PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this "Agreement") is made by and
between Properties II, Inc., a Delaware corporation ("Seller"), and The Grove
Corporation, Delaware corporation ("Purchaser").
In consideration of the mutual covenants and representations herein
contained, and other good and valuable consideration the receipt and sufficiency
of which are hereby acknowledged, Seller and Purchaser agree as follows:
1.
PURCHASE AND SALE
1.1 Purchase and Sale. Subject to the terms and conditions of this
Agreement, Seller hereby agrees to sell and convey to Purchaser, and Purchaser
hereby agrees to purchase from Seller, all of the Seller's right, title and
interest in and to the following described property (herein collectively called
the "Property"):
(a) Land. That certain tract of land (the "Land") located in the City of
Acton, Middlesex County, Massachusetts, being more particularly described on
Exhibit A attached hereto and made a part hereof.
(b) Easements. All easements, if any, benefiting the Land or the
Improvements (as hereinafter defined).
(c) Rights and Appurtenances. All rights and appurtenances pertaining to
the Land, including any right, title and interest of Seller in and to adjacent
streets, alleys or rights-of-way.
(d) Improvements. All improvements and related amenities known as "Village
Arms Apartments" (the "Improvements") in and on the Land, and having an address
of 000 Xxxxx Xxxx, Xxxxx, Xxxxxxxxxxxxx.
(e) Leases. All leases (the "Leases") of space in the Property, concession
leases, and all tenant security deposits held by Seller on the Closing Date (as
hereinafter defined).
(f) Tangible Personal Property. All appliances, fixtures, equipment,
machinery, furniture, carpet, drapes and other personal property, if any, owned
by Seller and located on or about the Land and the Improvements (the "Tangible
Personal Property").
(g) Contracts. To the extent assignable without the consent of third
parties, the Contracts (as hereinafter defined).
(h) Intangible Property. To the extent assignable without the consent of
third parties, all intangible property (the "Intangible Property"), if any,
owned by Seller and pertaining to the Land, the Improvements, or the Tangible
Personal Property including, without limitation, transferable utility contracts,
transferable telephone exchange numbers, plans and specifications, engineering
plans and studies, floor plans and landscape plans.
1.2 Independent Consideration. Upon execution of this Agreement,
Purchaser has delivered to Seller, and Seller acknowledges receipt of, FIFTY AND
NO/100 DOLLARS ($50.00) (the "Independent Consideration"), as consideration for
Purchaser's right to purchase the Property and for Seller's execution, delivery
and performance of this Agreement. The Independent Consideration is in addition
to and independent of any other consideration or payment provided for in this
Agreement, is non-refundable and shall be retained by Seller notwithstanding any
other provision of this Agreement.
2.
PURCHASE PRICE
2.1 Purchase Price. The purchase price (the "Purchase Price") for
the Property shall be FIVE MILLION FIVE HUNDRED THOUSAND AND NO/100 DOLLARS
($5,500,000.00) and shall be paid in cash by Purchaser to Seller at the Closing
(as defined herein) by wire transfer in accordance with wire transfer
instructions to be provided by Seller.
3.
XXXXXXX MONEY
3.1 Xxxxxxx Money. Purchaser shall deliver to the Title Company (as
defined in Section 6.1) on or before December 1, 1997, by wire transfer in
accordance with wire transfer instructions provided by the Title Company, the
amount of ONE HUNDRED THOUSAND AND NO/100 DOLLARS ($100,000.00) (which amount,
together with all interest accrued thereon, if any, is herein called the
"Xxxxxxx Money") to be invested by the Title Company in an interest-bearing
account as Purchaser and Seller shall direct. Seller shall have the option of
terminating this Agreement if the full amount of Xxxxxxx Money is not delivered
to the Title Company as prescribed in this Section 3.1. Purchaser agrees to
promptly deliver or cause the Title Company to deliver written acknowledgment by
the Title Company that the executed copy of this Agreement and the Xxxxxxx Money
have been received by and are being held by the Title Company pursuant to the
terms of this Agreement. If the sale of the Property is consummated under this
Agreement, the Xxxxxxx Money shall be paid to Seller and applied to the payment
of the Purchase Price at Closing (as hereinafter defined). If Purchaser
terminates this Agreement in accordance with any right to terminate granted to
Purchaser by the terms of this Agreement, the Xxxxxxx Money shall be immediately
returned to Purchaser, and no party hereto shall have any further obligations
under this Agreement except for such obligations which by their terms expressly
survive the termination of this Agreement (the "Surviving Obligations").
Purchaser agrees to deliver to Seller copies of all Reports (as defined in
Section 4.2 hereof) at the time the notice to terminate this Agreement is given.
The obligations to deliver the Reports shall survive the termination of this
Agreement. In no event shall any Xxxxxxx Money be returned to Purchaser
hereunder until all Reports have been delivered to Seller.
3.2 Additional Deposit. On or before the expiration of the Approval
Period (as hereinafter defined), Purchaser shall make an additional deposit of
ONE HUNDRED THOUSAND AND NO/100 DOLLARS ($100,000.00) (the "Additional Deposit")
with the Title Company, to be held in the account containing the Xxxxxxx Money,
which amount shall be retained or disbursed by the Title Company in the same
manner as the Xxxxxxx Money in accordance with the terms contained herein.
4.
CONDITIONS TO CLOSING
4.1 Delivery of Documents. Purchaser acknowledges that Seller has
previously delivered to Purchaser the following items, prior to the Effective
Date (as defined in Section 10.13):
(a) Title Commitment. Commitment for Owner's Policy of Title Insurance (the
"Title Commitment") with respect to the Property, issued by the Title Company,
and legible copies of any restrictive covenants, easements, and other items
listed as title exceptions therein.
(b) Contracts. Copies of all contracts pertaining to the Property (the
"Contracts"), including, but not limited to, management contracts, housing
assistance payment contracts, if any, service contracts, equipment leases and
maintenance contracts, to the extent in the possession of GE Capital Realty
Group, Inc. ("GECRG"). Purchaser acknowledges that Seller does not make any
representations or warranties that any Contracts produced are all contracts
concerning the Property.
(c) Rent Roll. A certified rent roll describing all Leases of space in the
Improvements as of the last month GECRG has received such information from the
property manager of the Property.
(d) ACM Notice. Information in Seller's possession, if any, regarding the
presence and location of asbestos-containing material ("ACM") and presumed ACM
on the Property to the extent prescribed by applicable regulations of the
Occupation Safety and Health Administration.
(e) Survey. A current (within the last 6 months) as-built survey of the
Property (the "Survey"), showing the location of all Improvements.
(f) Title V Inspection. Information relating to the summary of Seller's
Title V inspection in accordance with Massachusetts laws: 310 CMR ss. 15.301.
Seller's failure to provide Purchaser with the foregoing items prior to the
expiration of the Approval Period shall not result in the extension of the
Approval Period, and Purchaser's sole remedy therefor shall be Purchaser's right
to terminate this Agreement by delivering written notice thereof to Seller on or
before the expiration of said Approval Period hereof and receive a return of the
Xxxxxxx Money, in which event neither party shall have any obligation hereunder
except for the Surviving Obligations.
4.1.1 Purchaser's Satisfaction. Commencing on the Effective Date and ending
December 24th, 1997 (the "Approval Period"), the following matters shall be
conditions precedent to Purchaser's obligations under this Contract:
(a) Purchaser's being satisfied in Purchaser's sole discretion that the
Property is suitable for Purchaser's intended uses; and
(b) Purchaser's being satisfied, in Purchaser's sole discretion, with the
items listed above in Section 4.1(a) through Section 4.1(f) above, including the
information reflected therein.
If Purchaser is not satisfied in its sole discretion as to the suitability of
the Property for Purchaser's intended uses or any of the items listed above in
Section 4.1(a) through Section 4.1(f) above, Purchaser may give notice thereof
to Seller on or before the expiration of the Approval Period, whereupon this
Agreement shall terminate, and upon such termination, Purchaser shall be
entitled to the return of the Xxxxxxx Money (subject to Purchaser's delivery of
the Reports to Seller as required by Section 3.1 of this Agreement), and neither
party shall have any further obligation hereunder except for the Surviving
Obligations. If Purchaser fails to give notice to Seller on or before the
expiration of the Approval Period that Purchaser is not satisfied with the
suitability of the Property or any of the items listed in Section 4.1(a) through
Section 4.1(f) above, Purchaser shall be deemed to be satisfied with such
matters and the conditions precedent in this Section 4.1.1 shall be deemed to be
satisfied.
4.1.2 Title Commitment and Survey.
(a) In the event (i) the Survey shows any easement,
right-of-way, encroachment, conflict, protrusion or other matter
affecting the Property that is unacceptable to Purchaser, or (ii)
any exceptions appear in the Title Commitment that are unacceptable
to Purchaser, Purchaser shall be provided the opportunity until
December 24, 1997, to notify Seller in writing of such facts and
the reasons therefor ("Purchaser's Objections"). The parties agree
that the definition of "Purchaser's Objections" shall automatically
include any nongovernmental mortgages or liens affecting the
Property which arise from and after the Effective Date. After
December 24, 1997, except for Purchaser's Objections if same are
timely raised, Purchaser shall be deemed to have accepted the form
and substance of the Survey, all matters shown thereon, all
exceptions shown on the Title Commitment. Notwithstanding anything
to the contrary contained herein, Seller shall have no obligations
to take any steps or bring any action or proceeding or otherwise to
incur any effort or expense whatsoever to eliminate or modify any
of the Purchaser's Objections; provided, however, Seller shall
undertake reasonable efforts to eliminate any title matters arising
after the date of the Title Commitment (except for the Declaration
of Covenants filed in connection with the acquisition by Seller of
the Property.) In the event Seller is unable or unwilling to
eliminate or modify all of Purchaser's Objections to the reasonable
satisfaction of Purchaser, Purchaser may (as its sole and exclusive
remedy) terminate this Agreement by delivering notice thereof in
writing to Seller by the earlier to occur of (i) the Closing Date
or (ii) three (3) days after Seller's written notice to Purchaser
of Seller's intent to not cure one or more of such Purchaser's
Objections, in which event neither party shall have any obligations
hereunder other than the Surviving Obligations. Notwithstanding
anything contained in this Section 4.1.2 to the contrary, in the
event Purchaser does not obtain a survey prior to the expiration of
the Approval Period, Purchaser's rights shall be to terminate this
Agreement as set forth in Section 4.1, and such rights shall not be
modified or extended by the terms of this Section 4.1.2.
(b) The term "Permitted Encumbrances" as used herein
includes: (i) any easement, right of way, encroachment, conflict,
discrepancy, overlapping of improvements, protrusion, lien,
encumbrance, restriction, condition, covenant, exception or other
matter with respect to the Property that is reflected or addressed
on the Survey or the Title Commitment to which Purchaser fails to
timely object pursuant to Section 4.1.2(a) of this Agreement; (ii)
any Purchaser's Objection that remains uncured, for whatever
reason, at the earlier to occur of (A) Closing hereunder or (B)
three (3) business days after Seller notifies Purchaser that Seller
is unwilling or unable to cure or modify Purchaser's Objections to
the reasonable satisfaction of Purchaser; and (iii) the rights and
interests of parties claiming under the Leases.
4.1.3 Limitations of Seller's Obligations. Notwithstanding anything
contained herein to the contrary, Seller shall have no obligation to take any
steps, bring any action or proceeding or incur any effort or expense whatsoever
to eliminate, modify or cure any objection Purchaser may have pursuant to
Section 4.1.1, Section 4.1.2 or Section 4.2.
4.2 Inspection. Purchaser may inspect, test, and survey: (a) the
Property, (b) all financial records pertaining to the operation of the Property,
and (c) photocopies of all Leases and Contracts in the possession of GECRG and
at the Property, at any reasonable time during business hours at any time during
the Approval Period. Notwithstanding the foregoing, Purchaser must obtain
Seller's prior written approval of the scope and method of any environmental
testing or investigation (other than a Phase I environmental inspection) and any
inspection which would materially alter the physical condition of the Property,
prior to Purchaser's commencement of such inspections or testing. In any event,
Seller and its representatives, agents, and/or contractors shall have the right
to be present during any such testing, investigation, or inspection. If such
inspection reveals any fact or condition unacceptable to Purchaser, Purchaser
shall notify Seller in writing prior to the expiration of the Approval Period of
such unacceptable fact or condition and Seller shall have the right (without any
obligation to do so) to correct same by the Closing Date (as hereinafter
defined). If Seller does not correct such unacceptable fact or condition by the
Closing Date, Purchaser may terminate this Agreement and neither party shall
have any further right or obligation hereunder other than the Surviving
Obligations. If Purchaser does not give such notification to Seller in writing
prior to the expiration of the Approval Period, the said inspection of the
Property shall be deemed satisfactory to Purchaser and Purchaser shall be deemed
to have agreed to assume all obligations from and after the date of Closing with
respect to the Leases and the Contracts provided to Purchaser. All information
provided by Seller to Purchaser or obtained by Purchaser relating to the
Property in the course of Purchaser's review, including, without limitation, any
environmental assessment or audit (collectively, the "Reports") shall be treated
as confidential information by Purchaser and, except to the extent required by
law, Purchaser shall instruct all of its employees, agents, representatives and
contractors as to the confidentiality of all such information. Purchaser shall
restore the Property to its condition existing immediately prior to Purchaser's
inspection thereof, and Purchaser shall be liable for all damage or injury to
any person or property resulting from, relating to or arising out of any such
inspection, whether occasioned by the acts of Purchaser or any of its employees,
agents, representatives or contractors, and Purchaser shall indemnify and hold
harmless Seller and its agents, employees, officers, directors, affiliates and
asset managers from any liability resulting therefrom. This indemnification by
Purchaser shall survive the Closing or the termination of this Agreement, as
applicable.
4.3 Purchaser's Representations and Warranties. Purchaser
represents and warrants to Seller that (a) Purchaser is a partnership or
corporation, duly organized and in good standing under the laws of the Delaware,
(and that the acquiring entity of the Property will be qualified to do business
in the Commonwealth of Massachusetts if required by law); and has the power to
enter into this Agreement and to execute and deliver this Agreement and to
perform all duties and obligations imposed upon it hereunder, and Purchaser has
obtained all necessary partnership and corporate authorizations required in
connection with the execution, delivery and performance contemplated by this
Agreement and has obtained the consent of all entities and parties necessary to
bind Purchaser to this Agreement, and (b) neither the execution nor the delivery
of this Agreement, nor the consummation of the purchase and sale contemplated
hereby, nor the fulfillment of or compliance with the terms and conditions of
this Agreement conflict with or will result in the breach of any of the terms,
conditions, or provisions of any agreement or instrument to which Purchaser, or
any partner or related entity or affiliate of Purchaser, is a party or by which
Purchaser, any partner or related entity or affiliate of Purchaser, or any of
Purchaser's assets is bound, and (c) that, with respect to each source of funds
to be used by it to purchase the Property (respectively, the "Source"), at least
one of the following statements shall be accurate as of the Closing Date: (i)the
Source does not include the assets of (A) an "employee benefit plan" as defined
in Section 3(3) of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), which is subject to Title I of ERISA, or (B) a "plan" as
defined in Section 4975(a) of the Internal Revenue Code of 1986, as amended
("Code"), or (ii)the Source includes the assets of (A) an "employee benefit
plan" as defined in Section 3(3) of ERISA or (B) a "plan" as defined in Section
4975 of the Code (each of which has been identified to the Seller in writing
pursuant to this paragraph 4.3 at least ten (10) business days prior to the
Closing Date), but the use of such Source to purchase the Property will not
result in a nonexempt prohibited transaction under Section 406 of ERISA or
Section 4975 of the Code. The Purchaser's representations and warranties set
forth in this Section 4.3 shall survive the Closing or termination of this
Agreement. Purchaser's representations and warranties contained herein must be
true and correct through the Closing Date, and Purchaser's failure to notify
Seller prior to the Closing Date of any inaccuracies shall be a default by
Purchaser under this Agreement.
4.4 Seller's Representations and Warranties. Seller represents and
warrants to Purchaser that (a) Seller has the full partnership/corporate right,
power, and authority, without the joinder of any other person or entity, to
enter into, execute and deliver this Agreement, and to perform all duties and
obligations imposed on Seller under this Agreement, and (b) neither the
execution nor the delivery of this Agreement, nor the consummation of the
purchase and sale contemplated hereby, nor the fulfillment of or compliance with
the terms and conditions of this Agreement conflict with or will result in the
breach of any of the terms, conditions, or provisions of any agreement or
instrument to which Seller is a party or by which Seller or any of Seller's
assets is bound.
4.5 Defective Condition Extension; Termination. The obligations of Seller
hereunder are subject to and contingent upon the following:
In the event that subsequent to the execution of this
Agreement Seller obtains knowledge of, or Purchaser's inspection of
the Property reveals, either (i) the presence of any Hazardous
Materials (as defined in Section 5.2 hereof) or the violation or
potential violation of any Environmental Requirements (as defined
in Section 5.3 hereof) or (ii) any structural or other defect in
the Improvements, whether or not in violation of any applicable
law, ordinance, code, regulation or decree of any governmental
authority having jurisdiction over the Property, other than
asbestos contained in the ceiling tiles and for any obligations
under 310 CMR ss. 15.301 (collectively, a "Defective Condition"),
which Seller, in its reasonable judgment, determines could
constitute a potential liability to Seller after the Closing or
should be remedied prior to the sale of the Property, Seller shall
have the right upon written notice to Purchaser on or before the
scheduled Closing Date either (i) to extend the Closing Date for
the period of time necessary to complete such remediation at
Seller's sole cost and expense, or (ii) to terminate this Agreement
upon written notice to Purchaser, in which event the Xxxxxxx Money
shall be refunded to Purchaser and neither party shall have any
further right or obligation hereunder other than the Surviving
Obligations. The terms of this Section 4.6 are solely for the
benefit of Seller and Purchaser shall have no additional right or
remedy hereunder as a result of the exercise by Seller of its
rights under this Section.
4.6 Lead Paint. The parties acknowledge that, under Massachusetts law,
whenever a child or children under six years of age reside in any residential
property in which any paint, plaster or other accessible material contains
dangerous levels of lead, the owner of said premises must remove or cover such
paint, plaster or other material so as to make it inaccessible to children under
six years of age. Purchaser certifies to the following:
1. Purchaser has been informed that the Property may contain such
lead-based materials.
2. Purchaser has been provided not less than ten (10) days to inspect the
Property for lead-based materials.
3. Upon the transfer of title as provided herein, Purchaser agrees to
assume all responsibility for complying with any and all applicable laws
concerning lead-based material in the Property and to indemnify and hold
harmless Seller with respect to any liability from the same arising from and
after the Closing Date.
4. Attached as Exhibit G is Purchaser's Transfer Notification
Certification.
This section shall survive the delivery of the Deed.
5.
NO REPRESENTATIONS OR WARRANTIES BY SELLER;
ACCEPTANCE OF PROPERTY
5.1 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT,
PURCHASER ACKNOWLEDGES AND AGREES THAT SELLER HAS NOT MADE, DOES NOT MAKE AND
SPECIFICALLY NEGATES AND DISCLAIMS ANY REPRESENTATIONS, WARRANTIES AS DEFINED
BELOW), PROMISES, COVENANTS, AGREEMENTS OR GUARANTIES OF ANY KIND OR CHARACTER
WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT OR
FUTURE, OF, AS TO, CONCERNING OR WITH RESPECT TO (A) THE VALUE, NATURE, QUALITY
OR CONDITION OF THE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE WATER, SOIL AND
GEOLOGY, (B) THE INCOME TO BE DERIVED FROM THE PROPERTY, (C) THE SUITABILITY OF
THE PROPERTY FOR ANY AND ALL ACTIVITIES AND USES WHICH PURCHASER OR ANY TENANT
MAY CONDUCT THEREON, (D) THE COMPLIANCE OF OR BY THE PROPERTY OR ITS OPERATION
WITH ANY LAWS, RULES, ORDINANCES OR REGULATIONS OF ANY APPLICABLE GOVERNMENTAL
AUTHORITY OR BODY, (E) THE HABITABILITY, MERCHANTABILITY, MARKETABILITY,
PROFITABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE PROPERTY, (F) THE
MANNER OR QUALITY OF THE CONSTRUCTION OR MATERIALS, IF ANY, INCORPORATED INTO
THE PROPERTY, (G) THE MANNER, QUALITY, STATE OF REPAIR OR LACK OF REPAIR OF THE
PROPERTY, OR (H) COMPLIANCE WITH ANY ENVIRONMENTAL PROTECTION, POLLUTION OR LAND
USE LAWS, RULES, REGULATIONS, ORDERS OR REQUIREMENTS, INCLUDING THE EXISTENCE IN
OR ON THE PROPERTY OF HAZARDOUS MATERIALS (AS DEFINED BELOW) OR (I) ANY OTHER
MATTER WITH RESPECT TO THE PROPERTY. ADDITIONALLY, NO PERSON ACTING ON BEHALF OF
SELLER IS AUTHORIZED TO MAKE, AND BY EXECUTION HEREOF OF PURCHASER ACKNOWLEDGES
THAT NO PERSON HAS MADE, ANY REPRESENTATION, AGREEMENT, STATEMENT, WARRANTY,
GUARANTY OR PROMISE REGARDING THE PROPERTY OR THE TRANSACTION CONTEMPLATED
HEREIN; AND NO SUCH REPRESENTATION, WARRANTY, AGREEMENT, GUARANTY, STATEMENT OR
PROMISE IF ANY, MADE BY ANY PERSON ACTING ON BEHALF OF SELLER SHALL BE VALID OR
BINDING UPON SELLER UNLESS EXPRESSLY SET FORTH HEREIN. PURCHASER FURTHER
ACKNOWLEDGES AND AGREES THAT HAVING BEEN GIVEN THE OPPORTUNITY TO INSPECT THE
PROPERTY, PURCHASER IS RELYING SOLELY ON ITS OWN INVESTIGATION OF THE PROPERTY
AND NOT ON ANY INFORMATION PROVIDED OR TO BE PROVIDED BY SELLER AND AGREES TO
ACCEPT THE PROPERTY AT THE CLOSING AND WAIVE ALL OBJECTIONS OR CLAIMS AGAINST
SELLER (INCLUDING, BUT NOT LIMITED TO, ANY RIGHT OR CLAIM OF CONTRIBUTION)
ARISING FROM OR RELATED TO THE PROPERTY OR TO ANY HAZARDOUS MATERIALS ON THE
PROPERTY. PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT ANY INFORMATION
PROVIDED OR TO BE PROVIDED WITH RESPECT TO THE PROPERTY WAS OBTAINED FROM A
VARIETY OF SOURCES AND THAT SELLER HAS NOT MADE ANY INDEPENDENT INVESTIGATION OR
VERIFICATION OF SUCH INFORMATION AND MAKES NO REPRESENTATIONS AS TO THE
ACCURACY, TRUTHFULNESS OR COMPLETENESS OF SUCH INFORMATION. EXCEPT AS SET FORTH
HEREIN, SELLER IS NOT LIABLE OR BOUND IN ANY MANNER BY ANY VERBAL OR WRITTEN
STATEMENT, REPRESENTATION OR INFORMATION PERTAINING TO THE PROPERTY, OR THE
OPERATION THEREOF, FURNISHED BY ANY REAL ESTATE BROKER, CONTRACTOR, AGENT,
EMPLOYEE, SERVANT OR OTHER PERSON. EXCEPT AS SET FORTH HEREIN, PURCHASER FURTHER
ACKNOWLEDGES AND AGREES THAT TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SALE OF
THE PROPERTY AS PROVIDED FOR HEREIN IS MADE ON AN "AS IS" CONDITION AND BASIS
WITH ALL FAULTS. IT IS UNDERSTOOD AND AGREED THAT THE PURCHASE PRICE HAS BEEN
ADJUSTED BY PRIOR NEGOTIATION TO REFLECT THAT ALL OF THE PROPERTY IS SOLD BY
SELLER AND PURCHASED BY PURCHASER SUBJECT TO THE FOREGOING. EXCEPT AS PROVIDED
IN SECTION 10.2 HEREOF, PURCHASER HEREBY AGREES TO INDEMNIFY, PROTECT, DEFEND,
SAVE AND HOLD HARMLESS SELLER FROM AND AGAINST ANY AND ALL DEBTS, DUTIES,
OBLIGATIONS, LIABILITIES, SUITS, CLAIMS, DEMANDS, CAUSES OF ACTION, DAMAGES,
LOSSES, FEES AND EXPENSES (INCLUDING, WITHOUT LIMITATION, ATTORNEYS' FEES AND
EXPENSES AND COURT COSTS) IN ANY WAY RELATING TO, OR IN CONNECTION WITH OR
ARISING OUT OF PURCHASER'S ACQUISITION, OWNERSHIP, LEASING, USE, OPERATION,
MAINTENANCE AND MANAGEMENT OF THE PROPERTY. THE PROVISIONS OF THIS SECTION 5
SHALL SURVIVE THE CLOSING OR ANY TERMINATION HEREOF.
5.2 Hazardous Materials. "Hazardous Materials" shall mean any
substance which is or contains (i) any "hazardous substance" as now or hereafter
defined in ss.101(14) of the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980, as amend (42 U.S.C. ss.9601 et seq.) ("CERCLA") or
any regulations promulgated under CERCLA; (ii) any "hazardous waste" as now or
hereafter defined in the Resource Conservation and Recovery Act (42 U.S.C.
ss.6901 et seq.) ("RCRA") or regulations promulgated under RCRA; (iii) any
substance regulated by the Toxic Substances Control Act (15 U.S.C. ss.2601 et
seq.); (iv) gasoline, diesel fuel, or other petroleum hydrocarbons; (v) asbestos
and asbestos containing materials, in any form, whether friable or non-friable;
(vi) polychlorinated biphenyls; (vii) radon gas; (viii) any additional
substances or materials which are now or hereafter classified or considered to
be hazardous or toxic under Environmental Requirements (as hereinafter defined)
or the common law, or any other applicable laws relating to the Property.
Hazardous Materials shall include, without limitation, any substance, the
presence of which on the Property, (A) requires reporting, investigation or
remediation under Environmental Requirements; (B) causes or threatens to cause a
nuisance on the Property or adjacent property or poses or threatens to pose a
hazard to the health or safety of persons on the Property or adjacent property;
or (C) which, if it emanated or migrated from the Property, could constitute a
trespass; and (ix) as defined in Massachusetts General Laws, Chapter 21C, and
Massachusetts General Laws, Chapter 21E, as amended.
5.3 Environmental Requirements. "Environmental Requirements" shall
mean all laws, ordinances, statutes, codes, rules, regulations, agreements,
judgments, orders, and decrees, now or hereafter enacted, promulgated, or
amended, of the United States, the states, the counties, the cities, or any
other political subdivisions in which the Property is located, and any other
political subdivision, agency or instrumentality exercising jurisdiction over
the owner of the Property, the Property, or the use of the Property, relating to
pollution, the protection or regulation of human health, natural resources, or
the environment, or the emission, discharge, release or threatened release of
pollutants, contaminants, chemicals, or industrial, toxic or hazardous
substances or waste or Hazardous Materials into the environment (including,
without limitation, ambient air, surface water, ground water or land or soil).
6.
CLOSING
6.1 Closing. The Closing (the "Closing") shall be held at the
offices of Chicago Title Insurance Company (the "Title Company") at 00 Xxxxxxxx
Xxxxxxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000, Attn: Xxx Xxxxxx, on or before December
30, 1997 (the "Closing Date"), unless the parties mutually agree in writing upon
another place, time or date.
6.2 Possession. Possession of the Property shall be delivered to Purchaser
at the Closing, subject to the Permitted Encumbrances.
6.3 Proration. All rents, other amounts payable by the tenants
under the Leases, income, utilities and all other operating expenses with
respect to the Property for the month in which the Closing occurs, and real
estate and personal property taxes and other assessments with respect to the
Property for the year in which the Closing occurs, shall be prorated to the date
Seller receives the Purchase Price in immediately available funds with Seller
receiving the benefits and burdens of ownership on the Closing Date.
(a) If the Closing shall occur before rents and all other
amounts payable by the tenants under the Leases and all other
income from the Property have actually been paid for the month in
which the Closing occurs, the apportionment of such rents and other
amounts and other income shall be upon the basis of such rents,
other amounts and other income actually received by Seller.
Subsequent to the Closing, if any rents and other income are
actually received by Purchaser, all such amounts shall first be
applied to post-closing rents due to Purchaser and the balance
shall be immediately paid by Purchaser to Seller. Purchaser shall
make a good faith effort and attempt to collect any such rents and
other amounts and other income not apportioned at the Closing for
the benefit of Seller, however, Purchaser shall not be required to
expend any funds or institute any litigation in its collection
efforts. Nothing in this paragraph shall restrict Seller's right to
collect delinquent rents directly from a tenant by any legal means
provided, however, Seller shall not have the right to pursue the
eviction of any tenant of the Property.
(b) If the Closing shall occur before the tax rate or the
assessed valuation of the Property is fixed for the then current
year, the apportionment of taxes shall be upon the basis of the tax
rate for the preceding year applied to the latest assessed
valuation. Subsequent to the Closing, when the tax rate and the
assessed valuation of the Property is fixed for the year in which
the Closing occurs, the parties agree to adjust the proration of
taxes and, if necessary, to refund or repay such sums as shall be
necessary to effect such adjustment. If the Property is not
assessed as a separate parcel for tax or assessment purposes, then
such taxes and assessments attributable to the Property shall be
determined by Purchaser and Seller. If, as of the Closing, the
Property is not being treated as a separate tax parcel, then within
thirty (30) days after the Closing, Purchaser shall, at its sole
cost and expense, have the Property assessed separately for tax and
assessment purposes.
(c) If the Closing shall occur before the actual amount
of utilities and all other operating expenses with respect to the
Property for the month in which the Closing occurs are determined,
the apportionment of such utilities and other operating expenses
shall be upon the basis of an estimate by Seller of such utilities
and other operating expenses for such month. Subsequent to the
Closing, when the actual amount of such utilities and other
operating expenses with respect to the Property for the month in
which the Closing occurs are determined, the parties agree to
adjust the proration of such utilities and other operating expenses
and, if necessary, to refund or repay such sums as shall be
necessary to effect such adjustment.
The agreements of Seller and Purchaser set forth in this Section 6.3 shall
survive the Closing.
6.4 Closing Costs. Except as otherwise expressly provided herein,
Seller shall pay, on the Closing Date, the cost of any transfer fees, one-half
(1/2) of any escrow fees and other customary charges of the Title Company, and
Purchaser shall pay, on the Closing Date, the title insurance premium for the
Owner's Policy (as defined in Section 6.6), the cost of the Survey and all
updates thereto, all recording costs, one-half (1/2) of any escrow fees and
other customary charges of the Title Company. Except as otherwise provided
herein, each party shall pay its own attorneys' fees.
6.5 Seller's Obligations at the Closing. At the Closing, Seller shall
deliver to Purchaser the ------------------------------------ following:
(a) Evidence of Authority. Such organizational and
authorizing documents of Seller as shall be reasonably required by
the Title Company to evidence Seller's authority to consummate the
transactions contemplated by this Agreement.
(b) Foreign Person. An affidavit of Seller certifying that Seller is not a
"foreign person," as defined in the federal Foreign Investment in Real Property
Tax Act of 1980, and the 1984 Tax Reform Act, as amended.
(c) Leases. The originals of all of the Leases in the possession of GECRG.
Purchaser shall receive a credit against the Purchase Price for the security
deposit liability (i.e. all amounts due to tenants under the Leases) and
Seller's liability for the last month's rent.
(d) Contracts. The originals of all of the Contracts, if any, in the
possession of GECRG.
(e) Excise Tax Waiver. Seller shall either obtain an excise tax lien waiver
from the Massachusetts Department of Revenue for the transactions contemplated
by this Agreement on or prior to the Closing to the satisfaction of the Title
Company or insert a clause into the Deed reflecting that such transfer and
conveyance is not a sale of all or substantially all of the assets of Seller in
the Commonwealth of Massachusetts.
(f) Title Affidavits. Such other affidavits from Seller as may be
reasonably be required by the Title Company.
6.6 Purchaser's Obligations at the Closing. At the Closing, Purchaser shall
deliver to Seller the following:
(a) Purchase Price. The Purchase Price by wire transfer of immediately
available funds.
(b) Evidence of Authority. Such organizational and
authorizing documents of Purchaser as shall be reasonably required
by Seller and/or the Title Company authorizing Purchaser's
acquisition of the Property pursuant to this Agreement and the
execution of this Agreement and any documents to be executed by
Purchaser at the Closing.
(c) Taxpayer I.D. Certification, in the form attached to this Agreement as
Exhibit E.
In the event Purchaser so elects, Purchaser may obtain, at
Purchaser's expense, an Owner's Policy of Title Insurance in
standard form (the "Owner's Policy"), naming Purchaser as insured,
in the amount of the Purchase Price, insuring that Purchaser owns
good and indefeasible fee simple title to the Property, subject
only to the Permitted Encumbrances. Purchaser, at Purchaser's sole
expense, may elect to cause the Title Company to amend the survey
exception to read "any shortages in area."
6.7 Documents to be Executed by Seller and Purchaser. At the Closing,
Seller and Purchaser shall also execute and deliver the following:
(a) Deed. Quitclaim Deed (the "Deed") conveying the Land
and the Improvements to Purchaser subject to no exceptions other
than the Permitted Encumbrances, in the form attached to this
Agreement as Exhibit B.
(b) Tenant Notices. Signed statements or notices to all
tenants of the Property notifying such tenants that the Property
has been transferred to Purchaser and that Purchaser is responsible
for security deposits (specifying the amounts of such deposits).
(c) Assignment and Assumption of Personal Property, Service Contracts,
Warranties and Leases. Assignment in the form attached to this Agreement as
Exhibit C.
(d) ACM Notice. Notice from Seller to Purchaser in
substantially the form attached to this Agreement as Exhibit D (the
"ACM Notice") pursuant to which Seller shall provide Purchaser with
information in Seller's possession, if any, regarding the presence
and location of asbestos-containing material ("ACM") and presumed
ACM on the Property to the extent prescribed by applicable
regulations of the Occupational Safety and Health Administration.
(e) Lead Paint Notice. Notice from Seller to Purchaser in
substantially the form attached to this Agreement as Exhibit G (the
"Lead Paint Notice") pursuant to which Seller shall provide
Purchaser with information in Seller's possession, if any, of the
presence and location of lead-based paint to the extent prescribed
by applicable law.
7.
RISK OF LOSS
7.1 Condemnation. If, prior to the Closing, action is initiated to
take any of the Property by eminent domain proceedings or by deed in lieu
thereof, Purchaser may either at or prior to Closing (a) terminate this
Agreement, or (b) consummate the Closing, in which latter event all of Seller's
right, title and interest in and to the award of the condemning authority shall
be assigned to Purchaser at the Closing and there shall be no reduction in the
Purchase Price.
7.2 Casualty. Except as provided in Sections 4.2 of this Agreement,
Seller assumes all risks and liability for damage to or injury occurring to the
Property by fire, storm, accident, or any other casualty or cause until the
Closing has been consummated. If the Property, or any part thereof, suffers any
damage in excess of $100,000.00 prior to the Closing from fire or other
casualty, which Seller, at its sole option, does not elect to repair (which
election shall be made within 120 days of Closing), Purchaser may either at or
prior to Closing (a) terminate this Agreement, or (b) consummate the Closing, in
which latter event all of Seller's right, title and interest in and to the
proceeds of any insurance covering such damage (less an amount equal to any
expenses and costs incurred by Seller to repair or restore the Property and any
portion of such proceeds paid or to be paid on account of the loss of rents or
other income from the Property for the period prior to and including the Closing
Date, all of which shall be payable to Seller), to the extent the amount of such
insurance does not exceed the Purchase Price, plus an amount equal to Seller's
deductible under its insurance policy (the aggregate of such amounts shall not
exceed the Purchase Price) shall be assigned to Purchaser at the Closing. If the
Property, or any part thereof, suffers any damage less than $100,000.00 prior to
the Closing, Purchaser agrees that it will consummate the Closing and accept the
assignment of the proceeds of any insurance covering such damage plus an amount
equal to Seller's deductible under its insurance policy and there shall be no
reduction in the Purchase Price.
8.
DEFAULT
8.1 Breach by Seller. Except as Purchaser's remedies may otherwise
be expressly limited by the terms of this Agreement (including, without
limitation, the terms of Section 4):
(a) Breach by Seller. In the event that Seller shall fail
to consummate the transactions contemplated by this Agreement for
any reason, except Purchaser's default or a termination of this
Agreement by Purchaser or Seller pursuant to a right to do so under
the provisions hereof, Purchaser, as its sole and exclusive
remedies may either (i) terminate this Agreement, receive a refund
of the Xxxxxxx Money and Additional Deposit, if any, and pursue
Seller for actual damages, provided, however, in no event shall
Purchaser be entitled to a recovery or claim against Seller in
excess of an amount equal to the amount of the Xxxxxxx Money and
Additional Deposit, if any, Seller shall not be liable to Purchaser
for any punitive, speculative or consequential damages or (ii)
pursue the remedy of specific performance of Seller's obligations
under this Agreement; provided, however that (a) any such suit for
specific performance must be filed within sixty (60) days after
Purchaser becomes aware of the default by Seller, (b) Purchaser is
not in default under this Agreement, (c) Purchaser has tendered the
Purchase Price, less Purchaser's good faith reasonable estimate of
proration credits that would be credited against the Purchase
Price, to the Title Company in immediately available funds and the
Title Company has acknowledged receipt of same, in writing, to
Seller, and (d) Purchaser has furnished ten (10) days prior written
notice to Seller of its intent and election to seek specific
enforcement of this Agreement; and further provided that
notwithstanding anything to the contrary contained herein if
Purchaser seeks specific performance under this Agreement Purchaser
agrees to accept the Property in its "WHERE IS, AS IS" condition.
Purchaser hereby agrees that prior to its exercise of any right or
remedies as a result of any defaults by Seller, Purchaser will
first deliver written notice of said default to Seller and give
Seller ten (10) days thereafter in which to cure said default, if
Seller so elects. In no event whatsoever shall Purchaser file any
instrument of record against title to the Property until it has
complied with the provisions of (a) through (d) above.
Notwithstanding any of the foregoing to the contrary, in no event
whatsoever, shall Purchaser have the right to seek money damages of
any kind as a result of any default by Seller under any of the
terms of this Agreement except as provided for herein. In no event
shall Seller be liable to Purchaser for any punitive, speculative
or consequential damages. If for any reason the remedy of specific
performance is denied Purchaser following all available court
proceedings, or Purchaser discontinues the action for specific
performance, then all funds deposited by Purchaser pursuant to (c)
above shall be returned to Purchaser and the Seller shall then be
released from any further liability to Purchaser in reference to
this Contract but Purchaser may be liable to Seller for costs or
damages as provided under this Agreement or by law.
8.2 Breach by Purchaser.
(a) If Purchaser fails to comply with Section 6 of this
Agreement, Seller may terminate this Agreement and thereupon shall
be entitled to the Xxxxxxx Money and Additional Deposit, if any, as
liquidated damages (and not as a penalty) and as Seller's sole
remedy at law or in equity (except for the Surviving Obligations).
Seller and Purchaser have made this provision for liquidated
damages because it would be difficult to calculate, on the date
hereof, the amount of actual damages for such breach, and Seller
and Purchaser agree that these sums represent reasonable
compensation to Seller for such breach.
(b) In the event of any default by Purchaser under this
Agreement, other than Purchaser's failure to comply with Section 6
of this Agreement, Seller shall have any and all rights and
remedies available at law or in equity by reason of such default.
The provisions of this Section 8.2 shall not limit or affect any of
Purchaser's indemnities as provided in other Sections of this Agreement.
9.
FUTURE OPERATIONS
9.1 Future Operations. From the date of this Agreement until the Closing or
earlier
termination of this Agreement:
(a) Seller will keep and maintain the Property
in substantially its condition as of the date of this
Agreement and continue to lease in the ordinary course of
business consistent with Seller's past practice with
respect to the Property;
(b) Seller will perform all Seller's
obligations under the Contracts. Seller will not, without
the prior written consent of Purchaser, modify, enter
into, or renew any Contract which cannot be cancelled
upon thirty (30) days prior written notice.
10.
MISCELLANEOUS
10.1 Notices. All notices, demands and requests which may be given
or which are required to be given by either party to the other, and any exercise
of a right of termination provided by this Agreement, shall be in writing and
shall be deemed effective either: (a) on the date personally delivered to the
address below, as evidenced by written receipt therefore, whether or not
actually received by the person to whom addressed; (b) on the third (3rd)
business day after being sent, by certified or registered mail, return receipt
requested, addressed to the intended recipient at the address specified below
with a copy via telecopy; or (c) on the first (1st) business day after being
deposited into the custody of a nationally recognized overnight delivery service
such as Federal Express Corporation, Xxxxx or Purolator, addressed to such party
at the address specified below. For purposes of this Section 10.1, the addresses
of the parties for all notices are as follows (unless changed by similar notice
in writing given by the particular person whose address is to be changed):
If to Seller: Properties II, Inc.
c/o GE Capital Realty Group, Inc.
00000 Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000-0000
Attention: Xxxxx Xxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
with a copy to: Xxxxx Xxxxxxx Rain Xxxxxxx
(A Professional Corporation)
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000-0000
Attention: Xxxxx Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
If to Purchaser: The Grove Corporation
000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxx Xxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
with a copy to: Rogin, Nassau, Xxxxxx, Lassman & Xxxxxx
CityPlace I, 22nd Floor
185 Asylum Street
Hartford, Connecticut 06103-3460
Attention: Xxxxx Xxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
If to Title
Company: Chicago Title Insurance Company
0000 XXX Xxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxxx Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
10.2 Real Estate Commissions. Except for Xxxxxxx and Wakefield,
which Purchaser agrees to pay a two percent (2%) commission upon consummation of
this transaction, neither Seller nor Purchaser has authorized any broker or
finder to act on Purchaser's behalf in connection with the sale and purchase
hereunder and neither Seller nor Purchaser has dealt with any broker or finder
purporting to act on behalf of any other party. Purchaser agrees to indemnify
and hold harmless Seller from and against any and all claims, losses, damages,
costs or expenses of any kind or character arising out of or resulting from any
agreement, arrangement or understanding alleged to have been made by Purchaser
or on Purchaser's behalf with any broker or finder in connection with this
Agreement or the transaction contemplated hereby. Seller agrees to indemnify and
hold harmless Purchaser from and against any and all claims, losses, damages,
costs or expenses of any kind or character arising out of or resulting from any
agreement, arrangement or understanding alleged to have been made by Seller or
on Seller's behalf with any broker or finder in connection with this Agreement
or the transaction contemplated hereby. Notwithstanding anything to the contrary
contained herein, this Section 10.2 shall survive the Closing or any earlier
termination of this Agreement.
10.3 Entire Agreement. This Agreement embodies the entire agreement
between the parties relative to the subject matter hereof, and there are no oral
or written agreements between the parties, nor any representations made by
either party relative to the subject matter hereof, which are not expressly set
forth herein.
10.4 Amendment. This Agreement may be amended only by a written instrument
executed by the party or parties to be bound thereby.
10.5 Headings. The captions and headings used in this Agreement are
for convenience only and do not in any way limit, amplify, or otherwise modify
the provisions of this Agreement.
10.6 Time of Essence. Time is of the essence of this Agreement;
however, if the final date of any period which is set out in any provision of
this Agreement falls on a Saturday, Sunday or legal holiday under the laws of
the United States or the Commonwealth of Massachusetts, then, in such event, the
time of such period shall be extended to the next day which is not a Saturday,
Sunday or legal holiday.
10.7 Governing Law. This Agreement shall be governed by the laws of the
Commonwealth of Massachusetts and the laws of the United States pertaining to
transactions in such State.
10.8 Successors and Assigns; Assignment. This Agreement shall bind
and inure to the benefit of Seller and Purchaser and their respective heirs,
executors, administrators, personal and legal representatives, successors and
permitted assigns. Purchaser shall not assign Purchaser's rights under this
Agreement without the prior written consent of Seller, which consent may be
withheld absolutely; provided, however, Purchaser shall be entitled to assign
its interest in this Agreement to an entity in which either the Grove Property
Trust or Xxxxx Xxxxxxx holds a principal ownership interest. In the event Seller
consents to such assignment, Purchaser and such assignee shall execute and
deliver an Assignment of Purchase and Sale Agreement in the form attached hereto
as Exhibit F. Any subsequent assignment may be made only with the prior written
consent of Seller. No assignment of Purchaser's rights hereunder shall relieve
Purchaser of its liabilities under this Agreement. This Agreement is solely for
the benefit of Seller and Purchaser; there are no third party beneficiaries
hereof. Any assignment of this Agreement in violation of the foregoing
provisions shall be null and void.
10.9 Invalid Provision. If any provision of this Agreement is held
to be illegal, invalid or unenforceable under present or future laws, such
provision shall be fully severable; this Agreement shall be construed and
enforced as if such illegal, invalid or unenforceable provision had never
comprised a part of this Agreement; and, the remaining provisions of this
Agreement shall remain in full force and effect and shall not be affected by
such illegal, invalid, or unenforceable provision or by its severance from this
Agreement.
10.10 Attorneys' Fees. In the event it becomes necessary for either
party hereto to file suit to enforce this Agreement or any provision contained
herein, the party prevailing in such suit shall be entitled to recover, in
addition to all other remedies or damages, as provided herein, reasonable
attorneys' fees incurred in such suit.
10.11 Multiple Counterparts. This Agreement may be executed in a
number of identical counterparts which, taken together, shall constitute
collectively one (1) agreement; in making proof of this Agreement, it shall not
be necessary to produce or account for more than one such counterpart with each
party's signature.
10.12 Expiration. The execution of this Agreement by Purchaser and
the delivery hereof to Seller shall constitute an offer which shall be
automatically withdrawn, revoked and terminated unless Seller accepts the same
by executing this Agreement and delivering one fully executed counterpart hereof
to the Title Company prior to 4:00 p.m. Central Standard Time the 5th day of
December, 1997.
10.13 Effective Date. As used herein the term "Effective Date"
shall mean the first date the Title Company is in receipt of both this Agreement
executed by Purchaser and Seller (whether in counterparts or not) and the
Xxxxxxx Money.
10.14 Exhibits. The following exhibits are attached to this
Agreement and are incorporated into this Agreement by this reference and made a
part hereof for all purposes:
(a) Exhibit A, the legal description of the Land.
(b) Exhibit B, the form of the Deed.
(c) Exhibit C, the form of the Assignment and Assumption of
Personal Property,Service Contracts, Warranties and Leases.
(d) Exhibit D, the form of ACM Notice.
(e) Exhibit E, the form of the Taxpayer I.D. Certification.
(f) Exhibit F, the form of Assignment of Purchase and Sale Agreement.
(g) Exhibit G, the form of Lead Paint Notice.
10.15 No Recordation. Seller and Purchaser hereby acknowledge that
neither this Agreement nor any memorandum or affidavit thereof shall be recorded
of public record in Middlesex County, Massachusetts or any other county. Should
Purchaser ever record or attempt to record this Agreement, or a memorandum or
affidavit thereof, or any other similar document, then, notwithstanding anything
herein to the contrary, said recordation or attempt at recordation shall
constitute a default by Purchaser hereunder, and, in addition to the other
remedies provided for herein, Seller shall have the express right to terminate
this Agreement by filing a notice of said termination in the county in which the
Land is located.
10.16 Merger Provision. Except as otherwise expressly provided
herein, any and all rights of action of Purchaser for any breach by Seller of
any representation, warranty or covenant contained in this Agreement shall merge
with the Deed and other instruments executed at Closing, shall terminate at
Closing and shall not survive Closing.
10.17 Jury Waiver. PURCHASER AND SELLER DO HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE THEIR RIGHT TO A TRIAL BY JURY IN RESPECT OF
ANY LITIGATION BASED HEREON, OR ARISING OUT OF, OR UNDER OR IN CONNECTION WITH
THIS AGREEMENT, THE DOCUMENTS DELIVERED BY PURCHASER AT CLOSING OR SELLER AT
CLOSING, OR ANY COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS (WHETHER
VERBAL OR WRITTEN) OR ANY ACTIONS OF EITHER PARTY ARISING OUT OF OR RELATED IN
ANY MANNER WITH THIS AGREEMENT OR THE PROPERTY (INCLUDING WITHOUT LIMITATION,
ANY ACTION TO RESCIND OR CANCEL THIS AGREEMENT AND ANY CLAIMS OR DEFENSES
ASSERTING THAT THIS AGREEMENT WAS FRAUDULENTLY INDUCED OR IS OTHERWISE VOID OR
VOIDABLE). THIS WAIVER IS A MATERIAL INDUCEMENT FOR SELLER TO ENTER INTO AND
ACCEPT THIS AGREEMENT AND THE DOCUMENTS DELIVERED BY PURCHASER AT CLOSING AND
SHALL SURVIVE THE CLOSING OF TERMINATION OF THIS AGREEMENT.
11.
Title V Inspection
11.1 Title V Inspection. The Purchaser acknowledges that a Title V
Inspection pursuant to Section 15.301 of Title V of 310 CMR ss. 15.000, ss. 314
CMR 3,4, 5 and 6, has been performed with respect to the Property, and Purchaser
agrees to undertake the obligations, if any, required by said section of Title V
of the owner of the Property, including, but not limited to, upgrading the
current septic and/or sewage system currently in use with respect to the
Property. Purchaser acknowledges that Seller is also delivering the Title V
report to the appropriate governmental authorities. Purchaser agrees to
indemnify and hold Seller harmless from and against any losses, claims, costs
and expenses (including reasonable attorneys' fees) incurred by Seller arising
out of Purchaser's failure to comply with either this section or Massachusetts
laws relating to Title V. The obligations and indemnities contained in this
Section 11 shall survive the Closing indefinitely.
12.
Title Company
12.1 Investment of Xxxxxxx Money. Title Company shall hold the
Xxxxxxx Money in an interest-bearing account at a banking institution with which
Title Company has an established banking relationship as directed by the
Purchaser and shall invest the Xxxxxxx Money in such accounts as the Purchaser
and Seller shall from time to time direct or approve. Title Company shall
promptly advise Seller and Purchaser if the Xxxxxxx Money is not received by
Title Company in a timely fashion.
12.2 Payment at Closing. If the Closing takes place under this
Agreement, Title Company shall deliver the Xxxxxxx Money to, or upon the
instructions of, Seller on the Closing Date.
12.3 Payment of Xxxxxxx Money. Upon the receipt of written
certification from the Seller claiming the Xxxxxxx Money pursuant to the
provisions of this Agreement, Title Company shall promptly forward a copy
thereof to the Purchaser and, unless Purchaser within two (2) business days of
receipt thereof notifies Title Company of any objection to such requested
disbursement of the Xxxxxxx Money, Title Company shall disburse the Xxxxxxx
Money to Seller and shall thereupon be released and discharged from any further
duty or obligation hereunder. Purchaser acknowledges that, in the event
Purchaser shall object to the transfer of the Xxxxxxx Money to Seller, Title
Company shall either retain said Xxxxxxx Money or bring an appropriate action or
proceeding for leave to deposit the Xxxxxxx Money and Additional Deposit, if
any, in a court of competent jurisdiction pending such determination, and Title
Company shall have no further obligations hereunder. Title Company shall have no
responsibility or obligation with respect to the Additional Xxxxxxx Money.
12.4 Exculpation of Title Company. It is agreed that the duties of
Title Company are herein specifically provided and are purely ministerial in
nature, and that Title Company shall incur no liability whatsoever except for
its willful misconduct or gross negligence so long as Title Company is acting in
good faith. Seller and Purchaser do each hereby release Title Company from any
liability for any error of judgment or for any act done or omitted to be done by
Title Company in the good faith performance of its duties hereunder and do each
hereby indemnify Title Company against, and agree to hold, save, and defend
Title Company harmless from, any costs, liabilities, and expenses incurred by
Title Company in serving as Title Company hereunder and in faithfully
discharging its duties and obligations hereunder.
12.5 Stakeholder. Title Company is acting as a stakeholder only
with respect to the Xxxxxxx Money. If there is any dispute as to whether Title
Company is obligated to deliver the Xxxxxxx Money or as to whom the Xxxxxxx
Money is to be delivered, Title Company may refuse to make any delivery and may
continue to hold the Xxxxxxx Money until receipt by Title Company of an
authorization in writing, signed by Seller and Purchaser, directing the
disposition of the Xxxxxxx Money. In the absence of such written authorization,
Title Company shall hold the Xxxxxxx Money until a final determination of the
rights of the parties in an appropriate proceeding and may bring an appropriate
action or proceeding for leave to deposit the Xxxxxxx Money in a court of
competent jurisdiction pending such determination. Title Company shall be
reimbursed for all costs and expenses of such action or proceeding, including,
without limitation, reasonable attorneys' fees and disbursements, by the party
determined not to be entitled to the Xxxxxxx Money. Upon making delivery of the
Xxxxxxx Money in any of the manners herein provided, Title Company shall have no
further liability or obligation hereunder.
12.6 Interest. All interest and other income earned on the Xxxxxxx
Money deposited with Title Company shall inure to the benefit of Purchaser.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
under seal as of the date set forth below.
PURCHASER:
Date of Execution THE GROVE CORPORATION,
by Purchaser:
11/26/97 a Delaware Corporation
---------------------------
By: /s/Xxxxx Xxxxxxx
--------------------
Xxxxx Xxxxxxx, Vice President
SELLER: PROPERTIES II, INC.,
a Delaware Corporation
Date of Execution
by: Seller:/s/Xxx Xxxxxxx
-------------------------
Name: Xx. Xxx Xxxxxxx
Title:VP
The undersigned Title Company hereby acknowledges receipt of the Xxxxxxx Money
and a copy of this Agreement, and agrees to hold and dispose of the Xxxxxxx
Money in accordance with the provisions of this Agreement.
Date of Execution by
Title Company: CHICAGO TITLE INSURANCE COMPANY
12/1/97 By:/s/
Authorized Officer
