Exhibit 2.1
AGREEMENT OF SALE
-----------------
THIS AGREEMENT OF SALE (the "Agreement") is made as of the 28th day of
August, 2001, by and between XXXX CAR WASH, INC., a Delaware Corporation, 0000
Xxxxxxxx Xxxxx, Xxxxx 000, Xx. Xxxxxx, Xxx Xxxxxx 00000 (the "Seller"), and 000
XXXXX XXXXXXXXX, XXX., or his nominee, 0000 Xxxxxxxxxx Xxxx, Xxxxxxxx,
Xxxxxxxxxxxx (the "Buyer").
Intending to be legally bound hereby, the parties hereto agree:
1. Sale and Purchase. Subject to the terms and conditions hereinafter set
-----------------
forth, Seller agrees to sell and convey to Buyer, and Buyer agrees to purchase
and accept from Seller:
1.1 all that certain lot or piece of ground described in Exhibit "A"
attached hereto (the "Land") , together with the related and appurtenant
structures, and together with all fixtures, including without limitation, trade
fixtures; heating, ventilation, air conditioning, plumbing, electrical,
drainage, fire alarms, communication, sprinkler, security and exhaust systems
and their component parts; pipes, pumps, storage and fuel tanks and other
equipment and improvements, exhaust to or forming a part of the Real Estate
(collectively the "Fixtures") and together with all easements, herediments,
rights and privileges appurtenant thereto (collectively the "Real Estate");
1.2 the following personal property (the "Personal Property") of
Seller used in connection with the operation of the Plaza Car Wash located on
the Real Estate (the "Business"):
1.2.1 All computers, tunnel master systems, printers, vending
machines, tools, hoses, brushes, auto wash equipment, auto wash
conveyor, auto drying equipment, hydraulic lifts, and similar items in
Sellers' possession or control, located in or on, or the Facility,
including without limitation the items specifically listed in Exhibit
"B" hereto (collectively, the "Equipment");
1.2.2 All furnishings, supplies, sales and promotional
materials, business files, customer records, computer programs and
software, and any construction or "as-built" plans and specifications
for the Facility, to the extent the foregoing are located in or on the
Real Estate;
1.2.3 All retail inventory and operating inventory pertaining
to the operation of the business located on the Facility;
1.2.4 All intangible personal property used in connection
with the business including but not limited to:
(1) all contracts with Buyer agrees to assume;
(2) all permits pertaining to the operation of the
business; and
(3) all intellectual property used in connection with
the operation of the car wash business including without limitation trade marks,
trade names, and the exclusive right
to use of the name "Plaza Car Wash", all good will associated with the business,
all telephone listings, advertisements and other intangible assets associated
with the business.
The Real Estate, Appurtenances and Personal Property are referred to
herein collectively as the "Property". Attached hereto as Exhibit "C" is a list
of the tangible Personal Property which has been executed on the date hereof by
Buyer and Seller.
2. Purchase Price. The purchase price for the Property (the "Purchase
--------------
Price") shall be One Million Two Hundred Thousand Dollars ($1,200,000.00). The
Purchase Price shall be paid to Seller by Buyer at closing by title insurance
company check.
3. Allocation of Purchase Price. The parties agree that the One Million
----------------------------
Two Hundred Thousand Dollar ($1,200,000.00) payment being made by Buyer shall be
allocated as follows:
Building $ 600,000.00
Land $ 250,000.00
Furniture, Fixtures and Equipment $ 150,000.00
Good Will $ 200,000.00
-------------
TOTAL: $1,200,000.00
4. Covenants, Representations and Warranties of Seller. Seller covenants,
---------------------------------------------------
represents and warrants to Buyer as follows:
4.1 Seller has the power and authority to sell, transfer, convey and
deliver the Property to be sold and purchased hereunder.
4.2 The execution and delivery of this Agreement, the consummation of
the transactions provided for herein and the fulfillment of the terms hereof
will not result in a breach of any of the terms or provisions of, or constitute
a default under, any agreement of Seller or any instrument to which Seller is a
party or by which Seller or the Property is bound, or any judgment, decree or
order of any court or governmental body, or any applicable law, rule or
regulation.
4.3 As of the date of execution of this Agreement, no public
improvement assessments have been made against the Real Estate which remain
unpaid, and no notice of any government or public authority has been served upon
Seller pertaining to any violations of the Zoning, Building, Safety or Fire
Ordinances of Morrisville Borough which remain uncorrected unless otherwise
specified herein. Any notice of improvements or assessments received on or
before the date of Seller's execution of this Agreement, shall be the
responsibility of Seller; any notices received thereafter shall be the
responsibility of the Buyer.
4.4 There do not exist any leases for any equipment, furniture or
trade fixtures used in connection with the Business, except as set forth on
Exhibit "D".
4.5 Seller has entered into no contracts in connection with the
Business which will have any affect upon the Business after Closing except as
set forth in Exhibit "E".
2
4.6 Seller warrants and covenants that Seller is the legal owner of
the Property and that the Property is not subject to any lease, option, right of
first refusal or agreement of sale and Seller shall indemnify, defend and save
Buyer harmless from and against the claims of any tenant or person claiming a
right, title or interest in or to the Property, except as set forth in Exhibit
"D".
4.7 Seller warrants and represents that to the knowledge of Seller
there is no action, suit, proceeding or bankruptcy pending or threatened against
Seller effecting the Property or relating to or arising out of ownership of the
Property or this Agreement.
4.8 Seller covenants that the Property to the best of its knowledge
is free and clear of all liens and encumbrances from and after the date hereof
and through the time of recording of the deed that is to be delivered by Seller
to Buyer under this Contract.
4.9 Seller warrants, represents and covenants that to its knowledge
there is no underground storage tank on the Property.
4.10 Seller warrants, represents and covenants that there is no
pending or threatened claim, action, complaint, notice of violation or
proceeding by any governmental authority or third party respecting the Property
arising out of any violation or alleged violation of any Environmental Law.
4.11 Seller warrants, represents and covenants that to Seller's
knowledge without making any special inquiry, the Property is in compliance with
all Federal, State and Local Environmental Laws.
4.12 Seller warrants, represents and covenants that to its knowledge,
Property is not in a flood plain.
4.13 Seller warrants, represents and covenants that to its knowledge
no wetland areas are included in the Property.
4.14 As of Closing, there will be no management, service or other
agreements with respect to the business other than those which Buyer has agreed
to assume.
4.15 To Seller's knowledge, no portion of the Property is in violation
of any obligation or requirement under, any law, ordinance, code, rule, order,
regulation or requirement of any governmental authority, any applicable
principle of common law, and there are no presently outstanding or uncured
notices of actual or asserted violations.
4.16 To Seller's knowledge no portion of the Property is being used,
or has been used at any previous time, for the production, disposal, treatment,
processing or other handling of (i) waste, contamination, PCB's or any other
toxic or hazardous substances as defined pursuant to the Comprehensive
Environmental Response Compensation and Liability Act, 41 U.S.C. 9601-9657, as
amended by the Superfund Amendments and Reauthorization Act of 1986, Pub. L. Xx.
00-000, 000 Xxxx. 0000 (Xxx. 17, 1986) ("CERCLA"); (ii) "regulated substances"
within the meaning of Title 1 of the Resource Conservation and Recovery Act, 42
U.S.C. 6991-6991i, as amended by the
3
Superfund Amendments and Reauthorization Act of 1986, Pub. L. Xx. 00-000, 000
Xxxx. 0000 (Xxx. 17, 1986); (iii) "hazardous waste" as defined pursuant to the
Pennsylvania Solid Waste Management Act, Pa. Stat. Xxx., Title 35, 601.8101 to
691.1003 (Xxxxxx'x Supp. 1987); (iv) any other substances which may be the
subject of liability pursuant to Section 316 or 401 of the Pennsylvania Clean
Streams Law, Pa. Stat. Xxx., Title 35, 691.1 to 691.1001 (Xxxxxx'x 1977 and
Supp. 1987); or (v) any other dangerous, toxic or hazardous pollutant,
contaminant, waste, material or substance as defined in or governed by any other
federal, state or local law, statute, code, ordinance, regulation, rule or other
requirement relating to such substances or otherwise relating to human health or
safety or the environment. Notwithstanding the above, car wash chemicals are
used at the property which chemicals contain regulated substances and hazardous
waste.
4.17 There are no persons employed or engaged by any Seller in
connection with the management, operation or maintenance of all or any portion
of the Assets whose employment agreements may not be terminated at will.
Sellers' have carried all necessary workers compensation insurance with respect
to all employees, up to the date of Closing, have filed all tax returns and
other required filings and have withheld and paid all amounts required by law to
be withheld or paid in respect thereof. Sellers' have received no notice of
violation of any provision of OSHA or any rule or regulation relating to the
health and safety conditions of any Seller's workplace.
The representations, warranties and covenants of this Article are made as
of the time of execution of this Contract and at the time of holding of
settlement, and the obligations of Buyer under this Contract are contingent upon
said representations, warranties and covenants being true and correct as of both
dates. The representations, warranties and covenants of this Article survive
closing for six (6) months. In addition, Seller hereby agrees to indemnify,
defend and save Buyer harmless from and against any and all loss, damage,
liability, penalties, fines and the like, of whatever nature, including
attorneys' and environmental expert fees should any of the foregoing
representations or warranties prove to be untrue or inaccurate, provided no
indemnification and hold harmless shall apply or be available six (6) months
after closing. There are no implied representations or warranties other than
those expressly set forth herein. Except as set forth the property is being sold
"As-Is" with no warranties.
5. Representations and Warranties of Buyer. Buyer represents and warrants
---------------------------------------
to Seller as follows:
5.1 Buyer has the power and authority to purchase the Property
hereunder.
5.2 The execution and delivery of this Agreement, the consummation of
the transactions provided for herein and the fulfillment of the terms hereof
will not result in a breach of any of the terms or provisions of, or constitute
a default under, any agreement of Buyer or any instrument to which Buyer is a
party or by which Buyer is bound or any judgment, decree or order of any court
or governmental body or any applicable law, rule or regulation.
5.3 All other representations and warranties of Buyer contained in
this Agreement shall have been true and correct when made and shall be true and
correct on the date of Closing.
6. Closing.
-------
4
6.1 The Closing under this Agreement (the "Closing") shall be held on
or before August 31, 2001, or on such earlier date as Buyer may designate upon
five (5) days prior written notice to the parties. Time is understood to be of
the strict essence hereof.
6.2 At Closing, Seller shall deliver to Buyer the following:
6.2.1 A special warranty deed to the Real Estate, duly
executed and acknowledged by Seller and in proper form for recording,
conveying fee simple title to the Real Estate to Buyer;
6.2.2 Possession to the Real Estate shall be delivered in "as
is" condition.
6.2.3 Xxxx of Sale for the tangible Personal Property in the
form attached as Exhibit "G" hereto.
6.3 At Closing, Buyer shall deliver to Seller the following:
6.3.1 A title company check for the balance of the Purchase
Price.
7. Apportionments; Expenses.
------------------------
7.1 Apportionments. The following items shall be adjusted and
--------------
apportioned between Seller and Buyer as follows:
7.1.1 Taxes. All real estate taxes affecting the Property
-----
shall be pro rated on a per diem basis as of the Closing Date,
disregarding any discount or penalty and on the basis of the fiscal
year of the authority levying the same. If any of the same have not
been finally assessed, as of the date of Closing, for the current
fiscal year of the taxing authority, then the same shall be adjusted
at Closing based upon the most recently issued bills therefor, and
shall be re-adjusted immediately when and if final bills are issued.
7.1.2 Utilities. Charges for water, sewer rental, if any, and
---------
all other utilities shall be pro rated on a per diem basis as of the
Closing Date, disregarding any discount or penalty and on the basis of
the fiscal year or billing period of the authority, utility or other
person levying or charging for the same. If the consumption of any of
the foregoing is measured by meters, then in lieu of apportionment as
aforesaid Seller shall , obtain meter readings for each such meter on,
or as close as possible, to the date of closing and Seller shall pay
all charges thereunder through the date of the meter readings. If
there is no such meter or if the bills for any of the foregoing have
not been issued prior to the date of the Closing, the charges therefor
shall be adjusted at the Closing on the basis of charges for the prior
period for which bills were issued and shall be further adjusted when
the bills for the current period are issued. Seller and Buyer shall
cooperate to cause the transfer of the Property's utility accounts
from Seller to Buyer.
5
7.2 Expenses. Each party shall pay all its own expenses incurred in
--------
connection with this Agreement and the transactions contemplated hereby,
including, without limiting the generality of the foregoing, (i) all costs and
expenses stated herein to be borne by a party, and (ii) all of their respective
accounting, legal and appraisal fees. Buyer, in addition to Buyer's other
expenses, shall pay for (a) all recording charges incident to the recording of
the deed for the Real Estate, (b) all title insurance premiums. Seller and Buyer
shall each pay one half of all realty transfer taxes.
8. Damage or Destruction; Condemnation.
-----------------------------------
8.1 Risk of loss to the Property from fire or other casualty shall be
borne by Seller until Closing. If the Property or any portion thereof is
substantially damaged or is destroyed by fire or other casualty prior to Closing
and Seller is unable or fails to restore, by the date established for Closing,
the damaged portion of the Property to a condition equivalent to that which
existed immediately prior to the casualty, then Buyer shall have the option of
canceling the Agreement or electing to proceed. For purposes of this paragraph,
substantial damage shall be damage estimated by a contractor of Seller's
selection and reasonably acceptable to Buyer, to cost in excess of $50,000.00 to
repair. In the event that damage is not substantial or if, notwithstanding
substantial damage, Buyer elects to proceed with Closing, Seller shall assign to
Buyer all of the Seller's right, title and interest in the proceeds to be paid
on the claim of loss.
8.2 If prior to Closing, any portion of the Property becomes subject
to a condemnation proceeding or a threat thereof by public or quasi public
authority having the power of eminent domain, Seller shall immediately notify
Buyer thereof in writing and Buyer may elect to terminate this Agreement. For
purposes of this Paragraph, "substantial portion" shall be defined as a taking
of such portion of the Property such that Buyer's use of the Property would be
materially impacted as Buyer shall determine or the taking of such land which
prevents access to the Property from a public road. If Buyer elects to terminate
this Agreement, it shall so notify Seller within fifteen (15) days after Buyer
has received written notice of such proceedings from Seller and the Escrow Funds
shall be returned to the Buyer and this Agreement shall be deemed null and void
and the parties hereto shall have no further obligations to or recourse against
each other with regard to the matters provided for herein. If Buyer has not
elected to terminate this Agreement as provided in this Paragraph, the
transaction shall proceed as contemplated herein, in which event Buyer shall be
entitled to received all proceeds of any award or payment in lieu thereof.
8.3 All existing casualty insurance policies respecting the Property
shall be maintained and kept in full force and effect by Seller pending Closing.
9. Title.
-----
9.1 The title to the Property shall be such as will be insured at
ordinary rates by a reputable title insurance company designated by Buyer as
good and marketable, free and clear of all liens, restrictions, easements,
encumbrances, leases and other title objections other than those which Buyer
agrees to accept on or before Closing.
6
9.2 If title to the Property cannot be conveyed to the Buyer at the
time of settlement in accordance with the requirements of paragraph (a) above,
then Buyer shall have the right to take such title as Seller can convey, with an
abatement of the Purchase Price to the extent of liens of an ascertainable
amount created by Seller and not removed as objections from the title report,
provided that the amount of the abatement is paid to the then lien holder or
holders or to the title insurance company for the discharge or release of liens.
Buyer shall, as an alternative, have the right to terminate this Agreement in
which event the deposit of Buyer and interest earned thereon shall be returned
to Buyer and there shall be no further liability by either Buyer or Seller
hereunder and this Agreement shall become null and void.
9.3 In the event the Seller is unable to give a good and marketable
title and such as will be insurable by a reputable Title Insurance Company,
Buyer shall either take such title as the Seller can give without abatement of
Purchase Price, or be repaid all monies that Buyer has paid to Seller on account
of the Purchase Price, together with all expenses incurred by Buyer in
connection with pursuing the transaction.
10. Buyer's Contingencies. Buyer's obligation to settle under this
---------------------
Agreement shall be contingent upon the following:
10.1 Buyer obtaining all necessary municipal and governmental
approvals, permits and agreements required for Buyer's use of the Property for a
car wash in accordance with its existing use.
10.2 Buyer verifying that the Property is served by public water and
sewer by Morrisville Borough.
Buyer agrees to use reasonable diligence and act in good faith in pursuit
of the satisfaction of all contingencies.
10.3 Due Diligence.
-------------
10.4 Buyer shall have the right, upon advance notice to Seller, to
inspect the Property and the books and records of the Business for through the
date of Closing, which shall include the right to conduct environmental audits
of the Property (hereinafter referred to as the "Due Diligence Period"), at
Buyer's sole cost and expense. Buyer shall promptly commence and perform its due
diligence investigation following execution of this Agreement and Seller shall
provide reasonable access to the Property in cooperation with Buyer in
connection therewith. If the condition of the Property or business records are
determined to be unsatisfactory to Buyer, Buyer shall have the right to
terminate this Agreement by written notice given to Seller prior to the
expiration of the Due Diligence Period. In the event Buyer terminates this
Agreement in accordance with this paragraph, Buyer's deposit money, together
with interest, shall be returned to Buyer, and this Agreement shall be null and
void, and Buyer and Seller shall thereafter have no further obligations
hereunder.
7
10.5 Buyer shall indemnify, defend and hold Seller harmless from and
against any costs, damage, expense, liability, claim, suit or proceeding,
arising from or relating to such inspection, and Buyer shall restore Property to
the condition existing prior to the inspection.
10.6 If Buyer does not terminate this Agreement in writing within the
Due Diligence Period, Buyer's right to terminate pursuant to this paragraph
shall lapse.
10.7 It is understood and agreed that Buyer and Buyer's agents,
representatives, inspectors, and other persons designated by Buyer or Lender of
Buyer shall have the right from time to time from and after the date of this
Agreement to enter upon the Property for the purpose of inspection, preparation
of plans, taking of measurements, making of appraisals, and generally for the
ascertainment of the condition of the Premises and the obtaining of such
information as may be necessary for Buyer and Lender of Buyer.
Seller's Contingencies. Bank One, NA shall consent to the sale of the
----------------------
Property by Seller to Buyer. Bank One, NA has the approval right to the sale
under loan agreements between Seller and Bank One, NA.
11. Defaults Prior to Closing.
-------------------------
11.1 Should Seller violate or fail (in breach of its obligations
hereunder) to fulfill or perform any of the terms, conditions or undertakings
set forth in this Agreement applicable to him at or prior to Closing, and if as
a result thereof a Closing hereunder shall not occur, then in such case Buyer's
sole remedy shall be the right to specific performance.
12. Notices. All notices and other communications hereunder shall be in
-------
writing (whether or not a writing is expressly required hereby), and shall be
deemed to have been given if hand delivered or sent by an express mail service
or by courier, then if and when delivered to and received by the respective
parties or one (1) day after delivery was refused at the below addresses (or at
such other address as a party may hereafter designate for itself by notice to
the other party as required hereby):
12.1 If to Seller:
------------
Xxxx Car Wash Inc.
0000 Xxxxxxxx Xxxxx
Xxxxx 000
Xx. Xxxxxx, XX 00000
With a required copy to Agent and:
---------------------------------
12.2 If to Buyer:
-----------
Xxxxxxx X. Xxxxxxxx
0000 Xxxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
With a required copy to Agent and:
---------------------------------
Xxxx X. Xxxxxxx, Esquire
8
Xxxxxx, Xxxxxx & Mandio
000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000
13. Condition of the Property. Buyer agrees to accept the Property at
-------------------------
Closing in the same condition as existed upon the conclusion of the Due
Diligence, subject to ordinary wear and tear,.
14. Commission. Buyer and Seller represent and warrant that neither party
----------
has been represented by a real estate broker in connection with this transaction
and that no commission in connection with the sale of this Real Estate are due
to any real estate broker.
15. Miscellaneous.
-------------
15.1 Tender. Formal tender of an executed deed and purchase money is
------
hereby waived; but nothing herein shall be deemed a waiver of the obligation of
Seller to execute, acknowledge and deliver the deed to the Property or the
concurrent obligation of Buyer to pay the Purchase Price.
15.2 Time of the Essence. All times, wherever specified herein, are of
-------------------
the essence of this Agreement.
15.3 FIRPTA. At Closing, Seller shall deliver to Buyer a written
------
certification in the form of Exhibit "I" to Buyer and dated no earlier than ten
(10) days prior to the date of Closing, which certification shall be in
compliance with The Tax Reform Act of 1984 (the "Act") and the regulations
thereunder that are imposed by the Foreign Investment in Real Property Tax Act
("FIRPTA"), and certifying that Seller is not a person subject to withholding
under FIRPTA and the Act, and containing Seller's tax identification number and
address.
15.4 Governing Laws; Parties at Interest. This Agreement shall be
-----------------------------------
governed by Pennsylvania law and shall bind and inure to the benefit of the
parties hereto and, their respective heirs, executors, administrators, personal
representatives, successors and assigns.
15.5 Headings. The headings preceding the text of the paragraphs and
--------
subparagraphs hereof are inserted solely for convenience of reference and shall
not constitute a part of this Agreement, nor shall they affect its meaning,
construction or effect.
15.6 Entire Agreement; Amendments. This Agreement and the Exhibits
----------------------------
hereto set forth all of the promises, covenants, agreements, conditions and
undertakings between the parties hereto with respect to the subject matter
hereof, and supersede all prior and contemporaneous agreements and
understandings, inducements or conditions, express or implied, oral or written,
except as contained herein. This Agreement may not be changed orally but only by
an agreement in writing, duly executed by or on behalf of the party against whom
enforcement of any waiver, change, modification, consent or discharge is sought.
9
16. Assignability. It is agreed that Buyer may assign this Agreement to a
-------------
nominee.
17. Approval. The sale is made subject to the written approval of Seller
--------
within five (5) days of Buyer's execution hereof.
18. Counterparts. This Agreement may be executed simultaneously in two (2)
------------
or more counterparts, each of which shall be deemed an original, but all of
which together constitute one and the same instrument. The counterparts may be
executed and delivered by facsimile signature and will be binding based on such
execution.
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement
on the date and year first above written.
XXXX CAR WASH INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxxxx, Treasurer
Attest: /s/ Xxxxxxx X. Xxxxxx
000 XXXXX XXXXXXXXX, INC.
By: /s/ Xxxxxxx Xxxxxxxxx
Xxxxxxx Xxxxxxxx, President
Attest: /s/ Xxxx X. Xxxxxxx
10
