PURCHASE AND SALE AGREEMENT
---------------------------
1. PARTIES
This 28th day of January, 1998, Xxxx X. Xxxxxxxx, Xxxxxxx Xxxxxxxx and
E. Xxxxx Xxxxxxxx, Trustees of 175 Amlegion Realty Trust, u/d/t dated April 10,
1995, and recorded with the Suffolk County Registry of Deeds in Book ___, Page
______, with an address c/o Syratech Corporation, 000 XxXxxxxxx Xxxxxxx, X.X.
Xxx 0000, X. Xxxxxx, XX 00000-0000 (hereinafter referred to as "Seller") agrees
to sell and The Claremont Company, Inc., (hereinafter referred to as "Buyer"),
agrees to buy, upon the terms hereinafter set forth, the premises described in
Paragraphs 2 and 3 below.
2. DESCRIPTION
The land commonly known as and numbered 000 Xxxxxxxx Xxxxxx Xxxxxxx,
Xxxxxx, Xxxxxxxxxxxxx, more particularly described in Exhibit A attached hereto
and hereby made a part hereof (the "Premises").
3. BUILDINGS, STRUCTURES, IMPROVEMENTS, FIXTURES
Intentionally deleted.
4. TITLE DEED
The Premises are to be conveyed by quitclaim deed to Buyer, which deed
shall convey a good and clear record and marketable title thereto, free from all
encumbrances, except:
(a) Provisions of all applicable building, zoning, health, land use
control, or other laws, ordinances or regulations which may affect the use,
maintenance or ownership of the Premises.
(b) Such real estate and personal property taxes for the current fiscal
tax year as are not due and payable at the time of the closing, which the Buyer
shall assume and agree to pay.
(c) Any liens for municipal betterments to be constructed after the
Closing Date which at the time of closing the Buyer shall assume and agree to
pay by execution of such instruments as Seller may require.
(d) Any covenant, restriction, easement or other matter of record
recorded with the Suffolk County Registry of Deeds as of the date that the Buyer
completes its title examination within the Inspection Period (defined in
Paragraph 20 hereof) to which the Buyer has not objected. The Seller covenants
with the Buyer that without Buyer's consent, no further encumbrances will be
placed against the Premises by the Seller subsequent to the execution of this
Agreement.
5. PURCHASE PRICE
The agreed purchase price for said Premises is One Million Nine Hundred
Thousand and 00/100 Dollars ($1,900,000.00). A deposit of Two Hundred Thousand
and 00/100 Dollars ($200,000.00) (the "Deposit") has been paid by the Buyer on
or before this date. The remainder of the purchase price, as set forth above, is
to be paid on the Closing Date in immediately available funds, or at Seller's
option, by certified or bank check or by wire transfer.
6. TIME FOR PERFORMANCE; DELIVERY OF DEED
Such deed and other documents to be delivered by Seller and Buyer
hereunder at the time of closing shall be delivered at the offices of Xxxxxx &
Hannah, L.L.P., 000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 at 10 o'clock
A.M. two hundred forty (240) days from the date hereof (or, in the event such
date falls on a weekend or holiday, to the next business day thereafter) (the
"Closing Date"), unless otherwise extended as hereinafter provided. Time is of
the essence of this Agreement.
7. POSSESSION AND CONDITION OF PREMISES
On the Closing Date, Seller shall deliver to Buyer full possession of
the Premises, free and clear of all tenants and occupants, the Premises to be
then in the same condition as they now are, reasonable wear and tear excepted.
8. 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, then the Seller shall use reasonable efforts to remove any defects in
title, or to deliver possession as provided herein, or to make the said Premises
conform to the provisions hereof, as the case may be, in which event the time
for performance shall be extended for a period of thirty (30) days, provided
that reasonable efforts shall not require the expenditure by Seller of more than
$10,000, including attorneys fees. Such $10,000 limitation shall not include
voluntary encumbrances placed on the Premises by Seller.
9. FAILURE TO PERFECT TITLE OR MAKE PREMISES CONFORM
If at the expiration of the extended time for performance the Seller
shall have failed 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, any payments made under this Agreement shall be forthwith
refunded and all other obligations of the parties hereto shall cease and this
Agreement shall be void and without recourse to the parties hereto.
10. BUYER'S ELECTION TO ACCEPT TITLE
Notwithstanding anything in this Agreement to the contrary, 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 and
to pay therefor the full purchase price without deduction, in which case the
Seller shall convey such title.
11. ACCEPTANCE OF DEED
The acceptance and recording of a deed by the Buyer shall be deemed to
be a full performance and discharge of every agreement and obligation herein
contained or expressed, and Buyer thereafter shall have no right or claim
against Seller with respect to this Agreement or the Premises, including,
without limitation, any claim relating to the condition of the Premises or any
state of facts regarding the Premises, including any set forth in this
Agreement, whether or not known to the Seller or discoverable by the Seller at
the time of the execution of the Agreement, at the time of the delivery of the
deed, or at any other time. Buyer agrees that its purchase of the Premises is
made on an "as-is" basis.
12. USE OF PURCHASE MONEY TO CLEAR TITLE
To enable the Seller to make conveyance as herein provided, the Seller
may, 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 and the
parties may make arrangements for the delivery and recording of any such
discharges after delivery of the deed in accordance with prevailing conveyancing
practices.
13. ADJUSTMENTS
Real estate and personal property taxes, water, sewer use, fuel, gas
and other obligations of or credits to Seller relating to the Premises, shall be
adjusted ratably as of the date of closing and the net amount thereof shall be
added to or deducted from the purchase price, as the case may be. The cost of
all transfer taxes arising out of the recording of the deed in connection with
this transaction shall be borne by the Seller. The costs of title search and
certification, title insurance (if any) and recording costs arising out of this
transaction shall be borne in accordance with prevailing conveyancing practices
in Suffolk County, Massachusetts.
14. ADJUSTMENT OF UNASSESSED AND ABATED TAXES
If the amount of said taxes is not known at the time of the delivery of
the deed, they shall be apportioned on the basis of the taxes assessed for the
preceding year, with a reapportionment as soon as the new tax rate and valuation
can be ascertained; and, if the taxes which are to be apportioned shall
thereafter be reduced by abatement, the amount of such abatement, less the
reasonable cost of obtaining the same, shall be apportioned between the parties,
provided that neither party shall be obligated to institute or prosecute
proceedings for an abatement except as herein agreed. The provisions of this
Paragraph 14 shall survive delivery of the deed hereunder.
15. BROKERAGE
The Buyer and Seller represent and warrant that neither has dealt with
a broker or agent with respect to this transaction or with respect to the
Premises. Each party covenants and agrees, on account of its actions with
respect to this sale, to indemnify, hold harmless and defend the other
party from and against all claims for brokerage or commission by any party on
account of this sale. The provisions of this Paragraph 15 shall survive delivery
of the deed hereunder.
16. DEPOSIT
The Deposit shall be held in escrow by Xxxxxxxx, Xxxxxxx & Xxxxxxx,
subject to the terms of this Agreement, and shall be duly accounted for at the
time of closing. Any income earned on the Deposit (which shall be part of the
Deposit) shall be paid to Seller, except in the case of a default hereunder, in
which case interest shall follow the Deposit. Seller's Federal Tax
Identification Number is 00-000-0000. Buyer's Federal Tax Identification Number
is 00-000-0000.
17. DEFAULT; DAMAGES
If Buyer shall fail to fulfill the Buyer's agreements herein, the
Deposit (or applicable portion thereof as set forth in Paragraph 28 hereof)
shall be retained by the Seller as liquidated damages, and this Agreement shall
terminate without further recourse to Buyer, at law and in equity.
18. NO ASSIGNMENT
If Buyer either makes an assignment of Buyer's right under this
Agreement or records a copy of this Agreement, at Seller's option, Seller may
declare Seller's obligations hereunder to be null and void, and may deem Buyer
to be in default of Buyer's obligations hereunder, whereupon this Agreement
shall be deemed void and of no further force or effect and all deposits and
interest thereon shall be retained by Seller. Notwithstanding the foregoing,
Buyer shall have the right to assign Buyer's rights under this Agreement to any
entity in which any one or more of Xxx Xxxxxx, The Claremont Company, Inc.,
and/or Xxxxx Xxxx are members of any general partner entity of a limited
partnership or members of a limited liability company or any entity which is
controlled by any one or more of them.
19. BUYER'S ACKNOWLEDGMENT RE: WARRANTIES
Buyer represents, warrants and agrees that there have been no
representations, warranties or Agreements made by or on behalf of Seller as to
any matters concerning the Premises including but not limited to its area,
topography, climate, air, water, water rights, utilities, present or future
zoning, soil, subsoil, the uses for which the Premises are suited, the presence
of oil or hazardous
waste thereon, drainage, or access or with respect to the compliance by the
Premises with any law, bylaw or regulation of any governmental authority, except
as specifically set forth in this Agreement. Furthermore, Buyer represents,
warrants and agrees that it and/or its representatives have or will have made
their own independent inspection and investigation of the Premises. No patent or
latent physical condition of the Premises whether or not now known or
discoverable or whenever discovered shall affect the rights of any party hereto.
Any agreements, warranties or representations not expressly set forth in this
Agreement shall in no way bind Seller, and Buyer expressly waives any right of
rescission and all claims for damages against Seller, its agents and employees,
by reason of any other such statement, representation, warranty, promise or
agreement. This Agreement contains the entire agreement between the parties
hereto and no addition to or modification of any term or provision of this
Agreement shall be effective unless set forth in a writing signed by both Seller
and Buyer.
20. RIGHT OF ENTRY; INSPECTION CONTINGENCY
From the date hereof through the Closing Date, Buyer or its authorized
representative(s) shall have the right to enter on the Premises at reasonable
times, to inspect and measure the Premises, to show the Premises to contractors,
engineers, architects, surveyors, insurers, lenders, and to make legal,
financial, accounting, engineering, feasibility, environmental and market tests,
studies, reviews, analyses, investigations and surveys of the Premises
(collectively, the "Investigations"); all as Buyer may determine necessary and
appropriate and all at Buyer's sole cost and expense. Notwithstanding the
foregoing, in connection with any Investigations:
(a) Buyer may not break any surface of the Premises or otherwise
perform any invasive activities at the Premises, including, without
limitation in connection with any environmental or geotechnical
testing, except upon providing Seller with five (5) days' advance
notice of such subsurface testing. Seller's duly authorized
representative(s) shall have the right to be present for such
testing.
(b) Buyer may, at its sole cost and expense, engage an environmental
consultant to conduct environmental testing on the Premises. At
least five (5) days
prior to conducting such testing, Buyer shall give Seller a summary
of the proposed scope and location of testing.
(c) Except as set forth above with respect to Buyer's subsurface
testing, Buyer shall notify Seller of Buyer's desire to enter the
Premises at least twenty-four (24) hours prior to the proposed time
for such entry.
(d) Prior to entering upon the Premises, Buyer shall obtain (and
provide Buyer with a certificate evidencing) public liability
insurance (in limits reasonably acceptable to Seller) naming Seller
as an additional insured.
(e) Buyer shall forthwith at its expense, (i) repair any and all damage
to the Premises attributable in whole or in part to any activity
permitted hereunder or any activity, act or omission of Buyer or
any person claiming through Buyer on or about the Premises and (ii)
restore the Premises to the condition it was in immediately prior
to any such entry, activity, act or omission.
(f) Buyer shall indemnify and hold Seller harmless for, from and
against all losses, damage, liabilities, claims, costs and expenses
(including reasonable attorneys' fees) arising out of or in any way
connected with any Buyer's Investigations.
(g) Buyer shall, at its expense, upon Seller's instruction, deliver to
Seller copies of all plans, specifications, tests, studies,
reviews, analyses, investigations and surveys conducted pursuant to
this Paragraph 20 (the "Studies").
The provisions of the foregoing clauses (a) and (f) shall survive the
termination of this Agreement prior to the Closing, and the provisions of the
foregoing clause (e) shall survive the Closing or any earlier termination of
this Agreement. Furthermore, in the event of a termination of this Agreement
prior to the Closing, Buyer shall assign to Seller all of Buyer's right, title
and interest in and to any such Studies as Seller may, at its option, from time
to time thereafter request. In contemplation of such assignment, Buyer shall
have all of such Studies performed for the mutual benefit of Buyer and Seller
and such Studies shall name Seller as a party entitled to
rely thereon. The provisions of the preceding sentence shall survive the
termination of this Agreement prior to the Closing.
Seller shall deliver to Buyer within five (5) business days after the
date of this Agreement, a copy of any environmental reports in Seller's
possession and control relating to the Premises. Within sixty (60) days of the
date hereof, (the "Inspection Period") if Buyer is not satisfied in its sole
discretion with the results of any Studies which are conducted pursuant to the
terms hereof, or the results of title searches or any other reviews or
investigations regarding the Premises, Buyer may terminate this Agreement by
written notice to Seller, whereupon the Seller shall return the Deposit to the
Buyer and this Agreement shall terminate without further recourse to the
parties, except as otherwise expressly set forth herein. If the Buyer fails to
deliver a notice of termination aforesaid, Buyer's right to terminate under this
Paragraph 20 shall be deemed waived and notwithstanding anything set forth in
Paragraph 27 to the contrary, the Escrow Agent shall release one-half of the
Deposit ($100,000.00) to Seller, which funds shall become property of the Seller
and shall not be refundable to Buyer for any reason thereafter, except in the
event of Seller's failure to comply with its obligations hereunder as provided
more particularly under Paragraph 28 hereof, but shall be credited against the
Purchase Price at the time of closing.
21. PERMITS AND APPROVALS FOR USE OF PREMISES
Seller makes no representation or warranty as to the existence,
issuance, status or any other matter relating to any permits, licenses and other
permissions or approvals required from any state, federal, city or other public
authority for the operation of the Premises or for any other purposes and Buyer
agrees that the nonexistence of or any defect in the same shall be Buyer's sole
responsibility and that Seller shall have no obligation to provide the same or
cure any defect in the same as a condition to Buyer's obligations hereunder.
The foregoing notwithstanding, the Seller agrees that the Seller shall
cooperate with the Buyer in all reasonable respects in connection with the
pursuit of any permits, special permits, approvals, or other filings the Buyer
is required to make to any applicable state or local authority in
connection with the anticipated development of a hotel on the Premises. Seller's
obligation to cooperate as set forth above shall be at no cost or expense to the
Seller.
22. NOTICES
All notices required hereunder shall be given in writing by registered
or certified mail, return receipt requested, or by any nationally recognized
overnight delivery company as follows:
a. If to Seller: To the address set forth in paragraph one hereof
Attention E. Xxxxx Xxxxxxxx
Fax No. (000) 000-0000
with a copy to: Xxxx X. Xxxxxxxx, Esquire
Fax No. (000) 000-0000
and with a copy to: Xxxxx Xxxxxx, Esq.
Xxxxxxxx, Xxxxxxx & Xxxxxxx
A Professional Corporation
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Fax No. (000) 000-0000
b. If to Buyer: To the address set forth in paragraph one hereof
with a copy to: Xxxxx X. XxXxxxxxx, Esquire
Xxxxxx & Hannah, LLP
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Fax No. (000) 000-0000
23. CONSTRUCTION OF AGREEMENT
This instrument, executed in triplicate, is to be construed as a
Massachusetts contract, is to take effect as a sealed instrument, sets forth the
entire agreement between the parties, is binding upon and inures to the benefit
of the parties hereto and their respective permitted successors and assigns, and
may be canceled, modified or amended only by a written instrument executed by
both Seller and Buyer. The captions and marginal notes are used 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. For purposes of any action or proceeding
involving this Agreement, each party expressly submits to the jurisdiction of
all federal and state courts located in the Commonwealth of Massachusetts and
consents that any order, process, notice of motion or other application to or by
any of said courts or a judge thereof may be served within or without such
courts's jurisdiction by registered mail or personal service, provided that a
reasonable time for appearance is allowed (but not less than the time afforded
by any law or rule), and waives any right to contest the appropriateness of any
action brought in any such court based upon lack of personal jurisdiction,
improper venue or forum non conveniens.
24. FURTHER ASSURANCES
Following the execution of this Agreement, Buyer and Seller shall
cooperate fully with each other so as to take any and all actions and execute
any and all documents as are reasonably necessary to facilitate the transaction
contemplated by this Agreement.
25. AS IS
The Premises is sold "as is" and as shown, and no representations have
been made by Seller in regard to its condition except those contained in this
Agreement. Buyer and Seller agree that they have incorporated in this Agreement
their entire understanding and no oral statement or prior written statement made
by either of them or by any other person extrinsic to this Agreement shall have
any force or effect. Buyer agrees that Buyer is not relying on any
representations, oral or written, concerning the age, condition, workmanship or
suitability of the Premises or any part thereof for any purposes made by any
person, other than those representations expressly set forth in this Agreement
or in other documents expressly made a part hereof.
26. LEASES; INCOME AND EXPENSE STATEMENT.
Intentionally deleted.
27. ESCROW PROVISION.
The Deposit shall be held and controlled, as specified in this
Agreement, by Seller's attorneys, Xxxxxxxx, Xxxxxxx & Xxxxxxx (for the purposes
hereof, the "Escrow Agent"). It is understood and agreed that the Escrow Agent
shall promptly, when collected by it, place the Deposit in an
insured interest-bearing account at a bank, trust company or institutional
depositary in Boston, Massachusetts. At the closing hereunder, the Deposit will
be credited or paid to Seller, and all interest which has been earned on the
Deposit shall be paid to Seller. If the closing does not occur for any reason
whatsoever and this Agreement is terminated, then all such interest will be
delivered with and paid to the party ultimately receiving the Deposit. The
Escrow Agent will have no responsibility to maximize such interest, but only to
place the Deposit in an account as provided for herein promptly upon collection
thereof by the Escrow Agent. The Escrow Agent will not be liable for any failure
of the institution in which the Deposit is being held. It is acknowledged that
the Escrow Agent is counsel for Seller, and Buyer agrees that Escrow Agent may
continue to act as such counsel notwithstanding its role as Escrow Agent even in
the event of any dispute between the parties relating to this transaction. In
the event of any dispute relating to the right of possession or the disposition
of the Deposit, the Escrow Agent will retain dominion and control over the same
until such dispute shall have been settled by mutual Agreement of Buyer and
Seller with notice thereof to Escrow Agent, whereupon the Deposit will be paid
over in accordance with such mutual Agreement of the parties; or, if such
dispute is taken to a court of competent jurisdiction, the Deposit will be paid
over into the custody of such court or otherwise paid over in accordance with
the final order, decree or judgment of such court. It is contemplated that the
Escrow Agent will not incur any cost or expense in the performance of its duties
hereunder; and, in the event of a dispute, Escrow Agent shall be reimbursed for
its reasonable out-of-pocket costs and expenses incurred in connection with such
dispute and the settlement thereof, such reimbursement to be made between Buyer
and Seller as they may mutually agree incident to the settlement of such
dispute; or, if such dispute shall be resolved by a final order, decree or
judgment by a court as aforesaid, such reimbursement shall be made by the
unsuccessful party in such proceeding. In no event shall Escrow Agent be under
any duty to institute or defend any such proceeding nor shall Escrow Agent be
required under any circumstances to take any action requested by Seller or Buyer
until indemnified to Escrow
Agent's reasonable satisfaction by the party or parties requesting such action.
Escrow Agent shall not be liable to any party except for actions taken in bad
faith.
28. BUYER'S EXTENSION
In the event Buyer is unable to obtain any permits Buyer deems
necessary for Buyer's intended use of the Premises, Buyer may elect to extend
the Closing Date hereunder for two (2) periods of ninety (90) days each (each an
"Extension Period") upon the following terms and conditions. Fourteen (14) days
prior to the Closing Date (as the same may be extended hereunder), Buyer shall
deliver notice to Seller of its election so to extend the Closing Date (an
"Extension Notice") to that date which is ninety (90) days from the
then-scheduled Closing Date (or in the event such date falls on a weekday or
holiday, to the next business day thereafter). Upon Seller's receipt of Buyer's
first Extension Notice, notwithstanding anything set forth in Paragraph 27 to
the contrary, the balance of the Deposit ($100,000.00) shall be released by the
Escrow Agent to Seller, and such funds shall become property of the Seller and
shall not be refundable to Buyer for any reason thereafter except as set forth
below, but shall be credited against the Purchase Price at the time of closing.
In the event that the Buyer elects not to extend the Closing Date and does not
close on the Closing Date for any reason, the $100,000 then being held in escrow
shall be immediately returned to the Buyer. As a condition precedent to Buyer's
exercise of its right to extend the terms of this Agreement for a second
Extension Period, Buyer shall pay directly to Seller simultaneously with the
Extension Notice $50,000, which amount shall be non-refundable, but credited
against the Purchase Price at the time of closing. During the Extension
Period(s), the Buyer shall also pay to the Seller, at the commencement of each
30-day period, $9,000 which shall constitute an extension payment on account of
Buyer's extension of the terms hereof for such 30-day period (or any part
thereof) and shall not be applied to reduce the Purchase Price. Buyer may,
during any Extension Period, establish a Closing Date earlier than the last day
of such Extension Period, upon ten (10) days' written notice to Seller.
Notwithstanding anything to the contrary herein contained, in the event that the
Seller does not comply with its obligations hereunder, all Deposits and
extension payments paid hereunder shall, at the Buyer's option, be
returned to the Buyer in addition to, and not in limitation of, the other rights
available to the Buyer under the terms of this Agreement or by applicable law,
including the right to seek specific performance of the Seller's material
obligations hereunder.
Executed as an instrument under seal as of the date first above written.
SELLER: BUYER:
175 AMLEGION REVERE REALTY TRUST THE CLAREMONT COMPANY, INC.
By: /s/ Xxxx X. Xxxxxxxx /s/ Xxxxxx X. Xxxx
__________________________________ _______________________________
Xxxx X. Xxxxxxxx, trustee and not Name: Xxxxxx X. Xxxx
individually Title: Vice President
By: /s/ Xxxxxxx Xxxxxxxx
__________________________________
Xxxxxxx Xxxxxxxx, trustee and not
individually
By: /s/ E. Xxxxx Xxxxxxxx
__________________________________
E. Xxxxx Xxxxxxxx, trustee and not
individually
231867-6
EXHIBIT A
(Property Description for land located at
000 Xxxxxxxx Xxxxxx Xxxxxxx, Xxxxxx, XX)
