EXHIBIT 10.1
PURCHASE AND SALE AGREEMENT
0 Xxxxxxx Xxxxxx Xxxxx, Xxxxxxxxxxx, Xxxxxxxxxxxxx
This Purchase and Sale Agreement (this "Agreement") is made as of the
Effective Date (defined below), by and between BERKSHIRE-NEWBURYPORT LIMITED
PARTNERSHIP, a Massachusetts limited partnership ("Seller") and VARIAN
SEMICONDUCTOR EQUIPMENT ASSOCIATES, INC., a Delaware corporation ("Buyer").
R E C I T A L S
Seller is the owner of the Property (as defined below) and Seller desires
to sell, and Buyer desires to purchase the Property upon and subject to the
terms and conditions hereinafter set forth.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Seller and Buyer agree as follows:
ARTICLE 1: SCHEDULE; DEFINITIONS; PURCHASE PRICE
1.1 Schedule. The following basic terms are made a part of this Agreement:
Purchase Price: $9,052,182.75, which is comprised of (i)
immediately available funds to be wire
transferred to Seller at Closing in the
amount of $3,400,000.00, (ii) assumption of
the Assumed Debt (defined below) in the
amount of $5,152,182.75 (assuming a Closing
Date of January 1, 2003) and (iii) forfeiture
of the $500,000.00 prepayment of rent made by
Buyer, as tenant, under Section 19 of the
Lease ("Rent Prepayment"), plus or minus
prorations and other adjustments as provided
herein, including without limitation
adjustments on account of the Assumed Debt.
In the event the Closing Date occurs after
January 1, 2003, the Purchase Price shall be
reduced to reflect the reduction in the
amount of the Assumed Debt, as set forth in
Section 5.1(g) below.
Xxxxxxx Money: $50,000.00, plus interest thereon.
Effective Date: The latest date of execution of this
Agreement by Seller and Buyer, as indicated
on the signature page.
Escrow Agent: First American Title Insurance Company.
Due Diligence Period: The period from the Effective Date through
the 5:00 p.m. (Boston time) on the date that
is forty (40) days after the Effective Date.
Closing Date: As designated by Buyer upon not less than
five (5) days' prior notice to Seller, but
not later than ten (10) days after the later
of (i) the expiration of the Due Diligence
Period, and (ii) receipt of the written
consent of the Lender (defined below) to the
conveyance of the Property, subject to the
Assumed Debt and the assumption of the
Assumed Debt by Buyer. Notwithstanding the
foregoing, Buyer shall have the right to
extend the Closing Date as set forth in
Section 2.9(c) below. In no event shall the
Closing Date occur prior to January 3, 2003.
Broker: The Chiofaro Company, LLC
Notice Addresses: See Appendix 9.11 attached hereto.
1.2 Definitions. Certain terms, capitalized but not defined in the body of
this Agreement or otherwise designated in Section 1.1 hereof, shall have the
meanings ascribed to them on Appendix 2.2 attached hereto or as set forth below:
"Accepted Service Contracts" shall have the meaning set forth in Section
2.5.
"Affiliate" shall mean: (a) an entity that directly or indirectly controls,
is controlled by or is under common control with the party in question; or (b)
an entity at least a majority of whose economic interest is owned by the party
in question; and the term "control" means the power to direct the management of
such entity through voting rights, ownership or contractual obligations.
"Endorsements" shall mean, to the extent such endorsements are available
under the laws of the state in which the Property is located, (i) extended
coverage, (ii) owner's comprehensive, (ii) access, (iv) creditors' rights, (v)
survey (accuracy of survey), (vi) location (survey legal matches title legal),
(vii) separate tax lot, (viii) plat act/subdivision or legal lot, (ix) zoning
3.1 (with parking and loading docks), (x) contiguity (if applicable), (xi)
restrictions (if applicable), (xii) utility facility endorsement, and (xiii)
such other endorsements as Buyer may require during the Due Diligence Period
based upon its review of the Title Commitment and Survey.
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"Environmental Laws" shall mean, without limitation, the Resource
Conservation and Recovery Act and the Comprehensive Environmental Response
Compensation and Liability Act and other federal, state, county, municipal and
other local laws governing or relating to Hazardous Materials or the environment
together with their implementing regulations, ordinances and guidelines.
"Hazardous Materials" shall mean, without limitation, polychlorinated
biphenyls, urea formaldehyde, radon gas, lead paint, radioactive matter, medical
waste, asbestos, petroleum products, including crude oil or any fraction
thereof, natural gas, natural gas liquids, liquefied natural gas, or synthetic
gas usable for fuel (or mixtures of natural gas or such synthetic gas), and any
substance, material, waste, pollutant or contaminant listed or defined as
hazardous, infectious or toxic under any Environmental Law.
"Improvements" shall mean, all buildings, improvements, fixtures,
structures, parking areas and landscaping located on the Land.
"Intangible Property" shall mean, all right, title and interest of Seller
in and to all intangible personal property owned by Seller and now or hereafter
used in connection with the operation, ownership, maintenance, management, or
occupancy of the Real Property, including, without limitation, any and all of
the following: trade names and trademarks associated with the Real Property; the
plans and specifications for the Improvements, including as-built plans;
unexpired warranties, guarantees, indemnities and claims against third parties;
contract rights related to the construction, operation, repair, renovation,
ownership or management of the Real Property that are expressly assumed by Buyer
pursuant to this Agreement; pending permit or approval applications as well as
existing permits, approvals and licenses (to the extent assignable); insurance
proceeds and condemnation awards to the extent provided in Sections 3.2 or 3.3
of this Agreement; and books and records relating to the Property.
"Land" shall mean, the land described in Exhibit A attached hereto (the
legal description of the land set forth in the Survey [defined below] for the
Property shall control to the extent of any inconsistency) and all and singular
the rights, benefits, privileges, easements, tenements, hereditaments, and
appurtenances thereon or in anywise appertaining to the Land, including any and
all mineral rights, development rights, water rights and the like; and all
right, title, and interest of Seller in and to all strips and gores and any land
lying in the bed of any street, road or alley, open or proposed, adjoining the
Land.
"Lease" shall mean that certain Lease dated as of October 30, 1995 between
Seller, as landlord, and Genus, Inc., as tenant ("Original Tenant"), as amended
by a First Amendment to Lease dated as of November 8, 1995 between Seller and
Original Tenant, and a Second Amendment to Lease dated as of October 30, 1996
between Seller and Original Tenant, and assigned pursuant to that certain
Agreement Regarding Assignment and Transfer of Letter of Credit dated as of
April 12, 1999, between Varian Medical Systems, Inc., Varian Semiconductor
Equipment Associates, Inc. and Seller.
"Permitted Exceptions" shall mean, exceptions approved by Buyer pursuant to
this Agreement, real estate taxes not yet due and payable and tenants in
possession as tenants only
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under the Lease without any option to purchase or right of first refusal with
respect to the Property.
"Personal Property" shall mean, all right, title and interest of Seller in
and to all tangible personal property owned by Seller and now or hereafter used
in connection with the operation, ownership, maintenance, management, or
occupancy of the Real Property, including, without limitation, all equipment,
machinery, heating, ventilating and air conditioning units, furniture, art work,
furnishings, trade fixtures, office equipment and supplies, and, whether stored
on or off-site, all tools and maintenance equipment, supplies, and construction
and finish materials not yet incorporated in the Improvements but held for
repairs and replacements.
"Property" shall mean, the Real Property, the Lease, the Rents, the
Personal Property, the Intangible Property and the Accepted Service Contracts.
"Real Property" shall mean, the Land and the Improvements.
"Rents" shall mean all income from the Real Property, including without
limitation, all fixed or base rent, percentage rent, additional rent or other
amounts payable by the tenant under the Lease with respect to operating
expenses, taxes or other charges under the Lease.
"Service Contracts" shall mean, all service contracts and other contracts,
agreements or instruments relating to the ownership, use, management or
operation of the Property, including equipment leases or any other lease in
which Seller is lessee, but excluding the Lease.
"Survey" shall mean, a current survey of the Real Property prepared by a
surveyor licensed in the jurisdiction in which the Real Property is located and
reasonably acceptable to Buyer, certified to Buyer and the Title Company as
having been prepared in accordance with the ALTA/ACSM 1998 Minimum Standard
Detail Requirements, containing Table A Items 2, 3, 4, 5, 6 , 7(a), 7(c), 8, 10,
11 and 13 and meeting the accuracy requirements of an, as applicable, "urban" or
"suburban" survey.
"Title Commitment" shall mean, a commitment for an ALTA Form B (1992)
owner's title insurance policy for the Real Property in the full amount of the
Purchase Price covering title to the Real Property on or after the date of this
Agreement, showing Seller as the owner of the Property.
"Title Company" shall mean First American Title Insurance Company.
"Title Policy" shall mean, an ALTA Owner's Policy (1992) of title
insurance, with extended coverage, issued by the Title Company as of the date
and time of the recording of the Deed for the Property, in the amount of the
Purchase Price, containing the Endorsements, insuring Buyer as the owner of fee
simple title to the Property, subject only to the Permitted Exceptions.
1.3 Xxxxxxx Money. Within two (2) business days after the Effective Date,
Buyer shall deposit the Xxxxxxx Money with the Escrow Agent. Contemporaneously
with the execution of this Agreement, Seller, Buyer and the Escrow Agent shall
execute the escrow agreement
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substantially in the form of Appendix 1.3 attached hereto (the "Escrow
Agreement"). The Xxxxxxx Money shall be held and disbursed as provided in the
Escrow Agreement.
ARTICLE 2: INSPECTION
2.1 Due Diligence; Indemnity. Buyer shall have the Due Diligence Period in
which to examine, inspect, and investigate the Property and, in Buyer's sole and
absolute judgment and discretion, to determine whether the Property is
satisfactory to Buyer.
Upon reasonable advance notice to Seller, Buyer and its agents, employees
and representatives, contractors, architects and other parties designated by
Buyer ("Buyer's Representative") shall, during the term of this Agreement, have
reasonable access to the Property and all books and records for the Property
that are in Seller's or its property manager's possession or control for the
purpose of conducting analyses, surveys, architectural, engineering,
geotechnical and environmental inspections and tests (including reasonable
intrusive inspection and sampling), and any other inspections, studies, or tests
reasonably required by Buyer. In the course of its investigations, Buyer may
make inquiries to third parties, including, without limitation, tenants,
lenders, contractors, property managers, parties to Service Contracts and
municipal, local and other government officials and representatives. The parties
acknowledge that Buyer is in possession of the Property and Seller will not
require that Seller accompany Buyer during Buyer's inspection and investigation
of the Property.
Buyer shall keep the Property free and clear of any liens arising out of
such entry and inspection and will indemnify, defend, and hold Seller harmless
from all such liens and any claims asserted by third parties against Seller
(other than those arising out of Seller's negligence or willful misconduct) to
recover for personal injury or property damage as a result of Buyer's
Representative's entry onto the Property. If any inspection or test damages the
Property, Buyer will restore the Property to its condition immediately prior to
any such inspection or test. Buyer's obligations under this Section 2.1 shall
survive the termination of this Agreement.
2.2 Seller's Delivery of Specified Documents. In order to assist Buyer
with its inspection and review of the Property, Seller hereby certifies that
Seller has delivered to Buyer true, correct and complete copies of the items set
forth on Appendix 2.2 to this Agreement with respect to each Property
(collectively, the "Property Information"). If any such item is not in Seller's
or its property manager's possession or control or reasonably capable of being
generated by Seller or its property manager, Seller hereby certifies that
Appendix 2.2 accurately states "None" with respect to such items. During the
term of this Agreement, Seller shall provide Buyer with any document described
above as and when it comes into Seller's or its property manager's possession or
control or is produced by Seller or its property manager after the initial
delivery of the Property Information. Without limiting the foregoing, Seller
shall make all other documents, files and information concerning the Property in
Seller's possession or control available for Buyer's inspection at the Property
or such other location as shall be mutually agreed by the parties.
2.3 Title and Survey. Buyer shall, at its cost and expense, cause to be
prepared and delivered to Buyer with respect to the Property (i) the Title
Commitment, (ii) true, complete and legible copies of all documents referenced
in the Title Commitment, and (iii) the Survey
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2.4 Objection Notice. If Buyer is not satisfied in its sole discretion
with any of its inspections, reviews or with any other matter concerning the
Property, Buyer may, on or prior to the expiration of the Due Diligence Period,
either (i) terminate this Agreement by notice to Seller, in which event the
Xxxxxxx Money shall be immediately returned to Buyer and neither party shall
have further obligations hereunder, except as specifically set forth herein or
(ii) accept the Property by providing written notice to Seller of such
acceptance or (iii) raise certain objections by providing notice in writing (the
"Objection Notice"), which Objection Notice may, at Buyer's option, specify
which matters (the "Objections") Buyer does not find satisfactory with respect
to the Property. If Buyer does not timely provide an Objection Notice or an
acceptance notice, Buyer shall be deemed to have terminated this Agreement as
provided above.
If Buyer timely provides an Objection Notice, Seller shall have ten (10)
days after delivery of such Objection Notice to remove or cause to be corrected
to Buyer's satisfaction, all of such Objections. In all cases, Seller shall be
obligated at Closing to fully discharge all liens of a definite and
ascertainable amount that are not specifically assumed or accepted by Buyer in
writing as well as those exceptions or encumbrances to title which arise after
the date of the Title Commitment. If the aggregate amount of such liens or
encumbrances exceeds the Purchase Price for the Property (plus or minus
prorations), Seller shall, during such ten (10) day period, provide evidence
reasonably satisfactory to Buyer of Seller's financial ability to fully
discharge such excess amounts.
If Seller fails or refuses to cause the Objections to be removed and
corrected to Buyer's satisfaction within such ten (10) day period, or fail to
present evidence of its financial ability to satisfy such excess liens by such
date, then Buyer shall elect, on or prior to the date and time that is twenty
(20) days after the delivery of the Objection Notice, at 5:00 p.m., Boston time,
to (i) terminate this Agreement, in which event the Xxxxxxx Money shall be
immediately returned to Buyer and neither party shall have any further
obligations hereunder, except as specifically set forth herein or (ii) accept
the Property subject to any Objections and proceed to close, with the further
right to deduct from the Purchase Price amounts secured by liens of a definite
or ascertainable amount which Seller has not removed as provided herein as well
as amounts required to remove any exceptions or encumbrances which arise after
the date of the Title Commitment. If Buyer makes no such election, Buyer shall
be deemed to have elected to terminate this Agreement as provided above.
If after the expiration of the Due Diligence Period, the Title Company
revises the Title Commitment or the surveyor revises the Survey to add or modify
exceptions, or to add or modify the conditions to obtain any of the
Endorsements, then, unless Buyer elects by notice to Seller to accept such
exceptions or conditions within ten (10) days after being notified thereof, then
this Agreement shall be deemed terminated as provided above. If, within such ten
(10) day period, Buyer notifies Seller that it objects to such new matters (the
"Post-Commitment Objection Notice") then Seller will have ten (10) days after
delivery of such Post-Commitment Objection Notice to remove or cause to be
corrected to Buyer's satisfaction, all of such new matters. If Seller fails or
refuses to cause such new matters to be removed or corrected to Buyer's
satisfaction within such ten (10) day period, then Buyer shall elect, on or
prior to the date and time that is twenty (20) days after the delivery of the
Post-Commitment Objection Notice, at 5:00 p.m., Boston time, to (i) terminate
this Agreement or (ii) accept the Property subject to such new
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matters and proceed to close, with the further right to deduct from the Purchase
Price amounts secured by liens of a definite or ascertainable amount which
Seller has not removed as provided herein as well as amounts required to remove
such new matters. If Buyer makes no such election, Buyer shall be deemed to have
elected to terminate this Agreement as provided above.
If necessary, the Closing Date shall be extended the number of days
necessary to give effect to the notice and cure periods set forth in this
Section 2.4.
2.5 Service Contracts. During the Due Diligence Period, Buyer shall notify
Seller as to which Service Contracts Buyer will assume (the "Accepted Service
Contracts"). Buyer will assume the obligations arising from and after the
Closing Date under the Accepted Service Contracts that are not in default as of
the Closing Date. Seller shall terminate at Closing all Service Contracts that
are not so assumed and if Buyer fails to timely provide notice of acceptance,
Buyer shall be deemed to not have assumed any Service Contracts.
2.6 Intentionally Omitted.
2.7 Intentionally Omitted.
2.8 CCRs. If the Property is subject to a declaration of covenants,
conditions and restrictions or similar instrument ("CCRs") governing or
affecting the use, operation, maintenance, management or improvement of such
Property, then as a condition to Buyer's obligation to close, at Closing, Seller
shall deliver into the escrow: (i) estoppel certificates, in form and substance
satisfactory to Buyer, from the declarant, association, committee, agent and/or
other person or entity having governing or approval rights under the CCRs, and
(ii) a recordable assignment, in form and substance satisfactory to Buyer,
assigning any and all developer, declarant or other related rights or interests
of Seller (or any Affiliate of Seller) in or under the CCRs.
2.9 Assumed Debt. The Property is to be conveyed without release of, and
the Buyer shall accept title to the Property subject to, the lien of the
existing mortgage and related security instruments and documents listed on
Appendix 2.9 attached hereto in favor of Wachovia Securities ("Lender") with
respect to the Property, which mortgage and related documents secures
indebtedness evidenced by a promissory note in favor of Lender in the original
principal amount of $6,623,019.00 (the "Assumed Debt") (herein, such mortgage,
promissory note and related documents are sometimes collectively referred to as
the "Loan Documents"). Such acceptance of the Assumed Debt shall be made in
accordance with the following:
(a) Conditions to Assumption. It shall be a condition precedent to the
obligations of the Buyer to close this transaction subject to the Loan Documents
that (i) any required consent of Lender to the conveyance of the Property
subject to the Assumed Debt and the assumption of the Assumed Debt by the Buyer
shall have been obtained from Lender; (ii) any terms and conditions imposed by
Lender in connection with issuing such consent shall be satisfactory to the
Buyer in its sole discretion; (iii) the Buyer shall not be obligated to assume
any personal liability for any of the undertakings under the Loan Documents,
other than the exceptions to non-recourse provisions in the Loan Documents that
relate to events, acts or omissions first arising on or after the Closing Date;
(iv) as of the Closing Date there shall not exist any uncured default under the
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Loan Documents and Seller shall have paid in full all interest and other amounts
(including, without limitation, installments of principal and interest and any
applicable fees, charges or penalties) which are due and payable under the Loan
Documents at or prior to Closing; (v) the form of agreement pursuant to which
the Buyer shall assume the borrower's obligations under the Loan Documents from
and after the Closing shall be satisfactory to the Buyer in its sole discretion
shall have been executed by Lender, shall contain such modifications to the Loan
Documents as Buyer reasonably requires and shall contain an acknowledgment from
the Lender that it has no knowledge of any uncured defaults under the Loan
Documents and (vi) as of the Closing Date the principal balance of the Assumed
Debt shall not exceed $5,152,182.75, which is the projected principal balance of
the Assumed Debt as of January 1, 2003.
(b) Assumption Costs. All transfer or other fees charged by Lender and any
costs and expenses charged by Lender in connection with the transfer of the
Property subject to the Assumed Debt, recording costs and expenses relating to
the recordation of any mortgage assignment agreement or other documentation
relating to the transfer of the Property subject to the Assumed Debt, attorneys'
fees incurred by Lender, any title insurance premiums or costs for endorsements
required by Lender, and any other costs and expenses relating to the transfer of
the Property subject to the Assumed Debt shall be paid by Buyer, with the
exception that Seller shall pay all assumption fees required by Lender.
(c) Cooperation. The parties shall cooperate in good faith and with reasonable
diligence to secure the approval of the Lender to the conveyance of the Property
subject to the Assumed Debt to the Buyer. The Buyer shall have the right to
negotiate directly with Lender concerning Lender's consent. The Buyer and Seller
shall promptly provide to Lender all information they may reasonably require in
order to obtain Lender's consent. If the conditions set forth in this Section
2.9 have not been satisfied by February 1, 2003, then Buyer may, by delivering
written notice to the Seller on or before February 1, 2003, (i) extend the
Closing Date for up to three (3) periods of thirty (30) days each (each an
"Extension Period"), (ii) terminate this Agreement, whereupon the Xxxxxxx Money
shall be returned to the Buyer and the parties will have no further obligations
under this Agreement, except as expressly stated herein or (iii) waive such
requirement. If the Buyer fails to make a timely election, Buyer shall be deemed
to have elected to terminate this Agreement. In the event Buyer elects to extend
the Closing Date pursuant to this Section 2.9(c) and the conditions set forth in
this Section 2.9 have not been satisfied by the end of the final Extension
Period, Buyer may by delivering written notice to Seller on or before the last
day of the final Extension Period, terminate this Agreement, whereupon the
Xxxxxxx Money shall be returned to the Buyer and the parties will have no
further obligations under this Agreement, except as expressly stated herein, or
waiver such requirement. If the Buyer fails to make a timely election, Buyer
shall be deemed to have elected to terminate this Agreement.
ARTICLE 3: OPERATIONS AND RISK OF LOSS
3.1 Ongoing Operations. From the Effective Date through the Closing Date.
(a) Operation of Property. Seller shall maintain the Property in substantially
its current condition and in compliance with all applicable laws and
regulations. Except as necessary to comply with the preceding sentence, Seller
shall not make any material alterations to the
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Property or any portion thereof without Buyer's prior written consent. Seller
will perform its obligations under the Lease, Service Contracts and other
agreements that may affect the Property.
(b) New Contracts. Seller shall not, without Buyer's prior written consent in
each instance, amend, terminate, exercise any rights or options under, grant
concessions regarding, or enter into any contract or agreement that will be an
obligation affecting the Property or binding on Buyer after Closing, except
contracts entered into in the ordinary course of business that are terminable
without cause or penalty on 30-days' notice (and Seller shall terminate any such
contracts on the Closing Date, unless such contracts are Accepted Service
Contracts).
(c) Listings and Other Offers. Seller will not list the Property with any
broker or otherwise solicit or make or accept any offers to sell all or any part
of the Property, engage in any discussions or negotiations with any third party
with respect to the sale or other disposition of the Property, or enter into any
contracts or agreements (whether binding or not) regarding any disposition of
all or any part of the Property, except as set forth in Section 3.1(b) and (g).
Notwithstanding the foregoing, Seller shall be permitted to enter into a back-up
offer with respect to the Property, provided (i) Seller discloses the existence
of this Agreement to such party offering to buy the Property, and (ii) such
back-up offer does not in any way impede the transaction contemplated by this
Agreement.
(d) Removal and Replacement of Tangible Personal Property. Seller will not
remove any Personal Property except as may be required for necessary repair or
replacement, and repair and replacement shall be of equal quality and quantity
as existed as of the time of its removal.
(e) Maintenance of Insurance. Seller shall carry its existing insurance through
the Closing Date, and shall not allow any breach, default, termination or
cancellation of such insurance policies or agreements to occur or exist.
(f) Maintenance of Permits. Seller shall maintain in existence all licenses,
permits and approvals necessary or reasonably appropriate to the ownership,
operation or improvement of the Property.
(g) Leasing. Not amend, terminate or grant concessions regarding the Lease, or
enter into any lease without Buyer's prior written consent which Buyer may grant
or withhold in its sole discretion. In the event Buyer consents to such
amendment, termination, grant of concession or new lease, the definition of
"Lease" set forth in Section 1.2 hereof shall be modified accordingly. If Buyer
fails to object or otherwise reply to Seller's request for consent within five
(5) business days after receipt of Seller's request and all information
reasonably required in order to make an informed decision, Buyer shall be deemed
to have objected to such proposed action.
(h) Other Actions. Neither Seller, nor its employees, agents or contractors,
shall take or fail to take any action that causes Seller's representations or
warranties to become untrue or that causes one or more of Buyer's conditions to
Closing to be unsatisfied.
(i) Loan Documents. Seller will timely comply with all of the terms and
conditions of the Loan Documents. Seller shall not amend or terminate the Loan
Documents without Buyer's
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prior written consent (which may be withheld in Buyer's reasonable discretion
prior to the expiration of the Due Diligence Period and in the Buyer's sole
discretion after the end of the Due Diligence Period).
3.2 Damage. Risk of loss up to and including the Closing Date shall be
borne by Seller. Seller shall promptly give Buyer written notice of any damage
to the Property, describing such damage, stating whether such damage and loss of
rents is covered by insurance and the estimated cost of repairing such damage.
In the event of any material damage (described below) to or destruction of the
Property or any portion thereof, Buyer may, at its option, by notice to Seller
given within ten (10) business days after Seller has provided the above
described notice to Buyer together with all relevant information concerning the
nature and extent of such damage (and if necessary the Closing Date shall be
extended to give Buyer the full ten (10) business day period to make such
election): (i) terminate this Agreement and the Xxxxxxx Money shall be
immediately returned to Buyer, or (ii) proceed under this Agreement, receive any
insurance proceeds (including any rent loss insurance applicable to any period
on and after the Closing Date) due Seller or Buyer under the insurance carried
by Buyer as tenant of the Property as a result of such damage or destruction and
assume responsibility for such repair, and Buyer shall receive a credit at
Closing for any deductible, uninsured or coinsured amount under said insurance
policies. If Buyer fails to timely make such election, Buyer shall be deemed to
have elected to terminate this Agreement as provided above. If Buyer elects (ii)
above, Buyer may extend the Closing Date for the Property for up to an
additional thirty (30) day period in which to obtain insurance settlement
agreements with Buyer's insurers, and Seller will cooperate with Buyer in
obtaining the insurance proceeds and such agreements from Seller's insurers. If
the Property is not materially damaged, then (i) Buyer shall not have the right
to terminate this Agreement, (ii) Seller shall, to the extent requested and
directed by Buyer, repair the damage before the Closing in a manner reasonably
satisfactory to Buyer, and (iii) at Closing, Buyer shall receive any insurance
proceeds (including any rent loss insurance applicable to any period on and
after the Closing Date) due Seller as a result of such damage or destruction and
Buyer shall receive a credit at Closing for any deductible, uninsured or
co-insured amount under said insurance policies. To the extent Seller has
incurred reasonable market based costs in effecting the repairs requested and
directed by Buyer (which costs have not been assumed by Buyer), Seller shall be
paid a portion of such insurance proceeds in an amount equal to such costs.
"Material damage" and "Materially damaged" means, with respect to the Property,
damage in Buyer's reasonable estimation exceeds $100,000.
3.3 Condemnation. In the event any proceedings in eminent domain are
contemplated, threatened or instituted by any body having the power of eminent
domain that materially effect the use of the Property or any portion thereof,
Buyer may, at its option, by notice to Seller given within ten (10) business
days after Seller provides written notice to Buyer of such proceedings together
with all relevant information concerning such proceedings (and if necessary the
Closing Date shall be extended to give Buyer the full ten (10) business day
period to make such election): (i) terminate this Agreement and the Xxxxxxx
Money shall be immediately returned to Buyer, or (ii) proceed under this
Agreement, in which event Seller shall, at the Closing, assign to Buyer its
entire right, title and interest in and to any condemnation award, and Buyer
shall have the sole right during the pendency of this Agreement to negotiate and
otherwise deal with the condemning authority in respect of such matter. If Buyer
fails to
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timely make such election, Buyer shall be deemed to have elected to terminate
this Agreement as provided above.
ARTICLE 4: CLOSING
4.1 Closing. The consummation of the transaction contemplated herein
("Closing") shall occur on the Closing Date through an escrow with the Escrow
Agent at the offices of the Escrow Agent. Buyer and Seller shall execute
supplemental escrow instructions as may be appropriate to enable Escrow Agent to
comply with the terms of this Agreement, so long as such instructions are not in
conflict with this Agreement. The transactions described herein shall be closed
by means of concurrent delivery of the documents of title, transfer of interest,
delivery of Title Policy and the Purchase Price, customarily referred to as a
"New York Style" closing.
4.2 Conditions to the Parties' Obligations to Close.
(a) Mutual Conditions. In addition to all other conditions set forth herein,
the obligation of Seller, on the one hand, and Buyer, on the other hand, to
consummate the transactions contemplated hereunder shall be contingent upon the
following:
(i) The other party's representations and warranties contained herein shall be
true and correct in all material respects as of the date of this Agreement and
the Closing Date, without giving effect to any knowledge based qualifications.
(ii) As of the Closing Date, the other party shall have performed its
obligations hereunder and all deliveries to be made at Closing have been
tendered;
(iii) There shall exist no pending or threatened actions, suits, arbitrations,
claims, attachments, proceedings, assignments for the benefit of creditors,
insolvency, bankruptcy, reorganization or other proceedings, pending or
threatened against the other party that would materially and adversely affect
the operation or value of the Property or the other party's ability to perform
its obligations under this Agreement or that seeks to restrain or prohibit, or
obtain damages on a discovery order; and
(iv) All other conditions set forth in this Agreement to the other party's
obligation to close shall have been satisfied.
(b) Buyer Conditions. As a condition to Buyer's obligation to close:
(i) there shall be no notice issued after the expiration of the Due Diligence
Period of any material violation or alleged violation of any law, rule,
regulation or code, including building code, with respect to the Property, which
has not been corrected to the satisfaction of the issuer of the notice; and
(ii) at Closing, Seller shall not be in default under any agreement to be
assigned to, or obligation to be assumed by, Buyer under this Agreement
including without limitation the Loan Documents; and
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(iii) the Lease shall be in full force and effect and no material default or
claim by landlord shall exist or have arisen under the Lease.
(c) Failure of Condition. So long as a party is not in default hereunder, if
any condition to such party's obligation to proceed with the Closing set forth
in this Agreement has not been satisfied as of the Closing Date, such party may,
in its sole discretion, (i) terminate this Agreement with respect to the
Property, by delivering written notice to the other party on or before the
Closing Date; provided, however, the other party shall have the right to elect,
by delivering written notice to the party terminating this Agreement, to extend
the Closing Date for up to a total of 10 business days to satisfy such
condition, (ii) elect to extend the time available for the satisfaction of such
condition by up to a total of 10 business days or (iii) elect on or before the
Closing Date to close, notwithstanding the non-satisfaction of such condition,
in which event such party shall be deemed to have waived any such condition. If
such party elects (a) to proceed pursuant to clause (ii) above, or (b) to
proceed pursuant to clause (i) above and the other party elects to extend the
Closing Date to attempt to satisfy the condition, and in either case such
condition remains unsatisfied after the end of such extension period, then, at
such time, such party may elect to proceed pursuant to either clause (i) (with
the other party having no further right to extend the Closing Date) or (iii)
above. Any failure to timely elect to proceed under clauses (i), (ii) or (iii)
above, shall be deemed an election to proceed under clause (i) above.
4.3 Seller's Deliveries in Escrow. At least one business day prior to the
Closing Date, Seller shall deliver in escrow to the Escrow Agent or outside of
escrow to Buyer the following, each duly executed and, where appropriate, in
recordable form and notarized:
(a) Deed. A Massachusetts quitclaim deed substantially in the form attached
hereto as Appendix 4.3(a), modified to conform with the laws of the state where
the Property is located, executed and acknowledged by Seller, conveying to Buyer
good, indefeasible and marketable fee simple title to the Real Property, subject
only to the Permitted Exceptions (the "Deed");
(b) Xxxx of Sale and Omnibus Agreement. A Xxxx of Sale and Omnibus Agreement
in the form of Appendix 4.3(b) attached hereto (the "Omnibus Agreement"),
executed and acknowledged by Seller, vesting in Buyer good title to the property
described therein free of any claims, except for the Permitted Exceptions and
including without limitation, the Accepted Service Contracts;
(c) Assignment of Lease. An assignment of lease in the form of Appendix 4.3(c)
attached hereto (the "Assignment"), executed and acknowledged by Seller, vesting
in Buyer good title to the Lease.
(d) Intentionally Omitted.
(e) State Law Disclosures. Such disclosures and reports as are required by
applicable state and local law in connection with the conveyance of real
property;
(f) FIRPTA. An affidavit of Seller (the "FIRPTA Affidavit") substantially in
the form of Appendix 4.3(f) attached hereto. If Seller fail to provide the
necessary affidavit and/or
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documentation of exemption on the Closing Date, Buyer may proceed in accordance
with the withholding provisions imposed by Section 1445 of the Internal Revenue
Code of 1986, as amended;
(g) Intentionally Omitted;
(h) Terminations. Terminations, effective no later than Closing, of those
Service Contracts which are not Accepted Service Contracts;
(i) CCRs. The estoppels and assignments concerning the CCRs, as provided in
Section 2.8;
(j) Authority. Evidence of the existence, organization and authority of Seller
and of the authority of the persons executing documents on behalf of Seller
reasonably satisfactory to the Escrow Agent, the Title Company and Buyer;
(k) Title Documents. Affidavits required by the Title Company sufficient to
have the general exceptions deleted, together with "gap" indemnities in the form
customarily required by such Title Company, together with such other documents
and instruments required by the Title Company in order to issue the Title
Policy;
(l) Intentionally Omitted.
(m) Other Deliveries. Such other documents, certificates and instruments
reasonably necessary in order to effectuate the transaction described herein,
including without limitation, transfer tax declarations, broker lien waivers,
bulk sale clearances and any documents or representations necessary to comply
with any applicable environmental transfer disclosure laws and any other Closing
deliveries required to be made by or on behalf of Seller.
(n) Permits and Approvals. All licenses, permits and approvals related to the
ownership, operation and use of the Property, including without limitation,
certificate(s) of occupancy.
(o) Letter of Credit Security Deposit. Reissued or amended letter of credit for
the letter of credit security deposit held under the Lease, naming Buyer as
beneficiary.
(p) Assumed Debt Documents. Such documents and deliveries from or on behalf of
Seller as may be required by the Lender to effect the conveyance of the Property
subject to the Loan Documents pursuant to Section 2.9;
4.4 Buyer's Deliveries in Escrow. Except as specified below, at least one
business day prior to the Closing Date, Buyer shall deliver in escrow to the
Escrow Agent or outside of escrow to Seller the following, each duly executed
and, where appropriate, in recordable form and notarized:
(a) Purchase Price. The cash portion of the Purchase Price (i.e. $3,400,000),
plus or minus applicable prorations, deposited by Buyer with the Escrow Agent in
immediate, same-day federal funds wired for credit into the Escrow Agent's
escrow account;
(b) Xxxx of Sale and Omnibus Agreement. The Omnibus Agreement, executed by
Buyer;
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(c) Assignment of Lease. The Assignment, executed by Buyer.
(d) State Law Disclosures. Such disclosures and reports as are required by
applicable state and local law in connection with the conveyance of real
property;
(e) Other Deliveries. Such other documents, certificates and instruments
reasonably necessary in order to effectuate the transactions described herein.
(f) Assumed Debt Documents. Such documents and deliveries from or on behalf of
the Buyer as may be required by the Lender and is acceptable to the Buyer to
effect the conveyance of the Property subject to the Loan Documents pursuant to
Section 2.9;
4.5 Closing Statements. At least one business day prior to the Closing
Date, Seller and Buyer shall deposit with the Escrow Agent executed closing
statements for the Property consistent with this Agreement.
4.6 Possession. Seller shall deliver possession of the Property to Buyer
at the Closing subject only to the Permitted Exceptions.
4.7 Delivery of Books and Records. Immediately after the Closing, Seller
shall deliver to the offices of Buyer or the parties shall arrange for delivery
at the Property: the original documents and instruments assigned to Buyer
pursuant to the Assignment; copies or originals of all books and records of
account, receipts for deposits, unpaid bills and other papers or documents which
pertain to the Property; and other items, if any, pertaining to the Property;
and, if in Seller's possession or control, the original "as-built" plans and
specifications and all other available plans and specifications. Seller shall
cooperate with Buyer after Closing to transfer to Buyer any such information
stored electronically. The obligations of Seller under this Section 4.7 shall
survive Closing.
ARTICLE 5: PRORATIONS; COSTS
5.1 Prorations. Not less than three (3) business days prior to Closing,
Seller shall provide to Buyer such information and verification reasonably
necessary to support the prorations under this Article 5. The items in this
Section 5.1 shall be prorated between Seller and Buyer as of the close of
business on the day immediately preceding the Closing Date, the Closing Date
being a day of income and expense to Buyer. Credits to Buyer shall be credited
against the Purchase Price to be paid as provided in Section 1.3 and, if such
amount is exhausted, shall be paid in cash by Seller to Buyer at the Closing.
Post-closing re-prorations and adjustments shall be paid in cash.
(a) Taxes and Assessments. The parties acknowledge that the tenant under the
Lease pays real estate taxes and assessments ("Taxes") directly to the taxing
authority and there will be no adjustment for Taxes between Buyer and Seller at
the Closing. Any other special assessments which are not the responsibility of
the tenant under the Lease shall be prorated only for the year of Closing.
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(b) Collected Rent. Buyer shall receive from Seller a credit for any rent and
other income (and any applicable state or local tax on rent) under the Lease
collected by Seller before Closing that applies to any period after Closing,
except for the Rent Prepayment which shall be retained by Seller as a portion of
the Purchase Price. Any rent or other income received by Seller after Closing
which are owed to Buyer shall be held in trust and remitted to Buyer promptly
after receipt for allocation and disbursement as provided in this Section
5.1(b).
(c) Loan Reserve. At Closing, either (i) the reserve held by Lender pursuant to
the Loan Documents (the "Reserve"), which amount is currently approximately
$63,000.00, will remain with the Lender with Buyer having all rights of the
borrower to the Reserve pursuant to the terms of the Loan Documents and Seller
will receive a credit in the amount of the Reserve, or (ii) the amount of the
Reserve will be refunded to Seller.
(d) Tenant Deposits. All tenant security deposits (and interest thereon if
required by law or contract to be earned thereon) shall be transferred or
credited to Buyer at Closing. As of Closing, Buyer shall assume Seller's
obligations related to tenant security deposits, but only to the extent they are
properly credited and transferred to Buyer. On or before the Closing Date,
Seller shall cause Buyer to be named as the beneficiary under the letter of
credit held by Seller under the Lease (the "Letter or Credit") and shall deliver
to Buyer the original of the Letter of Credit.
(e) Leasing Commissions. On or before the Closing Date, Seller shall pay in
full all leasing commissions due to leasing or other agents for the current
remaining term of the Lease (determined without regard to any unexercised
termination or cancellation right); provided, however, that if any leasing agent
will not accept such payment, then Buyer shall receive a credit against the
Purchase Price at Closing in an amount equal to the then-unpaid leasing
commissions and Buyer shall assume, in writing, the obligation to pay any such
leasing commissions due thereunder after the Closing Date up to the amount of
such credit. Leasing commissions arising in connection with any renewal or
expansion rights under the Lease that are properly exercisable after the date of
this Agreement and disclosed in the Commission Schedule shall be Buyer's
obligation to pay as and when due.
(f) Other Revenues and Income. At Closing, Seller shall pay to or at the
direction of Buyer any and all revenues and income in connection with the
operation at the Property not covered above and collected by or on behalf of
Seller before the Closing and applicable to Buyer's period of ownership, and if
such amount cannot be determined at Closing, such payment shall be based upon an
estimate. If applicable, interest and impounds or other tax, insurance or other
reserves with respect to the Assumed Debt shall also be prorated. The parties
shall use reasonable efforts to make a final determination of such amount and
make an appropriate adjusting payment within 30 days after Closing. In addition,
each party shall promptly remit or cause to be remitted to the other any such
revenues and income collected by such party after Closing and applicable to the
other party's period of ownership.
(g) Assumed Debt. Buyer shall receive a credit for (i) unpaid principal balance
of the Assumed Debt, (ii) the prorated portion of the monthly principal payment,
if Closing occurs on a day other than the first of the month, and (iii) all
accrued and unpaid interest and other amounts
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due and payable with respect to such Assumed Debt as of the Closing Date. For
example, if the Closing Date occurs on January 26, 2003, pursuant to Section
5.1(b) and this Section 5.1(g), Seller shall be (i) entitled to 25 of the 31
days of January 2003 with respect to rent due under the Lease for the period of
January 2003 and (ii) responsible for 25 of the 31 days of January 2003 for
principal and interest on the Assumed Debt based on fixed payments for the month
of January 2003, divided over 31 days.
5.2 Post-Closing Corrections. Either party shall be entitled to a
post-Closing adjustment for any incorrect proration or adjustment, provided such
adjustment is claimed by such party within one year after Closing. No other
expense related to the ownership or operation of the Property shall be charged
to or paid or assumed by Buyer under this Agreement, other than those
obligations expressly assumed by Buyer.
5.3 Utilities. Except for utilities which are in the name of and billed
directly to tenants, Seller shall cause the meters, if any, for utilities to be
read the day on which the Closing Date occurs and to pay the bills rendered on
the basis of such readings. If any such meter reading for any utility is not
available, then adjustment therefor shall be made on the basis of the most
recently issued bills therefor which are based on meter readings no earlier than
30 days before the Closing Date; and such adjustment shall be reprorated when
the next utility bills are received. The credit received under this Section 5.3
shall not be duplicative of any credit received under Section 5.1(c) which is
specifically allocable to such items.
5.4 Service Contracts. Seller or Buyer, as the case may be, shall receive
a credit for regular charges under Accepted Service Contracts paid and
applicable to Buyer's period of ownership or payable and applicable to Seller's
period of ownership, respectively. Seller shall pay at Closing all amounts owing
under those Service Contracts that are not Accepted Service Contracts.
5.5 Costs. Buyer shall pay (i) one-half of the Escrow Agent's escrow fee,
closing charges and any cancellation fee, (ii) the costs associated with Buyer's
due diligence activities, (iii) the cost of the Title Commitment, extended
coverage, Survey and the Title Policy, including all Endorsements, and (iv) all
fees and charges relating to the loan assumption that are described in Section
2.9 as Buyer's responsibility. Seller shall pay (i) one-half of the Escrow
Agent's escrow fee, closing charges and any cancellation fee, (ii) all recording
fees or other charges incurred in connection with clearing title and (iii) the
loan assumption fee described in Section 2.9 as Seller's responsibility. Each
party shall be responsible for their own attorney's and other professional fees.
5.6 Sales, Transfer, and Documentary Taxes. All sales, gross receipts,
compensating, stamp, excise, documentary, transfer, deed or similar taxes and
fees imposed in connection with this transaction under applicable state or
county law or local ordinance shall be paid by Seller. Seller and Buyer shall
execute any applicable city, county and state transfer tax or other
declarations.
5.7 Utility Deposits. Seller shall receive a credit for the amount of
deposits, if any, with utility companies that are transferable and that are
assigned to Buyer at the Closing.
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5.8 Sales Commissions. Seller and Buyer represent and warrant each to the
other that they have not dealt with any real estate broker, sales person or
finder in connection with this transaction other than Broker. If this
transaction is closed, Buyer shall pay Broker in accordance with their separate
agreement. Except as expressly set forth above, in the event of any claim for
broker's or finder's fees or commissions in connection with the negotiation,
execution or consummation of this Agreement or the transactions contemplated
hereby, each party shall indemnify, defend and hold harmless the other party
from and against any such claim based upon any actual or alleged statement,
representation or agreement of the indemnifying party. This provision shall
survive any termination of this Agreement.
5.9 Intentionally Omitted.
5.10 Intentionally Omitted.
ARTICLE 6: REPRESENTATIONS AND WARRANTIES
6.1 Seller's Representations and Warranties. As a material inducement to
Buyer to execute this Agreement and consummate this transaction, Seller
represents and warrants to Buyer that:
(a) Organization and Authority. Seller has been duly organized, is validly
existing, and is in good standing and is qualified to do business in the state
in which the Real Property is located. Seller has the full right, power and
authority and has obtained any and all consents required to enter into this
Agreement, all of the documents to be delivered by Seller at the Closing and to
consummate or cause to be consummated the transactions contemplated hereby. This
Agreement has been, and all of the documents to be delivered by Seller at the
Closing will be, authorized and properly executed and constitutes, or will
constitute, as appropriate, the valid and binding obligation of Seller,
enforceable in accordance with their terms.
(b) Conflicts and Pending Actions or Proceedings. There is no agreement to
which Seller is a party or, to Seller's knowledge, binding on Seller which is in
conflict with this Agreement. Except as disclosed in the Property Information,
there is no action or proceeding pending or, to Seller's knowledge, threatened
against Seller or relating to the Property. To Seller's knowledge, no
condemnation, eminent domain or similar proceedings are pending or threatened
with regard to the Property. Except as set forth in the Title Commitment, Seller
has not received any notice and has no knowledge of any pending or threatened
liens, special assessments, impositions or increases in assessed valuations to
be made against the Property.
(c) Lease. The documents constituting the Lease that are delivered to Buyer
pursuant to Section 2.2 are true, correct and complete copies of the Lease
affecting the Property, including any and all amendments and guarantees, and the
Lease listed on Appendix 6.1(c) (the "Lease") is the only Lease affecting the
Property. Except for the tenant under the Lease, there are no parties holding
any right to occupy the Property or any portion thereof. There are no leasing or
other fees or commissions due, nor will any become due, in connection with the
Lease or any renewal or extension or expansion of the Lease, and no
understanding or agreement with any party exists as to payment of any leasing
commissions or fees regarding future leases or as to the procuring of tenants.
The Lease is in full force and effect and neither Seller nor, to Seller's best
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knowledge, the tenant is in default. Except in connection with the Assumed Debt,
Seller has not assigned or pledged the Lease or Rents or any interest therein.
(d) Service Contracts. The list of Service Contracts attached hereto as
Appendix 6.1(d) is a true, correct and complete list of all contracts affecting
the Property. The documents constituting the Service Contracts that are
delivered to Buyer as a part of the initial Property Information are true,
correct and complete copies of all the Service Contracts affecting the Property.
Neither Seller nor, to Seller's knowledge, any other party is in default under
any Service Contract. There are no contracts affecting the Property other than
the Service Contracts and this Agreement.
(e) Operating Statements. The Operating Statements, if any, delivered to Buyer
pursuant to this Agreement show all items of income and expense (operating and
capital) incurred in connection with the ownership, operation, and management of
the Property for the periods indicated and are true, correct, and complete in
all material respects. No material adverse change has occurred from the
respective dates of such Operating Statements to the date hereof.
(f) Permits, Legal Compliance, and Notice of Defects. Seller has all licenses,
permits and certificates necessary for the use and operation of the Property,
including, without limitation, all certificates of occupancy necessary for the
occupancy of the Property, all of which are in full force and effect, and Seller
has not taken or failed to take any action that would result in its revocation,
and has not received any written notice of an intention to revoke any of them.
To Seller's knowledge, neither the Property nor the use thereof violates any
governmental law or regulation or any covenants or restrictions encumbering the
Property. To Seller's knowledge there are no material physical defects in the
Improvements. Seller has not received any written notice from any insurance
company or underwriter, nor is it aware, of any defects that would materially
adversely affect the insurability of the Property or cause an increase in
insurance premiums. Seller has received no written notice from any governmental
authority or other person of, and has no knowledge of any violation of zoning,
building, fire, health, environmental, or other statutes, ordinances,
regulations or orders (including those respecting the Americans with
Disabilities Act), or any restriction, condition, covenant or consent in regard
to the Property or any part thereof which have not been corrected to the
satisfaction of the issuer.
(g) Environmental. Seller has no knowledge of any violation of Environmental
Laws related to the Property or the presence or release of Hazardous Materials
on or from the Property except as disclosed in the initially delivered Property
Information. Except for de minimis amounts of Hazardous Materials used, stored
and disposed of in accordance with Environmental Laws, and used in connection
with the ordinary maintenance and operation of the Property, and except as
disclosed in the Property Information, neither Seller nor, to Seller's
knowledge, any tenant or other occupant has manufactured, introduced, released
or discharged from or onto the Property any Hazardous Materials or any toxic
wastes, substances or materials (including, without limitation, asbestos), and
neither Seller, nor to Seller's knowledge any tenant or other occupant has used
the Property or any part thereof for the generation, treatment, storage,
handling or disposal of any Hazardous Materials. There are no underground
storage tanks located on the Property. Seller is aware that the Environmental
Assessments and/or studies listed on attached Appendix 6.1(g) pertaining to the
Property have been made and has furnished to Buyer a true,
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correct and complete copy of each of them. Seller is not aware of any additional
environmental assessments or studies which exist with respect to the Property.
(h) Disclosure. Other than this Agreement, the documents delivered at Closing
pursuant hereto, the Permitted Exceptions, and the Accepted Service Contracts,
there are no contracts or agreements of any kind relating to the Property to
which Seller or its agents is a party and which would be binding on Buyer after
closing. Seller has delivered to Buyer all written materials in Seller's
possession or control which contain information or disclose facts or conditions
that would have a material adverse impact on the use, operation or marketability
of the Property. Copies of Property Information delivered to Buyer pursuant to
Section 2.2 hereof are or will be true, correct and complete copies; and Seller
is not aware of any material inaccuracy or omission in the Property Information
delivered pursuant to Section 2.2.
(i) Loan Documents. The documents delivered to the Buyer pursuant to Section
2.2 include true, accurate and complete copies of all of the documents and
instruments in effect with respect to the Loan Documents. The documents listed
in Appendix 2.9 constitute a complete list of all of the Loan Documents and have
not been amended or modified except as set forth on Appendix 2.9. Seller has not
received any notice that Seller is in default under the Loan Documents, nor does
any default or breach exist beyond any applicable cure period nor, to Seller's
knowledge, does any default or breach exist, or any event or circumstance,
which, with the giving of notice or passage of time, or both, would constitute a
default or breach by Seller under the Loan Documents.
6.2 Buyer's Representations and Warranties. As a material inducement to
Seller to execute this Agreement and consummate this transaction, Buyer
represents and warrants to Seller that:
(a) Organization and Authority. Buyer has been duly organized and is validly
existing as a Delaware corporation. Subject only to obtaining certain Board and
other internal approvals on or before the expiration of the Due Diligence
Period, Buyer has the full right and authority and has obtained any and all
consents required to enter into this Agreement and to consummate or cause to be
consummated the transactions contemplated hereby. This Agreement has been, and
all of the documents to be delivered by Buyer at the Closing will be, authorized
and properly executed and constitutes, or will constitute, as appropriate, the
valid and binding obligation of Buyer, enforceable in accordance with their
terms.
(b) Conflicts and Pending Action. There is no agreement to which Buyer is a
party or to Buyer's knowledge binding on Buyer which is in conflict with this
Agreement. There is no action or proceeding pending or, to Buyer's knowledge,
threatened against Buyer which challenges or impairs Buyer's ability to execute
or perform its obligations under this Agreement.
(c) Tenant of the Property. Varian Semiconductor Equipment Associates, Inc. is
the tenant of the Property under the Lease and is in possession of the entire
Property pursuant to the Lease. Varian Semiconductor Equipment Associates, Inc.
has not sublet any portion of the Property.
6.3 Survival of Representations and Warranties. The representations and
warranties set forth in this Article 6 are made as of the date of this Agreement
and each of Seller
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and Buyer shall be deemed to have remade all of their respective representations
and warranties as of the Closing Date. Such representations and warranties and
shall not be deemed to be merged into or waived by the instruments of Closing,
but shall survive the Closing for a period of two (2) years. Seller and Buyer
shall have the right to bring an action for breach of such representations and
warranties if they give the other party written notice of the circumstances
giving rise to the alleged breach within such two (2) year period and have
brought an action thereon within six (6) months of the expiration of such
period.
ARTICLE 7: DEFAULT AND REMEDIES
7.1 Seller's Default. If this transaction fails to close as a result of
Seller's default (all conditions to Seller's obligations having been satisfied
or waived), the Xxxxxxx Money shall be returned to Buyer. In addition, Buyer
shall be entitled to such remedies for breach of contract as may be available at
law and in equity, including without limitation, the remedy of specific
performance. If, after Seller's default, Buyer elects not to proceed with the
Closing, then Seller will, on demand, reimburse Buyer for all expenses incurred
by Buyer in connection with this Agreement, including all due diligence
expenses.
7.2 Buyer's Default. If this transaction fails to close due to the default
of Buyer (all conditions to Buyer's obligations having been satisfied or
waived), then Seller's sole remedy in such event shall be to terminate this
Agreement and to retain the Xxxxxxx Money as liquidated damages, Seller waiving
all other rights or remedies in the event of such default by Buyer. The parties
acknowledge that Seller's actual damages in the event of a default by Buyer
under this Agreement will be difficult to ascertain, and that such liquidated
damages represent the parties' best estimate of such damages.
7.3 Other Expenses. If this Agreement is terminated due to the default of a
party, then the defaulting party shall pay any fees due to the Escrow Agent for
holding the Xxxxxxx Money and any fees due to the Title Company for cancellation
of the Title Commitment.
ARTICLE 8: INDEMNIFICATION
8.1 Seller's Indemnity. Seller shall indemnify, defend and hold Buyer
harmless from any liability, claim, demand, loss, expense or damage
(collectively, "loss") that is: (a) suffered by, or asserted by any person or
entity against Buyer arising from any act or omission of Seller, its agents,
employees or contractors or otherwise arising out of the ownership or operation
of the Property first arising or occurring prior to the Closing; or (b) arising
out of the breach or inaccuracy of any of Seller's representations and
warranties set forth herein or (c) arising from any breach by Seller of any
obligation related to the Property other than those obligations which by this
Agreement, or any closing delivery, specifically becomes the obligation of
Buyer.
8.2 Buyer's Indemnity. Buyer shall indemnify, defend and hold Seller
harmless of and from any loss that is: (a) suffered by, or asserted by any
person or entity against, Seller arising from any act or omission of Buyer, its
agents, employees or contractors or otherwise arising out of the ownership or
operation of the Property first arising or occurring on or after the Closing; or
(b) arising out of the breach or inaccuracy of any of Buyer's representations or
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warranties set forth herein or (c) arising from any breach by Buyer of any
obligation of Buyer related to the Property which by this Agreement, or any
closing delivery, specifically becomes the obligation of Buyer.
8.3 Procedure. The following provisions govern all actions for indemnity
under this Article 8 and any other provision of this Agreement. Promptly after
receipt by an indemnitee of notice of any claim, such indemnitee will, if a
claim in respect thereof is to be made against the indemnitor, deliver to the
indemnitor written notice thereof and the indemnitor shall have the right to
participate in and, if the indemnitor agrees in writing that it will be
responsible for any costs, expenses, judgments, damages, and losses incurred by
the indemnitee with respect to such claim, to assume the defense thereof, with
counsel mutually satisfactory to the parties; provided, however, that an
indemnitee shall have the right to retain its own counsel, with the fees and
expenses to be paid by the indemnitee, if the indemnitee reasonably believes
that representation of such indemnitee by the counsel retained by the indemnitor
would be inappropriate due to actual or potential differing interests between
such indemnitee and any other party represented by such counsel in such
proceeding. The failure of indemnitee to deliver written notice to the
indemnitor within a reasonable time after indemnitee receives notice of any such
claim shall relieve such indemnitor of any liability to the indemnitee under
this indemnity only if and to the extent that such failure is prejudicial to the
indemnitor's ability to defend such action, and the omission so to deliver
written notice to the indemnitor will not relieve it of any liability that it
may have to any indemnitee other than under this indemnity. If an indemnitee
settles a claim without the prior written consent of the indemnitor, then the
indemnitor shall be released from liability with respect to such claim unless
the indemnitor has unreasonably withheld such consent.
8.4 Survivability. The obligations of the parties under this Article 8
shall survive the Closing.
ARTICLE 9: MISCELLANEOUS
9.1 Parties Bound. Neither party may assign this Agreement without the
prior written consent of the other, and any such prohibited assignment shall be
void; provided, however, that Buyer may assign this Agreement without Seller's
consent to an Affiliate. Buyer shall not be relieved of its obligations under
this Agreement in the event of such assignment. Subject to the foregoing, this
Agreement shall be binding upon and inure to the benefit of the respective legal
representatives, successors, assigns, heirs, and devises of the parties.
9.2 Headings. The article and paragraph headings of this Agreement are for
convenience only and in no way limit or enlarge the scope or meaning of the
language hereof.
9.3 Invalidity and Waiver. If any portion of this Agreement is held invalid
or inoperative, then so far as is reasonable and possible the remainder of this
Agreement shall be deemed valid and operative, and, to the greatest extent
legally possible, effect shall be given to the intent manifested by the portion
held invalid or inoperative. The failure by either party to enforce against the
other any term or provision of this Agreement shall not be deemed to be a waiver
of such party's right to enforce against the other party the same or any other
such term or provision in the future.
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9.4 Governing Law. This Agreement shall, in all respects, be governed,
construed, applied, and enforced in accordance with the law of the state in
which the Real Property is located.
9.5 Survival. The provisions of this Agreement that contemplate
performance after the Closing, the obligations of the parties not fully
performed at the Closing, and all indemnities set forth in this Agreement shall
survive the Closing and shall not be deemed to be merged into or waived by the
instruments of Closing.
9.6 No Third Party Beneficiary. This Agreement is not intended to give or
confer any benefits, rights, privileges, claims, actions, or remedies to any
person or entity as a third party beneficiary, decree, or otherwise.
9.7 Entirety and Amendments. This Agreement embodies the entire agreement
between the parties and supersedes all prior agreements and understandings
relating to the Property. This Agreement may be amended or supplemented only by
an instrument in writing executed by the party against whom enforcement is
sought.
9.8 Time. Time is of the essence in the performance of this Agreement.
9.9 Confidentiality. Seller shall make no public announcement or other
disclosure of this Agreement or any information related to this Agreement to
outside brokers or third parties, before or after the Closing, without the prior
written specific consent of Buyer; provided, however, that Seller may make
disclosure of this Agreement to its lenders, creditors, officers, employees and
agents as necessary to perform its obligations hereunder.
9.10 Enforcement Expenses. Should either party employ attorneys to enforce
any of the provisions hereof, the party against whom any final judgment is
entered agrees to pay the prevailing party all reasonable costs, charges, and
expenses, including attorneys' fees and costs, expended or incurred in
connection therewith.
9.11 Notices. All notices required or permitted hereunder shall be in
writing and shall be served on the parties at the addresses set forth in
Appendix 9.11. Any such notices shall be either (a) sent by overnight delivery
using a nationally recognized overnight courier, in which case notice shall be
deemed delivered one business day after deposit with such courier, (b) sent by
certified or regular U.S. mail, postage prepaid, in which case notice shall be
deemed delivered two business days after deposit in such mails, (c) sent by
facsimile, in which case notice shall be deemed delivered upon the mechanical
confirmation of delivery, or (d) sent by personal delivery, in which case notice
shall be deemed delivered upon receipt or refusal of delivery. A party's address
may be changed by written notice to the other party; provided, however, that no
notice of a change of address shall be effective until actual receipt of such
notice. Copies of notices are for informational purposes only, and a failure to
give or receive copies of any notice shall not be deemed a failure to give
notice. Notices given by counsel to Buyer shall be deemed given by Buyer and
notices given by counsel to Seller shall be deemed given by Seller.
9.12 Construction. The parties acknowledge that the parties and their
counsel have reviewed and revised this Agreement and the documents to be
executed at the Closing and agree
-22-
that the normal rule of construction to the effect that any ambiguities are to
be resolved against the drafting party shall not be employed in the
interpretation of this Agreement, the documents to be delivered at Closing or
any exhibits or amendments thereto.
9.13 Calculation of Time Periods. Unless otherwise specified, in computing
any period of time described herein, the day of the act or event after which the
designated period of time begins to run is not to be included and the last day
of the period so computed is to be included at, unless such last day is a
Saturday, Sunday or legal holiday for national banks in the location where the
Property is located, in which event the period shall run until the end of the
next day which is neither a Saturday, Sunday, or legal holiday. The last day of
any period of time described herein shall be deemed to end at 5 p.m. E.S.T.
9.14 Intentionally Omitted.
9.15 Execution in Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original, and all
of such counterparts shall constitute one Agreement. To facilitate execution of
this Agreement, the parties may execute and exchange by telephone facsimile
counterparts of the signature pages.
9.16 Intentionally Omitted.
9.17 Further Assurances. In addition to the acts and deeds recited herein
and contemplated to be performed, executed and/or delivered by either party at
Closing, each party agrees to perform, execute and deliver, but without any
obligation to incur any additional liability or expense, on or after the Closing
any further deliveries and assurances as may be reasonably necessary to
consummate the transactions contemplated hereby or to further perfect the
conveyance, transfer and assignment of the Property to Buyer.
9.18 Waiver of Jury Trial. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE
PARTIES HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
9.19 Intentionally Omitted.
9.20 1031 Exchange. Buyer may consummate the purchase of the Property as
part of a so-called like kind exchange (the "Buyer's Exchange") pursuant to
Section 1031 of the Code, provided that: (1) the Closing shall not be delayed or
affected by reason of the Buyer's Exchange nor shall the consummation or
accomplishment of the Buyer's Exchange be a condition precedent or condition
subsequent to Buyer's obligations under this Agreement; (2) Buyer shall effect
the Buyer's Exchange through an assignment of this Agreement, or its rights
under this Agreement, to a qualified intermediary; (3) Seller shall not be
required to take an assignment of the purchase agreement for the relinquished
property or be required to acquire or hold title to any real property for
purposes of consummating the Buyer's Exchange;(4) Buyer shall pay any additional
costs that would not otherwise have been incurred by Buyer or Seller had Buyer
not consummated its purchase through the Buyer's Exchange. Seller's acquiescence
to the Buyer's Exchange shall not affect or diminish in any manner its rights
hereunder nor shall
-23-
Seller be responsible for compliance with or be deemed to have warranted to
Buyer that the Buyer's Exchange in fact complies with ss. 1031 of the Code; and
(5) Buyer shall indemnify, defend, and hold Seller harmless from or against all
claims, losses, costs, damages, liabilities (including reasonable attorneys'
fees) in connection therewith.
Seller may consummate the purchase of the Property as part of a so-called
like kind exchange (the "Seller's Exchange") pursuant to Section 1031 of the
Code, provided that: (1) the Closing shall not be delayed or affected by reason
of the Seller's Exchange nor shall the consummation or accomplishment of the
Seller's Exchange be a condition precedent or condition subsequent to Buyer's
obligations under this Agreement; (2) Buyer shall effect the Seller's Exchange
through an assignment of this Agreement, or its rights under this Agreement, to
a qualified intermediary; (3) Seller shall not be required to take an assignment
of the purchase agreement for the relinquished property or be required to
acquire or hold title to any real property for purposes of consummating the
Seller's Exchange;(4) Buyer shall pay any additional costs that would not
otherwise have been incurred by Buyer or Seller had Buyer not consummated its
purchase through the Seller's Exchange. Seller's acquiescence to the Seller's
Exchange shall not affect or diminish in any manner its rights hereunder nor
shall Seller be responsible for compliance with or be deemed to have warranted
to Buyer that the Seller's Exchange in fact complies with ss. 1031 of the Code;
and (5) Buyer shall indemnify, defend, and hold Seller harmless from or against
all claims, losses, costs, damages, liabilities (including reasonable attorneys'
fees) in connection therewith.
9.21 Mutual Execution. Until this Agreement has been duly executed by both
Buyer and Seller and a fully executed copy has been delivered to each of Buyer
and Seller (which may occur by facsimile transmission), this Agreement shall not
be legally binding against the parties. Execution of this Agreement by Buyer
shall constitute an offer to acquire the Property on the terms and conditions
set forth herein but, if not executed by Seller within five (5) days after
delivery by Buyer, it may be withdrawn by Buyer in its discretion at any time
thereafter.
[Signature Page Follows]
-24-
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Agreement on the day and year written below.
SELLER:
BERKSHIRE-NEWBURYPORT LIMITED
PARTNERSHIP
a Massachusetts limited partnership
By: /s/ XXXXX X.XXXXXXX
-------------------------------------
Name: Xxxxx X. Xxxxxxx
-----------------------------------
Title: President
----------------------------------
Dated: November 27, 2002
BUYER:
VARIAN SEMICONDUCTOR EQUIPMENT
ASSOCIATES, INC.
a Delaware corporation
By: /s/ XXXXXX X. XXXXXXXX
-------------------------------------
Name: Xxxxxx X. Xxxxxxxx
-----------------------------------
Title: Vice President and Chief
----------------------------------
Financial Officer
----------------------------------
Dated: November 27, 2002
-25-
Exhibit A
Legal Description of Real Property
That certain real property located at 0 Xxxxxxx Xxxxxx Xxxxx, Xxxxxxxxxxx,
XX, and more particularly described as follows:
A certain parcel of land in Newburyport, Massachusetts, being shown as lot
62 on a plan entitled "Site Survey Plan of Land in Newburyport, Massachusetts",
prepared by Port Engineering Associates, Inc., dated October 27, 1995," which
plan is recorded with the deed at Book 13275, Page 483.
APPENDIX 1.3
Escrow Agreement
This Escrow Agreement (this "Agreement") is made as of the ___ day of
________________________, 2002 by and among Berkshire-Newburyport Limited
Partnership ("Seller"), Varian Semiconductor Equipment Associates, Inc.
("Buyer") and First American Title Insurance Company ("Escrow Agent").
R E C I T A L S
A. Seller and Buyer have entered into that certain Purchase and Sale
Agreement (the "Purchase and Sale Agreement") dated as of even date herewith,
with respect to certain property (the "Property") described therein.
B. All terms capitalized but not defined herein, shall have the respective
meanings ascribed to them in the Purchase and Sale Agreement.
C. Pursuant to the Purchase and Sale Agreement, among other things, Buyer
has and will make deposits of Xxxxxxx Money to be held, invested and disbursed
as provided herein.
NOW, THEREFORE, for good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged the parties hereto agree as
follows:
1. Recitals. The recitals set forth above are true and correct and are
incorporated herein by reference.
2. Investment and Use of Funds. The Escrow Agent shall invest the Xxxxxxx
Money in investments directed by Buyer, shall not commingle the Xxxxxxx Money
with any funds of the Escrow Agent or others except as provided herein, and
shall promptly provide Buyer and Seller with confirmation of the investments
made.
3. Termination before Expiration of Due Diligence Period. Buyer shall
notify the Escrow Agent of the date that the Due Diligence Period ends promptly
after such date is established under the Purchase and Sale Agreement, and Escrow
Agent may rely upon such notice. If Buyer elects (or is deemed to have elected)
to terminate the Purchase and Sale Agreement on or prior to the expiration of
the Due Diligence Period, Escrow Agent shall, upon written direction from Buyer,
pay the entire Xxxxxxx Money to Buyer one business day following receipt of such
direction (as long as the current investment can be liquidated in one day),
despite any contrary instructions from Seller. Seller agrees it shall have no
right to bring any action against Escrow Agent which would have the effect of
delaying, preventing, or in any way interrupting Escrow Agent's delivery of the
Xxxxxxx Money to Buyer pursuant to this paragraph, any remedy of Seller being
against Buyer, not Escrow Agent.
4. Termination after Expiration of Due Diligence Period. At any time after
the expiration of the Due Diligence Period, Escrow Agent shall retain the
Xxxxxxx Money until it receives written instructions executed by both Seller and
Buyer as to the disposition and disbursement of the Xxxxxxx Money, or until
ordered by final court order, decree or judgment,
which is not subject to appeal, to deliver the Xxxxxxx Money to a particular
party, in which event the Xxxxxxx Money shall be delivered in accordance with
such notice, instruction, order, decree or judgment.
5. Interpleader. Seller and Buyer mutually agree that in the event of any
controversy regarding the Xxxxxxx Money after the expiration of the Due
Diligence Period, unless mutual written instructions are received by the Escrow
Agent directing the Xxxxxxx Money's disposition, the Escrow Agent shall not take
any action, but instead shall await the disposition of any proceeding relating
to the Xxxxxxx Money or, at the Escrow Agent's option, the Escrow Agent may
interplead all parties and deposit the Xxxxxxx Money with a court of competent
jurisdiction in which event the Escrow Agent may recover all of its court costs
and reasonable attorneys' fees. Seller or Buyer, whichever loses in any such
interpleader action, shall be solely obligated to pay such costs and fees of the
Escrow Agent, as well as the reasonable attorneys' fees of the prevailing party
in accordance with the other provisions of the Purchase and Sale Agreement.
6. Liability of Escrow Agent. The parties acknowledge that the Escrow Agent
is acting solely as a stakeholder at their request and for their convenience,
that the Escrow Agent shall not be deemed to be the agent of either of the
parties, and that the Escrow Agent shall not be liable to either of the parties
for any action or omission on its part taken or made in good faith, and not in
disregard of this Agreement, but shall be liable for its willful misconduct and
negligent acts and for any loss, cost or expense incurred by Seller or Buyer
resulting from the Escrow Agent's mistake of law respecting the Escrow Agent's
scope or nature of its duties. Seller and Buyer shall jointly and severally
indemnify and hold the Escrow Agent harmless from and against all costs, claims
and expenses, including reasonable attorneys' fees, incurred in connection with
the performance of the Escrow Agent's duties hereunder, except with respect to
actions or omissions taken or made by the Escrow Agent in bad faith, in
disregard of this Agreement or involving willful misconduct or negligence on the
part of the Escrow Agent. In the event the Escrow Agent is directed to invest
the Xxxxxxx Money, the Escrow Agent shall not be held responsible for any loss
of principal or interest which may be incurred as a result of making the
directed investments or redeeming said investments at the direction of the
parties hereto.
7. Commingling. The Escrow Agent may commingle the Xxxxxxx Money with other
deposits or with its own funds in the manner provided for the administration of
funds pursuant to applicable law; provided, however, that nothing herein shall
diminish the Escrow Agent's obligation to apply the full amount of the Xxxxxxx
Money in accordance with the terms of this Agreement.
8. Closing. At Closing, the Escrow Agent shall fund the Xxxxxxx Money into
the closing escrow, to be delivered to Seller and applied as a credit against
the Purchase Price.
9. Execution in Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original, and all of
such counterparts shall constitute one Agreement. To facilitate execution of
this Agreement, the parties may execute and exchange by telephone facsimile
counterparts of the signature pages.
-2-
10. Governing Law. This Agreement shall, in all respects, be governed,
construed, applied, and enforced in accordance with the law of the state in
which the Real Property is located.
-3-
IN WITNESS WHEREOF, the undersigned have duly executed and delivered this
Agreement as of the day and year first set forth above.
SELLER: Buyer:
BERKSHIRE-NEWBURYPORT LIMITED VARIAN SEMICONDUCTOR EQUIPMENT
PARTNERSHIP ASSOCIATES, INC., a Delaware limited
partnership
By:________________________
______________, its attorney By:________________________________
__________________, its attorney
ESCROW AGENT:
FIRST AMERICAN TITLE INSURANCE
COMPANY
By:____________________________
Name:__________________________
Title:_________________________
-4-
APPENDIX 2.2
Property Information
1. Operating Statements. Operating statements of the Property for the 5
years preceding the date of this Agreement and the current year-to-date
("Operating Statements").
2. Management and/or Leasing Agreements. Copies of any management and/or
leasing agreements under which the Property are managed and/or leased, if
any. None.
3. Tax Statements. Copies or a summary of ad valorem tax statements for the
current or most recently available tax period and for the prior 36 months
including the Property's tax identification number(s); and latest value
renditions. Previously delivered to tenant under the Lease.
4. Insurance. Copies of Seller's certificate of insurance for the Property,
all insurance policies, a loss history, a list of any current claims
relating to the Property, and any notices received by insurance carriers.
None.
5. Service Contracts. A list together with copies of all security,
maintenance, service, supply, equipment rental and other contracts
related to the operation of the Property ("Service Contracts"). None.
6. Proceedings. Copies of any documents or materials relating to any current
litigation, investigation, condemnation, or other proceeding pending or
threatened against Seller or affecting the Property. None.
7. Tangible Personal Property. A current inventory of all tangible personal
property and fixtures. None.
8. Maintenance Records. All maintenance work orders for the prior 12 months.
Maintained by tenant under the Lease.
9. List of Capital Improvements. A list of all capital improvements
performed on the Property within the prior 24 months. Maintained by
tenant under the Lease.
10. Reports. Any environmental, geotechnical, soil, engineering and drainage
reports, assessments, audits and surveys, in Seller's possession.
11. As-Built Survey; Title Policy. All existing as-built surveys of the
Property; and all existing title policies related to the Property, in
Seller's possession.
12. Site Plans. All site plans relating to the Property in Seller's
possession.
13. As-Built Plans and Specifications. All as-built construction,
architectural, mechanical, electrical, plumbing, landscaping and grading
plans and specifications relating to the Property, in Seller's
possession.
14. Permits and Warranties. Copies of all warranties and guaranties, permits,
certificates of occupancy, licenses and other approvals, in Seller's
possession.
15. General. Any other documents or information pertaining to the Property in
Seller's possession or control or in the possession or control of
Seller's agents or independent contractors.
16. Financial Statements. Copies of financial statements reflecting the
operation of the Property for the prior 5 calendar years, including
statements of cash flow and year-end balance sheets, and statements of
income, expense, accounts payable and accounts receivable for each such
year, each prepared in accordance with generally accepted accounting
principles consistently applied, and fairly presenting the financial
position of Seller with respect to the Property at the end of each such
year and the results of the operations thereof for such year.
17. Lease. Copy of the Lease
-2-
APPENDIX 2.9
Loan Documents
1. Promissory Note dated November 5, 1996, executed by
Berkshire-Newburyport Limited Partnership, in favor of CS First Boston
2. Mortgage and Security Agreement dated as of November 5, 1996, executed
by Berkshire-Newburyport Limited Partnership, in favor of CS First Boston
3. Assignment of Leases and Rents dated as of November 5, 1996, executed by
Berkshire-Newburyport Limited Partnership, in favor of CS First Boston
4. UCC-1 Financing Statement filed November 5, 1996 in Book 13833, Page
213, executed by Berkshire-Newburyport Limited Partnership, as debtor, in favor
of CS First Boston, as secured party
5. UCC-1 Financing Statement filed November 5, 1996 in Book 13893 Page 427,
executed by Berkshire-Newburyport Limited Partnership, as debtor, in favor of CS
First Boston, as secured party
6. Subordination, Non-Disturbance and Attornment Agreement dated as of
October 31, 1996 by and among CS First Boston Mortgage Capital Corp., Genus,
Inc. and Berkshire-Newburyport Limited Partnership
7. Consent dated July 29, 1998, executed by The Chase Manhattan Bank,
consenting to the assignment of the Lease to Varian Associates, Inc.
8. Assignment of Mortgage and Security Agreement dated as of June 30, 1997
by CS First Boston Mortgage Capital Corp., in favor of The Chase Manhattan Bank,
as Trustee
9. Assignment of Assignment of Leases and Rents dated as of June 30, 1997
by CS First Boston Mortgage Capital Corp., in favor of The Chase Manhattan Bank,
as Trustee
10. Irrevocable Standby Letter of Credit issued by First Union in favor of
Chase Manhattan Bank, as beneficiary, for the account of Varian Associates, Inc.
in the amount of $2,800,000.00
11. Pledge and Custodial Agreement dated as of October 31, 1996 among
Berkshire-Newburyport Limited Partnership, Genus, Inc., CS First Boston Mortgage
Capital Corp., and Fleet Bank, N.A.
12. Assignment and Assumption of Pledge and Custodial Agreement dated July
29, 1998 between Genus, Inc., Varian Associates, Inc., Berkshire-Newburyport
Limited Partnership, The Chase Manhattan Bank, as Trustee for Credit Suisse
First Boston Mortgage Securities Corp.
13. Collateral Assignment made as of October 31, 1996, by
Berkshire-Newburyport Limited Partnership to CS First Boston Mortgage Capital
Corp.
14. Estoppel Certificate dated October 31, 1996 executed by Genus, Inc. in
favor of CS First Boston Mortgage Capital Corp.
15. Estoppel Certificate dated July 29, 1998, executed by Genus, Inc. in
favor of The Chase Manhattan Bank, as Trustee
-2-
APPENDIX 4.3(a)
DEED
After recording return to:
QUITCLAIM
DEED (Recorder's Stamp)
THIS QUITCLAIM DEED is made as of the ___ day of _____________, 2003, by
__________________________________________ (the "Grantor"), having an address of
___________________________________, to _____________________ (the "Grantee"),
having an address of ___________________________________.
Grantor, for and in consideration of the sum of _______________ ($_______),
receipt whereof is hereby acknowledged, and pursuant to proper authority, hereby
Grants with QUITCLAIM COVENANTS to Grantee, and its successors, heirs and
assigns, all right, title and interest of Grantor in the following described
property (collectively the "Property"):
1. The real property described on Exhibit A attached hereto and made a
part hereof (the "Land");
2. All buildings, improvements, fixtures, structures, parking areas and
landscaping on the Land;
3. All and singular the rights, benefits, privileges, easements,
tenements, hereditaments and appurtenances thereon or in any matter
appertaining to such Land, including any and all mineral rights,
development rights, water rights and the like; and
4. All right, title and interest of Grantor in and to all strips and
gores and any land lying in the bed of any street, road or alley, open
or proposed, adjoining such Land.
Hereby conveying the same premises conveyed to the Grantor by deed dated
__________ and recorded ____________ with the _____________ Registry of Deeds in
Book __________, Page ____________.
TO HAVE AND TO HOLD the Property in fee simple unto Grantee and its
successors, heirs and assigns, forever.
AND Grantor hereby covenants with Grantee, and its successors, heirs and
assigns, that Grantor will defend the same against the lawful claims of all
persons claiming by, through or under Grantor, but not otherwise, subject to the
exceptions listed on Exhibit B attached hereto.
-2-
IN WITNESS WHEREOF, said Grantor has caused this instrument to be duly
executed and delivered by its duly authorized officer, as of the day and year
first above written.
GRANTOR:
By:___________________________________
Name:_________________________________
Title:________________________________
THIS INSTRUMENT WAS PREPARED BY
AND AFTER RECORDING RETURN TO:
SEND SUBSEQUENT TAX BILLS TO:
______________________________________
______________________________________
______________________________________
______________________________________
______________________________________
-3-
STATE OF ___________ )
) SS.
COUNTY OF __________ )
I, _______, a notary public in and for said County, in the State aforesaid,
DO HEREBY CERTIFY that ______________________ personally known to me to be the
_________________________ of _________________________, a ___________, and
personally known to me to be the same person whose name is subscribed to the
foregoing instrument, appeared before me this day in person and acknowledged
that as such _____________, he/she signed and delivered the said instrument,
pursuant to authority properly given, as his/her free and voluntary act, and as
the free and voluntary act of said limited partnership, for the uses and
purposes therein set forth.
GIVEN under my hand and official seal this _________ day of ______________,
2003.
_____________________________________
Notary Public
My Commission Expires:_______________
-4-
EXHIBIT A TO DEED
LEGAL DESCRIPTION
PIN:
Common Address:
EXHIBIT B TO DEED
PERMITTED EXCEPTIONS
APPENDIX 4.3(b)
Xxxx of Sale and Omnibus Agreement
This Xxxx of Sale and Omnibus Agreement (this "Agreement") is made as of
the ___ day of _____________, 2003 by and between _____________________________
("Seller") and _______________________________ ("Buyer").
R E C I T A L S
A. This Agreement is executed and delivered pursuant to that certain
Purchase and Sale Agreement (as the same may have been amended, the "Purchase
and Sale Agreement") dated as of ____________________, 2002, by and between
Seller and Buyer in which Seller agreed to sell and Buyer agreed to purchase,
among other things, the real property described in Schedule 1 attached hereto
(the "Land").
B. All capitalized terms that are used but not defined herein shall have
the same meanings ascribed to such terms in the Purchase and Sale Agreement.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Seller and Buyer hereby agree as
follows:
1. Assignment and Assumption. For good and valuable consideration Seller
hereby sells, assigns, conveys and contributes to Buyer, and Buyer hereby
accepts:
(a) Personal Property. All right, title and interest of Seller in and
to all Personal Property now owned by Seller and used in connection with the
operation, ownership, maintenance, management, or occupancy of the Real
Property, including, without limitation, all equipment, machinery, heating,
ventilating and air conditioning units, furniture, art work, furnishings, trade
fixtures, office equipment and supplies, and whether stored on or off-site, all
tools and maintenance equipment, supplies and construction and finish materials
not yet incorporated in the Improvements but held for repairs and replacements,
all as identified on Schedule 2 attached hereto;
(b) Intangible Property. All right, title and interest of Seller in
and to all Intangible Property now owned by Seller and used in connection with
the operation, ownership, maintenance, management, or occupancy of the Real
Property, including, without limitation, any and all of the following: trade
names and trade marks associated with the Real Property; the plans and
specifications for the Improvements relating to the Land, including as-built
plans; unexpired warranties, guarantees, indemnities and claims against third
parties; contract rights related to the construction, operation, repair,
renovation, ownership or management of the Real Property that are expressly
assumed by Buyer pursuant to this Agreement; pending permit or approval
applications as well as existing permits, approvals and licenses (to the extent
assignable); insurance proceeds and condemnation awards to the extent provided
in the Purchase and Sale Agreement; and books and records relating to the Real
Property related to the Land; and
(c) Accepted Service Contracts. All of Seller's right, title and
interest in and to the Accepted Service Contracts described in Schedule 3
attached hereto, and Buyer hereby
assumes the obligations of Seller under such Accepted Service Contracts first
arising or accruing from and after Closing Date.
2. Warranty. Seller represents and warrants to Buyer that it is the owner
of the property and interests described above, that such property is free and
clear of all liens, charges and encumbrances other than the Permitted Exceptions
(as defined in the Purchase and Sale Agreement), and Seller warrants and defends
title to the above-described property unto Buyer, its successors and assigns,
against any person or entity claiming, or to claim, the same or any part
thereof, subject only to the Permitted Exceptions as defined in the Purchase and
Sale Agreement.
3. Indemnification. Seller shall defend, indemnify and hold harmless
Buyer from and against any liability, damages, causes of action, expenses, and
attorneys' fees incurred by Buyer by reason of the failure of Seller to fulfill,
perform, discharge, and observe its obligations with respect to the Accepted
Service Contracts arising or accruing before the Closing Date. Buyer shall
defend, indemnify and hold harmless Seller from and against any liability,
damages, causes of action, expenses, and attorneys' fees incurred by Seller by
reason of the failure of Buyer to fulfill, perform, discharge, and observe the
obligations assumed by it under this instrument with respect to the Accepted
Service Contracts first arising or accruing from and after the Closing Date.
4. Counterparts; Facsimile. This Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original, and all of
such counterparts shall constitute one Agreement. To facilitate execution of
this Agreement, the parties may execute and exchange by telephone facsimile
counterparts of the signature pages.
-2-
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered as
of the day and year set forth above.
SELLER:
______________________________________
By:___________________________________
Name:_________________________________
Title:________________________________
Dated:________________________________
BUYER:
______________________________________
By:___________________________________
Name:_________________________________
Title:________________________________
Dated:________________________________
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APPENDIX 4.3(C)
Assignment of Lease
ASSIGNMENT AND ASSUMPTION OF LEASE
This Assignment and Assumption of Lease (this "Assignment") is made as
of the ___ day of _____________, 2003 by and between ______________ ("Seller")
and _________________________________ ("Buyer").
RECITALS
A. This Assignment is executed and delivered pursuant to that certain
Purchase and Sale Agreement (as the same may have been amended, the "Purchase
and Sale Agreement") dated as of _____ ___, 2002, by and between Seller and
Buyer in which Seller agreed to sell and Buyer agreed to purchase, among other
things, the real property described in Schedule 1 attached hereto (the "Land").
B. All capitalized terms that are used but not defined herein shall
have the same meanings ascribed to such terms in the Purchase and Sale
Agreement.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Seller and Buyer hereby agree as
follows:
1. Assignment and Assumption. For good and valuable consideration
Seller hereby sells, assigns, conveys and contributes to Buyer, and Buyer hereby
accepts all of Seller's right, title and interest in and to that certain Lease
dated as of October 30, 1995 between Seller, as landlord, and Genus, Inc., as
tenant ("Original Tenant"), as amended by a First Amendment to Lease dated as of
November 8, 1995 between Seller and Original Tenant, and a Second Amendment to
Lease dated as of October 30, 1996 between Seller and Original Tenant, and
assigned pursuant to that certain Agreement Regarding Assignment and Transfer of
Letter of Credit dated as of April 12, 1999, between Varian Medical Systems,
Inc., Varian Semiconductor Equipment Associates, Inc., and Seller, and Buyer
hereby assumes all of Seller's obligations under the Lease first arising or
accruing from and after Closing Date but as to Seller's obligations with regard
to security deposits and other deposits, only to the extent the security
deposits have been transferred or credited to Buyer.
2. Warranty. Seller represents and warrants to Buyer that it is the
owner of the property and interests described above, that such property is free
and clear of all liens, charges and encumbrances other than the Permitted
Exceptions (as defined in the Purchase and Sale Agreement), and Seller warrants
and defends title to the above-described property unto Buyer, its successors and
assigns, against any person or entity claiming, or to claim, the same or any
part thereof, subject only to the Permitted Exceptions as defined in the
Purchase and Sale Agreement.
3. Indemnification. Seller shall defend, indemnify and hold harmless
Buyer from and against any liability, damages, causes of action, expenses, and
attorneys' fees incurred by
Buyer by reason of the failure of Seller to fulfill, perform, discharge, and
observe its obligations with respect to the Lease arising or accruing before the
Closing Date. Buyer shall defend, indemnify and hold harmless Seller from and
against any liability, damages, causes of action, expenses, and attorneys' fees
incurred by Seller by reason of the failure of Buyer to fulfill, perform,
discharge, and observe the obligations assumed by it under this instrument with
respect to the Lease first arising or accruing from and after the Closing Date.
4. Counterparts; Facsimile. This Assignment may be executed in any
number of counterparts, each of which shall be deemed to be an original, and all
of such counterparts shall constitute one Assignment. To facilitate execution of
this Agreement, the parties may execute and exchange by telephone facsimile
counterparts of the signature pages.
[signature page follows]
-2-
IN WITNESS WHEREOF, this Assignment and Assumption of Lease has been
duly executed and delivered as of the day and year set forth above.
SELLER:
__________________________________
By:_______________________________
Name:_____________________________
Title:____________________________
BUYER:
__________________________________
By:_______________________________
Name:_____________________________
Title:____________________________
-3-
STATE OF )
) SS.
COUNTY OF )
I, ____________, a notary public in and for said County, in the State
aforesaid, DO HEREBY CERTIFY that _________________________ personally known to
me to be the _________________________ of
________________________________________, and personally known to me to be the
same person whose name is subscribed to the foregoing instrument, appeared
before me this day in person and acknowledged that as such
__________________________, he/she signed and delivered the said instrument,
pursuant to authority properly given, as his/her free and voluntary act, and as
the free and voluntary act of said corporation and said limited partnerships,
for the uses and purposes therein set forth.
GIVEN under my hand and official seal this __________ day of _________,
2003.
___________________________________
Notary Public
My Commission Expires:_____________
-4-
STATE OF )
) SS.
COUNTY OF )
I, _____________, a notary public in and for said County, in the State
aforesaid, DO HEREBY CERTIFY that _________________________ personally known to
me to be the _________________________ of __________________________ and
personally known to me to be the same person whose name is subscribed to the
foregoing instrument, appeared before me this day in person and acknowledged
that as such __________________________, he/she signed and delivered the said
instrument, pursuant to authority properly given, as his/her free and voluntary
act, and as the free and voluntary act of said trust and said limited
partnerships, for the uses and purposes therein set forth.
GIVEN under my hand and official seal this _____ day of ____________,
2003.
__________________________________
Notary Public
My Commission Expires:____________
-5-
Appendix 4.3(f)
FIRPTA Affidavit
Section 1445 of the Internal Revenue Code of 1986, as amended, provides
that a transferee of a United States real property interest must withhold tax if
the transferor is a foreign person. To inform the Transferee (hereinafter
defined) that withholding of tax is not required upon the disposition of a
United States real property interest by_______________________________________,
a _________ (the "Transferor") to ___________________________________, a
___________ (the "Transferee"), the undersigned, being first duly sworn upon
oath, does hereby depose and say, and does hereby certify the following on
behalf of the Transferor:
1. The undersigned is the ____________________ of the Transferor and
is familiar with the business of the Transferor;
2. The Transferor is not a foreign person; that is, the Transferor is
not a nonresident alien, a foreign corporation, foreign partnership, foreign
trust or foreign estate (as all such terms are defined in the Internal Revenue
Code of 1986, as amended, and United States Treasury Department Income Tax
Regulations in effect as of the date hereof);
3. The Transferor is a corporation duly organized, validly existing
and in good standing under the laws of the State of ___________;
4. The Transferor's United States employer identification number is
__________;
5. The Transferor's office address and principal place of business is
______________________________________; and
6. This certificate and affidavit is made to induce the Transferee to
consummate the transactions contemplated by the Transferor and Transferee.
The Transferor understands that this affidavit and certification may be
disclosed to the United States Internal Revenue Service by the Transferee and
that any false statement contained herein could be punished by fine,
imprisonment, or both.
Under penalties of perjury, the undersigned declares that he has
examined this affidavit and certificate, and to the best of the undersigned's
knowledge and belief, it is true, correct and complete. The undersigned further
declares that he has authority to sign this affidavit and certificate on behalf
of the Transferor.
This affidavit and certificate is executed and delivered as of the ____
day of _______________, 2003.
By:______________________________
Name:____________________________
Title:___________________________
-2-
APPENDIX 6.1(c)
List of Leases, including all guaranties, letters of credit,
amendments, side letter agreements
That certain Lease dated as of October 30, 1995 between
Berkshire-Newburyport Limited Partnership, as landlord ("Landlord"), and Genus,
Inc., as tenant ("Original Tenant"), as amended by a First Amendment to Lease
dated as of November 8, 1995 between Landlord and Original Tenant, and a Second
Amendment to Lease dated as of October 30, 1996 between Landlord and Original
Tenant, and assigned pursuant to that certain Agreement Regarding Assignment and
Transfer of Letter of Credit dated as of April 12, 1999, between Varian Medical
Systems, Inc, Varian Semiconductor Equipment Associates, Inc. and Landlord.
Landlord holds a letter of credit in the amount of $1,850,000 pursuant to the
foregoing Lease.
-3-
APPENDIX 6.1(d)
List of Service Contracts
None.
-4-
APPENDIX 6.1(g)
List of Environmental Assessments
Preliminary Environmental Site Assessment from Xxxxxx Environmental
Consultants, Inc. dated June 5, 1995, and related correspondence from
Environmental Compliances Services, Inc. dated September 11, 1995.
APPENDIX 9.11
Notice Addresses
(a) Seller: With copy to: Xxxxxx X. Xxxxxxxxxx, Esq.
Berkshire Newburyport Limited Xxxxxxxx Xxxxxxx Xxxxxx & Xxxxx P.C.
Partnership 0000 Xxxx Xxxxxx, Xxxxx 0000
c/o Berkshire Development LLC Post Office Box 15609
0000 Xxxx Xxxxxx, Xxxxx 0000 Xxxxxxxxxxx, XX 01111-5609
Xxxxxxxxxxx, XX 00000 Phone: (000) 000-0000
Phone: (000) 000-0000 Fax: (000) 000-0000
Fax: (000) 000-0000
(b) Buyer:
Varian Semiconductor With a copy to: Xxxx Xxxxxxxxxx, Esq.
Equipment Associates, Inc.
00 Xxxx Xxxx Xxxx xxx Xxxx XXX
Xxxxxxxxxx, Xxxxxxxxxxxxx 00000 00 Xxxxx Xxxxxx
Xxxx: Xxxxxxx X. Xxxxxxx Xxxxxx, XX 00000
Phone: (000) 000-0000 Fax: (000) 000-0000
Fax: (000) 000-0000
(c) Escrow Agent:
First American Title Insurance
Company
000 Xxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
(d) Title Company:
First American Title Insurance
Company
000 Xxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
PURCHASE AND SALE AGREEMENT
FROM
BERKSHIRE-NEWBURYPORT LIMITED PARTNERSHIP
TO
VARIAN SEMICONDUCTOR EQUIPMENT ASSOCIATES, INC.
TABLE OF CONTENTS
Page
ARTICLE 1: SCHEDULE; DEFINITIONS; PURCHASE PRICE ............................ 1
1.1 Schedule .......................................................... 1
1.2 Definitions ....................................................... 2
1.3 Xxxxxxx Money ..................................................... 4
ARTICLE 2: INSPECTION ....................................................... 5
2.1 Due Diligence; Indemnity .......................................... 5
2.2 Seller's Delivery of Specified Documents .......................... 5
2.3 Title and Survey .................................................. 5
2.4 Objection Notice .................................................. 6
2.5 Service Contracts ................................................. 7
2.6 Intentionally Omitted ............................................. 7
2.7 Intentionally Omitted ............................................. 7
2.8 CCRs .............................................................. 7
2.9 Assumed Debt ...................................................... 7
ARTICLE 3: OPERATIONS AND RISK OF LOSS ...................................... 8
3.1 Ongoing Operations ................................................ 8
3.2 Damage ............................................................ 10
3.3 Condemnation ...................................................... 10
ARTICLE 4: CLOSING .......................................................... 11
4.1 Closing ........................................................... 11
4.2 Conditions to the Parties' Obligations to Close ................... 11
4.3 Seller's Deliveries in Escrow ..................................... 12
4.4 Buyer's Deliveries in Escrow ...................................... 13
4.5 Closing Statements ................................................ 14
4.6 Possession ........................................................ 14
4.7 Delivery of Books and Records ..................................... 14
ARTICLE 5: PRORATIONS; COSTS ................................................ 14
5.1 Prorations ........................................................ 14
5.2 Post-Closing Corrections .......................................... 16
5.3 Utilities ......................................................... 16
5.4 Service Contracts ................................................. 16
5.5 Costs ............................................................. 16
5.6 Sales, Transfer, and Documentary Taxes ............................ 16
5.7 Utility Deposits .................................................. 16
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5.8 Sales Commissions .................................................... 17
5.9 Intentionally Omitted ................................................ 17
5.10 Intentionally Omitted ................................................ 17
ARTICLE 6: REPRESENTATIONS AND WARRANTIES ................................... 17
6.1 Seller's Representations and Warranties .............................. 17
6.2 Buyer's Representations and Warranties ............................... 19
6.3 Survival of Representations and Warranties ........................... 19
ARTICLE 7: DEFAULT AND REMEDIES ............................................. 20
7.1 Seller's Default ..................................................... 20
7.2 Buyer's Default ...................................................... 20
7.3 Other Expenses ....................................................... 20
ARTICLE 8: INDEMNIFICATION .................................................. 20
8.1 Seller's Indemnity ................................................... 20
8.2 Buyer's Indemnity .................................................... 20
8.3 Procedure ............................................................ 21
8.4 Survivability ........................................................ 21
ARTICLE 9: MISCELLANEOUS .................................................... 21
9.1 Parties Bound ........................................................ 21
9.2 Headings ............................................................. 21
9.3 Invalidity and Waiver ................................................ 21
9.4 Governing Law ........................................................ 22
9.5 Survival ............................................................. 22
9.6 No Third Party Beneficiary ........................................... 22
9.7 Entirety and Amendments .............................................. 22
9.8 Time ................................................................. 22
9.9 Confidentiality ...................................................... 22
9.10 Enforcement Expenses ................................................. 22
9.11 Notices .............................................................. 22
9.12 Construction ......................................................... 22
9.13 Calculation of Time Periods .......................................... 23
9.14 Intentionally Omitted ................................................ 23
9.15 Execution in Counterparts ............................................ 23
9.16 Intentionally Omitted ................................................ 23
9.17 Further Assurances ................................................... 23
9.18 Waiver of Jury Trial ................................................. 23
9.19 Intentionally Omitted ................................................ 23
9.20 1031 Exchange ........................................................ 23
9.21 Mutual Execution ..................................................... 24
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PURCHASE AND SALE AGREEMENT
SCHEDULE OF EXHIBITS AND APPENDICES
Exhibit A - Legal Description
Appendix 1.3 - Escrow Agreement
Appendix 2.2 - Property Information
Appendix 2.9 - Loan Documents
Appendix 4.3(a) - Deed
Appendix 4.3(b) - Omnibus Agreement
Appendix 4.3(c) - Assignment
Appendix 4.3(f) - FIRPTA
Appendix 6.1(c) - List of Leases
Appendix 6.1(d) - List of Service Contracts
Appendix 6.1(g) - List of Environmental Assessments
Appendix 9.11 - Notice Addresses
-iii-
