EXHIBIT 10.44
REAL ESTATE PURCHASE AGREEMENT
THIS REAL ESTATE PURCHASE AGREEMENT ("Agreement") is made and entered into as of
the date set forth below, by and between DOMINION HOMES, Inc. an Ohio
Corporation ("Seller"), and ASC REAL ESTATE DEVELOPMENT, L.L.C., a Utah Limited
Liability Company ("Buyer").
Recitals
Seller is the owner of certain real property as set out on Exhibit A attached
hereto (the "Real Property").
Buyer desires to purchase from Seller the Real Property, and certain other
tangible and intangible property related to the Real Property as described
herein, for the purpose of the development thereon (the "Project").
Agreement
NOW, THEREFORE, in consideration of the mutual covenants of the parties and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Seller and Buyer agree as follows:
ARTICLE I
Basic Definitions
ALTA Survey. The term "ALTA Survey" shall mean a survey and topography map of
the Real Property prepared by a licensed surveyor or professional engineer in
accordance with "Minimum Standard Detail requirements for ALTA/ACSM Land Title
Surveys", jointly established and adopted in 1992 by the American Land Title
Association and American Congress on Surveying and Mapping, or the equivalent
thereof. Said ALTA Survey shall also be provided on a 3.5, 1.44-megabyte
computer disk in AutoCAD format, release 12, DWG format, which shall also
include all reference files that apply to the drawing.
Affidavit of Non-Foreign Status. "Affidavit of Non-Foreign Status" shall mean a
document to be executed by Seller for the purpose of complying with exemption
(b) (2) of Internal Revenue Code Section 1445 relating to the withholding of tax
upon the sale of certain real estate by a "foreign person" as defined in I.R.C.
Section 1445.
Approvals Period. "Approvals Period" shall commence on the day, which falls
after the expiration of the Feasibility Period, and end at 11:59 p.m. thirty
(30) days thereafter
Closing Date. "Closing Date" shall mean the date, which is fifteen (15) days
following the earlier of (i) close of the Inspection Period or (ii) the date on
which Buyer determines that all Approvals have been received (if later than the
expiration of the Feasibility Period). If any date set for Closing shall be a
Saturday, Sunday, or legal holiday, then Closing shall occur on the next
succeeding business day.
Date of this Agreement. "Date of this Agreement" shall mean the date on which
the last party hereto signs and dates this Agreement below.
Deposit. "Deposit" shall mean five thousand dollars and zero cents ($5,000.00)
deposited by buyer as earnest money to show the buyer's intent to purchase the
Real Property.
Escrow. "Escrow" shall mean the Escrow established with the Title Company to
effect the purchase and sale
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contemplated by this Agreement, as described more fully in Article VI below.
Feasibility Period. "Feasibility Period" shall commence on the Date of the
Agreement and end at 11:59 pm. sixty (60) days thereafter
Governmental Unit. "Governmental Unit" means any federal, state, county, city,
or other unit of government, or any instrumentality thereof.
Inspection Period. "Inspection Period" shall mean the Feasibility Period
together with the Approvals Period.
Net Square Feet. If used herein, "Net Square Feet" shall mean the gross area of
the Real Property (as determined by the ALTA Survey and accepted by Buyer) less
the square feet of property located within rights of way for public roadways
and/or public alleys.
Phase I Report. "Phase I Report" shall mean a Phase I environmental assessment
of the Real Property, in form and substance and with an environmental testing
company reasonably acceptable to Buyer.
Property. "Property" shall mean the Real Property, together with (to the extent
they exist) any and all easements, rights-of-way, privileges, hereditaments,
governmental licenses, zoning rights, development rights, sanitary sewer
discharge treatment rights, and potable water capacities, applications, rights
and powers appurtenant to or for the benefit of the Real Property, all remainder
interests, reversionary interests, permits and approvals relating to the Real
Property held by Seller, and any and all existing warranties with respect to the
Real Property given to Seller by third parties. Seller will provide Buyer with
and approved boundary survey and legal description of the Property.
Purchase Price. The "Purchase Price" shall be seven hundred thirty thousand
dollars and zero cents ($730,000.00).
Title Commitment. "Title Commitment" shall mean a commitment (in a form
reasonably acceptable to Buyer) by the Title Company to issue a standard ALTA
owner's title insurance policy covering the Real Property in the amount of the
Purchase Price.
Title Company. "Title Company" shall mean Title First Agency, Inc.
Title Policy. "Title Policy" shall mean a title policy issued in accordance with
the Title Commitment, subject only to the Permitted Exceptions (as defined
below), and with the exceptions for mechanic's liens, taxes, survey matters, and
parties in possession deleted from said policy; together with such additional
endorsements as Buyer may require (provided, that notwithstanding any other
provision hereof, such additional endorsements shall be at Buyer's sole cost and
expense).
ARTICLE II
Purchase and Sale
Seller agrees to sell the Property to Buyer, and Buyer agrees to purchase the
Property from Seller, upon all of the terms, covenants and conditions set forth
in this Agreement. The purchase price for the Property (the "Purchase Price")
shall be the Purchase Price, and shall be payable by Buyer to Seller on the
Closing Date as follows:
a) Buyer has deposited or shall deposit with the Title Company within five (5)
business days from the date of
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this Agreement (or, if later, within two (2) business days after the opening of
the escrow account), any Deposit required hereunder. At Closing, or if the
transaction shall fail to close for any reason other than as set forth in
Article V below, the Deposit and any proceeds thereof, together with any
interest earned thereon, shall be delivered to Buyer or, at Buyer's direction,
drawn down and credited against the Purchase Price.
b) The Purchase Price shall be paid to Seller by (i) at Buyer's direction,
crediting the Deposit, any payment under the Deposit, and any other payments
including any interest earned thereon, to the account of the Seller at the Title
Company, and (ii) the balance shall be paid by wire transfer of immediately
available funds on the Closing Date to the Title Company for disbursement at
Closing.
c) Seller shall deliver to Buyer on the Closing Date, a statutory form of
general warranty deed to the Real Property (the "Deed"), together with such
other instruments of conveyance or documents as may be necessary to convey the
Property to Buyer.
ARTICLE III
Investigation and Review
Section 3.1 Inspections of Property and Documents. During the Inspection
Period Buyer shall be permitted to make a complete physical inspection of the
Property and a review of all documents and information in Seller's possession
relating to the Property. Seller shall deliver to Buyer copies of all
environmental reports, soils tests, surveys, plats, correspondence with
Governmental Units, legal proceedings, threats of legal proceedings, current tax
statements, and assessments, and copies of any other documents reasonably
identified from time to time by Buyer, that are in Seller's possession, custody,
or control pertaining to the Property within ten (10) days after the Date of
this Agreement. Seller shall permit Buyer and its agents such access to the Real
Property and any structures located thereon as Buyer may request during the
Inspection Period (including any extensions) for the purpose of making
assessments, investigations, inspections, and tests, and shall cooperate with
Buyer with respect to the foregoing investigations but shall not be obligated to
incur any out-of-pocket expense in connection therewith. Buyer shall indemnify
and defend Seller against and hold Seller harmless from any and all loss, cost,
liability, or expense (including reasonable attorneys' fees) and repair any
damage arising out of Buyer's (or Buyer's agents, employees, and contractors)
activities on the Real Property during the Inspection Period; provided, that,
such indemnity and repair obligation shall not cover or extend to (a) any claims
of diminution in the value of the Property as a consequence of the results
revealed by such tests and inspections, or (b) the exposure or release of
hazardous substances or materials located in, on, or under the Property unless
introduced to the area by Buyer, or Buyer's agents, employees, or contractors.
Notwithstanding any other provision hereof this indemnity obligation shall
survive the termination of this Agreement. In the event this Agreement is
terminated, Buyer shall provide copies of all environmental, engineering,
surveying, and other similar reports pertaining to the physical condition of the
Real Property to Seller, at no expense but without representation or warranty of
any kind (express of implied).
Section 3.2 Feasibility Period. The purpose of Feasibility Period is to permit
Buyer to explore, in Buyer's sole and absolute discretion, whether it is
feasible and desirable to construct the Project. Buyer shall have the absolute
right to terminate this Agreement on or before the expiration of Feasibility
Period for any reason or no reason, in which case the Deposit and all other
payments made into escrow, together with all interest earned thereon, shall be
returned and/or paid immediately to Buyer. This Agreement shall be deemed to
have been automatically terminated unless Buyer sends Seller written notice that
it elects to proceed beyond the Feasibility Period.
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Section 3.3 Approvals Period. The purpose of the Approvals Period is to enable
Buyer to obtain all permits, licenses, authorizations, approvals, zoning, site
plan approvals, building permits, legal changes, variances, use permits,
discretionary land use approvals, public or private easements or rights-of-way,
and other actions or inactions of any Governmental Units or third parties
(including, but not limited to, any architectural review boards or the
equivalent) necessary or desirable for the construction and operation of the
Project ("Approvals"). If all such Approvals and financing for the Project are
not obtained by the end of the Approvals Period, or if any periods for the
filing of appeals from the granting thereof have not expired without an appeal
having been taken therefrom (or if taken, such appeal not having been finally
decided in favor of such grant), then this Agreement shall automatically
terminate, in which case the Deposit and all other payments made into escrow,
together with all interest earned thereon, shall be returned and/or paid
immediately to Buyer.
Section 3.4 Exceptions to Title Commitment. Immediately after Escrow is opened,
Seller shall order a current Title Commitment and all documents pertaining to
all exceptions listed in the Title Commitment, and DB Buyer shall order an ALTA
Survey. Buyer shall approve or disapprove the Title Commitment and the ALTA
Survey within the Feasibility Period. In the event that Buyer objects to the
exceptions set forth as exceptions to coverage in the Title Commitment or to
matters shown on the ALTA Survey, Seller shall cure any liens or mortgages that
may be discharged by the payment of money, together with all other matters
placed on the Real Property after the Date of this Agreement with Buyer's
consent, and may elect (in Buyer's discretion) to either cure or not cure any
other exceptions or survey matters. If the exceptions or survey matters objected
to by Buyer cannot be or are not eliminated by Seller within the earlier of (i)
twenty (20) days after receipt of Buyer's objections or (ii) the Closing Date,
and Buyer shall not waive its objections in writing within five (5) days
thereafter, then, at Buyer's discretion, this Agreement shall be terminated and
the Deposit and any other money deposited by Buyer into Escrow, together with
all interest earned thereon, shall be returned to Buyer. Except for the
exceptions expressly approved or waived by Buyer pursuant to this Section (the
"Permitted Exceptions"), Seller shall deliver title free and clear of all liens
and encumbrances. Any title exceptions or survey matter to which Buyer does not
object within the Feasibility period shall be deemed to be expressly waived by
Buyer.
Section 3.5 Seller's Approval of Buyer's Plans. Buyer agrees that all of
Buyer's development plans, site layouts, and architectural elevations for the
Project, including signage and landscaping plans, shall be subject to Seller's
review and approval, such approval not to be unreasonably withheld. This
provision shall survive the closing.
Section 3.6 Preservation of Trees. Buyer agrees that Buyer shall not remove or
disturb any of the trees or other plantings or landscaping currently located on
the Real Property in the crosshatched area shown on Exhibit B attached hereto.
This provision shall survive the closing and, notwithstanding any provision
contained herein, Seller may elect to include a restriction in the Deed that
prohibits any owner of the Real Property from removing or disturbing such trees,
plantings or landscaping. Further, Seller may elect to reserve a perpetual
easement in the Deed for the care, maintenance and replacement of such trees,
plantings and landscaping.
ARTICLE IV
Representations and Warranties; Covenants
Section 4.1 Seller's Representations and Warranties. Seller represents and
warrants to Buyer as follows (both as of the Date of this Agreement and as of
Closing):
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a) To the best of Seller's actual knowledge: (i) There are no adverse or other
parties in possession of the Real Property or any part thereof, and (ii) other
than as is of record no party has been granted any right of purchase, option,
license, lease, or other right or interest relating to the use or possession of
the Real Property, or any part thereof, and the Real Property is not subject to
any contract or limitation of any kind.
b) To the best of Seller's actual knowledge there is no condition existing with
respect to the Real Property, or any part thereof, which violates any federal,
state, or local laws or regulations.
c) To the best of Seller's actual knowledge, and except as set forth in any
Phase I report delivered by Seller to Buyer before the Date of this Agreement:
The Real Property does not contain, no activity upon the Real Property has
produced, and the Real Property has not been used in any manner for the storage
of, any hazardous or toxic waste materials; and the Real Property does not
contain underground storage tanks of any type.
d) Seller has the full right, power and authority to sell and convey the
Property to Buyer as provided in this Agreement and to carry out Seller's
obligations hereunder. Seller has, or will have as of the Closing, good and
marketable title subject only to the Permitted Exceptions. All requisite
corporate or other actions necessary to authorize Seller to enter into this
Agreement and to perform its obligations hereunder have been taken; the joinder
of no person or entity other than Seller will be necessary to convey the Real
Property fully and completely to Buyer at Closing; and the execution and
delivery of this Agreement and the Consummation of the transaction herein
contemplated will not conflict with, or with notice or the passage of time, or
both, result in a breach of any of terms or provisions of, or constitute a
default under, any indenture, mortgage, agreement, or instrument to which Seller
is a party or by which Seller or Seller's property, including without limitation
the Property, is bound.
e) Seller is not a "foreign person" as defined in Internal Revenue Code Section
1445 and any related regulations. At the Closing, Buyer will have no duty to
collect withholding taxes for Seller pursuant to the Foreign Investors Real
Property Tax Act of 1980, as amended.
f) Seller is not in default in respect of any of its obligations or liabilities
pertaining to the Property, nor is there any state of facts, circumstances,
conditions or events which, after notice or lapse of time or both, would
constitute or result in any such default.
g) To the best of Seller's actual knowledge: The Property has not, during any of
the five (5) years prior to the date of this Agreement, been subjected to any
special use valuation or exemption for purposes of assessment and/or ad valorem
taxes.
Section 4.2 Seller's Covenants. Seller hereby covenants and agrees as follows:
a) Prior to the Closing Date, Seller shall not permit any new mortgage, lien,
easement, restriction, or other encumbrance to be placed upon the Property, or
increase the amount secured by the Property, except as previously agreed to by
Buyer in writing or as may be (considering all other liens, mortgages, and
pro-rations to be made or discharged at Closing) discharged completely out of
the Purchase Price.
b) Prior to the Closing Date, Seller shall as its expense terminate any service
contracts affecting the Property, unless otherwise requested in writing by
Buyer.
c) Seller, without being required to incur any expenses to third parties, shall
reasonably cooperate with Buyer
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in obtaining the consent, approval, and other action or inaction of all
Governmental Units and any other persons or entities (including, but not limited
to, any architectural review board of the equivalent thereof) desirable or
necessary for the Project and to obtain any Approvals.
d) Seller shall obtain any lot split and legal description approval necessary
under local law for the lawful and proper conveyance of the Property.
e) Seller shall notify Buyer immediately of the institution or maintenance of
any condemnation or similar proceedings with respect to the Property. In the
event any condemnation or similar proceedings are instituted or maintained with
respect to a portion of the Property, either party may elect to terminate this
Agreement in which Buyer shall receive a full refund of the Deposit and all
other amounts paid into Escrow hereunder. In the event that neither party elects
to terminate this agreement all condemnation proceeds collected in connection
with such proceedings shall be delivered to Buyer upon the Closing. All
entitlement to all other condemnation proceeds arising out of such proceedings
shall be assigned by Seller to Buyer upon the Closing. In the event the Real
Property is damaged before Closing (for instance, a spill of hazardous
materials) in a manner not contemplated herein (for instance, Seller's
demolition of improvements thereon, unless the same are not to be demolished
pursuant to the other provisions hereof), then Seller shall immediately notify
Buyer of the same and the Buyer shall have the option of terminating this
Agreement the same as if Buyer had terminated the Agreement during the
Feasibility Period.
f) To the extent Seller has actual knowledge; Seller shall promptly notify Buyer
of any material change in any condition with respect to the Property or of any
event or circumstance which makes any representation or warranty of Seller
untrue or misleading, or any covenant of Seller under this Agreement incapable
or less likely of being performed.
g) At closing, Seller shall deliver the Property to Buyer with all structures in
substantially the same condition as said structures were at the date of this
agreement.
ARTICLE V
Deposit
In the event that (a) all conditions precedent to Buyer's obligation to close
hereunder have been satisfied, and (b) Seller shall have performed fully or
tendered performance of its obligations hereunder, and (c) Buyer shall be unable
or fail to perform its obligations hereunder at Closing in breach hereof, then
the Deposit, together with all interest earned thereon, shall be retained by
Seller as liquidated damages for Buyer's default hereunder. BUYER AND SELLER
HEREBY ACKNOWLEDGE AND AGREE THAT SELLER'S DAMAGES IN THE EVENT OF SUCH A BREACH
OF THIS AGREEMENT BY BUYER WOULD BE DIFFICULT OR IMPOSSIBLE TO DETERMINE, THAT
THE AMOUNT OF THE DEPOSIT. TOGETHER WITH ALL INTEREST EARNED THEREON, IS THE
PARTIES' BEST AND MOST ACCURATE ESTIMATE OF THE DAMAGES SELLER WOULD SUFFER IN
THE EVENT THE TRANSACTION PROVIDED FOR IN THIS AGREEMENT FAILS TO CLOSE, AND
THAT SUCH ESTIMATE IS REASONABLE UNDER THE CIRCUMSTANCES EXISTING ON THE DATE OF
THIS AGREEMENT. BUYER AND SELLER AGREE THAT SELLER'S RIGHT TO THE DEPOSIT AND
ALL INTEREST EARNED THEREON SHALL BE THE SOLE REMEDY OF SELLER AT LAW OR IN
EQUITY IN THE EVENT OF A BREACH OF THIS AGREEMENT BY BUYER; AND SELLER HEREBY
WAIVES ALL OTHER CLAIMS FOR DAMAGES OR FOR SPECIFIC PERFORMANCE.
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ARTICLE VI
Escrow and Closing
Section 6.1 Escrow Arrangements. The Escrow for the purchase and sale
contemplated by this Agreement will be opened within ten (10) business days
after the date of this Agreement, by Buyer with the Title Company. Within ten
(10) business days after the opening of said escrow, Buyer and Seller shall
execute Title Company's escrow instructions in the form attached as an exhibit
hereto or, if no form is attached, in the form customarily used by Title Company
(if any). Buyer shall make the necessary arrangements for such Escrow, and
provide copies of all documents relating thereto to Seller for prior review and
approval. On or before the Closing Date the transaction contemplated herein
shall be closed (the "Closing"), Seller and Buyer shall each deliver escrow
instructions to the Title Company consistent with this Article VI, and the
parties shall deposit the following funds and documents into Escrow:
a) Seller shall deposit the duly executed and acknowledged Deed and a duly
executed Affidavit of Non-Foreign Status;
b) Buyer shall deposit cash in the amount of the Purchase Price ("Seller's
Funds") and sufficient additional cash to pay Buyer's share of escrow costs and
closing expenses; and
c) Each party shall deposit such additional executed documents as the Title
Company may reasonably request or as are customary in the geographic area in
which the Real Property is located to close the transactions in accordance with
the provisions of this Agreement.
Section 6.2 Closing.
a. Buyer's obligation to close hereunder is subject to the satisfaction of the
following conditions precedent at Closing:
1) The Title Company shall be willing to issue the Title Policy on the Closing
Date, or within a customary time thereafter that is reasonably acceptable to
Buyer;
2) There shall not be any pending referendum, moratorium, or any other public or
private actions, which would adversely affect the Project;
3) There shall not have been any material adverse change in the condition of the
Property, or in any laws and restrictions, contractual relations, or the
Approvals, which have been previously approved by Buyer during Inspection
Period; and
4) Seller shall have performed each and every covenant, undertaking and
agreement to be performed by Seller pursuant to this Agreement, and each
representation and warranty made in this Agreement by Seller shall be true in
all material respects at the time made and on the Closing Date.
At any time or times on or before the closing Date, Buyer may (in its sole and
absolute discretion) waive any of the conditions to closing set forth in this
Agreement. No such waiver shall reduce the rights or remedies of Buyer arising
from any breach of any undertaking, agreement, covenant, warranty, or
representation of Seller under this Agreement.
b. The Title Company shall close escrow by:
1) Recording the Deed;
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2) Issuing the Title Policy;
3) Delivering to Seller the Seller's Funds (after deduction for expenses as
allocated herein and any withholdings required by law); and
4) Taking such other actions as are customary in the geographic area in which
the Real Property is located to close the transaction contemplated herein.
Section 6.3 Pro-rations.
a) Real estate taxes, personal property taxes, if any, and any other items of
income and expense with respect to the Property shall be prorated between Seller
and Buyer as of the Closing Date. Seller shall pay all such items attributable
to the period through and including the Closing Date. Buyer shall pay all such
items attributable to the period following the Closing Date. All assessments,
general or special, including, without limitation, any special assessments
assessed against the Property which are payable in installments, shall be paid
in full by Seller.
b) Seller and Buyer shall cooperate to produce on or before the Closing Date, a
schedule of pro-rations, which shall be as complete and accurate as reasonably
possible. All pro-rations, which can be liquidated accurately or reasonably
estimated as of the Closing Date, shall be made on the Closing Date. All other
pro-rations, and adjustments to initial estimated pro-rations, shall be made by
Buyer and Seller with due diligence and cooperation within thirty (30) days
following the Closing Date, or such later time as may be required to obtain
necessary information for pro-ration. Any net credit due one party from the
other as a result of such post-closing pro-rations and adjustments shall be paid
by the other in cash immediately upon the parties' written agreement to a final
schedule of post-closing pro-rations and adjustments.
Section 6.4 Closing Costs. The Closing Costs shall be paid as follows:
Fee for Title Commitment Seller
Fee for Title Policy
(exclusive of Buyer's
endorsements) Seller
Cost of preparing the deed Seller
Cost of Phase I Buyer
Cost of ALTA survey Buyer
Recording costs Buyer/Seller
Governmental documentary
transfer, grantors tax,
conveyance fee, stamps,
and taxes Buyer/Seller
Fee charged by
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Title Company
to Close the Transaction Buyer/Seller
Escrow Fees Buyer/Seller
ARTICLE VII
Miscellaneous
Section 7.1 Brokerage Commissions and Finder's Fees. Seller represents and
warrants to Buyer, and Buyer represents and warrants to Seller, that no person
or entity can properly claim a right to a real estate commission, real estate
finder's fee, real estate acquisition fee or other real estate brokerage-type
compensation (collectively, "Real Estate Compensation") based upon the acts of
that party with respect to the transaction contemplated by this Agreement,
except to R.S. Garek & Associates, Ltd. And Michael Grosh, licensed agent, and
to RE/Max Achievers and Paul Phillips, licensed agent, whose fees in the amount
of three percent (3%) to Grosh and three percent (3%) to Phillips shall be paid
by Seller. Except as set forth above, each party hereby agrees to indemnify and
defend the other against and to hold the other harmless from any and all loss,
cost, liability, or expense (including, but not limited to, attorneys' fees and
returned commissions) resulting from any claim for Real Estate Compensation by
any person or entity based upon such party's acts.
Section 7.2 Notices. All written notices required to be given pursuant to the
terms hereof shall be either personally delivered (including overnight delivery
service) or by facsimile transmission, and addressed as follows:
To Seller: David Borror, Dominion Homes With copy to: Joe Sugar, Dominion
5501 Frantz Rd. Homes
PO Box 7166 5501 Frantz Rd.
Dublin, Ohio, 43017-0766 PO Box 7166
Dublin, OH 43017-0766
To Buyer: Bruce Heywood, Vice President, ASC Real Estate Development, LLC
P.O. Box 683070
Park City, UT 84068
The foregoing address may be changed from time to time by written notice.
Notices shall be deemed received upon personal delivery thereof, upon receipt of
a facsimile transmission, or on the next business day if delivered by overnight
delivery service.
Section 7.3 Time. Time is of the essence of every provision contained in this
Agreement.
Section 7.4 Possession. The right to possession of the Property shall be
delivered to Buyer on the Closing Date.
Section 7.5 Incorporation by Reference. All of the exhibits attached to this
Agreement or referred to herein, and all documents in the nature of such
exhibits which are existing at the time of execution of this Agreement and
identified with specificity in this Agreement, when executed, are by this
reference incorporated in and made a part of this Agreement.
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Section 7.6 Attorney's Fees. In the event any dispute between Buyer and Seller
should result in litigation, the prevailing party shall be reimbursed by the
non-prevailing party for all reasonable costs incurred in connection with such
litigation, including, without limitation, reasonable attorneys' fees and
expenses.
Section 7.7 Construction. The parties acknowledge that each party and its
counsel have reviewed and revised this Agreement and that no rule of
construction to the effect that any ambiguities are to be resolved against the
drafting party shall be employed in the interpretation of this Agreement or any
amendments or Exhibits hereto. Each provision of this Agreement to be performed
by either party shall be deemed both a covenant and a condition and shall be a
material consideration for the other party's performance hereunder, and any
breach thereof by either party shall be deemed a material default hereunder. The
waiver or failure of a party to enforce any provision of this Agreement shall
not be construed or operate as a waiver or any further breach of such provision
of any other provisions of this Agreement.
Section 7.8 Sales, Use, Transfer, and Documentary Taxes. Seller shall pay any
sales, use, transfer, and documentary stamp taxes determined to be payable in
connection with this transaction.
Section 7.9 No Merger. The provisions of this Agreement shall not merge with
the delivery of the Deed or other instruments at Closing, but shall, survive the
closing of the transactions contemplated herein and the delivery of all such
documents.
Section 7.10 Governing Law. This Agreement shall be construed and interpreted in
accordance with and shall be governed and enforced in all respects according to
the laws of the state or commonwealth in which the Real Property is located.
Section 7.11 Further Assurances. Seller and Buyer each at all times hereafter
shall execute and deliver, at the reasonable request of the other or of the
Title Company, such further documents and/or instruments, and shall perform such
other acts, as may be reasonably required to give full effect to the transaction
contemplated by this Agreement, and shall deposit into the Escrow duly executed
and where appropriate, acknowledged originals of all closing documents
contemplated by this Agreement.
Section 7.12 Amendment. Except as otherwise specifically provided herein, no
revision of or amendment to this Agreement shall be valid unless in writing and
signed by both Seller and Buyer.
Section 7.13 Paragraph Headings. The headings used in this Agreement are for
identification purposes only and shall not be considered in the interpretation
of any provision hereof.
Section 7.14 Severability of Provisions. If any provision of this Agreement
shall be held to be invalid, the other provisions shall remain enforceable
unless deletion of the invalid matter will defeat the essential purposes of the
parties as expressed in this Agreement.
Section 7.15 No Joint Venture; Multiple Parties. The parties hereby disclaim any
intention to enter into a partnership or joint venture, and no provision of this
Agreement shall be construed as creating or giving rise to a partnership or
joint venture unless agreed to by both parties during the inspection period. If
Seller consists of one or more persons or entities, the liability of each such
person or entity shall be joint and several.
Section 7.16 Assignment. Buyer shall have the right in its sole discretion, to
assign its rights hereunder to any entity; provided, however, that Buyer shall
remain obligated hereunder notwithstanding any such assignment.
Section 7.17 Counterparts. This Agreement may be executed in one or more
counterparts. All counterparts
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so executed shall constitute one contract, binding on all parties, even though
all parties are not signatories to the same counterpart.
Section 7.18 Entire Agreement. This Agreement and the Exhibits which are
attached hereto and by this reference incorporated herein, and all documents in
the nature of such Exhibits which are existing at the time of execution and
identified with specificity in this Agreement, when executed, contain the entire
understanding of the parties and supersede any and all written or oral
understanding.
Section 7.19 Risk of Loss. Seller shall bear all risk of loss relating to the
Property prior to the Closing Date.
Both parties acknowledge that they have reviewed this Real Estate Purchase
Agreement thoroughly and have given their voluntary consent to the provisions.
The Buyer and Seller agree that, at execution, the terms are commercially
reasonable and show the intent of the parties.
The parties hereto have executed this Real Estate Purchase Agreement on the
dates specified below.
SELLER : Dominion Homes, Inc.
/s/ David Borror
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Signature
David Borror, Exec. Vice Pres.
- ------------------------------
Name and Title
BUYER:
Bruce Heywood
- --------------------- Signature
Bruce Heywood, Vice President
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Name and Title
11
NOTARY FOR SELLER
STATE OF Ohio )
)ss
COUNTY OF Franklin)
On this 7th day of November, 2002, personally appeared before me David
Borror, who duly acknowledged to me that they executed the foregoing Land
purchase Agreement as the Executive Vice President (title) of Dominion Homes,
Inc., a Ohio corporation ("Seller").
My commission expires: /s/ Patty G. Crocker
-------------------------------
Notary Public
Residing at Dublin, Ohio
- --------------------------- -------------------------------
[SEAL OF PATTY G. CROCKER]
NOTARY FOR BUYER
STATE OF Ohio )
)ss
COUNTY OF Franklin)
On this 7th day of November, 2002, personally appeared before me Bruce
Heywood, who duly acknowledged to me that they executed the foregoing Land
purchase Agreement as the Vice President (title) of ASC Real Estate
Development LLC, a Utah limited liability company ("Buyer").
My commission expires: /s/ Patty G. Crocker
-------------------------------
Notary Public
Residing at Dublin, Ohio
- --------------------------- -------------------------------
[SEAL OF PATTY G. CROCKER]
12
EXHIBIT A
See attached Plat Map for 2.724-acre tract along Parkcenter Avenue, East of
Bradenton Avenue, City of Dublin, OHIO
13
EXHIBIT A
[GRAPHIC APPEARS HERE]
EXHIBIT B
[GRAPHIC APPEARS HERE]