PURCHASE AND SALE AGREEMENT
1. DEFINITIONS
Date: November ___, 1999
Seller: Oaks Apartments LLC,
a Massachusetts limited liability company
c/o Xxxx X. Xxxxxxxx & Co.
000 Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
ATTENTION: Xxxxxxx X. High
Telecopier: (000) 000-0000
Buyer: New England Realty Associates
a Massachusetts limited partnership
c/o The Xxxxxxxx Company, Inc.
00 Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
ATTENTION: Xxxxx X. Xxxxxxx, Esq.
Telecopier: (000) 000-0000
Escrow Agent: Rackemann, Xxxxxx & Xxxxxxxx
Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
ATTENTION: Xxxxxx X. Xxxxxx, Esq.
Telecopier: 617-542-7437
Broker: Nordblom Brokerage Company, Inc.
00 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
ATTENTION: Xxxxxxxx Close
Telecopier: (000) 000-0000
Purchase Price: Fourteen Million Five Hundred Thousand
Dollars ($14,500,000.00)
Deposit: Two Hundred Fifty Thousand Dollars
($250,000.00) to be paid by Buyer to Escrow
Agent by Federal wire transfer
simultaneously with the execution of this
Agreement by Buyer and held and disbursed
by Escrow Agent in accordance with the terms
of this Agreement. The term "Deposit" shall
include any Additional Deposit made by
Buyer to Escrow Agent in accordance with
Paragraph 7, below.
Time of Closing: December 28 1999, or the first date
thereafter upon which the loan secured
by the existing mortgage on the Premises may
be prepaid by Seller pursuant to the terms
of the promissory note
(the "Note") secured thereby (which date
shall be set forth in a written notice given
by Seller to Buyer), at 10:00 A.M. at
Rackemann, Xxxxxx & Xxxxxxxx, Xxx Xxxxxxxxx
Xxxxxx, 00xx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx.
The Time of Closing may be extended as set
forth in Paragraph 7, below. Time is of the
essence of this Agreement.
Premises: The land at 20, 30 and 00 Xxx Xxxxxx
Extension and 40 and 00 Xxxxxxxxx Xxxxxx in
Brockton and Stoughton, Massachusetts,
commonly known as Oak Green and Oak Park
Apartments, more particularly described in
Exhibit A attached hereto (the "Land") and
any rights, privileges and easements
appurtenant thereto, together with the
buildings located on the Land (collectively,
the "Buildings") and (i) all other
buildings, structures, fixtures and
improvements owned by Seller and located on
the Land and (ii) the machinery, equipment
and personal property owned by Seller and
attached to or located in the Buildings or
on the Land and used in connection with the
management, maintenance, repair or operation
of the Premises, including without
limitation those items set forth in Exhibit
B attached hereto, and (iii) all right,
title and interest of Seller in and to all
warranties, guaranties, licenses, permits,
the Existing Leases, guaranties of the
Existing Leases and security deposits and
prepaid rents held in connection with the
Existing Leases, and the Existing Contracts
(to the extent Buyer is assuming the same
pursuant to the terms of this Agreement) all
relating to the Land or the Buildings.
Contingency
Period: The period ending on November 17, 1999.
Reports: The following reports provided by Seller to
Buyer prior to or simultaneously with the
execution of this Agreement:
(a) Phase I environmental site
assessment prepared by Real Estate
Advisory LLC, dated August 29, 1997,
and Phase I environmental site
assessment prepared by Dames &
Xxxxx, Inc., dated September 15,
1997 (collectively, the
"Environmental Reports");
(b) Additional Lead Analyses conducted
by Dames & Xxxxx, dated October 31,
1997 (the "Lead Report");
(c) Owner's Title Insurance Policy No.
9751-00621 and Loan Title Insurance
Policy No. 0000-00000-00, both
issued by Chicago Title Insurance
Company with an effective date of
October 15, 1997 (collectively, the
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"Title Policy") and copies of title
exception documents;
(d) ALTA/ASCM survey of the Land
prepared by Xxxxx Associates Land
Surveyors, Inc. dated September 29,
1997, revised October 10, 1997 (the
"Survey"); and
(e) A copy of the most recent zoning
opinion letter prepared on behalf of
Seller with respect to the Premises,
which shall be provided for
informational purposes only.
Existing Leases: The leases (and any amendments thereto in
effect at the Time of Closing) of space or
other occupancy agreements referred to in
Exhibit C attached hereto, including without
limitation the Ground Lease (defined below),
and any other leases entered into by Seller
prior to the Time of Closing in accordance
with Paragraph 9 below.
Existing Contracts: The service and maintenance contracts
referred to in Exhibit D attached hereto.
2. AGREEMENT TO BUY AND TO SELL
Seller agrees to sell and Buyer agrees to buy the Premises on the terms
and conditions set forth in this Agreement.
3. NO REPRESENTATIONS OR WARRANTIES BY SELLER.
BUYER SPECIFICALLY ACKNOWLEDGES AND AGREES THAT SELLER IS SELLING AND
BUYER IS PURCHASING THE PREMISES ON AN "AS IS WITH ALL FAULTS" BASIS,
AND THAT, EXCEPT AS SET FORTH IN XXXXXXXXX 0, XXXXX, BUYER IS NOT
RELYING ON ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER,
EXPRESS OR IMPLIED, FROM SELLER, ITS MEMBERS, MANAGERS, EMPLOYEES,
OFFICERS, AGENTS, CONSULTANTS, CONTRACTORS, SUBCONTRACTORS OR BROKERS
(COLLECTIVELY, "SELLER'S RELATED PARTIES") AS TO ANY MATTERS CONCERNING
THE PREMISES, INCLUDING, WITHOUT LIMITATION, ANY INFORMATION CONTAINED
IN ANY REPORT, PLAN, SPECIFICATION, STUDY, ANALYSIS, DOCUMENT, OR OTHER
WRITTEN MATERIAL GIVEN BY OR ON BEHALF OF SELLER TO BUYER WITH RESPECT
TO THE PREMISES. IN ENTERING INTO THIS AGREEMENT AND PURCHASING THE
PREMISES, BUYER HEREBY ACKNOWLEDGES THAT, EXCEPT AS SET FORTH IN
PARAGRAPH 8, BELOW, SELLER AND SELLER'S RELATED PARTIES HAVE NOT MADE,
DO NOT HEREBY MAKE, AND WILL NOT HEREAFTER BE DEEMED TO HAVE MADE ANY
REPRESENTATIONS OR WARRANTIES OR GUARANTEES, WHETHER EXPRESS OR
IMPLIED, WITH RESPECT TO THE PREMISES OR THE PHYSICAL CONDITION THEREOF
OR THE SUITABILITY THEREOF FOR ANY PARTICULAR PURPOSE.
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Without in any way limiting the generality of the immediately preceding
paragraph, Buyer hereby acknowledges that it has received the Reports;
that the Reports have been provided to Buyer for informational purposes
only; that Seller has no obligation whatsoever pursuant to this
Agreement to update or supplement the Reports; and that Seller does not
represent, warrant or guarantee the contents, conclusions or opinions
contained in the Reports.
4. BUYER'S INDEPENDENT INVESTIGATION.
Subject to the provisions of this Agreement, Buyer shall have the right
to conduct or cause to be conducted during the Contingency Period, with
reputable companies and at Buyer's sole cost and expense, such
investigations, inspections and studies of the Premises, and such
reviews of plans, specifications, permits, approvals, and other
documents, as Buyer deems necessary or desirable. Notwithstanding the
foregoing, prior to the performance of any environmental review of the
Premises, Buyer shall notify Seller in writing as to the identity of
the company or persons who shall perform such review, and, if the
review includes testing, the proposed scope of such testing, and shall
first obtain the prior written approval of Seller prior to the
performance of any environmental review of the Premises, which approval
shall not be unreasonably withheld, denied or delayed by Seller and
shall, in all events, be granted or denied within two (2) business days
after receipt by Seller of a request for approval from Buyer. All
parties performing any investigations, inspections or studies of the
Premises shall provide to Seller, prior to the commencement of any
activities on the Premises, certificates of insurance evidencing
reasonably satisfactory commercial general liability and errors and
omissions insurance coverage and naming Seller as an additional
insured.
In addition to the above, but not as an additional contingency to the
Closing (as defined below), Buyer may, subject to the provisions below,
access the Premises for the purpose of: (i) performing an appraisal;
(ii) showing the Premises to potential investors or lenders; and (iii)
conducting a final inspection within 48 hours prior to the Closing to
ensure that the Premises conform to the provisions of this Agreement.
All investigations, inspections, studies and reviews relating to the
Premises which are permitted under this Agreement shall be done at
reasonable times, in reasonable frequency, and after twenty-four hours'
prior notice (which may be verbal) to Xxxxx Xxxxxx (telephone: (781)
849-0011). Seller may impose reasonable restrictions on the timing of
such investigations, inspections, studies and reviews as necessary to
minimize disruptions of Seller's activities at the Premises, or as
necessary to comply with the Existing Leases and the rights of the
tenants thereunder, but in all such events shall act in good faith to
allow Buyer to timely perform its such investigations, inspections,
studies and reviews relating to the Premises.
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Buyer, its officers, directors, employees, agents, contractors,
consultants and other representatives (collectively, "Buyer's Related
Parties"), may enter upon the Premises only with Seller's personnel
present (and Seller hereby agrees that it shall make such necessary
personnel available upon its receipt of Buyer's reasonable notice as
stated above), and shall take all reasonable precautions to minimize
the impact on the Premises of any such investigations, inspections,
studies and reviews. Buyer shall promptly deliver to Seller copies of
all written reports and assessments (both interim and final) relating
to any investigations, inspections, studies and reviews performed by
Buyer or Buyer's Related Parties with respect to the Premises, which
shall be provided without request if they disclose facts which might
have a negative impact on the Premises and otherwise shall be provided
upon the request of Seller. Buyer shall, immediately after any entry,
restore the Premises, at Buyer's sole cost, to the condition which
existed immediately prior thereto, including, but not limited to,
replacing paving and landscaping.
Buyer and Buyer's Related Parties, after performing any environmental
review of the Premises, shall not notify any party, including any
public agency, with the exception of Seller, of the results of any such
study unless notification is required by law or, in the case of Buyer's
consultants, by professional ethical standards, and, in any event,
Seller shall also receive a copy of any such notification. Except as
set forth above, Seller shall assume all responsibility for any such
notification. Buyer shall inform Buyer's Related Parties not to
disclose the results of any such study unless notification is required
by law or by professional ethical standards, and, in any event, Seller
shall also receive a copy of any such notification.
Buyer agrees to protect, defend, indemnify and hold harmless Seller and
Seller's Related Parties of, from and against any and all costs,
losses, claims, demands, damages, liabilities, expenses and other
obligations (including, without limitation, attorneys' fees and court
costs) arising from, out of, or in connection with, any damage to
persons or property occurring in or about the Premises as a direct
result of the entry by, and any activities of, Buyer or any one or more
of Buyer's Related Parties in or upon the Premises. In addition, all
cuttings, samples or wastes generated as part of Buyer's inspections
which might reasonably either be considered hazardous or are of such a
substantial quantity that disposing of same within Seller's on-site
waste receptacles would result in a hardship to Seller, shall be
lawfully disposed of off-site by Buyer or Buyer's Related Parties at
Buyer's sole cost and expense. The foregoing restoration, disposal, and
indemnity obligations of Buyer contained in this Paragraph 4 shall
survive the Closing or sooner termination of this Agreement.
In the event Buyer is not satisfied with the results of its independent
investigations in Buyer's sole and absolute discretion, Buyer may, at
any time on or before the expiration of the Contingency Period, as its
sole and exclusive remedy, terminate this Agreement by giving to Seller
written notice of Buyer's election to do so ("Buyer's Termination
Notice"). Notwithstanding the foregoing, Buyer acknowledges and agrees
that there is no contingency for a physical inspection of the Premises
and Buyer
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shall not be entitled to terminate this Agreement based upon Buyer's
dissatisfaction with the physical condition of the Premises. If Buyer
terminates this Agreement pursuant to this Paragraph 4, Buyer shall be
entitled to the immediate return of the Deposit with all accrued
interest thereon. In such event, except as expressly provided otherwise
herein, this Agreement shall be of no further force and effect and the
parties shall have no further rights, obligations or liabilities
hereunder. If Buyer does not terminate this Agreement pursuant to this
Paragraph 4 by delivering written notice to Seller on or before the
expiration of the Contingency Period, Buyer shall be conclusively
presumed to have waived its right to terminate contained in this
Paragraph 4.
5. TITLE
Seller shall convey good and clear record and marketable and insurable
title to the Premises, free from all encumbrances, liens, agreements
and encroachments from, on or against the Premises, except:
(a) Provisions of state and local building, zoning, environmental,
and other laws, rules, regulations, ordinances or bylaws as
may affect the use, maintenance or ownership of the Premises;
provided that the Premises, as of the Time of Closing (as
hereinafter defined), may be used as of right, without special
permit or variance other than as already issued and in full
force and effect, for such uses as are existing as of the date
of this Agreement, including, without limitation, residential
and accessory uses relating thereto;
(b) The Permitted Exceptions (as hereinafter defined);
(c) Any liens for municipal betterments assessed after the date of this
Agreement;
(d) Such real estate taxes for the current fiscal tax year as are
not due and payable at the Time of Closing;
(e) The rights of the tenants and other occupants under the
Existing Leases; and
(f) All other easements, restrictions, covenants, reservations and
other matters of record title which are not Title Defects (as
hereinafter defined).
Buyer acknowledges receipt of the Title Policy and the Survey. Buyer
shall give written notice (a "Title Defect Notice") to Seller on or
before the expiration of the Contingency Period if the Title Policy or
the Survey, or any update of the same obtained by Buyer, discloses any
title defect or encroachment or other matter to which Buyer has a
commercially reasonable objection and over which matter Buyer or
Buyer's lender cannot obtain satisfactory affirmative coverage from
Chicago Title Insurance Company or such other national title insurance
company as Buyer may select (the "Title Company") without the payment
of additional premium therefor
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(collectively, "Title Defects"). Any matter of record title appearing
on the Title Policy or matter appearing on the Survey, or matter of
record title or survey matter in existence as of the date of this
Agreement (other than any mortgage and other monetary lien(s) and UCC
financing statements appearing on the Title Policy, which shall be
promptly discharged and terminated, respectively, following the Closing
without the necessity of a Title Defect Notice), which is not included
within a Title Defect Notice shall be conclusively deemed waived by
Buyer and shall constitute a "Permitted Exception." Seller shall use
reasonable efforts to cure any Title Defect which is the subject of a
Title Defect Notice in accordance with the provisions of Paragraph 14,
below. In addition, in accordance with the provisions of Paragraph 14,
below, Seller shall use reasonable efforts to cure any Title Defect
which first arises or encumbers the Premises after the date of this
Agreement. In no event shall Seller be required to expend more than an
aggregate amount of $25,000.00 to remove Title Defects.
6. PURCHASE PRICE
(a) PAYMENT
The Purchase Price shall be paid as follows:
(i) The Deposit has been delivered to Escrow
Agent by Federal wire transfer
simultaneously with Buyer's execution of
this Agreement; with a completed I.R.S. Form
W-9 to be delivered to Escrow Agent within 7
days thereafter;
(ii) The Additional Deposit, if any, due from
Buyer shall be delivered to Escrow Agent in
accordance with the provisions of Paragraph
7, below; and
(iii) The balance of the Purchase Price shall be
paid at the Time of Closing by Federal wire
transfer to an account designated by Seller.
(b) DEPOSIT
The Deposit shall be held in escrow by Escrow Agent in an
interest-earning FDIC-insured account or accounts (subject,
however, to the monetary limits of such insurance), subject to
the terms of this Agreement, and shall be accounted for at the
Time of Closing or the earlier termination of this Agreement.
Upon the closing of the transaction as contemplated herein,
the receipt by Seller of the Purchase Price, and the receipt
by Buyer of the Deed (hereinafter defined), the Deposit (and
all interest accrued thereon) shall be delivered to Seller and
credited against the Purchase Price. If Buyer defaults in the
performance of its obligations under this Agreement, the
Deposit, and all interest earned thereon,
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shall be paid to Seller. If Seller defaults in the performance of its
obligations under this Agreement, or if any condition to Buyer's
obligations hereunder shall not be fulfilled, the Deposit, and all
interest earned thereon, shall be paid to Buyer.
(c) ESCROW AGENT
Seller and Buyer agree:
(i) Escrow Agent, acting as the escrow agent
under this Agreement, shall establish
accounts and disburse the Deposit together
with all interest earned thereon
(collectively, the "Escrow Funds") in
accordance with this Agreement.
(ii) Nothing herein contained shall be deemed to
impose any duty upon Escrow Agent to
exercise discretion. Buyer and Seller intend
that Escrow Agent shall not be obligated to
act except upon written instructions or
directions signed by both Buyer and Seller.
Escrow Agent shall be fully protected for
any act or failure to act undertaken in good
faith and shall suffer no liability for any
act or failure to act taken on advice of its
counsel. Escrow Agent may act and shall not
incur any liability whatsoever for acting
upon any notice, direction or other document
purporting and believed by Escrow Agent to
be genuine and signed and presented by the
proper person or persons.
(iii) Escrow Agent shall be bound only by
modifications of this Agreement that are in
writing and signed by Escrow Agent. Escrow
Agent shall not be bound by any agreement
between Buyer and Seller whether it has
knowledge of the existence of such agreement
or not.
(iv) In the event of dispute concerning the
Escrow Funds, Escrow Agent shall not release
the Escrow Funds except by instructions
mutually given by both parties in writing or
a court order from the Plymouth County
(Massachusetts) Superior Court (the
"Court"), and, thereupon, Escrow Agent shall
cease to have any obligations with respect
to the Escrow Funds.
(v) Escrow Agent shall not be required to
determine the amount or validity of any
claim made by Buyer or Seller against the
other, Escrow Agent's sole responsibility
being to deliver the Escrow Funds to Seller
or Buyer or to release the Escrow Funds
pursuant to an order from the Court.
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(vi) Buyer and Seller agree to jointly and
severally indemnify and hold Escrow Agent
harmless from and against all liability,
loss, cost, damage or expense, including
attorneys' fees and disbursements, in
connection with any action, suit or other
proceeding involving any claim which in any
way relates to or arises out of this
Agreement or the services of Escrow Agent
hereunder, except such as result from the
bad faith, willful default or gross
negligence of Escrow Agent.
(vii) The parties hereby acknowledge and agree
that Rackemann, Xxxxxx & Xxxxxxxx, P.C.
("RS&B") has acted and is acting as counsel
to Seller, and has acted and shall continue
to act as counsel to Seller in connection
with this Agreement and the transaction
related hereto and contemplated hereby. It
is further agreed that RS&B may continue to
represent Seller in connection with such
transaction and in any dispute or litigation
which may arise between the parties related
thereto, notwithstanding that RS&B is also
acting as Escrow Agent hereunder.
7. CLOSING
The Deed to the Premises shall be delivered to Buyer at the Time of
Closing. The delivery of the Deed and other documents and payment of
the Purchase Price (collectively, the "Closing") shall be accomplished
through customary escrow arrangements reasonably satisfactory to
Buyer's and Seller's counsel.
Buyer shall have the right to extend the Time of Closing as follows:
(a) to that date which is the first business day not less than
sixty (60) days after the date of this Agreement (or to the
next permitted prepayment date thereafter under the Note); and
(b) for one (1) additional period of not more than twenty (20)
days (or to the next permitted prepayment date thereafter
under the Note); provided that Buyer shall deposit with Escrow
Agent, by Federal wire transfer, simultaneously with the
giving of notice of Buyer's election to so further extend the
Time of Closing, the amount of One Hundred Thousand Dollars
($100,000.00), which amount (the "Additional Deposit") shall
be added to and become a part of the Deposit and shall be held
and disbursed by Escrow Agent in accordance with the terms of
this Agreement.
The Time of Closing may be extended as set forth above by Buyer giving
notice to Seller of Buyer's election to so extend the Time of Closing,
which notice shall be
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given by Buyer to Seller not less than five (5) days prior to the then
scheduled Time of Closing; provided, however, that Buyer agrees to
cooperate with Seller to provide notice on such earlier date, if any,
as may be requested by Seller as necessary to facilitate the prepayment
of the Note at the extended Time of Closing.
8. REPRESENTATIONS AND WARRANTIES
(a) SELLER'S REPRESENTATIONS AND WARRANTIES
Seller represents and warrants to Buyer as follows:
(i) Seller is a limited liability company validly
existing and in good standing under the laws of the
Commonwealth of Massachusetts, and Seller has the
full right, power and authority to enter into,
execute, and deliver this Agreement and to perform
all duties and obligations of Seller under this
Agreement;
(ii) Seller has obtained all necessary authorizations
required in connection with the execution, delivery
and performance of this Agreement by Seller;
(iii) This Agreement has been duly and validly executed and
delivered by Seller, and is enforceable against
Seller in accordance with its terms, subject to
general equitable principles and applicable
provisions of law related to bankruptcy, insolvency
and creditors' rights generally;
(iv) To Seller's Actual Knowledge (as hereinafter
defined), Seller has received no notice of any
pending condemnation of all or any portion of the
Premises, or notice of any other action or proceeding
pending or threatened against or relating to the
Premises;
(v) To Seller's Actual Knowledge, Seller has received no
notice of any violation of any federal, state, or
local law, ordinance or regulation relating to the
Premises;
(vi) To Seller's Actual Knowledge, (1) Exhibit C is a true
and complete list of the Existing Leases; (2) there
are no other amendments, agreements or commitments
under the Existing Leases to which Seller is a party
and to which Buyer or its nominee will be bound which
will survive the Time of Closing other than as
delivered to Buyer on or prior to the date of this
Agreement; (3) the Existing Leases are in full force
and effect in accordance with their respective terms;
4) Seller has no knowledge of any uncured breach or
default by Seller under any of the Existing Leases
and Seller has no knowledge of any offset, defense,
credit, rent concession, abatement or claim presently
available to, or asserted by,
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any tenant under any of the Existing Leases, or of
any state of facts which would, with the passage of
time or the giving of notice, or both, constitute a
breach or default by Seller under any of the Existing
Leases or permit a defense, offset, credit, rent
concession, abatement or claim under any of the
Existing Leases; (5) no tenant under any of the
Existing Leases has prepaid any rent other than rent
due for the current month, security deposits, and
last month's rent under the Existing Leases; (6)
Seller at the Time of Closing shall have performed
all obligations to be performed by Seller under any
of the Existing Leases and under any letter
agreements, tenancy at will agreements, lease
modifications or similar instruments for the
construction, renovation, alteration, installation or
rehabilitation of tenant improvements in any part of
the Premises; (7) as of the Time of Closing, no
leasing or similar commissions shall be payable by
Seller or to any person claiming to have dealt with
Seller under any of the Existing Leases, whether with
respect to any existing term or any renewal of the
Existing Leases or expansion of the leased premises
thereunder; and (8) no tenant under any of the
Existing Leases nor any other person has an option to
purchase the Premises or any portion thereof;
(vii) To Seller's Actual Knowledge, Exhibit D is a true and
complete list of the Existing Contracts;
(viii) Except for the Existing Leases and the Existing
Contracts and other matters set forth in this
Agreement, including without limitation matters set
forth in the Title Policy, there are no agreements or
contracts affecting all or any part of the Premises
or the use thereof to which Seller is a party which
would be binding upon or otherwise affect Buyer or
its nominee that would not be terminable at will by
Buyer without penalty from and after the Time of
Closing; and
(ix) All bills and claims for labor performed and
materials furnished to or for the benefit of Seller
with respect to the Premises will either be paid in
full by Seller at or before the Time of Closing or
shall be bonded over by Seller.
It shall be a condition of Buyer's obligation to close under
this Agreement that all warranties and representations made by
Seller hereunder shall be true (subject to exceptions thereto
approved by Buyer in writing, such approval to be in Buyer's
sole discretion) as of the Time of Closing, and Seller shall
deliver to Buyer at the Time of Closing a certificate to that
effect reasonably satisfactory in form and substance to Buyer.
In the event any warranty or representation made herein shall
not be true at the Time of Closing, then, at Buyer's option,
all deposits paid hereunder by Buyer shall forthwith be
refunded to Buyer, with the interest earned thereon, and all
obligations of the
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parties hereunder shall terminate without recourse to the
parties, except as expressly set forth herein.
As used herein, the term "Seller's Actual Knowledge" shall
mean only the current and actual knowledge (and not the
constructive, imputed or implied knowledge), without having
made an independent review of files or other inquiry, of the
following individuals: Xxxxxxxx X. Xxxxxx, Xxxxx XxxXxxxxx,
and C. Xxxxx Xxxxxx.
(b) BUYER'S REPRESENTATIONS AND WARRANTIES
Buyer represents and warrants to Seller as follows:
(i) Buyer is a limited partnership, duly organized and in
good standing under the laws of the Commonwealth of
Massachusetts, and Buyer has the full corporate
right, power and authority to enter into, execute,
and deliver this Agreement and to perform all duties
and obligations of Buyer under this Agreement;
(ii) Buyer has obtained all necessary authorizations
required in connection with the execution, delivery
and performance of this Agreement by Buyer; and
(iii) This Agreement has been duly and validly executed and
delivered by Buyer, and is enforceable against Buyer
in accordance with its terms, subject to general
equitable principles and applicable provisions of law
related to bankruptcy, insolvency and creditors'
rights generally.
It shall be a condition of Seller's obligation to close under
this Agreement that all warranties and representations made by
Buyer hereunder shall be true (subject to exceptions thereto
approved by Seller in writing, such approval to be in Seller's
sole discretion) as of the Time of Closing, and Buyer shall
deliver to Seller at the Time of Closing a certificate to that
effect reasonably satisfactory in form and substance to
Seller. In the event any warranty or representation made
herein shall not be true at the Time of Closing then, at
Seller's option, all deposits paid hereunder by Buyer shall
forthwith be paid to Seller as liquidated damages, with the
interest earned thereon, and all obligations of the parties
hereunder shall terminate without recourse to the parties,
except as expressly set forth herein.
9. SELLER'S OBLIGATIONS PRIOR TO CLOSING
Seller agrees that, until the Time of Closing, Seller shall:
(a) maintain in full force and effect the insurance policies
relating to the Premises
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in effect on the date hereof and comply with any requirements,
arising prior to the Time of Closing, under such insurance
policies;
(b) not grant any encumbrance on the Premises nor enter into any
management, service or maintenance contract which might become
the obligation of Buyer after the Closing, without the prior
written consent of Buyer;
(c) not enter into any new lease of any portion of the Premises
without the prior written consent of Buyer except leases of
residential apartment units in the ordinary course of business
using the standard form lease currently in use by Seller and
at rates at least equal to those currently charged by Seller
for similarly sized and located units;
(d) allow Buyer, its agents, employees, contractors, consultants
and other representatives, reasonable access to the Premises
in accordance with the provisions of Paragraph 4, above;
(e) make available to Buyer for Buyer's review at the Premises all
Existing Leases, Existing Contracts, and, to the extent in
Seller's possession, plans and drawings of the Land and
Buildings;
(f) prior to or at the Time of Closing, give notice to terminate
all Existing Contracts which Buyer indicates that Buyer wishes
to have terminated by notice given to Seller within 30 days
prior to the Closing, such termination to be effective on or
before the Time of Closing or as soon thereafter as may be
permitted under the Existing Contracts which are to be
terminated; and
(g) Seller shall (i) perform any and all obligations of Seller
under the Existing Leases, (ii) upon receipt of proper notice
from (A) any board of fire underwriters or other body
exercising similar functions, or (B) any mortgagee having a
security interest in the Premises, comply with any
requirements, arising prior to the Time of Closing, stated in
such notice, and (iii) carry on the operation of the Premises
in the ordinary course.
10. SELLER'S CLOSING OBLIGATIONS
At the Closing, Seller shall deliver to Buyer:
(a) a quitclaim deed to Buyer, or to a nominee designated by Buyer
(which shall be an entity controlled by, controlling, or under
common control with Buyer) not later than seven (7) business
days prior to the Time of Closing, conveying title to the
Premises in accordance with the terms hereof (the "Deed");
(b) an Assignment and Assumption of Leases in the form of
Exhibit E (the "Lease Assignment");
13
(c) a Xxxx of Sale and Assignment and Assumption of Licenses,
Permits, Approvals, Warranties, Guaranties, Contracts and
Plans and Specifications in the form of Exhibit F (the "Xxxx
of Sale");
(d) such customary affidavits and indemnities as Buyer's title
insurance company may reasonably require in order to issue
so-called owner's title insurance policies insuring Buyer's
title to the Premises without any exception for mechanics' or
materialman's liens and limiting the exception for parties in
possession to tenants under the Existing Leases;
(e) an affidavit of non-foreign status in the form of Exhibit H;
(f) such evidence of legal existence and good standing of Seller,
and authority and incumbency of those persons executing the
closing documents on behalf of Seller, and such other
reasonable documents as may be required by the Land Court to
issue a new certificate of title to Buyer covering the portion
of the Premises which is registered land, or as otherwise may
be required by the Title Company to issue a policy of title
insurance to Buyer in accordance with the terms of this
Agreement;
(g) an assignment to Buyer of the lessor's interest in the ground
lease (the "Ground Lease") by and between Oaks Apartments LLC
and 00 Xxx Xxxxxx Extension LLC dated as of October 14, 1997
in the form of Exhibit I (the "Ground Lessor's Assignment");
(h) an assignment to an entity designated by Buyer of the
ground lessee's interest in the Ground Lease in the form of
Exhibit J (the "Ground Lessee's Assignment");
(i) a letter to each of the tenants under the Existing Leases
advising it of the change in ownership of the Premises and the
assignment of the security deposits and any prepaid rent to
Buyer, and directing that rentals or other payments thereafter
be paid to a payee designated by Buyer;
(j) all security deposits received by Seller from tenants under
Existing Leases and not previously applied by Seller in
accordance with the respective Existing Leases, together with
any interest thereon due to such tenants, and any prepaid
rents and other similar sums then held by Seller as landlord
under the Existing Leases;
(k) fully executed original copies of the Existing Leases (or, in
the case or any subleases of the parcel covered by the Ground
Lease, such originals or photocopies thereof as maybe in
Seller's possession) in effect at the Time of Closing;
14
(l) a current rent roll with respect to the Premises, certified by
Seller as true and correct as of the Time of Closing;
(m) copies of all plans and specifications relating to the
Premises in Seller's possession or control, and copies of all
plans, if any, in Seller's possession or control, of the
layout of any and all sprinkler, smoke detector, fire and/or
burglar alarm systems; and
(n) all keys to the Premises or any portion thereof in Seller's
possession or control.
11. BUYER'S CLOSING OBLIGATIONS
At the Closing, Buyer shall deliver to Seller:
(a) the balance of the Purchase Price in accordance with
Paragraph 6, above;
(b) the Lease Assignment executed by Buyer;
(c) the Xxxx of Sale executed by Buyer;
(d) such evidence of legal existence and good standing of Buyer,
and authority and incumbency of those persons executing the
closing documents on behalf of Buyer, as may be reasonably
required by Seller;
(e) the Ground Lessor's Assignment executed by Buyer; and
(f) the Ground Lessee's Assignment executed by the assignee thereunder.
12. CONDITION OF PREMISES AT TIME OF CLOSING
At the Time of Closing, Seller shall deliver full possession of the
Premises, free of all tenants and occupants except for any tenants or
occupants under the Existing Leases, and in the same condition as on
the date of this Agreement, reasonable wear and tear excepted.
13. APPORTIONMENTS
(a) ITEMS APPORTIONED
The following apportionments shall be made between the parties
at the Closing as of the close of business on the date
immediately preceding the Time of Closing:
(i) fixed rent, additional rent and all other
rent, sums and charges
15
paid under the Existing Leases as of the
Time of Closing;
(ii) real estate and personal property taxes, on
the basis of the last fiscal year for which
the same were assessed;
(iii) charges for water, sewer, electricity, gas,
telephone, fuel, and other utilities except
those which are separately metered and
billed directly to tenants under the
Existing Leases by the utility companies.
Seller shall use reasonable efforts to
obtain final meter readings and final
utility bills within three (3) days of the
Closing, which bills shall be paid by Buyer
and credited against the Purchase Price;
(iv) all charges and payments under Existing
Contracts which are assigned to Buyer at the
Closing pursuant to this Agreement, prorated
on the basis of the services actually
performed under such Existing Contracts to
the Time of Closing; and
(v) all other expenses of operating the
Premises.
(b) ESTIMATED APPORTIONMENTS
If any item described in subparagraph (a) above has not been
fully ascertained at the Time of Closing, then such item shall
be estimated and adjusted at Closing on the basis of the most
recent utility xxxx, tax rate, assessment or other reasonable
method available, and then adjusted retroactively as and when
the same is ascertained. Any discrepancy resulting from such
recomputation and any errors or omissions in computing
apportionments at the Time of Closing shall be promptly
corrected and paid. The provisions of this Paragraph 13(b)
shall survive the Closing.
(c) APPLICATION OF RENT PAYMENTS
If any rent due Seller under the Existing Leases is not
collected by Seller prior to the Time of Closing, the
apportionment of rents under the Existing Leases shall be upon
the basis of such rents actually received by Seller.
Subsequent to the Closing, if any rents are actually received
by Buyer for periods prior to the Closing, such amounts shall
be first applied to the rents due to Buyer for periods
occurring after the Closing and Buyer's reasonable expenses
incurred in collecting any such amounts which may be
delinquent, with the balance, if any, paid to Seller to the
extent of any rents due to Seller for the period prior to the
Closing. Buyer shall make a good faith effort to attempt to
collect any rents due and owing at the Time of Closing for the
benefit of Seller; provided, however, that Buyer shall not be
required to expend any funds or institute any litigation in
such collection efforts, and further provided that Buyer shall
16
deduct from any rents so collected, all funds expended by
Buyer (including without limitation, reasonable attorney's
fees and court costs) in an attempt to collect same. In
addition, Seller shall have the right, in its name or in
Buyer's name, to take all steps reasonably necessary to
collect any unpaid rent due to Seller, other than legal
proceedings to evict any tenant or terminate any lease, which
proceedings Seller shall not be entitled to commence or
maintain without Buyer's written consent. Buyer agrees to
cooperate with Seller in any such proceedings and to join in
any such proceedings which are required to be brought in the
name of the then current owner of the Premises, provided that
Buyer shall incur no costs in connection therewith. The
provisions of this Paragraph 13(c) shall survive the Closing.
(d) ADDITIONAL RENT
If any tenants under the Existing Leases are required to pay
percentage rent, escalation charges for real estate taxes,
operating expenses, cost-of-living adjustments or other
charges of a similar nature ("Additional Rent"), and any
Additional Rent is collected by one party which is
attributable to the other party's period of ownership, such
party shall promptly pay to the other party the other party's
proportionate share thereof, less a proportionate share of any
reasonable attorneys' fees, costs and expenses of collection
thereof. The provisions of this Paragraph 13(d) shall survive
the Closing.
(e) USE OF PROCEEDS TO CLEAR TITLE
Any unpaid taxes or other liens and encumbrances which Seller
is obligated to pay and discharge, together with the cost of
recording or filing any instruments necessary to discharge
such liens and encumbrances of record, may be paid out of the
proceeds of the monies payable at the Closing and such
instruments necessary to discharge such liens and encumbrances
of record shall be recorded contemporaneously with the
recording of the Deed or within a reasonable time after the
Closing in accordance with customary Massachusetts
conveyancing practice.
(f) EXPENSES OF SALE
Buyer and Seller shall each pay the fees of its counsel and
other consultants retained in connection with the purchase and
sale of the Premises. Seller shall pay all transfer taxes and
such other closing costs as are customarily paid by a seller
in Massachusetts. Buyer shall pay all recording fees, title
insurance premiums and other closing costs as are customarily
paid by a buyer in Massachusetts.
17
14. DEFAULT
(a) DEFECTIVE TITLE OR CONDITION OF PREMISES
If Seller shall be unable to convey title or to deliver
possession of the Premises as herein stipulated, or if at the
Time of Closing the Premises do not conform with the
provisions hereof, then Seller shall use reasonable efforts
(as defined in and limited by Paragraph 5, above) to remove
any Title Defects, or to deliver possession as herein
provided, or to make the Premises conform to the provisions
hereof, in which case the Time of Closing shall be extended
for a period equal to the lesser of (i) thirty (30) days from
the original Time of Closing, or (ii) five (5) business days
after Seller gives Buyer notice that Seller is able to convey
title and to deliver possession of the Premises as herein
stipulated and that the Premises conform with the provisions
hereof.
If, at the end of such extension period, Seller is unable to
make the Premises conform to the provisions hereof or remove
any Title Defect, then Buyer may either (i) accept such title
as Seller can deliver to the Premises in their then condition
and to pay therefor the Purchase Price without deduction, in
which case Seller shall convey such title, except that if the
Premises shall have been damaged by fire or casualty insured
against then Seller shall, unless Seller has previously
restored the Premises to their former condition, either: (a)
pay over or assign to Buyer, at the Time of Closing, all
amounts recovered and recoverable on account of such insurance
plus Seller's deductible under such insurance, or (b) if a
holder of a mortgage on the Premises retains the insurance
proceeds or a part thereof, give to Buyer a credit against the
Purchase Price equal to the amount so retained plus Seller's
deductible under such insurance, in either case, less any
amounts reasonably expended by Seller for partial restoration;
or (ii) terminate this Agreement by written notice to Seller,
in which case the Deposit, together with all interest accrued
thereon, shall be returned to Buyer and this Agreement shall
be null and void and without recourse to any party hereto.
(b) SELLER'S DEFAULT
The parties acknowledge that if Seller fails to fulfill its
obligations hereunder, Buyer may, at Buyer's sole option,
either (i) elect to terminate this Agreement, and thereupon
the Deposit, with all interest thereon, shall be promptly
returned to Buyer and this shall be Buyer's sole and exclusive
remedy for Seller's breach hereunder either at law or in
equity, or (ii) seek to enforce the remedy of specific
performance to compel performance by Seller of its obligations
hereunder.
(c) BUYER'S DEFAULT
The parties acknowledge that if Buyer fails to fulfill its
obligations hereunder it would be impossible to compute
exactly Seller's damages. Buyer and Seller
18
have taken these facts into account in setting the amount of
the Deposit and agree that the Deposit is the best estimate of
such damages and such sum represents damages and not any
penalty against Buyer. If Buyer fails to fulfill its
obligations under this Agreement, Seller may elect to
terminate this Agreement, and, thereupon, the Deposit, with
all interest accrued thereon, shall be immediately paid to
Seller as liquidated damages, and this shall be Seller's sole
and exclusive remedy for Buyer's breach hereunder either at
law or in equity.
15. BROKERAGE FEES
Seller and Buyer mutually represent and warrant that Broker is the only
broker with whom they have dealt in connection with this purchase and
sale and that neither Seller nor Buyer is aware of any other broker who
has claimed or may have the right to claim a commission in connection
with this purchase and sale. The commission of Broker shall be paid by
Seller pursuant to a separate agreement between Seller and Broker.
Seller and Buyer shall indemnify and defend each other against
liability, loss, cost, damage and expense, including attorneys' fees,
arising out of the breach of any representations or warranties in this
Paragraph. This Paragraph 15 shall survive the Closing, or, if the
Closing does not occur, the termination of this Agreement.
16. GENERAL
(a) JOINT AND SEVERAL LIABILITY
If more than one party executes this Agreement, the terms
Buyer and Seller shall mean all of them, and each of them
shall be jointly and severally liable hereunder.
(b) CAPTIONS AND FOOTNOTES
Captions and footnotes are used for convenience of reference
only and are not to be construed as part of the terms of this
Agreement.
(c) SEVERABILITY
The invalidity of any provision of this Agreement shall in no
way affect the validity of any other provision.
(d) SUCCESSORS AND ASSIGNS; RECORDING
This Agreement is binding upon and shall inure to the benefit
of the parties hereto and their heirs, successors, personal
representatives, and assigns. Notwithstanding the foregoing,
if Buyer assigns this Agreement, or if Buyer records a copy of
this Agreement, Seller, at Seller's option, may declare
19
Seller's obligations hereunder to be null and void and may
deem Buyer to be in default of its obligations hereunder.
(e) NOTICES
All notices given hereunder shall be in writing and shall be
deemed received at the earlier of (i) when delivered in hand,
or (ii) seventy two (72) hours after the same have been
deposited in the United States mails, postage prepaid,
certified or registered mail, return receipt requested, or
(iii) twenty four (24) hours after being sent by a nationally
recognized overnight mail service which provides written
receipt of delivery, or (iv) when sent by facsimile
transmission provided that a copy thereof is simultaneously
sent by one of the methods specified in clauses (i), (ii) or
(iii), above, addressed in each case to Buyer, Seller, and
Escrow Agent at their addresses appearing on the first page
hereof, or to such other address or addresses as the parties
may from time to time specify by notice so given, with copies
sent in a similar fashion as follows:
20
In the case of notice to Buyer, to:
Xxxxx X. Xxxxxxx, Esq.
General Counsel
The Xxxxxxxx Company, Inc.
00 Xxxxxxxx Xxx.
Xxxxxxx, XX 00000
Telecopier: (000) 000-0000
In the case of notice to Seller, to:
Xxxxxx X. Xxxxxx, Esq.
Rackemann, Xxxxxx & Xxxxxxxx
Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Telecopier: 617-542-7437
(f) GOVERNING LAW
This Agreement shall be interpreted in accordance with and
governed by the laws of the Commonwealth of Massachusetts.
(g) CHANGES IN WRITING
This Agreement may not be changed, waived, or terminated
except in a writing signed by the party against whom
enforcement of the change, waiver, or termination is sought.
(h) PRESS RELEASES/NON-DISCLOSURE.
Prior to the Closing, Buyer shall not issue any public
statement, announcement or press release regarding this
Agreement or the transactions contemplated hereby or otherwise
disclose the existence or contents of this Agreement, unless
Seller has consented thereto and to the form and substance of
any such public statement, announcement or press release.
(i) NO PERSONAL LIABILITY. In no event shall any officer,
director, shareholder, member, manager, employee or agent of
Seller or Buyer have any personal liability hereunder.
(j) COUNTERPARTS. This Agreement may be executed in multiple
counterparts or with multiple signature pages which, when
assembled as a single document or, if not so assembled, when
taken together shall be deemed to be fully effective and
operative as an original document.
21
(k) FACSIMILE. This Agreement may be executed and delivered by
facsimile transmission, and an executed copy of this Agreement
delivered by facsimile transmission shall be deemed to be an
original counterpart for all purposes.
(l) MERGER. The acceptance of the Deed by Buyer shall be deemed to
be a full performance and discharge of every agreement and
obligation of Seller herein contained or expressed, excepting
only those provisions of this Agreement which expressly
survive the delivery of the Deed and/or the Closing.
17. NO FINANCING CONTINGENCY.
Notwithstanding anything in this Agreement to the contrary, it is
understood and agreed that this Agreement is not conditioned or
contingent upon Buyer's ability to obtain financing for the acquisition
of the Premises, and Buyer's failure to obtain financing as necessary
for the acquisition of the Premises shall be deemed a default by Buyer.
22
EXECUTED under seal as of the date first written above.
SELLER:
OAKS APARTMENTS LLC
By: XXXXXXXX BROCKTON LLC,
its Manager
By:
-------------------------
Xxxxxxx X. High
President
BUYER:
NEW ENGLAND REALTY ASSOCIATES
By:
-------------------------
Name:
Title:
Receipt of the Deposit pursuant to the terms of this Agreement is
hereby acknowledged.
ESCROW AGENT:
RACKEMANN, XXXXXX & XXXXXXXX
By:
-------------------------
Xxxxxx X. Xxxxxx, Director
23
LIST OF EXHIBITS
Purchase and Sale Agreement Between
Oaks Apartments LLC, Seller,
and New England Realty Associates, Buyer
A Description of the Land
B List of Personal Property Included in Sale
C List of Existing Leases
D List of Existing Contracts
E Form of Assignment and Assumption of Leases
F Form of Xxxx of Sale and Assignment and Assumption of Licenses,
Permits, Approvals, Warranties, Guaranties, Contracts and Plans and
Specifications
G Form of Parties in Possession and Mechanics Lien Affidavit
H Form of Affidavit of Non-Foreign Status
I Form of Ground Lessor's Assignment
J Form of Ground Lessee's Assignment
24
Exhibit A to
Purchase and Sale Agreement Between
Oaks Apartments LLC, Seller,
and New England Realty Associates, Buyer
DESCRIPTION OF THE LAND
[Attach description of land]
Exhibit B to
Purchase and Sale Agreement Between
Oaks Apartments LLC, Seller,
and New England Realty Associates, Buyer
LIST OF PERSONAL PROPERTY INCLUDED IN SALE
[Attach list of personal property to be conveyed to Buyer]
Exhibit C to
Purchase and Sale Agreement Between
Oaks Apartments LLC, Seller,
and New England Realty Associates, Buyer
LIST OF EXISTING LEASES
1. Ground Lease dated as of October 14, 1997 between Oaks Apartments LLC and 00
Xxx Xxxxxx Extension LLC.
2. The following leases (to which Seller is not a party) pertaining to the
existing day care facility on the parcel covered by the
above-referenced Ground Lease:
(a) Lease dated December 20, 1994 between USL Capital Corporation and
J.C.H. Childcare Corporation d/b/a Field House Day School; and
(b) Sub-Lease Agreement dated _________, 1997 between J.C.H.
Childcare Corporation and JNJ Childcare Corp.
3. The leases identified on the attached rent roll.
[Attach rent roll]
Exhibit D to
Purchase and Sale Agreement Between
Oaks Apartments LLC, Seller,
and New England Realty Associates, Buyer
-------------------
LIST OF EXISTING CONTRACTS
CONTRACTOR SERVICE TERM
1. BFI Trash removal 3 years from 1/1/99
2. MediaOne Cable television 5 years from 2/2/99
(revenue sharing agreement)
3. Xxx-Xxxx Co., Inc. Laundry 10 years from 11/1/93
4. Xxxxxxxx Elevator Elevator service Successive 1 year terms;
notice to terminate required
90 days prior to 12/31
5. Com/Energy Marketing, Inc. Bulk gas delivery Through 6/30/2000
(Bay State Gas) (consent required for
assignment)
Exhibit E to
Purchase and Sale Agreement Between
Oaks Apartments LLC, Seller,
and New England Realty Associates, Buyer
FORM OF ASSIGNMENT AND ASSUMPTION OF LEASES
ASSIGNMENT AND ASSUMPTION OF LEASES
Reference is hereby made to a certain parcel of land located at 20, 30
and 00 Xxx Xxxxxx Extension and 40 and 00 Xxxxxxxxx Xxxxxx in Brockton and
Stoughton, Massachusetts more particularly described in Exhibit A attached
hereto (the "Land"), together with the buildings and improvements thereon
(collectively, the "Premises"), which is being conveyed pursuant to a Quitclaim
Deed of even date herewith by OAKS APARTMENTS LLC, a Massachusetts limited
liability company, with an address c/o Xxxx X. Xxxxxxxx & Co., 000 Xxxxxxxxx
Xxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxxxxxxx 00000 (the "Seller") to NEW ENGLAND
REALTY ASSOCIATES, a Massachusetts limited partnership with an address of
___________________ (the "Buyer").
In consideration of One Dollar ($1.00) and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Seller hereby assigns, conveys, transfers and sets over to the Buyer all of the
Seller's right, title, and interest in and to the leases described on Exhibit B
attached hereto relating to the leasing of space at the Premises and all of the
rights, benefits and privileges of the lessor thereunder, including all security
deposits and all prepaid rents and all interest accrued thereon (the "Leases").
This Assignment is without warranty and without recourse, in any event,
to the Seller. Pursuant to this Assignment, the Buyer shall succeed to all
rights of the Seller and, by execution of this document, Buyer agrees to assume
all obligations of the Seller relating to or arising out of the Leases arising
from and after the date hereof, and agrees to indemnify and hold Seller harmless
from and against any loss, cost, damage, liability or expense (including
reasonable attorneys' fees) arising out of or relating to Buyer's failure to
perform any of the aforementioned obligations arising from and after the date
hereof.
Seller agrees to indemnify and hold Buyer harmless from and against any
loss, cost, damage, liability or expense (including reasonable attorneys' fees)
arising out of or relating to Seller's failure to perform any obligations under
the Leases arising prior to the date hereof.
EXECUTED under seal as of this ____ day of _______________, ________.
SELLER: OAKS APARTMENTS LLC
By: XXXXXXXX BROCKTON LLC,
its Manager
By:
Name:
Title:
BUYER: NEW ENGLAND REALTY ASSOCIATES
By:
Name:
Title:
EXHIBIT A
to
ASSIGNMENT AND ASSUMPTION OF LEASES
from
OAKS APARTMENTS LLC
to
NEW ENGLAND REALTY ASSOCIATES
[Attach description of land]
EXHIBIT B
to
ASSIGNMENT AND ASSUMPTION OF LEASES
from
OAKS APARTMENTS LLC
to
NEW ENGLAND REALTY ASSOCIATES
[Attach rent roll]
Exhibit F to
Purchase and Sale Agreement Between
Oaks Apartments LLC, Seller,
and New England Realty Associates, Buyer
FORM OF XXXX OF SALE AND ASSIGNMENT AND ASSUMPTION
OF LICENSES, PERMITS, APPROVALS, WARRANTIES, GUARANTIES, CONTRACTS
AND PLANS AND SPECIFICATIONS
XXXX OF SALE
AND ASSIGNMENT AND ASSUMPTION OF LICENSES, PERMITS,
APPROVALS, WARRANTIES, GUARANTIES, CONTRACTS
AND PLANS AND SPECIFICATIONS
Reference is hereby made to a certain parcel of land located at 20, 30
and 00 Xxx Xxxxxx Extension and 40 and 00 Xxxxxxxxx Xxxxxx in Brockton and
Stoughton, Massachusetts more particularly described in Exhibit A attached
hereto (the "Land"), together with the buildings and improvements thereon
(collectively, the "Premises"), which is being conveyed pursuant to a Quitclaim
Deed of even date herewith by OAKS APARTMENTS LLC, a Massachusetts limited
liability company, with an address c/o Xxxx X. Xxxxxxxx & Co., 000 Xxxxxxxxx
Xxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxxxxxxx 00000 (the "Seller") to NEW ENGLAND
REALTY ASSOCIATES, a Massachusetts limited partnership with an address of
___________________ (the "Buyer").
In consideration of One Dollar ($1.00) and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Seller hereby assigns, conveys, transfers and sets over to the Buyer all of the
Seller's right, title, and interest in and to the following:
1. All fixtures, equipment and other personal property
(collectively, the "Personal Property") on the
Premises owned by the Seller and used in connection
with the Premises, as set forth on Exhibit B attached
hereto;
2. All permits, licenses, approvals, warranties and
guaranties (collectively, the "Permits and
Warranties") relating to the Premises which have been
obtained to date by the Seller, to the extent only
that any such assignment is allowed pursuant to the
terms and conditions of the Permits and Warranties or
pursuant to applicable law;
3. The contracts and agreements (collectively, the
"Contracts") identified on Exhibit C attached hereto
to the extent only that such assignment is
allowed pursuant to the terms and conditions of the
Contracts; and
4. All plans, drawings and specifications (the "Plans")
relating to the Premises, to the extent only that
such assignment is allowed pursuant to the agreement
under which such materials were prepared.
This Xxxx of Sale and Assignment is without warranty and without
recourse, in any event, to the Seller. The Personal Property is transferred
hereby in "as is" condition. Pursuant to this Xxxx of Sale and Assignment, the
Buyer shall succeed to all rights of the Seller and, by execution of this
document, Buyer agrees to assume all obligations of the Seller relating to or
arising out of the Personal Property, the Permits and Warranties, the Contracts
and the Plans.
EXECUTED under seal as of this ____ day of _______________, _____.
SELLER: OAKS APARTMENTS LLC
By: XXXXXXXX BROCKTON LLC,
its Manager
By:
Name:
Title:
BUYER: NEW ENGLAND REALTY ASSOCIATES
By:
Name:
Title:
EXHIBIT A
to
XXXX OF SALE
AND ASSIGNMENT AND ASSUMPTION OF LICENSES, PERMITS,
APPROVALS, WARRANTIES, GUARANTIES, CONTRACTS
AND PLANS AND SPECIFICATIONS
from
OAKS APARTMENTS LLC
to
NEW ENGLAND REALTY ASSOCIATES
[Attach description of land]
EXHIBIT B
to
XXXX OF SALE
AND ASSIGNMENT AND ASSUMPTION OF LICENSES, PERMITS,
APPROVALS, WARRANTIES, GUARANTIES, CONTRACTS
AND PLANS AND SPECIFICATIONS
from
OAKS APARTMENTS LLC
to
NEW ENGLAND REALTY ASSOCIATES
[Attach list of personal property to be transferred]
EXHIBIT C
to
XXXX OF SALE
AND ASSIGNMENT AND ASSUMPTION OF LICENSES, PERMITS,
APPROVALS, WARRANTIES, GUARANTIES, CONTRACTS
AND PLANS AND SPECIFICATIONS
from
OAKS APARTMENTS LLC
to
NEW ENGLAND REALTY ASSOCIATES
[Attach list of contracts to be assigned]
Exhibit G to
Purchase and Sale Agreement Between
Oaks Apartments LLC, Seller,
and New England Realty Associates, Buyer
FORM OF PARTIES IN POSSESSION AND MECHANICS LIEN AFFIDAVIT
TITLE INSURANCE AFFIDAVIT
TO: ____________ Title Insurance Company (the "Title Insurance Company")
RE: 20, 30 and 00 Xxx Xxxxxx Extension and 40 and 00
Xxxxxxxxx Xxxxxx in Brockton and Stoughton, Massachusetts
(the "Premises")
The undersigned owner of the Premises does under oath depose and say,
and certify to the Title Insurance Company, that:
1. There are no tenants or other occupants presently in
possession of the Premises, or who have the right to be
in possession of the Premises, except for parties
occupying portions of the Premises pursuant to leases
referred to in Exhibit A attached hereto. In the event
that any other person presently occupies or is in
possession of the Premises, or has the right to be in
possession of the Premises, the undersigned agrees to
indemnify and hold harmless the Title Insurance Company
from any and all claims, demands, expenses, costs,
liabilities and obligations arising out of or incurred
in connection with such occupancy or possession.
2. There is no person to whom a debt is due for labor or
materials furnished in the erection, alteration, repair
or removal of a building or structure upon the Premises
by virtue of an agreement with, or by the consent of, the
undersigned, or of a person having authority from or
rightfully acting for the undersigned in promising or
furnishing such labor or materials, for work actually
performed during the past ninety-three (93) days. In the
event that a debt is due for such labor or materials as
hereinabove described, the undersigned agrees to
indemnify and hold harmless the Title Insurance Company
from any and all claims, demands, expenses, costs,
liabilities and obligations
arising out of or incurred in connection with said debts.
Executed as an instrument under seal as of this ____ day of
______________, _____.
OAKS APARTMENTS LLC
By: XXXXXXXX BROCKTON LLC,
its Manager
By:
-------------------------------
Name:
Title:
Subscribed and sworn to before me on this ___ day of ______________, ____
-------------------------------
Notary Public
My commission expires:
EXHIBIT A
to
TITLE INSURANCE AFFIDAVIT
[Attach rent roll; include Ground Lease and any subleases
of the parcel covered by the Ground Lease]
Exhibit H to
Purchase and Sale Agreement Between
Oaks Apartments LLC, Seller,
and New England Realty Associates, Buyer
FORM OF AFFIDAVIT OF NON-FOREIGN STATUS
Non-Foreign Certification
Section 1445 of the Internal Revenue Code provides that a transferee of
a U.S. real property interest must withhold tax if the transferor is a foreign
person. To inform the transferee that withholding of tax is not required upon
the disposition of a U.S. real property interest by OAKS APARTMENTS LLC, the
undersigned hereby certifies the following:
1. OAKS APARTMENTS LLC is not a foreign corporation, foreign
partnership, foreign trust, or foreign estate (as those terms
are defined in the Internal Revenue Code and Income Tax
Regulations);
2. OAKS APARTMENTS LLC's U.S. employer identification number is
00-0000000; and
3. OAKS APARTMENTS LLC's office address is c/o Xxxx X. Xxxxxxxx &
Co., 000 Xxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxxxxxxx
00000.
The undersigned understands that this certification may be disclosed to
the Internal Revenue Service by the transferee and that any false statement
contained herein could be punished by fine, imprisonment, or both.
Under the penalties of perjury the undersigned declares that it has
examined this certification and to the best of its knowledge and belief it is
true, correct and complete.
OAKS APARTMENTS LLC
By: XXXXXXXX BROCKTON LLC,
its Manager
By:
Name:
Title:
Date: as of ______________, ______
Exhibit I to
Purchase and Sale Agreement Between
Oaks Apartments LLC, Seller,
and New England Realty Associates, Buyer
FORM OF GROUND LESSOR'S ASSIGNMENT
GROUND LESSOR'S ASSIGNMENT
Reference is hereby made to a certain parcel of land located at 20, 30
and 00 Xxx Xxxxxx Extension and 40 and 00 Xxxxxxxxx Xxxxxx in Brockton and
Stoughton, Massachusetts more particularly described in Exhibit A attached
hereto (the "Land"), together with the buildings and improvements thereon
(collectively, the "Premises"), which is being conveyed pursuant to a Quitclaim
Deed of even date herewith by OAKS APARTMENTS LLC, a Massachusetts limited
liability company, with an address c/o Xxxx X. Xxxxxxxx & Co., 000 Xxxxxxxxx
Xxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxxxxxxx 00000 ("Seller") to NEW ENGLAND REALTY
ASSOCIATES, a Massachusetts limited partnership, with an address of
___________________________________ ("Buyer").
Reference is further made to a Ground Lease dated as of October 14,
1997 covering a portion of the Premises by and between Seller and 00 XXX XXXXXX
EXTENSION LLC, being an affiliate of Seller (the "Ground Lease").
In consideration of One Dollar ($1.00) and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Seller hereby assigns, conveys, transfers and sets over to Buyer, all of
Seller's right, title, and interest in and to the Ground Lease and all of the
rights, benefits and privileges of the lessor thereunder.
This Assignment is without warranty and without recourse, in any event,
to Seller. Pursuant to this Assignment, Buyer shall succeed to all rights of
Seller and, by execution of this document, Buyer agrees to assume all
obligations of Seller relating to or arising out of the Ground Lease from and
after the date hereof, and agrees to indemnify and hold Seller harmless from and
against any loss, cost, damage, liability or expense (including reasonable
attorneys' fees) arising out of or relating to Buyer's failure to perform any of
the aforementioned obligations arising from and after the date hereof.
Seller agrees to indemnify and hold Buyer harmless from and against any
loss, cost, damage, liability or expense (including reasonable attorneys' fees)
arising out of or relating to Seller's failure to perform any obligations under
the Ground Lease arising prior to the date hereof.
EXECUTED under seal as of this ____ day of _______________, _____.
SELLER: OAKS APARTMENTS LLC
By: XXXXXXXX BROCKTON LLC,
its Manager
By:
--------------------------------
Name:
Title:
BUYER: NEW ENGLAND REALTY ASSOCIATES
By:
--------------------------------
Name:
Title:
Exhibit J to
Purchase and Sale Agreement Between
Oaks Apartments LLC, Seller,
and New England Realty Associates, Buyer
FORM OF GROUND LESSEE'S ASSIGNMENT
GROUND LESSEE'S ASSIGNMENT
Reference is hereby made to a certain parcel of land located at 20, 30
and 00 Xxx Xxxxxx Extension and 40 and 00 Xxxxxxxxx Xxxxxx in Brockton and
Stoughton, Massachusetts more particularly described in Exhibit A attached
hereto (the "Land"), together with the buildings and improvements thereon
(collectively, the "Premises"), which is being conveyed pursuant to a Quitclaim
Deed of even date herewith by OAKS APARTMENTS LLC, a Massachusetts limited
liability company, with an address c/o Xxxx X. Xxxxxxxx & Co., 000 Xxxxxxxxx
Xxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxxxxxxx 00000 ("Seller") to NEW ENGLAND REALTY
ASSOCIATES, a Massachusetts limited partnership, with an address of
___________________________________ ("Buyer").
Reference is further made to a Ground Lease dated as of October 14,
1997 covering a portion of the Premises by and between Seller and the
undersigned, 00 XXX XXXXXX EXTENSION LLC ("Assignor"), being an affiliate of
Seller (the "Ground Lease").
In consideration of One Dollar ($1.00) and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Assignor hereby assigns, conveys, transfers and sets over to
_______________________, a __________________, with an address of
__________________ ("Assignee"), being an affiliate of Buyer, all of Assignor's
right, title, and interest in and to the Ground Lease and all of the rights,
benefits and privileges of the lessee thereunder, including, without limitation,
all of the rights of Assignor under any subleases of all or any portion of the
demised premises under the Ground Lease.
This Assignment is without warranty and without recourse, in any event,
to Assignor. Pursuant to this Assignment, Assignee shall succeed to all rights
of Assignor and, by execution of this document, Assignee agrees to assume all
obligations of Assignor relating to or arising out of the Ground Lease from and
after the date hereof, and agrees to indemnify and hold Assignor harmless from
and against any loss, cost, damage, liability or expense (including reasonable
attorneys' fees) arising out of or relating to Assignee's failure to perform any
of the aforementioned obligations arising from and after the date hereof.
Assignor agrees to indemnify and hold Assignee harmless from and
against any loss, cost, damage, liability or expense (including reasonable
attorneys' fees) arising out of or relating to Assignor's failure to perform any
obligations under the Ground Lease arising prior to the date hereof.
EXECUTED under seal as of this ____ day of _______________, _____.
ASSIGNOR: 00 XXX XXXXXX EXTENSION LLC
By:
--------------------------------------
Name:
Title:
ASSIGNEE: --------------------------------------
By:
--------------------------------------
Name:
Title:
