OPTION AGREEMENT TO PURCHASE
REAL PROPERTY AND RELATED ASSETS
--------------------------------
DATE: June 9, 2003 (the "Option Date")
----
OPTIONOR: DUNELLEN, LLC, a Rhode Island limited liability company,
-------- or its successor(s) in interest
000 Xxxxxx Xxxx Xxxx Xxxxxxxxxx, Xxxxx Xxxxxx 00000
Telephone: (000) 000-0000 Facsimile: (000) 000-0000
WITH A COPY TO: XXXXXXXX, XXXXX & XXXXXX LLP
0000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxx Xxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxxx, Esquire
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
OPTIONEE: GLOBAL COMPANIES, LLC, a Delaware limited liability company,
-------- 000 Xxxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxxxx Xxxxxxxx and Xxxxxx X. Faneuil, Esquire
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
WITH A COPY TO: ROPES & XXXX LLP
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxx X. Xxxxx, Esquire
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
RECITALS:
--------
(A) Optionee desires to acquire from Optionor an option to purchase certain
improved real property owned by Optionor commonly known as 000 Xxxxxx Xxxx,
Xxxx Xxxxxxxxxx, Xxxxxx of Providence, State of Rhode Island, containing
approximately ten (10) acres, more or less, of land (the "Terminal
Facility"), as well as the Wilkesbarre Pier and vessel berth (collectively,
the "Pier") and Optionor's non-exclusive interest in and/or right to use
the petroleum pipelines connecting the Terminal Facility with the Pier (the
"Pipelines") together with all improvements, rights, properties and assets
associated with the Terminal Facility, the Pier and the Pipelines, as more
particularly described in Exhibit A attached hereto (collectively, the
"Property").
(B) Optionor desires to grant to Optionee the option to purchase the Property
in accordance with the terms and conditions of this Option Agreement.
AGREEMENT:
---------
NOW, THEREFORE, FOR VALUABLE CONSIDERATION, the parties hereby agree as
follows:
1. GRANT OF OPTION; OPTION PAYMENTS. In consideration of the entry into
that certain Amended and Restated Lease Agreement by Optionee of even date
herewith (the "Lease"), Optionor hereby grants to Optionee the exclusive option
(the "Option") to purchase the Property on the terms and conditions set forth in
this Option Agreement. If Optionee fails to exercise this Option on or before
the Option Exercise Date, or if prior thereto Optionee gives written notice to
Optionor of cancellation of this Option Agreement, this Option shall be
terminated, and the parties shall have no further rights or obligations under
this Option Agreement.
2. PURCHASE PRICE. The purchase price (the "Purchase Price") for the
Property shall be the greater of (i)the appraised fair market value of the
Property determined as provided in Section 4 (the "Appraised Value"); and (ii)
the sum of (x) the audited book value of the Property as set forth on the books
of the Optionor for the December 31st next preceding the date of the exercise of
the Option determined in accordance with generally accepted accounting
principles consistently applied by the Optionor since January 1, 2000 plus (y)
the amount of all capital expenses incurred by the Optionor with respect to the
Property since the December 31st next preceding the date of exercise of the
Option, less the depreciation attributable to such capital expenses plus (z) the
amount of federal and state income taxes which would be incurred (or would have
been incurred) by Optionor calculated using the highest federal and state income
tax rates applicable to a "C" corporation (as defined under the Internal Revenue
Code of 1986 as amended [the "Code"]) on the gain resulting from the sale of the
Property at said book value as aforesaid (the sum of the amounts described in
clauses (x), (y) and (z) is the "Adjusted Book Value").
3. EXERCISE OF OPTION. This Option may be exercised by Optionee by
delivering to Optionor written notice of exercise of the Option (the
"Preliminary Exercise Notice") by not later than one year prior to the date of
lawful termination of the Lease (the "Option Exercise Date"). Within ten
business days of receiving the Preliminary Exercise Notice, the Optionor shall
provide the Optionee with written notice of the Adjusted Book Value, including a
reasonably detailed computation thereof. The Optionor's determination of
Adjusted Book Value shall be conclusive and not subject to challenge. Within ten
business days of receiving the notice of Adjusted Book Value, the Optionee shall
elect, by written notice to Optionor, to either (a) proceed with the
determination of the Appraised Value pursuant to Section 4 or (b) rescind the
Preliminary Exercise Notice (provided that Optionee's failure to respond within
such ten (10) day period shall be deemed to be a rescission of the Preliminary
Exercise Notice). Upon any such rescission of the Preliminary Exercise Notice,
the Optionee shall retain the right to exercise the Option at a later date in
accordance with this Agreement, provided that the Optionee may not deliver more
than one Preliminary Exercise Notice in any calendar year.
4. APPRAISED VALUE. Within ten business days of receiving Optionee's
written notice to proceed with the determination of the Appraised Value, the
Optionor and Optionee shall agree upon an independent outside appraiser (MAI
designation), who shall be experienced in the appraisal of deep water petroleum
storage terminals in the northeastern United States (the "Required
Credentials"), who shall establish the Appraised Value, based on the use of the
Property as a deep water petroleum storage terminal in the Providence, Rhode
Island area and assuming an arms-length transaction between a willing buyer and
a willing seller. In the event Optionor and Optionee are unable to agree upon
one independent outside appraiser within such ten business day period, then
Optionor and Optionee shall each choose an independent outside appraiser that
has the Required Credentials and the two independent outside appraisers so
chosen shall appoint a third appraiser that also has the Required Credentials.
The three independent appraisers shall thereupon jointly determine the Appraised
Value. If the three appraisers are unable to agree, then the Appraised Value
shall be the average of the Appraised Value determination of the two appraisers
whose determinations are closest to one another. Upon Optionee's request, the
appraiser(s) shall determine the amount of the Environmental Contingency Reserve
(as defined in Section 5) and shall reduce the Appraised Value by the amount of
the Environmental Contingency Reserve. Optionor and Optionee agree to be bound
by the decision of said appraiser(s) with respect to the Appraised Value and the
Environmental Contingency Reserve. For purposes of determining the Appraised
Value, the appraisers shall proceed on the basis that the Property is not
subject to the Lease (or any other lease). Within ten business days of receiving
the appraiser's determination of the Appraised Value pursuant to this Section 4,
the Optionee shall elect, by written notice to Optionor, to either (a) proceed
with feasibility studies and inspections pursuant to Section 5 or (b) rescind
the Preliminary Exercise Notice (provided that Optionee's failure to respond
within such ten day period shall be deemed to be a rescission of the Preliminary
Exercise Notice). Upon any such rescission of the Preliminary Exercise Notice,
the Optionee shall retain the right to exercise the option at a later date in
accordance with this Agreement, provided that the Optionee may not deliver more
than one Preliminary Exercise Notice in any calendar year. The Optionor and the
Optionee shall each be responsible for one-half of the aggregate expenses
related to the engagement of such appraiser(s), but if Optionee does not
exercise the Option then Optionee shall reimburse Optionor for its one-half
share of the aggregate appraisal expenses.
5. FEASIBILITY STUDY AND INSPECTION. During the one hundred and eighty day
period commencing upon delivery of Optionee's Notice to proceed with feasibility
studies and inspections pursuant to this Section 5 (the "Feasibility Period"),
Optionee shall have the right to conduct physical inspections and studies of the
Property during normal business hours, including, without limitation,
environmental site assessments, engineering studies, title and zoning review and
survey work. During the Feasibility Period, (i) Optionee or its designated
agents may enter upon the Property for purposes of such inspection which may be
deemed necessary by Optionee, (ii) Optionee may engage an accountant to audit
Optionor's books and records for the purpose of verifying the Adjusted Book
Value and (iii) Optionee may provide the appraiser(s) with environmental due
diligence information regarding the Property and the appraiser(s) shall, within
ten business days of the receipt of such information, determine the amount of an
appropriate discount to the Appraised Value (the "Environmental Contingency
Reserve"), to reflect the risk adjusted anticipated cost of environmental
claims, demands, causes of action, judgments, damages, costs and expenses that
relate to hazardous materials on the Property and other environmental matters
that arose prior to the Closing Date and which would not otherwise be the
Optionee's obligation under the Lease. If Optionee determines that the Property
is not suitable for any reason for Optionee's intended use or purpose, or is not
in satisfactory condition in Optionee's sole discretion, then Optionee may, by
written notice to Optionor, on or before the expiration of the Feasibility
Period, rescind the Preliminary Exercise Notice. Upon any such rescission of the
Preliminary Exercise Notice, the Optionee shall retain the right to exercise the
Option at a later date in accordance with this Agreement, provided, however,
that the Optionee may not deliver more than one Preliminary Exercise Notice in
any calendar year. If the written notice described in the preceding sentence is
not given to Optionor prior to the expiration of the Feasibility Period, or
should Optionee indicate its written acceptance of the Property prior to the end
of such period, then the conditions of this Section 5 shall be deemed to have
been fully satisfied, and Optionee may not thereafter rescind the Preliminary
Exercise Notice. All inspections, studies and audits shall be at Optionee's sole
expense. If the Optionee elects to proceed with the Closing, then the notice of
such election shall be accompanied by a deposit in the amount of Three Hundred
Thousand Dollars ($300,000.00) (including accrued interest thereon, the
"Deposit"). The Deposit shall be held in escrow by a nationally recognized title
insurance company in an interest bearing account. Such notice shall also
designate a closing date (the "Closing Date") which shall be not less than
ninety days and no more than one hundred and twenty days following the
expiration of the Feasibility Period (subject to extension pursuant to Section
31).
6. NON-EXERCISE OF OPTION. If Optionee does not exercise this Option on or
before the Option Exercise Date (i.e., the Option Exercise Date is the latest
date upon which the Optionee may rescind a Preliminary Exercise Notice), or
fails to pay the Purchase Price at the Closing, all rights and obligations of
Optionor and Optionee under this Option Agreement shall cease and terminate and
be of no further force and effect, and this Option Agreement shall automatically
be canceled.
7. ACQUISITION DOCUMENTS. Optionor hereby agrees to deliver to Optionee the
following documents, each in form and substance satisfactory to Optionee, at or
before the Closing:
(a) A Bargain and Sale deed to the Terminal Facility and Pier, and an
assignment of Optionor's rights to the Pipelines (together with any
required consent to such assignment), subject only to (i) the liens
and encumbrances set forth in Exhibit A, (ii) taxes assessed as of the
December 31st next preceding the Closing, and (iii) tank leases
between the Optionor and third parties, which have been entered into
by Optionor in accordance with Section 29 of the Lease (the "Third
Party Tank Leases");
(b) A Xxxx of Sale conveying title, free and clear of all liens, to all
personal property assets that comprise the Property, including without
limitation, (i) all furniture, fixtures, equipment and all other
personal property owned by Optionor and located at the Property or
owned by Optionor and used in connection therewith including, without
limitation, above ground bulk or other storage tanks, loading racks
and utility fixtures; (ii) all licenses and permits, or other
contracts, warranties or guaranties, affecting the Property, including
all wastewater and storm drainage capacity reservations and
agreements; (iii) all zoning permits or classifications, if any; (iv)
all plans, permits, licenses and other authorizations and agreements
relating to the use or operation of the Property; and (v) all books
and records relating to the Property and that are in the custody or
control of the Optionor.
(c) All releases and other documents necessary in order to discharge the
withholding tax lien, if applicable, pursuant to R.I. Gen.
Lawsss.44-30-71.3;
(d) Such other documentation as may be reasonably required by Optionee's
title insurer, provided such insurer is authorized to do business in
Rhode Island;
(e) Optionor's certification that all representations and warranties
contained herein are true and correct as of the Closing Date;
(f) Optionor agrees to deliver to Optionee at the date of Closing a
Non-Foreign Certification, whereby Optionor represents to Optionee and
acknowledges that FIRPTA withholding is not required; or proof that
all required withholding has been made.
(g) Optionor agrees to deliver to Optionee at the date of Closing
Optionor's Residency Affidavit, whereby Optionor represents to
Optionee and acknowledges that withholding under Rhode Island General
Laws ss.44-30-71.3 is not required; or proof that all required
withholding has been made.
(h) If due to no fault of Optionor, Optionor shall be unable to give title
or to make conveyance, or to deliver possession of the Terminal
Facility, Pier and the rights to the Pipelines, all as herein
stipulated, or if on the date of Closing the Property does not conform
with the provisions hereof, then Optionor shall use good faith and
reasonable efforts to remove any defects in title, or to deliver
possession as provided herein, or to make the Terminal Facility, Pier
and the rights to the Pipelines conform to the provisions hereof (to
the extent reasonably within Optionor's control), as the case may be,
and the date of Closing shall automatically be extended for a period
of up to ninety (90) days (the "Extended Time"). "Good faith and
reasonable efforts to remove any defects in title" shall include,
without limitation, the discharge of all voluntary liens and
encumbrances and the expenditure of not less than $250,000.00 for the
cure of all other title defects which are the Optionor's
responsibility. If at the expiration of the Extended Time, Optionor
shall have failed so to remove any defects in title, deliver
possession, or make the Property conform, as the case may be, all as
herein agreed, after using good faith and reasonable efforts to do so,
then upon return of the Deposit by Optionor all other obligations of
all parties hereto shall cease and this Option Agreement shall be null
and void without recourse to the parties hereto. In the event that the
defect in title is due to a voluntary lien or mortgage by Optionor, or
as a result of any encumbrance arising after the date hereof without
Optionee's consent (other than the Third Party Tank Leases), Optionee
shall have the right to specific performance of this Agreement
(including the right to apply proceeds to discharge the lien, or if
there are not sufficient proceeds, to require Optionor to provide
title free of such encumbrance, other than permitted Third Party Tank
Leases) as its sole remedy at law or in equity.
8. OPTIONEE DELIVERIES. At the Closing Optionee shall deliver in good local
funds the Purchase Price less the sum of (i) the Deposit plus (ii) the aggregate
amount of all sums expended by the Optionee pursuant to the Pier Improvement
Letter Agreement attached as Exhibit B hereto, to the extent that the amounts
expended by Optionee thereto have been capitalized by Optionor, less Optionor's
depreciation with respect to such amounts. The amount described in clauses (i)
and (ii) of the immediately preceding sentence shall be deemed to be a credit
against the Purchase Price.
9. CLOSING; ADJUSTMENTS. The Closing shall take place on the Closing Date
(subject to an extension as provided in Subsection 7(h) and/or Section 31) at
the offices of Xxxxxxxx, Xxxxx & Xxxxxx, 0000 Xxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxx Xxxxxx at 10:00 A.M. local time (or such other date, time or place as the
parties may mutually agree). At the Closing, the costs of documentary stamps,
recording fees and the pro ration of real property taxes shall be in conformance
with the then customs in East Providence, Rhode Island. All rents and charges
relating to the operation of the Property shall be adjusted as of the Closing
Date. In the absence of actual bills, the parties shall estimate expenses with
Optionor paying those expenses required by the Lease relating to the period on
or prior to the Closing and Optionee paying expenses related to all periods
after the Closing Date.
10. OPTIONOR'S REPRESENTATIONS AND WARRANTIES. Optionor makes the following
representations and warranties, each of which are agreed to constitute a
material part of the consideration hereunder, each of which Optionee is relying
upon in entering into this transaction, each of which are true and accurate as
of the Option Date and will be true and accurate as of the Closing, and each of
which shall survive the Closing:
(a) Authority. Optionor has full power and authority to enter into and to
perform its obligations under this Option Agreement.
(b) Enforceable Nature of Agreement. This Option Agreement and each of the
documents and agreements to be delivered by Optionor at the Closing,
constitutes a legal, valid and binding obligation of Optionor,
enforceable against Optionor in accordance with its terms.
(c) Organizational Status. See Subsections (a) and (b) above.
(d) Entity Action. All action on the part of Optionor, or its successor(s)
in interest, as applicable, which is required for the execution,
delivery and performance by Optionor of this Option Agreement and each
of the documents and agreements to be delivered by Optionor at the
Closing has been or will be, prior to Closing, duly and effectively
taken.
(e) Violations; Consents; Defaults. To the best of Optionor's knowledge,
neither the execution of this Option Agreement nor the performance
hereof by Optionor will result in any breach or violation of the terms
of any law, rule, ordinance, or regulation or of any decree, judgment
or order to which Optionor is a party, now in effect from any court or
governmental body. There are no consents, waivers, authorizations or
approvals from any third party necessary to be obtained by Optionor in
order to carry out the transactions contemplated by this Option
Agreement. The execution and delivery of this Option Agreement and
performance hereof by Optionor will not conflict with, or result in a
breach of, any of the terms, conditions or provisions of, or
constitute a default (or constitute an event which, with the giving of
notice or the passage of time, or both, would constitute a default)
under or result in the creation of any new, or the acceleration of any
existing, lien, charge, or encumbrance upon the Property or under any
indenture, mortgage, lease, agreement, letter of intent or other
instrument to which Optionor is a party or by which Optionor or any of
its assets may be bound.
(f) Litigation. Optionor is not a party to any pending or threatened in
writing action, suit, proceeding or investigation, at law or in equity
or otherwise, in, for or by any court or governmental board,
commission, agency, department or officer arising from or relating to
the Terminal Facility, Pier or the Pipelines or to the past or present
operations and activities of Optionor upon or relating to the
Property. Capital Terminal Company, an affiliate of Optionor, is a
party to those certain proceedings entitled Getty Petroleum Marketing,
Inc., et al v. Capital Terminal Company, C.A. 00-381ML (USDC-DRI).
Optionor may become a substituted or additional party with respect to
such litigation. Optionor is not subject to, to the best of Optionor's
knowledge, any written notice of violation or order which would
materially and adversely effect the Property except for those certain
remediation activities being undertaken with respect to the area of
former Tank 115, so-called, as described in the Site Investigation
Report filed by Capital Terminal Company with the Rhode Island
Department of Environmental Management ("RIDEM") and the September,
2002 disclosure to RIDEM by Capital Terminal Company of gasoline
discovered on the southerly end of the Terminal Facility
(collectively, the "Current Environmental Matters"). Optionor is not
aware of any litigation, legal action or legal proceeding which would
materially and adversely affect the Property.
(g) Governmental Restrictions. Optionor has not received, nor is aware of,
any notifications, restrictions, or stipulations from the United
States of America, the State of Rhode Island, the County of
Providence, the City of East Providence or any other governmental
authority requiring any work to be done on the Property or threatening
the use of the Property. There are no pending or threatened in writing
condemnation proceedings affecting any portion of the Property.
(h) Title and Access. To the best of Optionor's knowledge, (i) except as
outlined and shaded in the area designated on Exhibit C as "Shaded
Area", fee simple title to the Terminal Facility is currently vested
in Optionor and (ii) the propert description attached as Exhibit A
includes all fee interests and appurtenant rights applicable to the
Optionor's conduct of business at the Property. Title to the Pier and
the rights to the Pipelines are vested in Optionor, subject to the
rights of others to use the Pier and the rights of others to the
Pipelines.
(i) Leases and Agreements. There are no unrecorded leases, arrangements,
agreements, understandings, options, contracts, letters of intent or
rights of first refusal affecting or relating to the Terminal Facility
in any way, other than the Third Party Tank Leases entered into after
the date hereof. With the exception of the Lease, there are no other
written or oral leases or rights of occupancy in force relating to the
Terminal Facility, and no person has any right of possession or
occupancy in the Terminal Facility or any part thereof, except as for
easements and agreements of record as of the date hereof.
(j) Encroachments; Prescriptive Rights. To the best of Optionor's
knowledge, no improvements of any third person encroach upon the
Terminal Facility. To the best of Optionor's knowledge, no person has
any unrecorded right, title or interest in the Terminal Facility,
whether by right of adverse possession, prescriptive easement or
otherwise.
(k) Taxes. Except for taxes in the ordinary course, Optionor does not have
any liability for any taxes, or any interest or penalty in respect
thereof, of any nature that may be assessed against Optionee or that
are or may become a lien against the Terminal Facility, Pier and the
Pipelines.
(l) Accuracy of Information. To the best of Optionor's knowledge, the
information furnished by Optionor to Optionee in accordance with the
provisions of this Option Agreement is true, complete and accurate in
all material respects.
Notwithstanding anything contained herein to the contrary "to the best of
Optionor's knowledge" shall mean the actual present conscious knowledge of its
President, without any independent inquiry.
11. ENVIRONMENTAL MATTERS. Optionor makes no representations and warranties
to Optionee regarding environmental matters.
12. ADDITIONAL INFORMATION. Upon Optionee's written request (which may be
made from time to time), Optionor shall promptly provide Optionee with (i) a
reasonably detailed description of environmental matters that could reasonably
be expected to have a material adverse effect upon the Property and/or the
business conducted therein (a "Material Adverse Effect"), including, without
limitation, a reasonably detailed description of the then current status of the
Current Environmental Matters (as defined in Section 10(f)), (ii) copies of
environmental site assessments and other environmental studies that relate to
the Property and that are in the Optionor's possession or control and (iii) a
reasonably detailed description of any pending or threatened litigation that
could reasonably be expected to have a Material Adverse Effect. In addition, not
later than thirty (30) days following receipt of Optionee's written request,
Optionor shall provide Optionee with written notice of the Adjusted Book Value
as of December 31st of the immediately preceding year, which notice shall
include a reasonably detailed computation of such Adjusted Book Value, such
request to be made not more than once in any calendar year.
13. LIMITATION ON ASSIGNMENT; BINDING EFFECT. Optionee may assign its
rights under this Agreement to an entity controlled by or under common control
with Optionee, by providing Optionor with at least ten (10) business days prior
notice of such assignment. Any other assignment of this Agreement by Optionee
shall require Optionor's prior consent, which consent may be withheld in the
sole discretion of Optionor. This Option Agreement is binding upon and shall
inure to the benefit of the parties, and their respective successors and
assigns.
14. TIME OF ESSENCE. Time is of the essence with respect to this Option
Agreement.
15. NOTICES AND DEMANDS. All notices, requests, demands and other
communications under this Option Agreement shall be in writing and shall be
deemed to have been delivered on the date of delivery if delivered personally or
by overnight delivery service to the party to whom notice is to be given, on the
date sent if sent by facsimile, or two (2) days after the date of deposit of
such notice in the United States mail, first class, certified, return receipt
requested, postage prepaid, and properly addressed to the parties at the
addresses set forth on the first page of this Option Agreement or at such other
address as a party may designate in writing. A copy of any notice shall also be
given to Optionee's title insurer.
16. TIME PERIODS. Except as expressly provided for herein, the time for
performance of any obligation under this Option Agreement shall be deemed to
expire at 5:00 p.m. (local time in Providence, Rhode Island) on the last day of
the applicable time period provided for herein. If the time for performance of
any obligation under this Option Agreement expires on a Saturday, Sunday or
legal holiday, the time for performance shall be extended to the next succeeding
day which is not a Saturday, Sunday or legal holiday.
17. RIGHT OF SPECIFIC PERFORMANCE REMEDIES. Optionor agrees that Optionee
shall have the right of specific performance to enforce the terms and provisions
of this Option Agreement.
18. ATTORNEYS' FEES. If any action is brought by either party with respect
to its rights under this Option Agreement, the prevailing party shall be
entitled to reasonable attorneys' fees and court costs as determined by the
court.
19. GOVERNING LAW. This Option Agreement shall be governed by, and
construed in accordance with, the laws of the State of Rhode Island.
20. FURTHER ASSURANCES. Optionor and Optionee agree to undertake such other
actions and execute and deliver such other documents as shall be reasonably
necessary or appropriate to carry out the full intent and purpose of this Option
Agreement.
21. WAIVER. No waiver of any of the provisions of this Option Agreement
shall be deemed or shall constitute a waiver of any other provisions, whether or
not similar, nor shall any waiver be a continuing waiver. No waiver shall be
binding unless executed in writing by the party making the waiver.
22. COMPLETE AGREEMENT. This Option Agreement, together with Exhibits A, B,
C, and D attached hereto, constitutes the entire agreement between the parties
pertaining to the subject matter contained in this Option Agreement. All prior
and contemporaneous agreements, representations and understandings, written and
oral, are superseded by and merged into this Option Agreement. No supplement,
modification or amendment of this Option Agreement shall be binding unless in
writing and executed by Optionor and Optionee.
23. HEADINGS. The headings of this Option Agreement are for purposes of
reference only and shall not limit or define the meaning of any of the
provisions of this Option Agreement.
24. BROKERS. Each party represents and warrants to the other that it has
not dealt with any broker or agent in connection with this transaction. Optionee
and Optionor each shall indemnify and hold the other harmless for, from and
against any and all brokerage commissions, finder's fees or related costs and
expenses which may be incurred in connection with this transaction by reason of
their respective actions. This indemnity shall survive the Closing or the
cancellation of this Option Agreement.
25. MEMORANDUM OF AGREEMENT. Immediately following execution hereof by
Optionor and Optionee, Optionor agrees to execute a short-form Memorandum of
Option Agreement, in the form of Exhibit D attached hereto, and to cause the
same to be recorded in the real property records of East Providence, Rhode
Island. Provided that as a condition precedent, Optionee has executed a release
of recorded Memorandum of Option Agreement on terms satisfactory to Optionor to
be held by a title insurer or other independent party, which shall be recorded
upon termination of this Agreement.
26. RIGHT TO LIQUIDATED DAMAGES. If Optionee shall fail to fulfill
Optionee's obligations hereunder, the Deposit (and all interest accrued thereon)
shall be retained by Optionor as liquidated damages as Optionor's sole and
exclusive remedy at law or in equity against Optionee for such default (other
than a claim for reimbursement of appraisal expenses pursuant to Section 4,
which appraisal reimbursement shall be in addition to the liquidated damages
provided for herein). Optionee's default under this Agreement shall not
constitute a default under the Lease between Optionor and Optionee. The parties
have agreed that Optionor's actual damages are not readily ascertainable and
that the retention of the Deposit, together with the interest accrued thereon,
is a reasonable estimate of Optionor's actual damages (except with respect to
such appraisal expenses).
27. COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by different parties to this Agreement on separate
counterparts, each of which, when so executed, shall be deemed an original, but
all such counterparts shall constitute one and the same Agreement. Any signature
delivered by a party by facsimile shall be deemed to be an original signature
hereto.
28. AS IS. NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY,
EXPRESSED OR IMPLIED, EXCEPT AS SPECIFICALLY SET FORTH HEREIN, THE PROPERTY IS
BEING CONVEYED IN ITS "AS IS" CONDITION WITHOUT ANY REPRESENTATIONS OR WARRANTY,
EXPRESS OR IMPLIED. EXCEPT WITH RESPECT TO PROVISIONS OF THIS AGREEMENT THAT BY
THEIR EXPRESS TERMS ARE TO SURVIVE THE CLOSING, THE ACCEPTANCE OF A DEED TO THE
TERMINAL FACILITY AND THE PIER, AND ASSIGNMENT OF RIGHTS TO THE PIPELINES, BY
OPTIONEE SHALL CONSTITUTE FULL PERFORMANCE OF ALL OBLIGATIONS OF OPTIONOR.
29. WETLANDS DISCLOSURE. All or part of the Property has been or may have
been previously determined to be a coastal wetland, bog, freshwater wetland,
pond, marsh, river bank or swamp, as these terms are defined in Chapter 2-1 of
the General Laws of Rhode Island, as amended. Optionor has received no written
notice that all or a part of the Property has been determined to be a wetland.
30. ZONING DISCLOSURE. The following disclosure is provided pursuant to
R.I. Gen. Laws 45-24.3-23: "Buyers of real estate in the State of Rhode Island
are legally obligated to comply with all local real estate ordinances; including
but not limited to ordinances on the number of unrelated persons who may legally
reside in a dwelling, as well as ordinances on the number of dwelling units
permitted under the local zoning ordinances."
31. OPTIONOR'S INTENTION TO ENGAGE IN A TAX-DEFERRED EXCHANGE. Optionee has
been advised that Optionor may qualify this transaction as a tax-deferred
exchange under Section 1031 of the Code. Optionee shall cooperate with Optionor
in implementing such exchange, including, but not limited to, Optionee's
consenting to Optionor's assignment of this Agreement to a so-called
"Intermediary" in the form of an Exchange Agreement and the execution of any
other document that Optionor or Intermediary shall reasonably require; provided,
however, that Optionee incurs no additional liability or expense as a result of
executing such documents. In such event, at Optionor's sole discretion, the
Closing may be delayed for a period not to exceed twelve (12) months to enable
Optionor to designate an acceptable Section 1031 exchange property.
[Signatures appear on the next page.]
EXECUTED AS A SEALED INSTRUMENT AS OF THE DATE FIRST SET FORTH ABOVE.
OPTIONEE
--------
GLOBAL COMPANIES, LLC, a Delaware limited liability company
By: /s/Xxxxxxx X. Xxxxxxxx
----------------------
Xxxxxxx X. Xxxxxxxx, Senior Vice President
OPTIONOR
--------
DUNELLEN, LLC, a
Rhode Island limited liability company
By: Capital Properties, Inc., its sole member
By: /s/ Xxxxxx X. Xxxxxxxxxxx
-------------------------
Xxxxxx X.Xxxxxxxxxxx, President
STATE OF MASSACHUSETTS
COUNTY OF MIDDLESEX
On this 9th day of June, 2003, personally appeared Xxxxxxx X. Xxxxxxxx, to
me known and known by me to be the Senior Vice President of GLOBAL COMPANIES,
LLC, the party executing the foregoing instrument, and acknowledged said
instrument by him executed in his said capacity to be his free act and deed in
such capacity and the free act and deed of said GLOBAL COMPANIES, LLC.
/s/ Xxxx Xxxxx
--------------
Notary Public
Print Name: Xxxx Xxxxx
My commission expires: 0/00/00
XXXXX XX XXXXX XXXXXX
XXXXXX XX XXXXXXXXXX
Xx this 9th day of June, 2003, personally appeared Xxxxxx X. Xxxxxxxxxxx,
to me known and known by me to be the President of CAPITAL PROPERTIES, INC, the
sole member of DUNELLEN, LLC, the party executing the foregoing instrument, and
acknowledged said instrument by him executed in his said capacity to be his free
act and deed in such capacity and the free act and deed of said DUNELLEN, LLC.
/s/ Xxxxxxx X. Xxxxxx
---------------------
Notary Public
Print Name: Xxxxxxx X. Xxxxxx
My commission expires: June 11,2005
Exhibit A Page 1 of 4
---------
RECOMMENDED DESCRIPTIONS
------------------------
OF PROPERTY
-----------
TERMINAL FACILITY
-----------------
That certain tract or parcel of land situated at the northwesterly
intersection of Dexter Road and Dunellen Road in the City of East Providence,
County of Providence, State of Rhode Island and is bounded and described as
follows:
Beginning at the southeasterly corner of the herein described parcel, said
corner being the intersection of the northwesterly street line of Dexter Road
and the northeasterly street line of Dunellen Road;
thence running northwesterly along said northeasterly street line of
Dunellen Road for a distance of five hundred sixteen and nineteen hundredths
feet (516.19') to property now or formerly belonging to State of Rhode Island
(formerly Providence and Worcester Railroad Company) for a corner, said corner
being located forty-nine and fifty hundredths feet (49.50') southeasterly from
and radial to the monumented baseline of former Railroad property;
thence turning an interior angle of 79(degree)-17'-14" to the chord of the
following described curve and running generally northeasterly bounding
northwesterly by said State property curving to the left along the arc of a
curve having a radius of one thousand four hundred seventy-two and seven
hundredths feet (1,472.07'), a central angle of 10(degree)-11'-47", and a chord
length of two hundred sixty-one and sixty-three hundredths feet (261.63') for an
arc distance two hundred sixty-one and ninety-seven hundredths feet (261.97') to
an angle;
thence turning an interior angle of 170(degree)-51'-32" from the chord of
the last described curve and running northeasterly bounding northwesterly by
said State property for a distance one hundred eight and ninety hundredths feet
(108.90') to an angle, said angle being located eighty and no hundredths feet
(80.00') southeasterly from and perpendicular to a reinforcing rod located at
Station 83+20.32 on the monumented baseline of former Railroad property;
Exhibit A Page 2 of 4
---------
thence turning an interior angle of 198(degree)-16'-04" and running
northeasterly bounding northwesterly by said State property for a distance of
six hundred four fifty-six hundredths feet (604.56') to property now or formerly
belonging to Xxxxx X. Xxxxx for a corner;
thence turning an interior angle of 91(degree)-33'-20" and running
southeasterly bounding northeasterly by said Xxxxx property for a distance of
four hundred sixty-seven and seven hundredths feet (467.07') to the aforesaid
northwesterly street line of Dexter Road for a corner;
thence turning an interior angle of 82(degree)-45'-20" and running
southwesterly along said northwesterly street line of Dexter Road for a distance
of two hundred ninety-one and twelve hundredths feet (291.12') to a granite
bound of an angle;
thence turning an interior angle of 185(degree)-53'-10" and running
southwesterly along said northwesterly street line of Dexter Road for a distance
of six hundred seventy-five and no hundredths feet (675.00') to the point and
place of beginning;
The last described line forming an interior angle of 91(degree)-23'-20"
with the first described line.
Said parcel contains 10.149 acres.
Said parcel is conveyed with and subject to all easements and rights of way
as recorded in the Land Evidence Records of the City of East Providence in Deed
Book 277 at Page 861, Deed Book 492 at Page 177, Deed Book 650 at Page 321, Deed
Book 687 at Page 35, Deed Book 1536 at Page 198, and Deed Book 1536 at Page 203.
Also granting all right, title, and interest of this Grantor in said
Dunellen Road.
EXHIBIT A Page 3 of 4
---------
PIER
----
Beginning at a point at the southeasterly corner of the parcel herein
described, said beginning point being located as follows, beginning at a point
in the monumented base line of the line of railroad formerly known as the
Providence, Xxxxxx and Bristol Branch of the Penn Central Company at station 721
+ 70.13; thence running westerly on a radial line one hundred twenty five and
73/100 (125.73) feet to a drill hole in the concrete base of a fence and land
belonging now or formerly to Humble; thence an angle from the said radial line
south to east of 171(degree)46'42" and running westerly three hundred seventy
nine and 79/100 (379.79) feet to a fence and this point, being the said point of
beginning; thence continuing on a straight line westerly eight hundred ninety
seven and 52/100 (897.52) feet to the Harbor Line of the Seekonk River; thence
turning and running northwesterly on said Harbor Line a distance of ninety nine
and 43/100 (99.43) feet to an angle; thence turning and running northerly along
said Harbor Line a distance of about two hundred one (201) feet to a corner;
thence turning and running easterly (this course being two hundred ninety four
and 45/100 (294.45) feet northerly and parallel to the first course in the
herein described parcel), a distance of about eight hundred forty three (843)
feet to a corner; thence turning an interior angle of 90(degree)14' and running
southerly, a distance of two hundred ninety four and 45/100 (294.45) feet to the
said point of beginning.
EXHIBIT A Page 4 of 4
---------
PIPELINES
Grant and Agreement dated August 6, 1975, recorded in the Land Records of
East Providence in Book 302, Page 373, as subsequently amended by recorded
instruments in Book 312, Page 122, Book 429, Page 154, Book 560, Page 183, and
Book 1315, Page 151.
EXHIBIT B
---------
DUNELLEN, LLC
000 Xxxxxx Xxxx
Xxxx Xxxxxxxxxx, Xxxxx Xxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
June , 2003
Global Companies, LLC
000 Xxxxx Xxxxxx
Xxxxxxx, XX 00000
RE: 10 Year Improvement Projects For Wilkesbarre Pier
"Pier Improvement Letter Agreement"
ATTN: Xxxxxxx X. Xxxxxxxx, Senior Vice President
Gentlemen:
Pursuant to the meetings with Xxxxx X. Xxx and Xxxxxxx X. Xxxxxxxx, and based
upon the assumption that Global and Dunellen, LLC enter into the proposed
Amended and Restated Lease Agreement commencing May 1, 2003, attached you will
find an Exhibit A "10 Year Improvement Projects", with the estimated costs of
each item.
As we discussed, Global agrees to expend up to a maximum of $1,000,000.00 on a
50%- 50% basis with Dunellen as these items are completed. Global will not be
liable for any sums until Dunellen has paid for an individual item and then
Global will refund to Dunellen one-half of that item's cost.
Furthermore, Global will not be required to expend more then $150,000.00 during
any contract year commencing May 1, 2003 and ending on April 30th of each
succeeding year, unless otherwise agreed, but in any year in which less than
$200,000.00 is expended by Dunellen, the remaining moneys may be expended in
future years.
This obligation on Global's part will terminate on April 30, 2013, or upon the
earlier termination of the above-mentioned proposed Agreement.
We both acknowledge that Dunellen has no obligation to do the items listed in
the attached Exhibit A in any particular order, nor that all or some of the
items may not be undertaken.
Finally, we agree that if a third party becomes liable to fund any of the items
outlined in the attached Exhibit A, Global and Dunellen will share equally in
the moneys received by Dunellen from the third party for any such repairs.
If this proposal is acceptable, please acknowledge and return a copy of this
letter to me.
Very truly yours,
Xxxxxx X. Xxxxxxxxxxx
President
Enclosure (1)
AGREED AND ACCEPTED this day of June, 2003.
-----
GLOBAL COMPANIES, LLC
By: ______________________________
Xxxxxxx X. Xxxxxxxx
Title: Senior Vice President
EXHIBIT C
---------
[Attach Survey - See Section 10(h)]
EXHIBIT D
---------
MEMORANDUM OF OPTION AGREEMENT
TO PURCHASE REAL PROPERTY AND RELATED ASSETS
June 9, 2003
Notice is hereby given of the following Memorandum of Option Agreement to
Purchase Real Property and Related Assets (the "Option Agreement"):
1. PARTIES TO THE OPTION AGREEMENT.
OPTIONOR: DUNELLEN, LLC, a Rhode Island limited liability company
--------
OPTIONEE: GLOBAL COMPANIES, LLC, a Delaware limited liability company
--------
2. DATE OF EXECUTION. June 9, 2003
3. PREMISES. The improved real property owned by Optionor, commonly known
as 000 Xxxxxx Xxxx, Xxxx Xxxxxxxxxx, Xxxxx Xxxxxx, containing approximately ten
(10) acres of land (the "Terminal Facility"), as well as the Wilkesbarre Pier
and vessel berth (collectively, the "Pier") and Optionor's non-exclusive
interest in and/or right to use the petroleum pipelines connecting the Terminal
Facility with the Pier (the "Pipelines"), together with all improvements,
rights, properties and assets associated with the Terminal Facility, the Pier
and the Pipelines, as more particularly described in Exhibit A, attached hereto.
4. PURCHASE OPTION. Tenant has the right to purchase the Premises on the
terms and conditions specified in the Option Agreement. Such right shall run
with the Premises and shall survive any conveyance or other transfer of the
Premises.
This instrument is executed pursuant to the provisions contained in the
Option Agreement, does not purport to include all of the provisions thereof, and
is not intended to vary the terms and conditions thereof.
WITNESS the execution hereof under seal as of the date first above written.
OPTIONEE
--------
GLOBAL COMPANIES, LLC, a Delaware limited liability
company
By:
----------------------------------------------
Xxxxxxx X. Xxxxxxxx,
Senior Vice President
OPTIONOR
--------
DUNELLEN, LLC, a
Rhode Island limited liability company
By: Capital Properties, Inc., its sole member
By:
-----------------------------------------
Xxxxxx X. Xxxxxxxxxxx, President
STATE OF ___________________________
COUNTY OF _________________________
On this 9th day of June, 2003, personally appeared Xxxxxxx X. Xxxxxxxx, to
me known and known by me to be the Senior Vice President of GLOBAL COMPANIES,
LLC, the party executing the foregoing instrument, and acknowledged said
instrument by him executed in his said capacity to be his free act and deed in
such capacity and the free act and deed of said GLOBAL COMPANIES, LLC.
---------------------------
Notary Public
Print Name:
My commission expires:
XXXXX XX XXXXX XXXXXX
XXXXXX XX XXXXXXXXXX
Xx this 9th day of June, 2003, personally appeared Xxxxxx X. Xxxxxxxxxxx,
to me known and known by me to be the President of CAPITAL PROPERTIES, INC, the
sole member of DUNELLEN, LLC, the party executing the foregoing instrument, and
acknowledged said instrument by him executed in his said capacity to be his free
act and deed in such capacity and the free act and deed of said DUNELLEN, LLC.
---------------------------
Notary Public
Print Name:
My commission expires:
