EX 10.73.1
EXHIBIT A
PURCHASE AGREEMENT
THIS AGREEMENT (hereinafter referred to as
"Agreement") is made and entered into by and between
(hereinafter referred to as "Seller") and WEGMAN FAMILY
LLC, a New York limited liability company with an
office at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
(hereinafter referred to as "Buyer") on the day that
this Agreement once fully executed by both Seller and
Buyer has been delivered to each of them (hereinafter
referred to as the "Full Execution Date").
1. AGREEMENT OF PURCHASE AND SALE. Seller hereby
agrees to sell to Buyer, and Buyer agrees to purchase
from Seller, for the price and on the terms and
conditions sec forth in this Agreement, Seller's
interest in and to certain real estate situated in the
Village of Lakewood, County of Chautauqua, State of New
York containing approximately 16.5 acres located a in
the area depicted on Exhibit 1 which is attached hereto
and incorporated herein by reference (hereinafter
called "the Property"). The exact legal description and
dimensions of the Property are to be determined to the
mutual satisfaction of Buyer and Seller on the basis of
Buyer's site plan and the ALTA owner's title insurance
policy and land survey to be provided in accordance
with the terms hereof. The subdivision of the existing
house; barn and one-half of the orchard will be
completed at the Buyer's expense in the approximate
acreage shown in Exhibit 1.
2. PURCHASE PRICE & ▇▇▇▇▇▇▇ MONEY. The total
purchase price for the Property shall be $525,000.00
payable by wire transfer or certified funds at closing.
Buyer shall issue the sum of $5,000.00 (the
▇▇▇▇▇▇▇ Money) within 5 days of the Full Execution
Date. The ▇▇▇▇▇▇▇ Money shall be held by Ticor Title
Guarantee Company as escrow agent and distributed as
follows:
(a) Should Seller fail or refuse to perform
its obligations hereunder, Buyer shall
have the right of (i)accepting the
return of the ▇▇▇▇▇▇▇ Money and all
accrued interest thereon, and (u) Buyer
may pursue any applicable remedy, to the
extent provided in Section 12 hereof.
(b) Should this transaction be consummated,
the ▇▇▇▇▇▇▇ Money shall be applied
toward the Purchase Price.
Upon the expiration of 120 days from the
signing of this Agreement, if the Purchaser has not
terminated the Agreement, the initial deposit of
$5,000.00 shall become nonrefundable. Thereafter, the
buyer shall have an additional 90 days to complete any
contingencies as set forth hereinafter. in the event
that the Purchaser has not terminated the Agreement
after the additional 90 days, then an additional
$5,000.00 shall be deposited as additional non
refundable deposit, but the total of $10,000.00 shall
be applicable as a credit to the Purchase Price at
closing. The initial deposit of $5,000.00 shall be
released to Seller upon the expiration of the 120 days,
unless the Agreement has been terminated according co
its terms. The further deposit of the additional
$5,000.00 shall be released to Seller upon the
expiration of the additional ninety (90) days.
3. CLOSING CONTINGENCIES. Buyer's performance of
this Agreement is contingent upon satisfaction of the
following:
(a) At the Closing Date, there shall be available at
the Property line without additional cost to Buyer
utility service lines for electricity, gas, sewer and
water from the appropriate public utility
or environmental body having jurisdiction
in sufficient quantities and with
sufficient pressure to permit the
operation of an assisted living facility
with all appurtenances and amenities in
accordance with Buyer's plans
(hereinafter referred to as the
"Facility") with the storm and sanitary
sewers being suitable for Buyer's
intended usage.
(b) Buyer obtaining within 90 days from the full
Execution Date (the "Feasibility Date" a feasibility
study for the construction and operation of the
Facility at the Property site, which is satisfactory to
Buyer in all respects.
(c) The Property being zoned for Buyer's intended use
as an assisted living facility with a11 related
appurtenances and amenities with sufficient parking
spaces to comply with local code requirements. Should
the Property require rezoning, or a conditional or
special use permit, Seller agrees to cooperate with
Buyer in obtaining such rezoning or special or
conditional us permit at Buyer's sole cost ad expense.
Buyer shall, within ninety (90) days of the Feasibility
Date, make application for such rezoning or special or
conditional use permit and shall provide all necessary
and required documentation in support of such
application.
(d) The soil and topographical conditions as presently
exist would allow the construction of the Facility as
contemplated by Buyer in accordance with Buyer's plans
and specifications without unusual expense or
preparation.
(e) Buyer obtaining within twenty (20) days of the
Feasibility Date, at Buyer's sole cost and expense, a
topographic survey of the Property and an ALTA boundary
survey prepared by a certified local surveyor showing
all Property lines, improvements, if any,
encroachments, setback lines, easements, adjoining
roadways and utility installments located therein and
all other matters which are revealed by the title
insurance commitment described in paragraph 4 below.
(f) Buyer obtaining satisfactory financing for Buyer's
intended use and all requisite building, use and site
permits and/or approvals from the local, county and
state municipalities, commissions, departments and
boards, as appropriate, to permit the construction and
operation of the Facility with sufficient on-site
parking spaces to comply with local code requirements.
(g) Buyer obtaining approval from the appropriate
Town, City or County Board or Commission for signage on
the building acceptable to Buyer.
(h) Buyer being assured that satisfactory
ingress/egress access to the Property exists via public
dedicated roadway(s) or non-exclusive easements(s) and
curb cuts.
(i) Seller providing to Buyer satisfactory evidence
that all subdivision, platting or replatting
requirements with respect to the Property have been
completed in compliance with all governing law so as to
permit the constriction and operation of the Facility
in accordance with Buyer's intentions. Buyer agrees to
cooperate with Seller, at Buyer's sole cost and
expense, to accomplish such subdivision, platting or
replatting.
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(j) Buyer obtaining within thirty (30) days of the
Full Execution Date, at Buyer's sole cost and expense,
satisfactory evidence that the Property either: (i)
does not lie within a 100-year flood plain, as
established by the U.S. Army Corps of Engineers, or
within any area subject to flooding; or (ii) that the
cost of obtaining necessary flood plain insurance will
not be, in Buyer's sole discretion, excessive.
(k) Buyer obtaining within sixty (60) days of the
Feasibility Date, at Buyer's sole cost and expense, a
satisfactory environmental report dated after the Full
Execution Date from a qualified environmental engineer
certifying that there is no evidence of any storage
tanks or solid, toxic or hazardous waste or any form of
environmental contamination as defined by local, state
or, federal regulator on the Property and that no
further environmental investigation or remediation is
recommended, necessary or required.
(l) Seller's recording a deed restriction, in such
form as is acceptable to Buyer, on property owned by
Seller within a one (1) mile radius of the Property
prohibiting construction and/or operation of other
assisted living facilities.
Buyer shall have one hundred eighty (180) days
from the Feasibility Date (the "Contingency Period") to
satisfy or waive each of the contingencies set forth in
subparagraphs c d, f, g, h, i, and l, above. If Buyer
is unable to satisfy or waive each of the contingencies
within the Contingency Period and Buyer has made a good
faith effort to satisfy them, Buyer shall have the
right to exercise two (2) consecutive thirty (30) day
extensions of the Contingency Period by notice to
Seller within the Contingency Period, as may have been
extended. If Buyer is unable to satisfy or waive any of
the contingencies within the Contingency Period due to
Seller's failure to perform any obligation or deliver
any documents within the time period called for herein,
the dates set forth herein for the Feasibility Date,
the Contingency Period and the Closing Date shall be
extended one day for each day Seller fails to deliver
or perform as provided for herein. Should Buyer notify
Seller in writing that Buyer is unable to proceed with
this transaction due to the failure of any of the above-
listed contingencies, Buyer may elect to declare this
Agreement null and void.
4. TITLE. Within twenty (20) days of the
Feasibility Date, Seller will deliver to Buyer and the
surveyor, a current abstract of title to the Property
together with legible copies of all instruments
referred to in the abstract, or a commitment for title
insurance in the amount of the purchase price issued by
Ticor Title Guarantee Company or by a nationally
recognized title insurer acceptable co Buyer
(hereinafter called "Ticor Title"), which shall reveal
that Seller has marketable or insurable title to the
Property, without exception or qualification other than
for. (a) the lien of taxes not yet due and payable, (b)
easements, restrictions, reservations, covenants and
conditions, if any, that are of public record and that
will not materially and adversely interface with
Buyer's contemplate use of the Properly and (c) Ticor
Title's standard exceptions for zoning and other public
land use regulations. The cost of the policy and any
mortgage policy shall be the expense of the Buyer. The
Seller shall purchase an updated Abstract of Title.
If such abstract set forth a state of facts,
or is such commitment contains exceptions, other than
those specified above that cannot be removed by Seller
at closing, then Buyer may elect at or prior to closing
to (1) cancel this Agreement, or (2) waive all tide
defects 1 and close this sale in the manner provided by
this Agreement, without an abatement in price, or (3)
request Seller to cure the title defects that Buyer
specifies by written notice to Seller. Seller shall
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have sixty (60) days in which to cure the defects
specified to the satisfaction of Ticor Tide. If Seller
cannot eliminate all the defects specified in the
foregoing time period, then Buyer may elect to close
this transaction in the manner otherwise provided,
without a reduction in price, or to cancel this
Agreement. If Seller does cure the defects specified
within the time period provided, this sale will be
closed within ten (10) days after notice of such cure
to Buyer in the amount otherwise provided in this
Agreement.
5. EXAMINATIONS. From and after the Full Execution
Date and until the Closing Date, Buyer or its agents
shall have the right to ingress and egress over, on and
through the Property for the following purposes: (a)
making soil test borings; (b) making drainage tests;
(e) making surveys of the Property; (d) making
engineering and/or architectural drawings of the
Property; and (e) performing such other investigations,
inspections and tests as Buyer deems necessary. Buyer
agrees to return the Property to a similar condition as
existed prior to the exercise of Buyer's rights
hereunder following such exercise of rights in the
event this transaction does not close.
6. CLOSING. Subject to the provisions of paragraph
4 above, this transaction shall be closed thirty (30)
days after all contingencies have been satisfied or
waived, or such earlier date as the parties may
mutually agree (the "Closing Date"). The closing will
be held ac such time and place as is mutually
agreeable. Buyer and Seller agree that the title
insurer referenced in paragraph 4 above shall be
retained as Escrow Agent to facilitate the closing of
this transaction. As soon as is reasonably possible
after the Full Execution Date, Buyer and Seller shall
open this escrow and deposit therein a fully executed
original of this Agreement as well as such other escrow
instructions and/or documents and showings required and
contemplated under this Agreement. Buyer and Seller
agree that the fees charged, if any, by the Escrow
Agent for its services relative to this closing shall
be paid by the Buyer.
7. SELLER REPRESENTATIONS AND WARRANTIES. Seller
represents and warrants to Buyer, as a material
condition to Buyer's obligations pursuant to this
Agreement, the following as of the Full Execution Date
and as of the Closing Date:
(a) At closing, Seller will convey to Buyer
good, marketable, insurable fee simple
title to the Property free and clear of
all liens and encumbrances except (i)
the lien of real estate taxes not then
due and payable, (ii) easements of
record which do not interfere with
Buyer's proposed development, and (iii)
all applicable zoning and building laws,
ordinances and regulations and any other
requirements of any state or local
governmental authority having
jurisdiction over the real estate.
(b) There are no adverse or other parties
in, possession of the Property or any
part thereof. No party has been granted
any license, lease or other right or
interest relating to the use or
possession of the Property, or any part
thereof, other than easement of record,
which easements shall not interfere with
Buyer's proposed development.
(c) Seller has received no notice of, and
has no other knowledge and information
of, any pending or contemplated
condemnation action with respect to the
Property or any part thereof.
(d) Seller has not received notice of, and
has no other knowledge or information
of' any pending or threatened judicial
or administrative action, or of any
action pending or threatened by adjacent
land owners
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or other persons, any of which would
result in a material change in the
condition of the Property or any part
thereof, or in any way prevent or limit
Buyer's intended use of the Properly, or
any part thereof.
(e) Seller bas the full right, power and authority to
sell and convey the Property co Buyer as provided in
this Agreement and to carry out Seller's obligations
hereunder. 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 Property
fully and completely to Buyer at closing; and the
execution and delivery of this Agreement and the
consummation of the transaction therein contemplated
will not conflict with, or with or without notice of
the passage of time, or both, result in a breach of any
of the terms or provisions of, or constitute a default
under any indenture. mortgage loan agreement or
instrument to which Seller is a party or by which
Seller or the Property is bound.
(f) The Property is in compliance with all federal,
state, local (including local sewer district) laws,
rules, regulations, ordinances, codes and orders
governing, establishing, limiting or otherwise
affecting the discharge or disposal of air pollutants,
water pollutants, process wastewater or solid and
hazardous wastes. There are no pending or threatened
actions or proceedings by the local municipality,
sewage districts, state agencies, the U. S.
Environmental Protection Agency or any other
governmental entity having jurisdiction over the
discharge ar disposal of air pollutants, water
pollutants, process waste water or solid or hazardous
wastes and there is no basis for any such action or
proceeding. Seller has never disposed of any noxious,
toxic, solid or hazardous waste on the Property, nor
does Seller have any notice or knowledge of any solid
or hazardous waste having ever been disposed of on the
Property.
(g) The Property is not located in a 100-
year flood plain as established by the
U. S. Army Corps of Engineers.
8. OCCUPANCY AND LEGAL POSSESSION. It is
understood that the Property is now vacant, and that
legal possession and the right to occupy the Property
shall be given to Buyer on the Closing Date. However,
in the event there are existing tenancies affecting the
Property, Seller acknowledges it is Seller's obligation
to terminate such tenancies prior to closing unless
otherwise specifically agreed in writing by Buyer.
Seller shall provide Buyer with sworn tenant estoppel
letters within thirty (30) days of the Full Execution
Date for any existing tenancies.
9. PRORATIONS. General taxes shall be prorated as
of the Closing Date based on the net general taxes for
the current year, if known, or otherwise substituting
all figures that are elements of the net tax equation
(hereinafter "figures') which are known for the current
year together with unknown figures for the preceding
year, or, if no figures are known for the current year
then on the net general taxes for the preceding year.
The proration of taxes will be final, and not subject
to reproration.
10. SPECIAL ASSESSMENTS. Special assessments, if
any, for work on site actually commenced or levied
prior to the Closing Date shall be paid by Seller. All
other special assessments, including any contemplated
special assessments, shall be paid by Buyer.
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11. CONVEYANCE. Upon payment of the full purchase
price, Seller shall convey its title to the Property to
Buyer by general warranty deed, free and clear of all
liens and encumbrances, excepting municipal and zoning
ordinances, recorded easements for public utilities,
and recorded building and use restrictions and
covenants (none of which adversely affect Buyer's
intended use of the Property), and general taxes levied
in the year of closing. Seller will pay for the
Abstract of Title, update costs and revenue stamps and
Buyer will pay all other fees or taxes required for
this conveyance. .
12. DEFAULT. In the event that Buyer defaults and
fails to carry out this Agreement then Seller shall
have any and all remedies available at law or in equity
In the event this closing does not occur due to a
default by Seller, Buyer shall have as its remedies
hereunder the right to seek specific performance of the
Agreement or its actual damage and expenses incurred in
its good faith efforts to comply with the requirements
hereunder, or any other remedies available at law or in
equity.
13. TIME IS OF THE ESSENCE. Time is of the essence
under this Agreement as to acceptance, possession,
occupancy and the Closing Date; provided, however, if
the time within which any action, consent, approval or
other activity herein contemplated, expires on a
Saturday, Sunday or national holiday, such time period
shall automatically be deemed extended to the first day
after the scheduled termination of such time period
which is not a Saturday, Sunday or national holiday.
14. BROKER COMMISSION. The parties agree that the
total brokerage commission shall be payable to Remax
Advantage/Pyramid Brokerage Inc., at an amount equal to
8% of selling price and shall be the sole
responsibility of the Seller. Broker shall no be
entitled to any commission hereunder unless and until
this transaction closes, nor shall Broker(s) be
entitled to any ▇▇▇▇▇▇▇ money paid hereunder in a
liquidated damages situation.
15. ASSIGNMENT. Buyer may assign this Agreement,
and its right hereunder and upon written acceptance of
the assignment of the assignee and delivery thereof to
the Seller, the same shall operate as a novation of
such assignee as Buyer hereunder.
16. EXECUTION AUTHORITY. Buyer and Seller
represent and warrant to each other that the individual
or individuals signing this Agreement on behalf of
Buyer and Seller are duly authorized officers or
partners and have full written authority to do so and
to bind the respective patties to the provisions
hereof.
17. SURVIVAL. The representations and warranties
made herein shall survive the closing of the
transaction contemplated hereby and the execution and
delivery of the documents contemplated hereunder, and
shall not be construed to be merged therein.
18. ENTIRE AGREEMENT. This Agreement contains the
entire agreement and understanding between the parties
with respect to the transactions contemplated hereby,
supersedes all previous agreements, negotiations,
representation and understandings with respect thereto,
and may not be modified or amended except in writing
executed by the parties to be bound thereby.
19. NOTICES. All notices required or permitted to
be given hereunder shall be in writing, delivered in
person, by facsimile transmission, or mailed postage or
fees prepaid by certified mail, or by express mail
service, return receipt requested, addressed to the
mailing addresses and facsimile numbers given herein
and shall be effective upon the date listed on the
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return receipt, of the facsimile confirmation report or
of the hand delivery. Notices shall be directed as
follows:
to Buyer: with a copy to:
Wegman Family LLC Phillips, Lytle,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Attention:
▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
(716) 225,7370 (Telephone) (▇▇▇) ▇▇▇-▇▇▇▇
(Telephone)
(▇▇▇) ▇▇▇-▇▇▇▇ (Facsimile) (▇▇▇) ▇▇▇-▇▇▇▇
(Facsimile)
to Seller: with a copy to:
The parties shall be responsible for
notifying each other of any change of address or
facsimile number.
20. CONSTRUCTION. The Agreement shall be governed
by, interpreted, construed and enforced in accordance
with the laws of the State of New York.
21. PERSONS BOUND. This Agreement shall bind and
inure to the benefit of the parties hereto and their
respective successors and assigns.
22. ACCEPTANCE. This Agreement shall be open for
acceptance by Seller until 4:00 PM. Prevailing Eastern
Standard Time as of December 12, 1996, at which time
this Agreement shall expire and become null and void.
23. TIMBER. Seller shall have the right to remove
fifteen (15) trees from the Property, The trees shall
be removed within 180 days after the closing date, Any
area that is damaged shall be repaired, graded and
reseeded.
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IN WITNESS WHEREOF, the parties have caused
this Agreement to be executed as of the date
written below their respective signatures.
WEGMAN FAMILY LLC
(Buyer)
Date: 12/5/96
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Manager
Date: 12/12/96
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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