or proceeding, nor is Seller
in default with respect to any order or decree of any court or of any
governmental agency or instrumentality.
(b) There are no rights of possession to the Premises
outstanding in anyone except Seller. No part of the Premises is subject
to a lease agreement, either oral or written. No part of the Premises
is subject to a right of first refusal or other right which Seller or
any predecessor in title, may have granted to other persons or parties
as to the Premises, or any part thereof, whether written or verbal.
(c) No notice, either oral or written, has been received by
Seller that any governmental or quasi-governmental agency or authority
intends to commence construction of any special or off-site
improvements or impose any special or other assessment against the
Premises or any part thereof.
(d) Seller has full authority and capacity to enter into this
Agreement and to execute all documents contemplated hereby. Seller's
execution, delivery and performance of this Agreement will not violate
the provisions of any agreement to which Seller is a party or by which
it is bound.
(e) Seller shall transfer the Premises to Buyer in its present
condition, excepting normal wear between the date hereof and the
closing.
(f) There are no agreements, commitments or representations
between Seller or any of Seller's predecessors in title and any
governmental, public or quasi-public agency which would impose any
obligation or require Buyer to pay any sums to any other party.
(g) Seller has not used the Premises for the disposal of any
hazardous or toxic waste materials, nor to the best of Seller's
knowledge and belief has the Premises ever contained nor do they
currently contain any hazardous or toxic waste materials, in violation
of any environmental laws, nor has any "clean-up" of the Premises
occurred pursuant to any environmental laws which could give rise to:
(i) liability on the part of Buyer to reimburse any governmental
authority for the costs of such clean-up, or (ii) a
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lien or encumbrance on the Premises. Seller has received no notice from
any governmental authority with respect to any violation(s) of any
environmental law or clean-up on the Premises, nor is Seller aware of
any such contemplated notices, nor is Seller aware of any environmental
studies or reports conducted regarding the Premises which have not been
delivered to Buyer.
(h) Neither the Premises nor any part thereof is within a
special assessment district, nor has any application been made or
submitted for the creation thereof or annexation thereby.
(i) To the best of Seller's knowledge, no portion of the
Premises constitutes wetlands or a final delineation of any wetland
areas, under any applicable environmental laws or regulations
including, but not limited to, the federal Clean Water Act.
(j) Seller has not filed for relief as a debtor under any
state receivership laws or federal bankruptcy laws.
(k) The Premises has been finally and unappealably zoned so as
to permit Buyer's construction on the Premises of Buyer's proposed
office building(s) and, except as set forth in the approved zoning text
attached hereto as Exhibit B and this Agreement, no other development
restrictions have been placed upon the Premises.
(l) All representations and warranties of Seller contained in
this Agreement, whether under this section or elsewhere, shall be true
as at the date of the closing as if those representations and
warranties were made at such time, and shall survive the closing
hereunder. If requested, Seller agrees to execute and deliver to Buyer
an affidavit upon closing certifying that all of the representations
and warranties made in this Agreement are true and accurate as of that
date.
9. Tests and Engineering Studies. For and during the entire period that
this Agreement is in effect, Buyer shall, without cost or expense to Seller,
have the right through Buyer's associates, employees and/or contractors and
agents, to enter upon the Premises for the purpose of surveying, inspecting,
making contour surveys, temporary excavations (to be refilled by Buyer as
promptly as the same shall have served their purpose), test borings and for any
other purposes required by Buyer. Buyer agrees to return the Premises after any
such tests to as nearly as possible its original condition. Further, Buyer
agrees to indemnify and hold Seller harmless from any damages to persons or
property arising out of the actions of Buyer as a result of completing such
studies on the Premises.
10. Deed. At the closing, Seller shall convey to Buyer marketable title
in fee simple by transferable and recordable general warranty deed, free and
clear of all liens and encumbrances not excepted by this Agreement.
11. Taxes and Assessments. At the closing, Seller shall pay or credit
on the purchase price all delinquent taxes, including penalties and interest,
all agricultural recoupment charges (CAUV) for years through and including the
year of closing (whether or not presently due and
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payable), and all assessments which are a lien on the date of contract. At the
closing, Seller shall also pay or credit on the purchase price all other unpaid
real estate taxes which are a lien on the Premises for years prior to closing
and a portion of such taxes for the year of closing prorated through the date of
closing based on a 365-day year and, if undetermined, on the most recently
available tax rate and valuation; provided, however, that the parties shall
adjust and reprorate such tax prorations based upon final and unappealable real
estate tax bills. Such adjustment shall be made within 10 days after demand by
the party to whom a credit is due. Seller represents and warrants that it has
not received notice from a public authority of any future improvements of which
a part of the cost may be assessed against the Premises.
12. Assignment. Buyer may assign all of its rights and obligations
hereunder to a nominee of its choice without Seller's consent. Seller may assign
all of its rights and obligations hereunder only with Buyer's written consent.
13. Tax-Deferred Exchange. Buyer hereby consents to Seller's assignment
of this Agreement to a qualified intermediary of Seller's choice for the purpose
of effectuating a tax-deferred property exchange pursuant to Section 1031 of the
Internal Revenue Code of 1986, as amended, and Buyer otherwise agrees to
cooperate with Seller and the intermediary in such exchange, provided that
Seller or the qualified intermediary shall pay any incremental transfer taxes,
recording fees or similar closing costs resulting from such exchange.
14. Notice. Any notice or other writing required under this Agreement
shall be deemed given when delivered to that party's address as set forth below
or when mailed by certified United States mail, postage prepaid, return receipt
requested, or via national overnight carrier, addressed as follows:
(a) If to Seller:
Crafton Properties, Inc.
Attn: Francis E. Barnes
3360 Tremont Road
Columbus, Ohio 43221
(b) If to Buyer: With Copy to:
Dominion Homes, Inc. Dominion Homes, Inc.
Attn:David S. Borror Attn: Joseph A. Sugar, Esq.
5501 Frantz Road 5501 Frantz Road
Dublin, Ohio 43017-0766 Dublin, Ohio 43017-0766
15. Brokers. Each party represents to the other that there is no broker
or other person who may be entitled to a commission or similar fee in connection
with this transaction. Each party agrees to defend, indemnify and save harmless
the other from and against all other claims for brokerage or other commissions
or similar fees or compensation for any service rendered at its instance in
connection with this transaction.
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16. Miscellaneous. This Agreement constitutes the entire agreement
between Seller and Buyer and no change in this Agreement may be made except by
an agreement in writing signed by the party against whom enforcement of any
change is sought. This Agreement shall be binding upon and inure to the benefit
of Seller and Buyer and their respective heirs, personal representatives,
successors and assigns. This Agreement shall be construed and enforced in
accordance with the laws of the State of Ohio. This Agreement shall be construed
without reference to the titles of the various sections, which are inserted for
convenience of reference only. The covenants, agreements, representations,
warranties and obligations of the parties in this Agreement shall survive the
closing. Time is of the essence for purposes of this Agreement. In any action
brought to enforce this Agreement, the prevailing party shall be entitled to
reasonable attorneys' fees and other expenses incurred in connection with such
action. Whenever used in this Agreement, the singular shall be deemed to include
the plural, and vice versa, and the use of any gender shall be deemed to include
all others.
17. Duration of Offer. This Agreement constitutes an offer by Buyer to
Seller which shall be open for acceptance until 5:00 p.m., on ,
2002, by returning a signed original hereof to Buyer.
DOMINION HOMES, INC., Seller agrees to and accepts the foregoing
an Ohio corporation offer this 27th day of August, 2002.
CRAFTON PROPERTIES, INC., an Ohio
By: /s/ David S. Borror corporation
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David S. Borror, Executive Vice President
Date: August 27, 2002 By: /s/ Francis E. Barnes
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Francis E. Barnes, President
Attached Exhibits:
Exhibit A - Description of Premises
Exhibit B - Zoning Text
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