PURCHASE AND SALE AGREEMENT
THIS AGREEMENT made this 12th day of January, 1998 by
and between FREEPORT MERCHANTS LIMITED PARTNERSHIP, a Maine
limited partnership having an office at 00 Xxxxx Xxxxxx,
Xxxxxx, XX 00000 (hereinafter called the "Seller") and THE
GROVE CORPORATION, a Delaware corporation having an office at
000 Xxxxxx Xxxxxx, Xxxxxxxx, XX (hereinafter called the
"Purchaser").
WITNESSETH:
WHEREAS, the Seller owns the fee simple title to the
property known as 00 Xxxx Xxxxxx, 0 Xxxx Xxxxxx and 00 Xxxx
Xxxxxx, Xxxxxxxx, Xxxxx and more specifically described on
Exhibit A annexed hereto and made a part hereof, and
WHEREAS, the Seller desires to sell such property to the
Purchaser, and the Purchaser desires to purchase such
property from the Seller, all in the manner and upon and
subject to the terms and conditions set forth in this
Agreement;
NOW, THEREFORE, for and in consideration of the mutual
covenants and promises herein contained, the parties hereto
agree as follows:
1. Agreement to Buy and Sell. The Seller agrees to
sell and convey to the Purchaser, and the Purchaser agrees to
purchase from the Seller, all in the manner and upon and
subject to the terms and conditions set forth in this
Agreement, the following property:
(a) those certain pieces or parcels of land described
on Exhibit A subject only to the Permitted Encumbrances (as
defined in Section 5 hereof), together with the buildings and
improvements thereon (such land, buildings and improvements
are hereinafter collectively referred to as the "Premises");
(b) the easements, rights of-way, privileges and
appurtenances, and rights to the same, belonging to and
inuring to the benefit of the Premises (the items included in
this subsection ) are sometimes hereinafter collectively
referred to as the "Appurtenant Rights");
(c) all items normally considered fixtures acquired by
the Seller of every kind, nature and description whatsoever,
now or hereafter located on the Premises, or any part
thereof, and used or usable in connection with any present or
future occupancy of the Premises, or any part thereof (the
items included in this subsection (c) are sometimes
hereinafter collectively referred to as the "Building
Equipment"); and
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2. Purchase Price and Method of Payment. The total
purchase price is Six Million Nine Hundred Twenty-five
Thousand and 00/100 Dollars ($6,925,000.00) payable as
follows:
(a) Seventy-five Thousand 00/100 Dollars ($75,000.00)
in the execution of this Agreement (the "Initial Deposit"),
the receipt of which is hereby acknowledged by Rogin, Nassau,
Xxxxxx, Xxxxxxx & Xxxxxx, LLC (hereinafter called "Escrow
Agent").
(b) Upon the expiration of the Due Diligence Period (as
defined in Paragraph 3 hereof), if the Purchaser has not
terminated this Agreement pursuant to said Paragraph 3, an
additional $75,000.00 (the "Additional Deposit") shall be
paid to the Escrow Agent. Until the Additional Deposit is
paid, the Initial Deposit shall be also referred to herein as
the "Deposit". When the Additional Deposit has been paid,
the Initial Deposit, together with the Additional Deposit,
shall be together referred to herein as the "Deposit".
(c) By the assumption by the Purchaser of the existing
first mortgage on the Premises (the "Mortgage") that is held
by Xxxxxx Guaranty Trust Company of New York (the
"Mortgagee"), provided that the principal balance thereof is
not greater than $3,900,000.00.
3. The Purchaser's Due Diligence. The Purchaser
shall have a period ending on [forty-five (45) days from the
first business day after the date of this Agreement] (the
"Due Diligence Period") within which to inspect, examine,
and/or investigate the Premises, and all physical,
environmental, financial and legal aspects thereof, and the
obligations of the Purchaser hereunder shall be conditioned
upon the Purchaser being fully satisfied, in its sole
discretion, as to all such inspections, investigations,
and/or examinations.
The Seller shall reasonably cooperate with the Purchaser
in its inspections, examinations, and investigations
including the disclosure to the Purchaser of all available
information known by the Seller or in its possession with
respect to the Premises. Throughout the Due Diligence Period,
the Purchaser shall have access to the Premises to accomplish
the foregoing, including, without limitation, the conduct of
surface and subsurface tests and physical and environmental
appraisals and studies. The Purchaser hereby agrees to hold
the Seller harmless and indemnified against any loss, cost,
liability, or expense arising in connection with the
Purchaser's inspection of the Premises under this Section and
agrees to repair any damage to the Premises caused in
connection therewith.
In the event that the Purchaser, after performing the
above-referenced inspections, examinations, and/or
investigations, is not fully satisfied, in its sole
discretion, as to any of the foregoing, then the Purchaser
shall have the right to terminate this Agreement by written
notice to the Seller, received by the Seller (by facsimile
transmission or otherwise) on or before the expiration of the
Due Diligence Period, and thereupon this Agreement shall be
void with no recourse to the parties, except that the Deposit
shall be promptly refunded to the Purchaser.
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4. Closing. The closing of the sale and purchase of
the Premises shall take place at the offices of the
Purchaser's attorneys, Rogin, Nassau, Xxxxxx, Xxxxxxx &
Xxxxxx, LLC at 10:00 am., prevailing time, on a date selected
by the Purchaser that is not more than thirty (30) days after
the expiration of the Due Diligence Period. The place, time
and date provided for herein or hereafter, as may be changed
by agreement of the parties, is sometimes referred to as the
"Closing."
5. Permitted Encumbrances. The Premises shall be sold
and conveyed by the Seller subject only to the following
items which are sometimes herein referred to as "Permitted
Encumbrances":
(a) Any and all provisions of any ordinance, municipal
regulation, or public or private law, but not violations
thereof,
(b) Real estate taxes not yet due as of the Closing,
which taxes shall be adjusted as provided in Section 12
hereof,
(c) Those encumbrances as are set forth on Exhibit E
attached hereto and made a part hereof, and
(d) The leases and tenancies as are set forth on
Exhibit F attached hereto and made a part hereof (the "Tenant
Leases").
6. Deposit. The Deposit shall be held in escrow by the
Escrow Agent pursuant to the provision of Section 7 hereof.
The Deposit shall include all interest earned thereon. In the
event that the title to the Premises shall be closed in
accordance with the provisions hereof, such Escrow Agent
shall pay over and distribute the Deposit to the Seller and
the same shall be credited to the Purchaser towards the
purchase price provided for in this agreement. In the event
that such title shall fail to close by reason of a default by
the Purchaser (whether or not willful) under this Agreement,
the Deposit shall be paid to the Seller as liquidated damages
and thereupon this Agreement shall become null and void with
neither party having any further rights or liabilities
hereunder, it being understood and agreed that the loss of
the Deposit shall be the sole liability on the part of the
Purchaser by reason of such default hereunder. The Deposit
shall be returned to the Purchaser upon the default by the
Seller hereunder or as hereinafter provided.
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7. Escrow Amount and Escrow Agent's Powers. The Seller
and the Purchaser acknowledge and agree that the Escrow Agent
shall hold the Deposit pursuant to the terms and conditions
of this Agreement subject to the following:
(a) The Escrow Agent shall act as a depository only
and, pending settlement of the transaction contemplated by
this Agreement, the Deposit shall be invested in an account
bearing interest, and shall be disbursed in accordance with
the terms of this Agreement, or as directed in writing by the
Seller and the Purchaser. In the event there occurs a
material default by the Seller under the terms of this
Agreement and the sale contemplated herein is not consummated
by reason thereof or in the event the Purchaser is, for any
other reason under this Agreement, entitled to a return of
the Deposit, the Purchaser shall be entitled to all interest
which shall accrue on the Deposit. In all other
circumstances, interest shall be paid over to the Seller.
(b) In the event either the Seller or the Purchaser
shall claim default under the terms of this Agreement, the
Escrow Agent will not be required to deliver the Deposit to
either of the parties without the written consent of the
other; or upon failure thereof, until the right of either of
the parties to receive the Deposit shall be fully determined
by a court of proper jurisdiction.
(c) In the event of controversy or litigation arising
out of this transaction which (i) results in any expense or
attorneys' fees to the Escrow Agent, by virtue of such claim
or default, controversy or litigation, or (ii) requires a
declaratory judgment by proper court as to the disbursement
of said Deposit, the Escrow Agent is hereby authorized to
deduct such expense or attorney's fees out of the sums held
in escrow and to pay any remaining balance over the part
entitled thereto as agreed upon by the parties, or as
directed by a court of competent jurisdiction.
(d) The Seller and the Purchaser hereby release and
discharge the Escrow Agent from all matters with respect to
the subject matter hereof (except for gross negligence or
intentional wrongdoing), and agree to indemnify and hold the
Escrow Agent harmless from and against all costs, damages,
judgments, attorney's fees, expenses, obligations, and
liabilities of any kind or nature which, in good faith, the
Escrow Agent may incur or sustain in connection with this
Agreement, and without limiting the generality of the
foregoing, the Escrow Agent shall not incur any liability due
to a delay in the electronic wire transfer of funds or with
respect to any action taken or omitted in reliance upon any
instrument, including any written notice or instructions
provided for in this Agreement, not only as to its due
execution and the validity and effectiveness of its
provisions, but also as to the trust and accuracy of any
information contained therein, which the Escrow Agent shall
in good faith believe to be genuine, to have been signed or
presented by a proper person or persons and to conform with
the provisions of this Agreement.
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8. Delivery of Documents. At the Closing (or earlier
if indicated below), the Seller shall deliver to the
Purchaser the following documents (the "Documents"):
(a) Quit Claim with Covenant Deed in proper form (the
"Deed"), containing full covenants of title, sufficient to
convey to the Purchaser or its designee good and marketable
fee simple title to the Premises, the Appurtenant Rights and
the Building Equipment, free from all encumbrances and
defects other than Permitted Encumbrances, together with a
Declaration of Values;
(b) Checks to the order of the appropriate governmental
authorities in amounts sufficient to pay 1/2 of any real estate
conveyance taxes payable upon the recording of the Deed; the
Purchaser shall be required to pay the other 1/2 of such real
estate transfer taxes;
(c) Affidavits customarily required by title insurance
companies in the State of Maine for the issuing of title
insurance protecting against mechanics liens and parties in
possession;
(d) Waivers of mechanics liens executed by or on behalf
of all persons, firms and corporations who shall have
finished materials or performed work or services on or at the
Premises during the period commencing one hundred twenty
(120) days prior to the Closing and from any brokers who
participated with the Seller in connection with the sale of
the Premises to the Purchaser;
(e) At least ten (10) days prior to the Closing,
Estoppel Certificates, in the form attached hereto as Exhibit
D, from all tenants of the Premises, which reflect no facts
that are inconsistent with the representations that are
contained in Sections 16(d) or 16 (e) hereof, or would
otherwise adversely affect the value of the Premises.
(f) Assignment of Leases substantially in the form
attached hereto as Exhibit H;
(g) Original, ink-signed leases for all tenants of the
Premises who shall have
signed such leases;
(h) Affidavit substantially in the form attached hereto
as Exhibit I respecting leases affecting the Premises;
(i) Original, ink-signed service, maintenance and
similar contracts and agreements affecting the Premises,
together with an assignment, substantially in the form
attached hereto as Exhibit K, as to such contracts which the
Purchaser elects to assume;
(j) Letters to all tenants of the Premises advising
them of the transfer of the Premises;
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(k) A certification of the Seller certifying that all
representations and warranties made by the Seller in this
Agreement are true and correct as of the Closing, and that
all of the Seller's covenants contained in this Agreement
have been complied with;
(l) An Affidavit of the Seller swearing that the Seller
is not a "foreign person" as defined in Section 1445(B)(2) of
the Internal Revenue Code of 1986, as amended;
(m) Photocopies of all of the Seller's books and
records and surveys and plans with respect to the Premises;
(n) An estoppel certificate from the Mortgagee in the
form attached hereto as Exhibit M; and
(o) Such other and further documents as may be
reasonably required by the Purchaser to effect the
transactions contemplated by this Agreement, including
without limitation, any documents required by the Mortgagee
to effect the assumption of the Mortgage referred to in
Paragraph 2(d) hereof.
9. Title. Within thirty (30) days after the date
hereof the Purchaser shall notify the Seller of the existence
of any encumbrances and defects in title which are not
Permitted Encumbrances and which are ascertainable from an
examination of the Cumberland County Registry of Deeds and
the records of the office of the Secretary of the State of
Maine, provided that, with respect to such encumbrances or
defects as arise after the date of such notice, the Purchaser
must notify the Seller within five (5) days after he has
notice of such encumbrance or defect. The Seller shall have
thirty (30) days after receipt of such notice from the
Purchaser to clear the title. If at the Closing the Seller
shall be unable to convey good and marketable title to the
Premises free and clear of such encumbrances or defects after
diligent, good faith efforts to do so (including, without
limitation, bonding over any lien, if possible), which title
shall be insurable as such by a reputable title insurance
company and at standard rates, without exceptions which would
adversely affect the use of the Premises as retail space, the
Purchaser shall have the option either of accepting such
title as the Seller can convey with an appropriate diminution
of the Purchase Price to reflect such encumbrances or
defects, or of terminating this Agreement, in which event the
Deposit shall be returned to the Purchaser and neither the
Purchaser nor the Seller shall have any further rights or
obligations under this Agreement.
10. Possession. The Seller shall deliver to the
Purchaser or its designee full possession of the Premises at
the Closing, and shall take all steps requisite to put the
Purchaser or its designee in actual possession and operating
control of the Premises, subject only to the rights of
tenants in possession of portions of the Premises pursuant to
leases set forth on Exhibit F.
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11. Operation of Premises Prior to Closing. From and
after the execution of this Agreement and until the Closing,
the Seller:
(a) Shall operate the Premises in a good and prudent
manner and only in the ordinary course of business;
(b) Shall maintain the Premises, the Building Equipment
and the Personal Property in good repair, reasonable wear and
tear excepted;
(c) Shall perform all obligations required to be
performed by the Seller under all leases affecting the
Premises;
(d) Shall use its best efforts to preserve for the
Purchaser the goodwill of all of the firms and persons having
business relations in connection with the Premises;
(e) Shall duly comply with all laws, ordinances and
regulations applicable to the use and operation of the
Premises;
(f) Shall not amend, terminate, or release or relieve
any tenant of the Premises from any obligation arising under
any lease affecting the Premises without obtaining the prior
written consent of the Purchaser; and
(g) Shall not enter into new leases for all or any
portion of the Premises without obtaining the prior written
consent of the Purchaser. Under no circumstances, shall
Seller take any action which would obligate Purchaser to pay
any broker's commission or finder's fee.
12. Adjustments.
(a) Real property taxes, fuel, water, electricity,
sewer and other charges, if any, shall be prorated between
the parties as of the Closing. The Purchaser shall pay the
assumption fee due to the Mortgagee to permit the assumption
of the Mortgage, and any legal fees incurred by the Mortgagee
in connection therewith.
(b) All tenants' security deposits, if any, together
with accrued interest thereon shall be paid and delivered to
the Purchaser at the Closing.
(c) Rents shall be adjusted in the following manner:
(i) Rents received by the Seller as of the
Closing for the calendar month in which the Closing shall
occur shall be adjusted at the Closing as of the date of
Closing;
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(ii) Rents received by the Purchaser or the
Seller from a particular tenant after the date of Closing for
the calendar month in which the Closing occurs shall be
adjusted as of the date of Closing; any adjustments under
this Section 12(c)(ii) shall be made by the Seller and the
Purchaser within ten (10) days after the end of the month in
which the Closing occurs.
(iii)Except as provided in subsection
12(c)(ii) above with respect to rents received by the Seller
or the Purchaser after the date of Closing for the calendar
month in which the Closing shall occur, no adjustment shall
be made for delinquent rent owing to the Seller on the date
of Closing. Payments for rent received by the Purchaser
subsequent to the Closing shall be deemed to be for current
rent when current rent is due and payable unless specified as
being for prior rental due by the payor of the rents. As
percentage rents are paid by Tenants, they shall be
apportioned at the time they are received as of the Closing
Date based upon each respective tenant's lease year or fiscal
year and promptly paid over to the party entitled to same.
To the extent any tenant is entitled to a cumulative offset
against future rent payments due Purchaser, Purchaser shall
receive a credit against the Purchase Price for the full
amount of such offset. Purchaser will make reasonable
efforts to collect other past due rents and charges if any,
for the account of Seller and any such rents and charges, if
received, shall have been received by Purchaser for the
account of Seller and upon receipt, will be promptly remitted
to Purchaser to Seller, only if there are no outstanding
obligations owed to Purchaser by Tenant or Seller. Costs of
collection, if any, and if not collected by Purchaser from
tenants, shall be paid by Seller. Any past due rent and
charges not so collected by Purchaser within the period of
sixty (60) days following the Closing shall remain the
property of Seller who may pursue such remedies for
collection thereof, for its own account, as it may deem
advisable and available to it, but no such action shall
create a default to Purchaser under any lease and/or mortgage
agreements. Purchaser agrees, at Seller's sole cost and
expense, to cooperate with Seller in pursuing any such
remedies against such tenant. All prepaid rents, taxes and
charges for the period following the Closing and all security
or other deposits (including all accrued interest) of tenants
held by Seller shall be paid over by Seller to Purchaser, or,
if such transfer is not practical, then Purchaser shall
receive a credit against the purchaser price in the amount of
such deposits and all accrued interest thereon. Purchaser
agrees to make all rent receipt records and sales volume
records for Tenants paying percentage rent available to
Seller for inspection between Seller and Purchaser. These
provisions shall survive the closing.
13. Risk of Loss.
(a) Until the Closing, the risk of loss by fire or
other casualty to the buildings and improvements on the
Premises, and liability for personal injury or damage to
property of others at the Premises, shall be borne by the
Seller.
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(b) In the event of damage by fire or other
casualty to the Premises prior to the Closing, the Purchaser
shall have the option to terminate this Agreement. If the
Purchaser shall exercise its right to terminate this
Agreement pursuant to this Section l3 (b) the Seller shall
return the Deposit to the Purchaser, and all parties shall be
relieved of all further liabilities and obligations
hereunder. If the Purchaser does not elect to terminate this
Agreement, this Agreement shall remain in full force and
effect and in such event the Seller shall pay over and assign
or cause to be paid over and assigned to the Purchaser at the
Closing any and all proceeds and claims under any casualty
insurance policies insuring the damaged property, together
with the amount of any deductible thereunder (such option
being hereinafter referred to as the "Assignment Option").
Notwithstanding the foregoing, in the event that the cost of
restoration of any casualty is less than Two Hundred Fifty
Thousand and 00/100 Dollars ($250,000.00), the Purchaser
shall only have the right to either (i) elect the Assignment
Option, or (ii) require the Seller to restore the Premises to
substantially its former condition, in which case the Seller
shall be entitled to retain any insurance proceeds on account
of such casualty, provided that if the Purchaser elects
option (ii), then the Closing shall be adjourned until the
restoration is complete, provided further that if the
restoration is not complete within ninety (90) days after the
Purchaser notifies the Seller that it has elected to have the
Seller restore the damage, then the Purchaser shall have the
right to terminate this Agreement, in which event the Deposit
shall be returned to the Purchaser and neither the Purchaser
nor the Seller shall have any further rights or obligations
hereunder. The Purchaser shall give written notice to the
Seller of any election pursuant to this paragraph within
fifteen (15) business days following receipt by the Purchaser
of written notice of any such casualty.
(c) In the event that the Purchaser shall be
subject to a personal injury or property damage claim at any
time relating to an incident occurring at the Premises prior
to the Closing, the Seller shall defend, indemnify and hold
harmless the Purchaser from and against all losses, damages,
costs and expenses (including attorneys' fees) that the
Purchaser may suffer with respect to any such claim or
incident.
14. Condemnation. If, prior to the Closing, all or any
part of the Premises is taken by eminent domain, the
Purchaser shall have the option either (i) to elect not to
acquire the Premises, in which case the Seller shall return
the Deposit to the Purchaser, this Agreement shall terminate
and the parties shall be relieved of all further rights and
obligations with respect thereto, or (ii) to acquire the
Premises, subject to such action, without adjustment in the
Purchase Price and otherwise in accordance with the terms and
provisions of this Agreement, but the Purchaser shall upon
Closing be entitled to the proceeds of all awards made on
account of such taking which would otherwise accrue to the
Seller, provided that is such award, net of any costs
incurred by the Purchaser in connection therewith, is in
excess of $6,925,000.00, then the Seller shall be entitled to
one-half (1/2) of the excess. The Purchaser shall give
written notice to the Seller of any election pursuant to this
Section within five (5) business days following receipt by
the Purchaser of any written notice of such taking or
proposed taking. Failure of the Purchaser to make such
election within said period shall be deemed an election to
proceed to Closing pursuant to clause (ii) above.
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15. Brokers. The Seller and the Purchaser each
represent and agree to and with each other that they
respectively have had no dealings, negotiations or
consultations with any broker in connection with this
Agreement or the sale of the Premises, except for The Xxxxxx
Company (whose commission the Seller shall pay). The Seller
and the Purchaser shall each indemnify and hold the other
free and harmless from all losses, damages, costs and
expenses (including attorneys' fees) that either may suffer
as a result of any claim or suit brought by any broker or
finder who claims that he participated with the Seller or the
Purchaser, as the case may be, in this transaction.
16. The Seller's Representations and Warranties. The
Seller represents and warrants as follows:
(a) The Seller has good and marketable title in
fee simple to the Premises and to the Appurtenant Rights and
the Building Equipment subject only to Permitted
Encumbrances. There is no Personal Property owned by the
Seller and used in connection with the occupancy, operation
or maintenance of the Premises.
(b) There are no legal or other actions,
proceedings or governmental investigations pending or
threatened which affect the Premises or which would
materially adversely affect the ability of the Seller to
carry out its obligations hereunder.
(c) To the best of the Seller's knowledge, with
respect to the current use of the Premises, the Premises
presently comply and will comply at the time of the Closing
in all material respects with all applicable restrictive
covenants, zoning and subdivision ordinances, building and
fire codes, health and environmental laws and regulations,
and all other applicable municipal, state or Federal laws,
rules and regulations ("Laws"). The transactions contemplated
herein will create no violations of any Laws affecting the
Premises or any part thereof (including, without limitation,
subdivision regulations).
(d) The Seller has performed all obligations
required to be performed by the Seller under all leases
affecting the Premises and the Seller is the owner of all the
leases free and clear of all liens, encumbrances or similar
limitations.
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(e) The rent roll information set forth on Exhibit
F attached hereto, listing all tenants of the Premises and
their respective monthly rent, security deposit, lease term
and any existing default, is complete and correct. No
brokerage or leasing commissions or other compensation shall
be or will be due and payable to any person, firm,
corporation or other entity with respect to or on account of
any of the Tenant Leases, and the Seller shall defend,
indemnify and hold the Purchaser harmless from and against
any brokerage or leasing fees due or claimed to be due in
connection with any Tenant Lease, except that a brokerage
commission in an amount equal to 5% of gross rents may be
payable to The Xxxxxx Company upon a renewal of the
Maidenform lease (i.e. no commission agreement has been
signed with The Xxxxxx Company). The aforesaid indemnity
shall service the Closing. Each of the leases described in
Exhibit F hereto and delivered to Purchaser is true and
complete, and each tenant listed thereon is open and
operating and Seller has not received any notice of closing
and is not aware of any bankruptcy or threatened bankruptcy
by any tenant, except that Maidenform filed for Chapter 11
Bankruptcy protection prior to signing their lease, and
although said Bankruptcy action is still outstanding, the
Bankruptcy Court approved the Maidenform lease. Except with
respect to the leases described in Exhibit F hereto, there
are no leases executed as to the Premises or any part
thereof, and no person, other than tenants, has any right of
possession of the Premises or any part thereof or any options
thereto, no presently effective rent concessions have been
given any tenant, Seller has no ownership interest, either
directly or indirectly, in any tenant, no rent has been paid
in advance by any tenant respecting a period subsequent to
the Closing (except for the month in which the Closing occurs
or except as noted in Exhibit F), no Tenant has any claim
against Seller for any deposits or any other monetary
entitlement or promised or committed improvements or
obligations other than pursuant to the terms of its lease
with respect to sums specified as security or tax deposits in
Exhibit F, no Tenant has any option to extend or renew its
Lease (except as specified in Exhibit F) or to purchase any
portion of the Premises, and no tenant has asserted or
threatened, nor does Seller have any knowledge of any defense
or offsets to rent accruing after the Closing Date. There
are no security deposits under any of the Leases described in
Exhibit F. Except as specified in Exhibit F, each of the
leases has been executed and no default or breach exists on
the part of any tenant or of the landlord thereunder. There
are no disputes or threatened disputes between any tenant and
Seller with regard to the premises occupied by tenant,
utilities required to be furnished, taxes, common area
maintenance charges, or any other charges. Seller has fully
completed all tenant improvements and repairs specified in
any lease to be the responsibility of the landlord
thereunder. Seller has not received any notice of any
default or breach on the part of the landlord under any lease
which has not been heretofore cured or satisfied and there
does not exist any such default or breach on the part of the
landlord. No commissions and/or fees have been incurred or
are owed (except for the potential commission that would be
due with respect to the Maidenform lease, as set forth
above), nor will any be incurred or owed prior to Closing
with respect to any Tenant Lease except as set forth on
Exhibit F hereto.
(f) There are no service, maintenance or similar
contracts or agreements affecting the Premises, except as set
forth on Exhibit N attached hereto.
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(g) The execution and delivery of this Agreement
and the performance by the Seller of all transactions
contemplated by this Agreement to be performed by the Seller
(including the execution and delivery of all documents
required by this Agreement to be executed and delivered by
the Seller):
(i) Will not breach any contractual covenants
or restrictions between the Seller and any third party or
affecting the Premises nor create or cause to be created any
mortgage, lien, encumbrance or charge on the Premises other
than those permitted by this Agreement;
(ii) Are not threatened with invalidity or
unenforceability by any action, proceeding or investigation
pending or threatened by or against the Seller or the
Premises.
(h) The Seller has received no notice of any
condemnation or eminent domain proceedings or negotiations
for the purchaser or any of the Premises in lieu of
condemnation and, to the best of the Seller's knowledge, no
condemnation or eminent domain proceedings or negotiations
have been commenced or threatened in connection with the
Premises or any portion of it.
(i) The Commercial Property Damage Insurance and
Commercial General
Liability Insurance presently carried by the Seller
respecting the Property is as follows: all-risk property
coverage on a 100% replacement cost basis; not less than
$1,000,000.00 of liability coverage; one year's loss of rent
coverage.
(j) All public utilities required for the
operation of the Premises (including, without limitation,
telephone, electric, gas, public water and public sanitary
sewer) enter the Premises through adjoining public streets
and are connected to and servicing the Premises.
(k) The Premises contain approximately 1.17 acres.
All buildings and improvements on the Premises are located
entirely within the boundary lines of the Premises.
(1) To the best of the Seller's knowledge, there
has been no violation of the Uncontrolled Hazardous Substance
Sites Act (38 MRSA Section 1361 et. seq.) with respect to the
Premises and/or "Hazardous Substance" (as such term is
defined in the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, 42 U.S.C.
906l et seq. and/or any environmental contamination
(including, but not limited to asbestos and polychlorinated
biphenyl fluids ("PCB's") released on or onto or contained
within the Premises.
(m) All matters known to the Seller which might
have a material adverse effect on the ownership, maintenance
and operation of the Premises have been disclosed to the
Purchaser.
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(n) The Premises are structurally sound and all
systems of the Property (including without limitation, septic
systems, electrical systems, heating systems, air
conditioning systems and plumbing systems) are in good
working order and condition. The Premises are free of vermin
and termites and other wood ingesting insects.
(o) Attached hereto as Exhibit O is a list of true
and correct income statements and certain fixed expense
statements for the Property for calendar years 1995 and 1996
and year-to-date through November 30th for calendar year 1997.
(p) To the best of Seller's knowledge, the
Premises do not contain lead paint, asbestos insulation or
other material, urea formaldehyde insulation, or any other
toxic, radon-containing or carcinogenic chemicals or
insecticides.
(q) There are no underground oil tanks located at
the Premises.
(r) The Note, Mortgage and Assignment of Leases
that are described on Exhibit P attached hereto are true
copies of all of the loan documents that evidence the
Mortgage, and in connection therewith:
(i) Said loan documents have not been
modified or amended, except as set forth on Exhibit P.
(ii) The principal balance of the Note was
$3,877,728.00 as of December 31, 1997. The principal balance
has been further reduced as a result of the January, 1998
payment of principal and interest which was paid.
(iii)Interest on the Note has been paid
through December 31, 1997.
(iv) The Seller is not in default under the
Note and other loan documents and has not received a notice
of default thereunder from the Mortgagee, except as set forth
on Exhibit P.
(v) The Seller has received no notice that
the Mortgagee has assigned the Mortgage.
(vi) The Mortgage is assumable upon payment of
a 1% assumption fee.
(s) There are no warranties applicable to the
Premises or the Building Equipment.
17. Conditions to Closing. The Purchaser's obligations
to close hereunder are conditioned upon the following:
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(a) Delivery at the Closing of all documents
required to be delivered by the Seller pursuant to Section 8
hereof.
(b) All representations and warranties of the
Seller set forth in Section 16 hereof being true and correct
as of the Closing.
(c) the Mortgagee permitting, in writing, the
assumption of the Mortgage by the Purchaser at the Closing.
In connection therewith, the Seller shall use commercially
reasonable efforts to obtain such permission, and shall
cooperate with the Purchaser, in any reasonable way that is
necessary, in its dealings with the Mortgagee. If such
permission is not obtained on or before the Closing Date,
then the Purchaser shall have the right to terminate this
Agreement, by written notice to the Seller, in which event
this Agreement shall be void with no recourse to the parties,
except that the Deposit shall be promptly refunded to the
Purchaser.
18. Default By the Seller.
(a) The Seller shall be in default under this
Agreement in the following events:
(i) If the Seller shall fail to perform and
comply with the agreements and conditions, including, without
limitation, the conditions set forth in Paragraphs 17(a) and
(b) above, which are required to be performed or complied
with by the Seller pursuant to this Agreement; or
(ii) If the warranties and representations
contained in Section 16 above shall not be true in all
material respects on the Closing.
(b) If the Seller shall be in default under this
Agreement, then the Escrow Agent shall return the Deposit to
the Purchaser, and, in addition, the Purchaser shall be
entitled to terminate this Agreement by written notice to the
Seller and/or pursue any other remedy available to the
Purchaser in law or equity.
19. Default By the Purchaser.
(a) The Purchaser shall be in default under this
Agreement in the event that the Purchaser shall fail to
perform and comply with the agreements and conditions which
are required to be performed or complied with by the
Purchaser pursuant to this Agreement.
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(b) If the Purchaser shall be in default under
this Agreement, the Seller shall be entitled to retain the
Deposit as liquidated damages, and all other rights and
liabilities of the parties hereto by reason of this Agreement
shall be deemed at an end. The parties agree that the
retention of sums paid hereunder shall be considered as full
liquidated damages by reason of the uncertainty and
impossibility of ascertaining actual damage suffered by the
Seller. Both parties agree that the aforesaid amount
constitutes a reasonable forecast of damages which would be
sustained by the Seller in the event of the Purchaser's
breach.
20. Prior Agreements. This Agreement constitutes the
entire agreement by and between the parties hereto affecting
the Premises and supersedes any and all previous agreements,
written or oral, between the parties and affecting the
Premises. This Agreement may not be modified except by an
instrument in writing signed by the parties hereto.
21. Survival of All Representations and Warranties. All
representations, warranties, covenants and agreements of the
Seller and the Purchaser contained herein shall survive the
Closing and shall not merge in the Deed to be given by the
Seller even though not inserted or otherwise included in such
Deed.
22. Applicable Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of
Maine.
23. Successors and Assigns. The rights and obligations
contained herein shall be binding upon and inure to the
benefit of the Seller, the Purchaser, and their respective
successors and assigns, provided that the Purchaser shall not
have the right to assign this Agreement, except to an entity
in which Xxxxx Xxxxxxx has a direct or indirect ownership
interest.
24. Waiver of Conditions. Notwithstanding any provision
of this Agreement, either party may at its option waive any
provision that is a condition to his or her performance
hereunder and close the transaction.
25. Notices. Any notice, report, request or demand
required, permitted, or desired to be given under this
Agreement shall be in writing and shall be deemed to have
been properly served, for all purposes only if sent by
registered or certified mall, or nationally recognized
overnight courier, return receipt requested, to the
respective party at the addresses set forth below, and shall
be deemed to have been given or served only on the date
received or rejected:
If to the Purchaser:The Grove Corporation
000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
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Copy to: Rogin, Nassau, Xxxxxx, Xxxxxxx &Hirtle, LLC
CityPlace I, 22nd Floor
Hartford, CT 06103
Attn: Xxxxx X. Xxxxxxx, Esq.
If to the Seller: Freeport Merchants Limited Partnership
c/o Gunn Financial, Inc.
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Copy to: Abrahms, Roberts, Klickstein & Levy
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxxx Xxxx, Esq.
IN WITNESS WHEREOF, the Seller and the Purchaser have
hereunto set their hands and seals as of the day and year
first above written.
Signed, Sealed, and Delivered in the Presence of:
THE GROVE CORPORATION
/s/ Xxxxxxxx Xxxxxx By: /s/ Xxxxxx X. XxXxxxxx
------------------- ----------------------
Xxxxxxxx Xxxxxx Xxxxxx X. XxXxxxxx
Its Treasurer
FREEPORT MERCHANTS LIMITED
PARTNERSHIP
By: SEXTANT, INC., general partner
By:
/s/ /s/ Xxxxxx Xxxx
--------------------- ----------------------
Xxxxxx Xxxx
Its President
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STATE OF CONNECTICUT)
) ss.
COUNTY OF )
On this 12th day of January, 1998 personally
appeared Xxxxxx X. XxXxxxxx as Treasurer of The Grove
Corporation signer and sealer of the foregoing instrument,
and acknowledged the same to be his free act and deed and the
flee act and deed of said corporation, before me.
/s/ Xxxxxxxx XxXxxxx
----------------
Notary Public/Commissioner of the Superior Court
COMMONWEALTH OF MASSACHUSETTS)
) ss:
COUNTY OF SUFFOLK)
On this 9th day of January l998 personally
appeared Xxxxxx Xxxx, as President of Sextant, Inc., general
partner of Freeport Merchant Limited Partnership signer and
sealer of the foregoing instrument, and acknowledged the same
to be his free act and deed and the free act and deed of said
corporation and partnership, before me.
/s/ Xxxxxxxx Xxxxx
--------------
Notary Public
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