Exhibit 10.11
Purchase and Sale Agreement
Agreement dated as of the 28th day of February, 2003.
1. Parties
Xxxxxx X. Xxxxxx and Xxxxxx X. Xxxxxxx, as Trustees of the
Enon Nominee Trust u/d/t dated April 22, 1994 and recorded at
Essex South Registry of Deeds, Book 12543, Page 43, collectively
hereinafter called the SELLER, agree to SELL and Enon Microwave,
Inc., a Delaware corporation, BUYER or PURCHASER, agrees to BUY,
upon the terms hereinafter set forth, the Premises described in
Paragraph 2 below.
2. Description
Unit No. 1 (the "Unit") of the Phase II Building in the
Topsfield Business Park Condominium (the "Condominium"), situated
at Xxxxx 0, Xxxxxxxxx, Xxxxx Xxxxxx, Xxxxxxxxxxxxx 00000, created
by Master Deed dated August 8, 1985 and recorded with the Essex
South Registry of Deeds at Book 7866, Page 106, as the same may
have been amended from time to time, together with (a) an
undivided six and eight-tenths percent (6.8%) interest
appertaining to said unit in the general common areas and
facilities and an undivided fifty percent (50%) interest in the
building common areas and facilities of the Condominium, together
with such other rights and easements appurtenant to the Unit as
may be set forth in any document governing the operation of the
Condominium, including without limitation the Master Deed, the By-
Laws of the organization of unit owners, and the administrative
rules and regulations adopted pursuant thereto (all of which are
hereinafter referred to as the "Condominium Documents"). The
above-described premises are those conveyed to the SELLER by deed
dated April 25, 1994 and recorded with Essex South Registry of
Deeds, Book 12543, Page 49.
3. Title Deed
Said premises are to be conveyed by a good and sufficient
quitclaim deed running to the BUYER, or to the nominee designated
by the BUYER by written notice to the SELLER at least seven (7)
days before the deed is to be delivered as herein provided, and
said deed shall convey a good and clear record and marketable
title thereto, free from encumbrances, except:
(a) Provisions of existing building and zoning laws;
(b) The provisions of Chapter 183A of the Massachusetts
General Laws and the Condominium Documents including without
limitation all obligations of the unit owners to pay a
proportionate share of the common expenses of the Condominium;
(c) Such taxes for the then current year as are not due
and payable on the date of the delivery of such deed;
(d) Any liens for municipal betterments assessed after the
date of this agreement;
(e) Easements, restrictions and reservations of record, if
any, so long as the same do not prohibit or materially interfere
with the current use of the premises; and
(f) All restrictions, easements and encumbrances referred
to in the Condominium Documents.
4. Purchase Price
The agreed purchase price for said premises is set forth on
Schedule A to this Agreement.
5. Time for Performance: Delivery of Deed
Such deed is to be delivered at 2:00 p.m. on the 27th day of
March, 2003, at the offices of BUYER's attorney, unless otherwise
agreed upon in writing. It is agreed that time is of the essence
of this Agreement.
6. Possession and Condition of Premises
Full possession of said premises is to be delivered at the
time of the delivery of the deed, said premises to be then in the
same condition as they now are, reasonable use and wear excepted.
The BUYER shall be entitled personally to inspect said premises
prior to the delivery of the deed in order to determine whether
the condition thereof complies with the terms of this clause.
7. Extension to Perfect Title or Make Premises Conform
If the SELLER shall be unable to give title or to make
conveyance, or to deliver possession of the premises, all as
herein stipulated, or if at the time of the delivery of the deed
the premises do not conform with the provisions hereof, the
SELLER shall use reasonable efforts to remove any defects in
title, or to deliver possession as provided herein, or to make
the said premises conform to the provisions hereof, as the case
may be, and thereupon the time for performance hereof shall be
extended for a period of up to thirty (30) days or until the
expiration of BUYER's financing commitment, which ever shall
first occur. For purposes of this Section 7 SELLER's reasonable
efforts shall be limited to a maximum expenditure of Two Thousand
and Five Hundred Dollars ($2,500).
8. Failure to Perfect Title or Make Premises Conform, etc.
If at the expiration of the extended time the SELLER shall
have failed so to remove any defects in title, deliver
possession, or make the premises conform, as the case may be, all
as herein agreed, then any payments made under this agreement
shall be forthwith refunded and all other obligations of the
parties hereto shall cease and this agreement shall be void
without recourse to the parties hereto.
9. BUYER's Election to Accept Title
The BUYER shall have the election, at either the original or
any extended time for performance, to accept such title as the
SELLER can deliver to the said premises in their then condition
and to pay therefore the purchase price without deduction, in
which case the SELLER shall convey such title, except that in the
event of such conveyance in accord with the provisions of this
clause, if the said premises shall have been damaged by fire or
casualty insured against by the organization of unit owners or
the SELLER, then the SELLER shall, unless the SELLER has
previously restored the premises to their former condition,
either
(a) pay over or assign to the BUYER, on delivery of the
deed, all amounts recovered or recoverable on account of such
insurance, less any amounts reasonably expended by the SELLER for
any partial restoration, or
(b) if a holder of a mortgage on said premises shall not
permit the insurance proceeds or a part thereof to be used to
restore the said premises to their former condition or to be so
paid over or assigned, give to the BUYER a credit against the
purchase price, on delivery of the deed, equal to said amounts so
recovered or recoverable and retained by the holder of the said
mortgage less any amounts reasonably expended by the SELLER for
any partial restoration.
10. Acceptance of Deed
The acceptance of a deed by the BUYER or its nominee as the
case may be, shall be deemed to be a full performance and
discharge of every agreement and obligation herein contained or
expressed, except such as are, by the terms hereof, to be
performed after the delivery of said deed.
11. Use of Money to Clear Title
To enable the SELLER to make conveyance as herein provided,
the SELLER may, at the time of delivery of the deed, use the
purchase money or any portion thereof to clear the title of any
or all encumbrances or interests, provided that all instruments
so procured are recorded simultaneously with the delivery of said
deed or arrangements have been made for the subsequent
recordation in accordance with local conveyancing standards.
12. Insurance
The SELLER represents that at the time of execution of this
Agreement, the organization of unit owners maintains insurance
with respect to the Condominium as follows:
Type of Insurance Amount of Coverage
(a) Fire and Extended Coverage $ As presently
insured
At the time of delivery of the deed, the SELLER shall deliver to
the BUYER a certificate of the Condominium insurance as then in
effect. The procuring of any supplemental insurance shall be at
the option and sole expense of the BUYER.
13. Adjustments
Collected rents and common expenses for the then current
month and taxes for the then current fiscal year shall be
apportioned as of the day of performance of this Agreement and
the net amount thereof shall be added to or deducted from, as the
case may be, the Purchase Price payable by the BUYER at the time
of delivery of the deed. All uncollected rents for the current
and any prior rental periods shall be apportioned, if and when
collected by either party based on the number of days of
ownership of each party in the applicable rental period. The
conveyance of the premises shall be deemed to include the
SELLER's allocable share of any working capital or other reserve
funds held by the organization of unit owners, without adjustment
or payment of any additional consideration by the BUYER.
14. Adjustment of Unassessed and Abated Taxes
If the amount of said taxes is not known at the time of the
delivery of the deed, they shall be apportioned on the basis of
the taxes assessed for the preceding fiscal year, with a
reapportionment as soon as the new tax rate and valuation can be
ascertained; and, if the taxes which are to be apportioned shall
thereafter be reduced by abatement, the amount of such abatement,
less the reasonable cost of obtaining the same, shall be
apportioned between the parties, provided that neither party
shall be obligated to institute or prosecute proceedings for an
abatement unless herein otherwise agreed.
15. Deposit
All deposits made hereunder shall be held in escrow by
Tinti, Xxxxx, Xxxxxx & Xxxx, P.C., the SELLER's attorneys, as
escrow agent subject to the terms of this agreement and shall be
duly accounted for at the time for performance of this Agreement.
Interest on the deposits shall accrue for the benefit of SELLER
unless the Closing does not occur, in which case interest follows
the deposit.
16. BUYER's Default: Damages
If the BUYER shall fail to fulfill the BUYER's agreements
herein, all deposits made hereunder by the BUYER shall be
retained by the SELLER as SELLER's sole and exclusive remedy
hereunder at law and in equity.
17. Warranties and Representations
The BUYER acknowledges that the BUYER has not been
influenced to enter into this transaction nor has he relied upon
any warranties or representations not set forth or incorporated
in this Agreement or previously made in writing.
18. Contingencies
A. Financing
The BUYER is applying for a conventional bank or other
institutional mortgage loan of $332,000.00 with an amortization
schedule of 20 years and at prevailing rates. If, despite the
BUYER's diligent efforts, a commitment for such loan cannot be
obtained on or before March 17, 2003, the BUYER may terminate
this Agreement by written notice to the SELLER prior to the
expiration of such time, whereupon any payments made under this
Agreement shall be forthwith refunded and all other obligations
of the parties hereto shall cease and this Agreement shall be
void without recourse to the parties hereto.
B. Environmental
BUYER shall have the right to have an environmental review
of the premises conducted by a Licensed Site Professional. In
the event BUYER's environmental review indicates the presence of
oil or hazardous materials, BUYER shall have the right to
terminate this Agreement by delivery of written notice to the
SELLER on or before March 17, 2003. Any such Notice from BUYER
must be accompanied by copies of all environmental reports
received and an explanation from the Licensed Site Professional,
of the applicable condition. BUYER shall not, nor shall it permit
any employee, agent or contractor to disclose the results of its
environmental due diligence except as may otherwise be required
under applicable law.
BUYER shall be solely responsible for any and all costs and
expenses of its tests and inspections. BUYER agrees that BUYER
will indemnify SELLER for any and all claims, losses,
liabilities, costs, damages and expenses, including, without
limitation, reasonable attorneys' fees and disbursements, based
upon or arising out of any event occurring in or about said
premises in connection with any environmental review performed by
BUYER. Prior to entering the premises for its environmental
review, BUYER shall provide evidence of insurance reasonably
acceptable to SELLER and provide SELLER with copies of the
statements indicating the nature of extent of services or
investigation to be performed.
19. Construction of Agreement
This instrument, executed in multiple counterparts, is to be
construed as a Massachusetts contract, is to take effect as a
sealed instrument, sets forth the entire contract between the
parties, is binding upon and inures to the benefit of the parties
hereto and their respective heirs, devisees, executors,
administrators, successors and assigns, and may be canceled,
modified or amended only by a written instrument executed by both
the SELLER and the BUYER. If two or more persons are named herein
as BUYER their obligations hereunder shall be joint and several.
The captions and marginal notes are used only as a matter of
convenience and are not to be considered a part of this Agreement
or to be used in determining the intent of the parties to it.
20. Notice
Any and all notices given under the Agreement (including all
riders and schedules thereto) shall be forwarded and shall be
deemed sufficient if sent (i) certified mail postage prepaid,
return receipt requested, or (ii) by hand, or (iii) by reputable
overnight courier, or (iv) by facsimile if followed by one of the
methods for delivery in (i)-(iii) above, when addressed as
follows:
TO SELLER:
Xxxxxx X. Xxxxxx
address set forth on Schedule A hereto
Xxxxxx X. Xxxxxxx
address set forth on Schedule B hereto
With a copy to:
Xxxx X. Xxxx, Esq.
Tinti, Xxxxx, Xxxxxx & Xxxx, P.C.
000 Xxxxx Xxxxxx
Xxxxx, XX 00000
Fax: (000) 000-0000
TO BUYER:
Enon Microwave, Inc.
000X Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
With a copy to:
Xxxxxxx Xxxxx
Xxxxx & Associates, P.C.
000 0xx Xxxxxx, Xxxxx 000
XX, XX 00000
21. Title Affidavit
SELLER agrees to execute at the time of delivery of deed any
documents reasonably required by BUYER's lender or BUYER's
counsel relating to title, and an affidavit and indemnification
to the BUYER's title insurance company regarding persons in the
possession of the premises and indemnifying the title insurance
company against claims of workmen and materialmen under statutory
liens, all as of the date of delivery of deed.
22. Non-Foreign Person
The SELLER warrants and represents to the BUYER that the
SELLER is not a "foreign person" as that term is defined in
Section 1445 of the Internal Revenue Code and the SELLER's Tax
Payer Identification Number is ###-##-####. The SELLER agrees to
deliver at the time of delivery of deed hereunder a so-called
"Nonforeign Certificate" sufficient to qualify for exemption
pursuant to Section 1445(b)(2) of said Code. SELLER will execute
and provide all additional information necessary for filing of
1099 form as required.
23. Condition of Premises
SELLER shall deliver and BUYER shall accept said premises in
the condition as of the date of this Agreement "AS IS", WITH ALL
FAULTS, IF ANY, AND WITHOUT ANY REPRESENTATIONS OR WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING FITNESS FOR A PARTICULAR PURPOSE.
24. Brokers
SELLER represents and warrants to the BUYER that it has
engaged no broker in connection with the sale of the premises.
BUYER represents and warrants to the SELLER that it has engaged
no broker in connection with the sale of the premises. SELLER
agrees to indemnify and hold BUYER harmless from any claim as a
result of the inaccuracy of its representations and warranties
herein contained. BUYER agrees to indemnify and hold SELLER
harmless from any claim as a result of the inaccuracy of its
representations and warranties herein contained.
25. Right of First Refusal Contingency
The SELLER's obligations hereunder are contingent upon no
valid exercise by a Unit Owner or Unit Owners, the Condominium
Trust or the Building Trust (all as defined in the Master Deed)
of the Right of First Refusal set forth in Section 13 of the
Master Deed. A copy of the notice that the SELLER will provide
to such persons or entities is attached hereto as Exhibit A. The
SELLER reserves the right to modify such notice to maintain
compliance with the requirements of Section 13 of the Master
Deed.
26. Counterparts
This Agreement may be executed in any number of counterparts
and if so executed shall be deemed fully executed when each of
the parties has executed and delivered at least one counterpart.
Signed as a sealed instrument on the date first stated
above.
SELLER: BUYER:
/s/Xxxxxx X. Xxxxxx Enon Microwave, Inc.
Xxxxxx X. Xxxxxx, Trustee and
not individually
By: /s/Xxxxxxx X. Xxxxx
Its: President
/s/Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx, Trustee and
not individually
