Exhibit 10.43
PURCHASE AND SALE AGREEMENT
by
and
between
RoweCom, Inc.
as "Seller"
and
Sixty-Five Lafayette Road, LLC
as "Buyer"
Dated as of
November 20, 2000
INDEX
Page
----
SECTION 1. IDENTIFICATION OF PARTIES 1
SECTION 2. DESCRIPTION OF THE PROPERTY 1
SECTION 3. THE PURCHASE PRICE 1
SECTION 4. DUE DILIGENCE - INSPECTION 2
SECTION 5. REPRESENTATIONS AND WARRANTIES OF SELLER 4
SECTION 6. REPRESENTATIONS AND WARRANTIES OF PURCHASER 5
SECTION 7. SELLER'S DELIVERIES 6
SECTION 8. CONDITIONS PRECEDENT TO CLOSING 7
SECTION 8A. COVENANTS OF SELLER 8
SECTION 9. SELLER'S CLOSING DOCUMENTS 8
SECTION 10. PURCHASER'S CLOSING DOCUMENTS 8
SECTION 11. PRORATIONS, ADJUSTMENTS AND CLOSING COSTS 9
SECTION 12. CLOSING 11
SECTION 13. DEFAULT 12
SECTION 14. BROKER'S COMMISSION 12
SECTION 15. MISCELLANEOUS 13
SIGNATURE PAGE 16
EXHIBITS
Exhibit A - Description of the Land A
Exhibit B - Escrow Agent's Deposit Money Escrow Instructions B
and Investment Escrow Instructions
PURCHASE AND SALE AGREEMENT
1. IDENTIFICATION OF PARTIES
THIS PURCHASE AND SALE AGREEMENT (the "Agreement") is entered into as of
this ______ day of November, 2000, by and between RoweCom., Inc., a Delaware
corporation having a usual place of business at 00 Xxxxxxxxx Xxxx, Xxxxxxxx,
Xxxxxxxxxxxxx ("Seller") and Sixty-Five Lafayette Road, L.L.C., a/k/a 00
Xxxxxxxxx Xxxx, LLC, having an usual place of business at 0 Xxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx, and its permitted assigns (together hereinafter sometimes
referred to as the "Purchaser").
2. DESCRIPTION OF THE PROPERTY
In consideration of the mutual undertakings of the parties set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which hereby are acknowledged, Seller hereby agrees to sell and
convey to Purchaser or Purchaser's nominee and Purchaser hereby agrees to
purchase from Seller all of Seller's right, title and interest in and to the
following:
(a) That certain real property located in Westwood, Norfolk County,
Massachusetts, commonly known and numbered 00-00 Xxxxxxxxx Xxxx,
consisting of approximately 2.94 acres of land, and more particularly
described in the description attached hereto as Exhibit A (the "Land")
together with all buildings, structures and improvements located thereon
(collectively, "Improvements"); and
(b) All rights, title, interest, privileges, easements, and
appurtenances to the Land including all easements, rights-of-way, and
other appurtenances used or connected with the beneficial use or enjoyment
of the Land including, but not limited to, access to a public way and all
right, title and interest of Seller in and to any unpaid award for damage
to the Land by reason of change of grade of any street, if any; (the Land,
the Improvements and all such rights, title, interest, privileges,
easements and appurtenances are sometimes collectively hereinafter
referred to as the "Property").
3. THE PURCHASE PRICE
The purchase price of the Property is Four Million Four Hundred Five
Thousand Thousand and 00/100 Dollars ($4,405,000.00) ("Purchase Price") and
shall be paid to Seller by Purchaser as
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follows:
(a) Upon execution of this Purchase and Sale Agreement (this
"Agreement") by all parties, Purchaser shall deposit in escrow with
Chicago Title Insurance Company ("Escrow Agent") an xxxxxxx money deposit
in the amount of Two Hundred Thousand and 00/100 Dollars ($200,000.00)
("Deposit") such deposit shall be placed in an interest bearing account
with a bank or other lending institution which shall be insured by the
FDIC or other such insurer. The Escrow Agent will serve as Escrow Agent
subject to Escrow Agent's Deposit Money Escrow Instructions and Investment
of Escrow Instructions, copies of which are attached hereto as Exhibit B.
(b) In the event the purchase and sale of the Property is
consummated as contemplated hereunder, the Deposit, plus all interest
earned thereon, and such total shall be paid to Seller and credited
against the Purchase Price. In the event the purchase and sale of the
Property is not consummated because of the failure of any Condition
Precedent, hereinafter defined, or any other reason except for a default
under this Agreement on the part of Purchaser, the Deposit, plus all
interest accrued thereon, shall be refunded immediately to Purchaser. In
the event the purchase and sale of the Property is not consummated because
of a default under this Agreement on the part of Purchaser, the Deposit,
plus all accrued interest thereon, shall be paid to and retained by Seller
pursuant to Section 13.
(c) The balance of the Purchase Price over and above the amounts
paid by or credited to Purchaser pursuant to Sections 3(a) and (b) above
shall be paid to Seller in United States' funds, by certified or bank
cashier's check drawn on a Boston area bank or by wire transfer of
immediately available funds at the Closing, hereinafter defined, net of
all prorations as provided herein.
4. DUE DILIGENCE -INSPECTION
Purchaser shall have until December 17, 2000, at 5:00 o'clok, p.m. to
perform its due diligence (the "Due Diligence Period"). In connection with its
due diligence Purchaser and its representatives shall also have the right, with
prior reasonable notice to Seller, to enter onto the Property at all reasonable
times, and from time to time, at Purchaser's expense, for purposes of inspecting
the Property; provided that any invasive or subsurface testing will require the
the prior written consent of the Seller, which consent shall not be unreasonably
withheld, delayed or denied. Seller shall also provide Purchaser with all books
and records pertaining to the operation of the Property in its possession.
Purchaser shall be
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responsible for the restoration of the Property substantially to its condition
prior to making such tests and removing all liens on the Property arising from
Purchaser's investigations, such obligations to restore and to remove liens to
continue if Purchaser shall not acquire the Property for any reason other than
Seller's default hereunder and such obligations shall survive any termination of
this Agreement due to Purchaser's default. Purchaser and its representatives
shall not unreasonably interfere with the Seller's business operations.
Purchaser shall indemnify and hold harmless Seller against any claims, losses or
damages arising from any damage to the Property or property of others or any
injury to persons or death resulting from any such activities undertaken on
behalf of Purchaser, or any breach by Purchaser of its obligations under this
Section 4, which obligations shall survive the Closing and any termination of
this Agreement. Purchaser shall provide Seller with a certificate naming Seller
as a named insured under the Purchaser's liability insurance policy to cover
Purchaser's indemnification of Seller as described in this paragraph.
Purchaser agrees to keep all results and findings of its due diligence
investigations confidential except to the extent that disclosure is required by
applicable law and Purchaser's mortgagee.
If Purchaser shall, for any reason, in its sole discretion, be
dissatisfied with the results of its due diligence, Purchaser shall have the
right to terminate this Agreement by written notice to the Seller, sent no later
than the expiration of the Due Diligence Period, whereupon all deposits plus
interest earned thereon, shall immediately be returned to the Purchaser and this
Agreement shall become null and void.
If the Purchaser has satisfactorily completed its due diligence prior to
the time for the expiration of the Due Diligence Period as set forth in the
first sentence of this Section 4, Purchaser may so notify Seller in writing and
the Due Diligence Period shall end upon such notice; and the time of such notice
shall then be considered to be the end of the Due Diligence Period for purposes
of this Agreement. Such written notice shall also specify the date for Closing
which shall be five (5) business days after the end of the Due Diligence Period,
but in no event later than December 18, 2000.
Purchaser and Seller agree that if Purchaser is satisfied with the results
of its Due Diligence and takes title to the Property, that it shall acquire the
Property in its "AS IS" condition, WITH ALL FAULTS, IF ANY, AND WITHOUT ANY
WARRANTY EXPRESSED OR IMPLIED".
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5. REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Purchaser that the following matters are
true and correct as of the execution of this Agreement and also will be true and
correct as of the Closing.
(a) All information provided to the Purchaser by the Seller or its
agents, including but not limited to the operating costs for the Property
is true and correct to the Seller's actual knowledge.
(b) There are no written agreements with any third parties affecting
the Property that will survive the Closing that have not been disclosed to
Purchaser.
(c) Intentionally Omitted
(d) Seller has received no written notice of any condemnation,
zoning or other land use regulation proceedings, either instituted or
planned to be instituted, that would detrimentally affect the value of the
Property or the use and operation of the Property as currently used.
(e) Seller is a validly existing corporation organized under the
laws of the State of Delaware and is not insolvent; this Agreement, and
all the documents executed by Seller that are to be delivered to Purchaser
at the Closing, are and will be i) duly authorized, executed, and
delivered, ii) legal, valid, and binding obligations of Seller enforceable
against Seller in accordance with their respective terms (except to the
extent that such enforcement may be limited by applicable bankruptcy,
insolvency, public policy, general principles of equity, moratorium and
other principles relating to or limiting the right of contracting parties
generally), iii) sufficient to convey title to the Property as required by
this Agreement, and iv) at the time of the Closing, will not violate any
provision of any agreement to which Seller is a party or to which it is
subject which could adversely affect the Property or Seller's interest
therein.
(f) At the closing, Seller shall cause to be discharged all
mechanics' or materialmen's liens arising from any labor or materials
furnished to the Property prior to the Closing.
(g) Seller has received no written notice of any pending or
threatened legal proceedings or actions of any kind or character,
adversely affecting the Property or Seller's interest therein.
(h) Seller is not a "foreign person" within the meaning
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of Section 1445(f) (3) of the Internal Revenue Code of 1986, as amended
("Code"), and Seller will furnish to Purchaser, prior to the Closing, an
affidavit with respect thereto.
The representations and warranties made in this Agreement by Seller are
material, shall be deemed to have been relied upon by Purchaser, shall be
continuing and shall be deemed remade by Seller as of the Closing with the same
force and effect as if specifically made again at that time. The representations
and warranties made in this Agreement shall not merge into any instrument or
conveyance delivered at the Closing but shall survive the Closing for a period
of nine (9) months after the Closing and Purchaser's liability in the event that
any of said representations and warranties should prove to be false or
inaccurate shall be limited to $275,000.00. The effect of the representations
and warranties made in this Agreement shall not be diminished or deemed to be
waived by any due diligence, audits, inspections, tests or investigations made
by Purchaser or its agents. Except as specifically set forth above, Seller has
not made, and Purchaser has not relied upon, any other representations or
warranties in connection with the purchase of the Property.
Notwithstanding anything contained herein to the contrary, if Purchaser
has actual knowledge prior to the expiration of the Due Diligence Period of
facts that would make any Seller representations untrue, and Purchaser does not
terminate this Agreement prior to the expiration of the Due Diligence Period,
Purchaser shall thereafter be deemed to have waived for all purposes of this
Agreement any action or claim against Seller on account of such breached
representation. Likewise, if Purchaser has actual knowledge prior to the Closing
Date of facts that would make any Seller representations untrue, and Purchaser
proceeds with the Closing, Purchaser shall thereafter be deemed to have waived
for all purposes of this Agreement any action or claim against Seller on account
of such breached representation.
6. REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents and warrants to Seller, that although this
Agreement will be assigned to Xxxxx X. Xxxxxxx, Trustee of the Lafayette
Exchange Trust (the "Trustee"), in connection with a tax deferred exchange under
sec. 1031 of the Internal Revenue Code, this Agreement has been, and all other
documents executed by Purchaser or Trustee which are to be delivered by
Purchaser or Trustee to Seller at or before the Closing will be duly authorized,
executed and delivered by Purchaser or Trustee and are, and will be, legal and
binding obligations of Purchaser or Trustee, enforceable in accordance with
their respective terns (except to the extent that such enforcement may be
limited by applicable bankruptcy, insolvency, public policy, general principles
of equity, moratorium and other principles
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relating to or limiting the rights of contracting parties generally), and do
not, and will not at the time of the Closing, violate any provisions of any
agreement to which Purchaser or Trustee is a party. Seller shall cooperate with
Purchaser in connection with the tax deferred exchange, provided that Purchaser
shall reimburse and indemnify Seller for any additional costs which Seller may
incur as a result of such cooperation with Purchaser.
7. SELLER'S DELIVERIES
Seller will deliver to Purchaser copies of all documents pertaining
to the Property referred to below, if such exist, no later than five (5) days
following the execution hereof by all parties to the extent that Seller has such
in its possession:
(a) Copies of i) the most recent title insurance title insurance
policy, ii) most recent ALTA survey, iii) any plans and specifications,
iv) soil boring tests, geological surveys and drainage plans, v)
information relating to the environmental conditions, vi) latest building
inspection reports, vii) leases and contracts (including maintenance,
security, cleaning, property management, etc.) and viii) operating
statements for the past three (3) years.
(b) To the extent not already included in the above subsection,
copies of any notices, or reports that relate to the physical condition or
operation of the Property or any proposed improvements thereto, including,
without limitation, any such notices, reports or plans relating to
Hazardous Substances in, on or beneath the Property or adjoining sites,
storage tanks, sewer connections or septic systems. For the purposes of
this Agreement, the term "Hazardous Substances" shall include, without
limitation, any flammable items, explosives, oil, radioactive materials,
hazardous or toxic substances, material or waste or related materials,
including, without limitation, any substances defined as or included in
the definition of "extremely hazardous substances", "hazardous
substances", "hazardous material", "hazardous waste", infectious
substances " or "toxic substances" in any current federal, state or local
law, rule, code or regulation or any judicial or administrative
interpretation of such laws, rules, codes or regulations, including,
without limitation, any products and materials that are found to have
adverse effects on the environment or the health and safety of persons.
(c) A copy of the xxxx or bills issued for the most recent year for
which bills have been issued for all real estate taxes (including assessed
value) and a copy of any and all notices pertaining to real estate taxes
or assessments for the last three (3) years. Seller shall promptly deliver
to Purchaser a copy of any such bills or notices received by
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Seller after the date hereof or after the Closing.
(d) Copies of all certificates of occupancy, licenses, permits,
variances related to use, location and/or distance, authorizations and
approvals and copies of any agreements with any federal, state or local
governmental authority.
(e) Copies of current insurance policies and any pending insurance
claims or litigation documents.
(f) Copies of any existing leases and any other agreements which are
in effect with tenants.
8. CONDITIONS PRECEDENT TO CLOSING
The following shall be conditions precedent to Purchaser's obligation to
consummate the purchase and sale transaction contemplated herein and except as
otherwise indicated, each such condition precedent must be satisfied, to
Purchaser's satisfaction, as of the Closing (collectively "Conditions
Precedent"). Purchaser may, at its sole discretion, waive any or all of such
conditions and close title under this Agreement without any increase in,
abatement of or credit against the Purchase Price.
(a) Intentionally omitted.
(b) .Good and clear record and marketable title to the Property,
approved by Purchaser, with a title company selected by Purchaser having
issued a commitment and being ready to issue a standard ALTA Owner's
policy, in the amount of the purchase price, upon recording after the
Closing, and subject only to the following matters:
i. Provisions of existing building and zoning laws;
ii. Such taxes for the then current tax period as are not due and
payable of the date of the Closing;
iii. Any liens for municipal betterments assessed after the
Closing; and
iv. Such other matters as Purchaser may approve in writing in its
reasonable discretion.
v. All matters of record existing as of the date of the title
insurance commitment issued to Purchaser by Chicago Title
Insurance Company.
Notwithstanding the foregoing, Purchaser shall be deemed to have
approved of the status of title existing as of the date of this Agreement
unless Purchaser notifies Seller of its
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objection to any such matter in writing on or before the end of the Due
Diligence Period as defined in Section 4 of this Agreement.
(c) The Property shall be in substantially the same condition as it
was at the time of the end of the Due Diligence Period, only reasonable
use, wear and tear and casualty excepted subject to the provisions set
forth in Section 12 (c) of this Agreement.
(d) Full possession of the Property, free of all tenants and
occupants other than the occupancy of the Seller under the Lease referred
to in Section 8 (a), shall be delivered at the Closing.
8A. COVENANTS OF SELLER
Seller hereby covenants with Purchaser as follows:
(a) Prior to the Closing, Seller shall not enter into any lease,
except for the Lease (sd defined in Section 15.1), without the prior
written permission of the Purchaser.
(b) Until the Closing, Seller shall maintain fire and extended
coverage insurance on the Property as presently issued.
9. SELLER'S CLOSING DOCUMENTS
At the Closing, Seller shall deliver or cause to be delivered to Purchaser
the following, each in form and substance reasonably acceptable to Purchaser and
Seller:
(a) A Quitclaim Deed, executed by Seller, in recordable form,
conveying good and clear record and marketable title to the Property to
the Purchaser or the Permitted assignee of the Purchaser, as directed by
the Purchaser, free and clear of all claims, liens and encumbrances except
the matters referred to in Section 8(b).
(b) Proof of the authority of Seller to execute deed and other
documents, as is customary and as may be required by the Purchaser's title
insurance company.
(c) An affidavit certifying that Seller is not a "foreign person"
within the meaning of Section 1445(f) (3) of the Internal Revenue Code.
(d) The Lease (as defined in Section 15.1) duly executed by the
Seller (with the Seller as Lessee and the
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purchaser as Lessor), together with a notice of lease, in recordable form.
(e) A non-disturbance and attornment agreement, by and between the
Seller as Lessee and the mortgagee providing financing to the Purchaser
(the "Mortgagee") for its purchase of the Property, in a form which shall
be reasonably satisfactory to Seller.
(f) Any other documents, instruments or agreements called for
hereunder that have not previously been delivered including, without
limitation, documents customarily and reasonably required by the Mortgagee
to consummate the loan or required by the the title insurance company in
order to issue an owner's title insurance policy at standard rates
insuring title to the Property, including without limitation, such
affidavits and indemnity agreements as may be customary for deleting
exceptions for survey, mechanics' and materialmen's liens and parties in
possession.
10. PURCHASER'S CLOSING DOCUMENTS
At the Closing, Purchaser shall deliver to Seller the Purchase Price in
accordance with Section 3, by wire transfer, or by bank or certified check, at
the Seller's option, and shall execute and deliver the Lease and notice of lease
in recordable form, together with any documents in recordable form which Seller
may reasonably require to show Purchaser's authority to execute the Lease.
11. PRORATIONS, ADJUSTMENTS AND CLOSING COSTS
The following shall be prorated and adjusted between Seller and Purchaser
as of the day of the Closing unless final bills have been paid by the Seller
prior to the Closing, the net amount of which shall be ajusted in favor of the
party in whose favor such net apportionment arises:
(a) Operating expenses, utility charges and water and sewer use
charges shall be apportioned as of the Closing.
(b) Real estate taxes for the then current tax period shall be
apportioned as of the Closing. If the amount of such taxes is not known at
the Closing, such taxes shall be apportioned on the basis of the taxes
assessed for the preceding year, with a reapportionment as soon as the new
tax rate and valuation can be ascertained; and, if the taxes which are to
be apportioned shall thereafter be reduced by abatement, the amount of
such abatement, less the reasonable cost of obtaining the same, shall be
apportioned between the parties, provided that neither party shall be
obligated to
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institute or prosecute proceedings for an abatement unless otherwise
agreed. If such proceedings are commenced, the party commencing the same
shall give the other party notice thereof, thereafter diligently prosecute
such proceedings and not discontinue the same without first giving the
other party notice of its intention to do so and a reasonable opportunity
to be substituted in such proceedings; and the other party agrees to
cooperate in such proceedings without being obligated to incur any expense
in connection therewith.
(c) If, on the day of the Closing, the Land, or any part thereof,
shall be or shall have been affected by a betterment or other special
assessment, which are or may become payable in installments, then for the
purpose of this Agreement all the unpaid installments thereof, which are
to become due and payable after the day of the Closing, shall be paid by
Purchaser without abatement of the Purchase Price, but the installment
currently billed, shall be subject to adjustment in the same manner as
real estate taxes for the tax period in which the Closing occurs. If any
assessments for public improvements shall arise subsequent to the
execution hereof, and prior to delivery of Seller's deed, Seller will
elect to cause the same to be paid over the longest period allowed by law,
and will be prorated as set forth in this paragraph.
(d) Seller shall pay its own closing costs including, but not
limited to, fees for the Escrow Agent, documentary taxes based on the
purchase price and affixed to the deed, and those recording charges
customarily paid for by a seller; and Purchaser shall pay for its title
examination, the premium for its Owner's Title Insurance Policy and those
recording charges customarily paid for by a buyer. Any other costs that
are customarily prorated in transactions of this nature shall be ratably
prorated. Each party shall pay for its own counsel fees.
For purposes of calculating prorations, Purchaser shall be deemed to have
acquired title to the Property and entitled to the income therefrom, and
responsible for the expenses thereof, for the entire day on which the Closing
occurs. All such prorations shall be made on the basis of the actual number of
days of the month which shall have elapsed as of the day of the Closing and
based upon a three hundred sixty five (365) day year.
The applicable terms and provisions of this Section 11 shall survive the
Closing.
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12. CLOSING
(a) The purchase and sale contemplated herein shall close (the "Closing")
at the offices of Xxxxx, Xxxxxxx & Gold, 00 Xxxxxx Xxxxxx, Xxxxxxxxx, XX 00000
at 10:00 o'clock, a.m. or at the office of the Purchaser's lenders counsel, on
that date which shall be the earlier of 1) five (5) business days after the
satisfactory conclusion of its due diligence by the Purchaser with written
notice from the Purchaser to the Seller as provided in Section 4, or ii)
December 18, 2000, unless the parties otherwise shall mutually agree upon
another time, date or place. Time is of the essence of this Agreement.
(b) If, at the Closing, Seller shall be unable to comply with the
provisions of this Agreement, or to give title or make conveyance, or to deliver
possession of the Property, all as stipulated in this Agreement, or if at the
time of the delivery of the deed the Property does not conform with the
provisions hereof, Seller shall use commercially reasonable efforts to comply
with the provisions of this Agreement to remove any defects in title, to make
conveyance, to deliver possession as provided herein, and to make the Property
conform with the provisions hereof, as the case may be, in which event the
Closing shall be extended for a period of not more than thirty (30) days, unless
otherwise mutually agreed upon by the parties provided that Seller shall not be
required to spend more than $100,000.00 in the aggregate to satisfy any of the
foregoing.
If at the expiration of the extended xxxx Xxxxxx shall not have cured the
previously existing problem so that conveyance can be made in accordance with
the terms of this Agreement, then Purchaser may elect, by giving written notice
thereof to Seller on or before the extended Closing date, (i) to terminate this
Agreement or (ii) to accept the conveyance of the Property on the extended
Closing date in its then condition, and pay the Purchase Price without
deduction; provided, however, that even if Purchaser fails to give such written
notice, Purchaser shall nevertheless be deemed to have elected to terminate this
Agreement. In the event Purchaser elects to terminate this Agreement, either by
giving notice or by failing to give notice, this Agreement shall be null and
void with no further obligation on the part of either party and any money in
escrow, together with interest thereon, shall immediately be returned to the
Purchaser.
(c) Notwithstanding the provisions of Section 12(b), Purchaser may elect
at either the original or extended Closing to accept such title as Seller can
deliver to the Property in its then condition and to pay Seller the Purchase
Price without reduction, in which event, Seller shall convey such title to
Purchaser. If any Portion of the Property shall have been taken by eminent
domain, Seller shall pay over or assign to Purchaser, at the Closing, all
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awards recovered or recoverable on account of such taking, less any amounts
reasonably expended by Seller in obtaining such awards. If any portion of the
Property shall have been damaged by fire or other casualty insured against and
not fully restored to its former condition, Seller shall pay over or assign or
credit to Purchaser, at the Closing, all amounts recovered or recoverable on
account of such insurance, less any amounts reasonably expended by Seller for
any restoration.
13. DEFAULT
In the event Purchaser defaults in its obligations to close the purchase
of the Property, then the deposit and the interest accrued thereon shall be paid
to and retained by Seller as liquidated damages and shall be Seller's sole
remedy at law or in equity. The parties hereto expressly agree and acknowledge
that Seller's actual damages in the event of such a default by Purchaser would
be extremely difficult or impractable to ascertain and that the amount of
liquidated damages provided herein is reasonable in light of anticipated loss
caused by such a default and the difficulties of proof of loss.
14. BROKER'S COMMISSION
(a) Seller represents and warrants that the only broker involved in this
sale is CB Xxxxxxx Xxxxx/Whittier Partners and that Seller shall pay the entire
brokerage commission or other compensation due in connection with this sale, in
accordance with its agreement with said broker. Seller agrees to indemnify and
hold Purchaser harmless from and against any losses, damages, costs and expenses
(including without limitation reasonable attorneys' fees) incurred by Purchaser
by reason of any breach or inaccuracy of the representation and warranty
contained in this Section 14(a) and/or Seller's failure to so pay such brokerage
commission or other compensation.
(b) Purchaser represents and warrants it has had no contact with any
broker in connection with this sale except for CB Xxxxxxx Xxxxx/Whittier
Partners. Purchaser agrees to indemnify and hold Seller harmless from and
against any losses, damages, costs and expenses (including without limitation
reasonable attorneys' fees) incurred by Seller by reason of any breach or
inaccuracy of the representation and warranty contained in this Section 14 (b).
(c) The terms and provisions of this Section 14 shall survive the Closing.
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15. MISCELLANEOUS
15.1 Within ten (10) business days after the execution of this Agreement,
the parties shall aagree upon the terms and provisions of a lease (the "Lease"),
which shall be executed by the parties at or prior to the Closing, the term of
which shall commence as of the Closing.
15.2 Each individual and entity executing this Agreement hereby represents
and warrants that he or it has the capacity set forth on the signature pages
hereof with full power and authority to bind the party on whose behalf he or it
is executing this Agreement to the terms hereof.
15.3 This Agreement is the entire Agreement between the parties hereto
with respect to the subject matter hereof and supersedes all prior agreements
between the parties with respect to the matters contained in this Agreement. Any
waiver, amendment, modification, consent or acquiescence with respect to any
provision of this Agreement or with respect to any failure to perform in
accordance therewith shall be set forth in writing and duly executed by or on
behalf of the party to be bound thereby. No waiver by any party of any breach
hereunder shall be deemed a waiver of any other or subsequent breach.
15.4 This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original, but all of which when taken together shall
constitute one and the same instrument. The signature page of any counterpart
may be detached therefrom without impairing the legal effect of the signature(s)
thereon provided such signature page is attached to any other counterpart
identical thereto except having additional signature pages executed by other
parties to this Agreement attached thereto.
15.5 Time is of the essence in the performance of and compliance with each
of the provisions and conditions of this Agreement. No obligations of either
party shall survive the Closing unless so specifically stated in this Agreement.
15.6 Any communication, notice or demand of any kind whatsoever which
either party may be required or may desire to give to or serve upon the other
shall be in writing and delivered by personal service (including express or
courier service) or by registered or certified mail, postage prepaid, return
receipt requested, or by a national delivery service, addressed as follows:
Seller: RoweCom, Inc.
Attn: Xxxxxxx Xxxx
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
000-000-0000 fax 000-000-0000
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with a
copy to: RoweCom, Inc.
00 Xxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
781- fax 781
With a
Copy to: Xxxxxxx X. Xxxxxx, Esq.
Xxxxxxx Xxxx
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000-0000
Tel: 000-000-0000 Fax: 000-000-0000
Purchaser: Sixty-Five Lafayette Road, LLC
Attn: Xxxxxx Xxxxx
Xxx Xxxxx Xxxxxx
Xxxxxx, XX 00000
Tel: 000-000-0000 Fax: 000-000-0000
With a
Copy to: Xxxxxxx X. Xxxxx, Esq.
Xxxxx, Xxxxxxx & Gold
00 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Tel: 000-000-0000 Fax: 000-000-0000
With a
Copy to: Xxxxx Xxxxxx
CB Xxxxxxx Xxxxx/Whittier Partners
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Tel: 000-000-0000 Fax: 000-000-0000
With a
Copy to: Xxxxx X. Xxxxxxx, Trustee of Lafayette
Exchange Trust
00 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Tel: 000-000-0000 Fax: 000-000-0000
Any party may change its address for notice by written notice given to the
other in the manner provided in this Section 15.5. Any such communication,
notice or demand shall be deemed to have been duly given or served on the date
personally served, if by personal service, or on the date shown on the return
receipt or other evidence of delivery, if mailed or delivered. All notices
pursuant to this Agreement from Purchaser to Seller of from Seller to Purchaser
will be effective if executed by and sent by their
14
respective attorneys.
15.7 Wherever possible, each provision of this Agreement shall be
interpreted in such a manner as to be valid under applicable law, but, if any
provision of this Agreement shall be invalid or prohibited thereunder, such
invalidity or prohibition shall be construed as if such invalid or prohibited
provision had not been inserted herein and shall not affect the remainder of
such provision or the remaining provisions of this Agreement.
15.8 The language in all parts of this Agreement shall be in all cases
construed simply according to its fair meaning and not strictly for or against
any of the parties hereto for any reason, including, without limitation, by
virtue of the fact that it may have been drafted or prepared by counsel for one
of the parties, it being recognized that both Purchaser and Seller have
contributed materially and substantially to the preparation of this Agreement.
Section and Paragraph headings of this Agreement are solely for convenience of
reference and shall not govern the interpretation of any of the provisions of
this Agreement.
15.9 This Agreement shall be governed by and construed in accordance with
the laws of the Commonwealth of Massachusetts.
15.10 This Agreement shall be binding upon and inure to the benefit of
each of the parties hereto and to their respective transferees, successors,
and assigns; provided, however, that neither this Agreement nor any of the
rights and obligations of Purchaser and Seller hereunder shall be transferred
or assigned without the prior written consent of the other party except that
Purchaser intends to assign this Agreement to Xxxxx X. Xxxxxxx, Trustee of
Lafayette Exchange Trust as part of a sec. 1031 exchange without requiring
permission of Seller.
15.11 All Exhibits attached hereto are incorporated herein by reference.
15.12 Notwithstanding anything to the contrary contained herein, this
Agreement shall not be deemed or construed to make the parties hereto partners
or joint venturers, or to render either party liable for any of the debts or
obligations of the other, it being the intention of the parties merely to create
the relationship of Seller and Purchaser with respect to the Property to be
conveyed as contemplated hereby.
15.13 The parties hereby agree that is either party shall record this
Agreement, it shall be deemed to be a default by the recording party which shall
enable the non-recording party, in its sole discretion, to terminate this
Agreement upon written notice to the other party.
15
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed under seal by their duly authorized representatives as of the day and
year first above written.
SELLER:
RoweCom, Inc.
By: /s/ [ILLEGIBLE]
------------------------------------
Name:
Title:
PURCHASER:
Sixty-Five Lafayette Road, LLC
By: /s/ [ILLEGIBLE]
------------------------------------
Name:
Title:
By: /s/ [ILLEGIBLE]
------------------------------------
Name:
Title:
16
EXHIBIT A
TO
PURCHASE AND SALE AGREEMENT
By and Between
RoweCom, Inc., Seller
and
Sixty-Five Lafayette Road, LLC, Purchaser
Description of the Land
Two parcels of land with the buildings and improvements thereon, situated
in the Southwest Industrial Park, Westwood, Norfolk County, Massachusetts,
bounded and described as follows:
PARCEL I
Northwesterly by a way leading to Route 1 and shown on a plan hereinafter
mentioned as "Southwest Park", by two lines measuring
respectively, 173.32 feet and 72.39 feet;
Northeasterly by Lot I referred to on said plan, 235.68 feet;
Southeasterly by land now or formerly of the New York, New Haven and
Hartford Railroad (Midland Division), 198.05 feet;
Southwesterly,
Southerly and
Southeasterly all by Lot 6B shown on said plan, by five lines measuring
respectively, 9.17 feet, 15.79 feet, 8.61 feet, 4.13 feet and
14.32 feet; and
Southwesterly by Parcel II hereinafter described, 201.31 feet.
Containing 54,690 square feet of land and being shown as Lot 6A on a plan
entitled "Plan of Land in Westwood, Mass.", dated April 30, 1964 by Pilling
Engineering Company, Inc., recorded with Norfolk Deeds in Book 4163, Page 725.
PARCEL II
Northwesterly by a way leading to Boston-Providence Pike, by two lines
measuring respectively, 128.27 feet and 105.00 feet;
Westerly by a curved line forming the intersection of said way and said
Pike, 43.18 feet;
Southwesterly by said Pike by two lines measuring respectively 123.33 feet
and
117.49 feet;
Southeasterly by land now or formerly of the New York, New Haven and
Hartford Railroad (Midland Division) 374.25 feet; and
Northeasterly by Lot 6 shown on a plan hereinafter mentioned, 230.06 feet.
Containing 72,999 square feet of land and being shown on a plan entitled "Plan
of Land in Westwood, Mass. for Southwest Park Trust", dated February 19, 1963 by
Pillling Engineering Company, Inc., recorded with said Deeds in Plan Book 215,
Page 681.
EXHIBIT B
TO
PURCHASE AND SALE AGREEMENT
By and Between
RoweCom, Inc., Seller
and
Sixty-Five Lafayette Road, LLC, Purchaser
Escrow Agent's Deposit Money Escrow Instructions and Investment Escrow
Instructions
DEPOSIT MONEY
ESCROW INSTRUCTIONS
DATE: NOV. 20, 2000
TO: Chicago Title Insurance Company
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
PREMISES: 00-00 XXXXXXXXX XXXX, XXXXXXXX, XX
BUYER: SIXTY-FIVE LAFAYETTE ROAD, LLC (TO BE ASSIGNED TO XXXXX X. XXXXXXX,
TRUSTEE OF LAFAYETTE EXCHANGE TRUST - SEC 1031 EXCHANGE)
SELLER: ROWECOM, INC.
You are hereby requested to act as Escrow Agent in the above captioned
real estate purchase transaction. The following instructions, together with the
attached copy of the Purchase and Sale Agreement ("the Purchase Agreement"), are
submitted to you for the purpose of governing the closing and settlement of the
subject transaction.
1. Buyer herewith deposits the sum of $ 200,000.00 ("the Deposit")
representing the xxxxxxx money deposit made upon execution of the
contract. The Deposit is to be held in an interest-bearing, FDIC-insured,
money-market type account.
2. Upon disbursement of the Deposit in accordance with this Agreement; all
rights and obligations of the Escrow Agent shall be deemed to have been
satisfied and the Buyer and Seller shall have no recourse against the
Escrow Agent.
3. Delivery or return of any deposit payment; notice or other
communication concerning the Escrow may be made to any party by hand
delivery (including overnight delivery services) or by registered or
certified mail to the addresses set forth above.
4. You are instructed to disburse the Deposit either (1) as directed
pursuant to written instructions signed by Buyer and Seller, or (2) to
either party in the event you receive a sworn affidavit from such party
that it is entitled to the Deposit pursuant to the terms of the Purchase
Agreement and that it has made written demand to the other party of such
demand for disbursement of the Deposit as evidenced by a return receipt
for delivery made as provided above in Paragraph 3, and you have not
received within ten business days of the other party's receipt of demand
for disbursement a written objection thereto; or (3) pursuant to a Final
Determination (as herein defined).
5. The duties of the Escrow Agent shall be determined solely by the
express provisions of this Agreement and are purely ministerial in nature.
If there is any dispute between the Parties hereto as to whether or not
the Escrow Agent is obligated to disburse or release the funds held under
and pursuant to this Agreement the Escrow Agent shall not be obligated to
make such disbursement or delivery, but in such event shall hold the funds
until receipt
by the Escrow Agent of an authorization in writing signed by all persons
having an interest in said dispute, directing the disposition of the
funds, or in the absence of such authorization, the Escrow Agent shall
hold the funds until a final determination of the rights of the parties in
an appropriate proceeding (a "Final Determination"). If such written
authorization is not given, or proceedings for such determination are not
begun and diligently continued, the Escrow Agent may, but is not required
to, retain counsel and bring an appropriate action or proceeding for leave
to deposit the funds pending such determination. The Escrow Agent shall be
reimbursed for all costs and expenses incurred by it in connection with
such action or proceeding, including reasonable attorneys' fees and
disbursements, by the parties hereto. Upon delivery of the funds as
provided herein, the Escrow Agent shall have no further liability
hereunder. If threatened with litigation, the Escrow Agent is hereby
authorized by the undersigned to interplead all interested parties in any
court of competent jurisdiction and to deposit the funds with the clerk of
the court, and thereupon the Escrow Agent shall be fully relieved and
discharged of any further responsibility under this Agreement.
6. The Escrow Agent shall not be liable for any mistake of fact or error
of judgment or any acts or omissions of any kind unless caused by its
willful misconduct or gross negligence. Parties hereto each release the
Escrow Agent from liability for any act done or omitted to be done by the
Escrow Agent in good faith (and without gross negligence or willful
misconduct) in the performance of its obligations and duties hereunder.
The Escrow Agent shall be entitled to rely on any instrument or signature
believed by it to be genuine and may assume that any person purporting to
give any writing, notice, or instruction in connection with this Agreement
is duly authorized to do so by the party on whose behalf such writing,
notice, or instruction is given.
7. The undersigned hereby jointly and severally indemnify the Escrow Agent
for and hold it harmless against any loss, liability, or expense incurred
without negligence or bad faith on the part of the Escrow Agent arising
out of or in connection with the acceptance of or the performance of its
duties under this Agreement; as well as the costs and expenses, including
reasonable attorneys' fees and disbursements, of defending against any
claim or liability arising under this Agreement.
8. This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original but all of which together shall
constitute one and the same instrument.
9. This Agreement may not be changed or modified except as agreed in a
writing signed by each of the parties hereto. This Agreement shall be
binding upon and inure to the benefit of the parties and their respective
heirs, successors and assigns.
10. This Agreement shall be construed in accordance with the laws of the
Commonwealth of Massachusetts.
11. The parties hereby acknowledge and agree that Federal Deposit
Insurance for the Escrow Funds, if any, is limited to a cumulative maximum
amount of $100,000.00 for each individual depositor for all of the
depositor's accounts at the same or related institution. The
parties further hereby acknowledge and agree that certain banking
instruments such as, but no limited to, repurchase agreements and letters
of credit are not covered at all by Federal Deposit Insurance. The parties
acknowledge and agree that the Escrow Agent shall have no obligation or
liability with respect to insuring the Escrow Funds or with respect to the
solvency of the depository institution, or otherwise with respect to the
appropriateness of the depository institution for purposes of the
deposit(s) contemplated hereby. Further, the parties understand the Escrow
Agent assumes no responsibility for, nor will we hold same liable for, any
loss occurring which arises from the fact that (a) the amount of the
account or accounts contemplated hereby may cause the aggregate amount of
any individual depositor's account or accounts to exceed $100,000.00, (b)
that this excess amount is not insured by the Federal Deposit Insurance
Corporation, or (c) that Federal Deposit Insurance is not available on
certain types of bank instruments.
12. This Escrow Agreement supplements and does not supersede the previous
agreements between Buyer and Seller. As between Buyer and Seller the terms
of such agreements shall prevail.
In witness whereof, the parties hereto have affixed their hands and seals as of
the date first set forth above.
Agreed and Consented To:
SELLER: ROWECOM, INC.
By: ______________________________________________________________________
Name: ____________________________________________________________________
Title: ___________________________________________________________________
BUYER: SIXTY-FIVE LAFAYETTE ROAD, LLC
By: By:
Name: XXXXX XXXXX XXXXX XXXXX
--------------------------------------------------------------------
Title: ___________________________________________________________________
MANAGER MANAGER
CHICAGO TITLE INSURANCE COMPANY
By: ______________________________________________________________________
Name: ____________________________________________________________________
Title: ___________________________________________________________________
INVESTMENT OF ESCROW INSTRUCTIONS
Date: NOV. 20, 2000
Escrow File No.:
To: Chicago Title Insurance Company
Subject to all of the terms of this instruction and the terms of the
above-captioned escrow agreement, you are authorized and directed to open an
account in the name of
ROWECOM, INC. .
---------------------------------------------------
CUSTOMER
by Chicago Title Insurance Company as Escrow Agent, in the amount of
$200,000.00.
This account shall be opened at:
1. ________ Bank of Boston
2. ________ FLEET BANK
OR
3. ________ Other LARGE BOSTON AREA BANK
(if a depository institution preference has not been stated by the customer,
Chicago Title Insurance Company will designate the depository as 1 or 2 above).
account shall be of the following type:
(a) ________ Savings Passbook Account
(b) ________ Certificate of Deposit
(c) ________ U.S. Treasury Bills
(d) ________ Repurchase Agreement
(e) ________ Commercial Paper
X
(f) ________ Money Market Account
(g) ________ Other
The investment shall be for a term beginning on NOV. 20, 2000 and ending on or
before 12/18/00. This investment, with any accrued interest, will not be renewed
upon maturity unless other written instructions are received and authorized by
the parties to this agreement.
Interest or other income from this investment shall accrue for the account of
the parties to be divided pursuant to the agreement of the parties at the close
of escrow.
Investment of Escrow Instructions
Page Two
All interest will accrue to and be reported to the Internal Revenue Service for
the account of:
Name: SIXTY FIVE LAFAYETTE ROAD, LLC - ATTN XXXXXX XXXXX
--------------------------------------------------------------------------
Address: XXX XXXXX XXX., XXXXXX, XX 00000
-----------------------------------------------------------------------
Telephone: 000-000-0000 x 0000
---------------------------------------------------------------------
Tax identification or social security no.: 00-0000000
A completed For W-9 for said taxpayer is/is no attached hereto.
Upon the depository's request, we will executed the appropriate Internal Revenue
Service Documentation for the giving or taxpayer identification information
relating to this account. We authorize Chicago Title Insurance company to
execute that documentation upon our inability or refusal to do so.
Chicago Title Insurance Company shall not be responsible for any penalties, or
loss of principal interest or any delays in the withdrawal of the funds which
may be imposed by the Depository as a result of the making or redeeming of the
investment pursuant to our instructions, nor shall Chicago Title Insurance
Company be liable for any loss or impairment of funds while those funds are in
the course of collection or while those funds are on deposit in a financial
institution if such loss or impairment results from the failure, insolvency or
suspension of the financial institution.
The funds deposited herewith are not to be invested unless all parties to this
escrow have agreed to this instruction in writing.
SIXTY FIVE LAFAYETTE ROAD, LLC
Beneficiary: By
--------------------------------------------
By
------------------------------------
ROWECOM, INC.
---------------------------------------------
By
---------------------------------------------
Accepted:
CHICAGO TITLE INSURANCE COMPANY
By: ___________________________
