1
PURCHASE AND SALE AGREEMENT
THIS AGREEMENT made and entered into as of the 13th day of January 1999, by and
between XXXX XXXXXXX REALTY INCOME FUND LIMITED PARTNERSHIP, a Massachusetts
limited partnership, having its principal address c/o The Real Estate Investment
Group, Xxxx Xxxxxxx Xxxxx, X.X. Xxx 000, Xxxxxx, Xxxxxxxxxxxxx 00000
(hereinafter "Seller"), and POST ROAD MOBILE HOME PARK AND SALES, INC., having
an office address at 000 Xxxxxx Xxxx Xxxx, Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000
(hereinafter "Buyer");
WITNESSETH THAT:
WHEREAS, Seller desires to sell certain improved real property known as
MARLBORO SQUARE SHOPPING CENTER in MARLBOROUGH, MASSACHUSETTS along with certain
related personal and intangible property; and
WHEREAS, Buyer desires to purchase such real, personal, and intangible
property in accordance with the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants hereinafter set
forth the parties hereto mutually agree as follows:
1. THE PROPERTY.
1.1 DESCRIPTION: Subject to the terms and conditions of this
Agreement, and for the consideration herein set forth, Seller agrees to sell and
transfer, and Buyer agrees to purchase and acquire, all of Seller's right,
title, and interest in and to the following (collectively, the "Property"):
1.1.1 Certain land (the "Land") located at located AT 000
XXXXXX XXXX XXXX XX XXXXXXXXXXX, XXXXXXXXXXXXX, and more specifically described
in EXHIBIT 1.1.1 attached hereto;
1.1.2 The building(s), parking areas, improvements, and
fixtures now situated on the Land (the "Improvements");
1.1.3 All furniture, personal property, machinery, apparatus,
and equipment currently used in the operation, repair, and maintenance of the
Land and the Improvements and situated thereon, excluding, however, tangible
personal property and fixtures of the Improvements which are owned by tenants or
which may be removed by tenants under the terms of their leases (collectively,
the "Personal Property"). The Personal Property to be conveyed is subject to
depletions, replacements, and additions in the ordinary course of Seller's
business;
1.1.4 All easements, hereditaments, and appurtenances belonging
to or inuring to the benefit of Seller and pertaining to the Land, if any;
1.1.5 Any street or road abutting the Land to the center line
thereof (to the extent owned by Seller);
1.1.6 The leases or occupancy agreements, including those in
effect on the date of this Agreement which are identified on the Schedule of
Leases attached hereto as EXHIBIT 1.1.6, which as of the Closing (or Date of
Closing, as hereinafter defined) affect all or any portion of the Land or the
Improvements (collectively, the "Leases"), and any security deposits actually
held by Seller with respect to any such Leases;
1.1.7 All service, maintenance, supply, or other contracts
relating to the operation of the Property, including those in effect as of the
date hereof which are listed on EXHIBIT 1.1.7 hereto and any new contracts
entered into pursuant to and in accordance with Section 7.2 (together, the
"Contracts"), subject to Section 5.5 hereof;
9
2
1.1.8 The name "MARLBORO SQUARE", if available;
1.1.9 Assignable warranties and guaranties issued in connection
with the Improvements or the Personal Property which remain in effect as of
Closing; and
1.1.10 All transferable consents, authorizations, variances or
waivers, licenses, permits, and approvals from any governmental or
quasi-governmental agency, department, board, commission, bureau, or other
entity or instrumentality solely in respect of the Land or the Improvements
which remain valid or in effect as of Closing.
1.2 AGREEMENT TO CONVEY. Seller agrees to convey, and Buyer agrees
to accept, on the Date of Closing: (a) title to the Land and the Improvements in
the condition described in Section 6.1, and subject to the Permitted Exceptions
(as hereinafter defined); and (b) title to the Personal Property, by Xxxx of
Sale (as hereinafter defined), without warranty as to the title or the condition
of such personalty.
2. PURCHASE PRICE. The Property is to be sold to Buyer for the sum of
ONE MILLION TWO HUNDRED THOUSAND FIVE HUNDRED AND NO/100 DOLLARS ($1,200,500.00)
(the "Purchase Price"), which Buyer shall pay to Seller on the Date of Closing
by wiring immediately available Federal funds to such bank account as may be
designated by Seller.
3. DEPOSIT. Buyer shall deposit with the Title Company (as hereinafter
defined) the sum of $60,000.00 by official bank cashier's check simultaneously
with the execution of this Agreement as a good faith deposit (hereinafter, said
deposit and such interest as is earned thereon shall be referred to as the
"Deposit"), which Deposit shall be disposed of in the manner herein provided. If
Closing occurs in accordance with this Agreement, the Deposit shall either be
applied against the Purchase Price or returned by Seller to Buyer on the Date of
Closing, as hereinafter provided. If this Agreement is terminated, or if either
party fails to perform any of its agreements hereunder, the Deposit shall be
disposed of in the manner hereinafter provided.
4. CLOSING. Subject to the provisions of this Agreement, the Closing
Documents (as hereinafter defined) shall be delivered at 10 o'clock A.M.,
E.S.T., on March 15, 1999 (the "Date of Closing" or "Closing"), at an office of
First American Title Insurance Company (the "Title Company"), unless otherwise
agreed upon in writing. Contact for all title insurance requirements should be
made through the following office:
First American Title Insurance Company
National Accounts Division
Xxx Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx, Vice President
Telephone: (000) 000-0000 or (000) 000-0000
Fax: (000) 000-0000 or (000) 000-0000
Notwithstanding the foregoing, if Buyer gives Seller written notice at
least seven (7) days prior to the Date of Closing ("Closing Location Notice"),
the Closing may occur at the offices of Buyer's lender providing financing for
the purchase of the Property, as long as such lender's offices are in Boston or
located not more than thirty (30) miles from Boston. The Closing Location Notice
shall contain the notice changing the location of the Closing; the name of the
lender at which such closing shall occur and a street address for the place of
closing.
Buyer acknowledges that Seller shall not be required to send a
representative to the Closing but may conduct the Closing by depositing in
escrow with the Title Company, the Deed (as defined below) and all other
documents required by this Agreement. Buyer and Seller shall deposit all
documents necessary for the Closing in escrow with the Title Company, and Buyer
shall deposit the necessary funds
10
3
to satisfy its obligations under this Agreement in escrow with the Title
Company. Upon recording of the Deed, the Title Company shall wire the proceeds
from the sale to the Seller.
The term Title Company shall include the Title Company as defined above and
a third party agent of such Title Company (which shall not include the counsel
for Buyer or Seller) as long as the Title Company issues a so-called insured
closing letter protecting Buyer and Seller and covering the transaction
contemplated in this Agreement.
If Buyer's lender wishes to use a different Title Company to serve as the
Title Company and escrow agent, Buyer shall notify Seller of such desire in
writing. Buyer and Seller shall then direct the existing Title Company to wire
the Deposit and any other funds to the new designated Title Company as long as
(a) Buyer pays all fees associated with such transfer and (b) the new designated
Title Company is a nationally recognized company such as Xxxxxxx Title Guaranty
Company, Chicago Title Insurance Company, Old Republic Title Insurance Company,
Commonwealth Land Title Corporation or Lawyers Title Company. Upon its receiving
such funds, such new designated Title Company shall be deemed the Title Company
for purposes of this Agreement.
5. BUYER'S REVIEW.
5.1 ACCESS.
5.1.1 Seller shall promptly upon the execution hereof make
available to Buyer copies of the Contracts and the Leases. Seller agrees to
allow Buyer or Buyer's agents or representatives reasonable access to the
Property (during business hours) for purposes of any non-intrusive physical or
environmental inspection of the Property and review and copying of the
Contracts, the Leases, Seller's books and records relating to the Property
(other than any privileged, proprietary or confidential records), soil reports,
environmental studies and reports, surveys, building and systems plans, income
and expense statements, and other matters necessary in the reasonable discretion
of Buyer to evaluate and analyze the feasibility of the Property for Buyer's
intended use thereof. Buyer shall not conduct or authorize any physically
intrusive testing of, on, or under the Property without first obtaining Seller's
written consent as to the timing and scope of work to be performed, such consent
not to be unreasonably withheld.
5.1.2 Except as otherwise expressly set forth herein, Seller
makes no representations or warranties as to the truth, accuracy, or
completeness of any materials, data, or other information, including without
limitation the contents of Seller's or its property manager's books and records,
marketing materials prepared by Seller or the Broker (as hereinafter defined),
rent rolls or income and expense statements, supplied to Buyer in connection
with Buyer's inspection of the Property. It is the parties' express
understanding and agreement that all such materials are provided by Seller
solely for Buyer's convenience in making its own examination and determination
prior to the Approval Date (as hereinafter defined) as to whether it wishes to
purchase the Property, and, in making such examination and determination, Buyer
shall rely exclusively on its own independent investigation and evaluation of
the Property and not on any materials supplied by Seller.
5.2 TITLE AND SURVEY. Buyer shall obtain a commitment by the Title
Company to issue an owner's policy of title insurance insuring the Land and the
Improvements (the "Title Commitment"), and a survey of the Land prepared by a
professional land surveyor licensed in the state in which the Property is
located (the "Survey").
5.3 BUYER'S RIGHT TO OBJECT OR TERMINATE.
5.3.1 BUYER'S RIGHT TO OBJECT. Buyer shall have the right, in
its sole discretion, on or before 5:00 p.m. E.S.T. on February ___, 1999 (the
"Approval Date") to make written objection to any matter regarding the Property
("Objection Notice"), which notice must specify the reason such matter(s) are
not satisfactory and the curative steps necessary to remove the basis for
Buyer's disapproval. The parties shall then have until the later of ten (10)
business days after the date of the
11
4
Objection Notice and the Approval Date (whichever is later, the "Objection
Deadline") to make such arrangements or take such steps as they shall mutually
agree to satisfy Buyer's objection(s); provided, however, that Seller shall have
no obligation whatsoever to expend or agree to expend any funds, to undertake or
agree to undertake any obligations, or otherwise to attempt to cure or agree to
attempt to cure any objections, and Seller shall not be deemed to have any
obligation to attempt to cure any such matters unless Seller expressly
undertakes such an obligation by a written notice to or written agreement with
Buyer given or entered into on or prior to the Objection Deadline and which
recites that it is in response to an Objection Notice. Buyer's sole right with
respect to any objections contained in an Objection Notice given in a timely
manner shall be to elect on or before the Objection Deadline to terminate this
Agreement pursuant to Section 5.3.2 hereof.
5.3.2 BUYER'S RIGHT TO TERMINATE. In the alternative, Buyer
shall have the right, in its sole discretion, on or before the Approval Date (if
the Objection Notice has not been given) or the Objection Deadline (if the
Objection Notice has been given), to terminate its obligation to purchase the
Property by giving Seller written notice of termination (the "Termination
Notice"). If the Termination Notice is timely given, Seller shall direct the
Title Company promptly to return the Deposit to Buyer and neither party shall
have any further obligations or liability hereunder except as expressly set
forth in this Agreement, including without limitation Sections 6.2 and 24
hereof. In the event that Buyer does not tender to Seller the Objection Notice
or the Termination Notice prior to the Approval Date or the Objection Deadline,
as applicable: (a) the Deposit shall be non-refundable; and (b) Buyer shall have
no further rights to the Deposit, and no further right to terminate this
Agreement, except for matters that arise after the Approval Date and prior to
the Date of Closing and except for termination arising pursuant to Sections 9.1,
13, or 18.1.
5.4 PERMITTED EXCEPTIONS. If this Agreement is not terminated,
Buyer shall be deemed to have approved and to have agreed to purchase the
Property subject to the following:
5.4.1 all possible title objections, survey objections, and any
defects in or to title to the Property or other matters affecting or relating to
the title to, or the survey of, or the condition of the Property existing as of
the Approval Date and not included in an Objection Notice given by Buyer and/or
which Buyer has otherwise approved or is deemed to have approved pursuant to
Section 5.3.1 hereof;
5.4.2 all existing Leases, and all Contracts and Leases which
Buyer has approved or is deemed to have approved, or which Seller is permitted
to enter into, pursuant to Sections 5.5, 7.2, and 7.3 hereof;
5.4.3 the lien of non-delinquent real and personal property
taxes and assessments;
5.4.4 rights of parties in possession not shown by the public
records;
5.4.5 discrepancies, conflicts in boundary lines, shortages in
area, encroachments, and any state of facts which an inspection of the Property
would disclose and which are not shown by the public records;
5.4.6 easements or claims of easements, whether or not shown by
the public records;
5.4.7 any service, installation, connection, maintenance or
construction charges due after Closing, and, subject to the proration provisions
hereof, charges for sewer, water, electricity, telephone, cable television or
gas; and
5.4.8 unrecorded leaseholds, rights of vendors and holders of
security interests on personal property installed upon the Property by tenants,
and rights of tenants to remove trade fixtures at the expiration of the term of
the Leases.
12
5
All of the foregoing are referred to herein collectively as the "Permitted
Exceptions".
5.5 CONTRACTS. On or before the Approval Date, Buyer shall notify
Seller in writing as to which of the Contracts Buyer elects to assume at
Closing. Seller shall notify the vendors under those Contract(s) which Buyer has
not agreed to assume that, provided that Closing occurs hereunder, such
Contracts shall terminate, effective as of the Date of Closing.
6. CONDITION OF PREMISES.
6.1 Buyer and Seller agree that Buyer is acquiring the Property in
its "AS IS" condition, WITH ALL FAULTS, IF ANY, AND WITHOUT ANY WARRANTY,
EXPRESS OR IMPLIED. Except as otherwise expressly set forth herein, neither
Seller nor any agents, representatives, or employees of Seller have made any
representations or warranties, direct or indirect, oral or written, express or
implied, to Buyer or any agents, representatives, or employees of Buyer with
respect to the condition of the Property, its fitness for any particular
purpose, or its compliance with any laws, and Buyer is not aware of and does not
rely upon any such representation to any other party. Buyer acknowledges that
the Purchase Price might be higher if Buyer were not acquiring the Property in
"as is" condition. Buyer acknowledges that it either has had or will have before
the Date of Closing the opportunity to make such inspections (or have such
inspections made by consultants) as it desires of the Property and all factors
relevant to its use, including, without limitation, the interior, exterior, and
structure of all Improvements, and the condition of soils and subsurfaces
(particularly with respect to the presence or absence of hazardous substances).
6.2 After its inspections are completed, Buyer shall restore the
Property to its condition prior to Buyer's inspections. Buyer agrees to
indemnify Seller for all claims or damages arising out of Buyer's inspections,
including, without limitation, claims for personal injury or property damage,
and including all costs and attorneys' fees. The obligations in this Section 6.2
shall survive the Closing or the termination of this Agreement for any reason,
including without limitation pursuant to Sections 5.3.2, 9.1, or 13 hereof.
6.3 Buyer hereby releases Seller and its agents, representatives,
and employees from any and all claims, demands, and causes of action, past,
present, and future, that Buyer may have relating to (i) the condition of the
Property at any time, before or after the Date of Closing, including, without
limitation, the presence of any hazardous substance, or (ii) any other matter
pertaining to the Property. This release shall survive the Closing or the
termination of this Agreement for any reason.
7. PRIOR TO CLOSING.
7.1 Until Closing, Seller or Seller's agents shall:
7.1.1 INSURANCE. maintain the types and amounts of insurance
that are in force on the date of execution hereof; and
7.1.2 OPERATION. operate and maintain the Property
substantially in accordance with Seller's past practices with respect to the
operation of the Property, and deliver the Property to Buyer at Closing in its
present condition, normal wear and tear excepted, subject to Section 13 hereof.
7.2 NEW CONTRACTS. Between the Approval Date and the Date of
Closing, Seller will enter into only those Contracts which Seller believes are
necessary to carry out its obligations under Section 7.1.2 and which shall be
cancelable on the earlier to occur of (a) the Closing Date and (b) not more than
thirty (30) days' written notice. If Seller enters into any such Contract, it
shall promptly provide written notice thereof to Buyer and unless Buyer, within
seven (7) days thereafter, notifies Seller in writing of Buyer's intention to
assume such Contract, it shall be treated as a non-assumed Contract under
Section 5.5 hereof.
13
6
8. REPRESENTATIONS AND WARRANTIES.
8.1 Seller represents and warrants to Buyer as follows:
8.1.1 Seller is a limited partnership, duly formed, validly
existing, and in good standing under the laws of the
Commonwealth of Massachusetts.
8.1.2 Subject to Section 9.2 hereof, Seller has all requisite
power and authority to execute and deliver this Agreement and to carry out its
obligations hereunder and the transactions contemplated hereby. This Agreement
has been, and the documents contemplated hereby will be, duly executed and
delivered by Seller and constitute Seller's legal, valid, and binding obligation
enforceable against Seller in accordance with its terms. The consummation by
Seller of the sale of the Property is not in violation of or in conflict with,
nor does it constitute a default under any term or provision of, the
organizational documents of Seller, or any of the terms of any agreement or
instrument to which Seller is a party, or by which Seller is bound, or any
provision of any applicable law, ordinance, rule, or regulation of any
governmental authority or any provision of any applicable order, judgment, or
decree of any court, arbitrator, or governmental authority.
8.1.3 To the best of Seller's knowledge, the list attached
hereto as EXHIBIT 1.1.6 is a true and complete list of all Leases at the
Property and the rent roll attached as Exhibit 8.1.3 is a true and correct in
all material respects regarding the information contained on such rent roll.
8.1.4 To the best of Seller's knowledge, the list attached
hereto as EXHIBIT 1.1.7 is a true and complete list of all Contracts affecting
the Property.
8.2 Buyer represents and warrants to Seller as follows:
8.2.1 Buyer is a corporation, duly organized, validly existing,
and in good standing under the laws of Massachusetts and the state in which the
Property is located.
8.2.2 Buyer has all requisite power and authority to execute
and deliver this Agreement and to carry out its obligations hereunder and the
transactions contemplated hereby. This Agreement has been, and the documents
contemplated hereby will be, duly executed and delivered by Buyer and constitute
its legal, valid, and binding obligation enforceable against it in accordance
with its terms, and the consummation and performance by Buyer of the
transactions contemplated herein will not result in a violation of or be in
conflict with or constitute a default under any term or provision of the
organizational documents of Buyer, or any of the terms of provisions of any
agreement or instrument to which it is a party, or by which it is bound, or of
any term of any applicable law, ordinance, rule or regulation of any
governmental authority or of any term of any applicable order, judgment, or
decree of any court, arbitrator, or governmental authority.
8.3 The above-stated representations and warranties will survive
the Closing for a period of six(6) months, before the expiration of which the
party claiming a breach must have filed an action in a court of competent
jurisdiction, and any representation and warranty not specified in such action
shall expire. Any such claim shall be limited to actual damages (specifically
including reasonable attorneys' fees and expenses and court costs) suffered by
the claiming party (specifically excluding consequential, punitive, or other
damages), and in no event shall the aggregate of such damages exceed $60,000.00.
Buyer acknowledges that Seller has maintained no employees at the Property and
that the Property has during Seller's ownership thereof always been managed by a
third-party manager, and that Seller has relied upon such manager for knowledge
and notice. The words "to the best of Seller's knowledge" in Section 8.1 mean to
the actual knowledge of Xxxxxx Xxxxxx and Xxxxx X. Xxxxxx, the two employees of
Seller who are most familiar with the Property and who have had the most contact
with the management company.
14
7
9. CONDITIONS PRECEDENT.
9.1 REPRESENTATIONS AND WARRANTIES. Each party's obligation to
close hereunder shall be conditioned upon the truth in all material respects as
of the Date of Closing of the other party's representations and warranties set
forth in Section 8 hereof. If on the Date of Closing a representation and
warranty is not true, and such representation and warranty either was not true
on the date of this Agreement, or was true on the Date of this Agreement but has
become untrue as a result of a breach of this Agreement by the party making the
representation hereunder, the other party may either seek its remedy pursuant to
Section 18 hereof, waive this condition and proceed to Closing, or terminate
this Agreement by notice to the representing party. If on the Date of Closing a
representation and warranty is not true, and such representation and warranty
was true on the date of this Agreement and has become untrue not as a result of
a breach of this Agreement by the representing party, the other party may either
waive this condition and proceed to Closing or terminate this Agreement by
notice to the representing party. Upon the representing party's receipt of
notice of termination pursuant to this Section 9.1, the Deposit shall be
refunded and this Agreement shall terminate, and neither party shall be liable
to the other for damages or otherwise except as otherwise expressly provided
herein.
9.2 SELLER'S APPROVALS. Seller's obligation to close hereunder
shall be conditioned upon the approval of this transaction by Seller's internal
committees. If on or before the Approval Date Seller has not notified Buyer that
such approval has been granted, such approval shall be deemed not to have been
granted, and the Deposit shall be refunded and this Agreement shall terminate,
and neither party shall be liable to the other for damages or otherwise except
as otherwise expressly provided herein and except that Seller shall reimburse
Buyer for Buyer's actual, out-of-pocket costs incurred to third parties in
connection with its inspections and due diligence at the Property; provided that
(a) Buyer provides to Seller paid invoices for all such amounts and (b) in no
event shall Seller be obligated to reimburse any amounts in excess of $5,000.00.
9.3 TENANT ESTOPPEL LETTERS. Buyer's obligation to close hereunder
shall be conditioned upon Buyer's receipt, no later than January 25, 1998
("Estoppel Deadline") of completed tenant estoppel letters, in the form attached
hereto as EXHIBIT 9.3, from three of the four tenants occupying space at the
Property but one of such letters must be from Marlboro Square Liquors (the
"Required Space"). Seller shall direct its management company to send tenant
estoppel letters promptly upon full execution of this Agreement to the tenants
at the Property.
If on or before the Estoppel Deadline Buyer receives estoppel letters
substantially in the form of EXHIBIT 9.3 covering the Required Space, then this
condition shall be deemed satisfied or waived, and the Closing shall occur as
set forth herein. The term substantially in the form shall mean that the
provisions regarding applicable rent, term and square footage occupied are
completed as well as a statement (which may be qualified to the knowledge of the
tenant) regarding tenant's defaults under the applicable lease is included in
such estoppel letter.
If on or before the Estoppel Deadline Buyer has not received such
letters covering the Required Space, Buyer may so notify Seller, and upon the
giving of such notice, the Deposit shall be refunded and this Agreement shall
terminate, and neither party shall be liable to the other for damages or
otherwise except as otherwise expressly provided herein. If on or before the
Estoppel Deadline Buyer has not given such notice to Seller, this condition
shall be deemed satisfied and waived, and the Closing shall occur as set forth
herein.
10. ADJUSTMENTS AND PRORATIONS.
10.1 All taxes, including, without limitation, real estate taxes and
personal property taxes, collected rents, charges for utilities, including
water, sewer, and fuel oil, and for utility services, maintenance services,
maintenance and service contracts (which are not terminated), all operating
costs and expenses, and all other income, costs, and charges of every kind which
in any manner relate to the operation of the Property (but not including
insurance premiums) shall be prorated to the Date of Closing, except that if
Seller does not receive the Purchase Price (by receipt of wired funds or by
receipt in hand of
15
8
an official bank cashier's check) by noon, E.S.T., on the Date of Closing, all
prorations shall be made as of the following business day. If the amount of said
taxes, assessments, or rents is not known on the Date of Closing, they shall be
apportioned on the basis of the amounts for the preceding year, with a
reapportionment as soon as the new amounts can be ascertained. If such taxes and
assessments shall thereafter be reduced by abatement, the amount of such
abatement, less the reasonable cost of obtaining the same, shall be apportioned
between the parties, provided that neither party shall be obligated to institute
or prosecute proceedings for an abatement unless otherwise agreed. Buyer shall
be responsible for the payment of any assessments or notice of assessments made
after the date of execution hereof for any public improvement, provided Buyer
takes title hereunder. With respect to security deposits, if any, made by
tenants at the Property, Buyer shall receive credit therefor. Any deposits on
utilities paid by Seller shall be returned to Seller. The foregoing provisions
of this Section 10.1 shall not apply to any taxes, assessments, or other
payments which are directly payable by tenants under their leases. On the Date
of Closing, Seller shall deliver to Buyer all inventories of supplies on hand at
the Property owned by Seller, if any, at no additional cost to Buyer.
10.2 POST-CLOSING COLLECTIONS. Buyer shall use its best efforts
during the twelve (12) month period immediately following the Closing to collect
and promptly remit to Seller rents or other amounts due Seller for the period
prior to Closing, but such best efforts shall not require Buyer to institute
suit to collect such rents. Buyer shall apply all rents or other amounts
received by Buyer, first for the account of Buyer for amounts currently due to
Buyer; second to Seller for any and all amounts due Seller for periods prior to
Closing; and the balance to be retained by Buyer.
11. CLOSING DOCUMENTS.
11.1 SELLER'S DELIVERIES. Conditioned upon performance by Buyer
hereunder, Seller shall execute and deliver to Buyer at Closing the following
documents ("Seller's Closing Documents"):
11.1.1 DEED. a quitclaim deed conveying marketable title to the
Land and the Improvements subject to the Permitted Exceptions (the "Deed");
11.1.2 XXXX OF SALE. a xxxx of sale, assigning and transferring
to Buyer all of the right, title, and interest of Seller in and to the Personal
Property;
11.1.3 ASSIGNMENT OF LEASES. (i) the Leases which are still in
effect as of Closing and (ii) a current listing of any tenant security deposits
and prepaid rents held by Seller with respect to the Property; and (iii) an
assignment of such Leases and security deposits, which will include an
indemnification by Seller of Buyer for all landlord obligations accruing prior
to the Date of Closing;
11.1.4 ASSIGNMENT OF CONTRACTS. (i) copies of all Contracts
relating to the Property which Buyer has elected to assume or which are not
terminable by Seller on or before the Date of Closing; and (ii) an assignment of
such Contracts, which will include an indemnification by Seller of Buyer for all
owner obligations accruing prior to the Date of Closing;
11.1.5 NON-FOREIGN CERTIFICATE. a certification that Seller is
not a non-resident alien (a foreign corporation, partnership, trust, or estate
as defined in the Internal Revenue Code and Treasury Regulations promulgated
thereunder);
11.1.6 ASSIGNMENT OF WARRANTIES AND GUARANTIES. an assignment
of all transferable warranties and guaranties then in effect, if any, with
respect to the Improvements or any repairs or renovations to such Improvements
and the Personal Property being conveyed hereunder;
11.1.7 BOOKS AND RECORDS. all books and records held at the
Property by or for the account of Seller (other than any privileged, proprietary
or confidential records), including without limitation plans and specifications
and lease applications, as available' and
16
9
11.1.8 OWNER'S AFFIDAVIT. an owner's affidavit and such other
similar documents as are reasonably required from Seller pursuant to the Title
Commitment as a condition precedent to the issuance of an owner's title
insurance policy pursuant to the terms thereof.
11.2 BUYER'S DELIVERIES. Conditioned upon performance by Seller
hereunder, Buyer shall execute and deliver to Seller at Closing the following
documents ("Buyer's Closing Documents"):
11.2.1 ASSUMPTION OF LEASES. an assumption of the Leases and
security deposits, which will include an indemnification by Buyer of Seller for
all landlord obligations accruing on or after the Date of Closing; and
11.2.2 ASSUMPTION OF SERVICE CONTRACTS. an assumption of the
Contracts which Buyer has elected to assume, which will include an
indemnification by Buyer of Seller for all owner obligations accruing on or
after the Date of Closing.
11.3 OTHER CLOSING DOCUMENTS. Each party shall deliver to the other
party or the Title Company such duly executed and acknowledged or verified
certificates, affidavits, and other usual closing documents respecting the power
and authority to perform the obligations hereunder and as to the due
authorization thereof by the appropriate corporate, partnership, or other
representatives acting for it, as counsel for the other party or the Title
Company may reasonably request.
11.4 CLOSING DOCUMENTS. Seller's Closing Documents, Buyer's Closing
Documents and the documents to be delivered pursuant to Section 11.3 hereof
shall hereinafter be referred to as the "Closing Documents".
12. COSTS. Buyer shall pay all settlement expenses, except as set forth
in the following sentence, in connection with the transfer of the Property,
including, but not limited to, personal property sales taxes, if any, recording
fees, Buyer's attorneys' fees, the costs of obtaining a binder or commitment
from a title insurance company, the premium for Buyer's title insurance policy
and the policy of its Lender, the cost of the Survey, and all other costs and
expenses incidental to or in connection with closing this transaction. Seller
shall pay only the attorneys' fees, if any, incurred by Seller in connection
with this transaction, the cost of deed excise stamp taxes and the Broker's
commission, but only if, as, and when the transaction contemplated hereby is
fully consummated and the deed is recorded and the full consideration therefor
has been received by Seller.
13. CASUALTY OR CONDEMNATION. In the event that prior to the Date of
Closing either the Improvements are damaged or destroyed, in whole or in part,
by fire or other cause, or any portion of the Land or the Improvements becomes
the subject of a condemnation proceeding by a public or quasi-public authority
having the power of eminent domain, then either (a) the parties shall proceed
with the transaction contemplated herein, in which event Buyer shall be entitled
to receive any insurance proceeds or condemnation awards, or (b) in the event
such damage, destruction, or condemnation involves, in the reasonable estimation
of Seller and Buyer, a loss in an amount in excess of five per cent (5%) of the
Purchase Price, or loss of all or a material portion of access to the Property,
either party, at its option, may terminate this Agreement by notice to the other
within ten (10) days of Buyer's receipt of Seller's notice of such damage or
proceeding, in which case the Deposit shall be refunded, and thereafter neither
party shall have any further obligation or liability to the other by virtue of
this Agreement, except as otherwise expressly provided herein.
14. INSURANCE. Seller shall not be obligated to assign to Buyer any fire,
hazard, or liability insurance policies which it holds respecting the Property,
and Seller shall have the right to any and all refunds or rebates resulting from
the termination of such policies.
15. BROKER'S COMMISSION. Buyer and Seller each hereby warrants and
represents to the other that it has dealt with no broker or finder in connection
with this transaction except Xxxxxxxx & Grew, Inc. ("the Broker"), and that it
is not affiliated with the Broker in any way. Buyer and Seller each hereby
agrees to indemnify and hold the other harmless from and against any and all
claims for brokerage or
17
10
finder's fees or other similar commissions or compensation made by any and all
other brokers or finders claiming to have dealt with the indemnifying party in
connection with this Agreement or the consummation of the transaction
contemplated hereby. The obligations in this Section shall survive the Closing
or the termination of this Agreement for any reason, including without
limitation pursuant to Section 5.3.2, 9.1, or 13 hereof.
16. SELLER'S PERFORMANCE. The acceptance and recording of Seller's
Closing Documents by Buyer shall be deemed to be a full performance and
discharge of every agreement and obligation of Seller herein contained and
expressed, except such as are, by the terms hereof, to be performed after the
delivery of said instruments.
17. RECORDING PROHIBITED. This Agreement shall not be recorded in any
Registry of Deeds or other office or place of public record. If Buyer shall
record this Agreement or cause or permit the same to be recorded, Seller may, at
its option, elect to treat such act as a default by Buyer under this Agreement.
18. REMEDIES.
18.1 If Seller defaults under this Agreement, Buyer's sole remedy,
at law or in equity, shall be one of either (a) the return of the Deposit to
Buyer, whereupon the obligations of Seller under this Agreement shall terminate;
or (b) the right to obtain specific performance of Seller's obligation to convey
the Property pursuant to this Agreement, provided that in no event shall Seller
be obliged to undertake any of the following: (i) change the condition of the
Property or restore the same after any fire or casualty; (ii) expend money or
post a bond to remove or insure over a title defect or encumbrance or to correct
any matter shown on a survey of the Property; (iii) secure any permit, approval,
or consent with respect to the Property or Seller's conveyance, or (iv) cure
defects objected to by Buyer pursuant to Section 5.3.1 hereof. In no event shall
any officer, director, employee, agent, or representative of Seller have any
personal liability in connection with this Agreement or transaction.
18.2 If Buyer defaults under this Agreement, the sole remedy of
Seller shall be to retain the Deposit, which sum the parties fix and settle as
liquidated damages for such default of Buyer.
18.3 Nothing in this Section 18 shall limit the express provisions
of this Agreement obligating one party hereto to indemnify the other or to
restore the Property, including without limitation Sections 6.2 and 24 hereof.
18.4 In any action to enforce the provisions of this Agreement, the
prevailing party shall be entitled to an award of its attorneys' fees and costs.
19. ASSIGNMENT. This Agreement may not be assigned by Buyer without the
express written consent of Seller, which consent Seller may in its sole
discretion withhold, except that Buyer may, without Seller's consent, assign
this Agreement to (a) a limited partnership of which Buyer (or a principal of
Buyer) or any parent or any wholly owned subsidiary of Buyer is the sole general
partner; (b) a limited liability company of which Buyer (or a principal of
Buyer) or any parent or any wholly owned subsidiary of Buyer is the sole manager
or (c) another entity of which Buyer (or a principal of Buyer) is the owner. No
such assignment shall operate to relieve Buyer from any obligation hereunder.
20. WAIVER. No waiver of any breach of any agreement or provision
contained herein shall be deemed a waiver of any preceding or succeeding breach
of any other agreement or provision herein contained. No extension of time for
the performance of any obligation or act shall be deemed an extension of time
for the performance of any other obligation or act.
21. TIME. It is agreed that time is of the essence of this Agreement.
22. GOVERNING LAW. This Agreement shall be construed under the laws of
the state in which the Property is located.
18
11
23. NOTICES. All notices required or permitted to be given hereunder
shall be in writing and sent by overnight delivery service (such as Federal
Express), in which case notice shall be deemed given on the day after the date
sent, or by personal delivery, in which case notice shall be deemed given on the
date received, or by certified mail, in which case notice shall be deemed given
three (3) days after the date sent, or by fax (with copy by overnight delivery
service), in which case notice shall be deemed given on the date sent, to the
appropriate address indicated below or at such other place or places as either
Buyer or Seller may, from time to time, respectively, designate in a written
notice given to the other in the manner described above.
To Seller: c/o The Real Estate Investment Group
Xxxx Xxxxxxx Place
000 Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
Fax No.: (000) 000-0000 or 3866
Telephone No.: (000) 000-0000
With Copy To: Xxxx Xxxxxxx Mutual Life Insurance Company
Law Department (T-50)
Xxxx Xxxxxxx Place
000 Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxxxx Xxxxxxxx
Fax No.: (000) 000-0000 or 9269
Telephone No.: (000) 000-0000
To Buyer: Post Road Mobile Home Park and Sales, Inc.
000 Xxxxxx Xxxx Xxxx
Xxxxxxxxxxx, XX 00000
Fax No.: _______________
Telephone No.: ______________
With Copy To: Xxxxxx X. Xxxxxxxx, Esquire
00 Xxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Fax No.: (000) 000-0000
Telephone No.: (000) 000-0000
24. CONFIDENTIALITY. Buyer shall not disclose the financial and economic
terms and conditions of the transaction contemplated herein except as may be
necessary in the ordinary course of its business. All press releases or other
dissemination of information to the media, or responses to requests from the
media, for information relating to the transaction contemplated herein shall be
subject to the prior written approval of Seller; provided that, following the
Closing, Seller's approval shall not be unreasonably withheld or delayed. The
obligations in this Section 24 shall survive the Closing or termination of this
Agreement for any reason.
25. ENTIRE AGREEMENT. This instrument, executed in duplicate, sets forth
the entire agreement between the parties and may not be canceled, modified, or
amended except by a written instrument executed by both Seller and Buyer.
26. COUNTERPARTS. This Agreement may be executed and delivered in any
number of counterparts, each of which so executed and delivered shall be deemed
to be an original and all of which shall constitute one and the same instrument.
27. LITIGATION DISCLOSURE. Seller hereby notifies Buyer that it is
contemplating legal action against a former tenant at the Property, Hardgoods
Distributors of Massachusetts, Inc. and its successors
19
12
and affiliates ("HDM"). Buyer acknowledges that it has no interest in taking an
assignment of such claim and so all interest in such claim upon Closing shall
remain in Seller. Seller shall indemnify Buyer from loss, costs and damages
incurred by Buyer if HDM asserts rights to possession of space at the Property.
IN WITNESS WHEREOF, the parties hereto have caused these presents to be executed
the day and year first above written.
SELLER:
XXXX XXXXXXX REALTY INCOME FUND LIMITED PARTNERSHIP
BY: XXXX XXXXXXX REALTY EQUITIES, INC.,
its general partner
BY: _______________________________________________
Xxxxxx X. Xxxxxx, Assistant Vice President
BUYER:
POST ROAD MOBILE HOME PARK AND SALES, INC.
BY:________________________________________________
Xxxxxx X. Xxxxxx President & Treasurer
___________________________________________________
(name) (title)
EXHIBITS:
1.1.1 - Legal Description
1.1.6 - Schedule of Leases
1.1.7 - Schedule of Contracts
8.1.3 - Rent Roll
9.3 - Tenant Estoppel Certificate
20
13
EXHIBIT 1.1.1
LEGAL DESCRIPTION
14
EXHIBIT 1.1.6
SCHEDULE OF LEASES
15
EXHIBIT 1.1.7
SCHEDULE OF CONTRACTS
16
EXHIBIT 8.1.3
RENT ROLL
17
EXHIBIT 9.3
TENANT ESTOPPEL CERTIFICATE
