PURCHASE AND SALE AGREEMENT
THIS
PURCHASE AND SALE AGREEMENT (this “Agreement”)
is
made and entered into as of the 12th day of September, 2008, by
and between NetView 7, 8 and 10 LLC, a Delaware limited liability company having
an office address at 00 Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx 00000
(“Seller”),
and
Palomar Medical Technologies, Inc., a Delaware corporation having an address
of
00 Xxxxxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000 (“Purchaser”).
WITNESSETH
In
consideration of the covenants and agreements hereinafter contained, the parties
hereto agree as follows:
1. The
Sale.
Upon
and
subject to the terms and conditions of this Agreement, Seller agrees to sell
and
convey to Purchaser, and Purchaser agrees to purchase from Seller:
(a) that
certain real property situated in Burlington, Middlesex County, Massachusetts,
consisting of land and shown as Lot 4A on the Definitive Subdivision Plan (as
defined in Section 19 below) and also shown on the plan annexed hereto as
Exhibit
A
and
entitled [Layout
and Materials Plan]
(the
“Site
Plan”)
(as
shown on the Definitive Subdivision Plan and the Site Plan, the “Lot”),
together with all the rights and appurtenances pertaining thereto, and any
right, title and interest of Seller in and to adjacent streets, alleys, and
rights-of-way (together with the Lot, the “Real
Property”).
The
Lot is a portion of Lot 4 as shown on the plan recorded with the Middlesex
South
District Registry of Deeds (the “Registry”)
as
Plan 672 of 2007 (“Lot
4”);
and
(b) all
right, title and interest of Seller in and to all studies, surveys, plans,
drawings, specifications, reports, contracts, approvals, licenses, permits,
certificates, maintenance manuals, warranties, design approvals, special permits
and variances relating to the Real Property, if any, and to the extent
transferable (“Permit
Materials”)
(the
Real Property and the Permit Materials being collectively referred to as the
“Property”).
2. Purchase
Price; Deposit.
2.1 Purchase
Price.
The
purchase price for the Property to be paid at closing of title (the
“Closing”)
is Ten
Million Six Hundred Eighty Thousand Dollars ($10,680,000), subject to the terms
of Section 19 of this Agreement (the “Purchase
Price”).
2.2 Deposit.
Two
Hundred Fifty Thousand Dollars and 00/100 Dollars ($250,000.00) (the
“Deposit”)
shall
be paid by Purchaser to Land America (the “Title
Company”)
as
escrow holder by wire transfer of immediately available federal funds directly
to the account designated by Title Company, within one (1) Business Day
following the date on which this Agreement is executed by both parties (the
“Effective
Date”).
Failure by Purchaser timely to pay the Deposit shall render this Agreement
null
and void. The balance of the Purchase Price, as adjusted for prorations and
apportionments as herein provided, shall be paid to Seller at Closing by wire
transfer of immediately available federal funds (such funds, the “Closing
Funds”).
The
Closing shall take place through escrow with the Title Company (with Purchaser
transferring the Closing Funds to the Title Company and the Title Company
disbursing such funds to an account designated by Seller in accordance with
the
terms hereof). The Deposit, together with the accrued interest, shall be
credited to Purchaser’s payment of the Purchase Price at the Closing.
The
Deposit shall be held by the Title Company in accordance with the following
terms and conditions:
(a) The
Deposit shall be invested by the Title Company in an interest-bearing account
at
a bank or other financial institution reasonably satisfactory to each of Seller
and Purchaser.
(b) Except
as
otherwise specifically directed in this Agreement, the Title Company shall
deliver the Deposit to Seller or Purchaser promptly after receiving a joint
notice from Seller and Purchaser
directing
the disbursement of the same, such disbursement to be made in accordance with
such direction. If the Title Company receives notice from only Purchaser or
only
Seller that the party giving such notice is entitled to the Deposit, which
notice shall describe with reasonable specificity the reasons for such
entitlement, then the Title Company shall (i) promptly give notice to the other
party of the Title Company’s receipt of such notice and enclosing a copy of such
notice and (ii) subject to the provisions of the following paragraph which
shall
apply if a conflict arises, on the seventh (7th)
day
after the giving of the notice referred to in clause (i) above, deliver the
Deposit to the party claiming the right to receive it. Notwithstanding any
other
provision of this Section 2.2, after receiving a notice solely from Purchaser
prior to the expiration of the Review Period (as defined in Section 20 of this
Agreement) that Purchaser is entitled to the Deposit, the Title Company shall
promptly disburse the Deposit to Purchaser.
(c) In
the
event that the Title Company shall be uncertain as to its duties or actions
hereunder or shall receive instructions or a notice from Purchaser or Seller
which are in conflict with instructions or a notice from the other party or
which, in the reasonable opinion of the Title Company, are in conflict with
any
of the provisions of this Agreement, the Title Company shall be entitled to
take
any one or more of the following courses of action:
(i) Hold
the
Deposit as provided in this Agreement and decline to take any further action
until the Title Company receives a joint written direction from Purchaser and
Seller or any order of a court of competent jurisdiction directing the
disbursement of the Deposit, in which case the Title Company shall then disburse
the Deposit in accordance with such direction;
(ii) In
the
event of litigation between Purchaser and Seller, deliver the Deposit to the
clerk of any court in which such litigation is pending; or
(iii) Deliver
the Deposit to a court of competent jurisdiction and therein commence an action
for interpleader, the cost thereof to the Title Company to be borne by whichever
of Purchaser or Seller does not prevail in the litigation.
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(d) The
Title
Company shall not be liable for any action taken or omitted in good faith and
without negligence and believed by it to be authorized or within the rights
or
powers conferred upon it by this Agreement and it may rely, and shall be
protected in acting or refraining from acting in good faith reliance upon an
opinion of counsel and upon any directions, instructions, notice, certificate,
instrument, request, paper or other documents believed by it to be genuine
and
to have been made, sent, signed or presented by the proper party or parties.
In
no event shall the Title Company’s liability hereunder exceed the aggregate
amount of the Deposit. The Title Company shall be under no obligation to take
any legal action in connection with the Deposit or this Agreement or to appear
in, prosecute or defend any action or legal proceedings which would or might,
in
its sole opinion, involve it in cost, expense, loss or liability unless, in
advance, and as often as reasonably required by it, the Title Company shall
be
furnished with such security and indemnity as it finds reasonably satisfactory
against all such cost, expense, loss or liability. Notwithstanding any other
provision of this Agreement, Purchaser and Seller jointly indemnify and agree
to
hold harmless the Title Company against any loss, liability or expense incurred
without bad faith and without negligence on its part and arising under the
terms
of this Agreement, including the cost and expense of defending itself against
any claim of liability.
(e) The
Title
Company shall not be bound by any modification to this Section 2.2 unless the
same is in writing and signed by Purchaser, Seller and the Title Company. From
time to time on or after the date hereof, Purchaser and Seller shall deliver
or
cause to be delivered to the Title Company such further documents and
instruments required hereunder, or cause to be done such further acts as the
Title Company may reasonably request (it being understood that the Title Company
shall have no obligation to make any such request) to carry out more effectively
the provisions and purposes of this Agreement, to evidence compliance with
this
Agreement or to assure itself that it is protected in acting
hereunder.
(f) The
Title
Company shall serve hereunder without fee for its services as escrow agent,
but
shall be entitled to reimbursement for expenses incurred hereunder, which
expenses shall be paid and borne equally by Purchaser and Seller, unless such
expenses are associated with litigation between Purchaser and Seller, in which
event they shall be borne by the party that does not prevail in the litigation.
The Title Company agrees that it will not seek reimbursement for the services
of
its employees or partners, but only for its actual and reasonably incurred
out-of-pocket expenses not to exceed $1,000.00.
(g) The
Title
Company shall be entitled to rely upon the authenticity of any signature and
the
genuineness and validity of any writing received by the Title Company relating
to this Agreement. The Title Company may rely upon any oral identification
of a
party notifying the Title Company orally as to matters relating to this
Agreement if such oral notification is permitted thereunder. The Title Company
is not responsible for the nature, content, validity or enforceability of any
of
the escrow documents except for those documents prepared by the Title
Company.
(h) The
Title
Company may, at its sole discretion, resign by giving thirty (30) days’ prior
written notice thereof to the parties hereto. In the event of such resignation,
the parties shall furnish to the Title Company written instructions for the
release of the escrow funds and escrow documents. If the Title Company shall
not
have received such written instructions within the thirty (30) days, the Title
Company may petition any court of competent jurisdiction for the appointment
of
a successor escrow agent and upon such appointment deliver the escrow funds
and
escrow documents to such successor. Costs and fees incurred by the Title Company
may (at the option of the Title Company), be deducted from any funds held
pursuant hereto.
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(i) The
Title
Company executes this Agreement solely for the purpose of consent to,
and
agreeing
to be bound by the provisions of this Section 2.2, and to the extent applicable
to the Title Company.
3. Condition
of Title.
3.1 Initial
Review of Title and Survey.
Prior
to the Effective Date Purchaser has obtained an ALTA Preliminary Commitment
for
Title Insurance effective as of 4:30 p.m. on December 21, 2007 issued
by
the Title Company (the “Title
Commitment”).
Subject to Seller’s compliance with the Requirements set forth in Schedule B -
Section 1 of the Title Commitment, including, without limitation, satisfaction
of No. 13 of said Schedule B - Section 1, by discharge, partial release or,
in
the case of mechanic’s liens by bonding, (the “Required
Title Actions”),
Purchaser accepts the status of title reflected in the Title Commitment as
of
the effective date thereof.
Within
thirty (30) days after the Final Plan (as hereinafter defined) is received
by
Purchaser, Purchaser shall have the right to obtain an ALTA survey with respect
to the Lot (the “ALTA
Survey”).
Purchaser shall be deemed to have accepted the status of those matters reflected
in the ALTA Survey as of the date thereof unless Purchaser provides notice
to
Seller on or before the date that is ten (10) days after the date on which
Purchaser receives the ALTA Survey setting forth any objections to any matter(s)
shown on the ALTA Survey.
3.2 Permitted
Exceptions.
The
following are the “Permitted
Exceptions”:
(a) Those
matters listed as Schedule B, Section 2 on the Title Commitment other than
the
Required Title Actions;
(b) All
other
matters of record as of the effective date of the Title Commitment not shown
on
the Title Commitment;
(c) All
matters shown on the ALTA Survey and not objected to by Purchaser as provided
herein;
(d) The
lien
for such taxes as will not be, as of the Closing Date, due and payable, and
for
municipal betterments assessed after the Closing Date;
(e) All
federal, state and local laws, statutes, ordinances, rules and regulations
affecting or in any way relating to any of the Property, including, without
limitation and by way of illustration only, all legal requirements involving
the
development, construction, occupancy and use of the Property, all environmental
laws, all laws regulating use or development of wetlands areas, the Americans
with Disabilities Act, and the Occupational Safety and Health Act of 1970,
as
amended from time to time, and similar federal, state and local requirements;
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(f) Any
easements, and cross easements, for the Proposed Project or the development
of
the Master Property (as defined in Section 19 below), provided that such
easement and cross easements which affect the Lot or the Proposed Project shall
be subject to the approval by Purchaser (such approval not to be unreasonably
withheld or delayed) including without limitation the Park Covenants (as defined
in Section 19 below); and
(g) All
matters resulting from Purchaser’s exercise of its rights under this Agreement,
including without limitation the Approvals (as defined in Section 19
below).
3.3 Unpermitted
Exceptions.
All
matters affecting title to the Property, and all survey matters affecting the
Property, other than those matters expressly included as Permitted Exceptions
pursuant to Section 3.2 are collectively referred to herein as “Unpermitted
Exceptions.”
During
the term of this Agreement, Seller shall not encumber the Lot except as provided
in this Agreement, or except as required by the Approvals, or except for
encumbrances that will be discharged or partially released at Closing. In
addition to satisfaction, delivery, or discharge, as applicable, of the Required
Title Actions, at or prior to the Closing, Seller shall discharge, partially
release, or cure, as applicable, all Unpermitted Exceptions or have such
Unpermitted Exceptions bonded over to the Title Company’s reasonable
satisfaction which arise subsequent to the date of the Title Commitment;
provided, however that Seller shall not be obligated to expend in excess of
Two
Hundred Thousand and 00/100 Dollars ($200,000.00) in the aggregate, which amount
shall include, without limitation, the payment of any attorneys’ fees or
expenses or title insurance premiums, fees or expenses, to cure Unpermitted
Exceptions other than any of the following (which Seller shall cure on or before
the Closing Date): (i) mortgages or related security documents or similar
encumbrances given to secure indebtedness for money borrowed, or (ii) taxes
and
assessments due and payable as of the Closing Date (collectively, “Monetary
Encumbrances”).
Notwithstanding the preceding sentence, if in the reasonable judgment of
Seller’s counsel it is substantially unlikely that the Unpermitted Exceptions
(excluding the Monetary Encumbrances) can be cured even by the expenditure
of
Two Hundred Thousand and 00/100 Dollars ($200,000.00), then Seller need not
make
such expenditure and the provisions of Section 4.3(b) shall apply. Seller shall
be entitled to use the proceeds of the sale of the Property to effect any
discharge, bonding over or cure made pursuant to this Section 3.3.
3.4 Non-Disturbance
Agreement.
Seller
shall use commercially reasonable efforts to obtain from Bank of America, N.A.,
the existing lender holding a mortgage secured by Lot 4 (the “Lender”),
within thirty (30) days of the date of this Agreement, a Non-Disturbance
Agreement in form reasonably acceptable to Buyer (the “NDA”).
The
NDA will provide that in the event of a foreclosure of the mortgage, Lender
shall (i) recognize Purchaser’s rights under this Agreement, and (ii) convey
title to the Property to Purchaser in accordance with the terms of this
Agreement, provided, however, Lender shall have no obligation to obtain the
Subdivision Approvals or the Approvals.
4. Conditions
Precedent to Closing; the Closing.
4.1 Conditions
Precedent to Purchaser’s Obligation to Close.
Purchaser’s obligation to consummate the Closing is subject to the satisfaction
of the following conditions:
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(a) All
of
Seller’s representations and warranties set forth in Section 6 and Section 7.1
shall be true and correct in all material respects as of the Closing, and all
covenants and agreements of Seller made in this Agreement shall have been
fulfilled.
(b) Each
item
or instrument to be delivered by Seller described in Section 4.5 below is
delivered at the Closing.
(c) The
Approvals shall have been Obtained (as hereinafter defined) pursuant to the
provisions of Section 19 below.
(d) The
Final
Development Budget shall have been approved by Seller and Purchaser pursuant
to
the provisions of Section 19 below.
(e) The
Title
Company shall be unconditionally prepared to issue to the Purchaser an owner’s
policy of title insurance based on the Title Commitment, insuring clear and
marketable title to the Real Property subject only to the Permitted
Exceptions.
(f) The
Park
Covenants (as hereinafter defined) shall have been recorded with the Middlesex
South District Registry of Deeds.
4.2 Conditions
Precedent to Seller’s Obligation to Close.
Seller’s obligation to consummate the Closing is subject to the satisfaction of
the following conditions:
(a) All
of
Purchaser’s representations and warranties set forth in Section 6 and Section
7.2 shall be true and correct in all material respects as of Closing and all
covenants and agreements of Purchaser made in this Agreement shall have been
fulfilled; provided, however, that if Purchaser shall have assigned this
Agreement in accordance with Section 16, such assignee(s) shall make with
respect to itself or themselves the representations set forth in Section 7.2,
adjusted, as appropriate, to reflect the nature of the legal entity of such
assignee and the laws under which it is governed; and
(b) Each
item
or instrument to be delivered by Purchaser described in Section 4.6 below is
delivered at the Closing.
4.3 The
Closing and Closing Deliveries.
(a) The
Closing shall take place through the Title Company, at 10:00 a.m. at the offices
of Purchaser’s counsel, Xxxxxx & Xxxxxxxxxx LLP, 7 New England Executive
Park, Xxxxxxxxxx, Xxxxxxxxxxxxx 00000, on that date which is thirty (30) days
after the earlier to occur of (i) the date the Approvals are Obtained, or (ii)
the Approval Contingency Date, as defined in Section 19.4 of this Agreement
(the
“Closing
Date”);
but
in no event shall the Closing Date be later than February 27, 2009. If Purchaser
so requests, Purchaser may, by written notice to Seller given no less than
one
(1) Business Day prior to the Closing Date, cause the Closing to take place
at
the offices of Purchaser’s lending institution or of such lending institution’s
counsel within the City of Boston. All documents to be delivered at the Closing
and all payments to be made as specified in Sections 4.5 and 4.6, inclusive,
shall be delivered to the Title Company on the Closing Date, in escrow, pending
delivery of possession of the Property in conformance with this Agreement,
upon
which delivery, and confirmation from the Title Company that it is
unconditionally prepared to issue a title policy consistent with the provisions
of Section 3 hereof, and in any event upon the Purchaser’s payment of all
premiums and charges required therefor, all instruments and funds shall then
be
delivered out of escrow, provided that in no event shall such escrow continue
beyond 5:00 p.m. on the Business Day next following the Closing Date. Purchaser
and/or Purchaser’s agents shall be entitled to inspect the Property prior to the
Closing in order to determine whether the condition thereof complies with the
terms of this Agreement.
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(b) If
on the
Closing Date the title to the Property or any survey matter with respect to
the
Property does not conform to the requirements of Section 3, then the Closing
Date shall automatically be extended for a period of thirty (30) days (the
“Extended
Closing Date”)
in
order to permit Seller to (i) remove any Unpermitted Exceptions which are
Monetary Encumbrances and (ii) use reasonable efforts (subject to the
limitations provided in Sections 3.1 and 3.3) to remove other such Unpermitted
Exceptions. If by the Extended Closing Date Seller, having used such reasonable
efforts, shall have failed so to remove such Unpermitted Exceptions which are
other than Monetary Encumbrances, all as herein provided, then Purchaser shall
have the remedies provided in Section 13.1.
(c) The
acceptance of transfer of title to the Property by Purchaser (or its assignee),
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 express
terms hereof, to be performed after or are to survive the Closing.
4.4 Possession.
At
Closing Seller shall deliver full possession of the Real Property free of all
tenants and occupants, such Real Property to be then in the same condition
as on
the date of this Agreement with the following exceptions: (i) ordinary wear
and
tear; and (ii) subject to the provisions of Section 14, as affected by any
Taking (as hereinafter defined).
4.5 Seller’s
Deliveries.
At the
Closing, Seller shall deliver or cause to be delivered to Purchaser, the
following (collectively, “Seller’s
Deliveries”):
(a) Two
(2)
duly executed and acknowledged counterpart originals of a Massachusetts
statutory form of Quitclaim Deed (the “Deed”),
substantially in the form annexed hereto as Exhibit
C,
conveying to Purchaser title in fee simple to the Real Property, subject only
to
the Permitted Exceptions.
(b) Four
(4)
duly executed counterpart originals of a General Instrument of Transfer,
substantially in the form annexed hereto as Exhibit
D
(the
“General
Instrument of Transfer”),
assigning the matters described therein, including without limitation Seller’s
interests in the Permit Materials and the Approvals.
(c) Four
(4)
duly executed and counterpart originals of an Assignment and Assumption
Agreement, substantially in the form annexed hereto on Exhibit
E (the
“Assignment
and Assumption Agreement”)
assigning the Environmental Indemnity Agreement as defined in and pursuant
to
the provisions of Section 8.3(e) below as it relates to the Real Property
(d) An
original affidavit sworn to by Seller, substantially in the form annexed hereto
as Exhibit
F,
stating
under penalties of perjury that Seller is not a foreign person as defined in
Internal Revenue Code Section 1445 and stating Seller’s United States taxpayer
identification number.
7
(e) Seller
shall either deliver to Purchaser or make available to Purchaser at the Real
Property originals (or copies thereof if originals are not available) of all
documents and materials assigned pursuant to the General Instrument of Transfer
which it may have in its possession to the extent same has not been previously
delivered to Purchaser under Section 19 hereof. To the extent that such
materials cannot be delivered at Closing, Seller shall deliver such materials
to
Purchaser within a reasonable time after the Closing and the same shall not
delay the Closing or be deemed a failure of Seller to meet a condition to
Closing.
(f) An
original certificate, substantially in the form annexed hereto as Exhibit
G,
certifying all of Seller’s representations and warranties as contained herein
are true and correct in all material respects as of the Closing.
(g) Such
evidence (such as limited liability company resolutions, corporate resolutions
or partnership authorizations and certified limited liability company, corporate
or partnership organizational documents) as are reasonably required by Purchaser
or the Title Company to evidence the existence, good standing, qualification
to
do business and authority of Seller and the authorization of the sale of the
Property by Seller and the delivery by Seller of all of the Closing documents
required by this Agreement.
(h) Such
standard form affidavits and indemnities as the Title Company may reasonably
require, including without limitation so-called “gap” indemnity, in order (i) to
omit from the title policy issued to Purchaser at Closing exceptions for parties
in possession and mechanic’s liens, and (ii) to insure title to the Real
Property as of the Closing but prior to the recording of the conveyance
documents.
(i) Evidence
of payment in full of the commission due to the Named Broker, as defined in
Section 6 below, or payment of such commission at Closing by way of a debit
to
Seller on the Closing Statement and instruction to the Title Company to pay
such
amount.
(j) A
so-called Reliance Letter from Xxxxxxx Xxxxxx & XxXxxxx, Inc. with respect
to the Environmental Report as hereinafter defined.
(k) Four
(4)
executed counterpart originals of the Excess Costs Escrow Agreement as defined
and further described in Section 19 below.
(l) Four
(4)
executed counterpart originals of the Construction Management Agreement as
defined and further described in Section 19 below.
(m) Four
(4)
executed counterpart originals of the Closing Statement (as hereinafter
defined).
(n) One
(1)
original of the Final Plan (as defined in Section 19.1 below).
(o) One
(1)
original Design Certificate (as defined in Section 19.3 below).
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4.6 Purchaser’s
Deliveries.
At the
Closing, Purchaser shall deliver to Seller or to the party otherwise indicated
the following:
(a) The
Closing Funds shall be paid by wire transfer of immediately available federal
funds directly to the Title Company, to the account or accounts designated
by
the Title Company.
(b) Four
(4)
executed original certificates, substantially in the form annexed hereto as
Exhibit
H,
certifying all of Purchaser’s representations and warranties as contained herein
are true and correct in all material respects as of the Closing.
(c) Four
(4)
duly executed and acknowledged counterpart originals of the General Instrument
of Transfer.
(d) Four
(4)
duly executed and acknowledged counterpart originals of the Assignment and
Assumption Agreement.
(e) Such
documents (such as limited liability company resolutions, corporate resolutions
or partnership authorizations and certified limited liability company, corporate
or partnership organizational documents) as are reasonably required by Seller
or
the Title Company evidencing existence, good standing, qualification to do
business and authority of Purchaser and the authorization of the purchase of
the
Property by Purchaser and the delivery by Purchaser of all of the closing
documents required by this Agreement.
(f) Four
(4)
executed counterpart originals of the Excess Costs Escrow Agreement as defined
and further described in Section 19 below.
(g) Four
(4)
executed counterpart originals of the Construction Management Agreement as
defined and further described in Section 19 below.
(h) One
signed copy of the Construction Contract between Purchaser and the general
contractor for the construction of the Initial Phase as further described in
Section 19 below.
(i) Four
(4)
executed counterpart originals of the Closing Statement.
5. Apportionments.
The
following are to be apportioned as of the Closing Date in accordance with local
custom, with said date being a day of income and expense to Purchaser, and
the
same shall be reflected on a closing statement (the “Closing
Statement”)
executed by Seller and Purchaser at the Closing:
5.1 Taxes.
(a) Taxes
shall be paid on the basis of the fiscal year for which assessed, and shall
be
prorated based upon a 365 day year, for the actual number of days involved.
Seller and Purchaser acknowledge that the Real Property may not be a separate
tax parcel on the Closing Date. The apportionment of taxes shall be calculated
by assigning to the Real Property a percentage (calculated by dividing the
area
of the Lot by the total area of Lot 4) (the “Allocated
Portion”)
of the
aggregate amount of real estate taxes assessed (with respect to land only,
i.e.,
expressly excluding any taxes assessed with respect to any buildings or
improvements unless such building(s) or improvements have been constructed
by or
on behalf of Purchaser) by the Town of Burlington on Lot 4 (the “Tax
Parcel”).
If
the Closing Date shall occur before the real property tax rate for the then
current fiscal year is fixed, the apportionment of taxes shall be made on the
basis of the taxes assessed for the preceding fiscal year. After the real
property taxes are finally fixed for the fiscal year in which the Closing Date
occurs, Seller and Purchaser shall make a recalculation of the apportionment
of
such taxes, and Seller or Purchaser, as the case may be, shall promptly make
an
appropriate payment to the other based on such recalculation.
9
(b) Until
the
Real Property is assessed as a separate tax parcel, Seller shall promptly pay
all taxes that become due and payable from time to time with respect to the
Tax
Parcel, and Purchaser shall reimburse Seller for the Allocated Portion of all
real estate taxes assessed (with respect to the Lot only, i.e., expressly
excluding any taxes assessed with respect to any buildings or improvements
unless such building(s) or improvements have been constructed by or on behalf
of
Purchaser) on the Tax Parcel. The provisions of this Section 5.1(b) shall
survive the Closing.
5.2 Permit
Fees.
Annual
license, permit and inspection fees with respect to the Approvals transferred
to
Purchaser hereunder.
5.3 Tax
Credits.
The tax
credits approved by the Town of Burlington affecting the Lot or otherwise
affecting the development and construction of the Improvements, including
without limitation under the tax increment financing agreement with the Town
of
Burlington approved on June 9, 1997 (the “TIF
Agreement”),
shall
accrue to the benefit of Purchaser with respect to the Lot, with Seller
retaining the balance of the tax credits, if any, for Seller’s Remaining
Property, the Master Property (both as hereinafter defined) or other properties
owned by Seller, provided that Purchaser alone shall be entitled to any credits
or benefits resulting directly from the development of the Improvements and/or
the Proposed Project, including, without limitation, any local personal property
tax exemption arising out of or relating to the Improvements or the personal
property of Purchaser located on the Lot. Seller and Purchaser shall cooperate
and use best efforts to continue the applicability of the TIF Agreement to
the
Lot, the Improvements, and the Proposed Project.
5.4 Use
of
Closing Funds.
Seller
shall have the right to discharge, from out of the Closing proceeds, any lien
capable of being discharged by the payment of an ascertainable sum, including
without limitation any Monetary Encumbrances which Seller is obligated to
discharge, in which event the total sum of money required to discharge said
lien
or liens, as evidenced either by a written payoff statement or by other evidence
satisfactory to the Title Company, shall be reflected on the Closing
Statement.
5.5 Other
Items.
All
other items of revenue or expense customarily apportioned in connection with
the
sale of similar properties similarly located (it being acknowledged that
insurance will not be so prorated, Seller will cancel at Closing any existing
insurance policies that it maintains and Purchaser shall procure its own
insurance at Closing).
10
5.6 Correction
of Errors.
In the
event that any arithmetic or other like errors shall have been made in the
computation of any pro-rations or adjustments under this Section 5, Seller
and
Purchaser agree to cooperate in making appropriate adjustments as a result
of
any such errors, which adjustments shall be made no later than one (1) month
after the Closing. Such time limitation shall not limit the time within which
the recalculation of the apportionment of taxes under Section 5.1 shall be
made.
5.7 Survival.
The
provisions of this Section 5 shall survive the Closing.
6. Brokerage
Commissions.
Purchaser
represents and warrants that Purchaser has not dealt with any broker in
connection with the purchase of the Property except the Named Broker (as defined
below). Purchaser will indemnify and hold harmless Seller from and against
any
and all claims, loss, liability, cost, and expense (including reasonable
attorney’s fees) resulting from any claim that may be made against Seller by any
broker or other person (except for the Named Broker) claiming a commission,
fee,
or other compensation by reason of the transaction contemplated by this
Agreement, if the same shall arise by or on account of any act of Purchaser
or
Purchaser’s representatives. Seller represents and warrants that Seller has not
dealt with any broker in connection with the sale of the Property to Purchaser
except Xxxxx Xxxx LaSalle and FHO/DTZ (collectively, the “Named
Broker”).
If
the Closing occurs hereunder (but not otherwise), Seller shall pay the Named
Broker a commission pursuant to separate agreements between Seller and the
Named
Broker. Seller will indemnify and hold harmless Purchaser from and against
any
and all claims, loss, liability, cost, and expense (including reasonable
attorney’s fees) resulting from any claim that may be made against Purchaser by
any broker claiming a commission, fee, or other compensation by reason of the
transaction contemplated by this Agreement, if the same shall arise by or on
account of any act of Seller or Seller’s representatives; provided, however,
that upon written notice by either party to the other, each of Seller and
Purchaser shall have the right to provide for its own defense of any such
claims, losses, or liabilities, at the cost and expense (including reasonable
attorney’s fees) of the other party.
The
representations made by Seller and Purchaser in this Section 6 shall survive
the
Closing or any earlier termination of this Agreement.
7. Representations
and Warranties.
7.1 Seller’s
Representations and Warranties.
Seller
represents and warrants that:
(a) Seller
has no actual knowledge of any threatened or pending Taking affecting the Real
Property;
(b) On
the
Closing Date there will be no contracts, agreements or understandings, oral
or
written, with any person made by or on behalf of Seller relating to the Property
that would be binding upon Purchaser by virtue of its succession to the interest
of Seller in the Property, except the terms and conditions of the Permitted
Exceptions and the Approvals;
11
(c) To
Seller’s knowledge, except to the extent, if at all, set forth in any Permitted
Exceptions, there are no options, purchase contracts or other agreements,
written or oral, whereby any person could claim a right, title or interest
in
the Property or any portion thereof by or through Seller;
(d) There
are
no consents or approvals of any third persons, or any federal, state or local
governmental authorities, including, without limitation, any internal board
of
directors or other approval process, that are required in connection with the
performance by Seller of its obligations under this Agreement, other than such
of the foregoing as have been obtained or will be obtained by the Closing
Date;
(e) Seller
is
a Delaware Limited Liability Company duly and validly organized, existing and
in
good standing under, and governed by the laws of the State of Delaware and
is
duly qualified to transact business in the Commonwealth of Massachusetts, and
has all requisite power and authority to own and operate its properties and
to
carry on its business as now conducted and to enter into and perform this
Agreement and to carry out the transactions contemplated hereby;
(f) Seller
has duly authorized the execution, delivery, and performance of this Agreement,
and such execution, delivery and performance by Seller of this Agreement will
not result in a breach of, violate any term or provision of, or constitute
a
default under, the organizational documents of Seller or any other agreement
by
which Seller is bound;
(g) Performance
of this Agreement will not result in a breach of, constitute a default under,
or
result in the imposition of a lien or encumbrance upon the Property under any
agreement instrument, covenant, restriction, or corporate organizational
documents by which Seller or the Property is bound, and Seller is not prohibited
from consummating the transactions contemplated herein by any law or regulation,
agreement, instrument, restriction, order or judgment;
(h) No
bankruptcy or insolvency proceeding under the Bankruptcy Code or any state
bankruptcy or insolvency law filed by or against Seller is pending and no such
filing is contemplated by Seller, or, to Seller’s knowledge, threatened;
(i) There
is
no outstanding, or, to the Seller’s knowledge, threatened judgment, order,
decree, litigation, claim or proceeding before any court, commission, agency
or
other administrative authority (collectively, “Litigation”)
which
could affect the Property, Seller’s title to the Property or Seller’s ability to
consummate the transaction contemplated by this Agreement;
(j) Seller
is
not a "foreign person" within the meaning of § 1445 of the Internal Revenue
Code; and
(k) To
Seller’s knowledge Seller has received no written notice or citation from any
federal, state, county or municipal authority alleging any fire, health, safety,
building pollution, environmental, zoning, or other violation of any law, code,
regulation, ordinance, permit, order or directive in respect of the Real
Property or any part thereof, which has not been corrected to the satisfaction
of the issuing authority.
12
As
used
in this Section 7.1, the term “knowledge” with respect to Seller shall mean the
actual, conscious, not constructive or imputed, knowledge of Xxxxx X. Xxxxxxxx
and Xxxxx Xxxxx and shall not be construed to refer to the knowledge of any
other partner, officer, director, agent, member, manager, employee or
representative of Seller or of any affiliate of Seller. None of the foregoing
persons has made any independent investigation of the matters being represented
and warranted, any inquiry of any other person or persons, nor any search or
examination of any files, records, books, or correspondence or the
like.
7.2 Purchaser’s
Representations and Warranties.
Purchaser represents and warrants that:
(a) Purchaser
is a corporation duly and validly organized, existing and in good standing
under, and governed by the laws of the State of Delaware and is duly qualified
to transact business in the Commonwealth of Massachusetts, and Purchaser has
all
requisite power and authority to own and operate its properties and to carry
on
its business as now conducted and to enter into and perform this Agreement
and
to carry out the transactions contemplated hereby;
(b) No
consent, approval, order or authorization of, or registration, qualification,
designation, declaration or filing with, any governmental authority on the
part
of Purchaser is required in connection with the execution and delivery of this
Agreement or its purchase of the Property, except that Palomar will file an
executed copy of this Agreement with the Securities and Exchange Commission
(SEC).
(c) Purchaser
has duly authorized the execution, delivery, and performance of this Agreement,
and such execution, delivery and performance by Purchaser of this Agreement
will
not result in a breach of, violate any term or provision of, or constitute
a
default under, Purchaser’s corporate organizational documents or any other
agreement by which Purchaser is bound;
(d) No
bankruptcy or insolvency proceeding under the Bankruptcy Code or any state
bankruptcy or insolvency law filed by or against Purchaser is pending and no
such filing is contemplated by Purchaser, or, to Purchaser’s knowledge,
threatened; and
(e) There
is
no outstanding, or, to the Purchaser’s knowledge, threatened Litigation which
could affect Purchaser’s ability to consummate the transaction contemplated by
this Agreement.
As
used
in this Section 7.2, the term “knowledge” with respect to Purchaser shall mean
the actual, conscious, not constructive or imputed, knowledge of Xxxxx X.
Xxxxxxx and shall not be construed to refer to the knowledge of any partner,
officer, director, agent, member, manager, employee or representative of
Purchaser, or of any affiliate of Purchaser. The foregoing person has not made
any independent investigation of the matters being represented and warranted,
any inquiry of any other person or persons, nor any search or examination of
any
files, records, books, or correspondence or the like.
7.3 Restatement
at Closing; Survival.
The
representations and warranties made by Seller in Section 7.1 and by Purchaser
in
Section 7.2 are true and correct in all material respects as of the date of
this
Agreement, and shall be true and correct in all material respects and deemed
repeated as of the Closing. Said representations or warranties shall survive
consummation
of the transactions contemplated by this Agreement and shall continue in full
force and effect for a period of six (6) months after the Closing (the
“Survival
Period”),
and
shall be binding upon and inure to the benefit of the parties hereto, their
successors in interest and assigns; provided, however, that neither Seller
nor
Purchaser, as applicable, shall have any liability or other obligation with
respect to any such representation or warranty herein contained unless prior
to
the expiration of the Survival Period the party seeking to assert liability
under any such representation or warranty shall have notified the other party
hereto in writing setting forth specifically the representation or warranty
allegedly breached, a description of the alleged breach in reasonable detail
and
a proposed remedy. All liability or other obligation of either party hereto
under any such representation or warranty shall lapse and be of no further
force
or effect with respect to any matters not contained in a written notice
delivered as contemplated within the Survival Period, or, if such notice is
given within the Survival Period, unless suit on the claim described in such
notice is commenced within nine (9) months following the Closing.
13
7.4 Waiver.
If
either Seller or Purchaser shall proceed to Closing with actual knowledge of
any
matter which is in conflict with any of the representations and warranties
made
in this Agreement by the other party, they shall be deemed to have waived such
representations and warranties to the extent inconsistent with such actual
knowledge.
7.5 Claim
Limitation.
Notwithstanding anything to the contrary contained herein, Purchaser shall
not
assert any claim or claims against Seller for breach of any representation
or
warranty made by Seller in this Agreement, and Seller shall not assert any
claim
or claims against Purchaser for breach of any representation or warranty made
by
Purchaser in this Agreement, as the case may be, unless and until the aggregate
of such party's claim or claims thereunder exceeds Twenty Thousand and 00/100
Dollars ($20,000.00).
7.6 Seller’s
Liability Cap.
The
aggregate liability of Seller for breach of any representation or warranty
made
by Seller in Section 7.1 hereof, or otherwise in this Agreement, shall not
exceed Two Hundred Fifty Thousand and 00/100 Dollars ($250,000.00) (the
“Seller’s
Liability Cap”).
With
respect to all claims against Seller for breach of any representation or
warranty made by Seller, Purchaser shall not have any further right, claim
or
recourse against Seller in excess of the Seller’s Liability Cap, and Purchaser
waives any right or claim against Seller with respect to any breach of any
representation or warranty made by Seller other than a right or claim limited
to
the Seller’s Liability Cap as aforesaid.
8. Merger
of
All Prior Understandings; Condition of Property.
8.1 Merger
of All Prior Understandings.
It is
understood and agreed that all understandings and agreements heretofore had
between Seller and Purchaser with respect to the subject matter of this
Agreement and the transaction contemplated herein, including without limitation
that certain letter of intent dated November 8, 2007 between Seller and
Purchaser, are merged in this Agreement, which alone fully and completely
expresses their agreement, neither party relying upon any statement or
representation, not embodied in this Agreement, made by the other.
14
8.2 Condition
of Property.
Except
as otherwise expressly provided in this Agreement, Purchaser shall accept the
Property at the Closing in its “AS IS”, “WHERE IS” condition with all faults as
of the Closing Date. Purchaser agrees that, except as expressly set forth in
this Agreement, Seller shall not be liable for any latent or patent defects
in
the Property, and shall not be bound in any manner whatsoever by any guarantees,
promises, projections, operating expenses, set-ups or other information
pertaining to the Property made, furnished or claimed to have been made or
furnished by Seller or any other person or entity, including, without limitation
any partner, member, manager, shareholder, employee, agent, broker, attorney
or
other person representing or purporting to represent or act on behalf of Seller,
whether orally or in writing. Purchaser acknowledges that neither Seller nor
any
partner, member, manager, shareholder, employee, agent, broker, attorney or
other person representing or purporting to represent or act on behalf of Seller
has made any oral or written representations or warranties whatsoever to
Purchaser, whether express or implied, except as expressly set forth in this
Agreement, and, in particular, that no such representations and warranties
have
been made with respect to the physical or environmental condition or operation
of the Property, the layout or footage of the Property, the actual or projected
revenue and expenses of the Property, zoning, environmental, and other laws,
regulations and rules applicable to the Property, or the compliance of the
Property therewith, the use or occupancy of the Property or any part thereof
or
any other matter or thing affecting or relating to the Property or the
transactions contemplated hereby, except as specifically set forth in this
Agreement. Purchaser has not relied and is not relying upon any representations
or warranties, other than the representations and warranties expressly set
forth
in this Agreement, or upon any statements made in any informational materials
with respect to the Property provided by Seller or any other person or entity,
including without limitation any partner, member, manager, shareholder,
employee, agent, broker, attorney or other person representing or acting or
purporting to represent or act on behalf of Seller. IN ADDITION TO, AND WITHOUT
LIMITATION OF THE FOREGOING, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT,
SELLER MAKES NO WARRANTY, EXPRESS OR IMPLIED, AS TO THE MERCHANTABILITY, TITLE,
MARKETABILITY, FITNESS, OR SUITABILITY FOR A PARTICULAR PURPOSE OF THE PROPERTY
OR ANY COMPONENT THEREOF, AND, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT,
THE PROPERTY AND EACH COMPONENT THEREOF ARE SOLD IN AN “AS IS”, “WHERE IS”
CONDITION, WITH ALL FAULTS. BY EXECUTING THIS AGREEMENT, EXCEPT AS SET FORTH
IN
THIS AGREEMENT AND AS INCIDENT TO THE SELLER’S OBLIGATION TO OBTAIN THE
APPROVALS, PURCHASER AFFIRMS AND AGREES THAT (A) PURCHASER HAS NOT RELIED ON
SELLER’S SKILL OR JUDGMENT TO SELECT OR FURNISH THE PROPERTY OR ANY COMPONENT
THEREOF FOR ANY PARTICULAR PURPOSE, (B) SELLER MAKES NO WARRANTY THAT THE
PROPERTY OR ANY COMPONENT THEREOF ARE FIT FOR ANY PARTICULAR PURPOSE, AND (C)
THERE ARE NO REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED OR STATUTORY,
WITH
RESPECT TO THE PROPERTY OR ANY COMPONENT THEREOF. PURCHASER HAS BEEN GIVEN
THE
OPPORTUNITY TO INSPECT THE PROPERTY AND EACH COMPONENT THEREOF AND HAS
DETERMINED TO PURCHASE THE PROPERTY AND EACH COMPONENT THEREOF BASED ON SUCH
INSPECTION. PURCHASER FURTHER ACKNOWLEDGES THAT EXCEPT AS EXPRESSLY SET FORTH
IN
THIS AGREEMENT NEITHER SELLER NOR ANY PARTNER, MEMBER, MANAGER, SHAREHOLDER,
EMPLOYEE, AGENT, BROKER, ATTORNEY OR OTHER PERSON REPRESENTING OR PURPORTING
TO
REPRESENT SELLER HAVE MADE OR WILL MAKE ANY ORAL OR WRITTEN REPRESENTATIONS,
WARRANTIES, PROMISES OR GUARANTIES WHATSOEVER TO PURCHASER, WHETHER EXPRESS
OR
IMPLIED, AND, IN PARTICULAR, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT
THAT NO SUCH REPRESENTATIONS, WARRANTIES, PROMISES OR GUARANTIES HAVE BEEN
MADE
OR WILL BE MADE WITH RESPECT TO THE TRUTH, ACCURACY OR COMPLETENESS OF ANY
MATERIALS, DATA OR OTHER INFORMATION, INCLUDING WITHOUT LIMITATION THE CONTENTS
OF SELLER’S BOOKS AND RECORDS, CONTRACTS, AGREEMENTS, ANY PROPERTY CONDITION
REPORTS, ENGINEERING REPORTS, PHYSICAL CONDITION SURVEYS, ENVIRONMENTAL REPORTS,
FEASIBILITY STUDIES, INFORMATIONAL BROCHURES WITH RESPECT TO THE PROPERTY,
RENT
ROLLS OR INCOME AND EXPENSE STATEMENTS, OR ANY OTHER MATERIALS PREPARED BY
THIRD
PARTIES WHICH SELLER OR ITS REPRESENTATIVES MAY HAVE DELIVERED, MADE AVAILABLE
OR FURNISHED TO PURCHASER IN CONNECTION WITH THE PROPERTY AND PURCHASER
ACKNOWLEDGES THAT ANY SUCH MATERIALS, DATA AND OTHER INFORMATION DELIVERED,
MADE
AVAILABLE OR FURNISHED TO PURCHASER ARE DELIVERED, MADE AVAILABLE OR FURNISHED
TO PURCHASER AS A CONVENIENCE AND ACCOMMODATION ONLY AND EXPRESSLY ACKNOWLEDGES
THAT PURCHASER HAS ASSUMED THE RISK OF RELYING UPON ANY SUCH MATERIALS, DATA
AND
OTHER INFORMATION.
15
8.3 Environmental
Matters.
Without
limiting the generality of the provisions of Section 8.2, Purchaser specifically
acknowledges and agrees as follows:
(a) Except
as
expressly set forth in this Agreement, neither Seller nor any other person,
including without limitation any partner, member, manager, shareholder,
employee, agent, broker, attorney or other person representing or acting or
purporting to represent or act on behalf of Seller, has made any representation
or warranty of any kind of nature concerning (a) any environmental condition
existing at the Property, (b) Seller’s or the Property’s compliance with any
law, including environmental law and all associated regulations; and (c) any
environmental offsite condition associated with the Property;
(b) Purchaser
has reviewed a copy of the report entitled “Phase I Environmental Site
Assessment, Sun Microsystems, Inc. Property, 0 Xxxxxxx Xxxxx, Xxxxxxxxxx,
Xxxxxxxxxxxxx” dated June 15, 2007, Prepared by Xxxxxxx Xxxxxx & XxXxxxx,
Inc. For NetView Investments LLC (the “Environmental
Report”),
and
all of the studies, reports and other materials referred to therein (the matters
stated therein being referred to as the “Environmental
Disclosed Matters”);
(c) Except
as
expressly set forth in this Agreement, Purchaser shall take title to the
Property subject to any and all environmental conditions or liabilities thereat
or otherwise associated with the Property existing as of the date of the
Effective Date, whether known or unknown, disclosed or undisclosed, including,
without limitation, the Environmental Disclosed Matters (any of the foregoing
described in this clause (c) being referred to as “Environmental
Conditions”).
If on
or prior to the Closing Date there is any discharge, release, or spillage of
any
Hazardous Materials (as defined below) on, under, in, from, above, or about
the
Real Property, not caused by Purchaser or its agents the cost of which to
remediate in accordance with all applicable laws is at least $100,000 as
reasonably determined by Seller’s environmental consultant, or any governmental
authority determines that the Real Property is in violation of any environmental
laws (each a “Major
Environmental Event”),
either Purchaser or Seller (upon notice to the other party given no later than
the earlier to occur of the Closing Date or five (5) days after Seller notifies
the Purchaser as to the occurrence of any Major Environmental Event) shall
have
the right to terminate this Agreement whereupon the Deposit plus any accrued
interest shall be returned to Purchaser and the parties shall thereafter have
no
further liabilities, rights or obligations pursuant to this Agreement except
those which expressly survive termination of this Agreement. In the event that
a
Major Environmental Event occurs and neither party elects to terminate this
Agreement as provided in the immediately preceding sentence, then Seller shall
give Purchaser a credit against the Purchase Price on the Closing Date in an
amount equal to one hundred fifty percent (150%) of the amount required to
remediate the Major Environmental Event (as reasonably determined by Seller’s
environmental consultant) in accordance with all applicable laws, and Purchaser
shall be obligated to remediate such Major Environmental Event at its sole
cost
and expense and Seller shall have no further liability or obligation with
respect thereto. In the event that there is any discharge, release or spillage
of any Hazardous Materials on, under, in, from, above or about the Real Property
not caused by Purchaser or its agents the cost of which to remediate in
accordance with applicable laws is less than $100,000 (a “Minor
Environmental Event”)
neither party shall have the right to terminate this Agreement and Seller shall
give Purchaser a credit against the Purchase Price on the Closing Date in an
amount equal to one hundred fifty percent (150%) of the amount required to
remediate the Minor Environmental Event (as reasonably determined by Seller’s
environmental consultant) in accordance with all applicable laws, and Purchaser
shall be obligated to remediate such Minor Environmental Event at its sole
cost
and expense and Seller shall have no further liability or obligation with
respect thereto. Notwithstanding anything to the contrary provided in this
Agreement, in no event shall Purchaser have any obligation to remediate any
Hazardous Materials on any property except for the Lot. Seller shall notify
Purchaser of any Major Environmental Event or Minor Environmental Event on
or
before the earlier to occur of (a) three (3) days of Seller’s obtaining
knowledge of any Major Environmental Event or Minor Environmental Event, or
(b)
the Closing Date.
16
(d) Without
limiting any provision in this Agreement, effective as of the Closing Date,
Purchaser, for itself and any of its successors and assigns and their
affiliates, hereby irrevocably and absolutely waives its right to recover from,
and forever releases and discharges, and covenants not to file or otherwise
pursue any legal action (whether based on contract, statutory rights, common
law
or otherwise) against, Seller or any Seller Exculpated Parties (as hereinafter
defined) with respect to any and all suits, actions, proceedings,
investigations, demands, claims, liabilities, obligations, fines, penalties,
liens, judgments, losses. injuries, damages, settlement expenses or costs of
whatever kind or nature, whether direct or indirect, known or unknown,
contingent or otherwise (including any action or proceeding brought or
threatened or ordered by any governmental authority), including, without
limitation, attorneys’ and experts’ fees and expenses, and investigation and
remediation costs that may arise on account of or in any way be connected with
the Property (including any past or present operations thereon) or any portion
thereof including, without limitation, the Environmental Conditions, or any
law
or regulation applicable thereto, or any other matter relating to the use,
presence, discharge or release of Hazardous Materials (as hereinafter defined)
on, under, in, from, above or about the Property; provided, however, that
Purchaser does not waive its rights, if any, to recover from, or release or
discharge or covenant not to bring any action against Seller for (i) any act
that constitutes fraud, or (ii) any breach of the representations or warranties
set forth in this Agreement, subject to the limitations and conditions provided
in this Agreement (including, without limitation, Sections 7.5 and 7.6 hereof).
For purposes of this Agreement, the term “Hazardous
Materials”
means
any substance, chemical, compound, product, solid, gas, liquid, waste,
byproduct, pollutant, contaminant or other material that is hazardous, toxic,
ignitable, corrosive, carcinogenic or otherwise presents a risk of danger to
human, plant or animal life or the environment or that is defined, determined
or
identified as such in any federal, state or local law, rule or regulation
(whether now existing or hereafter enacted or promulgated) and any judicial
or
administrative order or judgment, in each case relating to the protection of
human health, safety, natural resources and/or the environment, including,
but
not limited to, any materials, wastes or substances that are included within
the
definition of (A) “hazardous waste” in the federal Resource Conservation and
Recovery Act; (B) “hazardous substances” in the federal Comprehensive
Environmental Response, Compensation and Liability Act; (C) “pollutants” in the
federal Clean Water Act; (D) “toxic substances” in the federal Toxic Substances
Control Act; (E) “oil or hazardous materials” in the laws or regulations of any
state; (F) radon; (G) asbestos and/or asbestos containing materials; (H) lead
paint; and (I) urea formaldehyde; and
17
(e) At
the
Closing Seller shall assign to Purchaser so much of Seller’s right, title and
interest which Seller may have in that certain Environmental Indemnity Agreement
between Lockheed Xxxxxx Corporation and Sun Microsystems, Inc. dated August
1997
(the “Environmental
Indemnity Agreement”)
as it
relates to the Real Property. Purchaser shall accept and agree to perform all
of
the terms, covenants and conditions of the Environmental Indemnity as it relates
to the Real Property from and after the Closing Date and shall indemnity, defend
and hold harmless Seller from any and all damages, losses, costs, claims,
liabilities, expenses, demands and obligations under or with respect to the
Environmental Indemnity Agreement that arises or occurs from and after the
Closing Date with respect to the Real Property. Seller shall indemnify, defend
and hold harmless Purchaser from any and all damages, losses, costs, claims,
liabilities, expenses, demands and obligations under or with respect to the
Environmental Indemnity Agreement for the time period during which Seller owned
the Real Property until the Closing Date.
8.4 Survival.
The
provisions of this Section 8 shall survive the Closing.
9. Closing
Costs and Expenses.
9.1 Seller’s
Costs and Expenses.
Seller
shall pay, in addition to its apportionments, (i) the cost of its legal counsel;
(ii) one-half (½) of any escrow fees incurred to the Title Company, (iii) the
cost of recording the Final Plan and any title clearing documents; (iv) all
applicable documentary stamps payable in connection with the recording of the
deed for the Real Property; (v) all costs associated with the Final Plan; and
(vi) other costs and expenses which are customarily borne by a seller of
commercial property in Boston, Massachusetts.
9.2 Purchaser’s
Costs and Expenses.
Purchaser shall pay, in addition to its apportionments, (i) the cost of its
legal counsel, accountants, engineers, architects, and advisors; (ii) the
premium for any title commitment obtained by Purchaser and the title insurance
and endorsements issued pursuant thereto; (iii) the cost of recording the deed
as well as any other of Seller’s Deliveries which are to be recorded; (iv) the
costs of municipal lien certificates, (v) one-half (½) of any escrow fees
incurred to the Title Company; and (vii) any other costs and expenses which
are
customarily borne by a purchaser of commercial property in Boston,
Massachusetts.
18
10. Notices.
All
notices, demands, consents, requests, or other communications provided for
or
permitted to be given hereunder by a party hereto must be in writing and shall
be deemed to have been properly given or served (i) upon the personal delivery
thereof, via courier delivery service or otherwise, (ii) upon the date of
delivery by facsimile electronic transmission, as confirmed by electronic
answerback, provided that such facsimile is sent on a Business Day prior to
5:00
p.m. of the recipient’s local time, and a confirmation copy is sent via another
manner set forth in this Section 10, (iii) the next Business Day following
deposit with a nationally recognized overnight air-freight or courier service
such as Federal Express, or (iv) three (3) Business Days following deposit
thereof in the United States mail, certified mail (return receipt requested),
provided such notices shall be addressed or delivered to the parties at their
respective addresses or facsimile telephone numbers set forth below in this
Section 10. Copies of all notices delivered hereunder shall also be delivered
in
the same manner to counsel for the parties hereto.
10.1 If
to
Seller:
NetView
7, 8 and 10 LLC
c/x
Xxxxxxxx Development Company, Inc.
Attn:
Xx.
Xxxxx X. Xxxxxxxx
00
Xxxxx
Xxxxxx
Xxxxxxxxxx,
Xxxxxxxxxxxxx 00000
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
With
an
additional copy to:
Xxxxx
and
Xxxxxx LLP
Attn:
Xxxxx X. Xxxxxxxxx, Esquire
00
Xxxxx
Xxxxx
Xxxxxx,
Xxxxxxxxxxxxx 00000
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
10.2 If
to
Purchaser:
Palomar
Medical Technologies, Inc.
Attn:
Xxxxx X. Xxxxxxx, Executive Chairman
00
Xxxxxxxxx Xxxxxx
Xxxxxxxxxx,
XX 00000
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
19
With
an
additional copy to:
Palomar
Medical Technologies, Inc.
Attn:
Xxxxxxxx Xxxxx, General Counsel
00
Xxxxxxxxx Xxxxxx
Xxxxxxxxxx,
XX 00000
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
With
an
additional copy to:
Xxxxxx
& Xxxxxxxxxx LLP
Attn:
Xxxxxx X. Xxxxxxx, Esquire
7
New
England Executive Park
Xxxxxxxxxx,
Xxxxxxxxxxxxx 00000
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
Any
such
addresses or facsimile telephone numbers for the giving of notices may be
changed by either party by giving written notice as provided above to the other
party. Notice given by counsel to a party shall be effective as notice from
such
party.
11. Governing
Law.
This
Agreement and the documents to be executed and delivered by the parties in
connection with the transactions set forth herein shall be construed,
interpreted, and enforced in accordance with the laws of the Commonwealth of
Massachusetts, without reference to principles of conflicts of laws. This
Agreement is executed as a sealed instrument under Massachusetts
law.
12. No
Recording.
The
parties hereto agree that neither this Agreement nor any memorandum of notice
hereof shall be recorded. A violation of this Section 12 shall constitute a
default hereunder. In the event that either party hereto records this Agreement
or any evidence or memorandum of it, the other party shall have the right on
behalf of the recording party to execute and record a termination of the same,
and each party hereby grants to the other an irrevocable power of attorney
for
the limited purpose thereof.
20
13. Default.
13.1 By
Seller; Purchaser’s Remedies.
If
Seller is unable to deliver title or make conveyance of the Property on the
Closing Date as required hereunder, or if on the Closing Date the Property
does
not conform with the provisions of this Agreement, or in the event of a default
by Seller hereunder, the Purchaser, may at its election as its sole remedy
(a)
upon notice to Seller not more than thirty (30) days after Purchaser becomes
aware of such default, and provided an action is filed by the earlier of (i)
thirty (30) days thereafter, or (ii) thirty (30) days after the scheduled
Closing Date, seek specific performance of this Agreement, in a court of
competent jurisdiction, or (b) terminate this Agreement and receive back the
Deposit plus any accrued interest, and upon such termination the parties shall
thereafter have no further liabilities, rights or obligations pursuant to this
Agreement except those which expressly survive termination of this Agreement,
or
(c) elect to accept such title as Seller can deliver to the Property in its
then
condition and pay the Purchase Price subject to adjustment as contemplated
by
this Agreement. If Purchaser elects to terminate this Agreement pursuant to
this
Section, Seller shall reimburse Purchaser for Purchaser’s out-of-pocket costs
incurred in connection with this Agreement in an amount not to exceed
$300,000.00 (the “Cost
Reimbursement Amount”),
in
which event Seller shall pay the Cost Reimbursement Amount to Purchaser within
seven (7) days of Purchaser’s written request therefor. The parties agree that
Purchaser’s actual damages would be difficult or impossible to determine if
Seller defaults and the ownership of the Property has a unique value to
Purchaser which is not adequately capable of being compensated through the
payment of damages. Therefore, it is specifically acknowledged and agreed that
Purchaser shall be entitled to the remedy of specific performance in connection
with any such default, in the event Purchaser elects to pursue such remedy
as
herein provided.
Notwithstanding
the foregoing, Seller’s failure to Obtain the Approvals and/or the Subdivision
Approvals on or before the Closing Date shall not be considered a default of
Seller hereunder and shall be governed by the provisions of Section 19.4 of
this
Agreement.
13.2 By
Purchaser; Seller’s Remedies.
In the
event of a default by Purchaser under this Agreement at or prior to the Closing
Date, the sole and exclusive remedy of Seller shall be to terminate this
Agreement, in which event Seller may retain the Deposit plus any accrued
interest as liquidated damages (and not as a penalty), and the parties shall
thereafter have no further liabilities, rights or obligations pursuant to this
Agreement except those which expressly survive termination of this Agreement.
Purchaser and Seller have considered carefully the loss to Seller if Purchaser
fails to consummate the purchase and sale contemplated herein, for any reason
other than Seller’s default hereunder or the failure of a condition precedent to
Purchaser’s obligation to close hereunder, occasioned by taking the Property off
the market as a consequence of the negotiation and execution of this Agreement,
the expenses of Seller incurred in connection with the preparation of this
Agreement and Seller’s performance hereunder, and the other damages, general and
special, which Purchaser and Seller realize and recognize Seller will sustain
but which Seller cannot at this time calculate with absolute certainty. Based
on
all those considerations, Purchaser and Seller have agreed that the damage
to
Seller in such event would reasonably be expected to be equal to the sum of
the
Deposit plus such accrued interest. The parties agree that it would be extremely
difficult or impossible to ascertain the actual damages which would be suffered
by Seller if Purchaser fails to perform its obligations under this Agreement,
and that the Deposit plus such interest is the best estimate of the amount
of
damages Seller would suffer.
21
13.3 Notice
of Default.
In the
event of a default by either party as described in Sections 13.1 and 13.2 (the
“defaulting
party”)
then,
notwithstanding anything to the contrary contained herein, the non-defaulting
party shall not exercise its rights upon default until the non-defaulting party
has given notice of the default to the defaulting party and five (5) days have
passed after such notice without the defaulting party having cured the default;
provided, however, that the foregoing shall not in any event apply to a default
in an obligation of either party required to be performed by no later than
at
the Closing.
13.4 Post
Closing Matters.
The
limitation upon remedies provided in Sections 13.1 and 13.2 shall not limit
the
rights or obligations of the parties with respect to any obligations which
expressly survive the termination of this Agreement or the Closing, with respect
to which Seller and Purchaser shall, subject to the terms and conditions of
this
Agreement, including without limitation the provisions of Section 7.5 and
Section 7.6, have such rights and remedies as are available at law or in equity,
except that, neither Seller nor Purchaser shall be entitled to recover from
the
other consequential or special damages.
14. Taking.
14.1 Taking.
If,
prior to the Closing Date any part of the Real Property shall be taken by
exercise of the power of eminent domain or Seller receives notice that such
a
taking shall take place (a “Taking”),
then
Seller shall promptly notify Purchaser of such fact (a “Taking
Notice”).
(a) In
the
case of a Taking other than a Material Taking, as hereinafter defined, this
Agreement shall continue in full force and effect and there shall be no
abatement of the Purchase Price. Seller shall be relieved, however, of its
duty
to convey title to the portion of the Real Property so taken, but Seller shall,
on the Closing Date, assign to Purchaser all rights and claims to any awards
arising therefrom as well as any money theretofore received by Seller on account
thereof, net of any expenses actually incurred by Seller, including attorneys’
fees, in collecting the same.
(b) In
the
case of a Taking which includes more than five percent (5%) of the Lot, reduces
the area of the Building below 180,000 gross square feet, reduces by at least
five percent (5%) the number of parking spaces in the Proposed Project, or
otherwise reduces or materially interferes with the use of the Real Property
for
the Proposed Project (each a “Material
Taking”),
Purchaser shall have the right to terminate this Agreement by delivering notice
of such termination to Seller on or before the earlier of the Closing Date
or
the date twenty (20) days after it receives the Taking Notice. In the event
that
Purchaser fails to exercise such termination right within such twenty (20)
day
(or shorter) period, Purchaser shall be deemed to have waived such termination
right, in which event the provisions of Section 14.1(a) shall apply to such
Taking. In the event that Purchaser delivers a notice of termination as
aforesaid, then this Agreement shall terminate, the Title Company shall refund
the Deposit plus any accrued interest to Purchaser, whereupon neither party
shall have any further liabilities, rights or obligations under this Agreement
except for those which expressly survive the termination of this Agreement.
Notwithstanding the foregoing, in the event that a Taking occurs which prohibits
the Improvements and/or the Proposed Project from being constructed, maintained,
and used on the Lot, the Purchaser shall be deemed to have duly delivered a
notice of termination of this Agreement as required hereunder, in the absence
of
a contrary notice from the Purchaser on or before the earlier of the Closing
Date or the date that is ten (10) days after it receives the Taking
Notice.
22
15. No
Option.
The
submission of this Agreement to Purchaser shall not be construed to vest in
Purchaser an option to purchase or any reservation of the Property. Purchaser
shall have no right or interest hereunder until such time as this Agreement
has
been fully executed and delivered by both Seller and Purchaser.
16. Successors
and Assigns.
The
provisions hereof shall inure to the benefit of, and shall be binding upon,
the
heirs, executors, administrators, successors and assigns of the respective
parties, including without limitation any one or more single purpose entities
formed by Seller with respect to the Property, provided, however, Purchaser
may
not assign this Agreement or any of Purchaser’s rights, obligations or
liabilities hereunder without the prior written consent of Seller; provided,
further, however, Purchaser may (without the consent of Seller) assign this
Agreement to a Permitted Assignee (as hereinafter defined), provided that (i)
Purchaser provides Seller with the name, signature block, address, federal
taxpayer identification number and other information pertaining to the proposed
Permitted Assignee reasonably requested by Seller not later than two (2)
Business Days prior to the Closing Date (and confirms such information at the
Closing, with substantiating documentation to Seller including providing Seller
with a certified copy of the organizational documents of such assignee)
reasonably acceptable to Seller, (ii) such Permitted Assignee assumes all of
the
obligations of Purchaser under this Agreement pursuant to an assignment and
assumption agreement in form reasonably acceptable to Seller, (iii) no
assignment of this Agreement to a Permitted Assignee shall relieve Purchaser
from any of its obligations or liabilities hereunder, and (iv) no such
assignment shall have the effect of delaying the Closing in any respect. As
used
herein, a “Permitted
Assignee”
shall
mean a corporation, partnership or limited liability company which is, directly
or indirectly, an affiliate of Purchaser. A Change of Control (as hereinafter
defined) of Purchaser shall constitute an assignment of this Agreement for
purposes of this Section 16. As used herein, a “Change
of Control”
shall
mean any direct or indirect change in the composition of Purchaser that would
cause Purchaser to be a Prohibited Assignee (as hereinafter defined). Any
assignment of this Agreement in contravention of this Section 16 shall be
considered null, void and of no effect. In the case of any assignment by either
party permitted hereunder, the representation and warranty made by Seller in
Section 7.1(e) hereof or by Purchaser in Section 7.2(a) hereof, as the case
may
be, shall be remade at Closing with respect to Seller or Purchaser named herein
and shall also be made at Closing with respect to the assignee, with appropriate
adjustment to reflect the entity form and state of creation of such assignee.
Notwithstanding anything herein to the contrary in no event shall a Permitted
Assignee include any of the following companies or entities: Cisco, EMC, Hewlett
Packard, Microsoft, Red Hat, Dell, Google, IBM, Network Appliance, VMWare,
Yahoo
(each a “Prohibited
Assignee”)
and
Seller may in its sole discretion refuse to approve any assignment to a
Prohibited Assignee.
23
17. Further
Assurances.
Seller
and Purchaser each agree to execute any and all documents and take such further
actions as may be reasonably necessary to effectuate the purposes of this
Agreement.
18. Non-Liability.
Notwithstanding
anything to the contrary contained in this Agreement, (a) none of the direct
or
indirect trustees, beneficiaries, directors, officers, employees, shareholders,
members, managers, partners or agents of Seller nor any other person,
partnership, limited liability company, corporation or trust, as principal
of
Seller, whether disclosed or undisclosed (collectively, the “Seller
Exculpated Parties”)
shall
have any personal obligation or liability hereunder, and Purchaser shall not
seek to assert any claim or enforce any of its rights hereunder against any
Seller Exculpated Party, and (b) none of the direct or indirect trustees,
beneficiaries, directors, officers, employees, shareholders, members, managers,
partners or agents of Purchaser or any Permitted Assignee, nor any other person,
partnership, limited liability company, corporation or trust, as principal
of
Purchaser or Permitted Assignee, whether disclosed or undisclosed (collectively,
the “Purchaser
Exculpated Parties”)
shall
have any personal obligation or liability hereunder, and Seller shall not seek
to assert any claim or enforce any of its rights hereunder against any Purchaser
Exculpated Party.
19. Proposed
Project
19.1 Division
of Lot 4.
Seller
will subdivide Lot 4 in order to create the boundaries of the Lot in accordance
with the requirements of Massachusetts General Laws, Chapter 41 and the
subdivision regulations of the Town of Burlington (and all other applicable
law), and in accordance with the Approvals for the Proposed Project pursuant
to
the provisions of Sections 19.2 and 19.4 below (collectively, the “Subdivision
Approvals”).
The
draft definitive subdivision plan with respect to Lot 4 and the Lot is attached
hereto as Exhibit
P
(the
“Definitive
Subdivision Plan”)
which
Definitive Subdivision Plan the Seller filed with the Burlington Planning Board
on July 3, 2008. Any modifications to the Site Plan or the Definitive
Subdivision Plan required in connection with the Subdivision Approvals shall
require Purchaser’s consent, such consent not to be unreasonably withheld or
delayed provided such modifications are reasonably consistent with the Site
Plan and
will
not interfere with the development of the Proposed Project. Upon obtaining
the
final endorsement of the Planning Board on the final, definitive subdivision
plan (the “Final
Plan”),
Seller shall submit a copy of the Final Plan to Purchaser, and the Final Plan
shall replace the Site Plan attached
hereto as Exhibit
A,
and the
Real Property shall be conveyed by reference to the Final Plan. Seller shall
record the Final Plan on the Closing Date, and Seller shall be responsible
for
payment of all costs in connection with the Subdivision Approvals and obtaining
the Final Plan.
24
19.2 Proposed
Project.
Seller
and Purchaser shall jointly seek the approvals listed on Exhibit
I,
all of
which shall be vested in Seller and/or Purchaser as set forth on said
Exhibit
I
(and the
Seller’s interest therein shall be freely assignable and assumable by the
Purchaser and/or any Permitted Assignee) (collectively, the “Approvals”),
to
construct on the Lot a no greater than 180,000 gross square feet, three (3)
story, building (the “Building”)
with
no greater than 594 parking spaces (at a ratio of 3.3 spaces per 1,000 square
feet of gross building area) and with all associated infrastructure such as
drainage, landscaping, water, sewer (provided that the Building shall not be
entitled to utilize a sewer flow rate of more than 12,000 gallons per day in
the
aggregate) and utilities for the Lot and the Building (collectively with the
Building, the “Improvements”)
to be
used for the Anticipated Use (as defined below). The Approvals to be Obtained
(as defined below) shall allow for the Purchaser’s initial construction and
occupancy of (a) at least 132,000 gross square feet of the Building, (b) at
least 436 parking spaces on the Lot, and (c) all associated infrastructure
such
as drainage, landscaping, water, sewer and utilities (the “Initial
Phase”),
subject to the Purchaser’s right (at any time and subject to no additional
municipal, state, or federal approvals except for a notice filing to the Town
of
Burlington Planning Board) to expand the Building and parking spaces on the
Lot
so that the Building will contain not more than 180,000 gross square feet and
the Improvements will include a total of not more than 594 parking spaces (and
subject to the sewer flow rate set forth above) (the “Expansion”).
All
such parking spaces shall be subject to the exclusive use of Purchaser and
its
employees, invitees, agents, and representatives. The Initial Phase, the
Expansion, and all associated infrastructure such as drainage, landscaping,
water, sewer and utilities are referred to herein collectively as the
“Proposed
Project.”
The
Proposed Project shall include the construction by Purchaser as part of the
Initial Phase of a parking lot to contain 75 vehicle parking spaces in the
area
shown on the Agreed Design Plans (as hereinafter defined) as “Relocated Parking
Allocation” for use by the owners, tenants and occupants of the Master Property
as set forth in the Park Covenants (the “Off-Site
Parking Obligation”).
Purchaser shall be responsible for the design of the Building and the layout
of
the parking spaces on the Lot and Seller makes no representation or warranty
concerning the number of parking spaces that can be constructed within the
Lot.
Seller shall be responsible for the design and layout of the parking spaces
for
the Off-Site Parking Obligation.
The
Proposed Project shall be developed and constructed as an office, light
manufacturing, and research and development building with accessory clinical
trials and accessory distribution (the “Anticipated
Use”),
in a
first class manner, consistent with a first-class corporate headquarters office
environment and the Proposed Project shall at all times be consistent with
and
complimentary with the existing improvements on the Master Property (as defined
below) (the “Development
Covenant”).
The
Development Covenant is referenced in that certain Notice of Lease, Right of
First Offer to Lease, and Right of First Offer to Purchase dated June 27, 2007
by and between NetView Investments LLC, as Landlord, and Sun Microsystems,
Inc.,
as Tenant, and recorded with the Registry in Book 49683, Page 52. The
construction of the Proposed Project substantially in accordance with the Agreed
Design Plans (as defined below), as the same may be modified in accordance
with
Section 19.3 of this Agreement, shall be deemed compliance with the Development
Covenant. This provision shall survive the Closing.
On
or
before the issuance of a building permit to Purchaser, Seller shall, at its
sole
cost and expense, procure the permits and approvals set forth on Exhibit
O
attached
hereto (the “Seller’s
Permits”).
The
Seller’s Permits shall not be subject to any conditions or requirements which
are not acceptable to Purchaser in its reasonable discretion This provision
shall survive the Closing.
Purchaser
shall be responsible for procuring, at its sole cost and expense, any permits
and approvals with respect to the Proposed Project not set forth on Exhibit
I
or
Exhibit
O
attached
hereto, including, without limitation, (a) any diesel tank storage license
from
the Burlington Fire Department, (b) any earth removal permit from the Burlington
Board of Selectmen, and (c) any license from the Burlington Board of Health
with
respect to any cafeteria to be located within the Building.
25
19.3 Design
Approval.
Purchaser intends to enter into (i) a contract with Xxxxxxxx Xxxxxxx &
Associates, Inc. (the “Project
Architect”),
to
design the Initial Phase, and (ii) a contract with Xxxxxxx Xxxxxx Brustlin,
Inc.
(the “Project
Engineer”)
to
design the infrastructure and site plans for the Initial Phase. Purchaser shall
have the right to terminate the engagement of the Project Architect and the
Project Engineer and engage a different architect to design the Initial Phase
and a different engineer to design the site and infrastructure for the Initial
Phase, subject to Seller’s consent, not to be unreasonably withheld. Purchaser
and Seller hereby approve the design documents attached hereto as Exhibit
J
(the
“Agreed
Design Plans”).
In
the
event that, during the permitting process and prior to Closing, Purchaser
desires to make changes to the Agreed Design Plans, Seller shall either approve
or disapprove of such proposed changes within ten (10) days of Seller’s receipt
of Purchaser’s request therefor, and in the event of any disapproval by Seller,
Seller will provide Purchaser with a summary of the reasons for disapproval,
provided
that
Seller shall have no right to disapprove any of Purchaser’s requested changes to
the Agreed Design Plans unless the same (a) affect the exterior design of the
Building, and (b) are materially inconsistent with the Agreed Design Plans.
If
necessary, Purchaser will cause the Agreed Design Plans to be modified in
accordance with Seller’s reasonable requests in response to Purchaser’s proposed
changes thereto, and will resubmit such revised Agreed Design Plans to Seller
for its approval. Seller’s approval of Purchaser’s requests for such changes to
the Agreed Design Plans shall not be unreasonably withheld or delayed. At the
Closing, Seller shall cause the Property Manager and the Majority Lot Owner
(as
defined in the Park Covenants) to deliver to Purchaser a recordable certificate
of compliance with respect to the final plans for the Proposed Project in
accordance with the Park Covenants (the “Design
Certificate”).
Purchaser
shall be responsible for paying the fees of the Project Architect, the Project
Engineer and the costs of any architectural, engineering, and civil/geotech
incurred for the completion of the Agreed Design Plans in accordance with
written agreements between Purchaser and each of the Project Architect and
the
Project Engineer (collectively, the “Design
Costs”).
Seller shall be responsible for all costs incurred by Seller in connection
with
its review of the design drawings but shall have no responsibility for the
payment of the Design Costs.
19.4 Approval
Period.
Seller
shall file, pursue and obtain from the applicable governmental agencies the
Approvals in accordance with Section 19.2 of this Agreement. On June 4, 2008
Seller filed the application for the Site Plan Special Permit with the
Burlington Planning Board. Seller shall use diligent efforts to file all other
applications for the other Approvals by the deadlines noted on Exhibit I and
shall use diligent efforts to Obtain the Approvals by October 4, 2008 (the
“Approval
Contingency Date”).
Either Purchaser or Seller shall have the right to extend the Approval
Contingency Date for one or more periods, but in no event more than sixty (60)
days from the original Approval Contingency Date, upon written notice to the
other party, which written notice (if given by Seller) shall be accompanied
with
a report of the status of the Approvals. In the event that Seller has not
Obtained the Approvals on or before the Approval Contingency Date, as the same
may have been extended, then Purchaser shall have the right to (a) terminate
this Agreement by sending written notice to the Seller on the Approval
Contingency Date, whereupon the Title Company shall be instructed to return
the
Deposit plus any accrued interest to Purchaser and this Agreement shall
terminate and be null and void, except for those obligations that expressly
survive the termination of this Agreement, (b) elect to waive the requirement
for the Approvals to have been Obtained and proceed to Closing as provided
herein, or (c) elect to extend the Approval Contingency Date for an additional
thirty (30) day period during which Purchaser shall have the right to attempt
to
Obtain the outstanding Approvals, which period shall be extended for up to
an
additional thirty (30) day period if any such Approvals are the subject of
any
appeal. If Purchaser is unable to Obtain the Approvals after extending the
Approval Contingency Date as provided in subsection (c) of the foregoing
sentence, Purchaser shall elect to either terminate this Agreement, or waive
the
Approvals contingency in accordance with the terms of subsection (a) or (b),
respectively, of the foregoing sentence. In addition to the payment of the
Design Costs, Purchaser shall be responsible for the payment of all costs in
connection with Obtaining the Approvals (the “Approval
Costs”).
26
The
Approvals shall be deemed to have been “Obtained”
by
Seller upon the expiration of any and all appeal period(s) after the granting
of
all of the Approvals if no appeal has been filed or if one or more appeals
is
filed, the date on which all such appeals have been dismissed and the Approvals
upheld; provided, that the Approvals shall not be deemed to have been Obtained
if the Approvals are subject to any conditions or requirements which are not
acceptable to Purchaser in its reasonable discretion. Seller shall diligently
challenge and prosecute any appeal of the Approvals at Purchaser’s expense both
before and after the Closing, subject to the consent and approval of Purchaser
in each instance.
19.5 Construction
Management Agreement.
Prior
to Closing, Purchaser and Nordblom Development Company, a Massachusetts
corporation (the “Development
Agent”),
shall
enter into a Construction Management Agreement substantially in the form
attached hereto as Exhibit
K
(the
“Construction
Management Agreement”).
The
Construction Management Agreement shall terminate automatically upon any
termination of this Agreement. The Construction Management Agreement shall
provide that the Development Agent shall oversee and manage the development
process for the Initial Phase, and once the Approvals have been Obtained, shall
oversee the construction of the Initial Phase. The Development Agent shall
be
entitled to a fee in the amount of three and one-half percent (3.5%) of the
total design, permitting and construction costs for the Initial Phase as set
forth on the Final Development Budget, as modified by any Purchaser Change
Orders (the “Total
Project Costs”).
The
preliminary Development Budget is attached to this Agreement as Exhibit
L
(the
“Original
Development Budget”).
Prior
to the Closing, the Seller, Purchaser and the Development Agent shall agree
on
the final Development Budget to be incorporated into the Construction Management
Agreement (the “Final
Development Budget”),
which
Final Development Budget will include all costs and expenses in connection
with
the construction of the Initial Phase. Any additional scope of work added to
the
Initial Phase and the Final Development Budget at the request of Purchaser
or
added to the Final Plans and Specifications at the request of Purchaser shall
be
deemed a “Purchaser
Change Order.”
27
19.6 Construction
Contract/Final Construction Drawings.
On or
before September 15, 2008, the building specifications and complete set of
construction documents shall be finalized by Purchaser, the Development Agent,
the Contractor and the Project Architect (the “Final
Plans and Specifications”).
The
Final Plans and Specifications shall be substantially consistent with the Agreed
Design Plans, as they may be modified pursuant to Section 19.3 above. On or
before the Closing, Purchaser shall enter into a construction contract (the
“Construction
Contract”)
for a
guaranteed maximum price not to exceed $22,000,000 for the construction of
the
Initial Phase (the “Budgeted
GMP”)
with
Erland Construction or another contractor of comparable quality and reputation
reasonably acceptable to Seller (the “Contractor”).
If
Purchaser is unable to enter into the Construction Contract for a guaranteed
maximum price of not more than ten percent (10%) above the Budgeted GMP for
the
construction of the Initial Phase, Purchaser may, at its option, elect to
terminate this Agreement by delivery of written notice of termination to Seller,
and upon such termination the Deposit shall be returned to Purchaser, and this
Agreement shall terminate and be null and void, except for those obligations
that expressly survive the termination of this Agreement. The guaranteed maximum
price specified in the Construction Contract shall be referred to herein as
the
“Contract
GMP.”
Once
Purchaser has commenced the construction of the Initial Phase, Purchaser shall
be obligated to finish the construction of the Initial Phase in accordance
with
the Final Plans and Specifications, time being of the essence, and any delay
or
work stoppage in excess of ninety (90) days, other than for force majeure or
causes not within Purchaser’s reasonable control, shall require the written
approval of Seller. The provisions of this Section 19.6 shall survive the
delivery of the deed.
19.7 Excess
Costs Escrow Agreement.
The sum
of ten percent (10%) of the Purchase Price shall be withheld from the proceeds
due Seller at the Closing and placed in an interest bearing escrow account
(the
“Escrow
Account”)
with
the Title Company pursuant to an Escrow Agreement in the form attached hereto
as
Exhibit
M
(the
“Excess
Costs Escrow Agreement”).
The
Escrow Account shall be used to fund fifty percent (50%) of any Excess Costs
(as
hereinafter defined) of the Initial Phase, with the remaining fifty percent
(50%) to be funded by Purchaser. “Excess
Costs”
shall
mean the amount by which the Net GMP Amount (as defined in the Excess Costs
Escrow Agreement) exceeds the Contract GMP. The funds in the Escrow Account
shall be disbursed as provided for in the Excess Costs Escrow Agreement. The
obligations of Seller to fund Excess Costs shall not exceed the amount in the
Escrow Account.
19.8 Mutual
Cooperation.
Before
submitting any application for the Approvals, Seller shall deliver a copy
thereof to Purchaser for its approval, which approval shall not be unreasonably
withheld, delayed, or conditioned and which shall be deemed to have been given
unless Purchaser shall, within ten (10) days after delivery of such copy to
Purchaser, deliver to Seller written notice that Purchaser disapproves such
application, which notice shall set forth in reasonable detail the grounds
for
such disapproval. Forthwith after Purchaser approves or is deemed to have
approved same Seller agrees to submit the applications for the Approvals to
the
permit granting authority and thereafter diligently to pursue the issuance
of
each such Approval. Purchaser shall be a joint applicant with Seller on all
applications for the Approvals and shall thereafter diligently pursue the
issuance of the Approvals with Seller. Purchaser agrees to cooperate in good
faith with Seller in connection with Seller’s endeavors to Obtain the Approvals.
Without limiting the general application of the foregoing, Purchaser agrees
to
execute such applications and other instruments as may be reasonably required
for Seller to Obtain the Approvals within five (5) days of receipt of request
therefor. Seller shall give Purchaser reasonable advance notice of any hearing
by any permit granting authority with respect to each Approval and Purchaser
shall attend with Seller all hearings and meetings with any permit granting
authority, government entity or community groups. Purchaser shall have the
right
to approve all conditions set forth in the Approvals, which approval shall
not
be unreasonably withheld, conditioned or delayed.
28
If
the
Approvals issued reduce the gross square footage of the Proposed Project or
the
number of parking spaces for the Proposed Project as set forth in Section 19.2
by at least Five percent (5%), Purchaser may elect to terminate this Agreement
by sending notice of termination to Seller prior to the Approval Contingency
Date, whereupon this Agreement shall terminate, the Title Company shall refund
the Deposit plus any accrued interest to Purchaser, and neither party shall
have
any further liabilities, rights or obligations under this Agreement except
for
those which expressly survive the termination of this Agreement. If Purchaser
does not so elect to terminate this Agreement, or if the reduction in gross
square foot footage or the number of parking spaces is less than five percent
(5%), then the parties shall proceed to Closing and the Purchase Price shall
be
reduced as follows: (a) with respect to any decrease in the gross square footage
of the Initial Phase of the Building below 132,000 gross square feet, the amount
of $64.00 multiplied by the difference of 132,000 and the number of gross square
feet allowed under the Approvals with respect to the Building, and (b) with
respect to any decrease in the gross square footage of the Expansion below
48,000 gross square feet the amount of $50.00 multiplied by the difference
of
48,000 and the number of gross square feet allowed under the Approvals with
respect to the Expansion.
Nothing
herein shall obligate Seller (i) to undertake any action or incur any liability
with respect to the Approvals in the event that this Agreement terminates or
is
terminated; or (ii) except to the extent necessary to Obtain the Approvals
and
the Subdivision Approvals undertake any action or incur any liability with
respect to property owned by Seller other than the Lot (the “Seller’s
Remaining Property”)
or any
of the properties owned by NetView 1, 2, 3, 4 and 9 LLC and NetView 5 and 6
LLC
(each a “Seller
Affiliate”
and
the
properties owned by a Seller Affiliate collectively with Seller’s Remaining
Property, the “Master
Property”).
Purchaser acknowledges that Seller may undertake to obtain government approvals
and permits necessary, convenient or appropriate for the development,
construction and operation of the Master Property or any portion thereof and
Purchaser agrees that it shall not directly or indirectly oppose, hinder,
interfere with, or challenge efforts by Seller any Seller Affiliate or any
tenant of Seller or Seller Affiliate in connection therewith provided that
such
approvals and permits do not materially adversely affect the Lot or the Proposed
Project. In addition, Purchaser agrees that it shall not directly or indirectly
oppose, hinder, interfere with, or challenge efforts by Xxxxxxxx Company or
any
tenant, affiliate of successor of Xxxxxxxx Company in connection with the
redevelopment of Northwest Park, which is located adjacent to the Master
Property, provided that such efforts do not materially adversely affect the
Lot
or the Proposed Project. The provisions of this Section 19.8 shall survive
the
Closing or any earlier termination of this Agreement.
19.9 Modifications
to Approvals.
The
Deed shall contain the following restriction: “For a period of fifteen (15)
years after the date of this Quitclaim Deed, Grantee shall not construct on
the
Granted Premises, and shall not seek permits to construct, a building or
buildings in excess of the size of the building(s) permitted to be constructed
on the Granted Premises pursuant to the special permit issued with respect
to
the Granted Premises as further described in the Town of Burlington Certificate
of Decision on Special Permit Application dated ___________, and recorded with
the Middlesex South District Registry of Deeds in Book _________, Page _____.
The foregoing restriction may be amended with the written consent of Grantor
(or
its successors and assigns) and Grantee (or its successors and assigns) as
evidenced by a written agreement signed by Grantor (or its successors and
assigns) and Grantee (or its successors and assigns) and recorded with said
Registry of Deeds.”
29
19.10 Park
Covenants.
Purchaser acknowledges that Seller and the owners of the Master Property shall
enter into a certain reciprocal easement agreement substantially in the form
attached hereto as Exhibit
N,
which
shall establish business park-like covenants and easements for the Proposed
Project and the Master Property, including without limitation shared use of
internal roadways, sidewalks and parking areas, shared maintenance
responsibilities, and cost-sharing mechanisms for shared utility, drainage
and
other services (the “Park
Covenants”).
Seller and each of the Seller Affiliates agree that Purchaser, and its
employees, shall be entitled on the terms set forth herein to the full use
and
enjoyment of all amenities made available generally to other lessees and
occupants of the Master Property, including, without limitation, if applicable,
the right to use the cafeteria(s), and health/fitness center(s) located thereon.
The use of such amenities shall be on terms generally applicable to other users
of such amenities including, without limitation, the payment by Purchaser of
any
costs or fees charged by Seller and the Seller Affiliates for the use of such
amenities on a pro-rata basis with such other users. Seller and the Seller
Affiliates shall have the right to terminate Purchaser’s use of such amenities
at any time in connection with any lease or sale of all or any portion of the
Master Property. Purchaser shall cooperate with Seller and consent to any
revisions of the Park Covenants requested by Seller in connection with the
development of the Master Property provided that such revisions do not
materially adversely affect the Lot or the Proposed Project. The provisions
of
this Section 19.10 shall survive the Closing.
Notwithstanding
any other provision of this Agreement, prior to the Closing, the Seller shall
record with the Registry an amendment to the Park Covenants (executed and
acknowledged by all required parties thereto) providing that the Lot shall
be
exempt from the provisions of Section 2.2 of the Park Covenants.
20. Review
Period
During
the period beginning on the date of this Agreement and ending on the date that
is forty-five (45) days thereafter (the “Review
Period”),
Purchaser at its sole cost and expense shall have the right to review the
environmental and other due diligence matters related to the Property,
including, without limitation, the construction and utility costs related to
the
Initial Phase. During the Review Period Purchaser, at its sole cost and expense,
shall have the right to perform any and all investigations and due diligence
with respect to the environmental condition of the Lot as determined by
Purchaser in its sole discretion (including without limitation a Phase I
Environmental Site Assessment), provided that (i) Purchaser shall obtain
Seller’s consent prior to conducting any soil borings or groundwater drilling in
the Lot, and (ii) Purchaser shall indemnify, defend and hold harmless Seller
with respect to any and all liabilities (including reasonable attorneys’
expenses and fees), causes of action, suits, claims, demands or judgments that
may be imposed upon, incurred by, or asserted against Seller caused by Purchaser
and its agents conducting such environmental investigations, and (iii) Purchaser
shall at its sole cost and expense restore the Lot substantially to its
condition prior to such investigations. Prior
to
any entry onto the Property hereunder, Purchaser shall provide Seller with
a
certificate of insurance from Purchaser and/or each of its consultant(s)
entering upon the Property in the amount of at least One Million and 00/100
Dollars ($1,000,000.00) on a primary and non-contributory basis in order to
secure the indemnification provided for above, and worker’s compensation
coverage. In addition, all such insurance shall waive subrogation against Seller
and Seller shall be named an additional insured with respect to any such
policies of insurance. In
the
event that Purchaser is not reasonably satisfied in its sole discretion with
the
results of such investigations and due diligence review, Purchaser may, at
its
option, upon notice to Seller prior to the expiration of the Review Period,
terminate this Agreement, whereupon the Deposit shall be returned to the
Purchaser, and this Agreement shall terminate and be null and void, except
for
those obligations that expressly survive the termination of this
Agreement.
30
21. Miscellaneous.
21.1 Captions
and Headings.
The
section headings and the arrangement of this Agreement are for the convenience
of the parties hereto and do not in any way affect, limit, amplify or modify
the
terms and provisions hereof.
21.2 Waiver.
Notwithstanding anything to the contrary set forth herein, each of Seller and
Purchaser reserves the right to waive any condition or contingency provided
for
its benefit in this Agreement. No waiver by either party of any failure or
refusal to comply with its obligations under this Agreement shall be deemed
a
waiver of any other or subsequent failure or refusal to so comply.
21.3 Singular,
Plural, Gender.
Wherever herein the singular number is used the same shall include the plural
and the masculine gender shall include the feminine and neuter genders and
vice
versa as the context shall require.
21.4 Counterparts.
This
Agreement may be executed in two or more counterparts, each of which shall
be
deemed an original, and all of which together shall constitute one and the
same
agreement. This Agreement may be executed by facsimile and shall be in full
force and effect by the exchange of signatures by facsimile. If this Agreement
is executed by the exchange of one or more signatures by facsimile, then as
soon
as reasonably practicable thereafter each party shall deliver to the other
four
(4) counterpart signature pages with the original signature of such party.
21.5 Amendments.
Except
as otherwise provided herein, this Agreement may not be changed, modified or
terminated, except by an instrument executed by both parties
hereto.
21.6 Exhibits.
Each of
the exhibits and schedules annexed to this Agreement constitute an integral
part
hereof.
21.7 Time.
When
the last day for the performance of any act permitted or required hereunder
falls on any day which is not a Business Day in the City of Boston,
Massachusetts, such act may be performed on the next Business Day in said city.
Whenever an hour is specified on any day, such hour shall be in local time
in
the City of Boston, Massachusetts, as adjusted for daylight savings time when
in
effect. As used herein, the term “Business
Day”
shall
mean any day other than (i) a Saturday or a Sunday, (ii) a national holiday,
or
(iii) a day on which banks are not required to be open for business within
the
Commonwealth of Massachusetts. Time is of the essence of the provisions of
this
Agreement.
31
21.8 Waiver
of Jury Trial.
PURCHASER AND SELLER EACH HEREBY AGREES NOT TO ELECT A TRIAL BY JURY OF ANY
ISSUE TRIABLE OF RIGHT BY JURY, AND WAIVES ANY RIGHT TO TRIAL BY JURY FULLY
TO
THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST WITH REGARD TO
THIS
AGREEMENT OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION
THEREWITH. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND
VOLUNTARILY BY PURCHASER AND SELLER, AND IS INTENDED TO ENCOMPASS INDIVIDUALLY
EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY JURY WOULD
OTHERWISE ACCRUE. SELLER OR PURCHASER, AS APPLICABLE, IS HEREBY AUTHORIZED
TO
FILE A COPY OF THIS SECTION IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS
WAIVER BY PURCHASER OR SELLER, AS APPLICABLE. THE PROVISIONS OF THIS SECTION
SHALL SURVIVE THE CLOSING OR EARLIER TERMINATION OF THIS AGREEMENT.
21.9
Access.
Seller
hereby agrees that Purchaser shall have reasonable access to the Real Property
from the date of this Agreement up to and including the Closing Date, provided
that (i) Purchaser shall obtain Seller’s consent (not to be unreasonably
withheld or delayed) prior to conducting any activities on the Real Property,
and (ii) Purchaser shall indemnify, defend and hold harmless Seller with respect
to any and all liabilities (including reasonable attorneys’ expenses and fees),
causes of action, suits, claims, demands or judgments that may be imposed upon,
incurred by, or asserted against Seller caused by Purchaser and its agents
in
connection with such access right hereunder, and (iii) Purchaser shall at its
sole cost and expense restore the Real Property substantially to its condition
prior to such investigations. Prior
to
any entry onto the Property hereunder, Purchaser shall provide Seller with
a
certificate of insurance from Purchaser and/or each of its consultant(s)
entering upon the Property in the amount of at least One Million and 00/100
Dollars ($1,000,000.00) on a primary and non-contributory basis in order to
secure the indemnification provided for above, and worker’s compensation
coverage. In addition, all such insurance shall waive subrogation against Seller
and Seller shall be named an additional insured with respect to any such
policies of insurance.
[Signatures
on Following Page]
32
IN
WITNESS WHEREOF, the parties have executed this Agreement the day and year
first
above written.
SELLER:
NETVIEW
7, 8 AND 10 LLC
By:
NetView Investments LLC, its Manager
By:
NetView Holdings LLC, its Manager
By:
Nordblom
Development Company,
Inc.,
its Manager
By:
/s/ Xxxxx X.
Xxxxxxxx
Xxxxx
X. Xxxxxxxx, President
|
|
PURCHASER:
PALOMAR
MEDICAL TECHNOLOGIES, INC.
By:
/s/ Xxxxx X. Xxxxxxx
Its Executive
Chairman
|
33
The
following parties execute this Agreement for the sole purpose of acknowledging
the provisions of Section 19.10 of this Agreement.
NETVIEW
1, 2, 3, 4 AND 9 LLC
By:
NetView Investments LLC, its Manager
By:
NetView Holdings LLC, its Manager
By:
Nordblom
Development Company,
Inc.,
its Manager
By:
/s/ Xxxxx X.
Xxxxxxxx
Xxxxx
X. Xxxxxxxx, President
|
|
NETVIEW
5 AND 6 LLC
By:
NetView Investments LLC, its Manager
By:
NetView Holdings LLC, its Manager
By:
Nordblom
Development Company,
Inc.,
its Manager
By:
/s/ Xxxxx X.
Xxxxxxxx
Xxxxx
X. Xxxxxxxx, President
|
34
The
following party executes this Agreement for the sole purpose of consenting
to,
and
agreeing
to be bound by, the provisions of Section 2.2 of this Agreement.
LAND
AMERICA
By:
/s/ Xxxx X.
Xxxxxx
Xxxx
X. Xxxxxx, duly authorized
|
35
List
of Exhibits and Schedules
Exhibit
A
|
Site
Plan
|
Exhibit
B
|
Intentionally
Deleted
|
Exhibit
C
|
Deed
for Real Property
|
Exhibit
D
|
General
Instrument of Transfer
|
Exhibit
E
|
Assignment
and Assumption Agreement
|
Exhibit
F
|
FIRTPA
Affidavit Form
|
Exhibit
G
|
Seller’s
Closing Certificate
|
Exhibit
H
|
Purchaser’s
Closing Certificate
|
Exhibit
I
|
Schedule
of Approvals
|
Exhibit
J
|
Agreed
Design Plans
|
Exhibit
K
|
Construction
Management Agreement
|
Exhibit
L
|
Original
Development Budget
|
Exhibit
M
|
Excess
Costs Escrow Agreement
|
Exhibit
N
|
Park
Covenants
|
Exhibit
O
|
Schedule
of Seller’s Permits
|
Exhibit
P
|
Definitive
Subdivision Plan
|
36
EXHIBIT
A
CONCEPTUAL
SITE PLAN EXHIBIT
EXHIBIT
B
INTENTIONALLY
DELETED
EXHIBIT
C
[NOTE:
MAY NEED TO REVISE PURSUANT TO APPROVED SUBDIVISION PLAN]
RECORDING
INFORMATION AREA
QUITCLAIM
DEED
00
Xxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx
NetView
7, 8 and 10 LLC, a Delaware limited liability company having its principal
place
of business at 00 Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx 00000 (“Grantor”),
for
and in consideration of Ten Million Six Hundred Eighty Thousand and 00/100
Dollars ($10,680,000.00), hereby GRANTS to Palomar Medical Technologies, Inc.,
a
Delaware corporation, having its principal place of business at 00 Xxxxxxxxx
Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx 00000 (“Grantee”),
with
QUITCLAIM COVENANTS, all that certain tract or parcel of land, located in
Burlington, Middlesex County, Massachusetts, more particularly described on
Exhibit
A
annexed
hereto and incorporated herein by this reference (the “Granted
Premises”).
The
Granted Premises are conveyed subject to and with the benefit of all rights,
easements, rights-of-way, agreements and restrictions of record, insofar as
the
same are in force and applicable.
The
Granted Premises are also conveyed subject to the following restriction for
the
benefit of the remaining land owned by Grantor: For a period of fifteen (15)
years after the date of this Quitclaim Deed, Grantee shall not construct on
the
Granted Premises, and shall not seek permits to construct, a building or
building(s) in excess of the size of the building(s) permitted to be constructed
on the Granted Premises pursuant to the special permit issued with respect
to
the Granted Premises as further described in the Town of Burlington Certificate
of Decision on Special Permit Application dated ________, and recorded with
the
Middlesex South District Registry of Deeds in Book ____, Page ___. The foregoing
restriction may be amended with the written consent of Grantor (or its
successors and assigns) and Grantee (or its successors and assigns) as evidenced
by a written agreement signed by Grantor (or its successors and assigns) and
Grantee (or its successors and assigns) and recorded with said Registry of
Deeds.
Being
a
portion of the property described in the Quitclaim Deed to Grantor dated June
27, 2007, recorded with said Registry of Deeds in Book 49683, Page
259.
IN
WITNESS WHEREOF, the Grantor has executed this Quitclaim Deed under seal as
of
the ____ day of _______, 200_.
NETVIEW
7, 8 AND 10 LLC
By:
NetView Investments LLC, its Manager
By:
NetView Holdings LLC, its Manager
By:
Nordblom
Development Company,
Inc.,
its Manager
By:_________________________
Name:
Title:
|
COMMONWEALTH
OF MASSACHUSETTS
Middlesex,
ss.
On
this
___ day of _________, 200_, before me, the undersigned notary public, personally
appeared ________________, the ________________________, of Nordblom Development
Company, Inc., as Manager of NetView Holdings LLC, in its capacity as Manager
of
NetView Investments LLC, the Manager of NetView 7, 8 and 10 LLC, , proved to
me
through satisfactory evidence of identity, being in this instance [personal
knowledge of identity], and acknowledged to me that s/he signed the foregoing
document voluntarily and for its stated purpose in the aforesaid
capacity.
__________________________
Notary
Public
My
Commission Expires
|
EXHIBIT
A
TO
QUITCLAIM DEED
That
certain parcel of land located in Burlington, County of Middlesex, Commonwealth
of Massachusetts, being [Lot
4A]
as shown
on that certain [Subdivision
Plan]
entitled, “____________________________” prepared by Xxxxxxx Xxxxxx Brustlin,
Inc., Date Issued: ____________, Latest Issue: _______________, recorded with
the Middlesex County (South District) Registry of Deeds herewith.
Said
[Lot
4A]
is
particularly shown on Drawing Number ____, Sheet ___ of ____ (entitled
“___________”) of such plan.
Together
with and subject to the rights contained in that Grant of Easement from Sun
Microsystems, Inc., to the Town of Burlington, for a perpetual easement to
use
Network Drive, as shown on Plan #495 of 1998, as a public way, dated May 5,
1998, recorded with said Deeds in Book 28562, Page 151.
Together
with and subject to the rights contained in that Declaration of Covenants and
Cross Access and Easement Agreement by and among NetView 1, 2, 3, 4 and 9 LLC,
NetView 5 and 6 LLC, NetView 7, 8 and 10 LLC and Bank of America, N.A., dated
July ____, 2008 and recorded with the Middlesex County (South District) Registry
of Deeds in Book ___________, Page ________.
EXHIBIT
D
GENERAL
INSTRUMENT OF TRANSFER
00
Xxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx
This
General Instrument of Transfer (this “Instrument”)
is
made as of the __ day of ________, 200_, by and between NetView 7, 8 and 10
LLC,
a Delaware limited liability company having its principal place of business
at
00 Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx 00000 (“Assignor”),
and
Palomar Medical Technologies, Inc., a Delaware corporation, having its principal
place of business at 00 Xxxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx 00000
(“Assignee”).
In
connection with the conveyance of certain property situated in Burlington,
Middlesex County, Massachusetts, known as and located at 00 Xxxxxxx Xxxxx,
more
particularly described on Schedule I attached hereto and made a part hereof
(the
“Property”),
pursuant to that certain Purchase and Sale Agreement dated August ____, 2008
with respect to the Property by and between Assignor, as Seller, and Assignee,
as Purchaser (the “Purchase
Agreement”)and
in
consideration of Ten Dollars ($10.00) and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, Assignor hereby
sells, assigns, transfers, grants and conveys unto Assignee, all of Assignor’s
right, title and interest in and to the following to the extent the same exist
and apply to the Property and are transferable or assignable (collectively,
the
“Interests”):
1. All
appurtenances and privileges belonging to the Property and the rights, benefits
and privileges of owning and operating the same;
2. All
rights, entitlements and/or approvals to develop the Property which have been
or
may hereafter be granted by governmental bodies having jurisdiction or authority
over the Property, and any certificates evidencing compliance
therewith;
3. All
variances, conditional use permits, special permits, site plan approvals,
subdivision approvals, design approvals, certificates, exceptions, rezonings,
general plan amendments, parcel maps, development agreements, permits, licenses,
applications, any other governmental approvals and consents relating to the
Property, including, without limitation, the Approvals and the Subdivision
Approvals as defined in the Purchase Agreement;
4. All
guarantees, warranties, and indemnities giving rise to any rights or benefits
of
Assignor in respect of the Property and all claims and/or causes of action
against contractors with respect to the Property or any part thereof or any
buildings, structures or improvements thereon;
5. All
bonds, licenses, applications, permits, plans, drawings, specifications,
“as-built” plans and/or surveys, site plans, maps, and any other plans relating
to the construction of the improvements on the Property, including, without
limitation, the Site Plan, the Final Plan, the Agreed Design Plans, and the
Final Plans and Specifications, as defined in the Purchase Agreement;
and
6. All
engineering, soils, ground water, structural and environmental reports and
other
technical descriptions and environmental reports, studies, reports and
maintenance manuals concerning the Property.
Assignee
hereby accepts the foregoing transfer from Assignor of the above-assigned
Interests. Assignor hereby represents and warrants that it has full power,
authority and legal right to sell, assign and transfer the Interests. All of
the
Interests transferred and assigned hereby are transferred and assigned on an
“AS
IS” basis, without any warranty or representation either express or implied
except as set forth above. Assignee shall have no obligation to pay any
consideration to any person(s) who or which created the Interests other than
ongoing permit fees required to maintain any permits or approvals included
in
the Interests.
This
Instrument shall be binding upon and inure to the benefit of the parties hereto
and their respective heirs, successors and assigns and shall be governed by
the
laws of the Commonwealth of Massachusetts.
This
Instrument may be executed in multiple counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the
same
instrument.
IN
WITNESS WHEREOF, the parties have executed this Instrument under seal as of
the
date first written above.
ASSIGNOR:
NETVIEW
7, 8 AND 10 LLC
By:
NetView Investments LLC, its Manager
By:
NetView Holdings LLC, its Manager
By:
Nordblom
Development Company,
Inc.,
its Manager
By:_________________________
Name:
Title:
|
|
ASSIGNEE:
PALOMAR
MEDICAL TECHNOLOGIES, INC.
By:___________________________________
Name:
Title:
|
Schedule
I
Property
Description
EXHIBIT
E
ASSIGNMENT
AND ASSUMPTION AGREEMENT
THIS
ASSIGNMENT AND ASSUMPTION AGREEMENT
(this
“Assignment”)
is
executed by and between NetView 7, 8 and 10 LLC, a Delaware limited liability
company having its principal place of business at 00 Xxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxxxxxxx 00000 (“Assignor”),
and
Palomar Medical Technologies, Inc., a Delaware corporation, having its principal
place of business at 00 Xxxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx 00000
(“Assignee”).
Background
Assignor
has this day conveyed to the Assignee certain property located in Burlington,
Middlesex County, Massachusetts, more particularly described in Exhibit
A
hereto
(the “Property”)
and,
in connection with the conveyance of the Property, Assignor and Assignee intend
that Assignor’s right, title, interests, powers, and privileges in and under all
matters stated herein related to the Property be assigned and transferred to
Assignee.
Agreement
In
consideration of the mutual covenants contained herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
Environmental
Indemnity.
Assignor hereby transfers to Assignee any and all right, title and interest
which Assignor may have in that certain Environmental Indemnity Agreement
between Lockheed Xxxxxx Corporation and Sun Microsystems, Inc. dated August,
1997 which was assigned by Sun Microsystems, Inc. to NetView Investments LLC
(an
affiliate of Assignor) and by NetView Investments LLC to Assignor by Assignment
and Assumption Agreements dated on or about June 27, 2007 (“Environmental
Indemnity”)
as it
relates to the Property, a full and complete copy of which is attached hereto
as
Exhibit
B,
it
being expressly intended and understood that the right, title and interest
which
Assignor has in the Environmental Indemnity as it relates to other real property
owned by Assignor and its affiliates and not part of the Property shall remain
in Assignor, its affiliates and their respective successors and assigns. By
executing this Assignment, Assignee hereby accepts and agrees to perform all
of
the terms, covenants and conditions of the Environmental Indemnity on the part
of Assignor therein required to be performed, from and after the date hereof
with respect to the Property, but not prior thereto. Assignee hereby (a) assumes
all liabilities and obligations of Assignor under the Environmental Indemnity
arising or accruing from and after the date hereof with respect to the Property,
and (b) agrees to indemnify, defend and hold harmless Assignor from any and
all
damages, losses, costs, claims, liabilities, expenses, demands and obligations
under or with respect to the Environmental Indemnity arising or accruing from
and after the date hereof with respect to the Property. Assignor agrees to
indemnify, defend and hold harmless Assignee from any and all damages, losses,
costs, claims, liabilities, expenses, demands and obligations under or with
respect to the Environmental Indemnity for the time period during which Assignor
owned the Property until the date hereof.
Successors
and Assigns.
This
Assignment shall inure to the benefit of, and be binding upon, the successors,
executors, administrators, legal representatives and assigns of the parties
hereto.
Governing
Law.
This
Agreement shall be construed under and enforced in accordance with the laws
of
The Commonwealth of Massachusetts.
No
Representations.
This
Agreement is made without any representation or warranty, express or implied,
except for those representations and warranties, if any, expressly set forth
in
that Purchase and Sale Agreement between Assignor and Assignee dated as of
August ____, 2008 (the “Agreement”),
all
of which are subject to all time, dollar and other limitations on Seller’s
liability set forth in the Agreement.
Executed
as a sealed Massachusetts agreement dated ________________, 200_
ASSIGNOR:
NETVIEW
7, 8 AND 10 LLC
By:
NetView Investments LLC, its Manager
By:
NetView Holdings LLC, its Manager
By:
Nordblom
Development Company,
Inc.,
its Manager
By:_________________________
Name:
Title:
|
|
ASSIGNEE:
PALOMAR
MEDICAL TECHNOLOGIES, INC.
By:___________________________________
Name:
Title:
|
EXHIBIT
F
NON-FOREIGN
CERTIFICATE
00
Xxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx
Section
1445 of the Internal Revenue Code provides that a purchaser of a United States
real estate interest must withhold tax if the seller is a foreign person. To
inform Palomar Medical Technologies, Inc., a Delaware corporation, having its
principal place of business at 00 Xxxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx
00000 (“Purchaser”)
that
withholding of tax is not required upon the disposition of a United States
real
estate interest by NetView 7, 8 and 10 LLC, a Delaware limited liability company
having its principal place of business at 00 Xxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxxxxxxx 00000 (“Seller”),
the
undersigned hereby certifies the following on behalf of Seller:
22. Seller
is
not a foreign person (as that term is defined in the Internal Revenue Code
and
Income Tax Regulations);
23. Seller’s
United States employer identification number is _____________; and
24. Seller’s
office address is _____________________________________________.
Seller
understand that this certification may be disclosed to the Internal Revenue
Service by Purchaser and that any false statement contained herein could be
punished by fine, imprisonment, or both.
Under
penalties of perjury I declare that I have examined this certification and
to
the best of my knowledge and belief it is true, correct, and complete, and
I
further declare that I have authority to sign this document on behalf of
Seller.
Date:
______________, 200_
NETVIEW
7, 8 AND 10 LLC
By:
NetView Investments LLC, its Manager
By:
NetView Holdings LLC, its Manager
By:
Nordblom
Development Company,
Inc.,
its Manager
By:_________________________
Name:
Title:
|
EXHIBIT
G
SELLER’S
CLOSING CERTIFICATE
00
Xxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx
Reference
is made to that certain Purchase and Sale Agreement dated as of August ____,
2008 (the “Sale
Agreement”)
by and
between NetView 7, 8 and 10 LLC, a Delaware limited liability company having
its
principal place of business at 00 Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx 00000
(“Seller”),
and
Palomar Medical Technologies, Inc., a Delaware corporation, having its principal
place of business at 00 Xxxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx 00000
(“Purchaser”).
Capitalized terms used herein without definition which are defined in the Sale
Agreement shall have the meanings ascribed to them therein.
Pursuant
to and subject to the limitations set forth in Sections 7.3, 7.4, 7.5, and
7.6
of the Sale Agreement, Seller hereby certifies to Purchaser that the
representations and warranties of Seller set forth in Section 6 and Section
7.1
of the Sale Agreement are true and correct at and as of the date
hereof
Date:
_____________, 200_
NETVIEW
7, 8 AND 10 LLC
By:
NetView Investments LLC, its Manager
By:
NetView Holdings LLC, its Manager
By:
Nordblom
Development Company,
Inc.,
its Manager
By:_________________________
Name:
Title:
|
EXHIBIT
H
PURCHASER’S
CLOSING CERTIFICATE
00
Xxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx
Reference
is made to that certain Purchase and Sale Agreement dated as of August ___,
2008
(the “Sale
Agreement”)
by and
between NetView 7, 8 and 10 LLC, a Delaware limited liability company having
its
principal place of business at 00 Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx 00000
(“Seller”),
and
Palomar Medical Technologies, Inc., a Delaware corporation, having its principal
place of business at 00 Xxxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx 00000
(“Purchaser”).
Capitalized terms used herein without definition which are defined in the Sale
Agreement shall have the meanings ascribed to them therein.
Pursuant
to and subject to the limitations set forth in Section 7.3, 7.4, and 7.5 of
the
Sale Agreement, Purchaser hereby certifies to Seller that all of the
representations and warranties of Purchaser contained in Section 6 and Section
7.2 of the Sale Agreement are true and correct in all material respects as
of
the date hereof.
PALOMAR
MEDICAL TECHNOLOGIES, INC.
By:___________________________________
Name:
Title:
|
Date:
____________, 200_
EXHIBIT
I
SCHEDULE
OF APPROVALS
(A)
Special
Permit with Site Development and Use Plan Approval by the Town of Burlington
Planning Board, permitting the development of the Proposed Project in two phases
(the Initial Phase and the Expansion), to be vested jointly in Seller and
Purchaser except as otherwise noted below (the “Site Plan Special Permit”),
which includes:
(i) PD
Special Permit under Section 12.1.5 of the Zoning By-Laws of the Town of
Burlington and under Article IV of the Planned Development District Zoning
Provisions (the “PD Provisions”), to be vested jointly in Seller and
Purchaser.
(ii) Special
Permit for “light manufacturing” use under Section 1.5.1 of Exhibit A of the PD
Provisions, allowing the Purchaser to conduct the Anticipated Use on the Lot,
to
be vested solely in Purchaser.
(iii) Special
Permit for “laboratories engaged in research experimental and testing
activities” use under Section 1.5.2 of Exhibit A of the PD Provisions, allowing
the Purchaser to conduct the Anticipated Use on the Lot, to be vested solely
in
Purchaser.
(iv) Special
Permit for “hazardous and toxic materials/chemical use storage, transport,
disposal or discharge” use under Section 1.5.4 of Exhibit A of the PD
Provisions, allowing the Purchaser to conduct the Anticipated Use and store
no
less than 2,000 cubic feet of hydrogen in multiple interior storage tanks and
no
less than 2,000 liters of liquid nitrogen in an exterior storage tank on the
Lot, to be vested solely in Purchaser.
(B) Abbreviated
Notice of Resource Area Delineation from the Town of Burlington Conservation
Commission allowing for the development of the Proposed Project, to be vested
jointly in Seller and Purchaser. Seller shall file such application on or before
September 30, 2008.
(C) Administrative
approval from the Burlington Town Engineer with respect to the sewer allocation
and infrastructure (as necessary) in connection with the Proposed Project,
to be
vested solely in Purchaser. Seller shall apply for such administrative approval
within five (5) days after the issuance of the Site Plan Special
Permit.
(D) Erosion
and Sedimentation Control Permit (under Article 14, Section 6 of the Burlington
General By-Laws) from the Burlington Conservation Commission or the Burlington
Planning Board allowing for the development of the Proposed Project, to be
vested solely in Purchaser. Seller filed the application for the Erosion and
Sedimentation Control Permit on June 27, 2008.
END
OF
SCHEDULE
EXHIBIT
J
AGREED
DESIGN PLANS
The
final
site plans approved by the Planning Board in the Site Plan Special Permit
Decision.
Four
sheets entitled “Design Plans Elevations” attached hereto.
EXHIBIT
K
CONSTRUCTION
MANAGEMENT AGREEMENT
EXHIBIT
L
ORIGINAL
DEVELOPMENT BUDGET
EXHIBIT
M
EXCESS
COSTS ESCROW AGREEMENT
EXHIBIT
N
PARK
COVENANTS
EXHIBIT
O
SCHEDULE
OF SELLER’S PERMITS
(A) Signal
Permit(s)from the Town of Burlington to convert the existing signal located
at
the driveway from Network Drive to the Lot to a fully operational
signal.
END
OF
SCHEDULE
EXHIBIT
P
DEFINITIVE
SUBDIVISION PLAN