Attached files
AGREEMENT FOR THE SALE AND
PURCHASE OF REAL ESTATE
THIS AGREEMENT
FOR THE SALE AND PURCHASE OF REAL ESTATE (hereinafter “Agreement”) is
made and effective the 1st day of March, 2008 by and between United
States Steel Corporation , a Delaware corporation, with a principal office and
place of business located at 600 Grant Street, Pittsburgh, Pennsylvania
15219-2800 (hereinafter “Seller”), and Biofuel Advanced Research &
Development, LLC a
Pennsylvania limited liability company, located at 1167 Bridge Street,
Philadelphia, PA 19124 (hereinafter “Buyer”).
W I T N E S S E T
H:
In
consideration of all the covenants, terms, and conditions herein contained and
intending to be legally bound, Seller and Buyer hereby agree as
follows:
1. Premises. Seller
agrees to sell and Buyer agrees to buy that certain real estate described as
36.37 acres , commonly known as Lot 4 of Seller’s proposed subdivision, and as
more specifically described on Exhibit “A” attached hereto and incorporated
herein; TOGETHER with all appurtenances, easements, hereditaments, and access
rights pertaining to the property, and all other rights of Seller in and to the
property (hereinafter “Premises”). Any excess or deficiency in the
stated acreage shall not affect the remaining terms and conditions of this
Agreement.
1.01 Ancillary
Rights. As
part of the sale and subject to the terms hereof, Buyer shall have irrevocable,
non-exclusive licenses for rail access and road access as set forth and
designated as the Rail Rights and Road Rights, attached hereto as Exhibit K
(such rights are referred to herein as the “Ancillary Rights”; the Ancillary
Rights do not include the Buyer’s Track); provided, however, the Buyer shall
utilize the switching carrier designate by Seller and that railcar storage by
buyer shall be limited only to the Premises. In the event the
switching carrier designate by Seller is not available to serve the Premises,
Buyer may make alternate arrangements for switching service, subject to Seller’s
approval, which approval shall not be unreasonably withheld or
delayed, In addition, the Buyer shall have all rights and access to
all roads as granted and outlined and depicted in Exhibit K. The
Ancillary Rights of Buyer are also subject to the following:
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(A) Seller
reserves the right, at Seller’s sole cost and expense, and upon notice to Buyer
to locate, move, substitute for or otherwise change the location of any of the
Ancillary Rights to such locations within the KIPC as may be designated by
Seller, provided that the location of Buyer’s new Ancillary Rights provides
Buyer with Ancillary Rights equivalent to the original Ancillary Rights, and the
Seller shall use its best efforts to minimize disruption to Buyer’s business
operations at the Premises. Upon any such designation of a new
location and upon completion of such relocation, and upon granting of such
replacement Ancillary Rights, all rights, title and interest created by this
sale in and to the old location shall automatically terminate and revert to
Seller without demand or reentry by Seller. Any such new location for
any of the Ancillary Rights shall likewise be subject to all the terms and
provisions of this sale including the provisions of this subparagraph
(A).
(B) Buyer’s
rights hereunder are subject to rights of other owners, tenants and occupants at
the KIPC, and to Seller’s rights and Seller’s agents, assignees, carriers,
contractors and all other persons lawfully using the Ancillary Rights, herein
called “rightful user”.
(C) Buyer
agrees to pay $1000 per acre, per annum for Common Area
Maintenance. This fee will be used by Owner to maintain the common
areas of the KIPC including snow removal, landscaping, road maintenance and
lighting. This fee will escalate by 3% per year and be billed on the
first day of every year.
1.02 UTILITIES.
(A) Seller
and Buyer shall enter into an appropriate Utility and Services Agreement at the
execution of this Agreement, which shall be in substantially the form of Exhibit
D. Buyer, at its expense, shall provide for all connections and related services
that are needed according to the Utility and Services Agreement.
(B) Except
for utilities provided by the above agreement, Buyer shall be responsible for
either obtaining all of the utilities from third party suppliers and paying all
charges for such utilities or for providing such services itself, at its own
cost. In no event shall Landlord be responsible for any interruption or failure
in the supply of any utilities.
(C) Seller is
hereby granted a blanket easement for access to and for maintenance of existing
utilities as shown on Exhibit A and more particularly described in Exhibit G.
Seller shall have all rights of access to the existing infrastructure on the
Premises, which shall remain the Sellers property. Seller shall attempt to
provide reasonable notice (minimum 3 business days) to Buyer of all scheduled
and planned maintenance of the utilities. The notice provision shall be waived
in the event of an emergency or an event believed to be an
emergency.
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2. Purchase
Price.
(A) Buyer
agrees to pay for the Premises the sum of Four Million and Five
Hundred and Fourty Six Thousand and Two Hundred and Fifty and 00/100 Dollars,
($4,546,250.00) (hereinafter “Purchase Price”), payable as follows: the
amount of Fifty Thousand and 00/100 Dollars ($50,000.00) as a down payment
(hereinafter “Deposit”), which Deposit Seller has already submitted to United
States Steel, and the balance amount of Four Million and Four Hundred and Ninety
Six Thousand and Two Hundred and Fifty and 00/100 Dollars ($4,496,250.00) due at
Closing, plus all Closing Costs outlined in Section 6 (hereinafter “Balance
Due”).
If the
Buyer does not deliver a Termination notice prior to the expiration of the Due
Diligence Deadline, the Deposit shall become non-refundable. In the
event the Closing has not occurred by the four month anniversary of the Contract
Date and Buyer desires to keep this agreement in effect Buyer will notify Seller
in writing and pay the Seller earnest monies (hereinafter Supplemental Deposits)
equal to Ten Thousand and 00/100 Dollars ($10,000) per month on the first day
each month thereafter until closing. All Supplemental Deposits are
non-refundable and applicable to the sale price upon closing. Closing
must occur no later than October 31st,
2009 or Seller may elect to cancel this Agreement For the Sale and Purchase of
Real Estate.
(B) Method
of Payment. All
payments shall be made in immediately available funds.
(i) Any
sum payable to Seller hereunder that is less than One Hundred Thousand and
No/100 Dollars ($100,000.00) shall be paid either by certified or cashier’s
check made payable to “United States Steel Corporation”.
(ii) Any
amount payable to Seller of One Hundred Thousand and No/100 Dollars
($100,000.00) or more shall be wire transferred, federal funds good same day,
and the issuing bank shall be instructed by Buyer to transfer the funds as
follows to: PNC Bank, Pittsburgh, PA,
ABA #043000096, for Credit to United States Steel Corporation, General Deposit
Account # 1-093130; except, however, if the parties hereto agree to
Section 2(B)(iii) as follows:
(iii) Tax-Deferred
Exchange. Buyer agrees, at Seller’s request, to
cooperate with Seller in effecting for the benefit of Seller a simultaneous or
delayed like-kind exchange pursuant to Section 1031 of the Internal Revenue Code
of 1986, as amended, and similar provisions of applicable state law (hereinafter
“Section 1031 exchange”). Buyer agrees to execute such additional
documents which are reasonably requested by Seller and which are reasonably
necessary or desirable to affect such Section 1031 exchange for the benefit of
Seller, including without limitation documents assigning this Agreement to a
third party, exchange agreements, and exchange escrow
instructions. Buyer acknowledges and agrees that, in connection with
such a Section 1031 exchange, Buyer may be required by Seller to acquire title
to the Premises from a party or parties other that the Seller and to pay the
Purchase Price to such third party or parties. Any and all
representations made by Seller to Buyer in connection with this Agreement shall
remain in full force and effect and continue to inure to the benefit of Buyer,
notwithstanding the assignment of this Agreement to a third party in connection
with such Section 1031 exchange. Buyer’s obligation to
cooperate in a Section 1031 exchange is conditioned upon each of the
following: (a) Buyer shall incur no additional costs,
expenses, or liabilities as a result of, or in connection with, such Section
1031 exchange, and Seller
shall indemnify and hold Buyer harmless from any liability incurred by Buyer
in connection with such Section 1031 exchange;
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(b) the Closing for the Premises shall not
be delayed as a result of such Section 1031 exchange, but shall occur within the
time period contemplated by this Agreement; and (c) all acknowledgments, releases,
representations, and warranties made by Seller (as set forth in this Agreement)
shall remain in full force and effect in favor of Buyer until the delivery of
the Deed, as if no exchange had occurred. This Section shall
constitute notice to Buyer within the meaning of Treasury Regulation §
1.1031(k)-1(g)(4)(v). Any monies transferred under a Section 1031
Exchange shall be transferred to Bank: JPMorgan Chase Bank, N.A.,
New York, NY, ABA #: 021 000 021, Acct #: 507955013, Acct Name: J.P.
Morgan Property Exchange Inc., United States Steel Corporation Account
#200811.2
Seller’s
Initials: ______________ Buyer’s
Initials: ______________
3. Real
Estate Taxes; Transfer Taxes; Recording Costs.
All real
estate taxes, including any special assessments, paid or payable in the year of
Closing will be prorated by Seller and Buyer according to the number of days
each party owns the Premises during the property tax year, fiscal or calendar,
as the case may be, of the levying jurisdictions. Buyer and Seller
shall split the payment of all real estate deed or transfer taxes, and each
party shall pay one-half (1/2) thereof. Buyer shall pay all title
guarantee or title insurance premiums (if any), all recording charges, and all
other costs incurred at Closing (collectively hereinafter “Closing Costs”).
Buyer shall retain and record the deed promptly following the
Closing.
4. Title
Clearance.
(A) Buyer
shall obtain at its own cost and expense any survey, title commitments, title
search, title opinion or title insurance policy which it deems necessary or
which may be required, and Buyer shall notify Seller within twenty (20) days
from receipt of the title commitment or the survey of any defect or condition
("Objection") affecting marketability or insurability. Seller shall
have thirty (30) days from the notice of such objection to cure the same at its
own cost and expense, and the above Closing date shall be adjusted
accordingly. Buyer's failure to so notify Seller of any Objection
shall constitute an acceptance of Seller's title. Buyer shall have
twenty (20) days from receipt of a title endorsement or revised survey to notify
Seller of Objections as provided above or its rights hereunder are
waived.
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(B) If
Seller is unwilling or if, after reasonable effort, Seller is unable to cure any
objection as above provided, Seller shall so notify Buyer within 30 days from
the date Seller is notified, in writing, by Buyer of any Objection, and Buyer at
its election may terminate this Agreement or take title subject to any Objection
with or without any abatement in the purchase price as negotiated and mutually
agreed to by Buyer and Seller. In the event of Buyer's termination,
Seller shall return to the Buyer the above Deposit with interest, which Buyer
shall accept in full satisfaction of any and all claims under or related to this
Agreement.
5.
Improvements.
Seller
shall, at its sole expense, construct the improvements to serve the Premises as
specified, which Improvements shall be completed in accordance with applicable
Township requirements. The Improvements shall include, the
installation of potable water, sewer, gas, and electric to the site as specified
in the Utility Provision and Services Agreement attached as Exhibit “D”. Buyer' right to
utilize utilities supplied by Seller or any of its affiliates shall be set forth
in an agreement(s) between Buyer and Seller as indicated in Exhibit “D”, which
agreement(s) shall be acceptable to both parties (the "Utilities
Contract(s)"). The execution and delivery of the Utilities
Contract(s) will be a condition of Buyer's obligation to complete the
Closing.
5.01 Construction
and Renovations Trades Agreement
Buyer
agrees to use Philadelphia Building Trades for all construction and renovation
of the property as described in the Agreement between USS Real Estate a division
of United States Steel Corporation and the Philadelphia
Building Trades; said copy of this “Trades Agreement” is furnished as
Exhibit “E”. The “Trades Agreement” has no requirement for the affiliation or
lack thereof, of the Buyers employees.
6. Due
Diligence
(A) Buyer
shall have the right, after the Contract Date and upon advance notice to Seller,
to access the Premises to inspect, investigate and conduct due diligence as to
matters relating to the Premises, including but not limited to the environmental
conditions, zoning, governmental approvals, road access, property taxes, and any
other conditions that Buyer deems necessary; provided that Buyer delivers to
Seller ten (10) days in advance of entry, written notice of Buyer’s
intent to conduct due diligence and the name of any consultant, agent,
contractor or other who Buyer desires to enter the Premises for this purpose,
with Buyer’s request that access be granted to such person or persons. Seller
agrees to use its best efforts to respond to such request from Buyer within ten
(10) days of receipt, and with Seller’s approval, Buyer shall have the right
thereafter, at its own risk, cost and expense, to enter, or cause its approved
agents and representatives to enter upon the Premises, upon advance notice to
Seller, for the purpose of making surveys, tests, borings, inspections,
investigations, or conducting any architectural, engineering, structural,
economic, environmental, mechanical and any other study of the Premises as Buyer
deems necessary. Seller will provide access to available and relevant documents
and records. Buyer has ninety
(90) days from the Contract Date to complete their investigation and due
diligence (hereinafter “Due Diligence Period”) unless extended by written
agreement of Seller per section 2A of this agreement.
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(B) Buyer
agrees that they will keep confidential and not disclose to any third party
except its attorneys, lenders, and consultants, any of the due diligence
materials and any additional environmental, and/or other studies, tests,
reports, and other documents generated in the due diligence activities or
related activities that may be conducted by either party. Any final report,
analytical data, survey, and/or drawing generated during the due diligence
period by Buyer shall be provided to Seller within a reasonable time period
prior to Closing. All due diligence materials shall be delivered to Seller
immediately upon the termination of the agreement or in the event the
transaction contemplated by the parties fails to close.
(C) The
confidentiality obligation herein does not apply to any information that (i) is
public knowledge on the date hereof; (ii) is in Buyer’s possession on the date
hereof; (iii) becomes public after the date hereof other than due disclosure by
Buyer or its attorneys, lenders, or consultants; (iv) is obtained by Buyer from
an independent third party who Buyer reasonably believes after due inquiry is
free to deliver such material free of any confidentiality obligation; or (v) is
the subject of any court order or other legally-mandated
disclosure.
(D) Buyer
shall indemnify, defend, and hold harmless Seller from and against any and all
property damage, personal injury, and/or death claims, suits, demands,
liabilities, damages, expenses and costs, (including attorney fees, consultant
fees and other legal costs), of whatever kind or nature whatsoever that may
arise out of or result from any claim, suit, act, judgement, demand or which may
be brought against Seller relating in any way associated with the conducting of
any activity upon the Premises in connection with Buyer’s due diligence
investigation of the Premises. Buyer further agrees that before it or any of its
consultants visit the Premises for due diligence purposes, it will obtain and
maintain in full force and effect, or will cause its consultants to do so,
Commercial General Liability insurance under an occurrence policy form in an
insurance company or companies satisfactory to Seller, for bodily injury,
including death, and property damage in a minimum amount of Two million Dollars
($2,000,000.00) per occurrence and Four million Dollars ($4,000,000.00) in the
aggregate. Buyer further agrees that before it or any of its consultants or
contractors visit the Premises, Buyer shall procure and maintain, and shall
require its consultants and contractors to procure and maintain
insurance policies in accordance with the terms and provisions outlined in
Exhibit “I” attached hereto and incorporated herein, including without
limitation, adding Seller as an Additional Insured; obtaining waiver of
subrogation; agreeing to give Seller sixty (60) days’ prior written notice upon
policy cancellation or change; and providing subcontractor coverage (if
applicable). Buyer further agrees to immediately provide a copy of
Exhibit “I” to its insurance company and/or insurance
agent. Upon Seller’s consent, Buyer shall have the right , at its
risk, cost and expense, to enter or cause its approved agents to enter upon the
Premises in accordance with the consent of Seller.
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(E) Seller
shall cooperate with the Buyer in its dealings with governmental agencies during
the Permitting Period. This Agreement of Sale shall include mutually
agreed upon milestones to monitor Buyer’s progress for submission of required
applications during the Permitting Period and milestones to monitor the progress
of the necessary approvals by the appropriate governmental
agencies.
(F) Buyer
shall provide to Seller copies of all engineering plans, surveys, environmental
site assessments, traffic generation reports, and all materials submitted to or
received from any governmental entity or agency of or pertaining to the
Property, which items, to the extent not already provided to Seller at the time
of any termination of this Agreement, are to be delivered to Seller within
twenty-one (21) days after such termination. Such items may be
retained by and used by Seller after Closing or any termination of this
Agreement, as the case may be, and Buyer shall provide such consents or other
documentation as Seller shall request so that Seller may do so.
(G) If
the results of the Buyer’s investigation, study, test or report are not
satisfactory to Buyer or Seller, or an unacceptable environmental concern is
revealed, or Buyer is unable to secure acceptable financing solely as determined
by Buyer, either Buyer or Seller in their sole and absolute discretion and/or
judgment may terminate this Agreement, and Buyer’s Earnest Money will be
returned (with interest), and both Buyer and Seller shall be relieved of any
further obligations under this Agreement; provided, however, each party shall
pay their respective costs and expenses as provided in this
Agreement.
(H) In
the event Buyer elects to proceed with the purchase of the Premises with such
environmental concern “AS IS, WHERE IS, WITH ALL FAULTS”, Buyer shall not be
entitled to any environmental indemnification regardless of whether the
investigation, study, test or report identified or failed to identify any
pre-existing environmental concern or condition on the Premises and/or
adjustment to the purchase price as a result thereof. If for any
reason the purchase is not subsequently closed, then Buyer shall grant Seller
ownership of the final report by Buyer’s consultant, with Seller having the
right to utilize the report as if Seller had commissioned the site
assessment.
(I) The
provisions of this Section, its subparts, and Exhibit “I” shall survive
delivery of the deed and termination of this Agreement, if any.
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7. Environmental.
A) Seller
has provided Buyer with a copy of the Final Administrative Order on Consent
(hereinafter referred to as “Consent Order”) issued by the United States
Environmental Protection Agency (hereinafter “USEPA”) to United States Steel
Corporation, effective April 20, 1993 and covering the the Fairless Works
facility and certain adjacent property at Fairless Hills, Pennsylvania as it
relates to the Premises.
B) In
the event that environmental studies result in the discovery of contamination
existing as of the date of Closing on the Premises that is subject to
requirements of the Consent Order, Seller will be solely responsible for any
remediation costs that may be required to comply with the Consent Order or, at
Seller’s election, obtain a release from Pennsylvania Department of
Environmental Protection (“PADEP”) under Act 2. Buyer and Seller
shall cooperate in applying for and obtaining the Act 2 Release or equivalent
approval from PADEP or USEPA, at Seller’s election; and the parties will share
equally all costs other than remediation related to applying for and obtaining
the release or approval.
C) Buyer
and Seller agree that Seller shall remain responsible for remediation of
groundwater under and as defined pursuant to the Consent
Order. Buyer agrees that use of groundwater will be prohibited and
further agrees to include the groundwater restriction in the deed. In
addition, upon receipt of the release of liability letter form PADEP whether
received before or after the sale, any chemical constituents identified on site
in the Remedial Investigation/Final Report above statewide residential health
standards shall also be acknowledged in the deed as required by Act
2.
D) The
Consent Order requires Seller to take certain environmental measures, to
investigate the nature of certain constituents in the groundwater and to perform
certain corrective measures, if required, to the facility as described therein,
including the Premises. The Consent Order provides that no change in
ownership of any property covered by the Consent Order can affect Seller’s
obligations to remediate groundwater under the Consent Order.
E) Buyer
grants to Seller, its agents, contractors, consultants and assigns a right of
reasonable access to perform work to and on the Premises in the event Seller is
required to implement and comply with the Act 2 or Consent Order to remediate
any environmental condition, including the right to operate all equipment,
tools, vehicles and machinery required for investigative and corrective
work. Seller shall notify Buyer of any intended use of the Premises,
and Seller shall coordinate any use of the Premises with Buyer’s use and
rights. Such notice shall be given at the earliest possible time
thereby allowing for the longest possible preparatory period. Upon
completion of its work, Seller shall restore the Premises to its pre-existing
condition to the extent reasonably permitted under the Consent Order or
consistent with Act 2 obligations, if any. Buyer understands that the
requirements of the Consent Order are extensive and comprehensive, and
agreesthat in additional to the presence of Seller on the Premises for
compliance with the Consent Order and possible activities undertaken to obtain a
release under Act 2, the USEPA has and PADEP have rights of access to the
Premises.
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F) Seller
agrees to be responsible to Buyer, its successor, assign or lessee, for any
damages, costs, penalties, fines or other liabilities for assessment,
remediation or monitoring of environmental conditions on the Premises, incurred
by Buyer and by any affiliates or successors thereof, and arising from Seller’s
failure to comply with the terms, conditions and provisions of the Consent
Order, unless released or modified by or with the consent of USEPA, including,
but not limited to, Seller’s investigation and performance of corrective
measures, provided however, that Seller shall not be responsibility to Buyer for
any liability caused by or resulting in whole or in part from the activities of
Buyer or it successors, assigns, contractors, agents, representatives or
lessees. In the event that Seller, USEPA, or the PADEP, or any of
their contractors, agents, or representatives shall require access to the
Premises from time to time, for any reason relating to the Consent Order or Act
2, including, without limitation, any investigation or testing, or the
performance of corrective measures (“Access”), Seller shall take all reasonable
actions necessary to mitigate the impact on Buyer’s operations and
facilities.
G) Buyer
shall notify Seller immediately upon receipt of any proceeding, notice, order,
citation, suit or any action or process directed to Seller concerning the
Premises.
H) Seller
shall notify buyer of any termination or change of the Consent Order bearing
upon the Premises. Buyer recognized that the Consent Order does not
terminate until Seller has satisfactorily completed all tasks required by the
Consent Order, unless released or modified by or with the consent of USEPA,
however Seller’s obligations and all liabilities under this Article shall
terminate upon receipt from the USEPA of written notice that the Premises is no
longer subject to the terms of the Consent Order, or that Seller’s obligations
under the Consent Order have been satisfactorily completed.
I) Buyer
shall be responsible for all environmental conditions causing or contributing to
contamination of soil, groundwater, surface water, or air by pollutants or
substances harmful to the human health, the environment or protected resources
created after the Closing on, under, about or affecting the Premises and Buyer
argees to release and indemnify, defend and hold harmless Seller for any
damages, costs, penalties, fines or other liabilities for assessment,
remediation, restoration or monitoring of such environmental conditions and/or
protected resources, incurred by Seller or any affiliates or successors thereof,
and arising therefrom, including without limitation any such liabilities under
authority derived from or by virtue of the Comprehensive Environmental Response,
Compensation and Liability Act, as amended (“CERCLA”).
J) This
Article shall survive the delivery of the Deed.
8. Seller’s
Representations. Seller, represents and warrants to Purchaser
as of the date hereof as follows:
(a) There
are no leases, tenancies, licenses, other rights of occupancy (other than
Seller) for any portion of the Premises.
(b)
Seller has full authorization and power, in accordance with law and its
organizational documents, to enter into this Agreement and to consummate the
sale provided for herein.
(c) The
representations and warranties set forth in this Article 8 shall survive Closing
for a period of six (6) months.
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9.
Acceptance
of Deed.
(A) By
acceptance of the Deed, Buyer will acknowledge that the Premises has been
inspected by Buyer or its duly authorized agent, that the same is being
purchased by Buyer in “AS IS, WHERE IS, WITH ALL FAULTS”
condition. Seller shall not be responsible for any condition relating
to or affecting the physical condition of the Premises, except as may
specifically be set forth herein.
(B) Upon Closing of
this transaction between Seller and Buyer, Buyer shall be responsible for all
environmental conditions affecting the Premises and hereby agrees to indemnify,
defend, and hold harmless Seller for any such conditions. The Deed shall
contain the following language:
By its
acceptance of this Deed, Grantee, on behalf of itself, its successors, and
assigns, acknowledges that the physical and environmental condition of said
property conveyed hereunder has been inspected by Grantee or its duly authorized
agent and that said property is accepted by Grantee as a result of such
inspection and not upon any agreement, representation, or warranty made by
Grantor. Grantee accepts the physical and environmental condition of sold
property "AS IS, WHERE IS, WITH ALL FAULTS" and hereby releases Grantor, its
successors and assigns, from and against any and all liabilities of any nature
known or unknown under CERCLA, RCRA, or the HMTA, or any other local, state, or
federal laws, rules, regulations, or ordinances, and to indemnify, defend, and
hold harmless Grantor from and against including without limitation any cost,
fine, penalty, or other liability of any nature, known or unknown, arising from
or in connection with the physical or environmental condition of the
Property. It is the express intention of the parties that this
assumption, release, and indemnity run with the Property and shall be binding
upon all of Grantee successors and assigns. (For the purpose of this
provision, "CERCLA" shall mean and refer to the Comprehensive Environmental
Response Compensation and Liability Act of 1980, 42 U.S.C. 5 9601, et seq., as amended; and
"RCRA" shall mean and refer to the Resource Conservation and Recovery Act, 42
U.S.C. § 6901, et
seq., as amended; and “HMTA” shall mean and refer to the Hazardous
Materials Transportation Act, 49 U.S.C. § 5102, et seq., as
amended.)
AS TO THE PHYSICAL CONDITION OF THE
PROPERTY PRIOR TO BUYER'S OWNERSHIP, NO PRIVATE RIGHT OF ACTION SHALL ACCRUE TO
ANY PURCHASER OF THE PROPERTY, WHETHER BY FORECLOSURE OR OTHERWISE, DUE SOLELY
TO THE TAKING OF TITLE TO THE PROPERTY AND ANY SUCH BUYER DOES WAIVE ANY AND ALL
RIGHT TO CLAIM AGAINST GRANTOR AND GRANTEE, OR THEIR SUCCESSORS AND ASSIGNS, FOR
ANY COST, LOSS, DAMAGE, OR LIABILITY SUCH BUYER OR ITS SUCCESSORS AND/OR ASSIGNS
MAY INCUR AS A RESULT OF THE DISCOVERY OF A DEFICIENCY IN THE PHYSICAL CONDITION
OF THE PROPERTY OR THE NEED OR DESIRABILITY TO DO ANY REMOVAL, CORRECTIVE, OR
REMEDIATION WORK INCLUDING, BUT NOT LIMITED TO, WORK IN CONNECTION WITH
HAZARDOUS MATERIALS OR WASTE PURSUANT TO THE COMPREHENSIVE ENVIRONMENTAL
RESPONSE COMPENSATION AND LIABILITY ACT, AS AMENDED, OR THE RESOURCE
CONSERVATION AND RECOVERY ACT, AS AMENDED, OR OTHER SIMILAR FEDERAL, STATE OR
LOCAL LAWS, REGULATIONS, OR ORDINANCES.
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(C) The
Premises will be conveyed by a Special Warranty Deed, in
substantially the form set forth attached hereto as Exhibit “B”. The
Deed will convey title to the Premises, subject to any and all highway,
railroad, and other public or private rights or easements, existing in or across
the Premises or any part thereof, and to the rights of any person or other party
who may have any interest in the Premises.
(D) Seller
and Buyer shall each execute and deliver to the other such other and further
documents as each may reasonably request of the other in connection with the
sale and purchase of the Premises.
(E) Possession
of the Premises shall be given to Buyer at Closing by conveyance of the
aforementioned Deed by Seller to Buyer and Buyer’s acceptance
thereof.
(F) The
provisions of this Section and its subparts shall survive the delivery of the
Deed to the Buyer and termination of this Agreement, if any.
10. Closing. The sale of the
Premises shall be closed within 30 days from the end of the Due Diligence Period
described in section 6 and no later than October 31st,
2008 at a time and location mutually agreeable to both parties (hereinafter
“Closing”). At the Closing and upon payment in full of the balance of
the Purchase Price as stated above, Seller shall deliver the Deed to Buyer,
which shall convey title to the Premises, free and clear of all liens and
encumbrances, but subject to the following:
(A) any
exceptions prevailing in title companies’ policies;
(B) any
condition which a survey might show;
(C) any
condition which a physical inspection of the Premises
would disclose;
(D) all
existing restrictions, easements, encroachments,
rights-of-way, ordinances, laws, regulations,
assessments, charges and taxes;
(E) all
utility easements whether recorded or not; and
(F) any
reservations or conditions as contained in the Deed.
Possession
shall be given to Buyer at Closing.
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11. Default.
(A) Buyer’s
Default. If Buyer fails to
close the sale of the Premises as provided in this Agreement, the above Deposit
shall be retained by Seller as liquidated damages, and Seller shall terminate
this Agreement.
(B) Seller’s
Default. If Seller fails
to close this sale, Buyer’s sole remedies shall be specific performance or have
Seller return the Deposit to Buyer and terminate this Agreement.
(C) Upon
termination by either Seller or Buyer, this Agreement shall be null and
void.
(D) Each
party shall be responsible for its own attorneys’ fees and costs of litigation
under this Section. Neither Buyer nor Seller shall be entitled to recover any
costs incurred by it prior to the termination of this Agreement.
12. Condemnation.
(A) Seller
represents and warrants that it has no knowledge of any existing or threatened
proceeding of any entity to condemn the Premises or to take any part thereof
under the right of eminent domain, and if Seller acquires such knowledge, Seller
shall promptly notify Buyer.
(B) In
the event that an eminent domain proceeding against the Premises has been
commenced before the Closing, Seller or Buyer shall have the right to terminate
this Agreement, whereupon Seller shall return Buyer’s Deposit and this Agreement
shall be null and void. If either party does not exercise this right, and the
Premises are conveyed pursuant to this Agreement, Seller at Closing shall assign
to Buyer all of its rights in the condemnation proceeding including all rights
to compensation and awards.
13. Zoning. Seller and Buyer
are informed that the Premises are zoned MPM or Materials Processing and
Manufacturing. It is the Buyer’s responsibility to confirm the zoning
of the Premises and ensure that the zoning will allow for the purpose and use
intended. Any change in zoning desired by the Buyer shall be
accomplished by Buyer at its own cost and expense, except that Seller shall
execute any applications, requests or petitions which Buyer may request prior to
Closing, provided that such applications, requests or petitions in Seller’s
opinion do not adversely affect the value of the Premises.
14. Real
Estate Commissions. Each of the
parties represents and warrants that NAI Global (the “Brokers”) are the brokers
of record and are the only brokers entitled to commission in the execution of
this Agreement, and each of the parties agrees to indemnify the other against
and hold it harmless from all liabilities arising from any other claims
(including, without limitation, the cost of counsel fees in connection
therewith). Seller shall have the sole responsibility to pay any
commissions due and owing to the Brokers in the amount defined by separate
agreement.
(A) Buyer shall
indemnify Seller against and hold
harmless from any and all claims, liabilities, suits, damages,
causes of action, judgments, verdicts, expenses or costs arising from any claim
against Seller by any broker, agent salesperson or representative for any fees
or commissions arising from the acts of Buyer related to this
Agreement.
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(B) Seller shall
indemnify Buyer against and hold
harmless from any and all claims, liabilities, suits, damages,
causes of action, judgments, verdicts, expenses or costs arising from any claim
against Buyer by any broker, agent salesperson or representative for any fees or
commissions arising from the acts of Seller related to this
Agreement.
(C) The
provisions of this Section and the subparts shall survive the delivery of the
Deed to Buyer and termination of this Agreement, if any.
15. Assignment. This Agreement
shall not be assigned or transferred in any way by the Buyer unless Seller
expressly consents to such assignment or transfer in writing.
16. Merger
and Survival. The acceptance of
the Deed provided herein by the Buyer shall be deemed to be a full performance
and discharge of every term, covenant, or obligation on Seller’s part to be
performed pursuant to this Agreement, and no representation, term, covenant,
warranty, or agreement of the Seller shall survive the delivery of the Deed
unless they are specifically stated herein to survive.
17. Amendments. This Agreement
may be amended, renewed, extended or canceled only by written instrument
executed on behalf of each of the parties hereto by an authorized representative
of each party, and neither party shall at any time in any way assert or contend
that any amendment, extension or cancellation of this Agreement (or of any part
or parts, including this paragraph, hereof) has been made other than by a
written instrument so executed.
18. Time
of the Essence. Time is of the
essence with respect to the performance of all the terms, conditions, and
covenants of this Agreement.
19. Entire
Agreement. This Agreement
constitutes and contains the entire and only Agreement between the parties, and
supersedes and cancels any and all pre-existing agreements and understandings
between the parties or any of them relating to the subject matter
hereof. Any and all prior and contemporaneous negotiations and
preliminary drafts and prior versions of this Agreement, whether signed or
unsigned, between the parties or any of them leading up to its execution shall
not be used by either party to construe the terms or affect the validity of this
Agreement. No representation, inducement, promise, understanding,
condition, or warranty not set forth herein has been made or relied on by either
party.
20. Third
Parties. Seller and Buyer
do no intend to nor do they create any rights in any third party or person not a
signatory to this Agreement.
21. Compliance. Buyer
shall at all times with respect to performance of this Agreement comply with all
statutes, laws, ordinances, rules, regulations and orders of all governmental,
judicial, administrative, or political persons or entities, and Buyer shall, at
its own cost, obtain all permits, approvals, or variances required by its use of
the Premises.
22. Construction. This Agreement
shall be governed by and performed in accordance with the laws of the
Commonwealth of Pennsylvania.
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23. Notices. All notices that
may at any time be required to be given hereunder shall be deemed to
have been properly given if personally hand delivered to the other party, or if
sent by United States first class registered or certified mail, postage paid, or
by facsimile transmission addressed, if sent to Seller as follows:
If to
Seller: USS
Real
Estate Facsimile:
(412) 433-5148
600 Grant Street, Room
1683
Pittsburgh, Pennsylvania
15219-2800
Attention:
_____________________
With a copy
to: United
States Steel
Corporation, Facsimile:
(__) ___-____
600 Grant Street, Room
1500
Pittsburgh, Pennsylvania
15219-2800
Attention: General Attorney, Real
Estate
If to
Buyer: Biofuel
Advanced Research & Development, LLC
1167 Bridge Street
Philadelphia, Pennsylvania
19124 Facsimile: (__)
___-____
Attention: Surajiet
Khanna
or to
such other name and address as shall be furnished in writing by either party to
the other. All notices shall be effective when received by the party to whom
addressed.
24. Captions. The captions of
paragraphs in this Agreement are used for convenience only and they in no way
define, limit, or prescribe the scope or intent of this Agreement or any
provisions hereof.
25. Binding
Effect. This Agreement
shall inure to the benefit of and be binding upon the successors and assigns of
Seller and Buyer.
26. Publicity. This Agreement
and all its contents are agreed to be confidential, and neither Seller nor Buyer
shall release or disclose any material prior to the Closing. No press release
nor other public disclosure shall be made by either party without submitting a
copy to the other party for review and comment.
27. TIME
EXTENSION. If
the last day for the performance of any act required to be performed under this
Agreement shall fall upon a Saturday, Sunday, or legal holiday, the day for the
performance of any such act shall be deemed to be extended until the next
business day.
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28. Counterparts. This Agreement
may be signed in one or more counterparts, and by facsimle transmission, all of
which shall be treated as one and the same original Agreement. Each
party shall provide an executed copy to the other.
IN WITNESS
WHEREOF, the
parties hereto have caused this Agreement to be executed as of the date(s)
indicated herein.
United States Steel
Corporation
By:
Title:
Dated:
Biofuel Advanced Research &
Development, LLC
By:
Title:
Dated:
*
* * * * * * * * * * * * * *
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