Exhibit 10.45
PURCHASE AGREEMENT
AND ESCROW INSTRUCTIONS
BETWEEN
PRINCETON-SACO, LLC
AS SELLER
AND
XXXX TAKEDOWN, LLC
AS BUYER
DECEMBER 6, 2005
PURCHASE AGREEMENT AND ESCROW INSTRUCTIONS
DATED: Dated to be effective as of December 6, 2005 (the "Effective Date").
PARTIES: This Purchase Agreement and Escrow Instructions is between
PRINCETON-SACO, LLC, a Maine limited liability company, as "Seller",
and XXXX TAKEDOWN, LLC, a Delaware limited liability company, as
"Buyer".
WHEREAS, as of the Effective Date, Seller is the fee title owner of that
certain improved property located at 000 Xxxx Xxxxxx, Xxxx, Maine, as legally
described on Exhibit A attached hereto (the "Real Property");
WHEREAS, as of the Effective Date, the Real Property is improved with a
building containing approximately 11,180 square feet (the "Building") which
Building is leased to Rite Aid of Maine, Inc. ("Tenant") in accordance with a
written lease (the "Lease"). The Real Property, the Building, the improvements
to the Real Property (the "Improvements"), the personal property, if any, of
Seller located on the Real Property and Seller's interest in the Lease and all
rents issued and profits due or to become due thereunder are hereinafter
collectively referred to as the "Property"; and
WHEREAS, Buyer desires to purchase the Property from Seller and Seller
desires to sell the Property to Buyer free and clear of all liens, all as more
particularly set forth in this Purchase Agreement and Escrow Instructions (the
"Agreement").
NOW THEREFORE, in consideration of the promises set forth in this Agreement
and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, Seller and Buyer (each, a "Party" and, collectively, the
"Parties") hereby agree as follows:
1. INCORPORATION OF RECITALS. All of the foregoing Recitals are hereby
incorporated as agreements of the Parties.
2. BINDING AGREEMENT. This Agreement constitutes a binding agreement
between Seller and Buyer for the sale and purchase of the Property subject to
the terms set forth in this Agreement. Subject to the limitations set forth in
this Agreement, this Agreement shall bind and inure to the benefit of the
Parties and their respective successors and assigns. This Agreement supersedes
all other written or verbal agreements between the Parties concerning any
transaction embodied in this Agreement. No claim of waiver or modification
concerning the provision of this Agreement shall be made against a Party unless
based upon a written instrument signed by such Party.
3. INCLUSIONS IN PROPERTY.
(a) The Property. The term "Property" shall also include the
following:
(1) all tenements, hereditaments and appurtenances pertaining to
the Real Property;
(2) all mineral, water and irrigation rights, if any, running
with or otherwise pertaining to the Real Property;
(3) all interest, if any, of Seller in any road adjoining the
Real Property;
(4) all interest, if any, of Seller in any award made or to be
made or settlement in lieu thereof for damage to the Property by reason of
condemnation, eminent domain or exercise of police power;
(5) all of Seller's interest in the Building, the Improvements
and any other improvements and fixtures on the Real Property;
(6) the Lease and security deposit, if any, now or hereafter due
thereunder;
(7) all of Seller's interest, if any, in any equipment, machinery
and personal property on or used in connection with the Real Property (the
"Personalty"); and
(8) all of Seller's interest, to the extent transferable, in all
permits, licenses, warranties, contractual rights and intangibles (including
rights to the name of the Improvements as well as architectural/engineering
plans) with respect to the operation, maintenance, repair or improvement of the
Property (collectively, the "Contracts").
(b) The Transfer Documents. Except for the Personalty, which shall be
transferred by that certain xxxx of sale from Seller to Buyer, a specimen of
which is attached hereto as Exhibit B (the "Xxxx of Sale"), the Lease, which is
to be transferred by that certain assignment and assumption of lease, a specimen
of which is attached hereto as Exhibit C (the "Assignment of Lease"), the
Contracts, which are to be transferred by that certain assignment agreement, a
specimen of which is attached hereto as Exhibit D (the "Assignment Agreement"),
all components of the Property shall be transferred and conveyed by execution
and delivery of Seller's special warranty deed (i.e., deed with Maine Quitclaim
Covenant), a specimen of which is attached hereto as Exhibit E (the "Deed"). The
Xxxx of Sale, the Assignment of Lease, the Assignment Agreement and the Deed are
hereinafter collectively referred to as the "Transfer Documents".
4. PURCHASE PRICE. The price to be paid by Buyer to Seller for the Property
is TWO MILLION FIVE HUNDRED THOUSAND and NO/100 Dollars ($2,500,000.00) (the
"Purchase Price"), payable as follows:
(a) One Hundred Thousand and No/100 Dollars ($100,000.00) xxxxxxx
money (the "Xxxxxxx Money Deposit") to be deposited in escrow with Fidelity
National Title Insurance Company, 00 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx
Xxxxxxx 00000, Attention: Ms. Xxxx Xxxxxx ("Escrow Agent") not later than five
(5) business days following the receipt by Escrow Agent of a fully-executed
original of this Agreement (said receipt by Escrow Agent of both a
fully-executed original of this Agreement and the Xxxxxxx Money Deposit, the
"Opening of Escrow"), which Xxxxxxx Money Deposit is to be held by Escrow Agent
until released to Seller or Buyer as provided herein or paid to Seller at close
of escrow ("XXX"); and
(b) Two Million Four Hundred Thousand and No/100 Dollars
($2,400,000.00) in additional cash, or other immediately available funds (as may
be increased or decreased by such sums as are required to take into account any
additional deposits, prorations, credits, or other adjustments required by this
Agreement), to be deposited in escrow with Escrow Agent on or before XXX (the
"Additional Funds") which is to be held by Escrow Agent until cancellation of
this Agreement as provided herein or paid to Seller at XXX.
5. DISPOSITION OF XXXXXXX MONEY DEPOSIT. Seller and Buyer hereby instruct
Escrow Agent to place the Xxxxxxx Money Deposit in a federally insured
interest-bearing passbook account on behalf of Seller and Buyer. The Xxxxxxx
Money Deposit and interest thereon shall be applied as follows:
(a) if Buyer cancels this Agreement as Buyer is so entitled to do as
provided in this Agreement, the Xxxxxxx Money Deposit and all interest earned to
the effective date of withdrawal shall be paid immediately to Buyer;
(b) if the Xxxxxxx Money Deposit is forfeited by Buyer pursuant to
this Agreement, such Xxxxxxx Money Deposit and all interest earned to the date
of withdrawal shall be paid to Seller as Seller's agreed and total liquidated
damages, it being acknowledged and agreed that it would be difficult or
impossible to determine Seller's exact damages; and
(c) if escrow closes, the Xxxxxxx Money Deposit and all interest
earned to XXX shall be credited to Buyer, automatically applied against the
Purchase Price and paid to Seller at XXX.
6. PRELIMINARY TITLE REPORT AND OBJECTIONS. Within ten (10) days after the
Opening of Escrow, Escrow Agent shall deliver a current Preliminary Title Report
(the "Report") for an ALTA extended coverage title insurance policy (the
"Owner's Policy") on the Property to Buyer and Seller. The Report shall show the
status of title to the Property as of the date of the Report and shall also
describe the requirements of Escrow Agent for the issuance of the Owner's Policy
as described herein. The cost of the Owner's Policy shall be paid by the Buyer.
Any additional costs for an extended coverage policy also shall be paid by
Buyer. In addition to the Report, Escrow Agent shall simultaneously deliver to
Buyer legible copies of all documents identified in Part Two of Schedule B of
the Report. If Buyer is dissatisfied with any exception to title as shown in the
Report, then Buyer may either, by giving written notice thereof to Escrow Agent
on or before expiration of the Study Period, (a) cancel this Agreement,
whereupon the Xxxxxxx Money Deposit plus interest shall be returned to Buyer
together with all documents deposited in escrow by Buyer, or (b) provisionally
accept the title subject to Seller's agreement to cause the removal of any
disapproved exceptions or objections, in which case Seller may elect (at its
sole cost) to remove the exceptions or objections (or, if acceptable to Buyer,
obtain title insurance endorsements over the exceptions and objections) before
XXX. Seller shall notify Buyer in writing within five (5) business days after
receiving Buyer's written notice of disapproval of any exception, if Seller
intends to remove (or endorse over) any such exception and/or objection.
Seller's lack of response shall be deemed as Seller's refusal to remove the
objectionable exceptions (or obtain title insurance endorsements over said
exceptions and objections, if acceptable to Buyer) prior to XXX. In the event
the Report is amended to include new exceptions that are not set forth in a
prior Report, Buyer shall have until the later of (i) the expiration of the
Study Period, or (ii) the date seven (7) days after Buyer's receipt of the
amended Report and copies of the documents identified in the new exceptions or
new requirements, within which to cancel this Agreement and receive a refund of
the Xxxxxxx Money Deposit plus interest or to provisionally accept the title
subject to Seller's agreement to cause the removal of any disapproved exceptions
or objections. If Seller shall refuse to remove any such exceptions and
objections before XXX, Buyer shall, within five (5) business days after Buyer's
receipt of Seller's notice of refusal or deemed refusal, notify Seller and
Escrow Agent in writing of Buyer's election to either (i) terminate this
Agreement, whereupon the Xxxxxxx Money Deposit plus interest shall be returned
to Buyer and all obligations shall terminate, or (ii) Buyer may waive such
objections and the transaction shall close as scheduled. If written notice of
dissatisfaction is not timely given by Buyer to Seller pursuant to this Section
6, then Buyer shall be deemed to have disapproved of the condition of the title
of the Property as shown by the Report, and shall have elected to terminate this
Agreement.
7. BUYER'S STUDY PERIOD.
(a) The Study Period. Buyer shall have until 5:00 p.m. EST on the
thirtieth (30th) day after Escrow Agent's receipt of Seller's original
signatures to this Agreement (the "Study Period"), at Buyer's sole cost, within
which to conduct and approve any investigations, studies or tests deemed
necessary by Buyer, in Buyer's sole discretion, to determine the feasibility of
acquiring the Property, including, without limitation, Buyer's right to: (i)
review and approve the Survey (as hereinafter defined), the Lease, Seller's
operating statements with respect to the Property, and the Contracts; (ii) meet
and confer with Tenant; and, (iii) obtain, review and approve an environmental
study of the Real Property and Building (collectively, "Buyer's Diligence").
(b) Right of Entry. Subject to the prior rights of the Tenant in the
Property, Seller hereby grants to Buyer and Buyer's agents, employees and
contractors the right to enter upon the Property, at any time or times during
the Study Period, to conduct Buyer's Diligence. In consideration therefor, Buyer
shall and does hereby agree to indemnify and hold Seller harmless from any and
all liabilities, claims, losses or damages, including, but not limited to, court
costs and attorneys' fees, which may be incurred by Seller as a direct result of
Buyer's Diligence. Buyer's indemnity and hold harmless obligation shall survive
cancellation of this Agreement or XXX.
(c) Cancellation. Unless Buyer so notifies Seller or Escrow Agent, in
writing, on or before the end of the Study Period of Buyer's acceptance of
Buyer's Diligence and waiver of the contingencies as set forth in this Section
7, this Agreement shall be canceled and the Xxxxxxx Money Deposit plus interest
shall be returned immediately to Buyer and, except as otherwise provided in this
Agreement, neither of the Parties shall have any further liability or obligation
under this Agreement.
8. DELIVERY OF SELLER"S DILIGENCE MATERIALS.
(a) Deliveries to Buyer. Seller has delivered to Buyer, on or before
the Effective Date, the following information in Seller's possession or control
regarding the Property (collectively, "Seller's Diligence Materials"), all at no
cost to Buyer:
i. copy of the Lease, including any amendments thereto;
ii. copy of the Guaranty of the Lease by Rite Aid Corporation, dated Apr.
15, 1996;
iii. copy of Seller's owner's policy of title insurance on the Real
Property (Chicago Title Insurance Company, dated Sept. 24, 1996), as
endorsed by Endorsement-1 (changing effective date of policy to Feb.
25, 1997);
iv. copy of "ALTA/ACSM Land Title Survey made for Princeton-Saco, LLC,
Main Street and Xxxxx Xxxx, Saco, Maine" dated Feb. 11, 1997 by Dow &
Xxxxxxxx, Inc., and accompanying Surveyor's Report dated Feb. 13,
1997;
v. copy of Sept. 21, 1995 environmental report by Xxxxx & Xxxxxxx, and
Sept. 13, 1996 updated environmental report;
vi. copy of Operating Statement (Lease inception to present);
vii. copy of Statement of Landlord Repair/Maintenance;
viii. copy of "as-built" building plans with respect to the Property;
ix. copy of final Certificate of Occupancy with respect to the Property;
and
x. copy of the Contracts (i.e., Versico Roofing System Warranty - Serial
Number 049845).
(b) Delivery by Buyer. If this Agreement is canceled for any reason,
except Seller's willful default hereunder, Buyer agrees to deliver to Seller
upon payment by Seller to Buyer of Buyer's cost thereof, copies of those
investigations, studies and/or tests which Buyer may have elected to obtain.
9. THE SURVEY. Buyer may elect, at Buyer's cost, to cause a surveyor
licensed in the State of Maine to complete and deliver to Escrow Agent and
Seller a current, certified ALTA survey of the Real Property, Building and
Improvements (the "Survey"), whereupon the legal description in the Survey shall
control over the description in Exhibit A attached hereto to the extent they may
be inconsistent. Any such Survey shall set forth the legal description and
boundaries of the Property and all easements, encroachments and improvements
thereon.
10. IRS SECTION 1445. Seller shall furnish to Buyer in escrow by XXX a
sworn affidavit (the "Non-Foreign Affidavit") stating under penalty of perjury
that Seller is not a "foreign person" as such term is defined in Section
1445(f)(3) of the Internal Revenue Code of 1986, as amended (the "Code"). If
Seller does not timely furnish the Non-Foreign Affidavit, Buyer may withhold (or
direct Escrow Agent to withhold) from the Xxxxxxx Money Deposit and/or the
Additional Funds, an amount equal to the amount required to be so withheld
pursuant to Section 1445(a) of the Code, and such withheld funds shall be
deposited with the Internal Revenue Service as required by such Section 1445(a)
and the regulations promulgated thereunder. The amount withheld, if any, shall
nevertheless be deemed to be part of the Purchase Price paid to Seller.
11. DELIVERY OF POSSESSION. Seller shall deliver possession of the Property
to Buyer at XXX subject only to the rights of Tenant under the Lease as approved
by Buyer as part of Buyer's Diligence.
12. BUYER'S CONDITIONS PRECEDENT. In addition to all other conditions
precedent set forth in this Agreement, Buyer's obligations to perform under this
Agreement and to close escrow are expressly subject to the following:
(a) the delivery by Seller to Escrow Agent, for delivery to Buyer at
XXX, of the executed original Transfer Documents;
(b) the availability to Buyer of the Owner's Policy (or a written
commitment therefor) subject only to those matters approved or deemed approved
by Buyer during the Study Period pursuant to this Agreement;
(c) the deposit by Seller with Buyer prior to XXX of (i) an original
estoppel certificate naming Buyer (or its designee) and Wachovia Bank, National
Association as addressees, which certificate must be reasonably acceptable to
Buyer, in Tenant's standard form, and (ii) a subordination, non-disturbance and
attornment
agreement ("SNDA"), in form and substance reasonably acceptable to Buyer, for
the benefit of Wachovia Bank, National Association, both executed by Tenant
under the Lease;
(d) the deposit with Escrow Agent of an executed standard title
affidavit of Seller and such other documentation as may be reasonably required
by Escrow Agent to allow for the deletion of the mechanics' lien exception from
the Owner's Policy;
(e) the deposit with Escrow Agent of a letter from Seller to Tenant
requesting that future rent under the Lease be paid to Buyer;
(f) delivery of the SEC Filing Information (as hereinafter defined)
and the SEC Filings Letter (as hereinafter defined) by Seller to Buyer prior to
XXX; and
(g) delivery to Buyer of originals of the Lease.
If the foregoing conditions have not been satisfied by the specified date or XXX
as the case may be, then Buyer shall have the right, at Buyer's sole option, by
giving written notice to Seller and Escrow Agent, to cancel this Agreement,
whereupon the Xxxxxxx Money Deposit plus interest shall be paid immediately by
Escrow Agent to Buyer and, except as otherwise provided in this Agreement,
neither of the Parties shall have any further liability or obligation under this
Agreement. Buyer's acceptance of the estoppel certificate or the SNDA referenced
in subsection 12(c) above shall be deemed given unless Buyer shall, within five
(5) business days after receipt of said certificate or SNDA (as the case may
be), give written notice to Seller identifying the objectionable aspect of the
certificate or SNDA. In the event of any such objection by Buyer to said
certificate or SNDA, Buyer shall use reasonable good faith efforts to directly
and promptly resolve the objection with Tenant, and Seller agrees to reasonably
cooperate with Buyer in connection with Buyer's direct negotiations with Tenant.
13. SELLER'S WARRANTIES. Seller hereby represents and warrants to Buyer as
of the Effective Date and again as of the XXX that:
(a) there are no unrecorded leases other than the Lease, or to
Seller's knowledge any unrecorded liens or encumbrances which may affect title
to the Property; that there is no Personalty; that there are no security
deposits or pre-paid/abated rents (other than monthly rent paid one month in
advance) under the Lease; and that the Tenant has no right of first refusal
under the Lease;
(b) to Seller's knowledge, no notice of violation has been issued with
regard to any applicable regulation, ordinance, requirement, covenant, condition
or restriction relating to the present use or occupancy of the Property by any
person, authority or agency having jurisdiction;
(c) to Seller's knowledge, there are no intended public improvements
which will or could result in any charges being assessed against the Property
which will result in a lien upon the Property;
(d) to Seller's knowledge, there is no impending or contemplated
condemnation or taking by inverse condemnation of the Property, or any portion
thereof, by any governmental authorities;
(e) there are no suits or claims pending or to Seller's knowledge,
threatened with respect to or in any manner affecting the Property, nor does
Seller know of any circumstances which should or could reasonably form the basis
for any such suits or claims which have not been disclosed in writing to Buyer
by Seller;
(f) Seller has not entered into and there is not existing any other
agreement, written or oral, under which Seller is or could become obligated to
sell the Property, or any portion thereof, to a third party and Seller will not
enter into nor execute any such agreement without Buyer's prior written consent;
(g) Seller has not and will not, without the prior written consent of
Buyer, take any action before any governmental authority having jurisdiction
thereover, the object of which would be to change the present zoning of or other
land-use limitations, upon the Property, or any portion thereof, or its
potential use, and, to Seller's
knowledge, there are no pending proceedings, the object of which would be to
change the present zoning or other land-use limitations;
(h) this transaction will not in any way violate any other agreements
to which Seller is a party;
(i) Seller has full power and authority to execute, deliver and
perform under this Agreement as well as under the Transfer Documents, specimens
of which are attached hereto as Exhibits;
(j) to Seller's knowledge, no default of Seller exists under any of
the Contracts and, to Seller's knowledge, no default of the other parties exists
under any of the Contracts;
(k) no consent of any third party is required in order for Seller to
enter into this Agreement and perform Seller's obligations hereunder;
(l) except for any item to be prorated at XXX in accordance with this
Agreement, all bills or other charges, costs or expenses arising out of or in
connection with or resulting from Seller's use, ownership, or operation of the
Property up to XXX shall be paid in full by Seller;
(m) to Seller's knowledge, all general real estate taxes, assessments
and personal property taxes that have become due with respect to the Property
(except for those that will be prorated at XXX) have been paid or will be so
paid by Tenant;
(n) from the Effective Date hereof until XXX or the earlier
termination of this Agreement, Seller shall (i) operate and maintain the
Property in a manner generally consistent with the manner in which Seller has
operated and maintained the Property prior to the date hereof, and shall perform
in all material respects, its obligations under the Lease, (ii) not amend,
modify or waive any material rights under the Lease, and (iii) maintain the
existing or comparable insurance coverage, if any, for the Improvements which
Seller is obligated to maintain under the Lease;
(o) Seller has no actual knowledge that there exists or has existed,
and Seller itself has not caused any generation, production, location,
transportation, storage, treatment, discharge, disposal, release or threatened
release upon, under or about the Property of any Hazardous Materials. "Hazardous
Materials" shall mean any flammables, explosives, radioactive materials,
hazardous wastes, hazardous and toxic substances or related materials, asbestos
or any material containing asbestos (including, without limitation, vinyl
asbestos tile), or any other substance or material, defined as a "hazardous
substance" by any federal, state, or local environmental law, ordinance, rule or
regulation including, without limitation, the Federal Comprehensive
Environmental Response Compensation and Liability Act of 1980, as amended, the
Federal Hazardous Materials Transportation Act, as amended, the Federal Resource
Conservation and Recovery Act, as amended, and the rules and regulations adopted
and promulgated pursuant to each of the foregoing;
(p) to Seller's actual knowledge, there is not now, nor has there ever
been, on or in the Property underground storage tanks, any asbestos-containing
materials or any polychlorinated biphenyls, including those used in hydraulic
oils, electric transformers, or other equipment. Seller hereby assigns to Buyer,
effective as of XXX, all claims, counterclaims, defenses, or actions, whether at
common law, or pursuant to any other applicable federal or state or other laws
which Seller may have against any third parties relating to the existence of any
Hazardous Materials in, at, on, under or about the Property (including Hazardous
Materials released on the Property prior to XXX and continuing in existence on
the Property at XXX);
(q) to Seller's knowledge, there are no proceedings pending for the
increase of the assessed valuation of the Real Property;
(r) should Seller receive notice or knowledge of any information
regarding any of the matters set forth in this Section 13 after the Effective
Date and prior to XXX, Seller will immediately notify Buyer of the same in
writing;
(s) the execution, delivery and performance of this Agreement and the
Transfer Documents, specimens of which are attached hereto as Exhibits, have not
and will not constitute a breach or default under any other agreement, law or
court order under which Seller is a party or may be bound; and
(t) all representations made in this Agreement by Seller shall survive
the execution and delivery of this Agreement and XXX, for a period of six (6)
months after the XXX. Seller shall and does hereby indemnify against and hold
Buyer harmless from any loss, damage, liability and expense, together with all
court costs and attorneys' fees which Buyer may incur, by reason of any material
misrepresentation by Seller or any material breach of any of Seller's
warranties. Seller's indemnity and hold harmless obligations shall survive XXX
through said six-month period.
With respect to the foregoing warranties, the phrase "to Seller's knowledge,"
"to Seller's actual knowledge," and similar phrases shall be limited to the
actual knowledge of Xxxxxxxx Xxxx, Seller's Manager, without investigation or
inquiry. Buyer's obligations under this Agreement are conditioned on the
continued truth of the foregoing warranties by Seller as of XXX. In the event
that any of the Seller's warranties which are true as of the date of execution
of this Agreement shall cease to be true on or prior to the XXX, then Seller
shall give prompt written notice to Buyer of such changed circumstance (a
"Change Notice"), in which event Buyer shall have the right, at Buyer's sole
option, by giving written notice to Seller and Escrow Agent, to cancel this
Agreement, whereupon the Xxxxxxx Money Deposit plus interest shall be paid
immediately by Escrow Agent to Buyer, and, except as otherwise provided in this
Agreement, neither of the Parties shall have any further liability or obligation
under this Agreement. In the event Seller shall give a Change Notice and Buyer
shall not elect to cancel this Agreement, the foregoing warranties made by
Seller as of XXX shall be modified in accordance with the Change Notice. Buyer
acknowledges that except as specifically set forth in this Section, Seller makes
and has made no covenant, representation or warranty as to the suitability of
the Property for any purpose whatsoever or as to the physical condition of the
Property, and that the Property is being sold and will be conveyed AS IS.
14. BUYER'S WARRANTIES. Buyer hereby represents to Seller as of the
Effective Date and again as of XXX that:
(a) Buyer has full power and authority to execute, deliver and perform
under this Agreement as well as under the Transfer Documents, specimens of which
are attached hereto as Exhibits;
(b) there are no actions or proceedings pending or to Buyer's
knowledge, threatened against Buyer which may in any manner whatsoever affect
the validity or enforceability of this Agreement or any of the documents,
specimens of which are attached hereto as Exhibits;
(c) the execution, delivery and performance of this Agreement and the
Transfer Documents, specimens of which are attached hereto as Exhibits, have not
and will not constitute a breach or default under any other agreement, law or
court order under which Buyer is a party or may be bound;
(d) should Buyer receive notice or knowledge of any information
regarding any of the matters set forth in this Section 14 after the Effective
Date and prior to XXX, Buyer will promptly notify Seller of the same in writing;
and
(e) all representations made in this Agreement by Buyer shall survive
the execution and delivery of this Agreement and XXX, for a period of six (6)
months after the XXX. Buyer shall and does hereby indemnify against and hold
Seller harmless from any loss, damage, liability and expense, together with all
court costs and attorneys' fees which Seller may incur, by reason of any
material misrepresentation by Buyer or any material breach of any of Buyer's
warranties. Buyer's indemnity and hold harmless obligations shall survive XXX
through said six-month period.
15. RENTS AND DEPOSITS. Seller and Buyer agree that, in addition to all
other conditions and covenants contained herein, Seller shall deliver to Buyer
and Escrow Agent not later than the day immediately prior to XXX information,
certified by Seller to be true and accurate as of the date thereof and as of the
date of XXX, with respect to (i) the amount of Tenant's security deposit under
the Lease, if any, and (ii) prepaid and/or abated rents, including, without
limitation, the amount thereof and the date to which such rents have been paid.
16. BROKER'S COMMISSION. Concerning any brokerage commission, the Parties
agree as follows:
(a) the Parties warrant to one another that they have not dealt with
any finder, broker or realtor in connection with this Agreement;
(b) if any person shall assert a claim to a finder's fee or brokerage
commission on account of alleged employment as a finder or broker in connection
with this Agreement, the Party under whom the finder or broker is claiming shall
indemnify and hold the other Party harmless from and against any such claim and
all costs, expenses and liabilities incurred in connection with such claim or
any action or proceeding brought on such claim, including, but not limited to,
counsel and witness fees and court costs in defending against such claim. The
provisions of this subsection shall survive cancellation of this Agreement or
XXX.
17. CLOSE OF ESCROW. XXX shall be on or before 5:00 p.m. EST on the
fifteenth (15th) day after the expiration of the Study Period or such earlier
date as Buyer may choose by giving not less than five (5) days prior written
notice to Seller and Escrow Agent. Buyer may extend the XXX date for up to an
additional ten (10) days upon delivery of written notice to extend the XXX date
to Escrow Agent prior to the original XXX date and by depositing an additional
One Hundred Fifty Thousand and No/100 Dollars ($150,000.00) of xxxxxxx money
with Escrow Agent. For purposes of this Agreement, any additional xxxxxxx money
deposited with Escrow Agent pursuant to this Section 17 shall be added to and
become part of the Xxxxxxx Money Deposit and shall be immediately
non-refundable.
18. ASSIGNMENT. This Agreement may not be assigned by Seller without the
prior written consent of Buyer which consent shall not be unreasonably withheld.
Buyer may assign its rights under this Agreement to an affiliate of Buyer
without seeking or obtaining Seller's consent. Such assignment shall not become
effective until the assignee executes an instrument whereby such assignee
expressly assumes each of the obligations of Buyer under this Agreement,
including specifically, without limitation, all obligations concerning the
Xxxxxxx Money Deposit. Buyer may also designate someone other than Buyer, as
grantee and/or assignee, under the Transfer Documents by providing written
notice of such designation at least five (5) days prior to XXX. No assignment
shall release or otherwise relieve Buyer from any obligations hereunder.
19. RISK OF LOSS. Seller shall bear all risk of loss, damage or taking of
the Property which may occur prior to XXX. In the event of any material loss,
damage or taking prior to XXX, Buyer may, at Buyer's sole option, by written
notice to Seller and Escrow Agent, cancel this Agreement whereupon the Xxxxxxx
Money Deposit plus interest shall be paid immediately by Escrow Agent to Buyer
and, except as otherwise provided in this Agreement, neither of the Parties
shall have any further liability or obligation hereunder. In the alternative,
Buyer may attempt to negotiate an appropriate downward adjustment of the Price.
If Seller and Buyer cannot agree upon such a downward adjustment within a
reasonable period (not to exceed ten (10) days from the date Buyer receives
notice of the loss) Buyer may cancel this Agreement as provided above. If Buyer
waives any such loss or damage to the Property and closes escrow, Seller shall
at XXX and as a condition precedent thereto, pay Buyer or credit Buyer against
the Additional Funds the amount of any insurance or condemnation proceeds, or
assign to Buyer, as of XXX and in a form acceptable to Buyer, all rights or
claims for relief to the same.
20. REMEDIES.
(a) Seller's Breach. If Seller breaches this Agreement, Buyer may, at
Buyer's sole option, either: (i) by written notice to Seller and Escrow Agent,
cancel this Agreement whereupon the Xxxxxxx Money Deposit plus interest shall be
paid immediately by Escrow Agent to Buyer and, except as otherwise provided in
this Agreement, neither of the Parties shall have any further liability or
obligation hereunder; or, (ii) seek specific performance against Seller in which
event XXX shall be automatically extended as necessary. Notwithstanding the
foregoing, if specific performance is unavailable as a remedy to Buyer because
of Seller's affirmative acts, Buyer shall be entitled to pursue all rights and
remedies available at law or in equity.
(b) Buyer's Breach. If Buyer breaches this Agreement, as its sole
remedy Seller shall be entitled to retain the Xxxxxxx Money Deposit in
accordance with subsection 5(b) as Seller's agreed and total liquidated damages,
in which event Seller waives any right to seek any equitable or legal remedies
against Buyer.
21. ATTORNEYS' FEES. If there is any litigation to enforce any provisions
or rights arising herein, the unsuccessful party in such litigation, as
determined by the court, agrees to pay the successful party, as determined by
the court, all costs and expenses, including, but not limited to, reasonable
attorneys' fees incurred by the successful party, such fees to be determined by
the court.
22. NOTICES.
(a) Addresses. Except as otherwise required by law, any notice
required or permitted hereunder shall be in writing and shall be given by
personal delivery, or by deposit in the U.S. Mail, certified or registered,
return receipt requested, postage prepaid, addressed to the Parties at the
addresses set forth below, or at such other address as a Party may designate in
writing pursuant hereto, or tested telex, or telegram, or telecopies (fax), or
any express or overnight delivery service (e.g., Federal Express), delivery
charges prepaid:
if to Seller: Princeton-Saco, LLC
c/o Xxxxxxxx Xxxx
00 Xxxxx Xxxx Xxxxx
Xxxxx, XX 00000
Tel.: (000) 000-0000
with copies to: Xxxxxxx Xxxx, LLP
Xxx Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000-0000
Attn: Xxxxxxx X. Xxxxxxxx, Esq.
Tel.: (000) 000-0000
Fax: (000) 000-0000
if to Buyer: Xxxx Takedown, LLC
0000 X. Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attn: Legal Department
Tel.: (000) 000-0000
Fax: (000) 000-0000
with copies to: Xxxxxxx Xxxxxxx Xxxxx & Xxxxxxxxxx, PLC
0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxx, Esq.
Tel.: (000) 000-0000
Fax: (000) 000-0000
If to Escrow Agent: Fidelity National Title Insurance Company
00 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Ms. Xxxx Xxxxxx
Tel. (000) 000-0000
Fax: (000) 000-0000
(b) Effective Date of Notices. Notice shall be deemed to have been
given on the date on which notice is delivered, if notice is given by personal
delivery, telex, telegrams or telecopies, and on the date of
deposit in the mail, if mailed or deposited with the overnight carrier, if used.
Notice shall be deemed to have been received on the date on which the notice is
received, if notice is given by personal delivery, and on the second (2nd) day
following deposit in the U.S. Mail, if notice is mailed. If escrow has opened, a
copy of any notice given to a party shall also be given to Escrow Agent by
regular U.S. Mail or by any other method provided for herein.
23. CLOSING COSTS.
(a) Closing Costs. Seller and Buyer agree to pay closing costs as
indicated in this Agreement and in the escrow instructions attached hereto as
Exhibit F, and by this reference incorporated herein (the "Escrow
Instructions"). At XXX, Seller shall pay (i) the costs of releasing all liens,
judgments, and other encumbrances that are to be released and of recording such
releases, (ii) one-half (1/2) of the transfer tax associated with the sale of
the Property, if any, and (iii) all other costs to be paid by Seller under this
Agreement; and Buyer shall pay (w) the costs of recording the Deed and any other
documents to be recorded, (x) the fees and costs due Escrow Agent for its
services, including (without limitation) the premium for the Owner's Policy, (y)
one-half (1/2) of the transfer tax associated with the sale of the Property, if
any, and (z) all other costs to be paid by Buyer under this Agreement. Except as
otherwise provided for in this Agreement, Seller and Buyer will each be solely
responsible for and bear all of their own respective expenses, including,
without limitation, expenses of legal counsel, accountants, and other advisors
incurred at any time in connection with pursuing or consummating the transaction
contemplated herein. If not otherwise paid by Tenant pursuant to the Lease, real
estate taxes shall be prorated based upon the current valuation and latest
available tax rates. All prorations shall be calculated through escrow as of XXX
based upon the latest available information, including, without limitation, a
credit to Buyer for any rent prepaid by Tenant for the period beginning with and
including the date on which the closing occurs through and including the last
day of the month in which the closing occurs. All other credits to Buyer shall
be similarly prorated. Any other closing costs not specifically designated as
the responsibility of either Party in the Escrow Instructions or in this
Agreement shall be paid by Seller and Buyer according to the usual and customary
allocation of the same in the State of Maine. Seller agrees that all closing
costs payable by Seller shall be deducted from Seller's proceeds otherwise
payable to Seller at XXX. Buyer shall deposit with Escrow Agent sufficient cash
to pay all of Buyer's closing costs. Except as provided in this Section 23(a),
Seller and Buyer shall each bear their own costs in regard to this Agreement.
(b) Post-Closing Adjustment. If after XXX, the parties discover any
errors in adjustments and apportionments or additional information becomes
available which would render the closing prorations materially inaccurate, the
same shall be corrected as soon after their discovery as possible. The provision
of this Section 23(b) shall survive XXX except that no adjustment shall be made
later than two (2) months after XXX unless prior to such date the Party seeking
the adjustment shall have delivered a written notice to the other Party
specifying the nature and basis for such claim. In the event that such claim is
valid, the Party against whom the claim is sought shall have ten (10) days in
which to remit any adjustment due.
(c) Instructions. This Agreement, together with the Escrow
Instructions, shall constitute escrow instructions for the transaction
contemplated herein. Such escrow instructions shall be construed as applying
principally to Escrow Agent's employment.
24. ESCROW CANCELLATION CHARGES. If escrow fails to close because of
Seller's default, Seller shall be liable for any reasonable cancellation charges
of Escrow Agent. If escrow fails to close because of Buyer's default or for any
other reason, Buyer shall be liable for any cancellation charges of Escrow
Agent. The provisions of this Section 24 shall survive cancellation of this
Agreement.
25. APPROVALS. Concerning all matters in this Agreement requiring the
consent or approval of any Party, the Parties agree that any such consent or
approval shall not be unreasonably withheld unless otherwise provided in this
Agreement.
26. [intentionally deleted]
27. ADDITIONAL ACTS. The Parties agree to execute promptly such other
documents and to perform such other acts as may be reasonably necessary to carry
out the purpose and intent of this Agreement.
28. GOVERNING LAW/JURISDICTION/VENUE. This Agreement shall be governed by
and construed or enforced in accordance with the laws of the State of Maine.
29. CONSTRUCTION. The terms and provisions of this Agreement represent the
results of negotiations among the Parties, each of which has been represented by
counsel of its own choosing, and neither of which has acted under any duress or
compulsion, whether legal, economic or otherwise. Consequently, the terms and
provisions of this Agreement shall be interpreted and construed in accordance
with their usual and customary meanings, and the Parties each hereby waive the
application of any rule of law which would otherwise be applicable in connection
with the interpretation and construction of this Agreement that ambiguous or
conflicting terms or provisions contained in this Agreement shall be interpreted
or construed against the Party whose attorney prepared the executed Agreement or
any earlier draft of the same.
30. TIME OF ESSENCE. Time is of the essence of this Agreement. However, if
this Agreement requires any act to be done or action to be taken on a date which
is a Saturday, Sunday or legal holiday, such act or action shall be deemed to
have been validly done or taken if done or taken on the next succeeding day
which is not a Saturday, Sunday or legal holiday, and the successive periods
shall be deemed extended accordingly.
31. INTERPRETATION. If there is any specific and direct conflict between,
or any ambiguity resulting from, the terms and provisions of this Agreement and
the terms and provisions of any document, instrument or other agreement executed
in connection herewith or in furtherance hereof, including any Exhibits hereto,
the same shall be consistently interpreted in such manner as to give effect to
the general purposes and intention as expressed in this Agreement which shall be
deemed to prevail and control.
32. HEADINGS. The headings of this Agreement are for reference only and
shall not limit or define the meaning of any provision of this Agreement.
33. FAX AND COUNTERPARTS. This Agreement may be executed by facsimile
and/or in any number of counterparts. Each party may rely upon any facsimile or
counterpart copy as if it were one original document.
34. INCORPORATION OF EXHIBITS BY REFERENCE. All Exhibits to this Agreement
are fully incorporated herein as though set forth at length herein.
35. SEVERABILITY. If any provision of this Agreement is unenforceable, the
remaining provisions shall nevertheless be kept in effect.
36. ENTIRE AGREEMENT. This Agreement contains the entire agreement between
the Parties and supersedes all prior agreements, oral or written, with respect
to the subject matter hereof. The provisions of this Agreement shall be
construed as a whole and not strictly for or against any Party.
37. SEC S-X 3-14 Audit. Seller acknowledges that Buyer may elect to assign
all of its right, title and interest in and to this Agreement to a company that
is subject to the reporting requirements of the Securities Exchange Act of 1934,
as amended ("Registered Company"), promoted by the Buyer or to an affiliate of a
Registered Company (a "Registered Company Affiliate"). In the event Buyer's
assignee under this Agreement is a Registered Company or a Registered Company
Affiliate, the Registered Company will be required to make certain filings with
the U.S. Securities and Exchange Commission required under SEC Rule 3-14 of
Regulation S-X (the "SEC Filings") that relate to the most recent
pre-acquisition fiscal year (the "Audited Year") for the Property. To assist the
Registered Company with the preparation of the SEC Filings, Seller agrees to
provide Buyer and the Registered Company with financial information regarding
the Property for the Audited Year requested by Buyer, the Registered Company,
and/or Buyer's or the Registered Company's auditors. Such information may
include, but is not limited to, bank statements, operating statements, general
ledgers, cash receipts schedules, invoices for expenses and capital
improvements, insurance documentation, and accounts receivable aging related to
the Property in Seller's possession or control ("SEC Filing Information").
Seller shall deliver the SEC Filing Information requested by Buyer, the
Registered Company and/or Buyer's or the Registered Company's auditors prior to
the expiration of the Study Period, and Seller agrees to cooperate with Buyer,
the Registered Company and Buyer's or the Registered Company's auditors
regarding any inquiries by Buyer, the Registered Company and Buyer's or the
Registered
Company's auditors following receipt of such information, including delivery by
Seller of an executed representation letter prior to XXX in form and substance
requested by Buyer's or the Registered Company's auditors ("SEC Filings
Letter"). A sample SEC Filings Letter is attached to the Purchase Agreement as
Exhibit G; however, Buyer's and/or the Registered Company's auditors may require
additions and/or revisions to such letter following review of the SEC Filing
Information provided by Seller, to the extent reasonably necessary for auditors
to prepare the audit report required by SEC Rule 3-14. Seller consents to the
disclosure of the SEC Filing Information in any SEC Filings by the Registered
Company. Buyer shall reimburse Seller for Seller's reasonable costs associated
with providing the SEC Filing Information. The provisions of this Section 37
shall survive the XXX for a period of one (1) year.
38. LIKE-KIND EXCHANGE. Either Party may consummate the purchase or sale
(as applicable) of the Property as part of a so-called like kind exchange (an
"Exchange") pursuant to Section 1031 of the Internal Revenue Code of 1986, as
amended (the "Code"), provided that: (i) the closing shall not be delayed or
affected by reason of the Exchange nor shall the consummation or accomplishment
of an Exchange be a condition precedent or condition subsequent to the
exchanging Party's obligations under this Agreement; (ii) the exchanging Party
shall effect its Exchange through an assignment of this Agreement, or its rights
under this Agreement, to a qualified intermediary; (iii) neither Party shall be
required to take an assignment of the purchase agreement for the relinquished or
replacement property or be required to acquire or hold title to any real
property for purposes of consummating an Exchange desired by the other Party;
and (iv) the exchanging Party shall pay any additional costs that would not
otherwise have been incurred by the non-exchanging Party had the exchanging
Party not consummated the transaction through an Exchange. Neither Party shall
by this Agreement or acquiescence to an Exchange desired by the other Party have
its rights under this Agreement affected or diminished in any manner or be
responsible for compliance with or be deemed to have warranted to the exchanging
Party that its Exchange in fact complies with Section 1031 of the Code.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]
IN WITNESS WHEREOF, Seller and Buyer have executed this Agreement as of the
Effective Date.
SELLER: PRINCETON-SACO, LLC,
a Maine limited liability company
By: /s/ Xxxxxxxx Xxxx
------------------------------------
Its: Manager
BUYER: XXXX TAKEDOWN, LLC, a Delaware limited
liability company
By:
------------------------------------
Xxxx X. Xxxx
Its: Senior Vice President
ESCROW AGENT'S ACCEPTANCE
The foregoing fully executed Agreement together with the Xxxxxxx Money
Deposit is accepted by the undersigned this 13 day of December, 2005, which for
the purposes of this Agreement shall be deemed to be the date of Opening of
Escrow. Escrow Agent hereby accepts the engagement to handle the escrow
established by this Agreement in accordance with the terms set forth in this
Agreement.
FIDELITY NATIONAL TITLE INSURANCE
COMPANY
By: /s/ X. Xxxxxx
-------------------------------------
Title: Asst. Commercial Escrow
Officer
AMENDMENT TO PURCHASE AGREEMENT
This Amendment to Purchase Agreement (this "Amendment") is made and entered
into effective as of the 12th day of January, 2006, by and between
PRINCETON-SACO, LLC ("Seller") and XXXX TAKEDOWN, LLC ("Buyer") and provides as
follows:
WITNESSETH:
WHEREAS, Seller and Buyer entered into that certain Purchase Agreement and
Escrow Instructions dated as of December 6, 2005 (the "Purchase Agreement"); and
WHEREAS, Seller and Buyer desire to amend the Purchase Agreement as
hereinafter set forth;
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and intending to be legally bound,
the parties hereto hereby agree as follows:
1. The final sentence of Section 6 of the Purchase Agreement is hereby
amended by deleting the entirety thereof and substituting the following in lieu
thereof:
If written notice of dissatisfaction is not timely given by Buyer to
Seller pursuant to this Section 6, then Buyer shall be deemed to have
approved of the condition of the title of the Property as shown by the
Report.
2. Section 7(a) of the Purchase Agreement is hereby amended by deleting the
entirety thereof and substituting the following in lieu thereof:
The Study Period. Buyer shall have until 5:00 p.m. EST on January 12,
2006 (the "Study Period"), at Buyer's sole cost, within which to
conduct and approve any investigations, studies or tests deemed
necessary by Buyer, in Buyer's sole discretion, to determine the
feasibility of acquiring the Property, including, without limitation,
Buyer's right to: (i) review and approve the Survey (as hereinafter
defined), the Lease, Seller's operating statements with respect to the
Property, and the Contracts; (ii) meet and confer with Tenant; and,
(iii) obtain, review and approve an environmental study of the Real
Property and Building (collectively, "Buyer's Diligence").
3. Section 7(c) of the Purchase Agreement is hereby amended by deleting the
entirety thereof and substituting the following in lieu thereof:
Cancellation. Only if Buyer notifies Seller and Escrow Agent, in
writing, on or before the end of the Study Period of Buyer's
disapproval of Buyer's Diligence and refusal to waive the
contingencies as set forth in this Section 7 will this Agreement be
canceled pursuant to this Section 7. In such event, the Xxxxxxx Money
Deposit plus interest shall be returned immediately to Buyer and,
except as otherwise provided in this Agreement, neither of the Parties
shall have any further liability or obligation under this Agreement.
4. Section 17 of the Purchase Agreement is hereby amended by deleting the
entirety thereof and substituting the following in lieu thereof:
CLOSE OF ESCROW. XXX SHALL BE ON OR BEFORE 5:00 P.M. EST ON JANUARY
27, 2006, OR SUCH OTHER DATE AS BUYER AND SELLER MAY AGREE IN WRITING.
BUYER MAY EXTEND THE XXX DATE FOR UP TO AN ADDITIONAL TEN (10) DAYS
UPON DELIVERY OF WRITTEN NOTICE TO EXTEND THE XXX DATE TO ESCROW AGENT
PRIOR TO THE ORIGINAL XXX DATE AND BY DEPOSITING AN ADDITIONAL ONE
HUNDRED FIFTY THOUSAND AND NO/100 DOLLARS ($150,000.00) OF XXXXXXX
MONEY WITH ESCROW AGENT. FOR PURPOSES OF THIS AGREEMENT, ANY
ADDITIONAL XXXXXXX MONEY DEPOSITED WITH ESCROW AGENT PURSUANT TO THIS
SECTION 17 SHALL BE ADDED TO AND BECOME PART OF THE XXXXXXX MONEY
DEPOSIT AND SHALL BE IMMEDIATELY NON-REFUNDABLE.
5. Except as specifically amended herein, all of the terms and provisions
of the Purchase Agreement are hereby ratified and affirmed to be in full force
and effect as of the date hereof. To the extent of any conflict between the
Purchase Agreement and this Amendment, the terms and provisions of this
Amendment shall govern and control.
6. This Amendment may be executed in one or more counterparts, each of
which shall be an original, but all of which when taken together shall
constitute one and the same instrument binding on all parties. Delivery of a
signed counterpart by facsimile transmission shall be effective as delivery of a
manually signed counterpart of this Agreement.
[SIGNATURES ON FOLLOWING PAGE]
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date set forth above.
BUYER: SELLER:
XXXX TAKEDOWN, LLC, a Delaware PRINCETON-SACO, LLC,
limited liability company a Maine limited liability company
By: /s/ Xxxx X. Xxxx By: /s/ Xxxxxxxx Xxxx
--------------------------------- ------------------------------------
Xxxx X. Xxxx Its: Manager
Its Senior Vice President
ASSIGNMENT OF PURCHASE AGREEMENT AND ESCROW INSTRUCTIONS
PRINCETON-SACO, LLC, AS SELLER
AND
XXXX TAKEDOWN, LLC, AS BUYER
ASSIGNOR, for good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, does hereby assign all of its right, title and
interest in that certain Purchase Agreement and Escrow Instructions (the
"Purchase Agreement") described herein, to ASSIGNEE and its successors and
assigns. The Purchase Agreement is described as follows:
DATE OF AGREEMENT: December 6, 2005
ORIGINAL BUYER: Xxxx Takedown, LLC
ASSIGNED TO: Xxxx XX Saco ME, LLC
PROPERTY ADDRESS: 000 Xxxx Xxxxxx, Xxxx, Xxxxx
ASSIGNOR acknowledges that it is not released from any and all obligations
or liabilities under said Purchase Agreement with the exception of the xxxxxxx
money deposit which is currently in escrow.
ASSIGNEE hereby agrees to assume and be responsible for all obligations and
liabilities under said Purchase Agreement. This Assignment shall be in full
force and effect upon its full execution.
Executed this 26th day of January, 2006.
ASSIGNOR: ASSIGNEE:
XXXX TAKEDOWN, LLC, XXXX XX SACO ME, LLC, a Delaware limited
a Delaware limited liability company liability company
By: Xxxx REIT Advisors II, LLC, a
Delaware limited liability company,
its Manager
By: /s/ Xxxx X. Xxxx By: /s/ Xxxx X. Xxxx
--------------------------------- ------------------------------------
Xxxx X. Xxxx Xxxx X. Xxxx, Senior Vice President
Senior Vice President
