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EXHIBIT 10.1
PURCHASE AND SALE AGREEMENT
000 XXXXXXXXX XXXX, XXXXXXXXXX, XXXXXXXXXXXXX
1. PARTIES - This 5th day of February, 1999, THE EQUITABLE LIFE ASSURANCE
SOCIETY OF THE UNITED STATES (the "SELLER") agrees to sell and 199 RIVERNECK,
LLC (the "BUYER") agrees to buy, upon the terms and conditions set forth herein,
the real estate that is the subject of this agreement (the "Premises").
2. PREMISES - The Premises consist of approximately 6.3 acres of land
with the approximately 96,104 square foot building thereon situated in
Chelmsford, Middlesex County, Massachusetts, known as and numbered 000 Xxxxxxxxx
Xxxx, more particularly described in Exhibit A hereto. Included in the sale for
no additional consideration are all fixtures and other property belonging to the
SELLER located in or on the Premises and all rights of the SELLER relating to
the Property.
3. TITLE DEED - The Premises are to be conveyed by a good and sufficient
Massachusetts quitclaim deed in a form appropriate for recording with the
Middlesex North Registry of Deeds running to the BUYER, or to the nominee
designated by the BUYER by written notice to the SELLER given at least seven (7)
days before the deed is to be delivered as herein provided. The deed shall
convey good and clear record and marketable title to the Premises insurable by a
title insurance company at standard rates, free from encumbrances, except:
(a) Provisions of building, environmental, zoning and. other land use
laws;
(b) Such municipal taxes for the then current fiscal period as are
not due and payable on the date of the delivery of the deed;
(c) Any liens for municipal betterments assessed after the date of
this agreement; and
(d) All matters of record as of the date of this Agreement and
matters shown on a current and accurate survey of the Premises
which are not objected to by the BUYER prior to the end of the
Review Period, as defined in Section 6.
4. PURCHASE PRICE - The agreed purchase price for the Premises is
$8,300,000, which shall be paid at the time of delivery of the deed in cash, or
by certified, cashier's, treasurer's or bank check, or if requested by the
SELLER, by wire transfer of immediately available federal funds.
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5. TIME FOR PERFORMANCE: DELIVERY OF DEED - The deed is to be delivered
at 11:00 o'clock a.m. on February 9, 1999 (the "Closing Date"), at the offices
of the SELLER'S counsel, Xxxxxx, XxXxxxxxx & Fish, LLP, Xxx Xxxxxxxxxxxxx Xxxxx,
Xxxxxx, XX 00000-0000, unless otherwise agreed upon in writing. It is agreed
that time is of the essence of this Agreement. The consummation of the sale
contemplated by this Agreement is sometimes referred to herein as the "closing."
6. REVIEW PERIOD. The BUYER shall have until the closing (the "Review
Period") to (a) review the SELLER's title to the Premises and to obtain a survey
of the Premises; (b) have made an assessment of the Premises for the presence of
any oil, hazardous material, hazardous waste or hazardous substance (hereinafter
collectively called "Hazardous Substances") as those terms are defined by any
applicable federal, state or local law, rule, regulation (hereinafter
collectively called "Applicable Environmental Laws"); (c) otherwise review the
Premises as the BUYER in its sole discretion shall deem necessary; and (d)
contact and consult with any and all federal, state, municipal and other
governmental bodies having jurisdiction over the Premises ("Governmental
Authorities") regarding the zoning, building code and other governmental permits
and approvals necessary under any applicable laws, regulations, codes, orders,
ordinances, rules and statutes now in effect, including, without limitation, the
Applicable Environmental Laws (collectively referred to as "Applicable Laws")
for the use and operation of the improvements on the Premises. All of the
investigations described in this Section 6 shall be undertaken by the BUYER at
the BUYER'S sole cost and expense, including, without limitation, the cost of
such surveys, inspections and tests.
In the event that the BUYER determines, in its sole discretion, (a) the
title to, or any matter shown on the survey of, the Premises to be
unsatisfactory, (b) the environmental condition of the Premises to be
unsatisfactory, or (c) that the Premises does not comply with Applicable Laws or
is otherwise unsatisfactory, then, in any such case, the BUYER may terminate
this Agreement by giving written notice to the SELLER and Escrow Agent on or
before the expiration of the Review Period detailing the basis on which the
BUYER reasonably determined the Premises to be unsatisfactory or in violation of
Applicable Laws, as aforesaid, whereupon the Deposit shall be refunded to the
BUYER, this Agreement shall terminate and neither party shall have any rights or
remedies hereunder, except as otherwise provided herein to survive the
termination of this Agreement.
In the event that notice of termination is not given by the BUYER by the
expiration of the Review Period, the BUYER shall be deemed to have approved the
condition of the Premises (except any condition first arising after the date of
the BUYER'S inspection of the Premises during the Review Period), the compliance
of the Premises with all Applicable Laws and other matters and the state of
title to the Premises as it exists as of the closing.
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During the Review Period, the BUYER and its representatives, contractors,
architects and engineers, and each of their respective officers, directors,
agents, employees and representatives shall have access to the Premises at
reasonable times and for reasonable periods (a) to show the Premises to
third-parties (including, without limitation, lenders, insurers or attorneys)
and (b) to perform any and all tests, borings, inspections and measurements
which, in the BUYER'S opinion, are reasonably necessary or appropriate; provided
that in all cases the BUYER and any such representatives, contractors,
architects and engineers shall be accompanied by a representative of the SELLER.
If the closing shall not occur, after its inspections are completed, the
BUYER shall restore the Premises, at the BUYER'S sole cost and expense,
substantially to its condition immediately prior to the BUYER'S inspections. The
BUYER agrees to indemnify and hold the SELLER harmless from and against all
claims, damages and liability arising out of or relating to the exercise by the
BUYER, or such any other person, of the access rights under this Section 6,
including, without limitation, such claims, damages and liability for personal
injury or property damage, and all costs and reasonable attorneys' fees.
Such indemnity and obligations of the BUYER under this Section 6 shall
survive the Closing (as hereinafter defined) or the earlier termination of this
Agreement.
7. CONDITION OF PROPERTY. The BUYER and the SELLER agree that the BUYER
is acquiring the Premises in its "AS-IS" condition, with all faults, if any, and
without any warranty, express or implied, except as set forth in this Agreement.
By accepting the deed and paying the purchase price, the BUYER acknowledges that
(a) it is familiar with the Premises and has had full opportunity, to the extent
it desired to do so, to fully inspect and review (i) the environmental condition
of the Premises, (ii) the title to the Premises, (iii) the compliance with the
Premises with Applicable Laws and (iv) such other engineering and other matters
related to the Premises as the BUYER has found appropriate and the BUYER thereby
acknowledges that the BUYER is satisfied with each of the foregoing matters. The
BUYER hereby confirms that, except as set forth in this Agreement, neither the
SELLER nor any director, officer, employee, agent or representative of the
SELLER nor any other person purporting to act on behalf of the SELLER has made
any representation upon which the BUYER is relying with respect to the Premises.
The BUYER hereby releases the SELLER, its agents, representatives, employees,
successors and assigns from and against any and all claims, demands and causes
of action that the BUYER may have relating to (a) the condition of the Premises,
or (b) any other matter pertaining to the Premises, as of the closing hereunder.
Such release shall survive the Closing or the earlier termination of this
Agreement.
Except as otherwise provided in Section 8 of this Agreement, the BUYER
hereby agrees that any loss, damage or deterioration in respect of the buildings
or other improvements on the Premises which may occur between the Effective Date
and the
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closing shall not give rise to any adjustment of the Purchase Price or any
change in the rights and obligations of the parties.
8. POSSESSION AND CONDITION OF PREMISES - Full possession of the Premises
free of all tenants and occupants (other than the BUYER and those claiming under
the BUYER) is to be delivered at the time of the delivery of the deed, the
Premises to be then (a) in the same condition as they now are in on the
Effective Date, excepting only reasonable use and wear thereof and damage by
fire or other insured casualty not exceeding $100,000 in cost to repair (a
"Minor Insured Casualty"), and (b) in compliance with the provisions of any
instrument referred to in paragraph 3(d) hereof. In the event of a Minor Insured
Casualty between the date hereof and the closing, at the closing insurance
proceeds in an amount sufficient to effect the repair by a reputable licensed
professional contractor shall be paid to the BUYER. If the Premises shall be
damaged by fire or casualty which is not a Minor Insured Casualty, the
provisions of Sections 9, 10 and 11 shall be applicable.
9. EXTENSION TO PERFECT TITLE OR MAKE PREMISES CONFORM - If the SELLER
shall be unable to give title, or to make conveyance, or to deliver possession
of the Premises, all as herein stipulated, or if at the time of the delivery of
the deed the Premises do not conform with the provisions hereof, the SELLER
shall use reasonable efforts to remove any defects in title, or to deliver
possession as provided herein, or to make the Premises conform to the provisions
hereof, as the case may be. In such event, the time for performance shall be
extended for a period of thirty (30) days. "Reasonable efforts", as used in this
paragraph, shall not require the expenditure of more than $50,000 by the SELLER;
provided, however, that such $50,000 limitation shall not apply to monetary
encumbrances voluntarily incurred by the SELLER on the Premises.
10. FAILURE TO PERFECT TITLE OR MAKE PREMISES CONFORM, ETC. - If at the
expiration of the extended time the SELLER shall have failed so to remove any
defects in title, deliver possession, or make the Premises conform, as the case
may be, all as herein agreed, then at the BUYER'S option, all deposits made
under this Agreement shall be forthwith refunded, and thereupon all other
obligations of all parties hereto shall cease and this agreement shall be void
and without recourse to the parties hereto.
11. BUYER'S ELECTION TO ACCEPT TITLE - The BUYER shall have the election,
at either the original or any extended time for performance, to accept such
title as the SELLER can deliver to the Premises in its then condition and to pay
therefor the full purchase price without reduction. In the event of such
conveyance, if the Premises shall have been damaged by fire or casualty insured
against and have not been fully restored, the SELLER shall pay over or assign to
the BUYER, on delivery of the deed, all amounts recovered or recoverable on
account of such insurance, less any amounts reasonably expended for any partial
restoration.
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12. ACCEPTANCE OF DEED - The acceptance of a deed by the BUYER or its
nominee, as the case may be, shall be deemed to be a full performance and
discharge of every agreement and obligation herein contained or expressed,
except such as are, by the terms hereof, to be performed after the delivery of
the deed.
13. USE OF PURCHASE MONEY TO CLEAR TITLE - To enable the SELLER to make
conveyance as herein provided, if required, the SELLER shall, at the time of
delivery of the deed, use the purchase money or any portion thereof to clear the
title of any or all encumbrances or interests, provided that all instruments so
procured are delivered simultaneously with the delivery of the deed, with the
exception of mortgage discharges from recognized lending institutions, which may
be obtained expeditiously and recorded in due course.
14. INSURANCE - Until the delivery of the deed, the SELLER shall maintain
fire and extended coverage casualty insurance on the Premises as currently
insured.
15. ADJUSTMENTS - The BUYER is the tenant of the Premises and pays all
real estate taxes, electricity, gas and water and sewer use charges.
Accordingly, there shall be no adjustments on account thereof.
16. INTENTIONALLY DELETED.
17. INTENTIONALLY DELETED.
18. CONSTRUCTION OF AGREEMENT - This instrument, executed in four original
counterparts, is to be construed as a Massachusetts contract, is to take effect
as a sealed instrument, sets forth the entire contract between the parties, is
binding upon and enures to the benefit of the parties hereto and their
respective heirs, devisees, executors, administrators, successors and assigns,
and may be cancelled, modified or amended only by a written instrument executed
by both the SELLER and the BUYER. The captions are used only as a matter of
convenience and are not to be considered a part of this agreement or to be used
in determining the intent of the parties to it.
19. SUPERSEDES OTHER AGREEMENTS - This agreement supersedes any and all
other agreements made prior hereto by and between any or all of the parties
hereto with respect to the transaction contemplated hereby and all of such prior
agreements are hereby made void and without recourse to the parties thereto.
20. ENFORCEMENT OF AGREEMENT - In the event that either party shall engage
legal counsel for the purpose of enforcing this agreement, and litigation is
actually commenced by either party, the costs and reasonable attorney's fees of
the prevailing party in such litigation shall be paid by the non-prevailing
party.
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21. BROKERAGE WARRANTY - The SELLER and the BUYER represent and warrant to
each other that neither has dealt with any real estate agent or broker in
connection with the transaction contemplated hereby and was not called to the
attention of the other as a result of any services or facilities of any such
other real estate agent or broker, other than Xxxxxxxxx & Xxxx. The SELLER and
the BUYER agree to indemnify, exonerate and hold the other harmless from and
against any claim, loss, damage, cost or liability for any brokerage commission
or fee which may be asserted against the other as a result of the other's breach
of this warranty. The provisions of this paragraph shall survive delivery of the
deed hereunder.
22. NOTICE - Any notice given hereunder shall be deemed duly given when
mailed by registered or certified mail, return receipt requested, postage and
registration or certification charges prepaid, addressed in the case of the
SELLER to the SELLER c/o Lend Lease Real Estate, 000 Xxxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Xxxx X. Xxxxxxx, Vice President, with a copy
simultaneously mailed by first class mail, postage prepaid to Xxxxx X. Xxxxxxx,
Esq., Xxxxxx, XxXxxxxxx & Fish, LLP, Xxx Xxxxxxxxxxxxx Xxxxx, Xxxxxx, XX
00000-0000 and in the case of the BUYER to the BUYER at the Premises, with a
copy simultaneously so mailed to Xxxxxxx X. Xxxxxxxx, Xx., Esq., Xxxxxxxx,
Xxxxxxx & Xxxxxxx, 000 Xxxxxxx Xxxxxx, Xxxxxx, XX 00000, except that either
party may by written notice to the other designate another address which shall
thereupon become the effective address of such party for the purposes of this
clause.
23. NO ASSIGNMENT; NO RECORDING - The BUYER shall not assign this
agreement or any of the BUYER'S rights under this agreement without the written
consent of the SELLER which may be withheld by the SELLER in the SELLER'S sole
and uncontrolled discretion. This document shall not be recorded.
24. NON-FOREIGN CERTIFICATION - The SELLER shall deliver to the BUYER at
the closing a duly executed non-foreign certification pursuant to Internal
Revenue Code Section 1445 and the Treasury Regulations adopted thereunder.
25. TITLE INSURANCE AFFIDAVIT - The SELLER shall execute and deliver to
the BUYER'S title insurance company at the time of closing a
parties-in-possession and mechanic's lien affidavit in customary form.
26. INVESTMENT COMMITTEE APPROVAL - The BUYER acknowledges that this
Agreement is subject to approval by the SELLER at each stage in its investment
committee approval process. The SELLER agrees that, upon execution of this
Agreement, the SELLER shall attempt to secure such investment committee approval
and provide notice of the same to the BUYER on or before the Closing Date. If
the SELLER is unable to obtain such investment committee approval on or before
the Closing Date, this Agreement shall automatically terminate without recourse
to the parties hereto and the deposit shall be refunded.
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27. ERISA - The BUYER shall, in order to enable the SELLER to comply with
the requirements of ERISA, execute and deliver to the SELLER at Closing, the
BUYER'S written representation, in form satisfactory to the SELLER, that the
BUYER is not acquiring the Premises with the assets of an employee benefit plan
as defined in Section 3(3) of ERISA. If the BUYER shall be unable to deliver
such written representation, such failure shall be deemed a default by the BUYER
hereunder and the SELLER shall have the right to terminate this Agreement.
28. TITLE STANDARDS - In any dispute as to the existence or nonexistence
of a defect in the title to the Premises, the title standards formulated by the
Massachusetts Conveyancer's Association shall be determinative.
29. AFFIDAVITS - At the time of delivery of the SELLER'S deed, the SELLER
shall execute and deliver to the BUYER and any title insurance company insuring
the title to the Premises (for the BUYER or for any lender granting mortgage
financing to the BUYER with respect to the Premises): (i) either (a) affidavits
setting forth that the SELLER is not a foreign person or foreign corporation and
providing the SELLER'S United States Taxpayer Identification Number, or (b) such
other documentation as is required by Section 1445 of the Internal Revenue Code
and any regulations promulgated thereunder to exempt the SELLER and/or the sale
of the Premises from the provisions of said Section 1445, and (ii) any other
usual and customary affidavits, documents and certificates required by the
BUYER'S mortgagee and/or the BUYER'S title insurance company.
30. TRANSFER OF WARRANTIES. The SELLER hereby transfers, assigns and sets
over to the BUYER, as of and from and after the closing hereunder, all of the
SELLER'S right, title and interest in, to and under any and all warranties and
guaranties received by or benefitting the SELLER from manufacturers,, suppliers,
contractors or the like, with respect to the Premises and any and all appliances
and any and all work therein, all to the extent such warranties and guaranties,
if any, are then in force, applicable and assignable; but in any event, without
any recourse against or liability of the SELLER on account thereof or in
connection with the enforcement thereof by the BUYER. The provisions of this
paragraph shall survive delivery of the deed.
31. NOT SUBSTANTIALLY ALL THE SELLER'S ASSETS - The SELLER represents and
warrants that the sale of the Premises does not constitute the sale of all or
substantially all the assets of the corporation and therefore the provisions of
M.G.L., c. 62C, ss.52 do not apply to this sale.
The SELLER shall include an appropriate certificate in the deed, in form
satisfactory to the BUYER and the BUYER'S counsel, to this effect. The warranty
in the first sentence of this paragraph shall survive the delivery of the deed
hereunder.
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32. WARRANTIES AND REPRESENTATIONS OF THE SELLER - The SELLER hereby
warrants and represents to the BUYER as follows:
(1) TITLE TO THE PREMISES. The SELLER has, or will have, at time of
closing, the full and sole right, power and authority to sell, assign and
convey the Premises pursuant to this Agreement. The SELLER has not
mortgaged, hypothecated, pledged or assigned all or any portion of the
SELLER's estate, right, title and interest in and to the Premises.
(2) LITIGATION. To the SELLER's knowledge, there is no action, suit or
proceeding either at law or in equity, or any arbitration proceeding or
investigation, inquiry or other proceeding by or before any court or
Governmental instrumentality, board, agency or the like now pending or
threatened, affecting the Premises. No judgment, decree or order of any
court or Governmental authority has been issued against or binds the SELLER
which has, or is likely to have, any material adverse effect on the ability
of the SELLER to perform the transactions contemplated hereby.
(3) NO NOTICE OF VIOLATION. Seller has received no written notice from
any governmental authority that the Premises do not comply with any legal
requirement.
(4) NO PENDING TAKINGS. To the SELLER's knowledge, there is no pending or
threatened, condemnation, eminent domain or similar proceeding or
assessment affecting the Premises or any part thereof, nor is any such
proceeding or assessment contemplated by any Governmental authority.
(5) EXISTENCE AND AUTHORITY OF THE SELLER. The SELLER is, and will be on
the Closing date, a corporation duly organized, validly existing and in
good standing under the laws of the State of New York. The SELLER has, and
will have on the Closing date, all necessary power and authority to (a)
carry on the business for which the SELLER has been organized, (b) own the
Premises, and (c) enter into this Agreement and perform the SELLER's
obligations hereunder.
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WHEREFORE, the parties have hereto set their hands and seals on the
date first written above.
SELLER: BUYER:
THE EQUITABLE LIFE ASSURANCE 000 XXXXXXXXX, XXX
XXXXXXX XX XXX XXXXXX XXXXXX By Its Manager
MERCURY COMPUTER SYSTEMS, INC.
By: /s/ Xxxx X. Xxxxxxx By: /s/ Xxxxx X. Xxxxxxxx
------------------------ ----------------------------
Investment Officer Xxxxx X. Xxxxxxxx, President
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EXHIBIT A
A certain parcel of land, with the buildings and other improvements
thereon, situated in the Town of Chelmsford, Middlesex County, Massachusetts
(the "Premises") shown as Lot 1 on a plan entitled "Plan of Land in Chelmsford,
Mass.", (the "Plan") prepared for Xxxxxxxx Chelmsford Trust, dated August 9,
1985, prepared by Xxxxxxx, Xxxxxxxx & Associates, Inc., recorded with the
Middlesex North District Registry of Deeds in Plan Book 152, Page 115, bounded
and described as follows:
SOUTHERLY by Riverneck Road as shown on the Plan, in two courses
measuring, respectively, 91.90 feet and 60.00 feet
SOUTHWESTERLY by land shown on the Plan as Lot 2-B, 56.04 feet;
SOUTHWESTERLY by said Lot 2-B, in five courses measuring, and
WESTERLY respectively, 8.46 feet, 61.09 feet, 218.68 feet, 47.26
feet, 37.60 feet;
SOUTHERLY by said Lot 2-B, 25.00 feet;
WESTERLY by said Lot 2-B, 77.00 feet;
SOUTHWESTERLY by said Lot 2-B, 133.97 feet;
WESTERLY by said Lot 2-B, 287.06 feet;
NORTHERLY by land shown on the Plan as Lot 3, 41.15 feet;
NORTHWESTERLY by said Lot 3, 180.51 feet;
NORTHEASTERLY by said Lot 3, 46.00 feet;
NORTHWESTERLY by said Lot 3, 125.00 feet;
NORTHEASTERLY by land shown on the Plan as of the Commonwealth of
Massachusetts, 104.00 feet;
EASTERLY by land shown on the Plan as now or formerly of Riverneck
Realty Trust, 636.94 feet;
SOUTHERLY by land shown on the Plan as now or formerly of XxXxxxxxx,
103.13 feet;
EASTERLY by the same, 172.12 feet.
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The Premises contain 6.40 acres of land, according to the Plan.
The Premises are subject to and have the benefit of the rights,
restrictions easements and reservations listed below:
1. Easement granted by Xxxxxxx Xxxxxxxx and Xxxxxx Xxxxxxxx to Merrimack-Essex
Electric Company to construct and maintain utility poles dated
September 24, 1959 and recorded with said Deeds in Book 1455, Page 365.
2. Easement granted by Xxxx X. Xxxxxxxx and P. Xxx Xxxxxxxx, Trustees of
Xxxxxxxx Chelmsford Trust to New England Telephone and Telegraph dated
May 16, 1984 and recorded with said Deeds in Book 2753, Page 278.
3. Grant of Easements from Xxxx X. Xxxxxxxx and P. Xxx Xxxxxxxx, Trustees of
Xxxxxxxx Chelmsford Trust to Xxxx X. Xxxxxxxx and P. Xxx Xxxxxxxx, Trustees
of Riverneck Realty Trust, dated March 17, 1986 and recorded with said
Deeds in Book 3389, Page 348, as affected by an Amendment dated October 7,
1997 and recorded with said Deed in Book 8825, Page 208.
4. Rights and easements contained in the deed from Xxxx X. Xxxxxxxx and P. Xxx
Xxxxxxxx, Trustees of Xxxxxxxx Chelmsford Trust to Xxxxxxxx Chelmsford
Corporation, dated March 17, 1986 and recorded with said Deeds in Book
3389, Page 337.
5. Rights and easements contained in the deed from Xxxx X. Xxxxxxxx and P. Xxx
Xxxxxxxx, Trustees of Xxxxxxxx Chelmsford Trust to Xxxxxxxx Chelmsford &
Associates Limited Partnership dated December 5, 1986, recorded with said
Deeds in Book 3818, Page 249.
