EXHIBIT 10.51
[*] DENOTES EXPURGATED INFORMATION
PURCHASE AND SALE AGREEMENT
AGREEMENT made this 10th day of August, 2006 (the "Date of this Agreement")
by and between CAMPANELLI FREETOWN LAND, LLC, a Massachusetts limited liability
company with an address at Xxx Xxxxxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000
(the "Seller"), and BOSTON BEER CORPORATION, a Massachusetts corporation with an
address at 00 Xxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 (the "Buyer"), with
respect to the parcels of land consisting of approximately 52.68 acres, located
on Ridge Hill/Xxxxxxxxxx Drive in Freetown, Massachusetts, commonly known as
lots 1A and 3A, all as more particularly described in Section 2.1 and Schedule
DP attached hereto (the "Property").
In consideration of the mutual covenants and conditions set forth below,
Seller and Buyer hereby agree as follows:
ARTICLE 1
Basic Terms, Definitions, Schedules
1.1 Basic Terms. Each reference in this Agreement to any of the
following subjects shall be construed to incorporate the data stated for that
subject in this Section. 1.1.
Seller's Notice One Xxxxxxxxxx Drive
Address: Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxxxx XxXxxxx, Partner
With a copy to:
Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP,
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxxxxxx X. Xxxxxxx, Esq.
Buyer's Notice 00 Xxxxxxxxx Xxxxxx
Address: Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxxxxx X. Xxxx;
with a copy to:
Xxxxx Peabody LLP
000 Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxx, Esq.
Purchase Price: [*]
Deposit: Three Hundred Thousand Dollars ($300,000.00).
Study Period: The one hundred eleven (111) day period commencing on June
26, 2006 and ending on October 16, 2006. In the event Seller
fails to deliver the Alta to Buyer on or before September 15,
2006, the Study Period, with respect to the Alta only, shall
automatically be extended one day for each day after
September 15, 2006 that Seller fails to deliver the Survey.
Approval Period: Ninety (90) days from the expiration of the Study Period, as
may be extended pursuant to the provisions of Section 6.7.
Closing Date: On a date specified by no less than ten (10) days prior
written notice from Buyer to Seller, but no later than thirty
(30) days after the expiration of the Approval Period.
Title Company First American Title Insurance Company
and Its Address: 000 Xxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000-0000
Attn: Xx-Xxx Xxxxx
Escrow Agent First American Title Insurance Company
and Its Address: 000 Xxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000-0000
Attn: Xxxxxx X. Xxxxx, Escrow Manager
Buyer's Broker None.
and Its Address:
Seller's Broker GVA Xxxxxxxx Xxxxx Xxxxxxxxx & Xxxxxxx
and Its Address: 000 Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxx X. Xxxxxxx
[*] Indicates that information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a request for confidential
treatment.
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1.2 Definitions. In addition to the terms set forth above, the
following shall be defined as indicated.
1.2.1 Affiliate. "Affiliate" of a Party shall mean a person or
entity directly or indirectly controlling, controlled by or under common control
with such Party. "Control" for such purposes shall mean possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of the subject person or entity, whether through the holding of stock
or other ownership interest, by contract or otherwise.
1.2.2 Applicable Laws. "Applicable Laws" shall mean all laws,
codes, statutes, ordinances, by-laws, regulations, rules, licenses, permits,
variances, governmental orders, common law, case law, and requirements of any
board of fire underwriters, insurance rating organization and other insurance
requirements applicable to any given facts, things, circumstances or events.
Applicable Laws shall specifically include, without limitation, applicable
Hazardous Substances Laws.
1.2.3 Approvals. "Approvals" shall have the meaning given to it
in Section 6.7.
1.2.4 Appurtenances. "Appurtenances" shall mean the rights,
privileges, permits, licenses, approvals, and easements appurtenant to the Land
described and defined in Section 2.1.2.
1.2.5 Buyer's Closing Documents and Payments. "Buyer's Closing
Documents and Payments" shall mean the documents, instruments, funds and other
items to be delivered by Buyer to the Escrow Agent for the Closing, listed in
Article 14.
1.2.6 Buyer's Representations. "Buyer's Representations" shall
mean the representations and warranties made by Buyer to Seller in Article 4.
1.2.7 Buyer's Representations Update Certificate. "Buyer's
Representations Update Certificate" shall mean a certificate substantially in
the form attached hereto as Schedule BU, indicating that all of Buyer's
Representations in this Agreement remain true and correct as of the Closing Date
except as specifically stated to the contrary in such certificate.
1.2.8 Closing. "Closing" shall mean the consummation of the
purchase and sale transaction described herein by conveyance of the Property
from Seller to Buyer and payment of the Purchase Price by Buyer to Seller
through the delivery of the Closing Documents and Funds into the Closing Escrow
with the Escrow Agent and then the release of the same by the Escrow Agent to
the respective Parties entitled thereto when the applicable conditions for such
release have been satisfied. The Closing shall take place on the Closing Date.
1.2.9 Closing Apportionments and Adjustments. "Closing
Apportionments and Adjustments" or "Apportionments and Adjustments" shall mean
the
[*] Indicates that information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a request for confidential
treatment.
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apportionments, debits and credits made with respect to the Purchase Price
and Closing Funds pursuant to Section 16.1.
1.2.10 Closing Documents and Funds. "Closing Documents and Funds"
shall mean Seller's Closing Documents and Buyer's Closing Documents, Buyer's
Closing Documents and Payments and any other funds deposited with the Escrow
Agent by either Party for the Closing pursuant to the provisions, terms and
conditions hereof. "Closing Documents" shall mean just the aforesaid documents
and "Closing Funds" shall mean just the aforesaid funds.
1.2.11 Closing Escrow. "Closing Escrow" or "Escrow" shall mean
the deposit with and holding of the Closing Documents and Funds in escrow by the
Escrow Agent for the Closing.
1.2.12 Closing Escrow Instructions. "Closing Escrow Instructions"
shall mean the written instructions issued mutually by Seller and Buyer to
Escrow Agent with respect to the Closing Escrow pursuant to Section 15.6.
1.2.13 Closing Settlement Statement. "Closing Settlement
Statement" shall mean the statement executed by Seller and Buyer pursuant to
Section 15.5 regarding (a) the Apportionments and Adjustments made with respect
to the Closing Funds and (b) the payments and distributions made out of such
funds, including the net amount payable to Seller, all calculated in accordance
with the provisions, terms and conditions hereof.
1.2.14 Conditions to Buyer's Obligation to Close. "Conditions to
Buyer's Obligation to Close" shall mean those conditions set forth in Section
12.1.
1.2.15 Conditions to Seller's Obligation to Close. "Conditions to
Seller's Obligations to Close" shall mean those conditions set forth in Section
11.1.
1.2.16 Deed. "Deed" shall mean a good and sufficient quitclaim
deed conveying the Property from Seller to Buyer, the form of which shall be
agreed to by the parties at or prior to the Study Deadline.
1.2.17 Delivery Confirmation Notice. "Delivery Confirmation
Notice" shall mean a notice from Seller to Buyer confirming that Seller has
delivered all of the Seller's Property Documentation required of Seller pursuant
to Section 5.2.
1.2.18 Due Diligence Baseline Date. "Due Diligence Baseline Date"
shall mean June 26, 2006.
[*] Indicates that information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a request for confidential
treatment.
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1.2.19 Due Diligence Investigations. "Due Diligence
Investigations" shall mean such investigations, examinations, inspections, tests
and evaluations as Buyer may elect to make as to any Due Diligence Matters with
respect to the Property during the Study Period. Title Examination is defined
and categorized separately for the purposes of this Agreement and not included
within Due Diligence Investigations.
1.2.20 Due Diligence Matters. "Due Diligence Matters" shall mean
(a) the physical condition of the Property (including without limitation the
structural integrity, condition and working order of the rail-line and related
appurtenances located on the Property and/or any elements thereof), (b) the
Applicable Laws with respect to the Property and whether or not the Property
complies therewith, (c) the presence or absence of any Hazardous Substances or
other pollutants in, on or about the Property, (d) any other environmental
conditions, issues or problems with respect to the Property, (e) the suitability
of the Property for any particular uses, (f) whether or not any particular uses
are permitted on the Property under Applicable Laws, (g) any other relevant
conditions, facts, things, circumstances or matters with respect to the
Property. Title Matters are defined and categorized separately for the purposes
of this Agreement and not included in the term Due Diligence Matters.
1.2.21 Due Diligence Results Termination Notice. "Due Diligence
Results Termination Notice" shall mean a notice from Buyer to Seller pursuant to
Section 6.6 informing Seller that Buyer, for any reason or no reason, in its
sole discretion is terminating this Agreement on account thereof.
1.2.22 Exceptions and Disclosures. "Exceptions and Disclosures"
shall mean the specified exceptions which Seller takes to the Seller
Representations in Section 3.1 for particular matters with respect to the
Property listed and disclosed on Schedule HS attached hereto regarding Hazardous
Substances and/or on Schedule ED attached hereto with respect to all other
matters.
1.2.23 Hazardous Substances. "Hazardous Substances" shall mean
any substances, materials or wastes defined, regulated or identified as
hazardous or toxic by any Hazardous Substances Laws and shall specifically
include, without limitation, oil, petroleum products, asbestos, urea
formaldehyde insulation, materials containing lead, radon and flammable,
combustible or explosive materials.
1.2.24 Hazardous Substance Laws. "Hazardous Substance Laws" shall
mean the federal Comprehensive Environmental Response, Compensation and
Liability Act, 42 U.S.C. Section 9601 et seq., the federal Resource Conservation
and Recovery Act, 42 U.S.C. Section 9601 et seq., the federal Toxic Substances
Act, 15 U.S.C. Section 9601 et seq., all other applicable federal, state or
local laws, codes, statutes, ordinances and by-laws governing similar matters,
and all rules, regulations and publications adopted or promulgated pursuant
thereto.
1.2.25 Land. "Land" shall mean the land included in the Property
as more particularly set forth in Section 2.1.1 and described in Schedule DP
attached hereto.
1.2.26 Monetary Encumbrances. "Monetary Encumbrances" shall mean
(a) any past due real estate taxes and other assessments against the Property
which constitute or
[*] Indicates that information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a request for confidential
treatment.
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may constitute a lien thereon, (b) any mortgages, assignments of rent and UCC
financing statements recorded or filed against the Property, (c) any mechanics',
materialmen's or similar liens recorded, filed or attached against the Property
or pending claims in such regard which could become so recorded, filed or
attached, (d) any judgments, lis pendens or similar claims which are or could be
recorded, filed or attached against the Property and/or (e) any other
encumbrances, liens, security interests, documents or instruments on or recorded
or filed against the Property which secure the payment of money.
1.2.27 Non-Monetary Encumbrances and Exceptions. "Non-Monetary
Encumbrances and Exceptions" shall mean defects, exceptions and encumbrances to
title to the Property, other than Monetary Encumbrances. Non-Monetary
Encumbrances and Exceptions may include, without limitation, encroachments from
or onto the Property and defects in title to or the lack of sufficient access
and utility easements to or from the Property.
1.2.28 Option Period. "Option Period" shall have the meaning
given to it in Section 2.3.
1.2.29 Option Parcel. "Option Parcel" shall have the meaning
given to it in Section 2.3.
1.2.31 Party; Parties. "Party" shall mean either Buyer or Seller
generally. "Parties" shall mean both Buyer and Seller together.
1.2.32 Permitted Encumbrances. "Permitted Encumbrances" shall
mean (a) such real estate taxes and other assessments against the Property which
constitute or may constitute a lien thereon as are not yet due and payable on
the Closing Date and (b) easements, covenants, agreements, restrictions,
reservations, encumbrances and other matters which, in Buyer's sole opinion
exercised prior to the expiration of the Study Period (except as to matters
arising after the Title Examination Baseline Date, as to which Buyer shall make
such determination within ten (10) business days after Buyer's discovery
thereof), do not (i) unreasonably interfere with use of the Property for its
current or Buyer's intended purposes, (ii) materially adversely affect access or
provision of necessary utilities to the Property or (iii) materially adversely
affect the value or marketability of the Property. No Monetary Encumbrances,
other than the aforesaid taxes and assessments not yet due and payable, shall be
Permitted Encumbrances.
1.2.33 Previous Environmental Reports. "Previous Environmental
Reports" shall mean any reports regarding the presence or absence of Hazardous
Materials or other pollutants on or about the Property or any other
environmental matters which Seller heretofore had completed or otherwise
received with respect to the Property, listed on Schedule PD attached hereto.
1.2.34 Property. "Property" shall be defined as provided in the
preamble hereof and Section 2.1 and shall include collectively the Land and
Appurtenances.
1.2.35 Study Deadline. "Study Deadline" shall mean the last day
of the Study Period.
[*] Indicates that information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a request for confidential
treatment.
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1.2.36 Proposed Use. "Proposed Use" shall have the meaning given
to it in Section 6.7.
1.2.37 Roadway Improvements. "Roadway Improvements" shall have
the meaning given to it in Section 19.2.
1.2.38 Seller's Closing Documents. "Seller's Closing Documents"
shall mean the documents, instruments and other items to be delivered by Seller
to the Escrow Agent for the Closing Escrow, listed in Article 13.
1.2.39 Seller's Pre-Closing Covenants. "Seller's Pre-Closing
Covenants" shall mean the covenants and agreements set forth in Article 8 which
Seller shall perform between the Date of this Agreement and the Closing.
1.2.40 Seller's Property Documentation. "Seller's Property
Documentation" shall mean such of the informational documents with respect to
the Property enumerated in Section 5.1 as Seller has in its possession, custody,
or control, and a listing of which documents that have been delivered to Buyer
as of the date hereof is set forth on Schedule PD.
1.2.41 Seller's Representations. " Seller's Representations"
shall mean the representations and warranties made by Seller to Buyer in
Article 3.
1.2.42 Seller's Representations Update Certificate. "Seller's
Representation Update Certificate" shall mean a certificate substantially in the
form attached herewith as Schedule SU, indicating that all of Seller's
Representations in this Agreement remain true and correct as of the Closing Date
except as specifically stated to the contrary in such certificate.
1.2.43 Survey. "Survey" shall mean, collectively, a current
instrument survey of the Real Property in accordance with the Minimum Standard
Detail Requirements of the ALTA/ASCM Land Title Surveys (1999) or such other
standard, more or less rigorous than the foregoing, as Buyer may in its
reasonable discretion elect ("Alta") and a subdivision plan in recordable form
("Subdivision Plan"), to be provided to Buyer at Seller's sole cost and expense
in accordance with Section 7.1 below. The Alta shall be provided to Buyer on or
before September 15, 2006 and the Subdivision Plan shall be provided to Buyer on
or before October 2, 2006. Seller acknowledges Buyer's right to request
revisions to the Survey, within ten (10) business days of Buyer's receipt of the
same, based on its review thereof and shall cooperate with Buyer in finalizing
the survey if revisions are requested.
1.2.44 Title Examination Baseline Date. "Title Examination
Baseline Date" shall mean (a) as to survey matters, the date of the final
Survey, after Buyer's requested revisions have been completed and (b) as to all
other Title Matters, the effective date of the Title Insurance Commitment.
1.2.45 Title Examination. "Title Examination" shall mean (a) the
Buyer's obtaining, at Buyer's sole cost and expense, of a Title Insurance
Commitment from the
[*] Indicates that information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a request for confidential
treatment.
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Title Company for the Property and Buyer's purchase thereof, (b) the obtaining
of a Survey of the Property and (c) such other investigations, examinations,
tests and evaluation as Buyer may choose to make as to any Title Matters with
respect to the Property during the Study Period.
1.2.46 Title Insurance Commitment. "Title Insurance Commitment"
shall mean a written commitment from the Title Company to issue a Title
Insurance Policy for the Property to Buyer upon Closing in the current American
Land Title Association Owners Policy Form subject only to the exceptions and
conditional only upon the requirements expressly set forth in such commitment.
1.2.47 Title Insurance Policy. "Title Insurance Policy" shall
mean an American Land Title Association Owner Form Policy issued to Buyer in
accordance with the Title Insurance Commitment.
1.2.48 Title Matters. "Title Matters" shall mean (a) the current
ownership and state of title to the Property, (b) what Monetary Encumbrances and
Non-Monetary Encumbrances and Exceptions exist with respect thereto, (c) whether
or not there are any encroachments from or onto the Property, (d) what access
exists to the Property for both physical entry and exit thereon and utilities
thereto, and the state of title with respect thereto, (e) what Appurtenances
exist with respect to the Property, and the state of title thereof, and (f) such
matters as would be revealed by a current Survey and Title Insurance Commitment
of the Property.
1.2.49 Title Objections. "Title Objections" shall mean defects,
exceptions and encumbrances to Seller's title to the Property discovered by
Buyer's Title Examination, except for Permitted Encumbrances and Exceptions.
Title Objections may include either or both Monetary and Non-Monetary
Encumbrances and Exceptions.
1.2.50 Title Objections Notice. "Title Objections Notice" shall
mean a notice from Buyer to Seller pursuant to Section 7.3 setting forth the
Title Objections resulting from Buyer's Title Examination of the Property.
1.3 Schedules. The Schedules listed below and attached hereto are
incorporated into this Agreement by reference and to be construed as a part
hereto:
Schedule DP Legal Description of Property
Schedule OP Option Parcel
Schedule BU Form for Buyer's Representations Update Certificate
Schedule DD Form of Deed [To be completed by Study Deadline]
Schedule ED Exceptions to Seller's Representations
Schedule SU Form for Seller's Representations Update Certificate
Schedule NF Form of Non-Foreign Affidavit
[*] Indicates that information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a request for confidential
treatment.
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Schedule RI Roadway Improvements
Schedule EA Escrow Agreement
Schedule PD Property Documents
ARTICLE 2
Property; Purchase Price
2.1 Property, Purchase and Sale. Seller shall sell and convey to Buyer
(or Buyer's designee), and Buyer (or its designee) shall purchase from Seller,
in accordance with and subject to the provisions, terms and conditions of this
Agreement, the property identified in Section 1.1 and more particularly
described as follows, containing the following elements (collectively, the
"Property"):
2.1.1 Land. All that certain plots, pieces or parcels of land,
and all improvements and fixtures located thereon, located at the address and in
the municipality and/or county and state set forth in Section 1.1 and legally
described in Schedule DP attached hereto (the "Land").
2.1.2 Appurtenances. All rights, privileges, permits, licenses,
approvals, and easements appurtenant or belonging to the Land, including without
limitation all of Seller's rights, title and interest in and to any (a) streets,
roads, ways, rights-of-way, alleys, passageways, driveways, sidewalks and
parking areas adjacent to the Land or used in connection therewith, (b) land
lying in the bed of any existing or proposed street or way adjacent to the Land,
(c) utility, drainage, and other easements serving, used or intended for the
use, enjoyment, operation and/or maintenance of the Land and any future
buildings and/or improvements thereon, (d) development, air, water and signage
rights with respect to the Land (including the right to extend the rail-spur
currently located on the Property), (e) mineral, oil, gas and other hydrocarbon
substances on or under the Land and (f) those specific easements, rights of way
or other appurtenances, if any, included in the legal description of the Land
set forth in the aforesaid Schedule DP and (g) rights of access, easement,
and/or right of way over, under, across, through other land of Seller or third
parties for purposes of drawing water from Xxxxx Xxxxx Reservoir and/or
Rattlesnake Brook, and (h) use of the retention pond for on-site surface and
storm-water collection and discharge, and (i) rights of access, easement, and/or
right of way over, under, across, through other land of Seller or third parties
for purposes of connecting to and using the existing rail-spurs (so-called) to
the main track or other tracks owned by Seller or other third parties located
near or on the Property (collectively, the "Appurtenances").
2.2 Purchase Price. Buyer shall pay Seller the Purchase Price
specified in Section 1.1 for the Property as follows:
2.2.1 Deposit. Buyer has previously deposited [*] of the Deposit
with the Escrow Agent. Simultaneously with the execution and delivery hereof,
Buyer shall pay Escrow Agent the remaining portion of the Deposit specified in
Section 1.1. Escrow Agent shall
[*] Indicates that information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a request for confidential
treatment.
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hold the Deposit in Escrow pending the Closing in accordance with the provisions
of Article 10 and pursuant to that certain Escrow Agreement dated July 21, 2006
between the parties and Escrow Agent, a copy of which is attached here as
Schedule EA.
2.2.2 Balance. On or before the Closing Date, Buyer shall pay
Escrow Agent the balance of the Purchase Price, plus or minus the applicable
Closing Apportionments and Adjustments, as provided in Section 14.1.
2.2.3 Method of Payment. Buyer shall make all such payments by
wire transfer of immediately available federal funds for credit to Escrow
Agent's escrow account. Escrow Agent shall provide Buyer with written wiring
instructions and account information to enable such payments.
2.3 Option Parcel. From the Date of this Agreement until [*] after the
Closing Date (the "Option Period"), Buyer shall have the right to purchase the
parcel of land containing approximately 6.5 acres of land located in Freetown,
Massachusetts, shown on Schedule OP (the "Option Parcel"), for the price of [*].
Buyer's proposed purchase of the Option Parcel is based on its desire to access
that portion of Xxxxx Xxxxx currently owned by Seller so Buyer can draw water
and transport it back to the Property. Seller agrees to cooperate reasonably
with and support Buyer in connection with its efforts to secure any permits,
approvals, and licenses necessary to draw and to transport the water from Xxxxx
Xxxxx. Seller further agrees not to alter the Option Parcel or to otherwise
negatively impact Xxxxx Xxxxx or its natural flow during the Option Period.
Buyer shall exercise this right by giving written notice to Buyer prior to the
end of the Option Period. If Buyer exercises its right to purchase from Seller
then the parties agree to negotiate the terms of the sale in good faith and
consummate the same within sixty (60) days of Buyer's election to purchase the
Option Parcel. If Buyer does not deliver such notice prior to the end of the
Option Period, or, if, having delivered such notice, Buyer does not consummate
the same within such sixty-day period, the option set forth in this Section 2.3
shall expire and shall have no further force or effect. This Section 2.3 shall
survive the Closing.
ARTICLE 3
Seller's Representations and Warranties
3.1 Representations. As a material inducement to Buyer to execute this
Agreement and consummate the transaction described herein, Seller represents and
warrants to Buyer as follows (collectively, the "Seller's Representations"),
subject only (a) with respect to the representations regarding Hazardous
Substances made in Section 3.1.6 below, the exceptions if any set forth in
Schedule HS and (b) with respect to all other representations below, the
exceptions and disclosures set forth on Schedule ED (collectively, the
"Exceptions and Disclosures"):
3.1.1 Organization and Authority. Seller is a duly organized and
validly existing limited liability company under the laws of the Commonwealth of
Massachusetts, is in good standing therein and is qualified to do business in
the state in which the Property is located. Seller has the full right and
authority and has obtained any and all consents
[*] Indicates that information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a request for confidential
treatment.
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required to enter into this Agreement and to consummate or cause to be
consummated the transaction contemplated hereby. This Agreement has been, and
all of the documents to be executed and delivered by Seller at Closing shall be,
duly authorized and properly executed and shall constitute valid and binding
obligations of Seller.
3.1.2 No Conflict. Neither the execution and delivery of this
Agreement nor the consummation of the transaction contemplated hereunder
conflicts with the provisions of or constitutes a default under any agreement or
instrument to which Seller is a party or which otherwise affects Seller, nor
shall result in the creation of a lien, charge or encumbrance on the Property
pursuant to any such agreement or instrument or otherwise, other than agreements
or instruments which shall be discharged or released at the Closing.
3.1.3 No Eminent Domain. Except as disclosed by Seller pursuant
to items identified on Schedule PD as Items E and F, there are no eminent
domain, condemnation or similar proceedings pending or, to the best of Seller's
knowledge, threatened with respect to the Property. Seller agrees to keep Buyer
informed should Seller become aware of new information concerning the matters
referenced in Schedule PD as Items E and F or any other eminent domain,
condemnation or similar proceedings that may impact the Property.
3.1.4 No Litigation. There are no actions, suits or other legal
proceedings pending or, to the best of Seller's knowledge, threatened with
respect to the Property or the ownership, management or operation thereof, or
which would prevent or materially adversely affect the transaction described
herein.
3.1.5 Compliance with Law. Seller has not received written notice
of any violations of Applicable Laws with respect to the Property which have not
been cured.
3.1.6 Hazardous Substances. All written reports, studies,
assessments, evaluations, notices, complaints, communications from government
agencies or other documents with respect to any Hazardous Substances in, on,
under or about the Property, any violation of Hazardous Substance Laws regarding
the Property or any other environmental problems or issues regarding the
Property, which have been received by Seller or are otherwise in Seller's
possession or control, are listed in Schedule PD attached hereto. Seller has
delivered to Buyer true and complete copies of all such documents. There has
been no litigation brought, or to the best of Seller's knowledge threatened,
alleging the presence, disposal or release of Hazardous Substances in, on, under
or about the Property or other environmental problems with respect thereto,
except as disclosed in Schedule PD. Except as disclosed in the reports set forth
in Schedule PD, Seller is not aware of any environmental problems or issues
regarding the Property.
3.1.7 Other Agreements. Other than the Permitted Encumbrances,
there are no written agreements affecting the Property to which Seller is a
party that will be binding on Buyer or the Property after the Closing.
3.1.8 Non-Foreign Status. Seller is not a "foreign person" as
defined in Section 1445 of the Internal Revenue Code.
[*] Indicates that information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a request for confidential
treatment.
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3.1.9 No Bankruptcy. Seller has not (a) commenced a voluntary
case, or had entered against it a petition, for relief under any federal
bankruptcy act or any similar petition, order or decree under any federal or
state law with respect to bankruptcy, insolvency or other relief for debtors, or
(b) caused, suffered or consented to the appointment of a receiver, trustee,
administrator, conservator, liquidator or similar official in any federal, state
or foreign judicial or non-judicial proceeding to hold, administer and/or
liquidate all or substantially all of its assets.
3.1.10 Brokers. Seller has had no dealings with any broker or
agent in connection with this Agreement and the Property other than Seller's
Broker identified in Section 1.1. Seller will compensate Seller's Broker
pursuant to separate written agreement between them.
3.2 Update Certificate. Seller shall update Seller's Representations
by executing and delivering a Seller's Representations Update Certificate to
Buyer at the Closing substantially in the form attached hereto a Schedule SU,
indicating that all of Seller's Representations remain true and correct as of
the Closing Date except as stated in such certificate.
3.3 Survival. Seller's Representations set forth in this Article 3
shall survive the Closing for [*] (other than the representation regarding
brokers under Section 3.1.10, which shall survive for as long as allowed by
applicable statutes of limitations), and shall not be merged with the execution
and delivery of the Deed and other closing documents hereunder. Any claim based
upon a misrepresentation or breach of any of Seller's Representations shall be
actionable and enforceable only if notice thereof is given by Buyer to Seller
within the aforesaid time after the Closing Date. In no event shall the
liability of Seller under this Article 3 exceed the sum of [*].
ARTICLE 4
Buyer's Representations and Warranties
4.1 Representations. As a material inducement to Seller to execute
this Agreement and to consummate the transaction described herein, Buyer
represents and warrants to Seller as follows (the "Buyer's Representations"):
4.1.1 Organization and Authority. Buyer is a duly organized and
validly existing corporation under the laws of the Commonwealth of
Massachusetts, is in good standing therein and is qualified to do business in
the Commonwealth of Massachusetts. Buyer has the full right and authority and
has obtained any and all consents required to enter into this Agreement and to
consummate or cause to be consummated the transaction contemplated hereby. This
Agreement has been, and all of the documents to be executed and delivered by
Buyer at the Closing shall be, duly authorized and property executed and shall
constitute valid and binding obligations of Buyer enforceable against Buyer in
accordance with their respective terms.
[*] Indicates that information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a request for confidential
treatment.
12
4.1.2 Brokers. Buyer has had no dealings with any broker or agent
in connection with this Agreement or the Property other than Seller's Broker
identified in Section 1.1.
4.2 Update Certificate. Buyer shall update Buyer's representations by
executing and delivering a Buyer's Representations Update Certificate to Seller
at the Closing substantially in the form attached hereto as Schedule BU,
indicating that all of Buyer's Representations remain true and correct as of the
Closing Date, except as stated in such certificate.
4.3 Survival. Buyer's Representations set forth in this Article 4
shall survive the Closing for [*] (other than the representation regarding
brokers under Section 4,1.5, which shall survive for as long as allowed by
applicable statutes of limitations), and shall not be merged with the execution
and delivery of the Deed and other Closing documents hereunder. Any claim based
upon a misrepresentation or breach of any of Buyer's Representations shall be
actionable and enforceable only if notice thereof is given by Seller to Buyer
within the aforesaid time after the Closing Date.
ARTICLE 5
Seller's Property Documentation
5.1 Delivery. Seller has delivered, or will deliver if later
discovered, to Buyer all of the following items which are in Seller's possession
(the "Seller's Property Documentation").
5.1.1 Title Information. Seller's deed or deeds and title
insurance policy for the Property, together with any easements, covenants,
restrictions, encumbrances or similar instruments affecting the title thereto.
5.1.2 Plans and Surveys. Surveys, site plans, subdivision plans,
plot plans, construction plans and specifications, as-built plans or similar
plans and surveys for the Property.
5.1.3 Permits and Appraisals. Any permits, approvals or variances
with respect to the Property.
5.1.4 Tax Bills. The most recent real estate tax bills and
statements of any other assessments against the Property.
5.1.5 Utility Bills. The most recent electricity, gas, water,
sewer or other utility bills with respect to the Property and any related
letters from the applicable utility companies or authorities regarding the
capacity, availability or similar matters with respect to such services.
5.1.6 Environmental Reports. To the extent Seller has not yet
delivered the same to Buyer, all of the Previous Environmental Reports and
notices with respect to the Property listed on Schedule PD attached hereto.
[*] Indicates that information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a request for confidential
treatment.
13
5.1.7 Schedule Exceptions. All documents and instruments related
to any Exceptions and Disclosures to the Seller's Representations hereunder set
forth on Schedules PS or ED attached hereto.
5.2 Confirmation. As of the Date of this Agreement, Seller has
delivered to Buyer copies of all Seller's Property Documentation as set forth in
Schedule PD, and Seller represents, warrants, and agrees that the items
enumerated in Schedule PD comprise all of the Seller's Property Documentation
which is in Seller's possession, custody, or control and if Seller has made no
delivery of any items enumerated in Section 5.1, it is because Seller believes
it does not have such item. If, after October 2, 2006, Buyer uncovers any item
or condition that Seller failed to deliver, or if, after October 2, 2006, Seller
later discovers any item or condition that it did not deliver to Buyer
hereunder, then the Study Deadline allowed to Buyer shall be extended for that
newly discovered item or condition only by a reasonable period of time to allow
Buyer additional time to investigate the item or the condition and its impact on
the Property.
5.3 Confidentiality. Other than disclosure to Buyer's attorneys,
consultants, and advisors, Buyer shall keep the Seller's Property Documentation
and all information therein, other than matters of public record, confidential,
and shall not disclose the same to any other party except on a need-to-know
basis, unless compelled to the contrary by Applicable Laws or governmental
orders.
ARTICLE 6
Buyer's Due Diligence Investigations and Approvals
6.1 Due Diligence Investigations. Buyer may, during the Study Period,
conduct such Due Diligence Investigations as Buyer elects with respect to any
Due Diligence Matters regarding the Property. Buyer may engage appropriate
architects, engineers, surveyors, attorneys, environmental consultants and other
experts and professionals to assist it in making such investigations. All Due
Diligence Investigations shall be at Buyer's sole cost and expense. Any
reasonable, documented expenses incurred by the Seller in excess of [*] in
connection with Buyer's due diligence shall be reimbursed by Buyer to Seller
within thirty (30) days of Seller's receipt of appropriate documentation and
approved invoice therefor. Such reimbursements paid to Seller, up to [*], shall
be credited to the Buyer against the Purchase Price at the time of the Closing.
6.2 Seller's Representations. Buyer may, as part of the Due Diligence
Investigations, check the accuracy of Seller's Representations to the extent
that Buyer is able to do so, and determine whether or not the Exceptions and
Disclosures reported by Seller herein with respect thereto are acceptable to
Buyer.
6.3 Seller's Property Documentation. Buyer may review and utilize the
Seller's Property Documentation which it received from Seller pursuant to
Article 5 in connection with its Due Diligence Investigations.
[*] Indicates that information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a request for confidential
treatment.
14
6.4 Entry. Buyer and its agents and contractors may enter upon the
Property from time to time, during the Study Period and make Due Diligence
Investigations thereof. Buyer shall give Seller at least 24 hours notice (which
may be telephonic or oral) prior to making any such entry. In any case, when the
Due Diligence Investigations which Buyer shall perform will involve disturbing
the Property or environmental testings or samplings, Buyer shall obtain Seller's
prior written consent thereto, which consent shall not be unreasonably withheld,
conditioned, or delayed. Buyer's request for such consent shall include the
identity of the testing company and the scope of the proposed work. Buyer shall
promptly repair and restore any disturbance or damage caused by its Due
Diligence Investigations so as to return the Property to substantially the
condition that existed prior to its undertaking of the same. Buyer shall
indemnify, defend and hold Seller harmless with respect to any loss, damage or
injury to persons or property caused by Buyer's entry on the Property or
activities thereon (but excluding matters merely discovered, and not caused, by
Buyer).
6.5 Records. Seller shall also allow Buyer from time to time during
the Study Period to examine all of Seller's documents and records with respect
to the Property not otherwise provided to Buyer as part of Seller's Property
Documentation. Such documents and records shall be made available to Buyer at
the Property or Seller's Notice Address. Buyer must make such examinations
during normal business hours and must give Seller at least 24 hours notice
(which may be telephonic or oral) prior to doing so.
6.6 Study Period Termination. If Buyer, in its sole discretion, is
dissatisfied with the Property for any reason as a result of its Due Diligence
Investigation or for no reason, in its sole discretion, Buyer may terminate this
Agreement by giving Seller notice to such effect by the end of the Study Period
(a "Due Diligence Results Termination Notice"). The Deposit shall then be
promptly returned to Buyer and neither Party shall have any further rights,
obligations or liabilities hereunder, except only that Buyer shall, to the
extent it has not yet done so, repair and restore any damage or disturbance to
the Property caused by its entries thereon for Due Diligence Investigations as
required by Section 6.4, and Buyer's indemnity to Seller under said Section with
respect to such entries shall survive such termination for [*]. Without limiting
Buyer's other rights and remedies hereunder, if the Due Diligence Results
Termination Notice is not delivered on or before the expiration of the Study
Period, Buyer shall be deemed to have waived the right to terminate this
Agreement under the provisions of Section 6.6 and the parties agree that the
Deposit shall then be governed by the provisions of Section 10.3 below.
6.7 Approval Period. In the event Buyer does not terminate this
Agreement pursuant to Section 6.6 above, then upon the expiration of the Study
Period, Buyer shall deliver to Seller a list of all necessary licenses,
approvals and permits required under Applicable Law (the "Approvals") for the
Property to be used by Buyer for manufacturing, warehousing, distribution of
beer and related products, a tour center and general office uses (the "Proposed
Use"). Buyer shall have until the expiration of the Approval Period to
diligently pursue the issuance of the Approvals and Seller agrees to execute any
and all papers presented to it by Buyer in connection with such Approvals,
provided, however, that (a) Seller shall have no responsibility or liability
whatsoever, financial or otherwise, with respect to any such Approvals and (b)
any Approvals that may have an impact upon other land owned by Seller or its
Affiliates
[*] Indicates that information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a request for confidential
treatment.
15
shall be subject to the approval of Seller, which approval shall not be
unreasonably withheld, conditioned or delayed. Applications for the foregoing
Approvals may be filed by Buyer in the name of, or on behalf of Seller, subject
to Seller's prior approval of said applications, not to be unreasonably withheld
conditioned or delayed. The parties acknowledge that Buyer and Seller, or an
Affiliate of Seller, have entered into a Consulting Agreement of even date
herewith regarding the Approvals. The obligations of the parties hereto are
separate and independent of the obligations of the parties under the Consulting
Agreement, and the obligations of the parties hereunder shall not be affected
thereby.
Without limiting Buyer's other rights and remedies hereunder, if Buyer
fails to obtain the Approvals, then prior to the expiration of the Approval
Period Buyer shall have the right to either: (i) terminate this Agreement, by
providing written notice of such election to Seller, and receive a return on the
refundable portion of the Deposit pursuant to Article 10; or (ii) elect to
extend the Approval Period for an additional thirty (30) days. Buyer shall have
the right to exercise such thirty (30) day extension of the Approval Period no
more than [*] times, provided that at the time of each such extension Buyer pays
directly to Seller an additional, non-refundable deposit (subject to Section
17.2) of [*] with the Escrow Agent, to be credited to Buyer against the Purchase
Price at the time of the Closing (such additional deposits shall be included
within the definition of "Deposit").
6.8 Buyer's Right to Terminate. Notwithstanding anything to the contrary
herein contained, if at any time during the Study Period or the Approval Period
(as the same may be extended), Buyer determines in its sole and exclusive
discretion that it does not want to proceed with the purchase of the Property,
Buyer may terminate this Agreement upon written notice to Seller and receive a
return of the refundable portion of the Deposit, if any, pursuant to Article 10.
ARTICLE 7
Buyer's Title Examination
7.1 Title Insurance Commitment; Other Title Examination; and Survey.
Buyer shall, during the Study Period, obtain a Title Insurance Commitment for
the Property from the Title Company. Such Title Insurance Commitment and Title
Examination shall be at Buyer's sole cost and expense. Seller shall order the
Survey at its sole cost and expense and deliver same to Buyer on or before
September 15, 2006.
7.2 Entry. If Buyer elects to make a Survey of the Property or
otherwise requires access thereupon with respect to any of its Title
Examinations, Buyer may enter upon the Property from time to time during the
Study Period for such purposes, subject to and in accordance with the same
provisions, terms and conditions as set forth in Section 6.4 regarding entry
with respect to Buyer's Due Diligence Investigations.
7.3 Buyer's Title Objections. Buyer shall give Seller notice of
Buyer's Title Objections with respect to the Property by the Study Deadline (the
"Title Objection Notice"). Buyer may not thereafter raise any Title Objections
as to matters in existence as of the Title Examination Baseline Date which were
not set forth in such Title Objection Notice. Buyer may,
[*] Indicates that information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a request for confidential
treatment.
16
however, make rundown or update Title Examinations as to matters which arise
after the Title Examination Baseline Date, and may raise Title Objections as to
any such subsequently occurring matters by delivering a Title Objection Notice
with respect thereto at any time up to and including the Closing.
7.4 Nature of Objections; Permitted Encumbrances. Buyer's Title
Objections may include both Monetary Encumbrances and Non-Monetary Encumbrances
and Exceptions. Buyer may not raise Permitted Encumbrances as Title Objections.
7.5 Monetary Encumbrances. Seller shall cause all Monetary
Encumbrances reported in Buyer's Title Objection Notices to be discharged,
terminated or otherwise removed from the Property before or at the Closing.
7.6 Non-Monetary Encumbrances and Exceptions. Seller shall make
reasonable and diligent efforts to discharge, terminate, remove or cure all
Non-Monetary Encumbrances and Exceptions reported in Buyer's Title Objection
Notices before or at the Closing, provided that Seller shall not be required to
expand more than [*] in the aggregate in doing so. If Seller fails to remove or
cure any such Non-Monetary Encumbrances and Exceptions, Buyer shall have the
option of terminating this Agreement as provided in Section 12.2, without
adjustment of the Purchase Price hereunder.
ARTICLE 8
Seller's Pre-Closing Covenants
From the Date of this Agreement until the Closing, Seller covenants and
agrees as follows (collectively, "Seller's Pre-Closing Covenants"):
8.1 Insurance. Seller shall continue to maintain in force and effect
all liability insurance presently in effect with respect to the Property. If
Seller does not presently carry such insurance, the Seller shall immediately
take out liability insurance in amounts customarily carried on properties
similar to the Property in the area in which the Property is located, and
maintain such insurance through the Closing.
8.2 Alterations. Seller shall not, without Buyer's written consent,
make any material modifications, alterations or additions on the Property,
except only to the extent required by Applicable Laws. Seller shall nevertheless
give Buyer notice of any work under the aforesaid exceptions.
8.3 Encumbrances. Seller shall not, without Buyer's written consent,
create any further encumbrances on the Property nor grant any third party any
interest in the Property or any part thereof.
8.4 Notices. Seller shall promptly provide Buyer with copies of any
written notices or communications which Seller gives or receives regarding
violations of Applicable Laws, taking, or litigation involving the Property.
[*] Indicates that information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a request for confidential
treatment.
17
8.5 Buyer's Consent. Wherever Seller must obtain Buyer's consent under
any of Seller's Pre-Closing Covenants, Buyer shall not unreasonably withhold,
delay or condition such consent with respect to matters arising before the Study
Deadline, but such consent shall be of Buyer's sole and absolute discretion with
respect to matters arising after such date.
ARTICLE 9
Damage or Taking Prior to Closing
9.1 Allocation of Risk. Risk of damage or loss to the Property due to
a taking by eminent domain prior to the Closing shall remain with Seller.
9.2 Casualty. Intentionally deleted.
9.3 Taking. If the Property or any material part thereof (including
access and easements on which the Property depends) is taken by condemnation or
eminent domain prior to the Closing, or comes under bona fide threat of such a
taking, without limiting Buyer's other rights or remedies hereunder, the Buyer
may terminate this Agreement for failure of a Condition to Buyer's Obligation to
Close pursuant to Section 12.2. If Buyer elects instead (which election shall be
at Buyer's sole discretion) to waive such condition and close despite such
taking or threatened taking, the Seller shall at the Closing pay over or assign
to Buyer all Seller's rights to any awards or compensation on account of such
taking.
ARTICLE 10
Deposit
10.1 Holding by Escrow Agent. Escrow Agent shall hold the Deposit
pending the Closing. Until such time as Buyer delivers a signed IRS Form W-9 to
Escrow Agent, Escrow Agent shall keep the Deposit in a non-interest bearing
account. At such time as Buyer delivers such form to Escrow Agent, Escrow Agent
shall place and thereafter maintain the Deposit in an interest bearing account
reasonably satisfactory to both Parties. Escrow Agent shall not commingle the
Deposit with any other funds.
10.2 Interest. All interest on the Deposit shall become a part thereof
and accrue to the benefit of Buyer, unless the Deposit becomes payable to Seller
on account of a default by Buyer, in which case such interest shall be paid to
Seller.
10.3 Release of Deposit. In the event that Buyer does not exercise its
right to terminate this Agreement at the end of the Study Period pursuant to
Section 6.6, then [*]of the Deposit shall become nonrefundable to the Buyer,
subject to Section 17.2, and shall be released to the Seller within two (2)
business days thereafter. In the event that the Buyer has not exercised its
right to terminate this Agreement pursuant to Section 6.7, at the end of the
first 45 days of the Approval Period an additional [*] of the Deposit shall
become nonrefundable to Buyer, subject to Section 17.2, and shall be released to
Seller within two (2) business days thereafter. In the event that the Buyer does
not exercise its right to terminate this Agreement at
[*] Indicates that information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a request for confidential
treatment.
18
the end of the initial 90-day Approval Period pursuant to Section 6.7, then the
remaining [*] of the Deposit shall become nonrefundable to Buyer, subject to
Section 17.2, and shall be released to Seller within two (2) business days
thereafter. In the event that the Buyer has extended the term of the Approval
Period pursuant to Section 6.7 the [*] payments to extend the Approval Period
are nonrefundable to Buyer, subject to Section 17.2, and shall be paid directly
to Seller.
10.4 Credit Upon Closing. If the Closing takes place in accordance
with the provisions, terms and conditions of this Agreement, Escrow Agent shall
deliver and pay any remaining Deposit (including accrued interest thereon) to
Seller and shall credit the amount so delivered (including said accrued
interest) against the Purchase Price due from Buyer.
10.5 Termination, Default. If this Agreement is terminated in
accordance with the terms and conditions hereof, or if the Closing does not take
place due to the failure of either Party to comply with its obligations
hereunder, the Deposit (including the accrued interest thereon) shall be paid to
the Party entitled thereto in accordance with the provisions hereof. In either
such event, upon receipt of a written demand from either Party claiming the
Deposit, Escrow Agent shall immediately send written notice to the other Party
informing it that Escrow Agent has received such demand and including a copy
thereof. Such other Party shall then have ten days to respond to said demand. If
such Party does not give notice back to Escrow Agent within said ten days that
it objects, then Escrow Agent shall pay the Deposit to the demanding Party.
Escrow Agent shall then be released and discharged from any further obligation
with respect to the Deposit. If such Party does so object within said ten days,
Escrow Agent shall not release the Deposit to either party but rather shall
continue to hold the same until it receives either (a) written instructions from
both Buyer and Seller or (b) a final court order, decree or judgment which is
not subject to further appeal, to pay the Deposit to a particular Party or what
other disposition is to be made thereof. Escrow Agent shall then pay the Deposit
in accordance with such instructions, order, decree or judgment.
10.6 Interpleader. In the event of any dispute or controversy
regarding the Deposit, unless Escrow Agent receives written instructions signed
by both Parties directing the disposition of the Deposit, Escrow Agent shall not
take any action, but rather shall continue to hold the Deposit awaiting the
results of any proceeding related thereto. In the alternative, at Escrow Agent's
option, Escrow Agent may interplead all the Parties and transfer the Deposit to
a court of competent jurisdiction. The Parties shall reimburse Escrow Agent for
its court costs and reasonable attorneys fees and expenses in connection
therewith, and shall be jointly and severally liable to Escrow Agent therefor
(though as between the Parties, the one losing in such action shall be
responsible for such costs and shall reimburse the other for any payments made
to Escrow Agent on account thereof).
ARTICLE 11
Conditions to Seller's Obligation to Close
11.1 Conditions. The obligation of Seller to consummate and close the
transaction described herein is contingent upon the following (the "Conditions
to Seller's Obligation to Close"):
[*] Indicates that information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a request for confidential
treatment.
19
11.1.1 Buyer's Representations and Warranties. Buyer's
Representations and Warranties remain true and correct in all material respects
as of the Closing Date. Buyer has delivered to the Escrow Agent a Buyer's
Representation Update Certificate as required by Section 4.2, and said
certificate indicates that such is the case.
11.1.2 Purchase Price. Buyer shall have paid the Purchase Price,
less the Deposit and plus or minus applicable Apportionments and Adjustments
pursuant to Article 16, to the Escrow Agent by the Closing Date as required by
Section 14.1.
11.1.3 Buyer's Closing Costs. Buyer shall have deposited such
additional funds with the Escrow Agent as are necessary to cover Buyer's closing
costs, as required by Sections 14.2 and 16.6.
11.1.4 Deliveries into Escrow. Buyer shall have delivered and
paid to Escrow Agent all other Buyer's Closing Documents and Payments required
by Article 14.
11.2 Failure of Conditions - Termination. In the event that Buyer
fails to satisfy any of the Conditions to Seller's Obligation to Closing by the
Closing Date, then, provided Seller is not itself in default hereunder, Seller
may terminate this Agreement by notice to Buyer on or before said date or at the
Closing itself. If Seller does so, the Deposit shall be paid to Seller as
liquidated damages, and neither party shall have any further rights, obligations
or liabilities hereunder, except only that Buyer shall, to the extent it has not
yet done so, repair and restore any damage or disturbance to the Property caused
by its entries thereon for Due Diligence Investigations as required by Section
6.4, and Buyer's indemnify to Seller under said Section with respect to such
entries shall survive such termination. Seller and Buyer shall each promptly
deliver written instructions to Escrow Agent directing it to pay the Deposit to
Seller as aforesaid.
11.3 Waiver of Failed Condition. In the alternative, Seller may, at
its option in its sole discretion, elect to waive the unsatisfied condition or
conditions and to close notwithstanding the same. In such event, the Parties
shall proceed to close, and Buyer shall have no liability to Seller with respect
to such unperformed condition or conditions.
ARTICLE 12
Condition to Buyer's Obligation to Close
12.1 Conditions. The obligation of Buyer to consummate and close the
transaction contemplated herein is contingent upon the following (the
"Conditions to Buyer's Obligation to Close"), noting, however, that the Buyer
has and shall have no obligation to Close:
12.1.1 Seller's Representations and Warranties. Seller's
Representations and Warranties remain true and correct in all material respects
as of the Closing Date. Seller has delivered to Escrow Agent a Seller's
Representation Update Certificate as required by Section 3.2, and said
certificate indicates that such is the case.
[*] Indicates that information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a request for confidential
treatment.
20
12.1.2 Performance. Seller shall have performed, observed and
complied with all material obligations hereunder required to be performed by the
Closing, including without limitation delivery of Seller's Property
Documentation to Buyer and compliance with and performance of Seller's
Pre-Closing Covenants.
12.1.3 Condition of Property. There shall have been no material
adverse change in the physical condition of the Property since the Date of this
Agreement, excepting damage or disturbance to the Property caused by Buyer or
its agents during as a result of Due Diligence Investigations.
12.1.4 Due Diligence Matters. There shall have been no material
adverse change in any Due Diligence Matters with respect to the Property since
the Due Diligence Baseline Date.
12.1.5 Condition of Title. There shall have been no material
adverse change in any Title Matters with respect to the Property since the Title
Examination Baseline Date, other than (a) Permitted Encumbrances or (b)
non-permitted Monetary and/or Mon-Monetary Encumbrances and Exceptions which
Seller shall discharge, terminate, remove or cure pursuant to Section 12.1.6
below.
12.1.6 Encumbrances. Seller shall have discharged, terminated,
removed or cured (a) all Monetary Encumbrances and Non-Monetary Encumbrances and
Exceptions reported in Buyer's Title Objection Notice to Seller pursuant to
Article 7 and (b) all such encumbrances and exceptions, other than Permitted
Exceptions, arising after the Title Examination Baseline Date, or shall do so at
the Closing. The Purchase Price, after all Apportionments and Adjustments
thereto pursuant to Article 16, shall be sufficient to pay off all such Monetary
Encumbrances being discharged at the Closing.
12.1.7 Title Insurance. The Title Company is prepared to issue a
Title Insurance Policy to Buyer for the Property at commercially customary rates
consistent with the Title Insurance Commitment and without exception for the
Monetary Encumbrances and Non-Monetary Encumbrances and Exceptions which were
listed in Buyer's Title Objections Notice.
12.1.8 Casualty. Intentionally deleted.
12.1.9 Taking. There has been no condemnation or taking by
eminent domain of any material part of the Property.
12.1.10 Deed. Seller shall have deposited a properly executed
Deed conveying the Property to Buyer, the form of which shall be agreed to by
the parties at or prior to the Study Deadline, to the Escrow Agent as required
by Section 13.1.
12.1.11 Other Deliveries into Escrow. Seller shall have delivered
to Escrow Agent all other Seller's Closing Documents required by Article 13.
[*] Indicates that information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a request for confidential
treatment.
21
12.1.12 Possession. Seller delivers possession of the Property to
Buyer at Closing in substantially the same condition as it is in on the Date of
this Agreement, free and clear of all tenants and occupants and free from all
debris, trash, discarded materials, and other personal property not subject of
this Agreement.
12.1.13 Approvals for Building Permit. Buyer shall have obtained
all prior Approvals for the issuance of a full building permit, with all appeal
periods having expired, for the Proposed Use of the Property.
12.1.14 Board Approval. Intentionally deleted.
12.2 Failure of Conditions - Termination. In the event that Seller
fails to satisfy or cause to be satisfied any of the Conditions to Buyer's
Obligation to Close by the Closing Date, then, provided Buyer is not itself in
material default hereunder, Buyer may terminate this Agreement by notice to
Seller before or at the Closing. If Buyer does so, the remaining undisbursed
balance of the Deposit, if any, shall be refunded to Buyer, and neither party
shall have any further rights, obligations or liabilities hereunder, except only
that Buyer shall, to the extent it has not yet done so, repair and restore any
damage or disturbance to the Property caused by its entries thereon for Due
Diligence Investigations as required by Section 6.4, and Buyer's indemnity to
Seller under said Section with respect to such entries shall survive such
termination. Seller and Buyer shall each promptly deliver written instructions
to Escrow Agent directing it to pay the Deposit to Buyer as aforesaid.
12.3 Waiver of Failed Condition. In the alternative, Buyer may, at its
option in its sole discretion, elect to waive the unsatisfied condition or
conditions and close notwithstanding the same. In such event, the Parties shall
proceed to close, and the Purchase Price shall be paid without adjustment, and
Seller shall have no liability to Buyer with respect to the unperformed
condition or conditions.
ARTICLE 13
Seller's Closing Documents
On or before the Closing Date, Seller shall deliver the following in escrow
to the Escrow Agent and simultaneously provide copies thereof to Buyer (the
"Seller's Closing Documents"):
13.1 Deed. A Deed duly executed and acknowledged by Seller conveying
the Real Property to Buyer, the form of which shall be agreed to by the parties
at or prior to the Study Deadline.
13.2 Representation Update Certificate. A Seller's Representation
Update Certificate duly executed by Seller substantially in the form of Schedule
SU attached hereto, indicating that all of Seller's Representations remain true
and correct as of the Closing Date, except only as stated to the contrary in
such certificate.
[*] Indicates that information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a request for confidential
treatment.
22
13.3 Discharges of Title Encumbrances. Instruments in recordable form
executed and acknowledged by the appropriate parties discharging, releasing,
terminating, removing or curing all Monetary Encumbrances and Non-Monetary
Encumbrances and Exceptions reported in Buyer's Title Objection Notice to Seller
pursuant to Article 7, or arising since the Title Examination Baseline Date
(other than Permitted Encumbrances). In the case of mortgages held by recognized
institutional lenders which will be discharged out of the Closing Funds, Seller
may in the alternative deliver written so-called payoff letters or instructions
from such holders (a) setting forth the amount due as of the Closing Date with a
per diem, (b) providing wiring instructions for payment of such amount to the
holder, (c) confirming that the holder will execute and deliver discharges of
such mortgage and all related collateral documents in commercially reasonable
form to Escrow Agent upon receipt of good funds for such amount and (d)
otherwise reasonably acceptable to Escrow Agent and Buyer in form and substance.
13.4 Mechanics Lien and Parties in Possession Affidavit Indemnity.
Such affidavit and/or indemnity as the Title Company shall require in accordance
with customary practice in order to issue, without any extra charge, the Title
Insurance Policy for the Property without exceptions for unrecorded or unfiled
mechanic's or materialmen's liens or rights of parties in possession.
13.5 Other Title Clearing Instruments. Any other instruments
commercially and customarily required by the Title Insurance Commitment as
necessary for issuance of a Title Insurance Policy for the Property in
accordance therewith.
13.6 Non-Foreign Affidavit. An affidavit of Seller's non-foreign
status as required by the Foreign Investment in Real Property Tax Act, Section
1445 of the Internal Revenue Code, substantially in the form attached hereto as
Schedule NF.
13.7 Subdivision Plan. The final Subdivision Plan in recordable form.
13.8 Other Documents. Any other instruments and documents reasonably
required from Seller to effectuate this Agreement and the transaction
contemplated hereby and Buyer's intended use, provided that the same are
consistent with this Agreement.
ARTICLE 14
Buyer's Closing Documents and Payments
On or before the Closing Date, Buyer shall deliver the following in escrow
to the Escrow Agent and simultaneously provide a copy thereof (or in the case of
funds, notice that such funds have been so delivered) to Seller (the "Buyer's
Closing Documents and Payments"):
14.1 Purchase Price. The Purchase Price, minus the Deposit and plus or
minus the applicable Closing Apportionments and Adjustments, in immediate, same
day federal funds wired for credit into Escrow Agent's escrow account.
[*] Indicates that information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a request for confidential
treatment.
23
14.2 Buyer's Closing Costs. Such additional amounts as are necessary
to cover Buyer's closing costs pursuant to Section 16.6, again in immediate,
same day federal funds wired for credit into Escrow Agent's escrow account.
14.3 Representation Update Certificate. A Buyer's Representation
Update Certificate duly executed by Buyer substantially in the form of Schedule
BU attached hereto, indicating that all of Buyer's Representations remain true
and correct as of the Closing Date, except only as stated to the contract in
such certificate.
14.4 Other Documents. Any other instruments and documents reasonably
required from Buyer to effectuate this Agreement and the transaction
contemplated hereby and Buyer's intended use, provided that the same are
consistent with this Agreement.
ARTICLE 15
Closing
15.1 Date, Time, Place. The Closing of the transaction described
herein shall occur on the Closing Date at 10:00 a.m. at the offices of Xxxxx
Xxxxxxx LLP, 000 Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000.
15.2 Conveyance. Seller shall convey to Buyer at the Closing by good
and clear record and marketable title to the Property, and otherwise in
accordance with Article 7 hereof, by delivery of the Deed and other Seller's
Closing Documents through the escrow arrangements specified in this Article 15.
Seller shall further deliver to Buyer at the Closing possession of the Property
in substantially the same condition as it is in on the Date of this Agreement,
free and clear of all tenants and occupants, again through said escrow
arrangements, and excepting damage or disturbance to the Property caused by
Buyer' entries thereon for Due Diligence Investigations.
15.3 Payment. Buyer shall pay Seller the Purchase Price for the
Property at the Closing, as adjusted pursuant to Article 16, though the escrow
arrangements specified in this Article 15.
15.4 Parties' Deliveries. Seller and Buyer shall each deliver their
respective Closing Documents and (in Buyer's case) Payments specified in
Articles 13 and 14 to Escrow Agent at or before Closing. Escrow Agent shall hold
the Closing Documents and Funds in escrow until the requirements for release
specified in the Escrow Instructions provided for below and in the Closing
Escrow Instructions have been satisfied.
15.5 Settlement. Credits and charges shall be made for the Closing
Apportionments and Adjustments specified in Article 16, and the net payable by
Buyer shall be adjusted accordingly. Upon release from escrow, the Closing Funds
shall be applied first to closing costs and discharge of all outstanding
Monetary Encumbrances against the Property, before the payment of the final
balance to Seller. The Parties shall mutually execute a Closing
[*] Indicates that information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a request for confidential
treatment.
24
Settlement Statement in triplicate calculating and memorializing the foregoing,
and shall deposit the same with Escrow Agent.
15.6 Closing Escrow Instructions. Upon deposit of all of the foregoing
with Escrow Agent, the Parties shall mutually issue written instructions (the
"Closing Escrow Instructions") to the Escrow Agent directing the latter as
follows:
15.6.1 Title Rundown. To complete a final title rundown from the
effective date and time of the Title Insurance Commitment.
15.6.2 Recording, Release from Escrow. If such rundown shows no
additional encumbrances or exceptions to title to the Property, (a) to record
the Deed and such other of the Closing Documents as are to be recorded to
effectuate the transaction hereunder, (b) to distribute to each Buyer and Seller
the Closing Documents running to them and (c) to pay and distribute the Closing
Funds in accordance with the Closing Settlement Statement (first to closing
costs and discharge of Monetary Encumbrances specified therein, before payment
of the remainder to Seller).
15.6.3 Suspension. If such rundown does show additional
encumbrances as exceptions to title, (a) to refrain from recording, (b)
immediately to inform both Seller and Buyer of such fact and (c) to proceed in
accordance with further written instructions executed by both Seller and Buyer.
If no such instructions are received by Escrow Agent within three business days,
to then return Seller's Closing Documents to Seller and Buyer's Closing
Documents and Payments to Buyer.
15.7 Completion. Escrow Agent shall then proceed in conformance with
the Closing Escrow Instructions and the Closing shall be completed, or if
applicable suspended, in accordance therewith.
15.8 Title Rundown and Recording Report. If the Escrow Agent is a
different party than the Title Company, Escrow Agent shall promptly prepare and
deliver a written report or certification on its title rundown and document
recordings to the Title Company, sufficient so that the latter may issue the
Title Insurance Policy to Buyer based thereon.
15.9 Discharges. To the extent that any Monetary Encumbrances are
being paid out of the Purchase Price on the basis of payoff letters or similar
arrangements without actual discharges being delivered to the Escrow Agent at or
before the Closing, Escrow Agent shall pay the holders thereof the balances due
to them out of the Closing Funds, deposited with said Agent, in accordance with
such payoff letters and the Closing Settlement Statement. Escrow Agent shall
then obtain discharge instruments for such encumbrances, in recordable form and
shall promptly record such discharge instruments. If the Escrow Agent is a
different party than the Title Company, Escrow Agent shall promptly report such
recordings to the Title Company.
[*] Indicates that information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a request for confidential
treatment.
25
ARTICLE 16
Apportionments, Costs and Adjustments
16.1 Apportionments and Adjustments. The various items described in
Section 16.2 below shall be apportioned, paid, debited and credited in the
manner indicated, and the net Closing Funds due Seller calculated accordingly
(the "Closing Apportionments and Adjustments" or "Apportionments and
Adjustments"). The Closing Settlement Statement shall reflect such
Apportionments and Adjustments.
16.2 Apportionment of Costs and Charges. The following items shall be
charged to Seller to the extent applicable to the period up to and including the
Closing Date, and if unpaid at Closing, Buyer shall receive a credit therefor.
Such items shall be charged to Buyer to the extent applicable to the period
after the Closing Date, and if already paid prior to Closing, Seller shall
received a credit therefor:
16.2.1 Taxes and Assessments. Real estate taxes, assessments and
any other governmental charges against the Property.
16.2.2 Utilities. Charges for water, sewer, electricity, gas and
other utilities consumed at the Property, for which special meter readings and
xxxxxxxx as of the Closing Date cannot be obtained pursuant to Section 16.6.
16.3 Seller's Closing Costs. Escrow Agent shall pay the following
costs out for the Closing Funds and debit the Seller therefor: (a) any deed,
document, transfer, sales, gross receipts, compensations, excise or similar
taxes and governmental fees imposed in connection with the transaction
contemplated by this Agreement, (b) fees for recording any instruments necessary
to discharge, terminate, release or remove any Monetary Encumbrances and/or
Non-Monetary Encumbrances and Exceptions to title pursuant hereto, (c)
commissions due to the Seller's Broker for the transaction hereunder and (d)
one-half of Escrow Agent's fees.
16.4 Buyer's Closing Costs. Escrow Agent shall pay the following costs
out of the Closing Funds and debit the Buyer therefor: (a) cost of recording the
Deed and any of the other conveyancing instruments (other than those charged to
Seller pursuant to Section 16.5 to discharge title encumbrances) and (b)
one-half of Escrow Agent's fee. Buyer shall deposit funds for the same with
Escrow Agent above and beyond its payment of the Purchase Price.
16.5 Discharge of Monetary Encumbrances. Amounts necessary to
discharge any Monetary Encumbrance against the Property shall be paid by the
Escrow Agent to the holders thereof and debited against Seller. Escrow Agent
shall obtain discharges of such encumbrances from said holders upon such payment
and record the same as provided in Section 15.9.
[*] Indicates that information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a request for confidential
treatment.
26
16.6 Utility Meter Readings. Utilities which will (a) make a special
meter reading on or close to the Closing Date and a final billing to Seller
through such date and (b) not charge or be entitled to charge Buyer or lien the
Property if Seller fails to pay such final billing, shall be closed out to
Seller through such final billing process rather than apportioned. Seller shall
arrange for such meter readings and xxxxxxxx by such utilities and shall pay all
such xxxxxxxx by the dates due. Buyer shall have such utilities transferred to
its name for service after the Closing. Charges for utilities not meeting the
foregoing criteria shall be apportioned as provided in Section 16.2.2.
16.7 Estimates. If definite amounts cannot be obtained as of the
Closing for any items being apportioned, then the same shall be apportioned at
Closing based on the best estimates that then can be made (using the most recent
bills where available). Such items shall then be re-apportioned as soon as
reasonably possible after definite amount are available, and the Party owing any
deficiency or having received any overpayment shall pay the necessary adjustment
to the other.
16.8 Title Insurance Costs. Buyer shall separately pay the Title
Company for any title examination costs and premiums for the Title Policy.
ARTICLE 17
Default
17.1 Buyer Default. In the event that Buyer defaults in the
performance of its obligations under this Agreement, then Seller, as its sole
and exclusive remedy, shall receive the Deposit as liquidated damages for such
default, in lieu of all other rights and claims of Seller with respect thereto
and as full compensation and in complete satisfaction of any damages suffered by
Seller on account thereof. Upon Seller's receipt of such Deposit, this Agreement
shall terminate and the Parties shall be relieved of all further obligations
hereunder, except only that Buyer shall, to the extent it has not yet done so,
repair and restore any damage or disturbance to the Property covered by its
entries thereon for Due Diligence Investigations as required by Section 6.4, and
Buyer's indemnity to Seller under said Section with respect to such entries
shall survive such termination. Buyer and Seller acknowledge that the damages to
Seller on account of Buyer's default would be difficult, if not impossible, to
ascertain with any accuracy, and that the liquidated damage amount set forth in
this Section represents both Parties' best efforts to approximate such potential
damages and are not, in any event, a penalty.
17.2 Seller Default. In the event that Seller defaults in the
performance of its obligations under this Agreement, then Buyer may pursue any
one, several or all of the following remedies which may be applicable:
17.2.1 Termination, Return of Deposit. Buyer may terminate this
Agreement by written notice to Seller and Escrow Agent. The full Deposit shall
then be returned to Buyer, and upon Buyer's receipt thereof this Agreement shall
terminate and the Parties shall be relieved of all further obligations
hereunder, except only that Buyer shall, to the extent it has not yet done so,
repair and restore any damage or disturbance to the Property caused by its
[*] Indicates that information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a request for confidential
treatment.
27
entries thereon for Due Diligence Investigations as required by Section 6.4, and
Buyer's indemnity to Seller under said Section with respect to such entries
shall survive such termination. In addition, and notwithstanding anything else
in this Agreement to the contrary, Seller shall be obligated to reimburse Buyer
for all of its third party expenses incurred and related to the transaction as
set forth herein, up to [*], within ten (10) days of Seller's receipt of a
notice from Buyer setting forth the total of all such expenses.
17.2.2 Specific Performance. Buyer may enforce specific
performance of this Agreement against Seller.
17.2.3 Intentionally omitted.
ARTICLE 18
Escrow Agent
18.1 No Duties Except as Expressly Stated. Escrow Agent shall have
only those duties and obligations as are expressly set forth in this Agreement
and as set forth in Schedule EA. No implied duties or obligations shall be read
into this Agreement against Escrow Agent. Except as explicitly stated herein and
as set forth in Schedule EA, Escrow Agent shall be under no obligation to refer
to any other documents between or among Buyer and Seller or otherwise related to
the Property or the transaction contemplated hereunder.
18.2 Limitation on Liability. Escrow Agent shall not be liable to
either Party or any other person on account of any error of judgment, any act
done or stop taken or omitted in good faith, any mistake of fact or law, or
anything else Escrow Agent may do or refrain from doing in connection herewith,
unless caused by or arising out of actual and intentional misconduct, willful
disregard of this Agreement or gross negligence on the part of the Escrow Agent.
18.3 Reliance on Documents. Escrow Agent shall be entitled to rely,
and shall not be subject to any liability in acting in reliance, upon any
writing furnished to Escrow Agent by either Party, and shall be entitled to
treat as genuine and as the document which it purports to be, any letter, paper
or other document furnished to Escrow Agent in connection with this Agreement.
Escrow Agent further may rely on any affidavit of either Party or any other
person as to the existence and accuracy of any facts stated therein to be known
by the affiant.
18.4 Disputes; Interpleader. In the event of any disagreement between
Buyer and Seller resulting in adverse claims and demands being made with respect
to the Deposit, any other funds and/or the documents held in escrow, Escrow
Agent shall be entitled, at its option, to refuse to comply with the claims or
demands of either Party until such disagreement is finally resolved either (a)
by a court of competent jurisdiction or (b) by an arbitrator in the event that
the Parties decide to submit the dispute to arbitration, and in doing so, Escrow
Agent shall not be or become liable to either Party or any other party. In such
regard, Escrow Agent may, but shall not be obligated to, interplead the Parties
and any other claimants and transfer the Deposit and such funds and documents to
a court of competent jurisdiction.
[*] Indicates that information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a request for confidential
treatment.
28
18.5 Costs. Each Party shall reimburse Escrow Agent for one-half of
the costs incurred by it in carrying out its functions and duties hereunder,
except that in the case of a dispute pursuant to Section 18.4, the
non-prevailing Party shall bay all of Escrow Agent's costs in connection
therewith.
18.6 Indemnity. Buyer and Seller shall jointly and severally defend,
indemnify and hold Escrow Agent harmless from and against any and all losses,
liabilities, damages, costs, expenses or claims incurred by Escrow Agent in the
performance of its duties under this Agreement, except only to the extent caused
by the Escrow Agent's intentional misconduct, bad faith, willful disregard of
its obligations hereunder or gross negligence. As between themselves, each Party
shall be responsible for one-half of the total costs incurred in connection with
such indemnity, and each shall have the right of contribution from the other to
the extent necessary to achieve such allocation.
18.7 Title Company as Escrow Agent. The Title Company has agreed to
serve as Escrow Agent hereunder.
ARTICLE 19
Miscellaneous
19.1 Assignability. Neither Party may assign, encumber or otherwise
transfer this Agreement, whether voluntarily or involuntarily, by operation of
law or otherwise, without the prior written consent of the other Party, which
consent shall not be unreasonably withheld, conditioned, or delayed, except only
that either party may assign this Agreement to an Affiliate, but in such event
the assigning party shall remain fully liable for performance of all of its
obligations hereunder jointly and severally with such Affiliate. The Buyer shall
give the Seller prompt written notice of any such assignment to an Affiliate.
19.2 Construction of Roadway and Improvements. Within twelve (12)
months of the later of (i) the receipt of all required approvals from the
MassHighway Department and all other relevant entities for the modification of
the intersection forming the entrance to Xxxxx Xxxx Xxxx xxxx Xxxxx Xxxx Xxxxxx
as shown on Schedule RI attached hereto or (ii) the Closing, the Seller shall
construct the reconfigured roadway and curbing (the "Roadway Improvements")
provided the cost of construction of such Roadway Improvements does not exceed
[*]. Seller covenants and agrees to diligently pursue and obtain all required
approvals and commence construction.
If the cost to construct the Roadway Improvements will exceed [*] and
should the Buyer elect to have the Roadway Improvements performed, then upon the
Buyer's request, Seller shall promptly commence construction on the Roadway
Improvements and Seller shall pay the first [*] of the construction costs (as
calculated above) and the Buyer shall pay the balance of the expenses, provided
that before Seller starts construction, the Parties agree in writing to the
final cost of the Roadway Improvements.
[*] Indicates that information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a request for confidential
treatment.
29
Notwithstanding the foregoing, should the Roadway Improvements be subject
to a governmental funding program for some or all of the costs associated with
such construction, the Seller shall only be obligated to pay for that portion of
the construction costs that exceed such funding up to [*] (as calculated above).
The Parties agree to cooperate and use diligent efforts to obtain such funding
on a timely basis. This Section 19.2 shall survive the Closing.
19.3 Access. In the event Buyer seeks to have the portion of the
roadway providing access to the Property designated by the Town of Freetown as
Ridge Hill Road (if not already so designated), then the Seller agrees to
support such change in street name designation. Upon the request of Seller, the
Buyer shall grant a license to the owner of record of Lot 2, which is adjacent
to the Property, for the placement of a directional sign on the Property along
Xxxxxxxxxx Drive. The placement and appearance of such sign shall be subject to
the reasonable approval of the Buyer. This Section 19.3 shall survive the
Closing.
19.4 Confidentiality; No Recording. The Parties shall treat this
Agreement as confidential and shall not disclose the existence of this Agreement
or the terms hereof to third parties without the prior written consent of the
each Party, except to the extent required with respect to consultants or counsel
performing services to either Party in furtherance of the transactions
contemplated herein or as may be required by law for Buyer's compliance with SEC
and other regulations. Notwithstanding the foregoing, Buyer may record a Notice
of Option relating to the Option Parcel, provided that at Closing Buyer shall
also deliver a Release of Option to Escrow Agent, which shall be held in escrow
under separate agreement that shall provide in substance that the Release of
Option may be released by Escrow Agent on the next business day following the
termination of the Option Period and recorded by Seller if Buyer does not elect
to exercise its rights to the Option Parcel prior to the expiration of the
Option Period or if Buyer fails to acquire the Option Parcel within ninety (90)
days of exercising Buyer's option to purchase the Option Parcel, provided such
failure to acquire the Option Parcel is not caused by Seller's bad faith or
default. Buyer also agrees that in the event of a transfer of ownership of the
company, if reasonably necessary and upon written demand by Seller, during the
Option Period Buyer shall replace the Release of Option to reflect a change in
corporate structure or name. Notwithstanding anything to the contrary herein
contained, the parties agree to include any costs or fees by Escrow Agent in the
amounts to be split in accordance with Section 18.5 above.
19.5 Time of Essence. Time is of the essence of this Agreement.
19.6 Survival. Ay representations, warranties, covenants, agreements
and undertakings of Buyer or Seller hereunder which are specifically stated to
survive the Closing, or which are by their terms explicitly to be performed
after the Closing, shall so survive for a period of one (1) year. All other
representations, warranties, covenants, agreements and undertakings of either
Party shall merge into the Deed and shall not survive the Closing.
19.7 Notices. All notices and other communications required or
permitted hereunder shall be in writing and sent if to Seller to the Seller's
Notice Address, if to Buyer to the Buyer's Notice Address and if to Escrow Agent
to the Escrow Agent's Notice Address set forth in Section 1.1, or to such
address as to which any such party may hereafter designate by notice to the
others given as required hereby. Any such notice or communication shall be given
either (a) by registered or certified mail, postage prepaid and return receipt
requested or (b) by
[*] Indicates that information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a request for confidential
treatment.
30
overnight delivery using a nationally recognized overnight courier which
provides a receipt to sender. Such notices and communications shall be deemed
delivered and effective when received or refused by the recipient.
19.8 Attorney's Fees. In the event of any action by either Party to
enforce this Agreement in a court of competent jurisdiction or, where the
Parties agree thereto, by arbitration, the Party which does not prevail shall
reimburse the Party which does for the reasonable attorney's fees and expenses
and court or arbitration costs incurred by the latter in connection therewith.
19.9 Construction. The Parties acknowledge that they and their
respective counsel have all reviewed and participated in making revisions to
this Agreement. Accordingly, the rule of resolving ambiguities against the
drafting party shall not be employed in the interpretation hereof.
19.10 Calculation of Time Periods. If the day specified hereunder for
any event or the last day of any period of time provided for hereunder shall be
a Saturday, Sunday, legal holiday for national banks in the location where the
Property is located or day on which the registry of deeds or recorder's office
with jurisdiction over the Property is closed, such day or period shall be
extended to the next day which is none of the foregoing. The last day or period
of time provided for hereunder shall be deemed to end at 5:00 pm in the location
where the Property is located.
19.11 No Third Party Beneficiaries. This Agreement is not intended to
give or confer any benefits, rights, privileges, claims, actions or remedies to
any person or entity other than the Parties hereto and, to the extent provided
herein, the Escrow Agent hereunder.
19.12 Headings. The title of articles and the headings preceding text
of paragraphs and sub-paragraphs herein are for convenience of reference only
and shall not constitute a part of this Agreement, nor shall they affect its
meaning or construction.
19.13 Schedules. All Schedules referred to herein and attached hereto
constitute part of this Agreement.
19.14 Draft Not Offer. The submission of a draft of this Agreement or
a summary of some or all of its provisions shall not constitute an offer to sell
or buy the Property, it being understood that neither Seller nor Buyer shall be
legally obligated with respect to such transaction until both Parties execute
and deliver this Agreement.
19.15 Invalidity of Provision. If any provision, term or condition of
this Agreement or the application thereof to any person or circumstances should
be declared invalid by the final ruling of a court of competent jurisdiction,
the remaining provisions, terms and conditions hereof and their application to
persons and circumstances shall not be affected thereby and shall continue to be
enforced and recognized as valid agreements of the Parties, and in the place of
such invalid or unenforceable provision, there shall be substituted a like but
valid provision which comports to the findings of such court and most nearly
accomplishes the original intention of the Parties.
[*] Indicates that information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a request for confidential
treatment.
31
19.16 Waiver. The waiver by either Party of the other's breach of any
provision, term or condition of this Agreement shall not be held or construed
(unless expressly so declared in writing) to impair the continuing obligation of
such provision, term or condition, nor, except as to the specific instance, to
permit similar acts or omissions by the other. The failure of either Party to
enforce against the other, or to insist on strict performance by the other of,
any provision, term or condition hereof shall not be deemed a waiver of the
other's default with respect thereto, nor a waiver of the first said Party's
right to enforce the same or any other provision, term or condition hereof in
the future.
19.17 Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original, and all of which together shall
constitute one and the same instrument.
19.18 Governing Law. This Agreement shall be governed by the laws of
the Commonwealth of Massachusetts.
19.19 Submission to Jurisdiction. To the fullest extent it may do so
under Applicable Law, each Party hereby knowingly, intentionally and
voluntarily, with and upon the advice of competent counsel, (a) submits to
personal jurisdiction in the state in which the Property is located with respect
to any action, suit or proceeding based upon, arising out of or in any way
relating to this Agreement, (b) agrees that such action, suit or proceeding may
be brought in any state or federal court of competent jurisdiction in said
state, (c) submits to the jurisdiction of such courts and (d) agrees that it
will not bring any action, suit or proceeding against the other Party with
respect to this Agreement in any other forum. Escrow Agent also agrees and
consents to the foregoing.
19.20 Successors and Assigns. Subject to the restrictions and
conditions upon assignability set forth herein, this Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective heirs,
executors, administrators, successors and assigns.
19.21 Entire Agreement. This Agreement (including the Schedules
attached hereto) constitute the entire agreement between the parties with
respect to the transaction described herein and supercedes any prior or
contemporaneous agreements, understandings, inducements and conditions, express
or implied, oral or written, in such regard, including without limitation any
term or proposal sheets or letters of intent. No verbal statements made by
anyone with respect to such transaction shall be construed as a part hereof
unless incorporated herein by writing. This Agreement may be amended, modified
or supplemented only by an instrument in writing executed and delivered by both
Parties, and if involving any provision relating to Escrow Agent, by it as well.
[No further text on this page. Signature page follows]
[*] Indicates that information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a request for confidential
treatment.
32
IN WITNESS WHEREOF, the Parties hereby have executed and delivered
this Agreement as of the Date of this Agreement set forth in the preamble
hereof.
Seller:
CAMPANELLI FREETOWN LAND, LLC
By: XXXXXXXXXX ASSOCIATES II
LIMITED PARTNERSHIP, Member
By: XXXXXXXXXX ASSOCIATES II
CORPORATION, General Partner
By: /s/ Xxxxxxx XxXxxxx
------------------------------------
Print Name: Xxxxxxx XxXxxxx
Print Title: Treasurer
Buyer:
BOSTON BEER CORPORATION
By: /s/ Xxxxxxxx X. Xxxx
------------------------------------
Print Name: Xxxxxxxx X. Xxxx
Print Title: Asst. Vice President
Escrow Agent hereby joins in the execution of this Agreement to acknowledge
its agreement and consent to the provisions hereof which relate to it.
Escrow Agent:
FIRST AMERICAN TITLE
INSURANCE COMPANY
By: /s/ Xx-Xxx Xxxxx
------------------------------------
Print Name: Xx-Xxx Xxxxx
Print Title: Underwriter
[*] Indicates that information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a request for confidential
treatment.
33
SCHEDULE DP
Legal Description of Property
The Northern portion, totaling 5.6 acres, of that certain parcel of
land shown as Lot 1 and those certain parcels of land shown as Xxx 0 xxx Xxxxxx
X xx Xxxxxxxx, Xxxxxxx Xxxxxx, Xxxxxxxxxxxxx, each of which are shown on a plan
entitled "Xxxxxxxxxx Business Park Xxxxxxxxxx Drive Freetown, Massachusetts
Sheet Title: Definitive Subdivision Plan of Land Sheet 2" prepared by Xxxxxxxx
Xxxxxxx Associates dated February 1, 2002 and revised April 22, 2002, recorded
with the Bristol Fall River District Registry of Deeds in Plan Book 125, Plan 4;
and that certain parcel shown as "Parcel F" on a plan entitled "Plan of Land
Parcels 'F' and 'G'" prepared by Xxxxxxxx Xxxxxxx Associates dated March 11,
2002, recorded with said Deeds in Plan Book 125, Plan 33.
[*] Indicates that information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a request for confidential
treatment.
34
SCHEDULE OP
Option Parcel
A certain parcel of land in Freetown, Massachusetts shown as "6.5 acres
+/-" on a plan entitled "Ravenbrook South Freetown, Massachusetts" dated May 15,
2006, prepared by Xxxxxxxx Associates, Inc., a copy of which is attached hereto.
Seller shall provide a plan of the Option Parcel in recordable form consistent
with the foregoing prior to the Closing.
[*] Indicates that information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a request for confidential
treatment.
[DRAWING NOT INCLUDED]
35
SCHEDULE BU
Form for Buyer's Representations Update Certificate
BUYER'S REPRESENTATIONS
UPDATE CERTIFICATE
CERTIFICATE made this ___ day of ____________, 20__ (the "Date of this
Certificate") by BOSTON BEER CORPORATION, a Massachusetts corporation with an
address of 00 Xxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 (the "Buyer"), to
and for the benefit of CAMPANELLI FREETOWN LAND, LLC, a Massachusetts limited
liability company with an address at Xxx Xxxxxxxxxx Xxxxx, Xxxxxxxxx,
Xxxxxxxxxxxxx 00000 (the "Seller").
Reference is made to the Purchase and Sale agreement dated July ___, 2006
between Buyer and Seller (the "Purchase and Sale Agreement") with respect to the
Land, as more particularly described therein (the "Property"). Pursuant to the
Purchase and Sale Agreement, Seller is conveying the Property to Buyer by a Deed
of even date herewith to be recorded in the Bristol Registry of Deeds.
Buyer hereby certifies to Seller that the Buyer's Representations, as
defined and set forth in the Purchase and Sale Agreement, remain true and
current as of the Date of this Certificate, and verifies and confirms said
representations [IF THERE ARE EXCEPTIONS ADD: "EXCEPT AS FOLLOWS" AND LIST
SAME.]
IN WITNESS WHEREOF, Buyer has executed and delivered this Certificate as of
the Date of this Certificate set forth in the preamble above.
Buyer:
BOSTON BEER CORPORATION
By:
------------------------------------
Print Name:
----------------------------
Print Title:
---------------------------
[*] Indicates that information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a request for confidential
treatment.
36
SCHEDULE DD
Form of Deed
[To be completed at or prior to Study Deadline]
[*] Indicates that information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a request for confidential
treatment.
37
SCHEDULE ED
Exceptions to Seller's Representations
None
[*] Indicates that information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a request for confidential
treatment.
38
SCHEDULE SU
Form of Seller's Representations Update Certificate
SELLER'S REPRESENTATIONS
UPDATE CERTIFICATE
CERTIFICATE made this ___ day of ____________, 20__ (the "Date of this
Certificate") by CAMPANELLI FREETOWN LAND, LLC, a Massachusetts limited
liability company with an address at Xxx Xxxxxxxxxx Xxxxx, Xxxxxxxxx,
Xxxxxxxxxxxxx 00000 (the "Seller"), to and for the benefit of BOSTON BEER
CORPORATION, a Massachusetts corporation with an address of 00 Xxxxxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000 (the "Buyer").
Reference is made to the Purchase and Sale agreement dated August __, 2006
between Buyer and Seller (the "Purchase and Sale Agreement") with respect to the
Land, as more particularly described therein (the "Property"). Pursuant to the
Purchase and Sale Agreement, Seller is conveying the Property to Buyer by a Deed
of even date herewith to be recorded in the Bristol Registry of Deeds.
Seller hereby certifies to Buyer that the Seller's Representations, as
defined and set forth in the Purchase and Sale Agreement, remain true and
current as of the Date of this Certificate, and verifies and confirms said
representations [IF THERE ARE EXCEPTIONS ADD: "EXCEPT AS FOLLOWS" AND LIST
SAME.]
IN WITNESS WHEREOF, Seller has executed and delivered this Certificate as
of the Date of this Certificate set forth in the preamble above.
Seller:
CAMPANELLI FREETOWN LAND, LLC
By: XXXXXXXXXX ASSOCIATES II
LIMITED PARTNERSHIP, Member
By: XXXXXXXXXX ASSOCIATES II
CORPORATION, General Partner
By:
------------------------------------
Print Name:
----------------------------
Print Title:
---------------------------
[*] Indicates that information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a request for confidential
treatment.
39
SCHEDULE NF
Form of Non-Foreign Affidavit
NON-FOREIGN CERTIFICATION
Section 1445 of the Internal Revenue Code provides that a transferee of a
U.S. real property 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 CAMPANELLI FREETOWN LAND, LLC, a
Massachusetts limited liability company (the "Transferor"), the undersigned
hereby certifies as follows:
1. Undersigned is the ________________ of Transferor.
2. Transferor is not a foreign corporation, foreign partnership, foreign
estate, foreign person or non-resident alien (as those terms are
defined in the Internal Revenue Code and Income Tax Regulations).
3. Transferor's U.S. employer identification number is
______________________.
4. Transferor's address is: Xxx Xxxxxxxxxx Xxxxx, Xxxxxxxxx,
Xxxxxxxxxxxxx 00000
The undersigned understands that this certification may be disclosed to the
Internal Revenue Service by transferee and that any false statement herein could
be punished by fine, imprisonment or both. The undersigned further understands
that transferee is relying on this certification in determining whether or not
withholding is required upon the subject transfer.
Under penalties of perjury, the undersigned declares that he/she has
examined this certification and to the best of his/her knowledge and belief it
is true, correct and complete, and he/she has the authority to sign this
document on behalf of Transferor.
IN WITNESS WHEREOF, the undersigned has executed and delivered this
certificate as of this ____ day of _________, 20___.
----------------------------------------
Print Name:
----------------------------
Title/Relationship to Transferor:
------
----------------------------------------
[*] Indicates that information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a request for confidential
treatment.
40
SCHEDULE RI
Roadway Improvements
(see attached)
[*] Indicates that information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a request for confidential
treatment.
[DRAWING NOT INCLUDED]
41
SCHEDULE EA
ESCROW AGREEMENT
ESCROW AGREEMENT
THIS ESCROW AGREEMENT ("Agreement") is made and entered into as of the 21st
day of July, 2006 by and among CAMPANELLI FREETOWN LAND, LLC, a Massachusetts
limited liability company with an address at Xxx Xxxxxxxxxx Xxxxx, Xxxxxxxxx,
Xxxxxxxxxxxxx 00000 (the "Seller"), BOSTON BEER CORPORATION, a Massachusetts
corporation with an address at 00 Xxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000
(the "Buyer"), and FIRST AMERICAN TITLE INSURANCE COMPANY, with an address of
Prudential Center, 000 Xxxxxxxxxx Xxxxxx, Xxxxxx, XX 00000 ("Escrow Agent").
Terms not otherwise defined herein shall have the same meaning as in the Letter
of Intent, hereinafter defined.
WHEREAS, Purchaser and Seller have entered into a Letter of Intent dated
June 26, 2006 (the "Letter of Intent") wherein Seller has agreed to sell and
Purchaser has agreed to buy certain premises consisting of approximately 52.68
acres, located on Ridge Hill/Xxxxxxxxxx Drive in Freetown, Massachusetts,
commonly known as lots 1A and 3A, subject to the terms and conditions set forth
in the Letter of Intent; and
WHEREAS, Purchaser and Seller have requested that Escrow Agent serve as
escrow agent with respect to any Deposits to be paid under the Letter of Intent,
including specifically the initial deposit in the amount of [*] and the
additional deposits as set forth in the Letter of Intent and as may be set forth
in the Purchase and Sale Agreement to be negotiated and potentially executed by
the parties (collectively, the "Deposits"); and
WHEREAS, Escrow Agent has agreed to be the escrow agent with respect to the
Deposits subject to and pursuant to the terms of this Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Purchaser, Seller, and Escrow Agent
agree as follows:
1. The Deposits are to be delivered to Escrow Agent pursuant to the terms
of the Letter of Intent and held by Escrow Agent in an interest
bearing account(s) subject to Purchaser and Seller delivering
completed and executed original W-9 forms to Escrow Agent.
2. In the event the Closing occurs, Escrow Agent shall deliver the
Deposits to Seller, together with the interest on the Deposits, which
Deposits and interest thereon shall be applied as otherwise provided
in the Letter of Intent.
3. In the event Seller becomes entitled to retain or receive the
Deposits, or a portion thereof, pursuant to the Letter of Intent,
Escrow Agent shall pay the same to Seller.
[*] Indicates that information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a request for confidential
treatment.
42
4. In the event Purchaser becomes entitled to the return of the Deposits,
or a portion thereof, pursuant to the Letter of Intent, Escrow Agent
shall pay the same to Purchaser.
5. If Seller or Purchaser in writing to Escrow Agent disputes any actions
to be taken by Escrow Agent in connection with the Deposits or if
Escrow Agent elects for any reason at its option, Escrow Agent may do
only one of the following:
A. Hold the funds in escrow until Escrow Agent is provided with
written instructions executed by both Purchaser and Seller
setting forth the manner in which the Deposits are to be
disbursed;
B. Choose a financial institution to act as the escrow agent
hereunder and resign as the escrow agent hereunder without
requiring any consent of Seller and Purchaser; or
C. File an interpleaded action in a court of competent jurisdiction
to resolve the dispute.
In the event Escrow Agent elects to file an interpleaded action as aforesaid,
Escrow Agent may request that the Court hold the Deposits and that Escrow Agent
permitted to resign as the escrow agent hereunder. Escrow Agent's elections of
one of the foregoing A, B or C shall not preclude the election of another choice
at a later date.
6. In the event Escrow Agent is made a party, in respect of the Deposits
or this Agreement, any court action or arbitration proceedings or any
other proceeding, Escrow Agent shall make no disposition of the
Deposits except as required by a court of competent jurisdiction.
7. Purchaser and Seller agree jointly and severally, to hold Escrow Agent
harmless from any and all losses, costs, damages, or expenses,
including attorneys' fees, which Escrow Agent may incur or become
liable to pay because of any court action, arbitration proceeding or
any other matter in relation to the Deposits or this Agreement.
Purchaser and Seller jointly and severally agree to assume liability
for and do hereby agree, jointly and severally, to indemnify, protect,
save and hold harmless Escrow Agent from and against any and all
liabilities, obligations, losses, costs, damages, claims, actions,
suits, and expenses of whatever kind or nature incurred, including
attorneys' fees, incurred by or asserted against Escrow Agent in any
way related to this Agreement or the Deposit, except for willful
misconduct or gross negligence of Escrow Agent. Purchase and Seller
agree the Escrow Agent shall not be liable for any loss or damage
resulting from (a) the delivery of the Deposit to a Bank, or (b) a
lack of authenticity, sufficiency or effectiveness of any document
delivered to Escrow Agent or the lack of any documents, and Escrow
Agent shall be under no duty to inquire as to facts or circumstances
recited in documents or to inquire as to the lack of documents or to
inquire as to the lack of documents. Nothing herein shall be construed
to modify the terms of the second sentence of Paragraph 1 above.
[*] Indicates that information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a request for confidential
treatment.
43
The duties and obligations of the Escrow Agent shall be determined
solely be the express provisions of this Escrow Agreement and no
implied duties or obligations shall be applied against the Escrow
Agent. The Escrow Agent shall not be liable to anyone by reason of any
error or judgment, or for any act done or step taken or omitted by the
Escrow Agent in good faith or for any mistake of fact or law or for
anything which the Escrow Agent may do or refrain from doing in
connection herewith unless caused by or arising out of the Escrow
Agent's intentional and willful misconduct.
8. All notices required or permitted to be given hereunder shall be in
writing and delivered by Federal Express or similar overnight carrier
or by daytime courier, by telecopy, or mailed postage prepaid by
certified mail, return receipt requested, addressed as follows:
If to Seller: Xxx Xxxxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxxxx XxXxxxx, Partner
with a copy to: Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxxxxxx X. Xxxxxxx, Esq.
If to Buyer: 00 Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxxxxx X. Xxxx
with a copy to: Xxxxx Peabody LLP
000 Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxx, Esq
If to Escrow Agent: First American Title Insurance Company
Prudential Center
000 Xxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn:
or to such other additional or different address or addresses as 30 days'
advance written notice thereof is given to the other party. Notice shall be
deemed delivered on the date received in the return receipt or on the date
delivered by courier or overnight carrier. The date of rejection or other
refusal to accept or the inability to deliver because of changed address of
which no notice was given shall be deemed to be the date to receipt of the
notice, demand or request sent.
The parties agree that notices maybe executed and/or delivered by counsel
on behalf of Seller and/or Purchaser.
[*] Indicates that information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a request for confidential
treatment.
44
9. This Agreement may not be modified, amended or altered in any way
except by a written agreement (which may be counterpart copies) signed
by Seller, Purchaser and Escrow Agent.
10. This Agreement is intended solely to supplement and implement the
provisions of the Letter of Intent and is not intended to modify,
amend or vary any of the rights or obligations of Purchaser or Seller
under the Letter of Intent.
Seller:
CAMPANELLI FREETOWN LAND, LLC
By: XXXXXXXXXX ASSOCIATES II
LIMITED PARTNERSHIP, Member
By: XXXXXXXXXX ASSOCIATES II
CORPORATION
By: /s/ Xxxxxxx Xx Xxxxx
------------------------------------
Print Name: Xxxxxxx XxXxxxx
Print Title: Treasurer
Buyer:
BOSTON BEER CORPORATION
By /s/ Xxxxxx X. Xxxxx
-------------------------------------
Print Name: Xxxxxx X. Xxxxx
Print Title: President & CEO
Escrow Agent:
FIRST AMERICAN TITLE INSURANCE COMPANY
By /s/ Xxxxxx X. Xxxxx
------------------------------------
Print Name: Xxxxxx X. Xxxxx
Print Title: Escrow Manager
[*] Indicates that information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a request for confidential
treatment.
45
SCHEDULE PD
Property Documents
XXXXXXXXXX BUSINESS PARK: FREETOWN, MA
Due Diligence Package - Table of Contents:
A. CIVIL ENGINEERING DOCUMENTS
1. CD: 2006 - 028 - Campanelli/Freetown "Site Plans from 1999-2005"
2. Printout of all Documents on the CD
B. WATER RESEARCH:
1. Results of Preliminary Groundwater Supply Investigation (Epsilon Associates
Inc.)
C. TESTING AND GEOTECHNICAL INFORMATION:
1. Preliminary Test Borings (GZA GeoEnvironmental, Inc.)
2. Preliminary Geotechnical Investigation & Report (CHG Geotechnical &
Environmental Consultants)
3. Phase I Environmental Site Assessment of 130 Acres of Undeveloped Land off
Ridge Hill Road in Freetown, MA (GZA GeoEnvironmental, Inc.)
4. Phase I Environmental Site Assessment of Former Assonet Sand and Gravel, 0
Xxxxx Xxxx Xxxx, Xxxxxxxx, XX (GZA GeoEnvironmental, Inc.)
5. Liquefaction Evaluation of the Freetown Business Park dated April 1, 2002
(GZA GeoEnvironmental, Inc.)
6. Flow Test Data for Jordan's Furniture, Freetown, MA dated September 17, 2001
(Environmental Fire Protection)
7. Flow Test Data for Xxxxxxxxxx Xxxxx, Xxxxxxxx, XX dated March 3, 2004
(Environmental Fire Protection)
8. Geodetic Map showing Freetown Site Location
9. Engineering Services Proposal for Sewer System Extension dated October 14,
2003
10. Tier Classification Report and Phase II Scope of Work dated June 15, 1999
Kaegael Environmental Inc.
11. Phase II Completion Report and Response Action Outcome Statement dated
September 29, 1999 Kaegael Environmental Inc.
D. SUBDIVISION PLANS
X. XXXXXXXXXX BUSINESS PARK OF FREETOWN/MBTA LAYOVER FACILITY EOEA #10509 LETTER
DATED NOVEMBER 27, 2001
F. NOTICE OF PROJECT CHANGE: NEW BEDFORD/FALL RIVER COMMUTER RAIL EXTENSION
[*] Indicates that information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a request for confidential
treatment.
46
G. 2006 REAL ESTATE TAX BILLS FOR PARCELS 4, 40, 41, AND 107
H. DEED FOR FREETOWN
Additional Items
1. Release of Mortgage recorded on April 19, 2006 at Bristol County Registry
of Deeds
2. Loan Policy issued by Chicago Title Insurance Company, Policy No.
2551-25097 dated March 25, 2005, containing 6 pages.
3. Private Sidetrack Agreement, Agreement No. NYC-043466 dated May 3, 2002
between CSX Transportation, Inc. and Campanelli Freetown, LLC.
4. Supplemental Sidetrack Agreement, Agreement No. NYC-043466-001, dated May
3, 2002 between and among CSX Transportation, Inc., Campanelli Freetown,
LLC, and Weyerhaeuser Company.
5. Phase I - Initial Site Assessment
6. MA DEP WPA Form 8B: Certificate of Compliance.
7. Site As-built Plans dated 9/3/02.
8. Plan of Acceptance of Xxxxxxxxxx Drive as a Public Way dated January 21,
2005.
9. Definitive Subdivision Plan for Xxxxxxxxxx Business Park dated February 1,
2002 and revised April 22, 2002.
[*] Indicates that information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a request for confidential
treatment.
47
