Exhibit 10.4
AGREEMENT OF PURCHASE AND SALE
00 XXXXX XXXX, XXXXXXXXXX, XXXXXXXXXXXXX
This Agreement of Purchase and Sale ("Agreement") is made and entered into
by and between Purchaser and Seller.
RECITALS
A. Defined terms are indicated by initial capital letters. Defined
terms shall have the meaning set forth herein, whether or not such terms are
used before or after the definitions are set forth.
B. Purchaser desires to purchase the Property and Seller desires to
sell the Property, all upon the terms and conditions set forth in this
Agreement.
NOW, THEREFORE, in consideration of the mutual terms, provisions, covenants
and agreements set forth herein, as well as the sums to be paid by Purchaser to
Seller, and for other good and valuable consideration, the receipt and
sufficiency of which are acknowledged, Purchaser and Seller agree as follows:
ARTICLE I - BASIC INFORMATION
1.1 CERTAIN BASIC TERMS. The following defined terms shall have the
meanings set forth below:
1.1.1 SELLER: W9/TIB III Realty, L.L.C., a Delaware limited
liability company
1.1.2 PURCHASER: Hittite Microwave Corporation, a
Delaware corporation.
1.1.3 PURCHASE PRICE: $3,638,250.00
1.1.4 XXXXXXX MONEY: $285,000 (the "Xxxxxxx Money"),
including interest thereon, to be
deposited in accordance with SECTION
3.1 below.
1.1.5 TITLE COMPANY: Commonwealth Land Title Insurance
Company Attention: Louis Preveza
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
1.1.6 ESCROW AGENT: The Escrow Agent shall be the Title
Company.
1.1.7 BROKERS: Xxxxxxx & Xxxxxxxxx, Inc
000 Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, XX 00000-0000
Attention: Xxxxx X. Xxxxxx
Telephone:(000) 000-0000
Facsimile: (000) 000-0000
Xxxxxxxxx & Xxxx Colliers
000 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
1.1.8 EFFECTIVE DATE: The date on which this Agreement is
executed by the latter to sign of
Purchaser or Seller, as indicated on
the signature page of this Agreement.
1.1.9 PROPERTY INFORMATION The Property Information was
DELIVERY DATE: delivered to on February 12, 2004.
1.1.10 TITLE AND SURVEY The period ending upon expiration of
REVIEW PERIOD: the Inspection Period.
1.1.11 INSPECTION PERIOD: The period that commenced on the
Property Information Delivery Date
and will expire on the Effective
Date.
1.1.12 CLOSING DATE: April 28, 2004, as may be extended by
Seller pursuant to Section 7.1.
1.1.13 THE LEASES: Those certain lease agreements by and
between Seller and Celestica
Corporation, dated December 22, 1999,
and by and between Seller and
Thermedics Detection, Inc., dated
April 1, 2000, each as may have been
amended, under which tenants have
been leasing from Seller certain
premises in the building located on
the Real Property. Collectively,
Celestica Corporation and Thermedics
Detection, Inc. are referred to
herein as "Tenants," and individually
as "Tenant."
1.2 CLOSING COSTS. Closing costs shall be allocated and paid as
follows:
Title Commitment required to be delivered pursuant to SECTION 5.1 Purchaser
Premium for standard form Title Policy required to be delivered pursuant to Purchaser
SECTION 5.1
Premium for any upgrade of Title Policy for extended or additional coverage and Purchaser
any endorsements desired by Purchaser, any
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inspection fee charged by the Title Company, tax certificates, municipal and
utility lien certificates, and any other Title Company charges
Costs of Survey and/or any revisions, modifications or recertifications thereto Purchaser
Costs for UCC Searches Purchaser
Recording Fees Purchaser
Any deed taxes, documentary stamps, transfer taxes, intangible taxes, mortgage Seller
taxes or other similar taxes, fees or assessments
Any escrow fee charged by Escrow Agent for holding the Xxxxxxx Money or conducting Purchaser 1/2
the Closing Seller 1/2
Recording fees for title clearing instruments, as set forth in Section 5.3. Seller
Real Estate Sales Commission to Brokers Seller
All other closing costs, expenses, charges and fees Each party as to its own legal
fees and disbursements,
otherwise in accordance with
Massachusetts conveyancing
custom.
1.3 NOTICE ADDRESSES:
Purchaser: Copy to:
Hittite Microwave Corporation Goulston & Storrs, P.C
00 Xxxxxxxxx Xxxxx 000 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000 Xxxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxxx Attention: Xxxxxxx X. Xxxxx, Esq.
Telephone: (000) 000-0000 Telephone: (000) 000-0000
Facsimile: (000) 000-0000 Facsimile: (000) 000-0000
Seller: Copy to:
W9/TIB III Realty, L.L.C. W9/TIB III Realty, L.L.C.
c/o Archon Group, L.P. c/o Archon Group, L.P.
000 00xx Xxxxxx XX Xxxxx 000 600 East Las Colinas
Washington, DC 00000 Xxxxxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attention: Asset Manager Attention: General Counsel
Telephone: (000) 000-0000 Telephone: (000) 000-0000
Facsimile: (000) 000-0000 Facsimile: (000) 000-0000
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Copy to:
Xxxxxx, Hall & Xxxxxxx
00 Xxxxx Xxxxxx Xxxxxx, XX 00000
Attention: Xxxx Xxxxxxx
Xxxxxxxxx, P.C.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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1.4 INDEX OF CERTAIN ADDITIONAL DEFINED TERMS:
Term Section
---- -------
Additional Property Information........................................ 4.2
Asset Manager........................................................ 12.18
Asset Manager's Employee............................................... 9.3
Assignment........................................................... 7.3.2
Casualty Notice........................................................ 6.2
CERCLA................................................................ 11.3
Closing................................................................ 7.1
Deed................................................................. 7.3.1
Designated Representative(s)......................................... 12.18
ERISA................................................................ 7.4.2
Hazardous Materials................................................... 11.4
Improvements ........................................................ 2.1.1
Intangible Personal Property......................................... 2.1.3
Land................................................................. 2.1.1
Material Damage...................................................... 6.2.1
Operating Statements................................................... 4.1
Permitted Exceptions................................................... 5.3
Property 2.1 Property Documents........................................ 4.4
Property Information................................................... 4.1
Real Property........................................................ 2.1.1
Service Contracts.................................................... 2.1.3
Survey................................................................. 5.2
Survival Period........................................................ 9.3
Taxes.................................................................. 8.1
Title Commitment....................................................... 5.1
Title Policy........................................................... 5.1
Title Status........................................................... 5.4
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ARTICLE II - PROPERTY
2.1 Subject to the terms and conditions of this Agreement, Seller agrees
to sell to Purchaser, and Purchaser agrees to purchase from Seller, the
following property (collectively, the "PROPERTY"):
2.1.1 REAL PROPERTY. The land described in Exhibit A attached
hereto (the "LAND"), together with (1) all improvements located thereon
("IMPROVEMENTS"), (ii) all and singular the rights, benefits, privileges,
easements, tenements, hereditaments, and appurtenances thereon or in
anywise appertaining thereto, (iii) without warranty, all right, title, and
interest of Seller, if any, in and to all strips and gores and any land
lying in the bed of any street, road or alley, open or proposed, adjoining
such Land; and (iv) all fixtures, equipment, and other personal property,
if any, owned by Seller and attached to, and used in connection with, the
operation, maintenance or repair of the Improvements (collectively, the
"REAL PROPERTY"). Seller agrees to convey to Purchaser good and clear,
record and marketable title to the Real Property, subject only to the
Permitted Encumbrances (defined below).
2.1.2 TANGIBLE PERSONAL PROPERTY. All of Seller's right, title and
interest, without warranty, except as expressly provided otherwise in the
Assignment (as defined in Section 7.2.3), in the equipment, machinery,
furniture, furnishings, supplies and other tangible personal property, if
any, owned by Seller and now or hereafter located in and used in connection
with the operation, ownership or management of the Real Property, but
specifically excluding any items of personal property owned by Tenants at
or on the Real Property and further excluding any items of personal
property owned by third parties and leased to Seller or Seller's property
manager, and specifically including the items listed on EXHIBIT A of the
Assignment (collectively, the "TANGIBLE PERSONAL PROPERTY").
2.1.3 INTANGIBLE PERSONAL PROPERTY. All of Seller's right, title
and interest, if any, without warranty, in all intangible personal property
related to the Real Property and the Improvements, including, without
limitation, all to the extent assignable: all trade names and trade marks
associated with the Real Property and the Improvements, including Seller's
rights and interests, if any, in the name of the Real Property; the plans
and specifications and other architectural and engineering drawings for the
Improvements, if any (to the extent assignable without cost to Seller);
contract rights related to the operation, ownership or management of the
Real Property, including maintenance, service, construction, supply and
equipment rental contracts, if any, (collectively, the "SERVICE
CONTRACTS"), to the extent that Seller's obligations yet to be performed
thereunder are expressly assumed by Purchaser pursuant to this Agreement;
warranties (subject to the provisions of the next sentence); governmental
permits, approvals and licenses, if any (to the extent assignable without
cost to Seller); and telephone exchange numbers (to the extent assignable
without cost to Seller (all of the items described in this SUBSECTION 2.1.3
collectively referred to as the "INTANGIBLE PERSONAL PROPERTY"). Seller
shall assign any roof warranty to Purchaser at no cost to
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Purchaser. Any other warranty shall be assigned to Purchaser only to the
extent assignable without cost to Seller, unless Purchaser elects to pay
such cost, in which case Seller shall advise Purchaser of the cost to
assign any such warranty and Purchaser shall pay the actual, out-of-pocket
cost of such assignment.
ARTICLE III - XXXXXXX MONEY
3.1 DEPOSIT AND INVESTMENT OF XXXXXXX MONEY. Simultaneously upon its
execution and delivery of this Agreement, Purchaser shall deposit the Xxxxxxx
Money with Escrow Agent. Escrow Agent shall invest the Xxxxxxx Money in
government insured interest-bearing accounts satisfactory to Seller and
Purchaser, shall not commingle the Xxxxxxx Money with any funds of Escrow Agent
or others, and shall promptly provide Purchaser and Seller with confirmation of
the investments made. Such account shall have no penalty for early withdrawal,
and Purchaser accepts all risks with regard to such account.
3.2 FORM; FAILURE TO DEPOSIT. The Xxxxxxx Money shall be in the form of
a certified or cashier's check or the wire transfer to Escrow Agent of
immediately available U.S. federal funds. If Purchaser fails to timely deposit
the Xxxxxxx Money within the time period required, Seller may terminate this
Agreement by written notice to Purchaser, in which event any Xxxxxxx Money that
has previously been deposited by Purchaser with Escrow Agent shall be delivered
to Seller and thereafter the parties hereto shall have no further rights or
obligations hereunder, except for rights and obligations which, by their terms,
survive the termination hereof.
3.3 DISPOSITION OF XXXXXXX MONEY. The Xxxxxxx Money shall be applied as
a credit to the Purchase Price at Closing. In the event of a termination of this
Agreement by either Seller or Purchaser for any reason permissible under this
Agreement, Escrow Agent is authorized to deliver the Xxxxxxx Money to the party
hereto entitled to same pursuant to the terms hereof on or before the tenth
(10th) business day following receipt by Escrow Agent and the non-terminating
party of written notice of such termination from the terminating party, unless
the other party hereto notifies Escrow Agent that it disputes the right of the
other party to receive the Xxxxxxx Money, in which event Escrow Agent shall not
release the Xxxxxxx Money until and only in compliance with (i) joint
instructions from Purchaser and Seller directing such release or (ii) a court
order directing such release. In such event, Escrow Agent may interplead the
Xxxxxxx Money into a court of competent jurisdiction in the county in which the
Xxxxxxx Money has been deposited. All attorneys' fees and costs and Escrow
Agent's costs and expenses incurred in connection with such interpleader shall
be assessed against the party that is not awarded the Xxxxxxx Money, or if the
Xxxxxxx Money is distributed in part to both parties, then in the inverse
proportion of such distribution.
Escrow Agent shall be entitled to rely upon the authenticity of any
signature and the genuineness and validity of any writing received by Escrow
Agent relating to this Agreement. Escrow Agent is not responsible for the
nature, content, validity or enforceability of any of the Closing deliveries
except for those documents prepared by Escrow Agent.
In the event of any disagreement between the parties hereto resulting in
conflicting instructions to, or adverse claims or demands upon Escrow Agent with
respect to the release of the Xxxxxxx Money or the Closing deliveries, Escrow
Agent shall refuse to comply with any such
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instruction, claim or demand so long as such disagreement shall continue and in
so refusing Escrow Agent shall not release the Xxxxxxx Money or the Closing
deliveries. Escrow Agent shall not be, or become, liable in any way for its
failure or refusal to comply with any such conflicting instructions or adverse
claims or demands and it shall be entitled to continue to refrain from acting
until such conflicting instructions or adverse claims or demands (a) shall have
been adjusted by agreement and it shall have been notified in writing thereof by
the parties hereto, or (b) shall have finally been determined in a court of
competent jurisdiction. In the alternative, Escrow Agent may, but shall not be
obligated to, file a suit in interpleader for a declaratory judgment for the
purpose of having the respective rights of the claimants adjudicated and may
deliver to the court the Xxxxxxx Money.
Escrow Agent shall not be responsible for (i) any fluctuations in the
interest rate applicable to any cash held by it pursuant to or by virtue of this
Agreement, or (ii) the validity, sufficiency, collectability, or legal effect or
any instrument deposited with Escrow Agent.
The parties hereto do hereby certify that they are aware that the Federal
Deposit Insurance Corporation ("FDIC") coverages apply only to a cumulative
maximum amount of $100,000 for each individual deposit for all of depositor's
accounts at the same or related institutions. The parties hereto further
understand that certain banking instruments such as, but not limited to,
repurchase agreements and letters of credit are not covered at all by FDIC
insurance.
Further, the parties hereto understand that Escrow Agent assumes no
responsibility for, nor will the parties hereto hold Escrow Agent liable for,
any loss occurring which arises from the fact that the amount of the Xxxxxxx
Money may cause the aggregate amount of any individual depositor's accounts to
exceed $100,000 and that the excess amount is not insured by the FDIC or that
FDIC insurance is not available on certain types of bank instruments.
ARTICLE IV - DUE DILIGENCE
4.1 DUE DILIGENCE MATERIALS DELIVERED TO PURCHASER. On the Property
Information Delivery Date, Seller delivered to Purchaser the following
information (the "PROPERTY INFORMATION"), and Purchaser hereby acknowledges
receipt of the Property Information:
4.1.1 FINANCIAL INFORMATION. Copy of operating statements and a
summary of capital expenditures pertaining to the Property for the twelve
(12) months preceding the Effective Date of this Agreement ("OPERATING
STATEMENTS");
4.1.2 ENVIRONMENTAL REPORTS. Copy of any environmental,
geotechnical and soil reports or site assessments related to the Property
listed on EXHIBIT B;
4.1.3 TAX STATEMENTS. Copy of ad valorem tax statements relating
to the Property for the current tax fiscal year and the immediately
preceding fiscal year;
4.1.4 TITLE AND SURVEY. Copy of Seller's most current title
insurance information and survey of the Property;
4.1.5 SERVICE CONTRACTS. Copies of the Service Contracts, listed
on EXHIBIT C;
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4.1.6 PLANS AND SPECIFICATIONS. To the extent existing and in
Seller's possession, building plans and specifications relating to the
Property and the improvements thereon;
4.1.7 ENGINEERING REPORTS. To the extent existing and in Seller's
possession, engineering reports, including without limitation any
structural, plumbing, electrical, mechanical and civil reports;
4.1.8 LICENSES, PERMITS AND CERTIFICATES OF OCCUPANCY. To the
extent existing and in Seller's possession, licenses, permits, approvals,
and certificates of occupancy relating to the Property;
4.1.9 LITIGATION. Copies of any correspondence in Seller's
possession regarding any pending or threatened litigation affecting the
Property, or to the extent the same would have an adverse affect on the
Property or the transaction contemplated hereby, the Seller; and
4.1.10 MAINTENANCE RECORDS AND WARRANTIES. To the extent existing
and in Seller's possession, maintenance work orders for the twelve (12)
months preceding the Effective Date and warranties, if any, on roofs, air
conditioning units, fixtures and equipment.
As used in this Agreement, the term "in Seller's possession" or words to
similar effect shall mean items in the possession of Seller, the Asset Manager,
or the Property Manager.
4.2 ADDITIONAL PROPERTY INFORMATION. To the extent such items are in
Seller's possession, Seller did make available to Purchaser for Purchaser's
review during the Inspection Period, at Seller's option at either the offices of
Seller's Asset Manager or property manager or at the Property, any additional
materials in the files maintained by Seller, its Asset Manager, or property
manager, regarding the condition of the Property or the improvements thereon,
and Seller's operation of the Property (the "ADDITIONAL PROPERTY INFORMATION"),
and Purchaser at its expense shall have the right to make copies of same.
4.3 ACCESS AND CONFIDENTIALITY AGREEMENTS. As set forth in the Access
and Due Diligence Agreement executed by Purchaser and Seller on February 5, 2004
(the "ACCESS AGREEMENT," a copy of which is attached hereto as EXHIBIT D),
Purchaser shall have reasonable access to the Property prior to the Closing at
all reasonable times during normal business hours for the purpose of conducting
inspections and tests of the Property. Purchaser and Seller also executed a
Confidentiality Agreement dated February 12, 2004, respecting certain Property
Documents provided to Purchaser (the "CONFIDENTIALITY AGREEMENT," a copy of
which is attached hereto as EXHIBIT E, the Access Agreement and the
Confidentiality Agreement are collectively referred to herein as the "DUE
DILIGENCE AGREEMENTS"). Notwithstanding any provisions to the contrary in the
Due Diligence Agreements (including but not limited to the termination
provisions therein), the Due Diligence Agreements are incorporated herein in
full. Notwithstanding any provision contained in this Agreement or the Due
Diligence Agreements to the contrary, upon Closing the Due Diligence Agreements
shall become void, except that Section 4 of the Access Agreement and Sections 1
and 2 of the Confidentiality Agreement shall survive
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the Closing. Nothing in this Section 4.3 shall affect the rights and obligations
of the parties set forth in Section 12.8 below.
4.4 COMPLETION OF DUE DILIGENCE. Purchaser acknowledges and agrees that
it has received or had access to all the Property Information and the Additional
Property Information (collectively, the "PROPERTY DOCUMENTS"), that it has
examined, inspected, and investigated the Property Documents and the Property,
and has: (a) determined that the Property is acceptable to Purchaser; (b)
obtained all necessary internal approvals; and (c) satisfied all other
contingencies of Purchaser to its satisfaction. Pending satisfaction by Seller
of the closing conditions described in Section 7.2 and subject to Seller's
obligation to comply with the requirements in Section 5.4, as of the Effective
Date, Purchaser is prepared to proceed expeditiously to Closing.
4.5 NO REPRESENTATION OR WARRANTY BY SELLER. Purchaser acknowledges
that, except as expressly set forth in this Agreement, neither Seller nor Asset
Manager has made nor makes any warranty or representation regarding the truth,
accuracy or completeness of the Property Documents or the source(s) thereof.
Purchaser further acknowledges that some if not all of the Property Documents
were prepared by third parties other than Seller and Asset Manager. Seller and
Asset Manager expressly disclaim any and all liability for representations or
warranties, express or implied, statements of fact and other matters contained
in such information, or for omissions from the Property Documents, or in any
other written or oral communications transmitted or made available to Purchaser.
Purchaser shall rely solely upon its own investigation with respect to the
Property, including, without limitation, the Property's physical, environmental
or economic condition, compliance or lack of compliance with any ordinance,
order, permit or regulation or any other attribute or matter relating thereto.
Seller and Asset Manager have not undertaken any independent investigation as to
the truth, accuracy or completeness of the Property Documents and are providing
the Property Documents solely as an accommodation to Purchaser.
4.6 RETURN OF DOCUMENTS AND REPORTS. If this Agreement terminates for
any reason other than Seller's default hereunder, Purchaser shall promptly
return and/or deliver to Seller all Property Documents and copies thereof.
Additionally, if this Agreement terminates for any reason other than Seller's
default, then Purchaser shall deliver to Seller copies of all third party
reports, investigations and studies regarding the physical condition of the
Property (collectively, the "REPORTS" and, individually, a "REPORT") prepared
for Purchaser in connection with its due diligence review of the Property. The
Reports shall be delivered to Seller without any representation or warranty as
to the completeness or accuracy of the Reports or any other matter relating
thereto, and Seller shall have no right to rely on any Report without the
written consent of the party preparing same. Purchaser's obligation to deliver
the Property Documents and the Reports to Seller shall survive the termination
of this Agreement.
4.7 SERVICE CONTRACTS. Purchaser hereby agrees to assume the obligations
arising from and after the Closing Date under that certain Service Contract
listed on EXHIBIT C attached hereto, and Seller shall have no obligation to
terminate said Service Contract.
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ARTICLE V - TITLE AND SURVEY
5.1 TITLE COMMITMENT. Purchaser shall cause to be prepared and delivered
to Seller, reasonably promptly following Purchaser's receipt of the same from
the Title Company: (1) a firm commitment for title insurance (the "TITLE
COMMITMENT") Issued by the Title Company, in the amount of the Purchase Price,
with Purchaser as the proposed insured on the title policy to be issued upon the
Closing (the "TITLE POLICY"); and (ii) copies of all documents of record
referred to in the Title Commitment as exceptions to title to the Property.
Purchaser agrees to provide Seller with any and all updated drafts of the Title
Commitment provided by the Title Company, reasonably promptly following
Purchaser's receipt of same.
5.2 NEW OR UPDATED SURVEY. Purchaser may elect to obtain a new survey or
revise, modify, or re-certify an existing survey ("SURVEY") as necessary in
order for the Title Company to delete the survey exception from the Title Policy
or to otherwise satisfy Purchaser's objectives.
5.3 TITLE REVIEW. Subject to Section 5.4 below, prior to the expiration
of the Title and Survey Review Period or within ten (10) business days after the
updated Survey is issued, whichever is earlier (the "TITLE REVIEW PERIOD"),
Purchaser shall review title to the Property and deliver to Seller a written
notice ("TITLE OBJECTION NOTICE") of any matters of record as of the date of the
Title Commitment, other than Permitted Exceptions (defined below), which, if not
removed or otherwise addressed prior to Closing, would preclude Seller from
conveying good and clear record and marketable title to the Property to
Purchaser at Closing ("TITLE OBJECTIONS"). Any Title Objection Notice shall
describe the Title Objections referenced therein in reasonable detail and shall
contain complete copies of all recorded instruments creating or related to the
same. If Purchaser fails to deliver a Title Objection Notice to Seller prior to
the expiration of the Title Review Period, any matters of record as of the date
of the Title Commitment shall constitute Permitted Exceptions, except for any
Monetary Encumbrances (defined below) voluntarily created by Seller, Asset
Manager, or any entity affiliated with either of them.
5.3.1 MONETARY ENCUMBRANCES. If Purchaser delivers a Title
Objection Notice prior to the expiration of the Title Review Period with
respect to any Title Objection that is a lien, mortgage, assignment of
rents, financing statement, or other encumbrance created by or through
Seller or any entity affiliated with Seller (and, without limiting the
general application of the foregoing, judgment liens against Seller or any
entity affiliated with Seller for liquidated amounts of money, mechanics'
liens based on work or materials contracted for by Seller or any entity
affiliated by Seller, and tax liens shall constitute encumbrances created
by or through Seller, but any prejudgment or other attachment of the
Property shall not) that secures the payment of money or can be bonded over
(collectively, "Monetary Encumbrances" and each a "Monetary Encumbrance"),
Seller shall notify Purchaser within ten (10) business days after receipt
of such Title Objection Notice, either (1) that Seller has paid the amount
necessary to remove all Monetary Encumbrances from the record title to the
Property and will, on or prior to the Closing Date, obtain recordable
instruments or other documentation sufficient to cause the Title Company to
delete such matters from the Title Policy for no additional premium, or
(ii) that Seller agrees to pay on the Closing Date the sum required to
remove all Monetary Encumbrances from the record title to the Property
(which sum may be paid out of the
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Purchase Price to be received at Closing), pursuant to arrangements
reasonably acceptable to Seller and Purchaser, and will on the Closing
Date, obtain recordable instruments or other documentation sufficient to
cause the Title Company, for no additional premium, to delete all Monetary
Encumbrances from the Title Policy. If Seller fails to notify Purchaser
within such 10-day period, such failure shall constitute an election to
proceed under clause (ii) in the preceding sentence. Notwithstanding the
foregoing, in the event that Seller is unable with diligent efforts to
obtain on or before Closing a recordable instrument to release or discharge
any such Monetary Encumbrance or to otherwise provide such documentation
and/or assurances as may be required by the Title Company for deletion of
the exception(s) for any such Monetary Encumbrance from the Title Policy,
Purchaser agrees to extend the date of Closing for up to an additional
thirty (30) days to allow Seller additional time to obtain such recordable
instrument. For the purposes of this Section 5.3 only, diligent efforts by
Seller shall include, but not be limited to, posting a bond and/or
indemnifying the Title Company to the reasonable satisfaction of the Title
Company. If Seller shall fail to release or discharge any such Monetary
Encumbrance or to otherwise cause the Title Company to delete from the
Title Policy any exception for any such Monetary Encumbrance at the
Closing, as the same may be extended as aforesaid, then Purchaser, at
Purchaser's option, shall elect either (x) to terminate this Agreement, in
which event, Purchaser shall be entitled to the prompt return of the
Xxxxxxx Money and, except as expressly provided otherwise in this
Agreement, this Agreement shall be of no further force and effect and the
parties shall have no further rights, obligations or liabilities hereunder,
or (y) Purchaser may proceed with the Closing and deduct from the Purchase
Price otherwise payable hereunder such amount(s) as may be required in
order to discharge any and all such Monetary Encumbrances.
5.3.2 NONMONETARY ENCUMBRANCES. If Purchaser delivers a Title
Objection Notice prior to the expiration of the Title Review Period with
respect to any encumbrance that is not a Monetary Encumbrance
(collectively, "Nonmonetary Encumbrances"), Seller shall use reasonable
efforts to remove or cure the same, provided that (i) Seller shall not be
required to incur more than Fifty Thousand Dollars ($50,000.00) in costs
and expenses (including, without limitation, attorney's fees) (the "Title
Cap") in the aggregate to cure all Nonmonetary Encumbrances, and (ii)
Seller shall not be obligated to make any effort to remove or cure the same
if Seller reasonably determines that the cost of cure will exceed the Title
Cap. If, within thirty (30) days after the Seller's receipt of a Title
Objection Notice, the Seller has failed to remove or cure the Nonmonetary
Encumbrances, Seller shall so notify Purchaser within three (3) days
following the expiration of such 30-day period and Purchaser shall, as its
sole and exclusive remedy, on or before the tenth (10th) day after
Purchaser's receipt of the Seller's notice, give notice to Seller, that
Purchaser either: (y) elects to proceed with the Closing, in which event
all Nonmonetary Encumbrances identified in the Title Objection Notice that
Seller has not cured or removed shall be conclusively presumed thereafter
to constitute Permitted Exceptions and the Closing shall occur without any
credit against or abatement of the Purchase Price on account thereof; or
(z) elects to terminate this Agreement, in which event Purchaser shall be
entitled to the prompt return of the Xxxxxxx Money and, except as expressly
provided otherwise in this Agreement, this Agreement shall be of no further
force and effect and the parties shall have no further rights, obligations
or liabilities
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hereunder. Unless Purchaser gives notice to Seller within such ten-day
period that Purchaser has elected to terminate the Agreement pursuant to
the foregoing clause (z), Purchaser shall be conclusively presumed to have
elected to proceed to Closing pursuant to the foregoing clause (y) and the
uncured Nonmonetary Encumbrances shall be deemed waived by Purchaser and
shall thereupon be deemed to be Permitted Exceptions. Notwithstanding the
foregoing, in the event that Seller shall have notified Purchaser within
thirty (30) days after Seller's receipt of the Title Objection Notice that
Seller intends to use reasonable efforts as aforesaid to cure any
Nonmonetary Encumbrance but Seller is unable with diligent efforts to
remove or cure any such Nonmonetary Encumbrance within such 30-day period,
Seller shall notify Purchaser thereof within three (3) days following the
expiration of such 30-day period and Purchaser agrees to provide Seller
with an additional thirty (30) days to remove or cure such Nonmonetary
Encumbrance. The Closing Date shall be extended for such period of time as
necessary to give Seller and Purchaser the benefit of the time periods
stated in this Section 5.3.2.
5.3.3 ENCUMBRANCES FOLLOWING THE DATE OF THE TITLE COMMITMENT.
Notwithstanding the foregoing, Seller agrees to remove at its expense,
without applicability of the Title Cap, any encumbrances to title that
first became a matter of record after the effective date of the Title
Commitment and are either: (a) Monetary Encumbrances; or (b) Nonmonetary
Encumbrances voluntarily created by or through Seller or any affiliate of
Seller. As for any other Nonmonetary Encumbrances that first become a
matter of record after the effective date of the Title Commitment,
Purchaser shall have the right to give Seller a Title Objection Notice with
respect thereto at any time on or before the Closing Date, and the
provisions of Section 5.3.2 above, including the Title Cap, shall apply. In
the event that a Title Objection Notice is delivered by Purchaser pursuant
to this Section 5.3.3, the Closing Date shall be extended for such period
of time as necessary to give Seller and Purchaser the time periods set
forth in Section 5.3.2 above.
For purposes of this Agreement, the term "PERMITTED EXCEPTIONS" shall be
deemed to mean and include: (1) all applicable laws; (ii) all real estate taxes
which are not due and payable as of the Closing Date; (iii) liens for municipal
betterments assessed after the date of this Agreement; (iv) matters created by,
through or under Purchaser; (v) any matters shown on or referenced in the
Survey; (vi) any matters which would properly constitute Title Objections which
Purchaser fails to call to Seller's attention in a duly delivered Title
Objection Notice; and (vii) any licensees under any Service Contracts assumed by
Purchaser as of Closing.
5.4 TITLE STATUS. Purchaser has obtained a Title Commitment with an
effective date of March 2, 2004, at 8:00 A.M., a copy of which is attached
hereto as EXHIBIT J. Notwithstanding anything to the contrary in Section 5.3,
Purchaser agrees that, subject to Seller's performance of its obligations under
this Section 5.4, Purchaser shall not give Seller a Title Objection Notice,
except for a Title Objection Notice, if any, given pursuant to Section 5.3.3
above. Seller agrees, without limitation or duplication of Seller's obligations
under Section 7.3, to cause to be executed, acknowledged as appropriate, and
delivered, such instruments and to take such other actions as may be required in
order to comply with the requirements set forth in the following items listed on
Schedule B - Section 1 to the Title Commitment attached hereto as EXHIBIT J:
Items 2 (except that Purchaser shall be responsible for recording same), 3, 4,
6, 7, 8, and 10.
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Except as set forth in this Section 5.4, Purchaser agrees that it has reviewed
the Title Commitment and the Survey, and is satisfied with title to the Property
as of the later of the date of the Title Commitment and the Survey.
ARTICLE VI - OPERATIONS AND RISK OF LOSS
6.1 ONGOING OPERATIONS. From the Effective Date through Closing:
6.1.1 SERVICE CONTRACTS. Seller will perform its material
obligations under the Service Contracts.
6.1.2 NEW CONTRACTS. Seller will not enter into any contract that
will be an obligation affecting the Property subsequent to the Closing, but
Seller may, in the ordinary course of business, enter any contract that is
terminable without cause and without the payment of any termination penalty
on or before the Closing Date. With respect to any contract entered into
after the Effective Date, Purchaser may elect to require Seller to
terminate such contract as of the Closing Date by giving Seller written
notice of such election on or before the day that is three (3) business
days after the later to occur of (1) the expiration of the Inspection
Period; and (ii) the date on which Seller notifies Purchaser of such
contract, which notice shall contain a copy of such contract.
6.1.3 MAINTENANCE OF IMPROVEMENTS; REMOVAL OF PERSONAL PROPERTY.
Subject to SECTIONS 6.2 AND 6.3, Seller shall maintain all Improvements
substantially in their present condition (ordinary wear and tear and
casualty excepted) and in a manner consistent with Seller's maintenance of
the Improvements during Seller's period of ownership.
6.1.4 MAINTENANCE AND OPERATING AGREEMENTS. Subject to the
provisions of Section 6.1.2, Seller retains the right during the Inspection
Period to enter into maintenance or operating agreements related to the
Property (i.e., utility agreements), provided that, in the reasonable
judgment of Seller, any such agreements are entered in the ordinary course
of Seller's business as owner of the Property and provided further that any
such agreements will not have a material adverse impact on Purchaser's use
or operation of the Property. Seller will not enter into any such agreement
without providing Purchaser all relevant supporting documentation, as
reasonably determined by Seller. Any such agreements regarding the Property
entered into by Seller following expiration of the Inspection Period shall
require the written approval of Purchaser, not to be unreasonably withheld
or denied.
6.2 DAMAGE. If prior to Closing the Property is damaged by fire or other
casualty, Seller shall estimate the cost to repair and the time required to
complete repairs and will provide Purchaser written notice of such casualty (the
"CASUALTY NOTICE") as soon as reasonably possible after the occurrence of the
casualty and, in any event, before Closing. The Casualty Notice shall include a
reasonably detailed description of the nature and extent of the casualty damage
and Seller's estimation of the cost to repair same.
6.2.1 MATERIAL. In the event of any Material Damage to or
destruction of the Property or any portion thereof prior to Closing,
Purchaser may, at its option, terminate
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this Agreement by delivering written notice to Seller on or before the
expiration of thirty (30) days after the date Seller delivers the Casualty
Notice to Purchaser (and if necessary, the Closing Date shall be extended
to give Purchaser the full thirty-day period to make such election and to
obtain insurance settlement agreements with Seller's Insurers). Upon any
such termination, the Xxxxxxx Money shall be returned to Purchaser and the
parties hereto shall have no further rights or obligations hereunder, other
than those that by their terms survive the termination of this Agreement.
If Purchaser does not terminate this Agreement within said 30-day period,
then the parties shall proceed under this Agreement and close on schedule
(subject to extension of Closing as provided above), and as of Closing,
Seller shall assign to Purchaser, without representation or warranty by or
recourse against Seller (provided, however, that Seller shall reasonably
cooperate with Purchaser in pursuing any claims for such proceeds including
the execution and delivery of any instruments reasonably required in
connection therewith, provided that Seller's costs incurred in such
cooperation, including but not limited to attorneys' fees, shall not exceed
$5,000, with this obligation surviving the Closing), all of Seller's rights
in and to any resulting insurance proceeds due Seller as a result of such
damage or destruction and Purchaser shall assume full responsibility for
all needed repairs, and Purchaser shall receive a credit at Closing for any
deductible amount under such insurance policies (but the amount of the
deductible plus insurance proceeds shall not exceed the lesser of (A) the
cost of repair or (B) the Purchase Price and a pro rata share of the rental
or business loss proceeds, if any). For the purposes of this Agreement,
"MATERIAL DAMAGE" and "MATERIALLY DAMAGED" means damage which is estimated
by a qualified third party (which shall include Seller's insurer) in the
ordinary course to exceed $150,000.00 to repair, or which is likely to take
longer than ninety (90) days to repair.
6.2.2 NOT MATERIAL. If the Property is not Materially Damaged,
then neither Purchaser nor Seller shall have the right to terminate this
Agreement, and Seller shall, at its option, either (1) repair the damage
before the Closing in a manner reasonably satisfactory to Purchaser, or
(ii) credit Purchaser at Closing for the reasonable cost to complete the
repair (in which case Seller shall retain all insurance proceeds and
Purchaser shall assume full responsibility for all needed repairs).
6.3 CONDEMNATION. If proceedings in eminent domain are instituted with
respect to the Property or any portion thereof, Purchaser may, at its option, by
written notice to Seller given within thirty (30) days after Seller notifies
Purchaser of such proceedings (and if necessary the Closing Date shall be
automatically extended to give Purchaser the full thirty-day period to make such
election), either: (1) terminate this Agreement, in which case the Xxxxxxx Money
shall be immediately returned to Purchaser and the parties hereto shall have no
further rights or obligations, other than those that by their terms survive the
termination of this Agreement, or (ii) proceed under this Agreement, in which
event Seller shall, at the Closing, assign to Purchaser its entire right, title
and interest in and to any condemnation award, and Purchaser shall have the sole
right after the Closing to negotiate and otherwise deal with the condemning
authority in respect of such matter. If Purchaser does not give Seller written
notice of its election within the time required above, then Purchaser shall be
deemed to have elected option (ii) above.
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ARTICLE VII - CLOSING
7.1 CLOSING. The consummation of the transaction contemplated herein
("Closing") shall occur on April 28, 2004 at a location in the Greater Boston
area selected by Purchaser and identified to Seller in written notice delivered
to Seller on or before April 21, 2004. Notwithstanding the foregoing, in the
event that Seller has not received the Lease Terminations required by Section
7.2.4 below on or before April 26, 2004, Seller shall have the option to extend
the Closing Date for up to ten (10) business days upon written notice delivered
to Purchaser not later than April 26, 2004; provided, however, that in no event
shall the Closing Date be scheduled for any date between April 30, 2004 and May
9, 2004, inclusive. Funds shall be deposited into and held by Escrow Agent in a
closing escrow account with a bank reasonably satisfactory to Purchaser and
Seller. Upon satisfaction or completion of all closing conditions and
deliveries, the parties shall direct Escrow Agent to immediately record and
deliver the closing documents to the appropriate parties and make disbursements
according to the closing statements executed by Seller and Purchaser.
7.2 CONDITIONS TO PARTIES' OBLIGATION TO CLOSE. In addition to all other
conditions set forth herein, the obligation of Seller, on the one hand, and
Purchaser, on the other hand, to consummate the transactions contemplated
hereunder are conditioned upon the following:
7.2.1 REPRESENTATIONS AND WARRANTIES. The other party's
representations and warranties contained herein shall be true and correct
in all material respects as of the date of this Agreement and the Closing
Date;
7.2.2 DELIVERIES. As of the Closing Date, the other party shall
have tendered all deliveries to be made at Closing; and
7.2.3 ACTIONS, SUITS, ETC. There shall exist no pending or
threatened actions, suits, arbitrations, claims, attachments, proceedings,
assignments for the benefit of creditors, insolvency, bankruptcy,
reorganization or other proceedings, against the other party that would
materially and adversely affect the operation or value of the Property or
the other party's ability to perform its obligations under this Agreement.
7.2.4 LEASE TERMINATIONS. Seller shall deliver to Purchaser within
three (3) business days after the full execution and delivery thereof,
agreements with each Tenant to terminate such Tenant's Lease effective on
or before the Closing Date, as the same may be extended pursuant to Section
7.1 above (the "Lease Terminations"). The Lease Terminations shall oblige
each Tenant to vacate its premises on or before the Closing Date and shall
impose no obligation whatsoever on Purchaser and no obligation that will
affect the Property after Closing. Any and all lease termination fees
payable by the Tenants to Seller under the Lease Terminations shall become
and remain the sole property of Seller. If Seller fails for any reason to
deliver Lease Terminations satisfying the requirements of this Section
7.2.4 on or before the Closing Date, as the same may be extended, then
Purchaser may terminate this Agreement by giving Seller notice of such
election on or before the date that is ten (10) days after the Closing
Date, and the Closing Date shall be extended to provide Purchaser with such
10-day period in which to make such election. In the event that Purchaser
elects to terminate this Agreement based on
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Seller's failure to deliver the Lease Terminations, Seller shall, within
forty-five (45) days of Purchasers written request therefor, such request
to be accompanied by copies of invoices and other evidence reasonably
satisfactory to Seller as to the sums expended by Purchaser in negotiating
this Agreement, conducting its due diligence activities pursuant to the
Access Agreement and Article IV above, and in preparing for the Closing,
reimburse Purchaser for its reasonable out-of-pocket expenses, including,
without limitation, legal fees and disbursements, incurred in the
performance of such activities. If Purchaser fails to terminate this
Agreement for failure of the condition in this Section 7.2.4, then it shall
not be a condition to Closing that Seller shall terminate any Lease as to
which Seller has not entered into a Lease Termination (such Lease, a
"Surviving Lease") and at Closing, Seller and Purchaser shall execute and
deliver an Assignment and Assumption Agreement, in the form of EXHIBIT I
attached hereto, with respect to any Surviving Lease. Except for any
Surviving Lease, each of the Leases shall in fact be terminated, and the
Tenants shall have surrendered and vacated their respective premises, and,
except for any personal property listed on EXHIBIT A to the Xxxx of Sale
attached hereto as EXHIBIT F, removed all their furniture, equipment, and
other personal property therefrom, and have left such premises in broom
clean condition on or before the Closing Date, as may be extended.
7.2.5 REMOVAL OF VENT HOOD. On or before the Closing Date, Seller
shall have caused to be removed that certain vent hood located in the
laboratory/office space in the premises leased by Thermedics Detection,
Inc.
So long as a party is not in default hereunder, if any condition to such
party's obligation to proceed with the Closing hereunder has not been satisfied
as of the Closing Date, such party may, in its sole discretion, terminate this
Agreement by delivering written notice to the other party on the Closing Date,
or elect to close, notwithstanding the non-satisfaction of such condition, in
which event such party shall be deemed to have waived any such condition. In the
event such party elects to close, notwithstanding the non-satisfaction of such
condition, there shall be no liability on the part of any other party hereto for
breaches of representations and warranties of which the party electing to close
had knowledge at the Closing.
7.3 SELLER'S DELIVERIES IN ESCROW. As of or prior to the Closing Date
(unless provided otherwise), Seller shall deliver in escrow to Escrow Agent the
following:
7.3.1 DEED. A Massachusetts form of Quitclaim Deed inform
acceptable for recordation under the laws of the Commonwealth of
Massachusetts, executed and acknowledged by Seller, conveying to Purchaser
Seller's interest in the Real Property subject only to the Permitted
Exceptions (tile "DEED");
7.3.2 XXXX OF SALE, ASSIGNMENT AND ASSUMPTION. A Xxxx of Sale,
Assignment and Assumption of Contracts in the form of EXHIBIT F attached
hereto (the "ASSIGNMENT"), executed and acknowledged by Seller, vesting in
Purchaser, without warranty, Seller's right, title and interest in and to
the property described therein free of any claims, except for the Permitted
Exceptions to the extent applicable;
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7.3.3 CONVEYANCING OR TRANSFER TAX FORMS OR RETURNS. Such
conveyancing or transfer tax forms or returns, if any, as are required to
be delivered or signed by Seller by applicable state and local law in
connection with the conveyance of the Real Property;
7.3.4 FIRPTA. A Foreign Investment in Real Property Tax Act
affidavit executed by Seller;
7.3.5 AUTHORITY. Evidence of the existence, organization and
authority of Seller and of the authority of the persons executing documents
on behalf of Seller reasonably satisfactory to the underwriter for the
Title Policy. Such authority documents shall include: (1) a certificate of
good standing for Seller from the Secretary of State for the State of
Delaware, which names the managers of Seller or the person authorized to
execute real estate instruments on behalf of Seller, (ii) a certified copy
of Seller's Certificate of Organization from the Secretary of State for the
State of Delaware; (iii) a certificate of good standing for Seller from the
Secretary of State for the Commonwealth of Massachusetts; and (iv) an
Officer's Certificate from an officer of Seller attesting to the incumbency
of the officer executing documents on behalf of Seller.
7.3.6 ASSIGNMENT AND ASSUMPTION OF LEASE(S). If, pursuant to
Section 7.2.4, Purchaser elects to purchase the Property subject to any
Surviving Lease, an Assignment and Assumption of Leases in the form of
EXHIBIT I attached hereto (the "Lease Assignment") with respect to the
Surviving Lease(s).
7.3.7 ADDITIONAL DOCUMENTS. Any additional documents that Escrow
Agent or the Title Company may reasonably require for the proper
consummation of the transaction contemplated by this Agreement (provided,
however, no such additional document shall expand any obligation, covenant,
representation or warranty of Seller or result in any new or additional
obligation, covenant, representation or warranty of Seller under this
Agreement beyond those expressly set forth in this Agreement).
7.4 PURCHASER'S DELIVERIES IN ESCROW. As of or prior to the Closing
Date, Purchaser shall deliver in escrow to Escrow Agent the following:
7.4.1 XXXX OF SALE, ASSIGNMENT AND ASSUMPTION. The Assignment,
executed and acknowledged by Purchaser;
7.4.2 ERISA LETTER. A letter to Seller in the form of EXHIBIT G
attached hereto duly executed by Purchaser, confirming that Purchaser is
not acquiring the Property with the assets of an employee benefit plan as
defined in Section 3(3) of the Employee Retirement Income Security Act of
1974 ("ERISA") and, in the event Purchaser is unable or unwilling to make
such a representation, Purchaser shall be deemed to be in default
hereunder, and Seller shall have the right to terminate this Agreement and
to receive and retain the Xxxxxxx Money;
7.4.3 CONVEYANCING OR TRANSFER TAX FORMS OR RETURNS. Such
conveyancing or transfer tax forms or returns, if any, as are required to
be delivered or signed by Purchaser by applicable state and local law in
connection with the conveyance of Real Property; and
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7.4.4 ADDITIONAL DOCUMENTS. Any additional documents that Seller,
Escrow Agent or the Title Company may reasonably require for the proper
consummation of the transaction contemplated by this Agreement (provided,
however, no such additional document shall expand any obligation, covenant,
representation or warranty of Purchaser or result in any new or additional
obligation, covenant, representation or warranty of Purchaser under this
Agreement beyond those expressly set forth in this Agreement).
7.5 CLOSING STATEMENTS. As of or prior to the Closing Date, Seller and
Purchaser shall deposit with Escrow Agent executed closing statements consistent
with this Agreement in the form required by Escrow Agent.
7.6 PURCHASE PRICE. At or before 1:00 p.m. local time on the Closing
Date, Purchaser shall deliver to Escrow Agent the Purchase Price, less the
Xxxxxxx Money that is applied to the Purchase Price, plus or minus applicable
prorations, in immediate, same-day U.S. federal funds wired for credit into
Escrow Agent's escrow account, which funds must be delivered in a manner to
permit Escrow Agent to deliver good funds to Seller or its designee on the
Closing Date (and, if requested by Seller, by wire transfer); in the event that
Escrow Agent is unable to deliver good funds to Seller or its designee within
twenty-four (24) hours of the Closing Date, then the closing statements and
related prorations will be revised as necessary; provided, however, that the
Escrow Agent will not deliver the Purchase Price to Seller unless and until the
Escrow Agent records the Deed.
7.7 POSSESSION. Seller shall deliver possession of the Property to
Purchaser at the Closing, the Improvements substantially in their condition as
of the Effective Date, ordinary wear and tear excepted (except as otherwise
expressly permitted under Sections 6.2 and 6.3 hereof), with the Tenants no
longer in possession of any portion of the Property, other than pursuant to any
Surviving Lease.
7.8 DELIVERY OF BOOKS AND RECORDS. After the Closing, Seller shall
deliver to Purchaser, to the extent in Seller's possession or control, the
following: maintenance records and warranties; plans and specifications;
licenses, permits and certificates of occupancy; copies or originals of all
books and records of account, contracts, and copies of correspondence with
tenants (but only with respect to any Surviving Lease) and suppliers; receipts
for deposits, unpaid bills and other papers or documents which pertain to the
Property; booklets; keys; and other items, if any, used in the operation of the
Property.
ARTICLE VIII - PRORATIONS,-DEPOSITS, COMMISSIONS
8.1 PRORATIONS. At Closing, the following items shall be prorated as of
the date of Closing with all items of income and expense for the Property
through the end of the day before the Closing being borne by Seller and all such
items being borne by Purchaser from and after (but including) the date of
Closing: income and rents under any Surviving Leases that have been collected by
Seller as of Closing; fees and assessments; prepaid expenses and obligations
under Service Contracts; accrued operating expenses; real and personal ad
valorem taxes ("TAXES"); and any assessments by private covenant for the
then-current calendar year of Closing. Specifically, the following shall apply
to such prorations:
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8.1.1 TAXES. If Taxes for the year of Closing are not known or
cannot be reasonably estimated, Taxes shall be prorated based on Taxes for
the year prior to Closing, and any appropriate adjustments shall be made
within sixty (60) days following the issuance of a final tax xxxx for the
fiscal year that includes the Closing Date. The obligation to make any such
adjustments shall survive the Closing. Any additional Taxes relating to the
year of Closing or prior years arising out of a change in the use of the
Real Property or a change in ownership shall be assumed by Purchaser
effective as of Closing and paid by Purchaser when due and payable, and
Purchaser shall indemnify Seller from and against any and all such Taxes,
which indemnification obligation shall survive the Closing.
8.1.2 UTILITIES. Purchaser shall take all steps necessary to
effectuate the transfer of all utilities to its name as of the Closing
Date, and where necessary, post deposits with the utility companies. Seller
shall ensure that all utility meters are read as of the Closing Date.
Seller shall be entitled to recover any and all deposits held by any
utility company as of the Closing Date.
8.2 POST-CLOSING CORRECTION. Either party shall be entitled to a post
Closing adjustment for any incorrect proration or adjustment, provided, such
adjustment is claimed by such party within one (1) year after Closing. This
Section 8.2 shall survive the Closing.
8.3 CLOSING COSTS. Closing costs shall be allocated between Seller and
Purchaser in accordance with SECTION 1.2.
8.4 FINAL ADJUSTMENT AFTER CLOSING. If final bills are not available or
cannot be issued prior to Closing for any item being prorated under SECTION 8.1,
then Purchaser and Seller agree to allocate such items on a fair and equitable
basis as soon as such bills are available, final adjustment to be made as soon
as reasonably possible after the Closing. Payments in connection with the final
adjustment shall be due within thirty (30) days of written notice. All such
rights and obligations shall survive the Closing.
8.5 COMMISSIONS. Seller shall be responsible to Brokers for a real
estate sales commission at Closing (but only in the event of a Closing in strict
accordance with this Agreement) in accordance with a separate agreement between
Seller and Brokers. Under no circumstances shall Seller owe a commission or
other compensation directly to any other broker, agent or person. Other than as
stated above in this SECTION 8.5, Seller and Purchaser each represent and
warrant to the other that no real estate brokerage commission is payable to any
person or entity in connection with the transaction contemplated hereby, and
each agrees to and does hereby indemnify and hold the other harmless against the
payment of any commission to any other person or entity claiming by, through or
lender Seller or Purchaser, as applicable. This indemnification shall extend to
any and all claims, liabilities, costs and expenses (including reasonable
attorneys' fees and litigation costs) arising as a result of such claims and
shall survive the Closing.
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ARTICLE IX - REPRESENTATIONS AND WARRANTIES
9.1 SELLER'S REPRESENTATIONS AND WARRANTIES. Seller represents and
warrants to Purchaser that:
9.1.1 ORGANIZATION AND AUTHORITY. Seller has been duly organized,
is validly existing as a limited liability company, and is in good standing
in the State of Delaware and is qualified to do business in the
Commonwealth of Massachusetts. Seller has the full right and authority and
has obtained any and all consents required to enter into this Agreement and
to consummate or cause to be consummated the transactions contemplated
hereby. This Agreement has been, and all of the documents to be delivered
by Seller at the Closing will be, authorized and properly executed and
constitute, or will constitute, as appropriate, the valid and binding
obligation of Seller, enforceable in accordance with their terms.
9.1.2 CONFLICTS AND PENDING ACTIONS. There is no agreement to
which Seller is a party or, to Seller's knowledge, that is binding on
Seller which is in conflict with this Agreement. There is no action or
proceeding pending or, to Seller's knowledge, threatened against Seller or
relating to the Property, including any condemnation proceeding, which
challenges or impairs Seller's ability to execute or perform its
obligations under this Agreement. Seller has not received any written
notice of any pending or threatened condemnation or eminent domain
proceeding or special assessments to be made against the Property.
9.1.3 TENANTS/LEASES. There exist no leases or other use or
occupancy agreements affecting the Property other than the Leases.
9.1.4 SERVICE CONTRACTS. The list of Service Contracts attached
as Exhibit C are all of the Service Contracts which affect the Property,
and the copies of the Service Contracts delivered to Purchaser by
Seller, are true and complete.
9.1.5 ENVIRONMENTAL REPORTS. Seller has delivered to Purchaser all
the reports in its possession regarding the environmental condition of the
Property (the "Environmental Reports"). The attached EXHIBIT B lists the
Environmental Reports so provided by Seller. To the best of Seller's
knowledge, Seller has received no written notice specifically alleging the
release or potential release of Hazardous Materials on or from the
Property, except as may be disclosed in the Environmental Reports.
9.1.6 COMMISSIONS. There are no leasing or other commissions due
and owing to any third party related to the Property, except the
commissions that will be due to the Brokers pursuant to Section 8.6 above
upon Closing.
9.1.7 NOTICES FROM GOVERNMENTAL AUTHORITIES. Seller has not
received from any governmental authority written notice of any material
violation of any laws applicable (or alleged to be applicable) to the Real
Property, or any part thereof, that has not been corrected, except as may
be reflected by the Property Documents or otherwise disclosed in writing to
Purchaser.
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9.1.8 PROPERTY DOCUMENTS. Seller has no actual knowledge (as
defined in Section 9.3) that any Property Documents are incorrect in any
material respect.
9.1.9 NO ADVERSE CLAIMS TO PERSONAL PROPERTY. No person or entity
(including, without limitation, the Tenants) other than Seller will have
any right, title, or interest in or to any fixtures, equipment, or personal
property located on the Real Property as of Closing.
Additionally, if Purchaser makes a claim against Seller for breach of a
representation and warranty under this Agreement and Seller indemnifies or
otherwise compensates Purchaser in connection therewith, and if the claim by
Purchaser against Seller relates to matters for which there is or may be a claim
against a third party under any warranties, guaranties, indemnities or other
claims (including, without limitation, for workmanship, materials and
performance) assigned by Seller to Purchaser pursuant to this Agreement, then
Purchaser agrees that Seller shall be subrogated to Purchaser's position with
respect to all claims against such third parties, and Purchaser shall reasonably
cooperate with Seller in attempting to recover against such third party(ies).
The foregoing shall survive Closing.
9.2 PURCHASER'S REPRESENTATIONS AND WARRANTIES. Purchaser represents and
warrants to Seller that:
9.2.1 ORGANIZATION AND AUTHORITY. Purchaser has been duly
organized and is validly existing as a corporation in good standing in
Delaware and is qualified to do business in the Commonwealth of
Massachusetts. Purchaser has the full right and authority and has obtained
any and all consents required to enter into this Agreement and to
consummate or cause to be consummated the transactions contemplated hereby.
This Agreement has been, and all of the documents to be delivered by
Purchaser at the Closing will be, authorized and properly executed and
constitute, or will constitute, as appropriate, the valid and binding
obligation of Purchaser, enforceable in accordance with their terms.
9.2.2 CONFLICTS AND PENDING ACTION. There is no agreement to which
Purchaser is a party or to Purchaser's knowledge binding on Purchaser which
is in conflict with this Agreement. There is no action or proceeding
pending or, to Purchaser's knowledge, threatened against Purchaser which
challenges or impairs Purchaser's ability to execute or perform its
obligations under this Agreement.
9.3 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The representations and
warranties set forth in this Article IX are made as of the date of this
Agreement and are remade as of the Closing Date and shall not be deemed to be
merged into or waived by the instruments of Closing, but shall survive the
Closing for a period of six (6) months (the "SURVIVAL PERIOD"). Terms such as
"to Seller's knowledge," "to the best of Seller's knowledge," "Seller's actual
knowledge" or like phrases used in this Agreement mean the actual knowledge of
Xxxx Xxxxxxxx, senior asset manager, and of Xxxxxxx Xxxx, assistant vice
president of Asset Manager (collectively, the "Asset Manager's Employees"),
without any duty of inquiry or investigation; provided that so qualifying
Seller's knowledge shall in no event give rise to any personal liability on the
part of Asset Manager's Employees or any other officer or employee of Seller or
its Asset
- 22 -
Manager, on account of any breach of any representation or warranty made by
Seller in this Agreement. Terms such as "to Purchaser's knowledge," "to the best
of Purchaser's knowledge," "Purchaser's actual knowledge" or like phrases used
in this Agreement shall mean the actual knowledge of Xxxxxxx X. Xxxxxx, Chief
Financial Officer of Purchaser, without any duty of inquiry or investigation;
provided that so qualifying Purchaser's knowledge shall in no event give rise to
any personal liability on the part of said Xxxxxxx X. Xxxxxx or any other
officer or employee of Purchaser, on account of any breach of any representation
or warranty made by Purchaser in this Agreement. Said terms do not include
constructive knowledge, imputed knowledge, or knowledge Seller or Purchaser, as
the case may be, or such persons do not have but could have obtained through
further investigation or inquiry. Each party shall have the right to bring an
action against the other on the breach of a representation or warranty
hereunder, but only on the following conditions: (1) the party bringing the
action for breach first learns of the breach after Closing and files such action
within the Survival Period, and (ii) Purchaser shall not have the right to bring
a cause of action for a breach of a representation or warranty unless the damage
to Purchaser on account of such breach (individually or when combined with
damages from other breaches) equals or exceeds $25,000.00. Neither party shall
have any liability after Closing for the breach of a representation or warranty
hereunder of which the other party hereto had actual knowledge as of Closing.
Furthermore, Purchaser agrees that the maximum liability of Seller for the
alleged breach of any or all representations or warranties set forth in this
Agreement is limited to $200,000.00. The provisions of this Section 9.3 shall
survive the Closing. Any breach of a representation or warranty that occurs
prior to Closing shall be governed by Article X.
ARTICLE X - DEFAULT AND REMEDIES
10.1 SELLER'S REMEDIES. If Purchaser fails to perform its obligations
pursuant to this Agreement at or prior to Closing for any reason except failure
by Seller to perform hereunder, or if prior to Closing any one or more of
Purchaser's representations or warranties are breached in any material respect,
Seller shall be entitled, as its sole remedy (except as provided in SECTIONS
8.6, 10.3 AND 10.4 hereof and in the Due Diligence Agreements), to terminate
this Agreement and recover the Xxxxxxx Money as liquidated damages and not as
penalty, in full satisfaction of claims against Purchaser hereunder. Seller and
Purchaser agree that Seller's damages resulting from Purchaser's default are
difficult, if not impossible, to determine and the Xxxxxxx Money is a fair
estimate of those damages which has been agreed to in an effort to cause the
amount of such damages to be certain.
10.2 PURCHASER'S REMEDIES. If Seller fails to perform its obligations
pursuant to this Agreement for any reason except failure by Purchaser to perform
hereunder, or if prior to Closing any one or more of Seller's representations or
warranties are breached in any material respect, Purchaser shall elect, as its
sole remedy, either to (1) terminate this Agreement by giving Seller timely
written notice of such election prior to or at Closing and recover the Xxxxxxx
Money, (ii) enforce specific performance of Seller's obligations under this
Agreement, or (iii) waive said failure or breach and proceed to Closing.
Notwithstanding anything herein to the contrary, Purchaser shall be deemed to
have elected to terminate this Agreement if Purchaser fails to deliver to Seller
written notice of its intent to file a claim or assert a cause of action for
specific performance against Seller on or before ten (10) business days
following the scheduled Closing Date or, having given such notice, fails to file
a lawsuit asserting such claim or cause of
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action in the county in which the Property is located within three (3) months
following the scheduled Closing Date. Purchaser's remedies shall be limited to
those described in this SECTION 10.2 AND SECTIONS 10.3 AND 10.4 hereof. If,
however, the equitable remedy of specific performance is not available,
Purchaser may seek any other right or remedy available at law or in equity;
provided, however, that in no event except for any willful or intentional
default of Seller hereunder shall Seller's liability exceed the lesser of (1)
$285,000.00 or (ii) the actual reasonable out-of-pocket expenses incurred by
Purchaser and paid (A) to Purchaser's attorneys in connection with the
negotiation of this Agreement and preparation for Closing and (B) to unrelated
and unaffiliated third party consultants in connection with the performance of
examinations, inspections and/or investigations pursuant to ARTICLE IV and the
Due Diligence Agreements. For purposes of this provision, specific performance
shall be considered not available to Purchaser only if a court of competent
jurisdiction (or an arbitrator, as per EXHIBIT H) determines that Purchaser is
entitled to specific performance on the merits of its claim, but said court or
arbitrator is unable to enforce specific performance due to reasons beyond the
control of the court or arbitrator. IN NO EVENT SHALL SELLER'S DIRECT OR
INDIRECT PARTNERS, SHAREHOLDERS, OWNERS OR AFFILIATES, ANY OFFICER, DIRECTOR,
EMPLOYEE OR AGENT OF THE FOREGOING, OR ANY AFFILIATE OR CONTROLLING PERSON
THEREOF HAVE ANY LIABILITY FOR ANY CLAIM, CAUSE OF ACTION OR OTHER LIABILITY
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE PROPERTY, WHETHER BASED ON
CONTRACT, COMMON LAW, STATUTE, EQUITY OR OTHERWISE.
10.3 ATTORNEYS' FEES. In the event either party hereto employs an
attorney in connection with claims by one party against the other arising from
the operation of this Agreement, the nonprevailing party shall pay the
prevailing party all reasonable fees and expenses, including attorneys' fees,
incurred in connection with such claims.
10.4 OTHER EXPENSES. If this Agreement is terminated due to the default
of a party, then the defaulting party shall pay any fees or charges due to
Escrow Agent for holding the Xxxxxxx Money as well as any escrow cancellation
fees or charges and any fees or charges due to the Title Company for preparation
and/or cancellation of the Title Commitment.
ARTICLE XI - DISCLAIMERS, RELEASE AND INDEMNITY
11.1 DISCLAIMERS BY SELLER. Except as expressly set forth in this
Agreement, it is understood and agreed that Seller and Asset Manager have not at
any time made and are not now making, and they specifically disclaim, any
warranties or representations of any kind or character, express or implied, with
respect to the Property, including, but not limited to, warranties or
representations as to (1) matters of title, (ii) environmental matters relating
to the Property or any portion thereof, including, without limitation, the
presence of Hazardous Materials in, on, under or in the vicinity of the
Property, (iii) geological conditions, including, without limitation,
subsidence, subsurface conditions, water table, underground water reservoirs,
limitations regarding the withdrawal of water, and geologic faults and the
resulting damage of past and/or future faulting, (iv) whether, and to the extent
to which the Property or any portion thereof is affected by any stream (surface
or underground), body of water, wetlands, flood prone area, flood plain,
floodway or special flood hazard, (v) drainage, (vi) soil conditions, including
the existence of instability, past soil repairs, soil additions or conditions of
soil fill, or
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susceptibility to landslides, or the sufficiency of any undershoring, (vii) the
presence of endangered species or any environmentally sensitive or protected
areas, (viii) zoning or building entitlements to which the Property or any
portion thereof may be subject, (ix) the availability of any utilities to the
Property or any portion thereof including, without limitation, water, sewage,
gas and electric, (x) usages of adjoining property, (xi) access to the Property
or any portion thereof, (xii) the value, compliance with the plans and
specifications, size, location, age, use, design, quality, description,
suitability, structural integrity, operation, title to, or physical or financial
condition of the Property or any portion thereof, or any income, expenses,
charges, liens, encumbrances, rights or claims on or affecting or pertaining to
the Property or any part thereof, (xiii) the condition or use of the Property or
compliance of the Property with any or all past, present or future federal,
state or local ordinances, rules, regulations or laws, building, fire or zoning
ordinances, codes or other similar laws, (xiv) the existence or non-existence of
underground storage tanks, surface impoundments, or landfills, (xv) the
merchantability of the Property or fitness of the Property for any particular
purpose, (xvi) the truth, accuracy or completeness of the Property Documents,
provided, however, that Seller has no actual knowledge that any Property
Document is incorrect in any material respect; (xvii) tax consequences, or
(xviii) any other matter or thing with respect to the Property.
11.2 SALE "AS IS, WHERE IS." Purchaser acknowledges and agrees that upon
Closing, Seller shall sell and convey to Purchaser and Purchaser shall accept
the Property "AS IS, WHERE IS, WITH ALL FAULTS," except to the extent expressly
provided otherwise in this Agreement and any document executed by Seller and
delivered to Purchaser at Closing. Except as expressly set forth in this
Agreement, Purchaser has not relied and will not rely on, and Seller has not
made and is not liable for or bound by, any express or implied warranties,
guarantees, statements, representations or information pertaining to the
Property or relating thereto (including specifically, without limitation,
Property information packages distributed with respect to the Property) made or
furnished by Seller, the Asset Manager of the Property, or any real estate
broker, agent or third party representing or purporting to represent Seller, to
whomever made or given, directly or indirectly, orally or in writing. Purchaser
represents that it is a knowledgeable, experienced and sophisticated purchaser
of real estate and that, except as expressly set forth in this Agreement, it is
relying solely on its own expertise and that of Purchaser's consultants in
purchasing the Property and shall make an independent verification of the
accuracy of any documents and information provided by Seller. Purchaser will
conduct such inspections and investigations of the Property as Purchaser deems
necessary, including, but not limited to, the physical and environmental
conditions thereof, and shall rely upon same. Purchaser acknowledges that Seller
has afforded Purchaser a full opportunity to conduct such investigations of the
Property as Purchaser deemed necessary to satisfy itself as to the condition of
the Property and the existence or non-existence or curative action to be taken
with respect to any Hazardous Materials on or discharged from the Property, and
will rely solely upon same and not upon any information provided by or on behalf
of Seller or its agents or employees with respect thereto, other than such
representations, warranties and covenants of Seller as are expressly set forth
in this Agreement. Upon Closing, Purchaser shall assume the risk that adverse
matters, including, but not limited to, adverse physical or construction defects
or adverse environmental, health or safety conditions, may not have been
revealed by Purchaser's inspections and investigations.
PURCHASER'S INITIALS /s/ WWB
-------------------
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11.3 SELLER RELEASED FROM LIABILITY. Purchaser acknowledges that it has
had the opportunity to inspect the Property during the Inspection Period, and
during such period, observe its physical characteristics and existing conditions
and the opportunity to conduct such investigation and study on and of the
Property and adjacent areas as Purchaser deems necessary, and Purchaser hereby
FOREVER RELEASES AND DISCHARGES Seller and Asset Manager from all responsibility
and liability, including without limitation, liabilities under the Comprehensive
Environmental Response, Compensation and Liability Act of 1980 (42 U.S.C.
Sections 9601 ET SEQ.), as amended ("CERCLA"), regarding the condition,
valuation, salability or utility of the Property, or its suitability for any
purpose whatsoever (including, but not limited to, with respect to the presence
in the soil, air, structures and surface and subsurface waters, of Hazardous
Materials or other materials or substances that have been or may in the future
be determined to be toxic, hazardous, undesirable or subject to regulation and
that may need to be specially treated, handled and/or removed from the Property
under current or future federal, state and local laws, regulations or
guidelines, and any structural and geologic conditions, subsurface soil and
water conditions and solid and hazardous waste and Hazardous Materials on,
under, adjacent to or otherwise affecting the Property). Purchaser further
hereby WAIVES (and by Closing this transaction will be deemed to have WAIVED)
any and all objections and complaints (including, but not limited to, federal,
state and local statutory and common law based actions, and any private right of
action under any federal, state or local laws, regulations or guidelines to
which the Property is or may be subject, including, but not limited to, CERCLA)
concerning the physical characteristics and any existing conditions of the
Property. Purchaser further hereby assumes the risk of changes in applicable
laws and regulations relating to past, present and future environmental
conditions on the Property and the risk that adverse physical characteristics
and conditions, including, without limitation, the presence of Hazardous
Materials or other contaminants, may not have been revealed by its
investigation. The foregoing release shall not include any liability of Seller
for breach of any provision contained in this Agreement, which shall be governed
by Section 10.2 herein.
11.4 "HAZARDOUS MATERIALS" DEFINED. For purposes hereof, "HAZARDOUS
MATERIALS" means "Hazardous Material," "Hazardous Substance," "Pollutant or
Contaminant," and "Petroleum" and "Natural Gas Liquids," as those terms are
defined or used in Section 101 of the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, 42 U.S.C. Section 9601 ET SEQ.
("CERCLA"), and any other substances regulated because of their effect or
potential effect on public health and the environment, including, without
limitation, PCBs, lead paint, asbestos, urea formaldehyde, radioactive
materials, putrescible materials, and infectious materials.
11.5 SURVIVAL. The terms and conditions of this ARTICLE XI shall
expressly survive the Closing, not merge with the provisions of any closing
documents and shall be incorporated into the Deed.
Purchaser acknowledges and agrees that the disclaimers and other agreements
set forth herein are an integral part of this Agreement and that Seller would
not have agreed to sell the Property to Purchaser for the Purchase Price without
the disclaimers and other agreements set forth above.
- 26 -
ARTICLE XII - MISCELLANEOUS
12.1 PARTIES BOUND; ASSIGNMENT. This Agreement, and the terms, covenants,
and conditions herein contained, shall inure to the benefit of and be binding
upon the heirs, personal representatives, successors, and assigns of each of the
parties hereto. Purchaser may assign its rights under this Agreement upon the
following conditions: (1) the assignee of Purchaser must be an affiliate of
Purchaser or an entity controlling, controlled by, or under common control with
Purchaser, (ii) all of the Xxxxxxx Money must have been delivered in accordance
herewith, (iii) the Inspection Period shall be deemed to have ended, (iv) the
assignee of Purchaser shall assume all obligations of Purchaser hereunder, but
Purchaser shall remain primarily liable for the performance of Purchaser's
obligations, and (v) a copy of the fully executed written assignment and
assumption agreement shall be delivered to Seller at the Closing, but Purchaser
will notify Seller in writing of the name of such assignee at least five (5)
business days prior to Closing.
12.2 HEADINGS. The article, section, subsection, paragraph and/or other
headings of this Agreement are for convenience only and in no way limit or
enlarge the scope or meaning of the language hereof.
12.3 INVALIDITY AND WAIVER. If any portion of this Agreement is held
invalid or inoperative, then so far as is reasonable and possible the remainder
of this Agreement shall be deemed valid and operative, and, to the greatest
extent legally possible, effect shall be given to the intent manifested by the
portion held invalid or inoperative. The failure by either party to enforce
against the other any term or provision of this Agreement shall not be deemed to
be a waiver of such party's right to enforce against the other party the same or
any other such term or provision in the future.
12.4 GOVERNING LAW. This Agreement shall, in all respects, be governed,
construed, applied, and enforced in accordance with the laws of the Commonwealth
of Massachusetts.
12.5 SURVIVAL. The provisions of this Agreement that contemplate
performance after the Closing shall survive the Closing and shall not be deemed
to be merged into or waived by the instruments of Closing.
12.6 ENTIRETY AND AMENDMENTS. This Agreement embodies the entire
agreement between the parties and supersedes all prior agreements and
understandings relating to the Property. This Agreement may be amended or
supplemented only by an instrument in writing executed by the party against whom
enforcement is sought.
12.7 TIME. Time is of the essence in the performance of this Agreement.
12.8 CONFIDENTIALITY. Neither Purchaser nor Seller shall make any public
announcement or disclosure of any information related to this Agreement to
outside brokers or third parties, before or after the Closing, without the prior
written specific consent of the other party, which consent shall not be
unreasonably withheld or delayed; provided, however, that: (a) either party may
disclose this Agreement to its Permitted Outside Parties as necessary to perform
its obligations hereunder and to any person or entity as may be required under
laws or regulations applicable to such disclosing party; (b) Purchaser may make
any disclosures required under any securities laws, whether in connection with
any public offering of stock in Purchaser
- 27 -
or otherwise; and (c) either party may make disclosure of this Agreement in
connection with any litigation between the parties hereto. Notwithstanding the
foregoing, either party may make disclosures about the Property after Closing,
subject to the terms of this Section 12.8. Seller agrees that following Closing,
it shall not disclose the contents of the Environmental Reports without the
written consent of Purchaser, such consent not to be unreasonably withheld or
delayed; provided, however, that Seller may disclose the contents of the
Environmental Reports at any time, without first obtaining such consent, to: (y)
any person or entity as may be reasonably necessary to facilitate any leasing,
sale, financing or other transaction desired by Seller; or (z) any consultant,
agent, or contractor hired by Seller to investigate, monitor, remediate or take
any other action as a result of any environmental condition existing or alleged
to exist on any of the properties located at 19, 21 or 00 Xxxxx Xxxx; provided
that in each instance, prior to any such disclosure of the Environmental
Reports, Seller shall advise such person or entity receiving the Environmental
Reports of the confidential nature of such information and of the provisions of
this Section 12.8. Without in any way limiting the foregoing, in the event that
Seller is required during any subsequent litigation (by oral questions,
interrogatories, requests for information or documents, subpoenas, summonses,
civil investigative demand or similar process) to disclose any or all of the
Environmental Reports, Seller agrees to provide Purchaser with prompt notice of
such requirement, so that Purchaser may seek an appropriate protective order or,
if Purchaser so decides in it sole discretion, waive Seller's compliance with
the provisions of this Section 12.8. Seller will use reasonable efforts to
assist Purchaser in obtaining such a protective order. It is further agreed that
if, in the absence of a protective order or the receipt of a waiver thereunder,
Seller is nonetheless in the reasonable opinion of its counsel legally compelled
to disclose any of the Environmental Reports to any tribunal or governmental
authority or else stand liable for contempt or to suffer other censure or
penalty, Seller may, following reasonable notice to Purchaser under the
circumstances, disclose such information to such tribunal or authority. Seller
will not be liable for such disclosure unless it was caused by or resulted from
a previous disclosure by Seller not permitted by this Agreement.
12.9 NOTICES. All notices required or permitted hereunder shall be in
writing and shall be served on the parties at the addresses set forth in SECTION
1.3. Any such notices shall, unless otherwise provided herein, be given or
served (i) by depositing the same in the United States mail, postage paid,
certified and addressed to the party to be notified, with return receipt
requested, (ii) by overnight delivery using a nationally recognized overnight
courier, (iii) by personal delivery, or (iv) by facsimile, evidenced by
confirmed receipt. Notice deposited in the mail in the manner hereinabove
described shall be effective on the third (3rd) business day after such deposit.
Notice given in any other manner shall be effective upon delivery, attempted
delivery, or refusal, whichever occurs first, at the address of the intended
recipient between the hours of 9:00 a.m. and 5:00 p.m. on any business day, with
delivery made after such hours to be deemed received the following business day.
A party's address may be changed by written notice to the other party; provided,
however, that no notice of a change of address shall be effective until actual
receipt of such notice. Copies of notices are for informational purposes only,
and a failure to give or receive copies of any notice shall not be deemed a
failure to give notice. Notices given by counsel to the Purchaser shall be
deemed given by Purchaser and notices given by counsel to the Seller shall be
deemed given by Seller.
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12.10 CONSTRUCTION. The parties acknowledge that the parties and their
counsel have reviewed and revised this Agreement and agree that the normal rule
of construction to the effect that any ambiguities are to be resolved against
the drafting party shall not be employed in the interpretation of this Agreement
or any exhibits or amendments hereto.
12.11 CALCULATION OF TIME PERIODS. 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
Property is 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 5:00 p.m. local
time in the state in which the Real Property is located.
12.12 EXECUTION IN COUNTERPARTS. This Agreement may be executed in any
number of Counterparts, each of which shall be deemed to be an original, and all
of such counterparts shall constitute one Agreement. To facilitate execution of
this Agreement, the parties may execute and exchange by telephone facsimile
counterparts of the signature pages, provided that executed originals thereof
are forwarded to the other party on the same day by any of the delivery methods
set forth in SECTION 12.9 other than facsimile.
12.13 NO RECORDATION. Without the prior written consent of Seller, there
shall be no recordation of either this Agreement or any memorandum hereof, or
any affidavit pertaining hereto, and any such recordation of this Agreement or
memorandum or affidavit by Purchaser without the prior written consent of Seller
shall constitute a default hereunder by Purchaser, whereupon Seller shall have
the remedies set forth in SECTION 10.1 hereof.
12.14 FURTHER ASSURANCES. In addition to the acts and deeds recited herein
and contemplated to be performed, executed and/or delivered by either party at
Closing, each party agrees to perform, execute and deliver, but without any
obligation to incur any additional liability or expense, on or after the Closing
any further deliveries and assurances as may be reasonably necessary to
consummate the transactions contemplated hereby or to further perfect the
conveyance, transfer and assignment of the Property to Purchaser.
12.15 DISCHARGE OF OBLIGATIONS, The acceptance of the Deed by Purchaser
shall be deemed to be a full performance and discharge of every representation
and warranty made by Seller herein and every agreement and obligation on the
part of Seller to be performed pursuant to the provisions of this Agreement,
except those which are herein specifically stated to survive Closing.
12.16 ERISA. Under no circumstances shall Purchaser have the right to
assign this Agreement to any person or entity owned or controlled by an employee
benefit plan if Seller's sale of the Property to such person or entity would, in
the reasonable opinion of Seller's ERISA advisors or consultants, create or
otherwise cause a "prohibited transaction" under ERISA. In the event Purchaser
assigns this Agreement or transfers any ownership interest in Purchaser, and
such assignment or transfer would make the consummation of the transaction
hereunder a "prohibited transaction" under ERISA and necessitate the termination
of this Agreement then,
- 29 -
notwithstanding any contrary provision which may be contained herein, Seller
shall have the right to terminate this Agreement.
12.17 NO THIRD PARTY BENEFICIARY. The provisions of this Agreement and of
the documents to be executed and delivered at Closing are and will be for the
benefit of Seller, Asset Manager and Purchaser only and are not for the benefit
of any third party (other than Asset Manager), and accordingly, no third party
(other than Asset Manager) shall have the right to enforce the provisions of
this Agreement or of the documents to be executed and delivered at Closing.
12.18 ASSET MANAGER: DESIGNATED REPRESENTATIVE. Seller has engaged Archon
Group, L.P. or affiliated companies ("ASSET MANAGER") to provide certain asset
management services with respect to the Property, including acting as a liaison
between Seller and Purchaser in connection with the Property and this Agreement.
The Asset Manager will appoint one or more representatives ("DESIGNATED
REPRESENTATIVE(S)") to deal with Purchaser. Whenever any approval, acceptance,
consent, direction or action of Seller is required pursuant to this Agreement,
Purchaser shall send to the Designated Representative a written notice
requesting same, which notice shall: (i) describe in detail the matter for which
such approval, acceptance, consent, direction or other action of Seller is
requested; (ii) be accompanied by a copy of any contract, agreement or other
document to be executed by Seller evidencing such approval, consent, acceptance,
direction or action of Seller; and (iii) be accompanied by such other documents,
written explanations and information as may be reasonably necessary to explain
the request fully and completely. The Asset Manager will communicate Seller's
response to any such requests to Purchaser.
12.19 MANDATORY ARBITRATION. The parties have agreed to submit certain
disputes to mandatory arbitration in accordance with the provisions of EXHIBIT H
attached hereto and made a part hereof for all purposes.
12.20 FURTHER OFFERS. For so long as this Agreement remains in effect,
Purchaser and Seller agree to negotiate exclusively with each other, in good
faith, toward the consummation of the transaction contemplated in this
Agreement. In this regard, unless and until this Agreement is terminated by
either party pursuant to the terms of this Agreement, Seller agrees to cease all
responses to, negotiations, discussions or inquiries with, and/or any
solicitations of, any other prospective purchaser with regard to sale of the
Property, and Purchaser agrees to cease all responses to, negotiations,
discussions or inquiries with, and/or any solicitations of, any other person or
entity with regard to Purchaser's prospective purchase of real property as
contemplated in this Agreement.
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SIGNATURE PAGE TO AGREEMENT OF
PURCHASE AND SALE
BY AND BETWEEN
W9/TIB III REALTY, L.L.C.
AND
HITTITE MICROWAVE CORPORATION
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
day and year written below.
SELLER:
W9/TIB III REALTY, L.L.C.,
a Delaware limited liability company
Date executed by Seller: By:/s/ Xxxxxxx X. Xxxx III
-----------------------------------
Name: Xxxxxxx X. Xxxx III
---------------------------------
4/16/04 Title: Assistant Vice President
--------------------------- --------------------------------
PURCHASER:
Hittite Microwave Corporation, a Delaware
corporation
Date executed by Purchaser: By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
---------------------------------
Title: Chief Finance Officer
--------------------------- --------------------------------
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JOINDER BY ESCROW AGENT
Escrow Agent has executed this Agreement in order to confirm that Escrow Agent
has received and shall hold the Xxxxxxx Money required to be deposited under
this Agreement and the interest earned thereto, in escrow, and shall disburse
the Xxxxxxx Money, and the interest earned thereon, pursuant to the provisions
of this Agreement.
COMMONWEALTH LAND TITLE INSURANCE
COMPANY
Date executed by Escrow By: /s/ Xxxxx X. Xxxxxxx
Agent -----------------------------------
Name: Xxxxx X. Xxxxxxx
----------------------------------
4/20/04 Title: Senior Branch Counsel
--------------------------- ------------------------
- 32 -
