EXHIBIT 10.1
PURCHASE AND SALE AGREEMENT
THIS AGREEMENT, made and entered into this 27th day of September,
2002, is between Wakefield Thermal Solutions, Inc., a Delaware corporation,
with an address of 00 Xxxxxx Xxxxxx, Xxxxxx, Xxx Xxxxxxxxx ("Seller"), and 00
Xxxxxx Xxxxxx LLC with a mailing address of [c/o Xxxxxx Xxxxx, Green Realty
Corporation, 0000 Xxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx, XX 00000] ("Buyer").
RECITALS:
A. Seller is the owner of a certain parcel of real property known as 00
Xxxxxx Xxxxxx, Xxxxxx, Xxx Xxxxxxxxx, as further described on Exhibit A (said
real property, together with the building containing approximately 171,235
square feet and other improvements located thereon and appurtenances thereto, is
collectively referred to as the "Premises").
B. Buyer desires to purchase the Premises from Seller upon the terms
and conditions hereinafter set forth.
C. Simultaneously with Closing, Buyer, as landlord, and Seller, as
tenant, are entering into a long term triple net lease (the "Lease") for the
Premises in the form attached hereto as Exhibit B.
THEREFORE, in consideration of the mutual covenants and promises
herein contained, and other good and valuable consideration, the receipt and
sufficiency of which are acknowledged, Seller and Buyer agree as follows:
1. Sale and Purchase. Seller agrees to sell and Buyer agrees to
purchase, subject to the
conditions set forth in this Agreement, the Premises.
2. Purchase Price. The purchase price (the "Purchase Price") for the
Premises shall be $4,750,000, and shall be payable as follows:
(a) $100,000 will be deposited by Buyer in escrow as an xxxxxxx
money deposit (together with interest, if any, earned thereon, the "Deposit")
with the Title Company upon execution hereof; and
(b) The remainder of the Purchase Price will be delivered by
Buyer to the Title Company in escrow at least two days prior to the Closing of
this transaction.
3. Title to Premises. Seller shall convey good and marketable fee
simple title in the Premises to Buyer at the Closing by recordable warranty deed
(the "Deed"), free and clear of all liens, mortgages, and of all tenants (except
the Seller), easements, agreements, and other encumbrances except for: (a) any
utility and other easements not threatening or potentially threatening to
interfere with Buyer's anticipated use of the Premises, (b) liens for taxes and
regular assessments not due and payable or for which bills have not been
tendered, (c) building and zoning laws and ordinances (d) any defects in title
accepted by Buyer pursuant to Section 5 hereof, and (e) the lease between Buyer,
as landlord, and Seller, as tenants (the "Lease"), to be signed simultaneously
with the signing of this Agreement and to commence at the Closing.
4. Evidence of Title. As evidence of Seller's ability to deliver
title in conformity with the provisions hereof, Buyer will obtain, at Seller's
sole cost and expense, within thirty (30) days after the execution of this
Agreement, a commitment for an ALTA owners title insurance policy (the "Title
Commitment") from a Chicago Title Company or any other reputable title company
designated by Buyer (the "Title Company") to insure, in the amount of the
Purchase Price, fee
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simple title to the Premises in Buyer free and clear of all liens and
encumbrances, except those set forth in Section 3 above (the "Permitted
Encumbrances").
5. Objections to Title. In the event a defect which renders title
unmarketable or which otherwise adversely affects Buyer's intended use of the
Property or proposed borrowing, or if any survey exceptions not reasonably
acceptable to Buyer, appears in the Title Commitment, Buyer shall notify Seller
within ten days after receipt of the title report, which Buyer shall order
promptly after the execution of this Agreement. At or prior to the Closing,
Seller shall discharge any lien or cure any defect which can be discharged or
cured by the payment of money, and shall use its best efforts to remove any
defect which cannot be cured at Closing by the payment of money within thirty
(30) days after written notice thereof by Buyer; provided, however, that, if
notwithstanding such efforts, Seller is unable to cure any such defect prior to
the Closing, and if, in such event, Buyer is unwilling to accept title subject
to the defect, Buyer shall notify Seller thereof in writing within ten (10) days
after the Title Company notifies Buyer of its unwillingness or inability to omit
such defect from the Buyer's and Buyer's lender's Title Commitments. Upon
receipt of such notice, subject to the payment of expenses described in Section
9(c), the parties hereto shall be released from any and all liability to each
other arising out of this Agreement, and the Deposit and interest thereon shall
be returned to Buyer.
6. Closing.
(a) The sale of the Premises shall be completed at a date and
time to be mutually agreed upon by the parties hereto, but in any case not later
than September 29, 2002 (the "Closing"), time being of the essence with respect
to Buyer's obligations to consummate the Closing.
(b) Two business days prior to the Closing, Seller shall deliver
the Deed to the
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Title Company in escrow together with an affidavit that Seller is not a "foreign
person(s)" as defined in the Foreign Investment in Real Property Tax Act, and
Buyer shall deliver the remainder of the Purchase Price to the Title Company in
escrow. Buyer and Seller shall also execute and deliver to the Title Company in
escrow prior to the Closing (x) the Lease, and (y) all other customary closing
documents, including documents and affidavits reasonably required by Buyer or
its lender or the Title Company. At the Closing, the Title Company shall close
the escrow by delivering the Purchase Price to Seller, by recording the Deed and
by delivering to each party the other's Closing Documents.
7. Representations and Warranties.
(a) Seller represents and warrants to Buyer as follows:
(i) Seller is the legal and beneficial owner of the Premises
and has full power and authority to make, execute, deliver and perform this
Agreement. This Agreement is the valid and legally binding obligation of Seller
in accordance with its terms. The Seller is incorporated in the State of
Delaware and has a tax ID number of________________.
(ii) There are no special taxes or assessments existing or
pending against the Premises nor, other than the Permitted Encumbrances
described above, are there any recorded covenants, conditions or restrictions
governing the use of the Premises.
(iii) Seller has not employed any broker or finder with
respect to the subject transaction other than Xxxxxxxx Xxxx.
(iv) There are no violations having a material adverse effect
on the Premises.
(v) There is a valid Certificate of Occupancy for the
Premises and Seller's
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present use of the Premises is in conformity with same.
(vi) With respect to environmental matters,
(1) The term "Environmental Laws" means all federal,
state or local laws relating to pollution or protection of human
health or the environment (including, without limitation, ambient
air, surface water, groundwater, land surface or subsurface strata),
including, without limitation, laws relating to emissions,
discharges, releases or threatened releases of chemicals,
pollutants, contaminants, or industrial, radioactive, toxic or
hazardous substances or wastes ("Hazardous Substances") into the
environment, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, recycling, disposal,
transport or handling of Hazardous Substances, as well as all rules
and regulations issued thereunder.
(2) Seller has obtained all permits, licenses and other
authorizations required for its operations on the Premises to be in
material compliance with the Environmental Laws, and have filed all
notifications that are required, with respect to the Premises.
(3) The Seller's use of the Premises is in material
compliance and, to the Seller's knowledge, no third person has
committed any act which has resulted in non-compliance by the
Seller, with all terms and conditions, limitations, obligations,
prohibitions, requirements, restrictions, schedules, standards and
timetables contained in the Environmental Laws and all judicial and
administrative orders, injunctions, judgments, declarations,
directives, notice or demands with respect to compliance with
Environmental Laws. The Seller has not received any written
communication, whether from governmental
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authorities, citizens' groups or otherwise, that alleges that the
Premises is not in such compliance.
(4) There is no civil, criminal or administrative
action, claim, demand, demand letter, hearing, investigation,
notice, notice letter, notice of violation, proceeding or suit
pending or threatened against the Seller with respect to the
Premises.
(5) Except as expressly authorized by an effective
permit or by applicable law, there have been no Releases of any
Hazardous Substances into, onto under or from the Premises by the
Seller in violation of any applicable Environmental law. "Release"
means any release spill, emission, discharge, leaking, pumping,
injection, deposit, disposal, discharge, dispersal, leaching or
migration into the environment (including, without limitation,
ambient air, surface water, groundwater and surface or subsurface
strata) or into or out of any property, including the movement of
Hazardous Substances through or in the air, soil, surface water,
groundwater or property.
(6) The Seller has not conducted, engaged or permitted
others to engage at the Premises in any manufacture, treatment or
disposal of any Hazardous Substance or other substance or material
in violation of any applicable Environmental Law.
(vii) There are no parties in possession of any portion of the
Premises as lessees, tenants at sufferance or trespassers except Seller as
Tenant under written lease to be delivered pursuant to this Agreement.
(viii) The Seller shall not further encumber the Premises or
make any material change in it or its maintenance or allow an encumbrance upon
the title to the Premises, or modify the terms or conditions of any existing
leases, contracts or encumbrances, if any, without the
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written consent of Buyer.
(ix) There are no mechanic's liens or Uniform Commercial Code
liens (other than those in favor of Seller's lenders with respect to inventory,
equipment and other personal property of Seller at the Premises), or unrecorded
liens against the Premises, and Seller shall not allow any such liens to be
attached to the Premises prior to Closing, which will not be satisfied out of
the Closing proceeds. All obligations of Seller arising from the ownership and
operation of the Premises and business operated thereon, including but not
limited to taxes, leasing commissions, salaries, contracts, and similar
agreements have been paid or will be paid prior to Closing. Except for
obligations for which provisions are made herein for proration at Closing and
the indebtedness taken subject to or assumed, there will be no obligations of
Seller with respect to the Premises then due outstanding as of Closing.
(x) There are no pending, threatened, or contemplated
litigation, condemnation, or assessments affecting the Premises. Seller shall
promptly advise Buyer of any litigation, condemnation or assessments affecting
the Premises which is instituted or threatened after the date hereof.
(xi) All permits of any kind required for the operation of
Seller's business in the Premises, including certificate(s) of occupancy, are in
full force and effect, and the Seller's use complies with all governmental
requirements and laws of every kind. Seller has disclosed to Buyer any and all
known conditions of a material nature with respect to the Property which may
affect the health or safety of any tenant or occupant of the Premises. Except as
disclosed in writing by Seller to Buyer contemporaneously with the execution
hereof, the Premises has no known structural defects, construction defects of a
material nature, and none of the improvements have been
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constructed with materials known to be a potential health hazard to occupants of
the Premises.
(xii) After the date of execution hereof until the Closing
Date, Seller shall (x) operate the Premises in the same manner as the Premises
has been operated; and (y) maintain the Premises in the same condition and in
the same manner as existed on the Effective Date, ordinary wear and casualty
loss excepted.
(b) Buyer represents and warrants to Seller as follows:
(i) Buyer has full power and authority to make, execute,
deliver and perform this Agreement. This Agreement is the valid and legally
binding obligation of Buyer in accordance with its terms. The Buyer is a limited
liability company duly formed and validly existing in the State of Nevada and
has a tax ID number of________________.
(ii) This Agreement is the valid and legally binding
obligation of Buyer in accordance with its terms.
(iii) Buyer has not employed, or been introduced to the
transaction by, any broker or finder with respect to the subject transaction
other than Xxxxxxxx Xxxx.
8. Conditions of Closing.
(a) The obligation of Seller to consummate the sale of the
Premises and the Personalty at the Closing is subject to the following
conditions:
(i) Buyer shall have performed in all material respects all
agreements on its part required to be performed under this Agreement and shall
not be in default under any of the provisions of this Agreement;
(ii) Buyer shall have delivered to the Escrow Agent the
balance of the Purchase Price referred to in Section 2(b); and
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(iii) Buyer shall have delivered an executed counterpart of
the Lease to the Title Company.
(b) The obligation of Buyer to consummate the purchase of the
Premises at the Closing is subject to the following conditions:
(i) The statements and representations of Seller contained in
this Agreement shall be true in all material respects at and as of the Closing
as though such statements and representations had been made at and as of the
Closing, and Seller shall have performed in all material respects all agreements
on its part required to be perform under any of the provisions of this
Agreement;
(ii) Seller shall have delivered a duly executed copy of the
Deed to the Title Company and other Seller's Closing Documents (which in
addition to the Deed shall include the Lease executed by Seller, the Certificate
of Occupancy for the Premises, evidence of insurance required to be maintained
by tenants under the Lease, and any permits or licenses affecting the Premises)
to the Title Company;
(iii) Buyer shall have obtained a commitment for an ALTA
owners title insurance policy insuring fee simple title to the Premises in the
amount of the Purchase Price free and clear of all liens and encumbrances except
the Permitted Encumbrances (the "Title Policy"); and
(iv) There shall have occurred no material adverse change in
the condition of the Premises or the Seller's financial condition as a whole,
nor shall there have been any casualty, condemnation or other material change in
the Seller or the Premises.
(c) If the parties fail to consummate this transaction because of
non-performance or material breach by Buyer, the Title Company shall deliver the
Deposit to Seller as liquidated
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damages for loss of opportunity of sale of the Premises. If the parties fail to
consummate the transaction due to any other reason, the Title Company shall
return the Deposit to Buyer. Following the return of the Deposit to Seller or
Buyer, as the case maybe, this Agreement shall be terminated and neither party
shall have any claim against the other except that if the transaction fails to
close as a result of Seller's inability to deliver marketable title or as a
result of Seller's breach of the Agreement, Seller shall be obligated to
reimburse Buyer for its reasonable out of pocket fees and expenses (up to a
maximum of $100,000) incurred in investigating the Premises and negotiating this
Agreement and the Lease, including, without limitation, any fees paid to Buyer's
proposed lender.
9. Possession. Seller shall not deliver possession of the Premises,
but shall retain possession of the Premises as tenant of the Premises pursuant
to the parties' lease on the Closing Date. Buyer and Seller acknowledge that the
quality of and the title to the Premises shall be no better than that
transferred from Seller to Buyer at Closing, it being understood that this is a
sale-leaseback transaction.
10. Prorations, Charges, Taxes and Other Costs.
(a) All real property taxes and special and general assessments
shall not be prorated, but shall remain the responsibility of the Seller as
owner of the Premises before the Closing and as tenant of the Premises after the
Closing.
(b) Seller shall pay the following charges and expenses at the
Closing:
(i) the real property transfer tax for the Premises,
notwithstanding the local custom that such tax is shared equally by Buyer and
Seller.
(ii) the cost of recording of the Deed; and
(iii) the cost of securing the Title Commitment and Title
Policy.
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11. Survival of Terms. All statements, representations and
agreements made by Seller or Buyer, respectively, pursuant to this Agreement
shall survive the Closing.
12. Waiver of Conditions. The parties may, by written agreement:
(a) extend the time for performance of any of the obligations or
other acts of the parties contemplated herein;
(b) waive any inaccuracies in the statements contained in this
Agreement; and
(c) waive compliance with or modify any of the covenants
contained in this Agreement and waive or modify performance of any of the
obligations of either of the parties hereto.
13. Indemnification.
(a) Environmental Liabilities. Seller hereby agrees to indemnify,
defend and hold Buyer and its officers, directors and employees harmless from
and against any liability or obligation ("Environmental Liabilities") relating
to any environmental condition caused by the shipment, presence, discharge or
release on or prior to the Closing Date or during the Term of the Lease of any
Hazardous Substances from or at the Premises (an "Environmental Condition"), in
accordance with the Lease.
14. Brokerage Commission. Other than Xxxxxxxx Xxxx, to whom Seller
agrees to pay a commission pursuant to a separate agreement, the parties agree
that no agent or broker brought about this transaction and will be entitled to a
commission. If any claim on behalf of any broker or agent is made or upheld,
then the party against or through whom such claim is made shall defend,
indemnify and hold the other harmless against any damages, costs or expenses in
any way attributable to such claim, including, without limitation, reasonable
attorney's fees.
15. Entire Agreement. This Agreement constitutes the sole agreement
of the parties with
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regard to the subject matter hereof and supersedes any prior understanding or
arrangements, whether written or oral, between the parties regarding such
subject matter.
16. Assignment. This Agreement shall not be assigned by Seller or
Buyer without the express written consent of the other party hereto except that
Buyer may assign its rights hereunder to an affiliate.
17. Notices. All notices, requests, consents and other
communications hereunder shall be in writing and may be delivered by hand or
sent postage prepaid, by certified United States mail, to the following
addresses:
To Buyer: Pelham Properties LLC
c/o Xxxxxx Xxxxx
Green Realty Corporation
0000 Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
With a copy to: Xxxxxxx X. Xxxx
000 Xxxxxxxxx Xxxxx
Xxxx 000
Xxxxxxxxx, XX 00000
Xxxxxx X. Xxxxxxx, Esq.
Statman Xxxxxx Xxxxxx & Xxxxxx, LLC
2900 Chemed Center
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Phone: 000-000-0000
Fax: 000-000-0000
Email: xxxxxxxx@xxxxxxxxx.xxx
To Seller: Wakefield Thermal Solutions, Inc.
00 Xxxxxx Xxxxxx
Xxxxxx, Xxx Xxxxxxxxx 00000
Fax No. 000-000-0000
attn: Xxxxx Xxxxxxxxxxx
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With copies to: Xxxxxx X. Xxxxxx
Xxxxxxx Xxxxxx Xxxxx & Xxxxxx LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax No. 000-000-0000
or to any other address designated by the parties hereto in the manner
prescribed herein. Any such notice shall be sent via facsimile and shall be
deemed given one business day after being sent, as evidenced by confirmatory
facsimile receipt.
18. Interpretation. This Agreement shall be governed by and
construed in accordance with the laws of the State of New Hampshire.
19. Confidentiality. The parties agree that, in the absence of prior
written consent of the other party, the terms of this Agreement and any of the
documents delivered pursuant to this Agreement, shall be confidential and,
unless required by law, shall not be delivered, discussed, or otherwise shared
with any person other than proposed lenders for Buyer, the parties, their
attorneys, accountants, or other professionals or consultants.
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IN WITNESS WHEREOF, Seller and Buyer have executed this Agreement as
of the day and year first above written.
/s/ 33 Bridge Street LLC, Buyer
-----------------------------
Witness
By: /s/
-----------------------
Name:
Title:
Duly Authorized
Wakefield Thermal Solutions,
/s/ Inc., Seller
----------------------------
Witness
By: /s/
-----------------------
Name:
Title:
Duly Authorized
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EXHIBIT A
[Description of the Premises]
EXHIBIT B
[Form of Lease]
