Exhibit 10(c)
PURCHASE AND SALE AGREEMENT
THIS AGREEMENT, made as of this 1st day of March, 2000, is by and
between DEAD RIVER COMPANY, a Maine corporation with an address at 00
Xxxxxxxx Xxxxx, Xxxxx Xxxxxxxx, Xxxxx 00000 ("Seller") and WESTERBEKE
CORPORATION, a Delaware corporation, with an address at Xxxx Xxxxxxxxxx
Xxxx, Xxxx, Xxxxxxxxxxxxx 00000, ("Purchaser").
Section 1. Sale of the Premises
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1.1 On the terms and conditions contained in this Agreement, Seller
agrees to sell and Purchaser agrees to purchase that certain tract or
parcel of land located at 000 Xxxx Xxxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxxx,
more particularly described on Exhibit A attached hereto and made a part
hereof, together with the buildings and improvements thereon and together
with all appurtenant rights of way, easements and covenants (said land,
building and appurtenances hereinafter sometimes collectively referred to
as the "Premises").
1.2 All of Seller's right, title and interest in and to any
fixtures and items of intangible or tangible personal property attached to
the improvements on the Premises and owned by Seller are included in the
sale and shall be conveyed "as is."
Section 2. Purchase Price.
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2.1 The purchase price for the Premises (the "Purchase Price")
shall be FOUR MILLION THREE HUNDRED FIFTY THOUSAND DOLLARS ($4,350,000.00),
and shall be payable as follows:
(a) One Hundred Thousand Dollars ($100,000.00) shall be paid
to LandAmerica Title Insurance Company, Xxx Xxxxxxxxxx Xxxx,
Xxxxxxxxx Xxxxx, Xxxxxx, XX 00000 (the "Title Company") on or before
the date that is three business days after the Effective Date of this
Agreement; an additional Two Hundred Thousand Dollars ($200,000.00)
shall be paid to the Title Company on or before the date that is
three business days after the expiration of the Due Diligence Period,
as defined in Section 4.2 below, unless this Agreement is sooner
terminated by Purchaser pursuant to the provisions hereof. Such
amounts (totaling Three Hundred Thousand Dollars ($300,000.00) shall
be held and released by the Title Company in accordance with the
provisions of this Agreement and the escrow provisions attached as
Exhibit B. Such payments shall be non-refundable, except as expressly
set forth herein. Such payments are collectively referred to herein
as the "Deposit".
(b) The balance of the Purchase Price, subject to adjustment
as provided herein, shall be deposited into escrow by Purchaser with
the Title Company no later than 11:00 a.m. on the date that the
closing of title pursuant to Section 7 takes place (the "Closing
Date") by wire transfer of good federal funds.
2.2 The Deposit shall be placed in an interest-bearing escrow
account. All interest accruing on the Deposit shall be credited against the
Purchase Price payable at the closing of title pursuant to Section 7 (the
"Closing"). If the Closing does not take place, the interest accrued on the
Deposit shall be paid to the party entitled to receive the Deposit pursuant
to the terms of this Agreement. The Title Company shall serve as custodian
of all documents to be delivered into escrow pursuant to this Agreement and
to handle the recordation of all documents to be admitted to record.
Section 3. Adjustments and Apportionments
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3.1 The following are to be apportioned or adjusted as of the date
of Closing (the "Closing Date"):
(a) Taxes, including special or betterment assessments payable
in installments, on the basis of the tax year for which assessed and
within which the Closing Date occurs. To the extent not paid at the
Closing, Purchaser shall be responsible for, and hereby covenants and
agrees to pay as and when due, all real estate taxes due and payable
for the tax year in which the Closing occurs, subject to receiving
appropriate credit for prorating taxes at the Closing, as provided
herein. If the Closing shall occur before a tax rate and assessment
for the Premises is established for the tax year in which the Closing
occurs, the apportionment of taxes shall be made upon the basis of
the then known assessment and/or rate, with the unknown factor to be
adjusted for that item based upon the immediately preceding tax year,
except that at such time as the tax rate and applicable assessed
valuation are determined, the parties shall make a further
apportionment, if and to the extent so required, and at the election
of either party.
(b) Water meter and sewer charges in accordance with the
amounts fixed with respect thereto in an official reading made as of
the Closing Date, except that if such reading is not obtained for
such date, then the unfixed water meter, sewer charges, for the
period since the last xxxx therefor shall be apportioned on the basis
of that prior xxxx (or otherwise estimated by the parties if such
xxxx is more than six months old) with the apportionment to be
readjusted when the actual xxxx for the period encompassing the
Closing Date is received. If water and sewer is metered and such
meter is read as of the Closing Date, then Seller shall be
responsible for any such charges arising prior to the Closing Date
and Purchaser shall be responsible for any such charges arising on
and after the Closing Date
(c) Electric, gas and steam charges, and any deposits made in
connection therewith, unless a utility reading is made as of the
Closing Date, in which case, Seller shall be responsible for any such
charges arising prior to the Closing Date and Purchaser shall be
responsible for any such charges arising on and after the Closing
Date.
(d) All transfer taxes shall be paid by Seller.
(e) Any escrow fees charged by the Title Company for acting as
the escrow agent hereunder shall be shared equally by the parties.
3.2 Expenses of the parties shall be paid as follows:
(a) Purchaser shall pay all expenses incurred by Purchaser in
connection with the sale contemplated hereby, including, but not
limited to the fees and expenses of Purchaser's counsel.
(b) Except as set forth in Section 4.2, any fees charged for
title work or for the issuance of any title insurance commitments or
policies shall be paid by Purchaser.
(c) Seller shall pay all expenses incurred by Seller in
connection with the sale contemplated hereby, including, but not
limited to the fees and expenses of Seller's counsel.
3.3 The terms and provisions of this Section 3 shall survive the
Closing Date.
Section 4. Title
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4.1. It is a condition to Purchaser's obligations hereunder that on
the Closing Date, title to the Premises conveyed to Purchaser shall be
good, clear, record and marketable title, subject only to the following
(all of which are referred to herein as "Permitted Exceptions": (a) real
estate and ad valorem taxes not due and payable by the Closing Date (b)
zoning and land use matters; and (c) the standard printed exceptions (other
than the parties in possession and mechanics' lien exception) set forth in
the current ALTA owners title insurance policy form; and (d) any "Defects
of Title" waived or deemed to be waived by Purchaser pursuant to Section
4.2 below.
4.2. On or before March 20, 2000 (the period between the date of
this Agreement and March 20, 2000 being referred to herein as the "Due
Diligence Period"), Purchaser shall have the right to notify Seller in
writing of any matter that existed as of the date of this Agreement that
would make title to the Premises conveyed to Purchaser other than good,
clear, record and marketable, other than the items referenced in
subsections (a), (b) or (c) of Section 4.1 (any of which is referred to
herein as a "Defect of Title"). Purchaser shall be deemed to have waived
any objection to any Defect of Title of record that existed as of the date
of this Agreement if Purchaser fails to notify Seller of such record Defect
of Title on or before the end of the Due Diligence Period and any such
record Defect of Title shall be deemed to be a Permitted Exception.
Purchaser shall notify Seller in writing on or prior to the Closing of any
Defect of Title of record that did not exist as of the date of this
Agreement, but which arises prior to Closing. Any such notice from
Purchaser identifying any such Defects of Title is referred herein as the
"Title Objection Notice". Seller shall use reasonable good faith efforts
after receipt of a Title Objection Notice to remedy or cure any such Defect
of Title; provided, however, that Seller shall not be obligated to commence
litigation or expend any funds in pursuing such remedy or cure; provided
that Seller shall be obligated to remove any consensual liens securing the
payment of money. Seller shall have the right to delay the Closing for up
to 45 days to permit such remedy or cure (such period as provided herein to
Seller to cure any such Defect of Title is referred to herein as the "Title
Cure Period"). If Seller remedies or cures such Defect of Title, Seller
shall notify Purchaser of such remedy or cure and Seller shall have the
right to set the Closing Date by giving Purchaser written notice thereof;
provided that such Closing Date shall be no sooner than ten (10) business
days after such notice. If the Defects of Title set forth in the Title
Objection Notice are not corrected or remedied within the Title Cure
Period, then Purchaser shall elect, by written notice to Seller within five
(5) business days after the end of the Title Cure Period either (i) to
accept title to the Premises subject to the uncured Defects of Title
without reduction of the Purchase Price (other than Seller's obligation to
pay off any consensual liens securing the payment of money) and without any
right to damages and without any other liability on the part of Seller, or
(ii) to terminate this Agreement, whereupon all obligations of the parties
hereunder shall cease and neither party shall have any claim against the
other by reason of this Agreement, except with respect to any provision
hereof that expressly survives the termination of this Agreement. If Seller
does not remedy or cure such Defect of Title within the Title Cure Period,
and if Purchaser elects to proceed with the Closing, the Closing Date shall
be the tenth business day after the end of the Title Cure Period.
4.3 If, on the Closing Date, there are any liens or encumbrances
securing the payment of a fixed liquidated amount of money, that Seller is
obligated to cause to be paid or discharged in order to convey the title to
the Premises as is herein provided to be conveyed, Seller may elect to use
any portion of the Purchase Price to satisfy the same, provided Seller
shall authorize the Title Company to retain a sufficient portion of the
Purchase Price to ensure the payment in full of such liens and encumbrances
and the obtaining and the recording of such satisfactions. The existence of
any such liens or encumbrances shall not be deemed objections to title if
Seller shall comply with the foregoing and the Title Company is willing to
insure the Premises without exception for such lien or encumbrance.
Section 5. Delivery of Seller's Documents
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5.1 Within three (3) business days after the Effective Date, Seller
shall deliver to Purchaser, to the extent Seller has not already done so,
copies of all title policies, plans, surveys and engineering and
environmental reports pertaining to the Premises, to the extent the same
are in the possession or control of Seller. To the extent any such
documents are known by Seller to be in the possession of third parties,
Seller shall make reasonable efforts to obtain them.
5.2 Seller shall not and does not represent or warrant the accuracy
or completeness of any of such policies, plans, surveys or reports. Any
such documentation shall be delivered to Purchaser as an accommodation only
and without recourse to Seller.
5.3 Purchaser agrees that any and all information delivered by
Seller or its agents and representatives with respect to the Premises shall
be held by Purchaser in confidence and not released or shared with anyone
except for such employees, lenders and professional advisors as reasonably
necessary to allow Purchaser to evaluate the Premises. If for any reason
this transaction does not close, any such information and any copies that
have been made by Purchaser shall be promptly returned to Seller. The
provisions of this Section 5.3 shall survive the termination of this
Agreement.
Section 6. Due Diligence.
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6.1 At any time prior to the end of the Due Diligence Period,
during normal business hours and after reasonable notice to Seller or its
designated agents, Purchaser, or its engineers, architects, building
consultants, environmental investigators, or other representatives, at
Purchaser's sole cost and expense, may inspect and test the Premises and
Seller shall reasonably cooperate by allowing Purchaser's representatives
reasonable access thereto. Purchaser's right of inspection shall include
entry upon the Premises with its agents and their equipment for the purpose
of making such environmental tests as Purchaser deems appropriate,
including without limitation soil borings, provided that Purchaser shall be
responsible for the prompt restoration of the Premises to its condition
prior to making such tests, which obligation shall survive the termination
of this Agreement. Purchaser shall comply with all laws, rules and
regulations of any governmental authority and obtain all licenses and
permits required in connection with such activities. Purchaser agrees to
indemnify and hold Seller harmless from and against any property damage or
personal injury or claim or lien against the Premises resulting from any
such access or inspection by Purchaser or its representatives. Such
indemnification shall survive the Closing or earlier termination of this
Agreement. Purchaser shall also have the right during such Due Diligence
Period to examine and review environmental conditions of the Premises,
zoning, governmental entitlements, governmental approvals and any
restrictions, agreements, obligations and liabilities affecting the
Premises.
6.2 At any time during the Due Diligence Period, Purchaser shall
have the right to terminate this Agreement if Purchaser determines for any
reason, in Purchaser's sole discretion, that it is not satisfied with
respect to any matter for which it conducts its due diligence, by giving
written notice to Seller on or before the end of such Due Diligence Period.
If Purchaser terminates this Agreement pursuant to this Section 6.2, it
shall provide Seller with copies of the written results of all such
inspections, if any. If Purchaser timely gives notice of termination under
this Section, all obligations of the parties hereunder shall cease and
neither party shall have any claim against the other by reason of this
Agreement, except with respect to any provision hereof that expressly
survives the termination of this Agreement. Upon restoration of the
Premises as provided in Section 6.1, the Deposit shall be returned to
Purchaser. If Purchaser fails to give such written notice of termination on
or before the end of such Due Diligence Period, Purchaser shall be deemed
to have waived its right to terminate this Agreement pursuant to this
Section.
6.3 If Purchaser terminates this Agreement in accordance with
Section 6.2 above, Purchaser shall return to Seller all documents provided
to Purchaser from Seller, and any copies thereof made by Purchaser and
shall provide Seller with copies of all reports, surveys, plans, studies
and analysis prepared by or for Purchaser with respect to the Premises.
Purchaser agrees that any and all information obtained by it or its agents
and representatives with respect to the Premises, including without
limitation all reports, surveys, plans, studies and analysis prepared by or
for Purchaser with respect to the Premises, shall be held by Purchaser in
confidence and not released or shared with anyone other than Seller, except
for such employees, lenders and professional advisors as reasonably
necessary to allow Purchaser to evaluate the Premises. The provisions of
this Section 6.3 shall survive the termination of this Agreement. If
Purchaser waives its right to terminate as provided above, Purchaser shall
be deemed to have accepted the Premises in an "as is" condition, without
any representations or warranties, except as specifically provided herein,
and without abatement or reduction of the Purchase Price.
Section 7. Closing and Escrow.
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7.1 Upon execution of this Agreement, the parties shall deposit an
executed counterpart of this Agreement with the Title Company and this
instrument shall serve as the instructions to the Title Company as the
escrow holder for consummation of the purchase and sale contemplated
hereby. Seller shall promptly notify the Title Company and Purchaser in
writing as to the Effective Date and the date that the Due Diligence Period
ends, which dates shall be controlling unless Purchaser objects in writing
within three business days of receipt of such notice or unless the parties
otherwise agree. Seller and Purchaser agree to execute such additional and
supplementary escrow instructions as may be appropriate to enable the
escrow holder to comply with the terms of this Agreement; provided,
however, that in the event of any conflict between the provisions of this
Agreement and any supplementary escrow instructions, the terms of this
Agreement shall control.
7.2 The consummation of the transactions contemplated hereby (the
"Closing") shall be held and delivery of all items to be made at the
Closing under the terms of this Agreement shall be made at the office of
Purchaser's counsel or if requested by Purchaser, at the office of
Purchaser's lender, on April 18, 2000, or such later date as provided in
Section 4.2; provided, however, that Seller shall have the right, by
delivery to Purchaser of written notice to Seller at least five (5) days
prior to the scheduled Closing Date, to extend the Closing Date for a
period of up to thirty (30) days if Seller determines that such extension
is necessary in order to allow Seller to consummate a tax deferred exchange
(as described in Section 16.5 below). In the event of any such extension,
the "Closing Date" as used herein shall mean for all purposes hereunder the
Closing Date, as so extended.
7.3 At least one business day prior to the Closing Date, Seller
shall deliver the following into escrow with the Title Company (all in form
reasonably acceptable to the Title Company and Purchaser's counsel):
(a) A duly executed and acknowledged quitclaim deed with
covenant (herein referred to as the "Deed") to the Premises in
recordable form naming Purchaser as grantee therein, subject only to
Permitted Exceptions.
(b) A duly executed xxxx of sale ("Xxxx of Sale") transferring
all of Seller's right, title and interest in and to the fixtures and
personal property described in Section 1.2.
(c) A currently dated affidavit, duly executed, certifying
that Seller is not a foreign person within the meaning of the
Internal Revenue Code and its regulations.
(d) Such customary affidavits, duly executed, as shall be
reasonably required by the Title Insurance Company for the purpose of
issuing an owner's title insurance policy without exception for
parties in possession or mechanics and materialmens liens claiming
by, through or under any contract, agreement or understanding with
Seller or any entity affiliated with Seller.
(e) An Affidavit updating the representations and warranties
of Seller set forth in this Agreement through such Closing Date,
which certificate shall state that there has been no material change
in said representations and warranties, or if so, what changes have
taken place.
(f) A certificate from the Maine Secretary of State dated no
more than thirty (30) days prior to the Closing, confirming that
Seller is duly formed and in good standing under the laws of such
state.
(g) Such resolutions, authorizations, bylaws or other
corporate and/or documents relating to Seller as shall be reasonably
requested to evidence Seller's authority to enter into and consummate
the transactions contemplated by this Agreement.
(h) a duly executed Closing Statement setting forth the
Purchase Price and the various adjustments and prorations set forth
herein, identical to the Closing Statement signed by Purchaser
pursuant to Section 7.4.
(i) a duly executed 1099-S Designation Form.
(j) Such other documents as are reasonably necessary to
consummate this Agreement.
Purchaser may waive compliance on Seller's part under any of the foregoing
items by an instrument in writing.
7.4 Purchaser shall deliver the following into escrow with the
Title Company, at least one business day prior to the Closing Date, unless
otherwise specified:
(a) The balance of the Purchase Price as required by Section
2.1(b), which will be wired to the Title Company no later than 11:00
a.m. on the Closing Date.
(b) A duly executed Affidavit updating the representations and
warranties of Purchaser set forth in this Agreement through such
Closing Date, which certificate shall state that there has been no
material change in said representations and warranties, or if so,
what changes have taken place.
(c) A certificate from the Delaware Secretary of State dated
no more than thirty (30) days prior to the Closing, confirming that
Purchaser is duly formed and in good standing under the laws of such
state.
(d) Such resolutions, authorizations, bylaws or other
corporate and/or documents relating to Purchaser as shall be
reasonably requested to evidence the authority of Purchaser to enter
into and consummate the transactions contemplated by this Agreement.
(e) a duly executed Closing Statement setting forth the
Purchase Price and the various adjustments and prorations set forth
herein, identical to the Closing Statement signed by Seller pursuant
to Section 7.3.
(f) Such other documents as are reasonably necessary to
consummate this Agreement.
Seller may waive compliance on Purchaser's part under any of the foregoing
items by an instrument in writing.
7.5 Upon receipt of all the funds and documents described in
Sections 7.3 and 7.4, above, the Title Company shall, in accordance with a
set of escrow instructions reasonably agreed upon by Seller and Purchaser,
(a) record the Deed and deliver the documents delivered into escrow by
Seller to Purchaser, and (b) disburse the Purchase Price, as adjusted, in
accordance with the closing statement in accordance with wiring
instructions provided by Seller (provided that if Seller assigns this
Agreement to a qualified intermediary in accordance with the provisions of
Section 16.5, funds due Seller on account of the Purchase Price shall
instead be delivered to such qualified intermediary), and deliver the
documents from escrow to the party entitled to receive the same.
Section 8. Representations and Warranties
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8.1 Seller hereby represents and warrants to Purchaser, and
acknowledges that Purchaser is relying on each of the following statements
in entering into this Agreement, as follows:
(a) Seller is a corporation duly formed, validly existing and
in good standing under the laws of the State of Maine and has full
power and authority to enter into this Agreement and to carry out the
transactions contemplated hereby, and the persons executing this
Agreement on behalf of Seller are duly authorized to execute, on
behalf of Seller, this Agreement, the Deed, Xxxx of Sale, assignments
and other instruments or documents reasonably necessary to effect the
transactions contemplated by this Agreement.
(b) This Agreement and all documents executed and delivered by
Seller are or at the time of Closing will be duly authorized,
executed, and delivered by Seller and will constitute the legal,
valid, and binding obligations of Seller, enforceable in accordance
with their terms. Such documents do not violate any provisions of any
agreement, instrument or judicial order to which Seller is a party or
by which Seller or the Premises is bound.
(c) There are no attachments, executions, assignments for the
benefit of creditors, receiverships, conservatorships or voluntary or
involuntary proceedings in bankruptcy or pursuant to any other debtor
relief laws filed by Seller or pending against Seller or Seller's
interest in the Premises.
(d) Seller has no knowledge of any litigation or enforcement
or regulatory action or proceeding against or relating to the
Premises, other than as set forth in Schedule 8.1(d).
(e) Seller has no actual knowledge of any taking, condemnation
or special assessment, actual or proposed, with respect to any part
of the Premises. For purposes of this subsection (e), actual
knowledge shall mean known in fact by either Xxxxx Xxxx, Vice
President of Seller or by Xxxxxxx X. Xxxxxxxx, Senior Vice President
of Seller.
(f) Seller has no actual knowledge of any zoning violations or
defaults under any private covenants or agreements with respect to
any part of the Premises. For purposes of this subsection (f), actual
knowledge shall mean known in fact by either Xxxxx Xxxx, Vice
President of Seller or by Xxxxxxx X. Xxxxxxxx, Senior Vice President
of Seller.
(g) Seller is not a party to any service contracts relating to
the Premises. Attached as Schedule 8.1(g) is a list of certain
service contracts to which Learningsmith, Inc. is a party. Seller can
give no assurances that such service contracts are in full force and
effect or that Schedule 8.1(g) is a complete list of all contracts
affecting the Premises or the servicing of equipment thereon or
therein.
8.2 Purchaser hereby represents, warrants and covenants to Seller,
and acknowledges that Seller is relying on each of the following statements
in entering into this Agreement, as follows:
(a) Purchaser is a corporation duly formed, validly existing
and in good standing under the laws of the State of Delaware and has
full power and authority to enter into this Agreement and to carry
out the transactions contemplated hereby, and the persons executing
this Agreement on behalf of Purchaser are duly authorized to execute,
on behalf of Purchaser this Agreement, the assignments and other
instruments or documents reasonably necessary to effect the
transactions contemplated by this Agreement.
(b) This Agreement and all documents executed and delivered by
Purchaser are or at the time of Closing will be duly authorized,
executed, and delivered by Purchaser and will constitute the legal,
valid, and binding obligations of Purchaser, enforceable in
accordance with their terms. Such documents do not violate any
provisions of any agreement, instrument or judicial order to which
Purchaser is a party or by which Purchaser is bound.
8.3 If either party discovers prior to or at the Closing that any
representation or warranty of the other party was materially untrue or
incorrect when made, the discovering party shall, as its sole remedy, to
either waive any such misrepresentations remedies and proceed with the
Closing or to terminate this Agreement. The foregoing notwithstanding, if
it is determined that any representation or warranty of a party was
materially untrue or incorrect when made, the party making such
representation shall take reasonable steps to correct such representation
or warranty or to otherwise make such representation or warranty true.
8.4 Except as otherwise herein provided, the representations and
warranties contained in this Section and elsewhere in this Agreement, refer
to the date of execution of this Agreement, or with respect to any date-
down certificate delivered by the parties pursuant to Sections 7.3 or 7.4,
the date of such certificates. Seller will notify Purchaser, promptly after
acquiring knowledge thereof, of any change in facts which arise prior to
the conclusion of the Closing which would make any such representation or
warranty untrue if such state of facts had existed on the date of execution
of this Agreement. Seller shall not be in default under this Section or be
deemed to have breached any representation or warranty hereunder unless
such representation or warranty were incorrect or untrue in a material
respect when made or when restated pursuant to the date-down certificates
referenced in Sections 7.3 and 7.4 hereof.
8.5 The representations and warranties set forth in Sections 8.1
and 8.2 shall survive Closing and for 90 days thereafter. Anything to the
contrary herein notwithstanding, neither party shall have any liability for
any claim under this Section 8 unless notice of breach is provided to the
other party on or before the date that is 90 days after the Closing Date.
Section 9. Covenants of Seller.
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9.1 Between the date hereof and the Closing Date, Seller shall not
sell, transfer or convey or mortgage the Premises, or any part thereof,
which would adversely affect Seller's ability to perform under this
Agreement, without the written consent of the Purchaser.
9.2 Seller shall not, without the prior written consent of
Purchaser, enter into any contract with respect to the Premises that will
survive the Closing or will otherwise affect the use, operation, enjoyment
or development of the Premises after the Closing, except with respect to
any agreement or instrument necessary to effect the termination of the
lease agreement with Learningsmith, Inc., as described in Section 10.1(b)
below.
9.3 Seller shall notify Purchaser, promptly after acquiring
knowledge thereof, of any event or circumstances that would make any
representation or warranty of Seller to Purchaser under this Agreement to
be materially untrue promptly after learning of the same.
9.4 Seller shall maintain the Premises in the same condition,
reasonable wear and tear excepted; provided, however, that so long as the
Lease Agreement with Learningsmith, Inc. shall remain in effect, Seller
shall only be obligated to maintain to the extent required of the landlord
under said Lease Agreement.
9.5 Seller shall keep, or cause to be kept, fire and casualty
insurance covering the Premises, in an amount of not less than the Purchase
Price
Section 10. Condition to Party's Obligations.
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10.1 This Agreement, including without limitation, the obligation to
sell or buy the Premises, are conditioned upon the following:
(a) Seller obtaining the approval of its Board of Directors on
or before February 18, 2000; and
(b) The current Lease Agreement between Seller and
Learningsmith, Inc. dated April 17, 1997, being rejected by
Learningsmith, Inc., or the deadline for assuming such Lease
Agreement has expired without such Lease Agreement being assumed, in
connection with Learningsmith, Inc.'s bankruptcy proceeding described
in Schedule 8.1(d), no later than April 10,2000
10.2 If the contingencies set forth in Section 10.1 above are not
satisfied within the dates set forth therein, or such later date as the
parties shall agree, either Seller or Purchaser shall have the right to
terminate this Agreement by giving written notice to the other party no
later than five days after the respective date set forth above, or such
later date as the parties shall agree. Seller shall promptly notify
Purchaser as to the satisfaction of the contingencies set forth in Section
10.1 above. If this Agreement is terminated as provided above, the Deposit
shall be returned to Purchaser and all obligations of the parties hereunder
shall cease and neither party shall have any right against the other by
reason of this Agreement, except with respect to any provision hereof that
expressly survives the termination of this Agreement.
Section 11. Conditions to Buyer's Obligations.
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11.1 Purchaser's obligations hereunder, including the obligation to
purchase and pay for the Premises, are subject to the satisfaction of the
following conditions, any of which may be waived by Purchaser, but only in
a writing signed by Purchaser:
(a) The representations and warranties made by Seller in this
Agreement being true and correct in all material respects on and as
of the Closing Date with the same force and effect as though such
representations and warranties had been made as of the Closing Date;
(b) Seller having performed in all material respects all
covenants and obligations in all material respects required by this
Agreement to be performed by Seller on or prior to the Closing Date;
(c) Purchaser receiving, at Closing, an ALTA Owner's Extended
Coverage Policy of Title Insurance insuring good, clear, record,
marketable and fee simple title to the Premises subject only to the
Permitted Exceptions without exception for mechanic's liens;
(d) Seller delivering possession of the Premises free and
clear of all tenants, including Learningsmith, Inc.; and
(e) between the expiration of the Due Diligence Period and the
Closing Date, there shall have occurred no material adverse change in
the environmental conditions of the Premises or to the physical
condition of the Premises, reasonable wear and tear excepted;
provided, however, that the parties acknowledge and agree that
certain adverse changes to the physical condition of the Premises
will be governed by Section 12 below and with respect to those
changes, Section 12 will determine whether or not they are grounds
for termination of this Agreement.
11.2 If any of the conditions set forth in Section 11.1 above are
not satisfied, Purchaser, by written notice delivered to Seller on or
before the Closing may elect to (a) waive such condition and proceed with
the Closing, (b) terminate this Agreement and have the Deposit returned to
it.
11.3 The parties acknowledge that in addition to the matters set
forth in Section 11.1, under certain circumstances, Defect of Title that
are not Permitted Exceptions and which are timely objected to as provided
in Section 4 above, may become conditions to Purchaser's obligations
hereunder, subject to and in accordance with said Section 4.
Section 12. Casualty and Condemnation.
--------------------------
12.1 If, prior to the Closing Date, all or a "Material Portion of
the Premises" (as such term is defined below) is taken by public authority,
then Seller shall promptly notify Purchaser and Purchaser shall have the
option, exercisable by notice given to Seller within thirty (30) days after
notice of such taking, but in any event prior to the Closing, either to
proceed with the Closing "as is," without a reduction of the Purchase
Price, and otherwise pursuant to the terms hereof, or to terminate this
Agreement, in which event the Deposit shall be returned to Purchaser.
12.2 If, prior to the Closing Date, all or a Material Portion of the
Premises is damaged or destroyed by fire or other casualty, other than by
the fault or negligence of Purchaser, or Purchaser's employees, agents,
invitees or anyone claiming right to possession under or through Purchaser,
then Seller shall promptly notify Purchaser and Seller shall have, at its
option, a period of not more than 120 days after receipt of such notice
within which to repair any such destruction or damage, subject to
reasonable extension due to delays caused by weather, labor strikes,
unavailability of materials or other causes beyond the control of Seller
(such period being referred to herein as the "Restoration Period"). If
Seller elects to repair any such damage or destruction, the Closing shall
be extended to the date that is five (5) business days after the expiration
of such Restoration Period; provided, however, that if such destruction or
damage is repaired before the end of such Restoration Period, Seller shall
have the right to close earlier by giving Purchaser written notice setting
a Closing Date not sooner than five (5) business days after such notice. If
such destruction or damage is not substantially corrected or remedied
within such Restoration Period, or if Seller elects not to repair such
destruction or damage, then Purchaser may elect, by written notice to
Seller on or before the earlier of (i) the Closing Date, as the same may be
extended by Seller hereunder or (ii) five days after receipt of notice from
Seller electing not to repair such destruction or damage, to terminate this
Agreement, in which event the Deposit shall be returned to Purchaser and
neither party shall have any further obligations to the other hereunder,
except with respect to any provision hereof that expressly survives the
termination of this Agreement. Anything to the contrary herein
notwithstanding, Purchaser shall have no right to terminate this Agreement
if (a) such damage was due to the fault or negligence of Purchaser, or
Purchaser's employees, agents, invitees or anyone claiming right to
possession under or through Purchaser or (b) such damage is substantially
restored prior to receipt by Seller of Purchaser's notice to terminate. If
Purchaser does not timely elect to terminate this Agreement as provided
above, or is not entitled to, Purchaser shall be deemed to have waived any
right to terminate this Agreement as a result of such destruction or damage
and Purchaser shall accept title to the Premises subject to such
destruction or damage but without reduction of the purchase price and
without any right to damages and without any other liability on the part of
Seller, subject to the provisions of Section 12.3 below.
12.3 If this Agreement is not terminated as provided above, then
Seller on the Closing Date shall assign to Purchaser (without recourse) the
right to recover insurance proceeds (together with the amount of any
deductible which shall be paid to Purchaser by Seller) or condemnation
awards, if any, payable by virtue of such casualty or taking; provided,
however that such assignment shall reserve to Seller the right to recover
from such proceeds or award any expenses incurred in obtaining such
proceeds or award and reimbursement for any funds of Seller expended in
restoring the Premises prior to the Closing Date.
12.4 If, prior to the Closing Date, any portion of the Premises is
damaged or destroyed by fire or other casualty (and such damage or
destruction has not been completely restored by Seller), or is taken by
public authority, and such portion is not a Material Portion of the
Premises, then both Seller and Purchaser shall proceed with the Closing and
the Premises and the personal property will be conveyed "as is," without an
abatement of the Purchase Price and pursuant to the terms hereof, but the
actual amount of insurance proceeds or condemnation award, as the case may
be, which are collected by the Seller shall be paid over to Purchaser,
minus any expenses incurred in obtaining such proceeds or award and minus
any proceeds or award used by Seller to restore the Premises. If
uncollected prior to the Closing Date, the right to receive such proceeds
or award, as the case may be, shall be assigned to Purchaser (without
recourse), such assignment reserving to Seller the right to recover from
such proceeds or award any expenses incurred in obtaining such proceeds or
award and reimbursement for any funds of Seller expended in restoring the
Premises prior to the Closing Date. If Seller has completely restored the
Premises, Seller shall be entitled to the entire insurance proceeds.
12.5 For the purposes of this Section, "Material Portion of the
Premises" is defined as damage to or a taking of the Premises with respect
to which (i) 15% or more of the Premises are damaged or taken by the
condemning authority, or (ii) access to the Premises is permanently lost as
a result thereof.
12.6 The parties shall promptly notify each other in writing after
acquiring knowledge thereof, of any taking, destruction or damage to the
Premises to which this Section applies. The provisions of this Section
shall survive the Closing hereunder.
Section 13. Default and Remedies.
---------------------
13.1 If at or prior to Closing, Purchaser shall default in the
performance of Purchaser's obligations under this Agreement, including
without limitation the obligation to pay the Purchase Price for Premises in
accordance with the provisions of Section 2.1 hereof, Seller shall be
entitled to receive the Deposit and Purchaser hereby authorizes the Title
Company to pay such Deposit to Seller in such event. Seller shall receive
the Deposit in consideration of Seller's covenants and agreements herein
and as liquidated damages for Purchaser's default. Such liquidated damages
shall be Seller's sole remedy and thereafter neither party shall have any
rights or liabilities against or to the other, except as to any provision
that expressly survives Closing or the termination of this Agreement. The
parties acknowledge if Purchaser defaults, it is impossible to compute
exactly the damages that would accrue to Seller. Taking these facts into
account, the parties have agreed that the amount of the Deposit is a
reasonable estimate by them of the amount of such damages and fair
consideration for Seller's covenants and agreements set forth herein.
13.2 If at or prior to Closing, Seller shall default in the
performance of Seller's obligations under this Agreement, Purchaser, as it
sole remedy, may either (a) terminate this Agreement for such default, have
the Deposit returned to it and recover from Seller the Purchaser's actual
out of pocket expenses incurred in connection with its due diligence of the
Premises after the date of full execution of this Agreement and prior to
the date Purchaser receives notice of such default, all not to exceed the
amount of the Deposit or (b) seek specific performance of this Agreement.
Purchaser shall take reasonable steps to mitigate any such damages. The
prevailing party in any action for damages shall be entitled to recover
reasonable attorneys' fees from the other party.
Section 14. Notices
-------
14.1 All notices required to be given under this Agreement shall be
deemed given upon the earlier of actual receipt or two days after (i) being
mailed by certified mail, return receipt requested, (ii) delivery to a
nationally recognized overnight delivery service, or (iii) electronic
facsimile transfer addressed as follows:
(a) If intended for Purchaser, at
Westerbeke Corporation
Xxxx Xxxxxxxxxx Xxxx
Xxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxxxxx
Fax Number: 508/000-0000
With a copy to:
Xxxxxxx, Procter & Xxxx LLP
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx, Esq.
Fax Number: 617/000-0000
(b) If intended for Seller, at
Dead River Company
c/o Dead River Properties
00 Xxxxxxxx Xxxxx
Xxxxx Xxxxxxxx, Xxxxx 00000
Attention: Xxxxx Xxxx
Fax Number: 207/000-0000
with a copy to:
Xxxxxx Xxxxxx
Xxx Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxx 00000
Attention Xxxxxx X. Xxxxxx, Esq.
Fax Number, 207/000-0000.
14.2 Anything contained in this Section to the contrary
notwithstanding, all notices pursuant to the Agreement from Seller to
Purchaser, or from Purchaser to Seller, will be effective if executed by
and sent by their respective attorneys (including facsimile transfer during
normal business hours of the recipient). Purchaser and Seller, and their
respective counsel, all hereby agree that if notice is given hereunder by
counsel, such counsel may communicate directly in writing with all
principals, as required to comply with the foregoing notice provisions.
Section 15. Survival and Waiver.
--------------------
15.1 The acceptance by the Purchaser of the Deed on the Closing Date
shall be deemed full performance and discharge of each and every agreement
and obligation on the part of Seller hereunder to be performed, and any and
all agreements, representations and warranties of Seller contained in this
Agreement shall not survive the Closing Date, except to the extent
expressly provided in this Agreement. The Premises is being sold and will
be conveyed "as is" without any representation or warranties as to
habitability, merchantability, fitness, condition or otherwise, and at the
Closing, Seller shall be released from all liability pertaining to the
Premises, except as expressly set forth herein. Neither party is relying
upon any statements or representations not embodied in this Agreement.
15.2 It is understood and agreed that (i) all contemporaneous or
prior representations, statements, understandings and agreements, oral or
written, between the parties are merged in this Agreement, which alone
fully and completely expresses the agreement of the parties, and (ii) that
this Agreement is entered into after full investigation, neither party
relying on any statement or representation made by the other which is not
embodied in this Agreement.
15.3 The provisions of this Section shall survive the Closing Date.
Section 16. Miscellaneous Provisions.
-------------------------
16.1 This Agreement may be executed in any number of counterparts,
each of which when executed and delivered shall be of the same binding
effect as an original.
16.2 If any one or more of the provisions of this Agreement shall be
held invalid, illegal or unenforceable in any respect, such provision shall
not affect any other provision hereof, and this Agreement shall be
construed as if such provision had never been contained herein.
16.3 In the event either party commences a lawsuit or other
proceeding to enforce its rights hereunder after a breach by the other
party, the prevailing party shall be entitled to reasonable attorney's fees
and expenses. The provisions of this Section shall survive the Closing
Date.
16.4 This Agreement, and all the covenants, terms and provisions
contained herein, shall be binding upon and inure to the benefit of the
parties hereto and to their respective successors and permitted assigns,
subject to the restriction set forth in the next sentence. Purchaser shall
have no right to assign its interest in this Agreement provided, however,
that Purchaser may assign this Agreement without Seller's consent to an
"Affiliate". Any attempted assignment by Purchaser in violation of this
Section shall be void and shall, at the option of Seller, be treated as a
default hereunder. For the purposes of this paragraph, the term "Affiliate"
means an entity that controls, is controlled by or is under common control
with the Buyer and the term "control" means the ownership of at least a
majority of the economic interest and having voting control.
16.5 Purchaser agrees that Seller may assign this Agreement with
respect to any or all of the Premises to an escrow agent, trustee,
qualified intermediary or similar party for the purpose of accomplishing a
like-kind exchange within the meaning of Section 1031 of the Internal
Revenue Code, and further agrees to reasonably cooperate with the Seller to
allow Seller to accomplish such like-kind exchange, provided that Purchaser
shall not be obligated to incur any expenses or liability as a result
thereof.
16.6 TIME IS OF THE ESSENCE HEREOF.
16.7 Neither Seller nor Purchaser have employed or engaged any
broker or agent in connection with this transaction or have incurred any
other obligation, contingent or otherwise, for a broker's or finder's fee
with respect to the matters provided for in this Agreement, except for
Insignia/ESG, Inc. of Boston, whose fees shall be paid by Seller. Each
party hereto agrees to hold the other party harmless from and against any
and all costs, expenses, claims, losses or damages, including reasonable
attorneys fees, resulting from a violation of the representations,
warranties and covenants set forth in this Section and this agreement shall
survive the Closing hereunder, or if the Closing does not occur, the
termination of this Agreement.
16.8 Neither party shall record this Agreement and breach of this
covenant shall, at the option of the non-breaching party, be treated as a
default hereunder.
16.9 This Agreement is and shall constitute a contract under and is
to be construed in accordance with the internal laws of the State wherein
the Premises are located.
16.10 This Agreement may not be changed or terminated orally.
16.11 The captions to sections hereof are not part of this Agreement
and shall not be deemed to affect the meaning or construction of any of its
provisions.
16.12 Purchaser agrees that any suit for the enforcement of this
Agreement may be brought in the courts of the Commonwealth of Massachusetts
or any federal court sitting therein and consents to the nonexclusive
jurisdiction of such court.
16.13 Unless otherwise specified, in computing any period of time
described herein, the day of the act or event after which the designated
period of time begins to run is not to be included and the last day of the
period so computed is to be included, unless such last day is a Saturday,
Sunday or legal holiday for national banks in the location where the
Premises are located, in which event the period shall run until the end of
the next day which is neither a Saturday, Sunday, or legal holiday. The
last day of any period of time described herein shall be deemed to end at
6:00 p.m. Boston, Massachusetts time.
16.14 The "Effective Date" for purposes of this Agreement shall be
the date that the last of the parties hereto executes this Agreement, as
specified below.
IN WITNESS WHEREOF, this Agreement has been duly executed by the
parties hereto as a sealed instrument as of the day and year first above
written.
SELLER:
DEAD RIVER COMPANY, a Maine
corporation
By /s/ X. Xxxxx Lyne
-----------------
X. Xxxxx Lyne
Its: Vice President
Date: Xxxxx 0, 0000
XXXXXXXXX:
WESTERBEKE CORPORATION, a Delaware
corporation
By /s/ Xxxx X. Xxxxxxxxxx, Xx.
---------------------------
Xxxx X. Xxxxxxxxxx, Xx.
Its: CEO & President
Date: March 1, 2000
SCHEDULE 8.1(d)
DESCRIPTION OF LITIGATION
Learningsmith, Inc.'s has a Chapter 11 bankruptcy case pending before Judge
Xxxxx Xxxxxx. Xxxxxx Xxxxxx at Xxxxxxx & Xxxx represents Learningsmith.
Xxxxxx Xxxxxx represents Dead River Properties.
Learningsmith filed a voluntary Chapter 11 petition on December 10, 1999.
Since filing for Chapter 11 in December, Learningsmith has been liquidating
its assets and winding up its affairs as a debtor in possession under Sections
1107 and 1108 of the Bankruptcy Code. With the exception of only a few
leases, including its lease with Dead River Properties for its Taunton
warehouse and distribution center, and a small number of assets,
Learningsmith has assigned or rejected all of its leasehold interests and
completed liquidation of its inventory and other assets.
On March 15, 2000 at 10:45 a.m. Judge Kenner will hear a motion by
Learningsmith to approve the sale of the remaining assets of Learningsmith
housed at the Taunton warehouse. The deadline for objections to
Learningsmith's sale motion is March 3. So far, we have not been served
with a copy of any objections to Learningsmith's sale motion.
Learningsmith's expectation is that its sale motion will be approved on the
15th and that shortly after that date, the purchaser of the assets will
remove them from the warehouse, enabling Learningsmith to reject its lease
with Dead River Properties.
Learningsmith has a motion pending before the bankruptcy court seeking an
extension of the date by which it must either assume or reject the Taunton
lease, from February 8, 2000 to April 8, 2000. A hearing date has not been
set on this motion, the sole purpose of which, according to Learningsmith's
counsel, is to buy some time so that it may house the assets at the Taunton
warehouse until the sale motion is approved on the 15th. Given the reasons
for this motion, Dead River chose to not object to the April 8 extension
request. It has, however, reserved its rights to object to any further
extension requests by Learningsmith.
SCHEDULE 8.1(g)
SCHEDULE OF CERTAIN SERVICE CONTRACTS
-------------------------------------
1. Landscape Contract
Tru-Green LandCare (formerly Otey Brothers Landscape Management)
Telephone number (000)000-0000
1999 Landscape Maintenance Proposal
Currently no 2000 contract
2. Snow Removal Contract
Xxxxx'x Landscaping
Telephone number (000)000-0000
3. Trash Removal Contract
E.L. Xxxxxx & Sons, Inc.
Telephone number (000)000-0000
Currently two trash compactors on site
4. Pest Control Contract
Terminex
Telephone number (000)000-0000
Contract cancelled 12/31/99
5. Fire Alarm/Low Temperature Alarm Contract
Honeywell
Telephone number (000)000-0000
6. Electrical Company
Taunton Power & Light
Telephone number (000)000-0000
7. Gas Company
Bay State Gas
Telephone number 1/800/000-0000 (Service Dept)
EXHIBIT A
LEGAL DESCRIPTION OF THE PREMISES
---------------------------------
A certain parcel of land described as Lot 20A on a plan of land entitled
"Resubdivision of Xxx 00X - Xxxxx Xxxxxxxx Xxxxxxxxxx Xxxx, Xxxxxxx, Mass.,
for C. D. Realty Trust IX" dated March 13, 1985 by Xxxxxxxx Engineering
Corp., recorded with Bristol North County Registry of Deeds at Plan Book
220, Page 30, together with rights, if any, in a 25 foot utility easement
and other easements and roads as shown on said plan.
EXHIBIT B
---------
ESCROW INSTRUCTIONS
-------------------
1. Investment and Use of Funds. The Title Company shall invest the
Deposit in government insured interest-bearing accounts satisfactory to
Purchaser and Seller, shall not commingle the Deposit with any funds of the
Title Company or others, and shall promptly provide Purchaser and Seller
with confirmation of the investments made. If the Closing under this
Agreement occurs, the Title Company shall deliver the Deposit to, or upon
the instructions of, Purchaser and Seller on the Closing Date. Provided
such supplemental escrow instructions are not in conflict with this
Agreement as it may be amended in writing from time to time, Seller and
Purchaser agree to execute such supplemental escrow instructions as may be
appropriate to enable Title Company to comply with the terms of this
Agreement. For purposes of tax reporting, the Deposit shall be invested on
behalf of Purchaser, with interest to be paid in accordance with Section 2
of this Agreement. Seller and Purchaser agree to execute and deliver to the
Title Company originally executed W-9 forms.
2. Termination. Upon a termination of this Agreement, either party
to this Agreement may give written notice to the Title Company and the
other party of such termination and the reason for such termination. Such
notice shall specify the Section or Sections of the Agreement giving rise
to such right of termination. The non-terminating party shall then have
five (5) business days after receipt of such notice in which to object in
writing to the release of the Deposit to the terminating party. If the non-
terminating party provides such an objection, then the Title Company shall
retain the Deposit until it receives written instructions executed by both
Seller and Purchaser as to the disposition and disbursement of the Deposit,
or until ordered by final court order, decree or judgment, which is not
subject to appeal, to deliver the Deposit to a particular party, in which
event the Deposit shall be delivered in accordance with such notice,
instruction, order, decree or judgment, or proceed in accordance with
Paragraph 3 below.
3. Interpleader. Except as specifically provided above, Seller and
Purchaser mutually agree that in the event of any controversy regarding the
Deposit, unless mutual written instructions are received by the Title
Company directing the Deposit's disposition, the Title Company shall not
take any action, but instead shall await the disposition of any proceeding
relating to the Deposit or, at the Title Company's option, the Title
Company may interplead all parties and deposit the Deposit with a court of
competent jurisdiction in which event the Title Company may recover all of
its court costs and reasonable attorneys' fees. Seller or Purchaser,
whichever loses in any such interpleader action, shall be solely obligated
to pay such costs and fees of the Title Company, as well as the reasonable
attorneys' fees of the prevailing party in accordance with the other
provisions of this Agreement.
4. Liability of Title Company. The parties acknowledge that the
Title Company is acting solely as a stakeholder at their request and for
their convenience, that the Title Company shall not be deemed to be the
agent of either of the parties, and that the Title Company shall not be
liable to either of the parties for any action or omission on its part
taken or made in good faith, and not in disregard of this Agreement, but
shall be liable for its negligent acts and for any loss, cost or expense
incurred by Seller or Purchaser resulting from the Title Company's mistake
of law respecting the Title Company's scope or nature of its duties. Seller
and Purchaser shall jointly and severally indemnify and hold the Title
Company harmless from and against all costs, claims and expenses, including
reasonable attorneys' fees, incurred in connection with the performance of
the Title Company's duties hereunder, except with respect to actions or
omissions taken or made by the Title Company in bad faith, in disregard of
this Agreement or involving negligence on the part of the Title Company.
5. Escrow Fee. Except as expressly provided herein to the
contrary, the escrow fee, if any, charged by the Title Company for holding
the Deposit or conducting the Closing shall be shared equally by Seller and
Purchaser.
The undersigned acknowledges receipt of $100,000 of the Deposit and a
copy of the Purchase and Sale Agreement between Dead River Company as
Seller and Westerbeke Corporation as Purchaser and agrees to accept the
remainder of the Deposit in accordance with the provisions of Section 2.1
of said Agreement and agrees to hold, account for and deliver the Deposit
in accordance with the terms of said Agreement and the foregoing Escrow
Instructions.
DATED: , 2000
______________________________
By:___________________________
___________________________
Typed or Printed Name
