AGREEMENT OF PURCHASE AND SALE
THIS AGREEMENT OF PURCHASE AND SALE ("Agreement") is made this 19th day
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of January 1996, by and between Autotote Systems, Inc. (hereinafter, "Seller")
and Xxxxx Properties, L.P. or its assigns (hereinafter, "Purchaser").
WITNESSETH:
That for and in consideration of the mutual covenants and agreements
hereinafter contained, the undersigned parties hereto, intending to be legally
bound hereby, agree as follows:
1. PROPERTY.
Seller agrees to sell and Purchaser agrees to purchase all of that
certain piece or parcel of land known as 000 Xxxxxxxx Xxxx, Xxxxxx, Xxxxxxxx,
consisting of a lot of approximately 4.17 acres, together with an
office/warehouse building (hereinafter, ("Building") located thereon containing
approximately 40,000 square feet of gross space (hereinafter, "Property").
2. PURCHASE PRICE. The purchase price for the Property is One Million
Dollars (USC) ($1,000,000.00) payable by Purchaser to Seller at settlement as
hereinafter set forth. Upon execution of this Agreement by the parties,
Purchaser shall deposit with its attorney, Xxxxxx Xxxxx Xxxxxx, Esquire (Bar No.
2770), or Xxxx X. Xxxxx, III, Esquire (Bar No. 139) the sum of $80,000 in
readily available funds, which sum is to be held in escrow in an FDIC interest
bearing account until either (i) this Agreement is rightfully cancelled by
Purchaser as a permitted termination pursuant to Section 10 (a)-(c), or final
settlement in which event this deposit shall be refunded with interest to
Purchaser; or (ii) default of Purchaser occurs, in which event the deposit with
interest shall be delivered and paid over to Seller pursuant to Section 11(a)(4)
hereinbelow. The installments shall be paid over as follows:
(a) Upon execution of this Agreement 8% = $80,000.00
To Be Held In Escrow
(b) In readily available funds
at final settlement 92% = $920,000.00
TOTAL PURCHASE PRICE 100% = $1,000,000.00
3. SETTLEMENT. Final settlement shall be held on January 20, 1995, or at
such time as mutually agreed upon by the parties hereto.
4. POSSESSION. Seller shall deliver possession of the Property to
Purchaser on the day of settlement. Seller agrees that this entire Agreement is
subject to Seller and Purchaser
AGREEMENT OF PURCHASE AND SALE
XXXXX/AUTOTOTE
PAGE 2
entering into a mutually accepted lease (hereinafter, "Lease") agreement on
separate form.
5. RISK OF LOSS. All risk of loss to the Property shall be borne by
Seller until the date and time of settlement.
6. TITLE. The title to the Property shall be a good, fee simple,
marketable title, free and clear of all liens and encumbrances except (a)
existing restrictions, rights-of-way, reservations, conditions and easements of
record; and (b) agreements with telephone, gas, water, and electric and other
public utility companies. In the event Seller is unable to give good and
marketable title, subject to the aforesaid, Purchaser shall have the option of
taking such title as Seller can give, or of being repaid all monies paid by
Purchaser on account of the purchase price, together with the cost of searching
title as Purchaser may have incurred and this Agreement shall become null and
void.
7. CLOSING COSTS, PRORATIONS AND TRANSFER FEES. All costs in connection
with the closing of title customarily paid by purchasers of real estate in New
Castle County, Delaware, including title insurance premiums, hazard insurance
premiums, financing charges, recording fees, and survey, shall be paid at the
closing by Purchaser. All property taxes, water and sewer charges shall be
prorated as of the date of settlement. Applicable state and local transfer taxes
shall be divided equally between Seller and Purchaser.
8. CONDITION OF PROPERTY. Seller agrees to deliver the Property to
Purchaser at settlement in its present "AS IS" condition. If the Property is
damaged prior to settlement by fire or other casualty, Purchaser may either (a)
accept the Property in its damaged condition together with an assignment of any
insurance proceeds to which Seller is entitled; or (b) terminate this Agreement.
Seller represents that the property is insured under a standard "all risk"
policy of insurance for its full replacement value and agrees to maintain such
insurance until settlement.
9. REPRESENTATIONS OF SELLER; WARRANTIES. Seller hereby warrants and
represents to Purchaser, and to Purchaser's successors and assigns that, to the
best of Seller's knowledge, information and belief, and without any independent
investigation thereof:
(a) That no condemnation proceedings have been instituted against the
Property.
AGREEMENT OF PURCHASE AND SALE
XXXXX/AUTOTOTE
PAGE 3
(b) That there presently are not pending any special assessments against
the Property. Seller's warranties contained in this paragraph shall survive
settlement.
(c) That water, sanitary sewer, electric, gas and telephone service lines
are available to the Property and will adequately serve the Property, for its
intended use as a 40,000 square foot one-story office/warehouse building.
Seller's warranties contained in this paragraph shall survive settlement.
(d) That the Property is properly zoned and subdivided and has all
necessary governmental approvals, licenses, and permits for its intended use as
a 40,000 square foot one-story office/warehouse building. Seller's warranties
contained in this paragraph shall survive settlement.
(e) That (i) no hazardous substance (as defined in Section 101(14) of the
Comprehensive Environment Response, Compensation and Liability Act ("CERCLA") 42
U.S.C. Section 9601 (14), is present on the Property in concentrations for which
remediation is required; (ii) that Seller has not been identified in any
litigation, administrative proceeding or investigation as a responsible party
for any liability under the above-referenced law; (iii) that no hazardous
substances or solid wastes have been treated, stored or disposed of or otherwise
deposited in or on the Property, whether by action of nature or by man,
including but not limited to the action or condition of surface waters on the
Property which may support a claim or cause of action for violation of any
statute, ordinance, or environmental rule or regulatory requirement. Seller's
warranties contained in this paragraph shall survive settlement.
(f) That there are no underground storage tanks (as defined in 7 Del.C.
Sections 7402) located in or on the property. Seller's warranties contained in
this paragraph shall survive settlement.
(g) That the Property is not within any area determined by the Department
of Housing and Urban development to be flood prone under the Federal Flood
Protection Act of 1973 or within any area determined by any regulatory agency or
governmental authority to be wetlands.
(h) That it has not received any notice whatsoever, that the Property has,
or ever has had any radon presence whatsoever. Seller's warranties contained in
this paragraph shall survive settlement.
(i) That it is not aware, and has not received any notice whatsoever, that
the Property has, or ever had any factors that
AGREEMENT OF PURCHASE AND SALE
XXXXX/AUTOTOTE
PAGE 4
may hinder rental and/or resale. By way of example and not by way of limitation
such factors include radon, asbestos, sink holes, service rock, historical sites
or burial grounds, or any other items which could reasonably be expected to
hinder development or use whatsoever. Seller's warranties contained in this
paragraph shall survive settlement.
(j) That for a period of (10) years following settlement, Seller shall be
responsible for and indemnify Purchaser against any loss, claim, damage or
liability, to include property damage and personal injury, asserted by any third
party or public authority, which occurs directly as a result of any leak, spill,
or other discharge of any hazardous substance caused by the negligent or wilful
actions of Seller or its employees, and provided such leak, spill or discharge
occurs during the period of Seller's ownership or lease of the Property.
Seller's warranties contained in this paragraph shall survive settlement.
10. CONTINGENCIES; CONDITIONS PRECEDENT. This Agreement is expressly
subject to the conditions set forth hereinbelow. In the event that any one or
more of these conditions are not satisfied or waived by Purchaser prior to
settlement, then Purchaser, at his option, may terminate this Agreement with no
further obligation hereunder and all deposit monies, plus all interest earned
thereon, shall be returned to Purchaser. The conditions which must be satisfied
or waived in a writing signed by Purchaser, are as follows:
(a) Structural And Systems Inspection. Purchaser's receipt of a general
structural and systems inspection performed by purchasers representative or
contractor satisfactory to Purchaser indicating that the Building is
structurally sound and all appurtenant systems and roof are in good condition,
working order and state of repair. Purchaser agrees to use reasonable efforts
to satisfy these conditions. Satisfaction of this condition shall be
accomplished by Purchaser at Purchaser's cost.
(b) Environmental Assessment. Purchaser's receipt of a preliminary
environmental assessment report satisfactory to Purchaser, obtained at
Purchaser's expense indicating no level of contamination or friable asbestos or
other hazardous materials at, on or in the Property. Purchaser agrees to use
reasonable efforts to satisfy these conditions. Satisfaction of this
AGREEMENT OF PURCHASE AND SALE
XXXXX/AUTOTOTE
PAGE 5
condition shall be accomplished at by Purchaser at Purchaser's cost.
(c) Execution Of Lease By And Between Seller And Purchaser. Seller and
Purchaser entering into a mutually satisfactory Lease respecting rental of the
Property by Seller from Purchaser on separate forms at previously agreed upon
terms and conditions as outlined in a fully executed letter of intent dated
September 22, 1995, referenced in Exhibit A of this Agreement.
11. TERMINATION, DEFAULT AND REMEDIES.
(a) Purchaser's Failure To Perform. If Purchaser fails to perform timely
any of Purchaser's obligations hereunder for any reason other than (1) a
permitted termination pursuant to this Agreement by Purchaser or (2) Seller's
failure to perform Seller's obligations under this Agreement, then, except as
provided in subsection 11(a)(4) hereinbelow, Seller, as Seller's sole and
exclusive remedy, shall have the right to terminate this Agreement by giving
written notice thereof to Purchaser at or before settlement.
(1) A permitted termination is one arising by virtue of (A) the non-
occurrence of a condition precedent, as hereinbefore provided in Section 10(a)-
(c), provided that such non-occurrence is not attributable to the failure of
Purchaser to use reasonable efforts to satisfy such a condition precedent, or
(B) the receipt by Purchaser of such information as would cause a person of
reasonable prudence to call into question (i) the good faith basis of one or
more of the warranties and representations of Seller made in Section 9 herein
(hereinafter individually and collectively, "WARRANTIES"), (ii) the credibility
of such WARRANTIES in light of information received by Purchaser or (iii) the
likelihood that Seller will be unable to perform its obligations with respect to
one or more of the WARRANTIES contained therein in light of information received
by Purchaser.
(2) In the event that Seller gives notice of termination in accordance
with this section, then neither party shall have any further rights or
obligations under this Agreement, and the Escrow Agent shall deliver the deposit
with interest to Seller as
AGREEMENT OF PURCHASE AND SALE
XXXXX/AUTOTOTE
PAGE 6
liquidated damages, free of any claims by Purchaser or any other person with
respect thereto.
(3) Notice of intention to declare this Agreement so terminated shall be
given in writing to Purchaser and at the expiration of ten days from the date of
the receipt of such notice, such termination shall be effective and this
Agreement shall be terminated unless and except within such time Purchaser shall
have remedied any such default.
(4) It is agreed by Purchaser that the deposit to which Seller is entitled
hereunder is a reasonable forecast of just compensation for the harm that would
be caused by Purchaser's breach and that the harm that would be caused by such
breach is one that is incapable or very difficult of accurate estimation.
(b) Seller's Failure To Perform. If Seller fails to perform any of
Seller's obligation hereunder for any reason other than (1) a permitted
termination pursuant to this Agreement by Seller or (2) Purchaser's failure to
perform Purchaser's obligations under this Agreement, then Purchaser shall have
the right either to (1) terminate this Agreement by giving written notice
thereof to Seller at or before settlement, or (2) to specifically enforce this
Agreement. In the event that Purchaser elects to terminate this Agreement as
provided in this subsection, Seller shall reimburse Purchaser for all costs
reasonably incurred in connection with preparation for the proposed settlement,
including but not limited to attorneys fees, surveys, and title searches.
(1) A permitted termination is one arising by virtue of (A) the non-
occurrence of a condition precedent, as hereinbefore provided in Section 10(c),
provided that such non-occurrence is not attributable to the failure of Seller
to use reasonable efforts to satisfy such a condition precedent, or (B) the
receipt by Seller of such information as would cause a person of reasonable
prudence to call into question Purchaser's financial ability timely to complete
the Purchase or otherwise fund the Escrow.
(2) In the event that Seller gives notice of termination in accordance
with this section, then neither party shall have any further rights or
obligations under this Agreement, and the Escrow Agent shall deliver the deposit
with accrued interest to Purchaser, free of any claims by Seller or any other
person with respect thereto, including but not limited to CB Commercial Real
AGREEMENT OF PURCHASE AND SALE
XXXXX/AUTOTOTE
PAGE 7
Estate Group, Inc., or any agents thereof.
(3) Notice of intention to declare this Agreement so terminated shall be
given in writing to Seller and at the expiration of ten days from the date of
the receipt of such notice, such termination shall be effective and this
Agreement shall be terminated unless and except within such xxxx Xxxxxx shall
have remedied any such default.
12. NOTICE. Any notice required to be given herein shall be in writing
and sent by U.S. Certified Mail, Return Receipt Requested, or by any overnight
delivery service which provides receipted deliveries as follows:
(a) Notice To Purchaser shall be directed to:
Xx. Xxxxxxx X. Xxxxx
Xxxxx Properties
000 Xxxxxxx Xxxx
Xxx Xxxxxx, XX 00000
(b) Notice To Seller shall be directed to:
Mr. Xxxxxx Xxxxxx
Autotote Systems, Inc.
000 Xxxxxxxx Xxxx
Xxxxxx, XX
(c) Copies Of Any Notice To Purchaser or Seller shall be directed to:
Xx. Xxxx Xxxxx
Vice President
CB Commercial Real Estate Group, Inc.
000 X. Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
(000) 000-0000
(000) 000-0000
Mr. Xxx Xxxxxx
Vice President
CB Commercial Real Estate Group, Inc.
000 X. Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
(000) 000-0000
(000) 000-0000
(d) Notwithstanding the foregoing, notice shall be sent to
AGREEMENT OF PURCHASE AND SALE
XXXXX/AUTOTOTE
PAGE 8
such other address or to such other substitute person as any party hereunder
designates in writing upon notice to the other party.
13. COMMISSIONS. Except with respect to Seller's engagement of CB
Commercial Real Estate Group, Inc. (hereinafter, "CB"), as its agent, and
Seller's obligation to pay CB a five (5%) commission based on the purchase price
at the time of settlement, each party hereto represents to the other that such
party has not retained any other broker for the purpose of this transaction and
that no commission, except that set forth is due or payable to any one in
connection with this agreement.
14. TIME OF THE ESSENCE. Time is of the essence in this Agreement.
15. PARTIES HERETO. The terms "Seller" and "Purchaser" refer to the
parties hereto and also include the respective successors, assigns, heirs,
executors, personal representatives, and administrators of the parties hereto.
16. CONSTRUCTION OF AGREEMENT. This Agreement contains all the terms,
covenants and representations which are intended to be binding upon the parties.
No representation, condition or understanding not expressed herein shall be
binding upon the parties, unless subsequent to the date hereto and signed by
both Purchaser and Seller. This Agreement shall be construed in accordance with
the laws of the State of Delaware, except that no questions shall be resolved
for or against any party based on consideration of authorship.
17. FOREIGN INVESTMENT IN REAL PROPERTY TAX ACT. The Foreign Investment
In Real Property Tax Act ("FIRPTA"), IRC 1445, requires that every purchaser of
U.S. Real Property must, unless an exemption applies, deduct and withhold from
Seller's proceeds ten percent of the gross sales price. The primary exemptions
which might be applicable are: (a) Seller provides Purchaser with an affidavit
under penalty of perjury, that Seller is not a "foreign person," as defined in
FIRPTA, or (b) Seller provides Purchaser with a "qualifying statement," as
defined in FIRPTA, issued by the Internal Revenue Service. Seller and Purchaser
agree to execute and deliver as appropriate, any instrument, affidavit and
statement, and to perform any acts reasonably necessary to carry out the
provisions of FIRPTA and regulations promulgated thereunder.
AGREEMENT OF PURCHASE AND SALE
XXXXX/AUTOTOTE
PAGE 9
IN WITNESS WHEREOF, the parties hereto have hereunto set their respective
hands and seals the day and year first written above.
SELLER: AUTOTOTE SYSTEMS, INC.
/s/ [Signature Illegible] /s/ [Signature Illegible] (SEAL)
-------------------------- --------------------------
WITNESS Authorized Representative
PURCHASER: XXXXX PROPERTIES, L.P.
/s/ [Signature Illegible] /s/ [Signature Illegible] (SEAL)
-------------------------- --------------------------
WITNESS Authorized Representative
[LETTER HEAD OF CB COMMERCIAL APPEARS HERE]
EXHIBIT A
September 22, 1995
Xx. Xxxxxxx X. Xxxxx
President & CEO
Xxxxx Properties
000 Xxxxxxx Xxxx
Xxx Xxxxxx, XX 00000
RE: 000 XXXXXXXX XXXX, XXXXXX, XXXXXXXX
Dear Xxxx:
On behalf of the ownership, Autotote, Incorporated, we have been authorized to
respond to your purchase proposal dated August 3, 1995.
PURCHASE PRICE: $1,000,000.00
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DEPOSIT: $100,000 to be placed in escrow at signing at agreement
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of sale.
RENTAL RATE: $4.50/per square foot, NNN
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TENANT: Autotote, Inc. will remain as a Tenant in the building
------
commencing at settlement.
TERM: Five (5) years
----
RENEWAL OPTION: Tenant to have one (1) five (5) year renewal option at
--------------
$5.25 PSF at the same conditions as the original lease
document.
LEASE ISSUES: Tenant will be responsible for all of the maintenance
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and operating expenses of the building as defined in a
standard NNN Industrial lease document with the following
exceptions:
(1) Tenant will warrant roof maintenance and repair or
replacement if necessary for a period of three (3)
years. Thereafter, Landlord will assume all
responsibility for roof repairs and replacement beyond
$10,000 per annum.
(2) Tenant to be responsible for HVAC maintenance and
repair for a period of three (3) years. Thereafter,
Tenant and Landlord will split HVAC replacement or
capital expenditures on a 50%/50% basis.
Xx. Xxxxxxx X. Xxxxx
September 22, 1995
Page Two
(3) Tenant will be responsible for parking lot maintenance
and repair for the entire lease term.
PHASE I
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ENVIRONMENTAL: Buyer's Responsibility
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CONTINGENCY: This offer is subject to Autotote, Incorporated's banking
------------
agent's approval and expires September 29, 1995.
Xxxx, thank you for your interest and we look forward to consummating a
transaction which accomplishes everyone's mutual objectives.
Sincerely,
CB COMMERCIAL
REAL ESTATE GROUP, INC. /s/ [Signature Illegible]
-------------------------
AGREED TO AND ACCEPTED
/s/ [Signature Illegible]
Xxx Xxxxxx /s/ [Signature Illegible]
-------------------------
Vice President Title:
(000) 000-0000
Xxxx Xxxxx
Vice President
(000) 000-0000
cc: Xxxx Xxxx
Xxx Xxxxxx
