City and County of
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Philadelphia, Pennsylvania
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OPTION TO PURCHASE AND DEVELOPMENT AGREEMENT
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This Option to Purchase and Development Agreement ("Agreement") made as of
this 27th day of March, 1998 by and between Delaware Avenue Enterprises, Inc., a
Pennsylvania corporation ("DAE"), and Xxxx Hauling and Warehousing System, Inc.,
a Delaware corporation ("Xxxx").
RECITALS
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A. DAE is the owner of approximately 11.5 acres of property located on the
Delaware River north of Packer Avenue, in the City and County of Philadelphia,
Pennsylvania, identified as Lot 61 in Block __________ on the City of
Philadelphia Tax Map (the "Premises"). The Premises are more particularly
described in Exhibit A attached hereto. The Premises are one of six contiguous
parcels owned by DAE in the area of Delaware Avenue, Xxxxxx Street, the Delaware
River, and Packer Avenue known as the Publicker Industries, Inc. Superfund Site
("Publicker Site" or "Site"). The Publicker Site has been the subject of an
environmental cleanup pursuant to the Comprehensive Environmental Response,
Compensation and Liability Act ("CERCLA") of 1980, 42 U.S.C. ss.9601 et seq.
B. DAE has cleared the Publicker Site of existing aboveground and
underground structures while conducting a portion of the environmental cleanup
under the direction of the United States Environmental Protection Agency
("EPA"), and now plans to develop a marginal port facility on the Publicker
Site.
X. Xxxx desires to purchase for Eight Million ($8,000,000) Dollars an
option to acquire the Premises from DAE, and DAE is willing to xxxxx Xxxx an
option to acquire the Premises, on the terms hereinafter set forth.
D. As additional consideration for purchasing this option, Xxxx is willing
to loan DAE Ten Million ($10,000,000) Dollars (the "Xxxx Loan"), which debt
shall be memorialized in a Note executed contemporaneously with this Agreement
and secured by a Mortgage on the entire Publicker Site. The Xxxx Loan shall be
used to develop the Premises as part of the overall Publicker Site development,
in exchange for which DAE is willing to expend not less than an additional Forty
Million ($40,000,000) Dollars to develop the Premises.
NOW, THERFORE, in consideration of the foregoing and of the mutual promises
contained herein, and intending to be legally bound, the parties agree as
follows:
1. Grant of Option. For and in consideration of the payment described in
Paragraph 3 below, DAE grants to Xxxx, and Xxxx takes from DAE, the option to
purchase the Premises (the "Purchase Option") at any time during the term of
this Agreement by giving written notice to DAE (the "Exercise Notice") of its
election to exercise the Purchase Option.
2. Term and Termination.
(a) Term. The term of this Agreement shall commence as of the date
hereof and shall end as of 11:59 p.m. on December 31, 2013.
(b) Termination. Xxxx may terminate the term of this Agreement at any
time and for any reason whatsoever by giving written notice of such election to
DAE, in which event this Agreement shall become null and void and neither party
shall have any further obligations of liabilities to the other.
3. Option Payment. Xxxx has paid to DAE contemporaneously with the
execution of this Agreement the sum of Eight Million ($8,000,000) Dollars in
consideration of DAE's grant of the Purchase Option to Xxxx (the "Option
Payment").
4. Agreement of Sale. Upon the date that Xxxx exercises the Purchase
Option (the "Exercise Date"), this Agreement shall constitute an agreement of
sale between DAE and Xxxx or its nominee or assignee, whereby DAE agrees to sell
and Xxxx agrees to purchase the Premises upon the following terms and
conditions:
(a) Closing. Closing for the purchase of the Premises shall be held
within ninety (90) days of the Exercise Date, at such time, date and place as
shall be set forth in a notice from Xxxx to DAE after the Exercise Date (the
"Closing"). The closing date shall not be earlier than forty-five (45) days nor
later than ninety (90) days after the Exercise Date (the "Closing Date").
(b) Purchase Price. The parties agree that the purchase price shall be
one hundred twenty percent (120%) of any sums expended by DAE after the date
hereof for improvements to the Premises, whether financed by the Xxxx Loan or by
any other sources, it being understood that no portion of the Option Payment
shall be credited against the purchase price.
(c) Adjustments. DAE shall pay for all transfer taxes, documentary
stamps and recording fees necessary to execute and record the Deed (as defined
in subparagraph 4(d)). Xxxx shall bear the cost of title insurance described in
subparagraph 4(d), but DAE shall bear all costs in the form of abatement of the
purchase price associated with placing such title in the condition required by
such subparagraph. Real estate taxes and water and sewer rents and charges (if
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any) shall be apportioned pro rata on a per diem basis as of the Closing Date.
(d) Condition of Title. At Closing, DAE shall convey to Xxxx good and
marketable fee simple title to the Premises by delivery of a special warranty
deed, in recordable form (the "Deed"), such title to be free and clear of all
liens, leases, encroachments, easements, restrictions, title company objections,
and other encumbrances, except for those approved by Xxxx, in its sole
discretion. Xxxx'x title shall be insurable as aforesaid at ordinary rates by
any reputable title company of Xxxx'x choice (the "Title Company") pursuant to
an ALTA Owner's Policy of Title Insurance - 1970 - Form B - Amended October 17,
1970, with such endorsements thereto as Xxxx shall request.
(e) Title Affidavits, Etc. DAE agrees that it shall execute any
instruments, agreements, affidavits or other documentation reasonably required
by the title company insuring Xxxx'x title in order to effectuate the
transaction contemplated hereby, and DAE further agrees to execute any and all
affidavits required by such title company as a condition to its insuring such
title as aforesaid.
(f) Failure of Title. If title to any part of the Premises shall not be
in accordance with the requirements of subparagraph 4(d) above, Xxxx shall have
the option of taking such title to the Premises as DAE can give with an
appropriate abatement of the purchase price and/or of terminating this Agreement
in which event all sums paid by Xxxx under paragraph 3 above shall be returned
by DAE to Xxxx.
(g) FIRPTA Certification. DAE agrees to sign and deliver at Closing a
certification in form reasonably acceptable to Xxxx in compliance with the
Foreign Interest in Real Property Transfer Act.
(h) Survey. DAE recognizes that Xxxx may obtain a survey plan of the
Premises prepared by a registered surveyor qualified to practice in the
Commonwealth of Pennsylvania. At the option of DAE, a description of the
Premises contained in the Deed shall be based upon the survey as well as the
record description of the Premises.
(i) Automatic Extension of Term. Xxxx'x delivery to DAE of an Exercise
Notice shall automatically extend the term of this Agreement for a sufficient
period of time beyond the expiration date to accommodate the time periods
provided in this Paragraph 4 (such as, without limitation, the possible
occurrence of Closing on as late as the 90th day after the Exercise Date).
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5. Operations Prior to Closing.
(a) DAE, in further consideration for the Option Payment made by Xxxx
hereunder, shall make capital improvements to the Premises of not less than
Fifty Million ($50,000,000) Dollars, of which Ten Million ($10,000,000) Dollars
may consist of the Xxxx Loan, according to the following schedule: on or prior
to the fifth anniversary of this Agreement, DAE shall have spent not less than
Twenty Five Million Dollars ($25,000,000) on said capital improvements, and not
less than an additional Twenty Five Million Dollars ($25,000,000) on said
capital improvements on or prior to the tenth anniversary of this Agreement.
(b) Xxxx shall have the right to make periodic inspections of DAE's
capital improvements during their construction by giving DAE reasonable advance
notice.
(c) DAE shall not, without the prior written approval of Xxxx, enter
into any contract for, or on behalf of, or affecting the Premises, nor enter
into any new lease, or any amendment, modification or terminaton of any existing
lease affecting the Premises.
(d) All payments required to be made to contractors, subcontractors,
mechanics, materialmen and all other persons in connection with work done or
services performed with respect to the Premises shall be made by DAE as and when
due, but in any event prior to the Closing Date, and as of the Closing Date
there shall be no basis for the filing of any mechanics' or materialmens' liens
against the Premises or any part thereof on the basis of any work done or
services performed with respect to the Premises.
(e) DAE shall promptly deliver to Xxxx a copy of any tax xxxx, notice or
assessment, or notice of change in a tax rate or assessment affecting the
Premises or any part thereof, any notice or claim of violation of any law, any
notice of any taking or condemnation affecting or relating to the Premises or
any part thereof, or any other notice affecting or relating to the Premises or
any part thereof.
6. Representations and Warranties. DAE, to induce Xxxx to enter into this
Agreement, represents and warrants to Xxxx as follows:
(a) DAE has full power and legal right and authority to enter into and
perform its obligations under this Agreement, and the execution and delivery of
this Agreement requires no further action or approval in order to make this
Agreement a binding and enforceable obligation of DAE.
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(b) There are no individuals or entities other than those comprising
DAE which have any legal, equitable or other claim or right with respect to the
Premises or any part thereof.
(c) No consent of any third party is required by DAE to enter into this
Agreement or to consummate the terms of this Agreement, were Xxxx to exercise
the Purchase Option.
(d) DAE has no knowledge of any violations of any federal, state or
local law, ordinance, order, regulation or requirement affecting any portion of
the Premises or of any outstanding written notice of any such violation by any
governmental authority as of the date hereof. DAE shall cure, prior to Closing,
any such violation of which DAE or Xxxx receives notice prior to the Closing
Date.
(e) There are no leases, tenancies, licenses or other rights of
occupancy or use for any portion of the Premises, and no other contracts or
agreements with respect to or affecting any portion of the Premises.
(f) No portion of the Premises is the subject of any abatement,
reduction, deferral or "rollback" with regard to real estate taxes nor any
agreement or arrangement whereby the Premises or any part thereof may be subject
to the imposition of real property taxes after the Closing Date on account of
periods of time prior to the Closing Date.
(g) There are no liens or encumbrances against the Premises and there
are no other parites that have or can assert a lien against the Premises.
7. Environmental Matters. DAE, under the supervision of EPA, has
substantially completed the environmental cleanup of the Publicker Site of which
the Premises are a part, as a result of which EPA has removed the Publicker Site
from the CERCLA National Priorities List. Although this cleanup has been
performed to EPA's satisfaction, DAE cannot represent or warrant that "hazardous
substances," as defined by CERCLA, the Hazardous Sites Cleanup Act, 35 P.S.
ss6020.101 et seq., or other relevant federal or state statutes and regulations
are not present to some extent in the soil, groundwater, or other media on the
Premises. Accordingly, Xxxx agrees to obtain this Purchase Option on an "as is"
basis, and would take title to the Premises on the same "as is" basis should
Xxxx choose to exercise the Purchase Option.
8. Investigation. DAE shall afford Xxxx and its representatives full
access to the Premises, to all files, records and other information relevant to
the Premises as Xxxx shall reasonably request, and Xxxx shall have the right to
perform such tests and studies (including without limitation topographical
studies, soils tests and engineering, environmental and other tests), prepare
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such plans and surveys and make such applications, inquires and searches of
governmental records as Xxxx shall deem necessary or appropriate in connection
with its evaluation of the Premises; and DAE shall cooperate fully with such
investigation of the Premises. With respect to material damage to the Premises
caused by Xxxx or its representatives during any such investigation, Xxxx shall
restore such damaged areas to substantially their same condition existing prior
to such studies and tests.
9. Recording. If requested by Xxxx, XXX agrees to sign a copy of this
Agreement or a memorandum thereof in recordable form for purposes of
recording this Agreement or such memorandum with the Recorder's Office of
Philadelphia County, Pennsylvania.
10. Condemnation. DAE has not received any notice of any condemnation
proceeding or other proceedings in the nature of eminent domain or taking in
connection with the Premises, or any part thereof. In the event DAE receives any
such notice, it will forthwith send a copy of such notice to Xxxx, and Xxxx
shall have the sole right (in the name of DAE or in its own name) to negotiate
for, to agree to or to contest all offers and awards. If any portion of the
Premises is taken or condemned, Xxxx shall have the right to terminate this
Agreement within twenty (20) days after first receiving written notice of such
event.
11. Brokerage. DAE and Xxxx each represent and warrant to the other that
neither it nor anyone acting on its behalf has dealt with any broker or other
intermediary in connection with this Agreement or the sale of the Premises. DAE
and Xxxx agree to indemnify, defend and to hold the other harmless from and
against all claims, demands, losses, costs and expenses (including without
limitation reasonable attorney's fees and court costs) arising from any claims
to commissions made by any broker, finder or other intermediary claiming a
commission by or through him.
12. Assignment. Xxxx may assign its interests under this Agreement at
any time, and upon such assignment, shall be relieved of any and all liability
hereunder.
13. Notices. All notices and other communications to be given under this
Agreement shall be in writing and shall be hand delivered or sent by reputable,
overnight courier service, or by registered or certified mail, return receipt
requested, addressed or sent as follows:
if intended for DAE:
Delaware Avenue Enterprises, Inc.
000 Xxxxx Xxxxxxxx
Xxxxxxxxxx Xxxx, XX 00000
Attention: _________
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if intended for Xxxx:
Xxxx Hauling and Warehousing System, Inc.
000 Xxxxx Xxxxxxxx
Xxxxxxxxxx Xxxx, XX 00000
Attention: _________
All such notices or other communications shall be deemed to have been given on
the date of delivery thereof if given by hand delivery or telecopier, or on the
date deposited with the courier service or the United States Postal Service if
given by overnight courier service or United States mail, respectively. Notices
by or to the parties may be given on their behalf by their respective attorneys.
14. Miscellaneous.
(a) Successors. This Agreement shall be binding upon and inure to the
benefit of DAE and Xxxx and their respective heirs, executors, administrators,
successors and assigns.
(b) Captions. The captions in this Agreement are inserted for
convenience of reference only; they form no part of this Agreement and shall not
affect its interpretation.
(c) Entire Agreement; Governing Law. This Agreement contains the entire
understanding of the parties with respect to the subject matter herof,
supersedes all prior or other negotiations, representations, understandings and
agreements of, by or among the paries, express or implied, oral or written,
which are fully merged herein. The express terms of this Agreement control and
supersede any course of performance and/or customary practice inconsistent with
any such terms. Any agreement hereafter made shall be ineffective to change,
modify, discharge or effect an abandonment of this Agreement unless such
agreement is in writing and signed by the party against whom enforcement of such
change, modification, discharge or abandonment is sought. This Agreement shall
be governed by and construed under the laws of the Commonwealth of Pennsylvania.
(d) Provisions Separable. The provisions of this Agreement are
independent of and separable from each other, and no provision shall be affected
or rendered invalid or unenforceable by virtue of the fact that for any reason
any other provision may be invalid or unenforceable in whole or in part.
(e) Survival, Notwithstanding any presumption to the contrary, all
covenants, conditions and representations contained in this Agreement, which, by
their nature, impliedly or expressly, involve performance after settlement, or
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which cannot be ascertained to have been fully performed until after settlement,
shall survive settlement.
(f) Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original as against any
party whose signature appears thereon, and all of which shall together
constitute one and the same instrument. This Agreement shall be binding when one
or more counterparts hereof, individually or taken together, shall bear the
signatures of all of the parties reflected on this Agreement as the signatories.
(g) Interpretation. No provision of this Agreement is to be interpreted
for or against either party because that party or that party's legal
representative or counsel drafted such provision.
(h) Time. Time is of the essence of this Agreement. In computing the
number of days for purposes of this Agreement, all days shall be counted,
including Saturdays, Sundays and holidays; provided, however, that if the final
day of any time period provided in this Agreement shall end on a Saturday,
Sunday or legal holiday, then the final day shall extend to 5:00 p.m. of the
next full business day. For the purposes of this Section, the term "holiday"
shall mean a day other than a Saturday or Sunday on which banks in the state in
which the Real Property is located are or may elect to be closed.
In witness whereof, and intending to be legally bound, DAE and Xxxx
have executed this Agreement as of the day and year first written above.
DELAWARE AVENUE ENTERPRISES, INC.,
a Pennsylvania Corporation
[CORPORATE SEAL] By:
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President
XXXX HAULING AND WAREHOUSING SYSTEM, INC.,
a Delaware Corporation
[CORPORATE SEAL] By:
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President
