XXXXX A XXXXXX DRAFT
APRIL 1, 1994
CONTRACT OF SALE
by and between
XXXX HAULING AND WAREHOUSING
SYSTEM, INC., as Seller
and
CAMDEN COUNTY IMPROVEMENT AUTHORITY,
as Purchaser
April _, 1994
TABLE OF CONTENTS
Page
----
1 Conveyance of Property ...................................... 3
2 Title ....................................................... 5
3 Closing of Title ............................................ 5
4 Purchase Price .............................................. 5
5 Closing Documents ........................................... 5
6 Re-Sale Certificate of Occupancy ............................ 6
7 Environmental Matters ....................................... 6
8 Seller's Representations, Warranties and Covenants........... 6
9 Authority's Obligations Hereunder; Indemnification........... 7
10 Limited Liability of Authority; Costs and Expenses........... 8
11 Survival .................................................... 9
12 Notices ..................................................... 9
13 Governing Law ............................................... 10
14 Successors and Assigns ...................................... 10
15 Execution ................................................... 10
16 Headings .................................................... 10
17 Severability ................................................ 10
18 Broker ...................................................... 10
19 Interpretation .............................................. 10
Exhibit A. Legal Description
(i)
CONTRACT OF SALE
THIS CONTRACT OF SALE (the "Contract") is dated April , 1994 by and between
XXXX HAULING AND WAREHOUSING SYSTEM, INC., a Pennsylvania corporation having an
address of 000 X. Xxxxxxxx, Xxxxxxxxxx Xxxx, Xxx Xxxxxx 00000 (the "Seller") and
CAMDEN COUNTY IMPROVEMENT AUTHORITY, a body politic and corporate constituting
an instrumentality exercising public and essential governmental functions,
having an address of 0000 Xxxxx Xxxx Xxxxx, Xxxx Xxxxxxxx, Xxxxx 000,
Xxxxxxxxxx, Xxx Xxxxxx 00000-0000 (the "Authority").
W I T N E S S E T H:
WHEREAS, the Authority was created pursuant to the County Improvement
Authorities Act, constituting Chapter 183 of the Pamphlet Laws of 1960, as
amended (the "Act"), for the purposes, among other things, of providing within
the County, structures, franchises, equipment and facilities for operation of
public transportation or for terminal purposes, including development and
improvements of port terminal structures, facilities and equipment, for public
use in counties, in, along or through which a navigable river flows; and
WHEREAS, the Authority is authorized, pursuant to the Act, to issue its
bonds for the purpose of financing the cost of any public facility or
facilities; and
WHEREAS, the Authority proposes to undertake a certain project ("Project")
consisting of the purchase, pursuant to this Contract, of a newly constructed
refrigerated warehouse facility of
approximately 312,000 square feet on land to be leased to the Issuer
within the marine terminal complex owned by the Seller, in the City of
Gloucester City, County of Camden and State of New Jersey, to be leased to
Dockside Refrigerated Warehouses, Inc. (the "Company"); and
WHEREAS, the Authority proposes to issue its Lease Revenue Bonds (Dockside
Refrigerated Warehouses, Inc. Project) Series 1994 in the aggregate principal
amount of $18,500,000 (the "Bonds") pursuant to an Indenture of Trust (the
"Indenture") between the Authority The Bank of New York NA, as trustee (the
"Trustee") and proposes to apply the proceeds of the sale of the Bonds to
finance the acquisition of the Project; and
WHEREAS, the Authority proposes to lease the Project to the Company
pursuant to a Lease Agreement dated as of March 15, 1994 (the "Lease Agreement";
capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture or the Lease Agreement), pursuant to which the Company
shall covenant to make lease payments to the Authority sufficient to pay all
principal, premium, if any, and interest when due on the Bonds and other amounts
payable in connection with the Bonds; and
WHEREAS, the Bonds shall be secured by the pledge of payments to be made by
the Company under the Lease Agreement and by a leasehold mortgage lien on the
Project and a security interest in certain machinery and equipment constituting
fixtures of the Company, and the Bonds and obligations of the Company under the
Lease Agreement shall be guaranteed by the Seller, X.X. Xxxxxxxx
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Co., Inc., Refrigerated Distribution Center, Inc., Oregon Avenue Enterprises,
Incorporated, Xxxx Cargo Systems, Inc., The Riverfront Development Corp.,
CRT, Inc., Xxxxxx Xxxxx Ice, Inc., 000 Xxxxxxxx Xxx., Xxx., Xxxxxxxx Xxxxxx
Warehousing Corp., and Refrigerated Enterprises, Inc. and any other person
required to be a Guarantor (collectively, the "Guarantor") pursuant to the
Guaranty (as such term is hereinafter defined); and
WHEREAS, the Bonds shall be further secured by a mortgage on the Project
and a leasehold mortgage on the Land from the Authority to the Trustee dated as
of March 15, 1994, subject and subordinate to the Senior Mortgage Debt (as
defined in the Indenture) and pari passu and on a parity with the Parity
Mortgage Debt (as defined in the Indenture); and
WHEREAS, the Guaranty shall be secured by a mortgage on the entire marine
terminal complex located in the Project Municipality from the Seller to the
Trustee dated as of March 15, 1994, subject and subordinate to the Senior
Mortgage Debt (as defined in the Indenture) and pari passu and on a parity with
the Parity Mortgage Debt (as defined in the Indenture); and
WHEREAS, the Seller and the Authority have the power to enter into this
Indenture and to execute and deliver this Contract.
IN CONSIDERATION of the mutual covenants and agreements hereinafter set
forth, the parties hereto agree as follows:
1. Conveyance of Property.
(a) Seller shall sell and convey to the Authority and the Authority
shall purchase from Seller, all in accordance with
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the terms of this Contract, fee simple title to the Improvements (as
hereinafter defined) located on certain real property in the City of Gloucester
City, County of Camden and State of New Jersey, being known and designated as
Block 2 and Lot 1 on the Tax Map of the City of Gloucester City, but all as more
fully described on Exhibit A annexed hereto and made a part hereof (the "Real
Property").
(b) As used herein, the term "Improvements" means the approximately
312,000 square foot refrigerated warehouse building situate and existing on the
Real Property, including without limitation all alterations, improvements,
replacements, modifications, redecorations and additions thereto to which title
has vested in Seller, the foundations and footings thereof and all fixtures,
including without limitation all furnaces, boilers, refrigeration equipment,
machinery, engines, motors, compressors, elevators, fittings, pipings,
connectives, conduits, ducts, partitions, equipment and apparatus of every kind
and description now or hereafter affixed or attached to such building; IT BEING
UNDERSTOOD AND AGREED, however, that the term "Improvements" shall specifically
not include, and Seller shall not convey fee simple title and shall not be
obligated to convey to the Authority fee simple title pursuant hereto, to the
Real Property or any of Seller's right, title and interest therein or thereto
other than the conveyance by Seller to the Authority of a leasehold interest in
the Real Property pursuant to a Ground Lease Agreement dated as of March 15,
1994 between Seller and the Authority, pursuant to
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which Seller grants to the Authority a leasehold estate in the Real Property.
2. Title. Title to the Improvements shall be conveyed by Seller by Bargain
and Sale Deed with Covenant as to Grantor's Acts. The title to be conveyed shall
be free and clear of any Liens other than Permitted Encumbrances and shall be
marketable and insurable at regular rates by a title insurance company of the
Authority's choice authorized to do business in the State of New Jersey.
3. Closing of Title. The closing of title for transfer of the Improvements
shall take place at the offices of Xxxxx & Xxxxxx, P.A., 0 Xxxxxx Xxxx Xxxx,
Xxxxxxxx, Xxx Xxxxxx 00000 on the date hereof.
4. Purchase Price. The Authority shall pay to Seller, as and for the
purchase price for the Improvements, the sum of $18,150,000, subject to no
adjustments, (the "Purchase Price"), payable in immediately available funds on
the Closing Date.
5. Closing Documents.
(a) At or prior to the Closing, Seller shall deliver to the Authority
the following items with respect to the Improvements:
(i) Bargain and Sale Deed with Covenant as to Grantor's Acts
conveying fee title to the Improvements to the Authority or its assigns, free
and clear of all liens, claims and encumbrances, except for the Permitted
Exceptions;
(ii) Xxxx of Sale, to the extent required to convey to Buyer all
or any of the Improvements as contemplated hereby;
(iii) A standard form Affidavit of Title;
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(iv) A letter of non-applicability or a "no further action letter"
from the New Jersey Department of Environmental Protection and Energy
("NJDEPE") with respect to the Improvements stating that the transfer and
conveyance of the Improvements is not subject to the terms and conditions of
the Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq or, if applicable,
a negative declaration;
(v) A corporate resolution of Seller authorizing Seller to execute
and deliver the Deed, Affidavit of Title and other documents required hereby
and to consummate the transactions contemplated hereby and thereby;
(vi) Such other documents as may be reasonably required by the
Authority; and
(ix) Any other documents required to be delivered by Seller
hereunder if not theretofore delivered.
6. Re-Sale Certificate of Occupancy. In the event the City of Gloucester
City requires that a re-sale certificate of occupancy be obtained in
connection with the transfer of the Improvements, Seller shall obtain such
re-sale certificate of occupancy and deliver same to the Authority at or
prior to the Closing.
7. Environmental Matters. The Authority acknowledges that no
environmental testing of the Improvements or the Real Property is necessary
as a condition to the Authority's obligations hereunder.
8. Seller's Representations, Warranties and Covenants. In addition to
the representations, warranties and covenants set forth
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elsewhere in this Contract, Seller represents, warrants and covenants as
follows:
(a) Seller is a corporation duly organized, validly existing and in
good standing under the laws of the Commonwealth of Pennsylvania, and is duly
qualified to transact business in the State of New Jersey. Seller has full
power and authority, in accordance with law, to enter into this Contract and
to carry out the transactions contemplated hereby. All proceedings required
to be taken by or on behalf of Seller to authorize Seller to make, deliver
and carry out this Contract have been duly and properly taken. Neither the
execution and delivery of this Contract nor the consummation of the
transactions provided for herein will constitute a violation or breach by
Seller of any provisions of any agreement or other instrument to which Seller
is a party, or will result in or constitute a violation or breach of any
judgment, order, writ, injunction or decree issued against or binding upon
Seller;
(b) This Contract has been duly executed and delivered by Seller and
constitutes a valid and binding agreement of Seller, enforceable in
accordance with its terms; and
(c) The Federal Taxpayer Identification Number of Seller is
00-0000000.
9. Authority's Obligations Hereunder; Indemnification. Seller hereby
agrees to indemnify, defend and hold harmless the Authority and any mortgagee
of the Authority and their officers, directors, employees, agents, attorneys
and representatives and
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their respective heirs, successors and assigns (collectively, the "Indemnified
Parties") from and against any and all damages, losses, deficiencies, costs,
liabilities, claims, demands, charges, counsel fees and other expenses of any
kind or nature whatsoever incurred or to be incurred by any Indemnified Party
as a result of, arising out of or in connection with (a) a breach of
any representation, warranty or covenant made by Seller herein, (b) the
condition of the Improvements or the Real Property, including without
limitation the physical condition of the Improvements or the presence of any
environmental condition on the Improvements or the Real Property, (c) the
quality of title to the Improvements, (d) the failure of Seller to comply
with any applicable laws, ordinances, rules or regulations in connection with
the conveyance of the Improvements as contemplated hereby or (e) any act or
omission of Seller prior to or after the Closing Date relating to the
transactions contemplated hereby.
10. Limited Liability of Authority; Costs and Expenses. All costs and
expenses in connection with the transactions contemplated herein, including,
without limitation, title insurance and recording fees, shall, as between the
Seller and the Purchaser, be the responsibility of the Seller. In addition,
the obligation of the Authority to pay the Purchase Price hereunder shall be
limited to the proceeds from the sale of the Bonds and shall be subject to
and contingent upon the sale of the Bonds.
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11. Survival. The representations, warranties and obligations of
Seller under this Agreement shall survive the Closing without limitation.
12. Notices. All notices, demands or other communications which are
required or permitted to be given hereunder (each, a "Notice") shall be in
writing and shall be deemed duly given when hand delivered, when mailed by
registered or certified mail, postage prepaid, return receipt requested or
when sent by overnight delivery service providing delivery confirmation,
addressed to the respective parties as follows.
If to Seller: Xxxx Hauling and Warehousing
System, Inc.
King and Xxxxx Xxxxxxx
Xxxxxxxxxx Xxxx, Xxx Xxxxxx 00000
Attention: Xx. Xxxxxxx Xxxxxx
with a copy to: Xxxx Hauling and Warehousing
System, Inc.
King and Xxxxx Xxxxxxx
Xxxxxxxxxx Xxxx, Xxx Xxxxxx 00000
Attention: Xxxx X. Xxxxx, Esq.
If to the Authority: Camden County Improvement
Authority 0000 Xxxxx Xxxx Xxxxx
Xxxx Xxxxxxxx, Xxxxx 000
Pennsauken, New Jersey 08109-4212
Attention: Executive Director
with a copy to: Xxxxxxxx, Meloni & Vecchio
000 Xxxxx Xxxxxx
X.X. Xxx 000
Xxxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxx X. Xxxxxx, Esq.
Anyone may change his or its address for notice purpose by giving Notice of
the new address to all parties listed above in the manner specified herein.
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13. Governing Law. This Contract and all matters pertaining hereto shall
be governed by and construed in accordance with the laws of the State of New
Jersey.
14. Successors and Assigns. The covenants, conditions and agreements in
this Contract shall be binding upon and shall inure to the benefit of Seller
and the Authority and their respective successors and assigns.
15. Execution. This Contract may be executed in any number of
counterparts, each of which, when so executed and delivered, shall be deemed
an original, but such counterparts together shall constitute but one and the
same instrument so long as same are identical.
16. Headings. The paragraph headings herein are for convenience only and
shall not be construed to limit or affect any provisions of this Contract.
17. Severability. In the event that any one of more of the provisions of
this Contract shall be determined to be void or unenforceable by a court of
competent jurisdiction or by law, such determination will not render this
Contract invalid or unenforceable and the remaining provisions hereof shall
remain in full force and effect.
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18. Broker. Each party represents to the other that it has dealt with no
broker, agent or finder in connection with this transaction.
19. Interpretation. Words in the singular number shall be held to include
the plural and vice versa and words of one gender shal1 be held to include the
other genders as the context requires. The terms "hereof", "herein" and
"herewith" and words of similar import shall be construed to refer to this
Contract in its entirety and not to any particular provisions unless otherwise
stated. The "person" shall mean any natural person, partnership, corporation and
any other form of business or legal entity.
IN WITNESS WHEREOF, the parties have executed this Contract on the date
and year first above written.
ATTEST: SELLER:
XXXX HAULING AND WAREHOUSING
SYSTEM, INC.
/s/ Xxxx Xxxxx By: /s/ Xxxxxxx Xxxxxx
---------------------------- -------------------------------
Xxxx Xxxxx, Secretary Xxxxxxx Xxxxxx
Vice President
ATTEST: AUTHORITY:
CAMDEN COUNTY IMPROVEMENT
AUTHORITY
/s/ Xxxxxx X. Xxxxx By: /s/ Jamed X. Xxxxx
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Xxxxxx X. Xxxxx Xxxxx X. Xxxxx
Executive Director Vice Chairman
and Secretary
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