Exhibit 99.1
CONTRACT OF SALE
THIS CONTRACT OF SALE is made by and between
INSITUFORM EAST, INC.
hereinafter referred to as the "Seller", and
LINLO REALTY L.L.C.
hereinafter referred to as the "Purchaser".
WITNESSETH:
For and in consideration of the mutual promises, covenants, agreements and
conditions herein set forth, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Seller and Purchaser
hereby covenant and agree with each other as follows:
Section 1. Property. Seller hereby agrees to sell and convey to Purchaser,
and Purchaser hereby agrees to purchase from Seller, at the price and upon terms
and conditions hereinafter set forth, the following described real property
located at 0000 Xxxxxx Xxxxx, Xxxxxxxx, Xxxxxx Xxxxxx'x Xxxxxx, Xxxxxxxx:
Approximately 15.6 acres of land, zoned Light Industrial (I-1), described
as Parcel 217 and Parcel 218, Grid F-4, and Parcel K-2, on Prince George's
County Tax Map 51, being the same property described in Deeds recorded among the
Prince George's County Land Records in Liber 6397, folio 602, and Liber 5412,
folio 875, et seq., improved by Building D, a one story vehicle maintenance and
repair facility with mezzanine office, containing approximately 31,770 square
feet of gross floor area; Building A, containing approximately 00,000 xxxxxx
xxxx xx xxxxx xxxxx xxxx; Building B, containing approximately 00,000 xxxxxx
xxxx xx xxxxx xxxxx xxxx; Building C, containing approximately 9,000 square feet
of gross floor area; Building E, a metal shed containing approximately 1,700
square feet of gross floor area, for a total of approximately 76,970 square feet
of gross floor area; Building F, a special-purpose hazardous materials storage
building; and Building G, a shed with installed resin storage tanks, also
conveying; including all mechanical, electrical and plumbing systems as
presently installed in or outside such buildings; and the furniture, fixtures
and equipment listed on Exhibit A which is attached hereto and incorporated
herein. The above described land and improvements shall be hereinafter referred
to as the "Property".
Section 2. Deposit.
(a) Initial Deposit. Upon execution hereof, Purchaser shall make a good
faith deposit of TWENTY-FIVE THOUSAND AND NO/100 DOLLARS ($25,000.00),
hereinafter referred to as the "Deposit", by a check made payable to the order
of The Xxxxxxx Companies, Inc., hereinafter referred to as the "Broker". Upon
final execution hereof by both parties (hereinafter referred to as the
"Effective Date"), the Broker shall place the Deposit in a separate interest
bearing escrow account, with all interest thereon to be accumulated and
reinvested. All interest earned on the Deposit shall be deemed a part thereof
for all purposes and shall be disbursed with the Deposit principal unless
otherwise provided herein.
(b) Additional Deposit. In the event that Purchaser does not elect to
terminate this Contract of Sales during the Feasibility Studies Period pursuant
to Section 4. hereof, then prior to expiration of the Feasibility Studies
Period, Purchaser shall deposit with The Xxxxxxx Companies, Inc., the additional
sum of ONE HUNDRED TWENTY-FIVE THOUSAND AND NO/100 DOLLARS ($125,000.00), which
additional sum shall be placed in the same interest bearing escrow account as
the existing Deposit, and thereafter the term "Deposit' as used herein shall be
deemed to refer to the total $150,000.00 Deposit plus accrued interest held in
escrow by The Xxxxxxx Companies, Inc. The $150,000.00 Deposit shall be applied
as part payment of the total purchase price at settlement hereunder, and any
accrued interest included in the Deposit shall be paid to Purchaser at
settlement.
Section 3. Purchase Price. The total purchase price of the Property shall
be FIVE MILLION TWO HUNDRED FIFTEEN THOUSAND AND NO/100 DOLLARS ($5,215,000.00),
without any setoff or deduction in the purchase price for dedicated areas or
variances in the gross square foot area of the Property which may be disclosed
by a title search or survey. At settlement, the Purchaser shall pay to Seller
the total purchase price, in cash, of which sum the Deposit shall be a part.
Section 4. Feasibility Studies.
(a) Purchaser and Seller enter into this Contract of Sale with the express
understanding that Purchaser is purchasing the Property in its present "AS IS"
condition and that Seller and Broker make no representations or warranties
regarding the Property or any aspect thereof. It is agreed, however, that
Purchaser shall have a period commencing on the Effective Date hereof and ending
Seventy (70) days following the Effective Date (hereinafter referred to as the
"Feasibility Studies Period"), during which period Purchaser shall investigate
the Property to determine if the Property in its present "AS IS" condition is
suitable for Purchaser's use and development.
(b) Therefore, commencing on the Effective Date, at Purchaser's expense,
Purchaser shall conduct a title examination (as provided elsewhere in this
Contract of Sale) and any and all other studies, inspections, analyses,
investigations, tests and surveys (hereinafter collectively referred to as the
"Studies") to determine to Purchaser's satisfaction the Property's physical
condition, the Property's land area and topography, the Property's engineering,
architectural, zoning and subdivision status, the condition of the roof,
structure, and all mechanical, electrical and plumbing systems, including the
existence of pest infestation, the condition of the soil, the existence of toxic
waste contamination, the availability of financing, the economic feasibility of
the Property, the availability of access to public roads, water, sewer and other
utilities, the availability of stormwater management approvals and building
permits, and any other Studies which Purchaser deems appropriate to determine to
Purchaser's satisfaction the overall suitability of the Property for Purchaser's
use and development.
(c) Provided Purchaser gives Seller reasonable prior notice, Seller hereby
grants to Purchaser, its agents, contractors and assigns, the right to enter
upon the Property during the period this Contract of Sale is in effect, for the
purpose of conducting any of the Studies, and further provided that Purchaser,
its agents, contractors and assigns, shall enter upon the Property and conduct
the Studies at their own risk and shall indemnify and hold harmless Seller
against any liability resulting therefrom, and, further, shall restore the
Property to its natural condition existing prior to the Studies. This
indemnification by Purchaser shall survive settlement hereunder, or any earlier
termination of this Contract of Sale by whatever means.
(d) In the event that the results of any of the Studies or the title
examination are unsatisfactory to Purchaser for any reason whatsoever, or
Purchaser determines for any reason in Purchaser's sole, exclusive and
unreviewable judgment, that the Property is not suitable for Purchaser's use and
development, then Purchaser may terminate this Contract of Sale by giving
written notice to Seller prior to expiration of the Feasibility Studies Period.
Upon such termination, the Deposit shall be returned to Purchaser, this Contract
of Sale shall be null and void, and the parties shall have no further
obligations and liabilities hereunder. If Purchaser does not terminate this
Contract of Sale during the Feasibility Studies Period, time being of the
essence, then Purchaser shall be deemed to have waived any further right to
object to the status or condition of the Property or to any matter which
Purchaser had an opportunity to investigate during the Feasibility Studies
Period, and thereafter this Contract of Sale shall be a firm and binding
agreement for the purchase and sale of the Property in its present "AS IS"
condition.
(e) Notwithstanding any other provision of this Contract of Sale, upon any
termination of this Contract of Sale for any reason, Purchaser shall, at
Purchaser's expense and before any return of the Deposit, deliver to Seller all
copies of, and all ownership rights in, any and all Studies which have been
commenced or completed, together with evidence that the charges for such Studies
have been paid.
Section 5. Settlement.
(a) Time is of the essence in this Contract of Sale. Settlement hereunder
shall take place not sooner than September 30, 2003, nor later than December 1,
2003 upon mutual agreement between Seller and Purchaser. The exact date, time
and place of settlement shall be designated by Purchaser in writing to Seller.
Notwithstanding any other provision hereof, Purchaser shall have the right to
waive any of the conditions precedent to settlement and to elect to proceed to
settlement hereunder by giving advance written notice to Seller at any time
during the period this Contract of Sale is in effect.
(b) If Purchaser defaults in its obligation to settle within the time and
manner provided herein, then the Deposit shall be forfeited to Seller and stand
as agreed liquidated and final damages, whereupon the parties shall be relieved
of any further liability or obligation to the other hereunder, and this Contract
of Sale shall be terminated and of no further force or effect, it being
expressly understood and agreed that the payment of the Deposit to the Seller
shall be the sole and exclusive right and remedy of the Seller upon any default
by Purchaser hereunder.
(c) Settlement is to be made at the office of the title company or attorney
designated by the Purchaser. Deposit with said title company or attorney of the
purchase money, the deed, and such other papers as are required of either party
by the terms of this Contract of Sale shall be considered good and sufficient
tender of performance of the terms hereof. If required, funds arising out of
this transaction may be used at settlement to pay off any existing financial
encumbrances. At settlement Seller shall convey the Property by Special Warranty
Deed, which Purchaser hereby agrees to accept.
(d) Rents, taxes, water, insurance and interest on existing encumbrances,
if any, and operating charges are to be adjusted to the date of transfer. Taxes,
general and special, are to be adjusted according to the Certificate of Taxes
issued by the appropriate local taxing authority. Annual assessments for
improvements completed prior to the date of conveyance, whether assessment
therefor has been levied or not, annual public sewer and water system benefit
charges, and the like, are to be adjusted to the date of conveyance and assumed
thereafter by the Purchaser. Expenses for the title examination, tax
certificate, conveyancing, notary fees, survey, appraisal fees, legal fees,
document preparation charges, all recording charges and all other expenses of
settlement shall be paid by Purchaser, except that the cost of State Revenue
Stamps, recordation taxes, real property transfer taxes and sales tax on the
sale and transfer of the items listed on Schedule A shall be shared equally by
Purchaser and Seller. Seller shall pay any expenses for obtaining and recording
releases of any liens on the Property.
(e) Title to the Property shall be good and marketable of record, free of
financial encumbrances and subject to any and all easements, covenants,
restrictions and conditions of record. During the Feasibility Studies Period,
Purchaser shall conduct a title examination at Purchaser's expense and shall
give Seller prompt written notice of any particular objections which Purchaser
may have to the status or nature of the title to the Property. If Purchaser
fails to notify Seller of any objections to the nature and status of the title
prior to expiration of the Feasibility Studies Period, then Purchaser shall be
deemed to have waived any such objection. Promptly upon receipt of such notice,
at Seller's expense, Seller will take any actions necessary to cure any of such
objections which may be readily cured by legal action. For so long as Seller is
diligently pursuing such actions, the time for settlement hereunder shall be
extended for the period necessary for such actions, provided that in the event
such extension period exceeds three (3) months, then either Purchaser or Seller
shall have the right to terminate this Contract of Sale by giving written notice
to the other, whereupon the Deposit shall be returned to Purchaser and the
parties shall have no further obligations and liabilities hereunder. Seller
shall have no obligation to take any action to cure any defect or objection
which cannot be readily remedied by legal action, nor shall Seller have any
obligation to remove any title condition referenced in this Contract of Sale or
any covenant, condition, easement or restriction of record. Purchaser's right to
terminate pursuant to this paragraph is Purchaser's sole and exclusive remedy in
the event of a defect in the title, and the Seller and Broker are hereby
expressly released from any liability or damages arising from the condition of
the title to the Property.
(f) Purchaser shall have the right of possession of the Property as of the
date of settlement, free of tenancy. If for any reason the Seller is unable to
deliver possession as of settlement, then at Purchaser's option, Purchaser may
either postpone settlement until possession is delivered or nevertheless proceed
to settlement and proceed to recover possession of the Property pursuant to
appropriate landlord and tenant proceedings.
(g) Title to the Property is to be given in the name or names of such
parties as may be directed by the Purchaser at or prior to the date of
conveyance, provided the Purchaser shall remain liable for the performance of
all terms and provisions under this Contract of Sale.
Section 6. Brokerage. Seller recognizes The Xxxxxxx Companies, Inc. as the
Broker employed by Seller in procuring this Contract of Sale. Seller agrees to
pay to Broker for services rendered regarding this Contract of Sale a sales
commission of Five Per Cent (5%) of the total purchase price, payable at
settlement.
Seller and Purchaser hereby warrant and represent each to the other that
neither has contracted with, contacted, engaged or dealt with any other broker,
agent or finder regarding this sale, and each agrees to hold harmless the other
and the Broker and its agents against any claim, including reasonable attorney
fees, for brokerage or finder fees resulting from a breach of this
representation and warranty. Said Broker and its agents have no responsibility
for the condition of the Property or for the performance of this Contract of
Sale or any agreement between Seller and Purchaser, and both parties agree to
protect and hold harmless said Broker and its agents from any and all claims for
injury to persons or property by reason of any accident or happening, in, upon
or about the Property.
Purchaser and Seller are hereby advised that the recovery of compensation
from the real estate guaranty fund of the Maryland Real Estate Commission is
limited to an amount not to exceed $25,000.00 for any claim.
Section 7. Notices. All notices hereunder shall be in writing and shall be
hand delivered or mailed, Registered or Certified U.S. Mail, Return Receipt
Requested, First Class postage prepaid, to the parties hereto at their
respective addresses set forth below, or at such other address of which either
party shall notify the other party in accordance with the provisions hereof. Any
notice required or permitted to be given hereunder on or before a specified date
shall be deemed to have been duly and timely given if hand delivered before 5:00
P.M. on such day, or when given by mail as aforesaid, if postmarked before
midnight of such day. Notices given by mail shall be delivered:
IF TO SELLER:
Insituform East, Inc.
0000 Xxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attn: CEOC
IF TO PURCHASER:
LINLO REALTY L.L.C.
Attn: Xxxxx Xxxxxxxx
c/o Atlantic Transportation Equipment, Ltd.
00000 Xxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
WITH A COPIES IN ANY EVENT TO:
Xxxx X. Xxxxxx, Esq.
00000 Xxxxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxx Xxxxx, Xxxxxxxx 00000
AND:
Xxxxx Xxxxxxx, Xxxxx Xxxxxxx
and Xxxxx Xxxxxxx
The Xxxxxxx Companies, Inc.
0000 Xxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Section 8. Additional Provisions.
(a) This Contract of Sale contains the entire agreement between
Purchaser and Seller and is intended to be an integration of all prior or
contemporaneous agreements, conditions or undertakings between Purchaser
and Seller. There are no promises, agreements, conditions, undertakings,
warranties or representations, oral or written, express or implied, between
the parties other than as herein set forth.
(b) No change or modification of this Contract of Sale shall be valid
unless the same is in writing and signed by both the Seller and the
Purchaser. Except as otherwise herein expressly provided, no purported or
alleged waiver of any of the provisions of this Contract of Sale shall be
valid or effective unless contained in a writing signed by the party
against whom it is sought to be enforced.
(c) This Contract of Sale and all provisions hereof shall be binding
upon and shall enure to the benefit of the parties hereto and their
respective personal representatives, administrators, heirs, devisees,
legatees, successors and assigns. It is the intent of the parties hereto
that all questions with respect to the construction of this Contract of
Sale and the rights and liabilities of the parties hereto shall be
determined in accordance with the laws of the State of Maryland.
(d) If any one or more of the provisions hereof shall for any reason
be held to be invalid, illegal or unenforceable in any respect, then such
invalidity, illegality or unenforceability shall not affect any other
provision hereof, and this Contract of Sale shall be construed as if such
invalid, illegal or unenforceable provision had never been contained
herein.
(e) The captions appearing in this Contract of Sale are inserted only
as a matter of convenience and in no way define, limit, construe or
describe the scope or intent of any paragraph or section of this Contract
of Sale nor in any way affect this Contract of Sale. For the convenience of
the parties hereto, this Contract of Sale is executed in several
counterparts, each of which shall be deemed an original for all purposes
without the necessity of producing any counterpart.
(f) Each of the undersigned signatories acknowledges that he or she
has had full opportunity to obtain legal counsel prior to signing this
Contract of Sale. Both Purchaser and Seller agree to furnish, upon request
by the other party, satisfactory evidence of its authority to execute,
acknowledge and deliver this Contract of Sale.
(g) Seller certifies that Seller has no knowledge of any published
preliminary or adopted land use plan (or adopted Zoning Map Amendment)
which may result in condemnation or taking of any part of the Property.
Purchaser acknowledges that Purchaser is aware that information relative to
rezoning and government plans for land use, road, highways, parks,
transportation and other matters is available for inspection at the County
Administration Building, Upper Marlboro, Maryland. Purchaser acknowledges
that Seller has informed Purchaser of the Xxxxxxx Road Master Plan
Alignment.
(h) If during the period that this Contract of Sale is in effect,
Seller receives any notice from any public, quasi-public, or private
authority or entity regarding any litigation, governmental action or
eminent domain proceeding which may affect the Property, then Seller shall
promptly deliver a copy of such notice to Purchaser. Seller shall take no
action and shall enter into no agreement with any public, quasi-public or
private authority or entity during the period that this Contract of Sale is
in effect which shall in any way affect the title to the Property or the
condition of the Property, without the Purchaser's prior written consent,
which consent shall not be unreasonably withheld, conditioned or delayed..
(i) If during the period that this Contract of Sale is in effect, all
or any part of the Property is taken by any public or quasi-public
authority under power of eminent domain, then at Seller's option, either
Seller may terminate this Contract of Sale and return the Deposit to
Purchaser or this Contract of Sale shall remain in effect without
amendment, in which event Seller shall assign to Purchaser any and all
rights which Seller may have to payment in consideration of any acquisition
or taking under threat or power of eminent domain, and the total purchase
price payable hereunder shall not be reduced, but the Purchaser shall
reimburse Seller for any expenses incurred by Seller in defending the
condemnation action.
(j) The risk of loss or damage to the Property by fire or other
casualty until the Deed of Conveyance is recorded is assumed by the Seller.
In the event of any such damage, at Seller's option, Seller may either
terminate this Contract of Sale and return the Deposit to Purchaser or
require Purchaser to proceed to settlement, whereupon an equitable
reduction in the purchase price shall be made.
(k) Purchaser acknowledges that Seller uses products such as resins,
chemicals, solvents, catalysts, etc. in Seller's primary business. Seller
has disclosed to Purchaser the presence of two (2) 10,000 gallon
underground storage tanks, lines, pumps and hydraulic lifts with lines on
the Property. Purchaser will investigate the environmental condition of the
Property during the Feasibility Studies Period to determine whether to
accept the property in its present "AS IS" condition.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Contract of Sale.
WITNESS: PURCHASER:
LINLO REALTY L.L.C.
/s/ Xxxxxx Xxxxx BY: /s/ Xxxxx Xxxxxxxx DATE 7/24/03
------------------ ------------------------------- --------
Xxxxx Xxxxxxxx, Managing Member
With Authority to Bind
WITNESS/ATTEST: SELLER:
INSITUFORM EAST, INC.
/s/ Xxxxx Xxxxxxx BY: /s/ Xxxxxx Xx. Xxxxxxx DATE 7/24/03
------------------ ------------------------------- --------
Xxxxxx Xxxxxxx Xxxxxxx, Chairman
With Authority to Bind the Corporation
Effective Date: 24 July 2003. The Effective Date of this Contract of Sale is the
date of final signature of a mutually acceptable agreement by both Seller and
Purchaser.
The Xxxxxxx Companies, Inc. joins in execution of this Contract of
Sale for the purpose of acknowledging receipt of the Deposit and consenting
to the terms hereof regarding escrow and disbursement of the Deposit.
THE XXXXXXX COMPANIES, INC.
BY: /s/ Xxxx X. Xxxxxxx DATE 7/25/03
------------------------------- --------
Xxxx X. Xxxxxxx, President
Exhibit A
Additional Items to be Conveyed
1.0 Shop Equipment
1.1 Items specifically included.
Building D: PROFAX Cat. 80 Item Nos.: 215-219, 605, 1627, 1682, 1716,
1759-1761, 1770, 1801, 1802, 2068, 2315, 2514, 2587,2969, 3134, 3239, 3378,
3379, 3465, 3574, and Cat. 30 Item No. 3606. See Schedule 1.1, attached hereto,
for PROFAX reference numbers and item descriptions.
1.2 Items specifically excluded.
Building B: (1) Conveyer and all related "wet-out" equipment.
Wherever located: (1) All vehicles, rolling stock (e.g., trailers),
material handling, and portable equipment not attached or affixed to any
building except as listed in Section 1.1 above.
1.3 All other items.
Items neither listed above as specifically included nor listed above as
specifically excluded shall, upon later identification by either Seller or
Purchaser subsequent to the Effective Date but prior to Settlement, be retained
by Seller or conveyed to Purchaser as shall be determined by Seller in its sole
and unfettered discretion. Following Settlement, any items not previously
identified to be retained by Seller shall be deemed as conveyed to Purchaser.
2.0 Office Furniture, Equipment and Fixtures
2.1 Items specifically included.
Building B: (1) Entry reception desk and area furniture. (2) All Storwal
lateral files located in recessed niches built for same. (3) Four custom-made
executive assistant work stations located in upscale executive offices core
area. (4) All office furniture, tables, couches and chairs including conference
tables and chairs. (5) All telephone equipment.
Building C: (1) All office furniture, tables, couches and chairs including
conference tables and chairs. (2) All telephone equipment.
Building D: (1) All office furniture, tables, couches and chairs including
conference tables and chairs. (2) All telephone equipment.
2.2 Items specifically excluded.
Building B: (1) All artwork, statuary or artificial trees (excluding,
however, artificial plantings in the central corridor). (2) All office and other
computers, including plotters, printers and peripheral equipment. (3) All
copiers, fax machines, TV/VCR's and other office equipment. (4) All heavy,
fire-proof, combination safe/filing units. (5) All Storwal lateral and other
free-standing filing cabinets. (6) Drawing racks and drafting tables.
Building C: (1) All office and other computers, including plotters,
printers and peripheral equipment. (2) All copiers, fax machines, TV/VCR's and
other office equipment. (3) All heavy, fire-proof, combination safe/filing
units. (4) All Storwal lateral and other free-standing filing cabinets. (5) All
storage bins.
Building D: (1) Artwork over portal in main maintenance area. (2) All
office and other computers, including plotters, printers and peripheral
equipment. (3) All copiers, fax machines, TV/VCR's and other office equipment.
(4) All storage bins.
2.3 All other items.
Items neither listed above as specifically included nor listed above as
specifically excluded shall, upon later identification by either Seller or
Purchaser subsequent to the Effective Date but prior to Settlement, be retained
by Seller or conveyed to Purchaser as shall be determined by Seller in its sole
discretion. Following Settlement, any such items not previously identified to be
retained by Seller shall be deemed as conveyed to Purchaser.
