-35-
BOS-BUS:431672.5
PURCHASE AND SALE AGREEMENT
PURCHASE AND SALE AGREEMENT (this "Agreement"), dated as
of the 30th day of October, 1997, by and between XXXX XXXXXX
REALTY INCOME PARTNERSHIP I, L.P., a Delaware limited
partnership, having an office c/o Xxxx Xxxxxx Realty Inc., Two
World Trade Center, 64th Floor, New York, New York 10048, (the
"Seller"), and Xxxxxxx Capital Corporation, a Massachusetts
corporation, having an office at Two Westborough Business
Park, 000 Xxxxxxx Xxxxxxx, Xxxxx 0000, Xxxxxxxxxxx,
Xxxxxxxxxxxxx 00000 (the "Purchaser").
W I T N E S S E T H
WHEREAS, the Seller is the owner of the real property at
the Westwood 10 Center known and numbered as 60 and 00 Xxxxxxx
Xxxxx, Xxxxxxxx, Xxxxxxxxxxxxx.
WHEREAS, the Seller and the Purchaser have entered into
negotiations wherein the Purchaser expressed its intent to
purchase the Property (as defined herein) from the Seller and
the Seller expressed its intent to sell the Property to the
Purchaser; and
WHEREAS, the Seller and the Purchaser now desire to enter
into an agreement whereby, subject to the terms and conditions
contained herein, the Seller shall sell the Property to the
Purchaser and the Purchaser shall purchase the Property from
the Seller.
NOW, THEREFORE, in consideration of ten ($10.00) dollars
and the mutual covenants and agreements hereinafter set forth,
and intending to be legally bound hereby, it is hereby agreed
as follows:
Sale of the Property.
The Seller agrees to sell and convey to the Purchaser, and the
Purchaser agrees to purchase from the Seller, at the price and
upon the terms and conditions set forth in this Agreement, all
those certain plots, pieces and parcels of land described in
Schedule 1 hereto (the "Land") listed thereon as owned by the
Seller, together with (i) all buildings and other improvements
situated on the Land (collectively, the "Buildings"), (ii) all
easements, rights of way, reservations, privileges,
appurtenances, and other estates and rights of the Seller
pertaining to the Land and the Buildings, (iii) all right,
title and interest of the Seller in and to all fixtures,
machinery, equipment, supplies and other articles of personal
property attached or appurtenant to the Land or the Buildings,
or used in connection therewith (collectively, the "Personal
Property"), and (iv) all right, title and interest of the
Seller, if any, in and to the trade names of the Buildings
(the Land, together with all of the foregoing items listed in
clauses (i)-(iv) above being hereinafter sometimes referred to
as the "Property").
Excluded Property.
Specifically excluded from the Property and this
sale are all items of personal property not described in
Section 1 (and all personal property of tenants under the
Leases) and the items described in Schedule 2 annexed
hereto and made a part hereof.
Closing Date.
The delivery of the Deed and the consummation of the
transactions contemplated by this Agreement (the
"Closing") shall take place at the offices of Xxxxxxx,
Xxxx LLP, 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx, at
10:00 A.M. on that date which is two (2) business days
after the expiration of the Due Diligence Period,
provided, however that if such date is a non-business day
or holiday, the Closing shall occur on the next
successive business day.
Purchase Price.
The purchase price to be paid by the Purchaser to the
Seller for the Property (the "Purchase Price") is Nine Million
Four Hundred Thousand and no/100 Dollars ($9,400,000) payable
as follows:
(a) Six Hundred Thousand and no/100 Dollars
($600,000) (the "Downpayment") shall be payable
simultaneously with the execution and delivery of this
Agreement, by delivery to First American Title Insurance
Company (the "Escrow Agent") of a certified or bank check
drawn on or by a bank which is a member of the New York
Clearing House Association (a "Clearing House Bank") or
by wire transfer of immediately available funds to the
Escrow Agent's account as set forth in the Escrow
Agreement. The Downpayment shall be held and disbursed
by the Escrow Agent in accordance with the terms of
Section 15. At the Closing, the Deposit shall be
delivered to the Seller and such amount shall be credited
against the portion of the Purchase Price payable
pursuant to Section 2(b);
b) The balance of the Purchase Price (i.e., the
Purchase Price minus the credit set forth in Section 2(a)
above), plus or minus the apportionments set forth in
Section 3, shall be paid at the Closing by bank wire
transfer of immediately available funds to the Seller's
account or to the account or accounts of such other party
or parties as may be designated by the Seller on or
before the Closing Date.
Apportionments
The following shall be apportioned between the Seller and
the Purchaser at the Closing as of 11:59 p.m. of the day
preceding the Closing Date (the "Adjustment Date"):
(a) fixed or base rents ("Rents") which have been
prepaid, security deposits referred to in Section 8(e),
Rents for the month in which the Closing occurs and
Additional Rents and other amounts paid by tenants
applicable to periods which expire after the Closing
Date, which have been received by Seller;
b) real estate taxes, special assessments (but
only any installment relating to the period in which the
Adjustment Date occurs), water charges, sewer rents and
charges and vault charges, if any, on the basis of the
fiscal years (or applicable billing period if other than
a fiscal year), respectively, for which same have been
assessed;
c) value of prepaid fuel belonging to the Seller
stored on the Property, at the Seller's cost, including
any taxes, on the basis of a statement from the Seller's
suppliers;
(d) charges and payments under Contracts that are
being assigned to the Purchaser pursuant to the terms of
this Agreement and listed on Schedule 3 hereto or
permitted renewals or replacements thereof;
(e) any prepaid items, including, without
limitation, fees for licenses which are transferred to
the Purchaser at the Closing and annual permit and
inspection fees;
(f) utilities, to the extent required by Section
3.4;
(g) deposits with telephone and other utility
companies, and any other persons or entities who supply
goods or services in connection with the Property if same
are assigned to the Purchaser at the Closing;
(h) personal property taxes, if any, on the basis
of the fiscal year for which assessed;
(i) all other revenues from the operation of the
Property other than Rents and Additional Rents
(including, without limitation, parking charges, tenant
direct electrical reimbursements, HVAC overtime charges,
and telephone booth and vending machine revenues);
(j) New Lease Expenses as provided in Section
10.1.2; and
(k) such other items as are customarily apportioned
between sellers and purchasers of real properties of a
type similar to the Property and located in Norfolk
County, Massachusetts.
Taxes.
If the amount of real estate taxes, special
assessments or other taxes for the Property for the
fiscal year during which Closing occurs is not finally
determined at the Adjustment Date, such taxes shall be
apportioned on the basis of the full amount of the
assessment for such period (or the assessment for the
prior tax period if the assessment for the current tax
period is not then known) and the rate for the
immediately prior tax year, and shall be reapportioned as
soon as the new tax rate and valuation, if any, has been
finally determined. If any taxes which have been
apportioned shall subsequently be reduced by abatement,
the amount of such abatement, less the cost of obtaining
the same and after deduction of sums payable to tenants
under Leases or expired or terminated Leases, shall be
equitably apportioned between the parties hereto.
Rents.
Arrearages.
If on the Closing Date any tenant is in arrears
in the payment of Rent or has not paid the Rent
payable by it for the month in which the Closing
occurs (whether or not it is in arrears for such
month on the Closing Date), any Rents received by
the Purchaser or the Seller from such tenant after
the Closing shall be applied to amounts due and
payable by such tenant during the following periods
in the following order of priority: (i) first, to
the month in which the Closing occurred,
(ii) second, to the month preceding the month in
which the Closing occurred, and (iii) third, to the
months following the month in which the Closing
occurred. If Rents or any portion thereof received
by the Seller or the Purchaser after the Closing are
due and payable to the other party by reason of this
allocation, the appropriate sum, less a
proportionate share of any reasonable attorneys'
fees and costs and expenses expended in connection
with the collection thereof, shall be promptly paid
to the other party (to the extent not collected from
or reimbursed by tenants).
Additional Rents.
If any tenants are required to pay percentage
rent, escalation charges for real estate taxes,
parking charges, operating expenses and maintenance
escalation charges, cost-of-living increases or
other charges of a similar nature ("Additional
Rents") and any Additional Rents are collected by
the Purchaser from a tenant after the Closing Date,
then the Purchaser shall promptly pay to the Seller
out of the first such sums received from such tenant
the amount of all Additional Rents which are due and
payable by such tenant with respect to any period
prior to the Closing Date (whether or not such
Additional Rents first became due and payable on or
after the Closing Date), less a proportionate share
of any reasonable attorneys' fees and costs and
expenses of collection thereof (to the extent not
collected from or reimbursed by tenants).
Collection After the Closing.
After the Closing, the Seller shall continue to
have the right, in its own name, to demand payment
of and to collect Rent and Additional Rent
arrearages owed to the Seller by any tenant, which
right shall include, without limitation, the right
to continue or commence legal actions or proceedings
against any tenant (but which right shall
specifically exclude any right to terminate any
Lease). The Purchaser agrees to cooperate with the
Seller in connection with all efforts by the Seller
to collect such Rents and Additional Rents and to
take all steps, whether before or after the Closing
Date, as may be reasonably necessary to carry out
the intention of the foregoing, including, without
limitation, the delivery to the Seller, upon demand,
of any relevant books and records (including any
Rent or Additional Rent statements, receipted bills
and copies of tenant checks used in payment of such
Rent or Additional Rent), the execution of any and
all consents or other documents, and the undertaking
of any act reasonably necessary for the collection
of such Rents and Additional Rents by the Seller,
provided that the cooperation required pursuant to
this sentence shall not require the Purchaser to
initiate any legal action against any tenant. If
for any fiscal period which includes the Adjustment
Date tenants are paying Additional Rent based upon
estimates prepared by the Seller, such Additional
Rents shall be reapportioned when the actual
expenses for the fiscal period are known.
Water.
If there is a water meter on the Property, the
Seller shall furnish a reading to a date not more than
thirty (30) days prior to the Closing Date, and the
unfixed water charges and sewer rent, if any, based
thereon for the intervening time shall be apportioned on
the basis of such last reading.
Utilities.
The Seller will attempt to obtain final cut-off
readings of fuel, telephone, electricity, and gas to be
made as of the Adjustment Date. The Seller shall pay the
bills based on such readings promptly after the same are
rendered. If arrangements cannot be made for any such
cut-off reading, the parties shall apportion the charges
for such services on the basis of the xxxx therefor for
the most recent billing period prior to the Adjustment
Date, and when final bills are rendered for the period
which includes the Adjustment Date the Seller and
Purchaser shall promptly readjust the apportionments in
accordance with such final bills.
Post-Closing Adjustments.
The items set forth in this Section 3 shall be
apportioned at the Closing by payment of the net amount
of such apportionments to the Seller in the manner set
forth herein for the payment of the Purchase Price if the
net apportionment is in favor of the Seller or by a
credit against the Purchase Price if the net
apportionment is in favor of the Purchaser. However, if
any of the items subject to apportionment under the
foregoing provisions of this Section 3 cannot be
apportioned at the Closing because of the unavailability
of the information necessary to compute such
apportionment, or if any errors or omissions in computing
apportionments at the Closing are discovered subsequent
to the Closing, then such item shall be reapportioned and
such errors and omissions corrected as soon as
practicable after the Closing Date and the proper party
reimbursed, which obligation shall survive the Closing
for a period of one year after the Closing Date.
Notwithstanding any of the foregoing provisions of this
Section 3.5 to the contrary, the Purchaser and the Seller
agree that the one year limitation set forth in this
Section 3.5 shall not apply to the parties' obligations
under Sections 3.1 and 3.2 and that such obligations
shall survive the Closing forever.
Due Diligence Period.
Notwithstanding anything to the contrary contained
herein, the Purchaser shall have a thirty (30) day period
commencing on the date of receipt by Purchaser of (i) a fully-
executed Agreement, and (ii) a copy of each of the Leases (the
"Due Diligence Period") to examine title to the Property, to
inspect the physical and financial condition of the Property
and to review the Property Information. Neither the Purchaser
nor the Purchaser's Representatives shall contact any
governmental authority or any of the Seller's tenants,
vendors, employees, consultants or contractors prior to the
Closing without obtaining the Seller's prior written consent
in each instance.
Access to the Property.
During the Due Diligence Period, the Purchaser and
the Purchaser's Representatives shall have the right to
enter upon the Property for the sole purpose of
inspecting the Property and making surveys, soil borings,
engineering tests and other investigations, inspections
and tests (collectively, "Investigations"), provided (i)
the Purchaser shall give the Seller not less than one (1)
business days' prior written notice before each entry,
(ii) the first such notice shall include sufficient
information to permit the Seller to review the scope of
the proposed Investigations, and (iii) neither the
Purchaser nor the Purchaser's Representatives shall
permit any borings, drillings or samplings to be done on
the Property without the Seller's prior written consent,
such consent not to be unreasonably withheld. If such
consent were denied, Purchaser shall have the right to
terminate this Agreement. Any entry upon the Property
and all Investigations shall be during the Seller's
normal business hours and at the sole risk and expense of
the Purchaser and the Purchaser's Representatives, and
shall not interfere with the activities on or about the
Property of the Seller, its tenants and their employees
and invitees. The Purchaser shall:
(a) promptly repair any damage to the Property
resulting from any such Investigations and replace,
refill and regrade any holes made in, or excavations
of, any portion of the Property used for such
Investigations so that the Property shall be in the
same condition as that which existed prior to such
Investigations;
(b) fully comply with all Laws applicable to
the Investigations and all other activities
undertaken in connection therewith;
(c) permit the Seller to have a representative
present during all Investigations undertaken
hereunder;
(d) take all actions and implement all
protections necessary to ensure that all actions
taken in connection with the Investigations, and the
equipment, materials, and substances generated, used
or brought onto the Property pose no threat to the
safety or health of persons or the environment, and
cause no damage to the Property or other property of
the Seller or other persons;
(e) if requested by the Seller, furnish to the
Seller, at no cost or expense to the Seller, copies
of all surveys, soil test results, engineering,
asbestos, environmental and other studies and
reports relating to the Investigations which the
Purchaser shall obtain with respect to the Property
promptly after the Purchaser's receipt of same;
(f) maintain or cause to be maintained, at the
Purchaser's expense, a policy of comprehensive
general public liability insurance with a combined
single limit of not less than $1,000,000 per
occurrence for bodily injury and property damage,
automobile liability coverage including owned and
hired vehicles with a combined single limit of
$1,000,000 per occurrence for bodily injury and
property damage, and an excess umbrella liability
policy for bodily injury and property damage in the
minimum amount of $3,000,000, insuring the Purchaser
and the Seller and certain of Seller's Affiliates
listed on Schedule 4, as additional insureds,
against any injuries or damages to persons or
property that may result from or are related to (i)
the Purchaser's and/or the Purchaser's
Representatives' entry upon the Property, (ii) any
Investigations or other activities conducted
thereon, and (iii) any and all other activities
undertaken by the Purchaser and/or the Purchaser's
Representatives in connection with the Property, and
deliver evidence of such insurance policy to the
Seller at the earlier of ten (10) days after the
date of this Agreement or the first entry on the
Property;
(g) not, at any time, contact or communicate
with any tenant of the Property for any reason
whatsoever without the prior written approval of the
Seller, which communications, whether by telephone,
in writing or in person, Seller or its designee
shall have the right to be present at or otherwise
participate in; and
(h) indemnify the Seller and the Seller's
Affiliates and hold the Seller and the Seller's
Affiliates harmless from and against any and all
claims, demands, causes of action, losses, damages,
liabilities, costs and expenses (including without
limitation attorneys' fees and disbursements),
suffered or incurred by the Seller or any of the
Seller's Affiliates and arising out of or in
connection with (i) the Purchaser and/or the
Purchaser's Representatives' entry upon the
Property, (ii) any investigations or other
activities conducted thereon by the Purchaser or the
Purchaser's Representatives, and (iii) any liens or
encumbrances filed or recorded against the Property
as a consequence of the investigations.
The provisions of this Section 4.1 shall survive the
termination of this Agreement and the Closing.
Purchaser's Termination Notice.
Subject to the provisions of the last paragraph of
this Section 4.2, the Purchaser shall have the right to
elect to terminate this Agreement by giving written
notice (the "Purchaser's Termination Notice") of such
election to the Seller at any time prior to the
expiration of the Due Diligence Period if the Purchaser
shall determine (in the exercise of its reasonable
discretion) that any of the following conditions to
termination are met as of the date of the Purchaser's
Termination Notice, in which event the provisions of
Section 14.1 shall apply:
(a) The Purchaser shall have determined, based
upon a site assessment study conducted at
Purchaser's sole expense by a qualified engineering
firm or environmental firm selected by Purchaser and
approved by Seller in Seller's reasonable
discretion, that there is oil, ash substances,
hazardous substances, hazardous materials, hazardous
or toxic waste, or friable and accessible asbestos-
containing materials present on the Property in an
amount which would require remediation under the
applicable environmental laws costing in excess of
Fifty Thousand and 00/100 Dollars ($50,000).
(b) The Purchaser shall have determined, based
upon a final engineering study covering the
Buildings and any other existing structures on the
Property, that there are material defects in any
roof, foundation, sprinkler mains, structural
elements and masonry walls of any of the Buildings
or related heating, ventilating and air-
conditioning, electrical, sanitation, water, or
mechanical systems.
(c) The Purchaser shall have determined, based
upon a legal opinion from its special counsel, that
the Buildings as presently constructed and used
violate in a material respect applicable federal or
state law or governmental regulation, or local
ordinance, order or regulation, including but not
limited to laws, regulations or ordinances relating
to land use, zoning, building use and occupancy,
subdivision control, fire protection, public health
and safety, wetlands protection and protection of
the environment.
(d) The Purchaser shall have determined that
the Leases, the income and expenses and property tax
bills for the Property do not conform in all
material respects to the information contained in
the Confidential Offering Memorandum, prepared by
the Broker, or the Leases contain terms not
disclosed in the Confidential Offering Memorandum,
but which terms materially adversely effect (i) the
ability to use the Property as currently used, or
(ii) the value of the Property.
(e) The Purchaser shall have determined that
the Contracts are not in form and substance
reasonably acceptable to the Purchaser. If any
Contracts are not reasonably acceptable to the
Purchaser, the Purchaser shall notify the Seller
which Contracts are not acceptable to the Purchaser
and the reasons therefor. Any so identified
Contracts which Seller agrees to terminate or accept
financial responsibility for on the Closing Date
shall not give rise to a right of termination by
Purchaser hereunder.
If for any reason whatsoever the Seller shall not
have received the Purchaser's Termination Notice prior to
the expiration of the Due Diligence Period, the Purchaser
shall be deemed to have irrevocably waived the right of
termination granted under this Section 4.2, and such
right of termination shall be of no further force or
effect.
Purchaser's Termination Notice shall state with
sufficient particularity the conditions precedent to the
Purchaser's obligation to purchase the Property which
have not been satisfied and the Seller shall have the
option, exercisable by giving written notice of such
exercise to the Purchaser within seven (7) days of the
Seller's receipt of the Purchaser's Termination Notice,
to elect to use reasonable efforts (the cost of which
shall not exceed $25,000 in the aggregate) to cause the
satisfaction of such unsatisfied conditions precedent
specified in Purchaser's Termination Notice, in which
event this Agreement shall not terminate as a result of
the Purchaser delivery of the Purchaser's Termination
Notice.
Estoppel Certificates.
Promptly after execution and delivery of this
Agreement, the Seller agrees to request an Estoppel
Certificate from each tenant under a Lease, but in no
event shall it be deemed to be an obligation of the
Seller under this Agreement to obtain executed Estoppel
Certificates except for Estoppel Certificates from all
tenants who lease space in excess of 10% of the net
rentable area of the Buildings plus one-half of all other
tenants at the Building. The Estoppel Certificates shall
be in the form annexed hereto as Exhibit G and made a
part hereof; provided, however, if any tenant is required
or permitted under its Lease to make different statements
in a certificate of such nature than are set forth in
Exhibit G, prior to requesting an Estoppel Certificate
from such tenant, the Seller may modify the Estoppel
Certificate for such tenant to set forth only the
statements required under such tenant's Lease to be made
by such tenant in such a certificate. If any tenant
fails to deliver an Estoppel Certificate in the form
required by this Agreement, Seller shall have the right
to substitute in lieu thereof an estoppel certificate
substantially in such form executed by Seller and such
estoppel certificate shall be treated for all purposes as
an Estoppel Certificate from such failing tenant.
Title.
The Seller shall convey and the Purchaser shall accept
title to the Property subject to those matters set forth on
Schedule 5 hereto (collectively the "Permitted Encumbrances").
The Seller shall deliver to the Purchaser, at the Purchaser's
expense, within five (5) days after the execution of this
Agreement a commitment for an owner's fee title insurance
policy with respect to the Property (the "Title Commitment")
from First American Title Insurance Company (the "Title
Company"), together with true and complete copies of all
instruments giving rise to any defects or exceptions to title
to the Property. The Seller has delivered to the Purchaser,
at the Purchaser's expense, an as-built survey ("Survey") of
the Land and Building dated September 12, 1997 and prepared by
Xxxxxxx Engineering Co., Inc. in accordance with the "Minimum
Standard Detail Requirements for ALTA/ACSM Land Title Surveys"
jointly established and adopted by ALTA and ACSM in 1992. The
Survey shall contain a surveyor's certificate in favor of
Purchaser and the Title Company in form and substance
satisfactory for deletion of the standard survey exception
from the title insurance policy.
Unacceptable Encumbrances.
If the Title Commitment or the Survey indicate the
existence of any liens or encumbrances (collectively,
"Liens") or other defects or exceptions in or to title to
the Property other than the Permitted Encumbrances
(collectively, the "Unacceptable Encumbrances") subject
to which the Purchaser is unwilling to accept title and
the Purchaser gives the Seller notice of the same within
ten (10) days after receipt of the Title Commitment or
the Survey, respectively, the Seller shall undertake to
eliminate the same (or to arrange for title insurance
insuring against enforcement of such Unacceptable
Encumbrances against, or collection of the same out of,
the Property) subject to Section 5.2. The Purchaser
hereby waives any right the Purchaser may have to advance
as objections to title or as grounds for the Purchaser's
refusal to close this transaction any Unacceptable
Encumbrance which the Purchaser does not notify the
Seller of within such ten (10) day period unless (i) such
Unacceptable Encumbrance was first raised by the Title
Company subsequent to the date of the Title Commitment or
the Purchaser shall otherwise first discover same or be
advised of same subsequent to the date of the Title
Commitment or the Survey, respectively, and (ii) the
Purchaser shall notify the Seller of the same within five
(5) days after the Purchaser first becomes aware of such
Unacceptable Encumbrance. The Seller, in its sole
discretion, may adjourn the Closing one or more times for
up to sixty (60) days in the aggregate in order to
eliminate Unacceptable Encumbrances.
Removal of Unacceptable Encumbrances.
The Seller shall not be obligated to bring any
action or proceeding, to make any payments or otherwise
to incur any expense in order to eliminate Unacceptable
Encumbrances not waived by the Purchaser or to arrange
for title insurance insuring against enforcement of such
Unacceptable Encumbrances against, or collection of the
same out of, the Property; except that the Seller shall
satisfy Unacceptable Encumbrances which are (i) mortgages
(other than the Continuing Mortgage), and past due real
estate taxes and assessments secured by or affecting the
Property, and (ii) judgments against the Seller or other
Liens secured by or affecting the Property which
judgments and other Liens can be satisfied by payment of
liquidated amounts not to exceed $50,000 in the aggregate
for all such judgments and other Liens. The Seller may
eliminate any such Unacceptable Encumbrance by the
payment of amounts necessary to cause the removal thereof
of record, by bonding over such Unacceptable Encumbrance
in a manner reasonably satisfactory to the Purchaser or
by arranging for title insurance reasonably satisfactory
to the Purchaser insuring against enforcement of such
Unacceptable Encumbrance against, or collection of the
same out of, the Property.
Options Upon Failure to Remove Unacceptable Liens.
If the Seller is unable or is not otherwise
obligated (pursuant to Section 5.2) to eliminate all
Unacceptable Encumbrances not waived by the Purchaser, or
to bond over in a manner reasonably satisfactory to the
Purchaser any Unacceptable Encumbrances not waived by the
Purchaser, or to arrange for title insurance reasonably
acceptable to the Purchaser insuring against enforcement
of such Unacceptable Encumbrances against, or collection
of the same out of, the Property, and to convey title in
accordance with the terms of this Agreement on or before
the Closing Date (whether or not the Closing is adjourned
as provided in Section 5.1), the Purchaser shall elect on
the Closing Date, as its sole remedy for such inability
of the Seller, either (i) to terminate this Agreement by
notice given to the Seller pursuant to Section 14.1, in
which event the provisions of Section 14.1 shall apply,
or (ii) to accept title subject to such Unacceptable
Encumbrances and receive no credit against, or reduction
of, the Purchase Price.
Use of Purchase Price.
If on the Closing Date there may be any Liens or
other encumbrances which the Seller must pay or discharge
in order to convey to the Purchaser such title as is
herein provided to be conveyed, the Seller may use any
portion of the Purchase Price to satisfy the same,
provided:
(a) the Seller shall deliver to the Purchaser
or the Title Company, at the Closing, instruments in
recordable form and sufficient to satisfy such Liens
or other encumbrances of record together with the
cost of recording or filing said instruments; or
(b) the Seller, having made arrangements with
the Title Company, shall deposit with said company
sufficient moneys acceptable to said company to
insure the obtaining and the recording of such
satisfactions.
Franchise Taxes.
Any franchise or corporate tax open, levied or
imposed against the Seller or other owners in the chain
of title that may be a Lien on the Closing Date shall not
be an objection to title if the Title Company omits same
from the title policy issued pursuant to the Title
Commitment or excepts same but insures the Purchaser
against collection thereof out of the Property.
Transfer Taxes; Title Insurance Premiums.
At the Closing, the Seller shall pay all transfer
and recording taxes (the "Transfer Tax Payments") imposed
pursuant to the Laws of the Commonwealth of Massachusetts
or any other governmental authority in respect of the
transactions contemplated by this Agreement by delivery
to the Title Company of sufficient funds to pay such
taxes together with any return (the "Transfer Tax
Return") required thereby which shall be duly executed by
the Seller and the Purchaser to the extent required by
applicable law. At the Closing, the premiums due the
Title Company to obtain title insurance policies in the
form contemplated by the Title Commitment (as the same
may be amended pursuant to this Agreement), the cost of
obtaining the survey and other Closing-related expenses
shall be paid in the manner set forth on Schedule 6
hereto.
Representations and Warranties of the Seller.
The Seller represents and warrants to the Purchaser as
follows:
(a) The Seller is a duly formed and validly
existing limited partnership organized under the laws of
the State of Delaware and is qualified under the laws of
the Commonwealth of Massachusetts to conduct business
therein.
(b) The Seller has the full, legal right, power and
authority to execute and deliver this Agreement and all
documents now or hereafter to be executed by the Seller
pursuant to this Agreement (collectively, the "Seller's
Documents"), to consummate the transaction contemplated
hereby, and to perform its obligations hereunder and
under the Seller's Documents.
(c) This Agreement and the Seller's Documents do
not and will not contravene any provision of the limited
partnership agreement of the Seller, any judgment, order,
decree, writ or injunction issued against the Seller, or,
to the Seller's actual knowledge, any provision of any
laws or governmental ordinances, rules, regulations,
orders or requirements (collectively, the "Laws")
applicable to the Seller. The consummation of the
transactions contemplated hereby will not result in a
breach or constitute a default or event of default by the
Seller under any agreement to which the Seller or any of
its assets are subject or bound and will not result in a
violation of any Laws applicable to the Seller.
(d) The Seller has no actual knowledge of any
leases, licenses or other occupancy agreements affecting
any portion of the Property (collectively, the "Leases")
on the date hereof, except for the Leases listed in
Schedule 7 annexed hereto and made a part hereof. To
Seller's actual knowledge, the copies of the Leases
furnished by the Seller to the Purchaser are true and
complete. To the Seller's actual knowledge, the Leases
are in full force and effect, without any material
default by the Seller thereunder. To the Seller's actual
knowledge, except as listed on Schedule 7, the Seller has
not given or received any notice of default which remains
uncured or unsatisfied, with respect to any of the
Leases.
(e) To the Seller's actual knowledge, there are no
pending actions, suits, proceedings or investigations to
which the Seller is a party before any court or other
governmental authority with respect to the Property owned
by the Seller except as set forth on Schedule 8 hereto.
(f) Except as disclosed on Schedule 9 hereto, since
the date the Seller acquired legal and beneficial title
to the Property (i) to Seller's actual knowledge, neither
Seller nor any third party has engaged in the generation,
use, manufacture, treatment, storage or disposal of any
Hazardous Substance (as hereinafter defined) on the
Property in violation of Applicable Environmental Law (as
hereinafter defined), the cost of correction or
remediation of which would have a material adverse effect
upon the value of the Property, and (ii) to Seller's
actual knowledge, neither Seller nor any third party has
received any written notice from any governmental
authority having jurisdiction over the Property of any
violation of Applicable Environmental Law with respect to
the Property which requires corrective action, the cost
of which would have a material adverse effect upon the
value of the Property. Disclosure of any matter on
Schedule 9 hereto shall not constitute any admission by
Seller that such matter was material or a violation of
Applicable Environmental Law. As used in this Agreement,
the term "Hazardous Substance" shall mean any substance,
chemical or waste that is currently listed as hazardous,
toxic or dangerous under Applicable Environmental Law.
As used in this Agreement, the term "Applicable
Environmental Law" shall mean the Comprehensive
Environmental Response, Compensation and Liability Act
("CERCLA"), 42 U.S.C. 9601 et seq.; the Resource
Conservation and Recovery Act ("RCRA"), 42 U.S.C.
6901, et seq.; the Water Pollution Control Act, 33 U.S.C.
1251 et seq.; the Clean Air Act, 42 U.S.C. 7401 et
seq.; and the Toxic Substances Control Act, 15 U.S.C.
2601 et seq.; as the foregoing have been amended from
time to time to the date of this Agreement; and any
similar state and local laws and ordinances and the
regulations implementing such statutes in effect on the
date hereof imposing liability or establishing standards
of conduct for environmental protection.
Survival of Representations.
The representations and warranties of the Seller set
forth in this Section 6 (i) shall be true, accurate and
correct in all material respects upon the execution of
this Agreement and shall be deemed to be repeated on and
as of the Closing Date (except as they relate only to an
earlier date), and (ii) shall remain operative and shall
survive the Closing and the execution and delivery of the
Deed for a period of six months following the Closing
Date and then shall expire, and no action or claim based
thereon shall be commenced after such period.
Discovery of Untrue Representation.
If at or prior to the Closing, (i) the Purchaser
shall become aware that any of the representations or
warranties made herein by the Seller is untrue,
inaccurate or incorrect in any material respect and shall
give the Seller notice thereof at or prior to the
Closing, or (ii) the Seller shall notify the Purchaser
that a representation or warranty made herein by the
Seller is untrue, inaccurate or incorrect, then the
Seller may, in its sole discretion, elect by notice to
the Purchaser to adjourn the Closing one or more times
for up to sixty (60) days in the aggregate in order to
cure or correct such untrue, inaccurate or incorrect
representation or warranty. If any such representation
or warranty is not cured or corrected by the Seller on or
before the Closing Date (whether or not the Closing is
adjourned as provided above), then the Purchaser, as its
sole remedy for such inability of Seller, shall elect
either (i) to waive such misrepresentations or breaches
of warranties and consummate the transactions
contemplated hereby without any reduction of or credit
against the Purchase Price, or (ii) to terminate this
Agreement by notice given to Seller pursuant to the
provisions of Section 14.1. In the event the Closing
occurs, the Purchaser hereby expressly waives,
relinquishes and releases any right or remedy available
to it at law, in equity or under this Agreement to make a
claim against the Seller for damages that the Purchaser
may incur, or to rescind this Agreement and the
transactions contemplated hereby, as the result of any of
the Seller's representations or warranties being untrue,
inaccurate or incorrect if the Purchaser knew, should
have known or is deemed to have known that such
representation or warranty was untrue, inaccurate or
incorrect at the time of the Closing and the Purchaser
nevertheless closes title hereunder.
Limited Nature of Representations.
The Purchaser acknowledges that neither the Seller
nor any of the Seller's Affiliates, nor any of their
agents or representatives, nor Broker has made any
representations or held out any inducements to the
Purchaser other than those specifically set forth in this
Section 6 and Section 11. The Purchaser acknowledges
that the Seller, pursuant to the terms of this Agreement,
has afforded the Purchaser the opportunity for full and
complete investigations, examinations and inspections of
the Property and all Property Information. The Purchaser
acknowledges and agrees that (i) the Property Information
delivered or made available to the Purchaser and the
Purchaser's Representatives by the Seller or the Seller's
Affiliates, or any of their agents or representatives may
have been prepared by third parties and may not be the
work product of the Seller and/or any of the Seller's
Affiliates; (ii) neither the Seller nor any of the
Seller's Affiliates has made any independent
investigation or verification of, or has any knowledge
of, the accuracy or completeness of, the Property
Information; (iii) the Purchaser is relying solely on its
own investigations, examinations and inspections of the
Property and those of the Purchaser's Representatives and
is not relying in any way on the Property Information
furnished by the Seller or any of the Seller's
Affiliates, or any of their agents or representatives;
and (iv) the Seller expressly disclaims any
representations or warranties with respect to the
accuracy or completeness of the Property Information, and
the Purchaser releases the Seller and the Seller's
Affiliates, and their agents and representatives, from
any and all liability with respect thereto. The
Purchaser or anyone claiming by, through or under the
Purchaser, hereby fully and irrevocably releases the
Seller and the Seller's Affiliates from any and all
claims that it may now have or hereafter acquire against
any of the Seller or the Seller's Affiliates for any
cost, loss, liability, damage, expense, action or cause
of action, whether foreseen or unforeseen, arising from
or related to the presence of environmentally hazardous,
toxic or dangerous substances, or any other conditions
(whether patent, latent or otherwise) affecting the
Property, except for claims against the Seller based upon
any obligations and liabilities of the Seller expressly
provided in this Agreement.
The provisions of this Section 6 shall survive the
Closing.
Representations and Warranties of the Purchaser.
The Purchaser represents and warrants to the Seller as
follows:
(a) The Purchaser is a duly formed and validly
existing corporation organized under the laws of the
Commonwealth of Massachusetts, and is qualified under the
laws of the Commonwealth of Massachusetts to conduct
business therein on the date hereof.
(b) The Purchaser has the full, legal right, power,
authority and financial ability to execute and deliver
this Agreement and all documents now or hereafter to be
executed by it pursuant to this Agreement (collectively,
the "Purchaser's Documents"), to consummate the
transactions contemplated hereby, and to perform its
obligations hereunder and under the Purchaser's
Documents.
(c) This Agreement and the Purchaser's Documents do
not and will not contravene any provision of the articles
of incorporation or bylaws of the Purchaser, any
judgment, order, decree, writ or injunction issued
against the Purchaser, or any provision of any Laws
applicable to the Purchaser. The consummation of the
transactions contemplated hereby will not result in a
breach or constitute a default or event of default by the
Purchaser under any agreement to which the Purchaser or
any of its assets are subject or bound and will not
result in a violation of any Laws applicable to the
Purchaser.
(d) There are no pending actions, suits,
proceedings or investigations to which the Purchaser is a
party before any court or other governmental authority
which may have an adverse impact on the transactions
contemplated hereby.
The representations and warranties of the Purchaser set
forth in this Section 7 and elsewhere in this Agreement shall
be true, accurate and correct in all material respects upon
the execution of this Agreement, shall be deemed to be
repeated on and as of the Closing Date (except as they relate
only to an earlier date) and shall survive the Closing.
In the event that any condition contained in
Sections 13.1 or 13.2 is not satisfied, the party
entitled to the satisfaction of such condition as a
condition to its obligation to close title thereunder
shall have as its sole remedy hereunder the right to
elect to (i) waive such unsatisfied condition whereupon
title shall close as provided in this Agreement or (ii)
proceed as provided in Section 14 hereof.
Documents to be Delivered by the Seller at Closing.
At the Closing, the Seller shall execute, acknowledge
and/or deliver, as applicable, the following to the Purchaser:
(a) A special warranty deed or its equivalent (the
"Deed") conveying title to the Property in the form of
Exhibit A annexed hereto and made a part hereof.
(b) The Assignment and Assumption of Leases and
Security Deposits in the form of Exhibit B annexed hereto
and made a part hereof assigning without warranty or
representation all of the Seller's right, title and
interest, if any, in and to the Leases in effect on the
Closing Date, all guarantees thereof and the security
deposits thereunder in the Seller's possession, if any
(the "Lease Assignment").
(c) The Assignment and Assumption of Contracts and
Licenses in the form of Exhibit C annexed hereto and made
a part hereof (the "Contract and License Assignment")
assigning without warranty or representation all of the
Seller's right, title and interest, if any, in and to (i)
all of the assignable licenses, permits, certificates,
approvals, authorizations and variances issued for or
with respect to the Property by any governmental
authority (collectively, the "Licenses"), and (ii) all
assignable purchase orders, equipment leases, advertising
agreements, franchise agreements, license agreements,
management agreements, leasing and brokerage agreements
and other service contracts relating to the operation of
the Property (collectively, the "Contracts") not
terminated by Seller pursuant to the terms of this
Agreement.
(d) The Assignment and Assumption of Intangible
Property in the form of Exhibit D annexed hereto and made
part hereof assigning without warranty or representation
all of the Seller's right, title and interest, if any, in
and to all intangible property owned by the Seller with
respect to the operation of the Property listed on
Schedule 10 annexed hereto and made a part hereof,
including, without limitation, the trade name "Westwood
10 Center" (the "Intangible Property Assignment") (the
Lease Assignment, the Contract and License Assignment and
the Intangible Property Assignment are herein referred to
collectively as the "A & A Agreements").
(e) To the extent in the Seller's possession,
executed counterparts of all Leases and New Leases and
any amendments, guarantees and other documents relating
thereto, together with a schedule of all tenant security
deposits thereunder and the accrued interest on such
security deposits payable to tenants which are in the
possession of or received by the Seller.
(f) A xxxx of sale in the form of Exhibit E annexed
hereto and made a part hereof (the "Xxxx of Sale")
conveying, transferring and selling to the Purchaser
without warranty or representation all right, title and
interest of the Seller in and to all Personal Property.
[It is agreed that if the value of such property does not
exceed [$10,000], that the Seller shall prepare any
required sales tax return (the "Sales Tax Return"), that
such return shall be executed by the Purchaser and
delivered to the Seller at the Closing, that the Seller
shall file such return and that the Purchaser shall pay
the sales tax due thereon in accordance with Section
9(c).
(g) Notices to the tenants of the Property in the
form of Exhibit F annexed hereto and made a part hereof
advising the tenants of the sale of the Property to the
Purchaser and directing that rents and other payments
thereafter be sent to the Purchaser or as the Purchaser
may direct.
(h) A certificate of a general partner of the
Seller that the Seller has taken all necessary
partnership action to authorize the execution, delivery
and performance of this Agreement and the consummation of
the transaction contemplated hereby.
(i) Executed originals of all Estoppel Certificates
required by Section 4.3 and any other Estoppel
Certificates, received by the Seller from tenants prior
to the Closing Date and not previously delivered to the
Purchaser.
(j) To the extent in the Seller's possession and
not already located at the Property, keys to all entrance
doors to, and equipment and utility rooms located in, the
Property.
(k) To the extent in the Seller's possession and
not already located at the Property, all Licenses.
(l) To the extent in the Seller's possession,
executed counterparts of all Contracts and all warranties
in connection therewith which are in effect on the
Closing Date and which are assigned by the Seller.
(m) To the extent in the Seller's possession and
not located at the Building, plans and specifications of
the Buildings.
(n) The Transfer Tax Payments together with the
Transfer Tax Returns, if any.
(o) A "FIRPTA" affidavit sworn to by the Seller in
the form of Exhibit H annexed hereto and made a part
hereof. The Purchaser acknowledges and agrees that upon
the Seller's delivery of such affidavit, the Purchaser
shall not withhold any portion of the Purchase Price
pursuant to Section 1445 of the Internal Revenue Code of
1986, as amended, and the regulations promulgated
thereunder.
(p) All other documents the Seller is required to
deliver pursuant to the provisions of this Agreement.
Documents to be Delivered by the Purchaser at Closing.
At the Closing, the Purchaser shall execute, acknowledge
and/or deliver, as applicable, the following to the Seller:
(a) The cash portion of the Purchase Price payable
at the Closing pursuant to Section 2, subject to
apportionments, credits and adjustments as provided in
this Agreement.
(b) The Xxxx of Sale.
(c) The Sales Tax Return, if required, together
with a good, unendorsed certified or official bank check
drawn on or by a Clearing House Bank payable to the order
of the appropriate collection officer in the amount of
the sales tax due thereon.
(d) If the Purchaser is a corporation, (i) copies
of the certificate of incorporation and by-laws of the
Purchaser and of the resolutions of the board of
directors of the Purchaser authorizing the execution,
delivery and performance of this Agreement and the
consummation of the transactions contemplated by this
Agreement certified as true and correct by the Secretary
or Assistant Secretary of the Purchaser; (ii) a good
standing certificate issued by the state of incorporation
of the Purchaser, dated within thirty (30) days of the
Closing Date; (iii) a qualification to do business
certificate issued by the Commonwealth of Massachusetts,
dated within thirty (30) days of the Closing Date; and
(iv) an incumbency certificate executed by the Secretary
or Assistant Secretary of the Purchaser with respect to
those officers of the Purchaser executing any documents
or instruments in connection with the transactions
contemplated herein.
(e) If the Purchaser is a partnership, (i) copies
of the Purchaser's partnership agreement and partnership
certificate (if applicable) and, if required by law or
its partnership agreement, copies of partnership
resolutions and/or consents of the partners authorizing
the execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated by
this Agreement, all certified as true and correct by the
managing general partner of the Purchaser, or in the
absence thereof, then by all of the Purchaser's general
partners; (ii) a legal existence certificate issued by
the state of incorporation of the Purchaser, dated within
thirty (30) days of the Closing Date; and (iii) a
qualification to do business certificate issued by the
Commonwealth of Massachusetts, dated within thirty (30)
days of the Closing Date.
(f) If the Purchaser is a limited liability
company, (i) copies of the Purchaser's operating
agreement and, if required by law or its operating
agreement, copies of resolutions of the manager
authorizing the execution, delivery and performance of
this Agreement and the consummation of the transactions
contemplated by this Agreement, all certified as true and
correct by the manager of the Purchaser; (ii) a good
standing certificate issued by the state of incorporation
of the Purchaser, dated within thirty (30) days of the
Closing Date; and (iii) a qualification to do business
certificate issued by the Commonwealth of Massachusetts,
dated within thirty (30) days of the Closing Date.
(g) The A & A Agreements.
(h) All other documents the Purchaser is required
to deliver pursuant to the provisions of this Agreement.
Operation of the Property prior to the Closing Date.
Between the date hereof and the Closing Date, the Seller
shall have the right to continue to operate and maintain the
Property.
New Leases.
Except as hereinafter provided in this Section 10.1,
the Seller may modify, extend, renew, cancel or permit
the expiration of any Lease or enter into any proposed
Lease of all or any portion of the Property without the
Purchaser's consent; provided, however, that such Lease
is on Seller's standard form with such changes as Seller
deems appropriate in the exercise of its reasonable
discretion. After the expiration of the Due Diligence
Period, the Seller shall not modify, extend, renew or
cancel (subject to Section 10.2) any Lease or enter into
any proposed Lease of all or any portion of the Property
if such then existing or proposed Lease demises more than
10,000 rentable square feet of the Property without the
Purchaser's prior consent in each instance, which consent
shall not be unreasonably withheld and shall be given or
denied, with the reasons for any such denial, within five
(5) days after receipt by the Purchaser of the Seller's
notice requesting the Purchaser's consent to the proposed
action relating to such existing or proposed Lease. If
the Purchaser fails to reply to the Seller's request for
consent in a notice given within such period or if the
Purchaser expressly denies its consent but fails to
provide the Seller with the reasons for such denial, the
Purchaser's consent shall be deemed to have been granted.
New Lease Expenses.
If after the date of this Agreement the Seller
enters into any Leases, or if there is any extension
or renewal of any Leases, whether or not such Leases
provide for their extension or renewal, or any
expansion or modification of any Leases (each, a
"New Lease"), the Seller shall keep accurate records
of all expenses (collectively, "New Lease Expenses")
incurred in connection with each New Lease,
including, without limitation, the following: (i)
brokerage commissions and fees relating to such
leasing transaction, (ii) expenses incurred for
repairs, improvements, equipment, painting,
decorating, partitioning and other items to satisfy
the tenant's requirements with regard to such
leasing transaction, (iii) reimbursements to the
tenant for the cost of any of the items described in
the preceding clause (ii), (iv) legal fees for
services in connection with the preparation of
documents and other services rendered in connection
with the effectuation of the leasing transaction,
(v) rent concessions relating to the demised space
provided the tenant has the right to take possession
of such demised space during the period of such rent
concessions, and (vi) expenses incurred for the
purpose of satisfying or terminating the obligations
of a tenant under a New Lease to the landlord under
another lease (whether or not such other lease
covers space in the Property).
Allocation of New Lease Expenses.
The New Lease Expenses for each New Lease
allocable to and payable by the Seller shall be
determined by multiplying the amount of such New
Lease Expenses by a fraction, the numerator of which
shall be the number of days contained in that
portion, if any, of the term of such New Lease
commencing on the date on which the tenant
thereunder shall have commenced to pay fixed rent
("Rent Commencement Date") and expiring on the date
immediately preceding the Closing Date, and the
denominator of which shall be the total number of
days contained in the period commencing on the Rent
Commencement Date and expiring on the date of the
scheduled expiration of the term of such New Lease,
without provision for any optional extensions or
renewals, and the remaining balance of the New Lease
Expenses for each New Lease shall be allocable to
and payable by the Purchaser by addition to the
Purchase Price. At the Closing, the Purchaser shall
reimburse the Seller for all New Lease Expenses
theretofore paid by the Seller, if any, in excess of
the portion of the New Lease Expenses allocated to
the Seller pursuant to the provisions of the
preceding sentence. For purposes of this Section
10.1.2, the Rent Commencement Date under a renewal,
extension, expansion or modification of a Lease
shall be deemed to be (i) in the case of a renewal
or extension (whether effective prior to or after
the Closing, or in the form of an option exercisable
in the future), the first date during such renewal
or extension period after the originally scheduled
expiration of the term of such Lease on which the
tenant under such Lease commences to pay fixed rent,
(ii) in the case of an expansion (whether effective
prior to or after the Closing, or in the form of an
option exercisable in the future), the date on which
the tenant under such Lease commences to pay fixed
rent for the additional space, and (iii) in the case
of a modification not also involving a renewal,
extension or expansion of such Lease, the effective
date of such modification agreement. The provisions
of this Section 10.1.2 shall survive the Closing.
Termination of Existing Leases.
Notwithstanding anything to the contrary contained
in this Agreement, the Seller reserves the right, but is
not obligated, to institute summary proceedings against
any tenant or terminate any Lease as a result of a
default by the tenant thereunder prior to the Closing
Date. The Seller makes no representations and assumes no
responsibility with respect to (i) the continued
occupancy of the Property or any part thereof by any
tenant and (ii) the fulfillment by any tenant of its
obligations under any Lease. The removal of a tenant
whether by summary proceedings or otherwise prior to the
Closing Date shall not give rise to any claim on the part
of the Purchaser. Further, the Purchaser agrees that it
shall not be grounds for the Purchaser's refusal to close
this transaction that any tenant is a holdover tenant or
in default under its Lease pursuant to any economic or
non-economic terms of its Lease on the Closing Date and
the Purchaser shall accept title subject to such holding
over or default without credit against, or reduction of,
the Purchase Price.
Contracts.
Except as hereinafter provided in this Section 10.3,
the Seller may cancel, modify, extend, renew or permit
the expiration of Contracts or enter into any new
Contract without the Purchaser's prior consent. After
the expiration of the Due Diligence Period, the Seller
shall not modify, extend, renew or cancel (except as a
result of a default by the other party thereunder or if
Purchaser has given notice pursuant to Section 4.2(e)
that a Contract is unacceptable) any Contracts, or enter
into any new Contract without the Purchaser's prior
consent in each instance, which consent shall not be
unreasonably withheld or delayed, and if withheld, the
Purchaser shall promptly give the Seller a notice stating
the reasons therefor. If the Purchaser fails to reply
within five (5) days to the Seller's request for consent
in a notice given pursuant to this Section 10.3 or if the
Purchaser expressly denies its consent but fails to
provide the Seller with the reasons for such denial, the
Purchaser's consent shall be deemed to have been granted.
Notwithstanding the foregoing, Seller shall not enter
into any contract during the Due Diligence Period which
cannot be terminated upon thirty (30) days notice.
Broker.
The Purchaser and the Seller represent and warrant to
each other that Fallon, Xxxxx & X'Xxxxxx (the "Broker") is the
sole broker with whom they have dealt in connection with the
Property and the transactions described herein. The Seller
shall be liable for, and shall indemnify the Purchaser
against, all brokerage commissions or other compensation due
to the Broker arising out of the transaction contemplated in
this Agreement, which compensation shall be paid subject and
pursuant to a separate agreement between the Seller and the
Broker. Each party hereto agrees to indemnify, defend and
hold the other harmless from and against any and all claims,
causes of action, losses, costs, expenses, damages or
liabilities, including reasonable attorneys' fees and
disbursements, which the other may sustain, incur or be
exposed to, by reason of any claim or claims by any broker,
finder or other person, except (in the case of the Purchaser
as indemnitor hereunder) the Broker, for fees, commissions or
other compensation arising out of the transactions
contemplated in this Agreement if such claim or claims are
based in whole or in part on dealings or agreements with the
indemnifying party. The obligations and representations and
warranties contained in this Section 11 shall survive the
termination of this Agreement and the Closing.
Casualty; Condemnation.
Damage or Destruction.
If a "material" part (as hereinafter defined) of the
Property is damaged or destroyed by fire or other
casualty, the Seller shall notify the Purchaser of such
fact and the Purchaser shall have the option to terminate
this Agreement upon notice to the Seller given not later
than ten (10) days after receipt of the Seller's notice;
provided, however, that the Purchaser's election shall be
ineffective if within ten (10) days after the Seller's
receipt of the Purchaser's election notice, the Seller
shall elect by notice to the Purchaser to repair such
damage or destruction and shall thereafter complete such
repair within 90 days after the then scheduled Closing
Date at the time of the Purchaser's election. If the
Seller makes such election to repair, the Seller shall
have the right to adjourn the Closing Date one or more
times for up to 90 days in the aggregate in order to
complete such repairs and shall have the right to retain
all insurance proceeds which the Seller may be entitled
to receive as a result of such damage or destruction. If
(i) the Purchaser does not elect to terminate this
Agreement as to the damaged Property, (ii) the Purchaser
elects to terminate this Agreement as to the damaged
Property but such election is ineffective because the
Seller elects to repair such damage and completes such
repair within such 90-day period provided above, or
(iii) there is damage to or destruction of an
"immaterial" part ("immaterial" is herein deemed to be
any damage or destruction which is not "material", as
such term is hereinafter defined) of the Property, the
Purchaser shall close title as provided in this Agreement
and, at the Closing, the Seller shall, unless the Seller
has repaired such damage or destruction prior to the
Closing, (x) pay over to the Purchaser the proceeds of
any insurance collected by the Seller less the amount of
all costs incurred by the Seller in connection with the
repair of such damage or destruction, and (y) assign and
transfer to the Purchaser all right, title and interest
of the Seller in and to any uncollected insurance
proceeds which the Seller may be entitled to receive from
such damage or destruction. A "material" part of the
Property shall be deemed to have been damaged or
destroyed if the cost of repair or replacement shall be
fifteen percent (15%) or more of the Purchase Price.
Condemnation.
If, prior to the Closing Date, all or any
"significant" portion (as hereinafter defined) of the
Property is taken by eminent domain or condemnation (or
is the subject of a pending taking which has not been
consummated), the Seller shall notify the Purchaser of
such fact and the Purchaser shall have the option to
terminate this Agreement upon notice to the Seller given
not later than ten (10) days after receipt of the
Seller's notice. If the Purchaser does not elect to
terminate this Agreement, or if an "insignificant"
portion ("insignificant" is herein deemed to be any
taking which is not "significant", as such term is herein
defined) of the Property is taken by eminent domain or
condemnation, at the Closing the Seller shall assign and
turnover, and the Purchaser shall be entitled to receive
and keep, all awards or other proceeds for such taking by
eminent domain or condemnation. A "significant" portion
of the Property means (i) 10% or more of the building on
the Land, (ii) a portion of the parking areas if the
taking thereof reduces the remaining available number of
parking spaces below the minimum legally required, or
(iii) a legally required driveway on the Land if such
driveway is the predominant means of ingress thereto or
egress therefrom.
Termination.
If the Purchaser effectively terminates this
Agreement pursuant to Section 12.1 or 12.2, this
Agreement shall be terminated and the rights of the
parties shall be the same as if notice of termination
were given pursuant to Section 14.1.
Conditions Precedent to Closing.
Conditions Precedent to the Purchaser's
Obligations to Perform.
The Purchaser's obligation under this Agreement to
purchase the Property is subject to the fulfillment of
each of the following conditions: (i) the representations
and warranties of the Seller contained herein shall be
materially true, accurate and correct as of the Closing
Date except to the extent they relate only to an earlier
date; (ii) the Seller shall be ready, willing and able to
deliver title to the Property in accordance with the
terms and conditions of this Agreement; (iii) any
conditions precedent to the Purchaser's obligation to
purchase the Property which is validly listed in the
Purchaser's Termination Notice as being unsatisfied has
been satisfied; and (iv) the Seller shall have delivered
all the documents and other items required pursuant to
Section 8, and shall have performed all other covenants,
undertakings and obligations, and complied with all
conditions required by this Agreement to be performed or
complied with by the Seller at or prior to the Closing.
Conditions Precedent to the Seller's Obligations
to Perform.
The Seller's obligation under this Agreement to
sell the Property to the Purchaser is subject to the
fulfillment of each of the following conditions: (i) the
representations and warranties of the Purchaser contained
herein shall be materially true, accurate and correct as
of the Closing Date; (ii) the Purchaser shall have
delivered the funds required hereunder and all the
documents to be executed by the Purchaser set forth in
Section 9 and shall have performed all other covenants,
undertakings and obligations, and complied with all
conditions required by this Agreement to be performed or
complied with by the Purchaser at or prior to the
Closing; (iii) all consents and approvals of governmental
authorities and parties to agreements to which the
Purchaser is a party or by which the Purchaser's assets
are bound that are required with respect to the
consummation of the transactions contemplated by this
Agreement shall have been obtained and copies thereof
shall have been delivered to the Seller at or prior to
the Closing; and (iv) the additional matters set forth
in Schedule 11 annexed hereto and made a part hereof
shall have occurred or been delivered to the Seller, as
applicable, at or prior to the Closing.
Remedies Upon Failure to Satisfy Conditions.
In the event that any condition contained in
Sections 13.1 or 13.2 is not satisfied, the party
entitled to the satisfaction of such condition as a
condition to its obligation to close title shall have as
its sole remedy hereunder the right to elect to (i) waive
such unsatisfied condition whereupon title shall close as
provided in this Agreement or (ii) proceed as provided in
Section 14 hereof.
Remedies.
Seller's Inability to Perform.
If the Closing fails to occur by reason of the
Seller's inability to perform its obligations under this
Agreement which has not been waived pursuant to Section
13.3, then the Purchaser, as its sole remedy for such
inability of the Seller, may terminate this Agreement by
notice to the Seller. If the Purchaser elects to
terminate this Agreement, then this Agreement shall be
terminated and neither party shall have any further
rights, obligations or liabilities hereunder, except as
otherwise expressly provided herein (collectively, the
"Surviving Obligations"), and except that the Purchaser
shall be entitled to a return of the Deposit provided the
Purchaser is not otherwise in default hereunder. Except
as set forth in this Section 14.1, the Purchaser hereby
expressly waives, relinquishes and releases any other
right or remedy available to it at law, in equity or
otherwise by reason of the Seller's inability to perform
its obligations hereunder. Notwithstanding anything to
the contrary herein, if the Seller's inability to perform
its obligations under this Agreement is a result of any
action of, or failure to act by, the Purchaser or any of
the Purchaser's Representatives, the Purchaser shall not
be relieved of its obligations under this Agreement and
Purchaser shall not be entitled to any right or remedy
provided in this Section 14.1 or elsewhere in this
Agreement.
Purchaser's Failure to Perform.
In the event of a default hereunder by the Purchaser
or if the Closing fails to occur by reason of the
Purchaser's failure or refusal to perform its obligations
hereunder, then the Seller may terminate this Agreement
by notice to the Purchaser. If the Seller elects to
terminate this Agreement, then this Agreement shall be
terminated and the Seller may retain the Deposit as
liquidated damages for all loss, damage and expenses
suffered by the Seller, it being agreed that the Seller's
damages are impossible to ascertain, and neither party
shall have any further rights, obligations or liabilities
hereunder, except for the Surviving Obligations. Nothing
contained herein shall limit or restrict the Seller's
ability to pursue any rights or remedies it may have
against the Purchaser with respect to the Surviving
Obligations. Except as set forth in this Section 14.2
and the Surviving Obligations, the Seller hereby
expressly waives, relinquishes and releases any other
right or remedy available to them at law, in equity or
otherwise by reason of the Purchaser's default hereunder
or the Purchaser's failure or refusal to perform its
obligations hereunder. Notwithstanding anything to the
contrary herein, if the Purchaser's default or the
Purchaser's failure or refusal to perform its obligations
under this Agreement is a result of any action of, or
failure to act by, the Seller or any of the Seller's
Affiliates, the Seller shall not be relieved of its
obligations under this Agreement and the Seller shall not
be entitled to any right or remedy provided in this
Section 14.2 or elsewhere in this Agreement.
Seller's Failure to Perform.
If the Closing fails to occur by reason of the
Seller's failure or refusal to perform its obligations
hereunder which has not been waived by the Purchaser,
then the Purchaser, as its sole remedy hereunder, may (i)
terminate this Agreement by notice to the Seller or (ii)
seek specific performance from the Seller. As a
condition precedent to the Purchaser exercising any right
it may have to bring an action for specific performance
as the result of the Seller's failure or refusal to
perform their obligations hereunder, the Purchaser must
commence such an action within ninety (90) days after the
occurrence of such default. The Purchaser agrees that
its failure to timely commence such an action for
specific performance within such ninety (90) day period
shall be deemed a waiver by it of its right to commence
such an action. Notwithstanding anything to the contrary
herein, if the Seller's failure or refusal to perform its
obligations under this Agreement is a result of any
action of, or failure to act by, the Purchaser or any of
the Purchaser's Representatives, the Purchaser shall not
be relieved of its obligations under this Agreement and
Purchaser shall not be entitled to any right or remedy
provided in this Section 14.3 or elsewhere in this
Agreement.
Escrow.
The Escrow Agent shall hold the Downpayment and all
interest accrued thereon, if any (collectively, the "Deposit")
in escrow and shall dispose of the Deposit only in accordance
with the provisions of that certain Escrow Agreement of even
date herewith by and among the Escrow Agent, the Purchaser and
the Seller relating to the Property (the "Escrow Agreement")
in the form of Exhibit I hereto. Simultaneously with their
execution and delivery of this Agreement, the Purchaser and
the Seller shall furnish the Escrow Agent with their true
Federal Taxpayer Identification Numbers so that the Escrow
Agent may file appropriate income tax information returns with
respect to any interest earned on or credited to the Deposit.
The party entitled to the economic benefit of the Deposit
representing interest earned on the Downpayment shall be the
party responsible for the payment of any tax due thereon.
The provisions of the Escrow Agreement shall survive the
termination of this Agreement and the Closing.
Notices.
All notices, elections, consents, approvals, demands,
objections, requests or other communications which the Seller
or the Purchaser may be required or desire to give pursuant
to, under or by virtue of this Agreement must be in writing
and (i) delivered by hand to the addresses set forth below, or
(ii) (a) sent by express mail or courier (for next business
day delivery), or (b) sent by certified or registered mail,
return receipt requested with proper postage prepaid,
addressed as follows:
If to the Seller:
Xxxx Xxxxxx Realty Income Partnership I, L.P.
c/o Xxxx Xxxxxx Realty Inc.
Two World Trade Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx XxXxxxxx
with a copy to:
Xxxxxxx X. Xxxxxxxxx, Esq.
Xxxxxxx Xxxx LLP
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
If to the Purchaser:
Xxxxxxx Capital Corporation
Two Westborough Business Park
000 Xxxxxxx Xxxxxxx, Xxxxx 0000
Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxxxxxxx Xxxx, President
Xxxx Xxxxxxxxx, Vice-President
with a copy to:
Xxxxxx X. Xxxxxxx, Esq.
000 Xxxx Xxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxxx 00000
The Seller or the Purchaser may designate another
addressee or change its address for notices and other
communications hereunder by a notice given to the other
parties in the manner provided in this Section 16. A notice
or other communication sent in compliance with the provisions
of this Section 16 shall be deemed given and received (i) if
by hand, at the time of the delivery thereof to the receiving
party at the address of such party set forth above (or to such
other address as such party has designated as provided above),
(ii) if sent by express mail or overnight courier, on the date
it is delivered to the other party, or (iii) if sent by
registered or certified mail, on the third business day
following the day such mailing is made.
Property Information and Confidentiality.
The Purchaser agrees that, prior to the Closing, all
Property Information shall be kept strictly confidential and
shall not, without the prior consent of the Seller, be
disclosed by the Purchaser or the Purchaser's Representatives,
in any manner whatsoever, in whole or in part, and will not be
used by the Purchaser or the Purchaser's Representatives,
directly or indirectly, for any purpose other than evaluating
the Property. Moreover, the Purchaser agrees that, prior to
the Closing, the Property Information will be transmitted only
to the Purchaser's Representatives (i) who need to know the
Property Information for the purpose of evaluating the
Property, and who are informed by the Purchaser of the
confidential nature of the Property Information, (ii) who
agree to be bound by the terms of this Section 17 and Section
6.3 and (iii) who have executed and delivered to the Seller
the letter regarding use of the Property Information in the
form of Exhibit J hereto. The provisions of this Section 17
shall in no event apply to Property Information which is a
matter of public record and shall not prevent the Purchaser
from complying with Laws, including, without limitation,
governmental regulatory, disclosure, tax and reporting
requirements.
Press Releases.
The Purchaser and Seller, for the benefit of each
other, hereby agree that between the date hereof and the
Closing Date, they will not release or cause or permit to
be released any press notices, publicity (oral or
written) or advertising promotion relating to, or
otherwise announce or disclose or cause or permit to be
announced or disclosed, in any manner whatsoever, the
terms, conditions or substance of this Agreement or the
transactions contemplated herein, without first obtaining
the written consent of the other party hereto. It is
understood that the foregoing shall not preclude either
party from discussing the substance or any relevant
details of the transactions contemplated in this
Agreement with any of its attorneys, accountants,
professional consultants or potential lenders, as the
case may be, or prevent either party hereto from
complying with Laws, including, without limitation,
governmental regulatory, disclosure, tax and reporting
requirements.
Return of Property Information.
In the event this Agreement is terminated, the
Purchaser and the Purchaser's Representatives shall
promptly deliver to the Seller all originals and copies
of the Property Information in the possession of the
Purchaser and the Purchaser's Representatives.
Notwithstanding anything contained herein to the
contrary, in no event shall the Purchaser be entitled to
receive a return of the Downpayment or the accrued
interest thereon, if any, if and when otherwise entitled
thereto pursuant to this Agreement until such time as the
Purchaser and the Purchaser's Representatives shall have
performed the obligations contained in the preceding
sentence.
Property Information Defined.
As used in this Agreement, the term "Property
Information" shall mean (i) all information and documents
in any way relating to the Property, the operation
thereof or the sale thereof (including, without
limitation, Leases, Contracts and Licenses) furnished to,
or otherwise made available for review by, the Purchaser
or its directors, officers, employees, affiliates,
partners, brokers, agents or other representatives,
including, without limitation, attorneys, accountants,
contractors, consultants, engineers and financial
advisors (collectively, the "Purchaser's
Representatives"), by the Seller or any of the Seller's
Affiliates, or their agents or representatives,
including, without limitation, their contractors,
engineers, attorneys, accountants, consultants, brokers
or advisors, and (ii) all analyses, compilations, data,
studies, reports or other information or documents
prepared or obtained by the Purchaser or the Purchaser's
Representatives containing or based, in whole or in part,
on the information or documents described in the
preceding clause (i), or the Investigations, or otherwise
reflecting their review or investigation of the Property.
Remedies.
In addition to any other remedies available to the
Seller, the Seller shall have the right to seek equitable
relief, including, without limitation, injunctive relief
or specific performance, against the Purchaser or the
Purchaser's Representatives in order to enforce the
provisions of this Section 17 and 6.3.
The provisions of this Section 17 shall survive the
termination of this Agreement and the Closing.
Access to Records.
For a period of three (3) years subsequent to the Closing
Date, the Seller, the Seller's Affiliates and their employees,
agents and representatives shall be entitled to access during
business hours to all documents, books and records given to
the Purchaser by the Seller at the Closing for tax and audit
purposes, regulatory compliance, and cooperation with
governmental investigations upon reasonable prior notice to
the Purchaser, and shall have the right, at their sole cost
and expense, to make copies of such documents, books and
records.
Assignments.
This Agreement shall be binding upon and shall inure to
the benefit of the parties hereto and to their respective
heirs, executors, administrators, successors and permitted
assigns. This Agreement may not be assigned by the Purchaser
without the prior written consent of the Seller, except to
another entity owned by the same shareholders of Purchaser or
immediate family members (provided that the Purchaser shall
remain liable under the terms of this Agreement), and any
assignment or attempted assignment by the Purchaser without
such prior written consent shall constitute a default by the
Purchaser hereunder and shall be null and void.
Entire Agreement, Amendments.
All prior statements, understandings, representations and
agreements between the parties, oral or written, are
superseded by and merged in this Agreement, which alone fully
and completely expresses the agreement between them in
connection with this transaction and which is entered into
after full investigation, neither party relying upon any
statement, understanding, representation or agreement made by
the other not embodied in this Agreement. This Agreement shall
be given a fair and reasonable construction in accordance with
the intentions of the parties hereto, and without regard to or
aid of canons requiring construction against the Seller or the
party drafting this Agreement. This Agreement shall not be
altered, amended, changed, waived, terminated or otherwise
modified in any respect or particular, and no consent or
approval required pursuant to this Agreement shall be
effective, unless the same shall be in writing and signed by
or on behalf of the party to be charged.
Merger.
Except as otherwise expressly provided herein, the
Purchaser's acceptance of the Deed shall be deemed a discharge
of all of the obligations of the Seller hereunder and all of
the Seller's representations, warranties, covenants and
agreements herein shall merge in the documents and agreements
executed at the Closing and shall not survive the Closing.
Limited Recourse.
The Purchaser agrees that it does not have and will not
have any claims or causes of action against any disclosed or
undisclosed officer, director, employee, trustee, shareholder,
partner, principal, parent, subsidiary or other affiliate of
the Seller, including, without limitation, Xxxx Xxxxxx Realty
Inc. and the parent and affiliates of Xxxx Xxxxxx Realty Inc.
(collectively, the "Seller's Affiliates"), arising out of or
in connection with this Agreement or the transactions
contemplated hereby. The Purchaser agrees to look solely to
the Seller and the Seller's assets directly attributable to
the Building for the satisfaction of the Seller's liability or
obligation arising under this Agreement or the transactions
contemplated hereby, or for the performance of any of the
covenants, warranties or other agreements of the Seller
contained herein, and further agrees not to xxx or otherwise
seek to enforce any personal obligation against any of the
Seller's Affiliates with respect to any matters arising out of
or in connection with this Agreement or the transactions
contemplated hereby. The total liability of the Seller
hereunder shall in no event exceed $30,000.00.
Miscellaneous.
Neither this Agreement nor any memorandum thereof shall
be recorded and any attempted recordation hereof shall be void
and shall constitute a default. This Agreement may be
executed in one or more counterparts, each of which so
executed and delivered shall be deemed an original, but all of
which taken together shall constitute but one and the same
instrument. Each of the Exhibits and Schedules referred to
herein and attached hereto is incorporated herein by this
reference. The caption headings in this Agreement are for
convenience only and are not intended to be a part of this
Agreement and shall not be construed to modify, explain or
alter any of the terms, covenants or conditions herein
contained. If any provision of this Agreement shall be
unenforceable or invalid, the same shall not affect the
remaining provisions of this Agreement and to this end the
provisions of this Agreement are intended to be and shall be
severable. This Agreement shall be interpreted and enforced
in accordance with the laws of the Commonwealth of
Massachusetts without reference to principles of conflicts of
laws.
Time of the Essence.
Time is of the essence with respect to this Agreement,
including but not limited to the occurrence of the Closing as
of the originally scheduled date.
IRS Form 1099-S Designation.
In order to comply with information reporting
requirements of Section 6045(e) of the Internal Revenue Code
of 1986, as amended, and the Treasury Regulations thereunder,
the parties agree (i) to execute an IRS Form 1099-S
Designation Agreement in the form attached hereto as Exhibit K
at or prior to the Closing to designate the Title Company as
the party who shall be responsible for reporting the
contemplated sale of the Property to the Internal Revenue
Service (the "IRS") on IRS Form 1099-S; (ii) to provide the
Title Company with the information necessary to complete Form
1099-S; (iii) that the Title Company shall not be liable for
the actions taken under this Section 25, or for the
consequences of those actions, except as they may be the
result of gross negligence or willful misconduct on the part
of the Title Company; and (iv) that the Title Company shall be
indemnified by the parties for any costs or expenses incurred
as a result of the actions taken under this Section 25, except
as they may be the result of gross negligence or willful
misconduct on the part of the Title Company. The Title
Company shall provide all parties to this transaction with
copies of the IRS Forms 1099-S filed with the IRS and with any
other documents used to complete IRS Form 1099-S.
Attorney's Fees.
In any event that at any xxxx Xxxxxx or Purchaser shall
institute any action or proceeding against the other relating
to this Agreement or any default hereunder, then and in that
event the prevailing party in such action or proceeding shall
be entitled to recover from the other party its reasonable
attorneys' fees which shall be deemed to have accrued on the
commencement of such action or proceeding and shall be payable
whether or not such action is prosecuted to judgment.
Counterparts.
This Agreement may be executed by the parties
hereto in separate counterparts, each of which when so
executed and delivered shall be an original, but all such
counterparts shall together constitute but one and the same
instrument.
IN WITNESS WHEREOF, this Agreement has been duly executed
by the parties hereto as of the day and year first above
written.
SELLER:
XXXX XXXXXX REALTY
INCOME PARTNERSHIP I, L.P.
By: Xxxx Xxxxxx Realty Income
Properties I, Inc., its
managing
general partner
By:/s/Xxxxxx X. Xxxxxx
Name:Xxxxxx X. Xxxxxx
Title:Vice President
PURCHASER:
XXXXXXX CAPITAL CORPORATION
By:/s/Xxxxxxxxxxx Xxxx
Name:Xxxxxxxxxxx Xxxx
Title:President
Subject to affirmative title
insurance
letter dated 10/24/97
