EXHIBIT 2.2
PURCHASE AND SALE AGREEMENT
AND JOINT ESCROW INSTRUCTIONS
February 29, 2000
BY AND BETWEEN
ALEXANDRIA REAL ESTATE EQUITIES, INC.,
a Maryland corporation
"Buyer"
AND
GENERAL SCANNING INC.,
a Massachusetts corporation
"Seller"
TABLE OF CONTENTS
Page
----
1 AGREEMENT TO PURCHASE AND SELL ...................................... 2
2 PURCHASE PRICE ...................................................... 2
2.1 Deposit ....................................................... 2
2.2 Balance ....................................................... 3
2.3 Allocation of Purchase Price .................................. 3
3 DUE DILIGENCE ....................................................... 3
3.1 Property Documents ............................................ 3
3.2 Investigations ................................................ 4
3.3 Occupants ..................................................... 4
3.4 CC&Rs ......................................................... 5
3.5 Property Questionnaire ........................................ 5
3.6 Termination Right ............................................. 5
3.8 Insurance ..................................................... 6
3.9 Indemnity and Repair .......................................... 6
3.10 Title ......................................................... 6
3.10.1 Deliveries by Seller ................................... 6
3.10.2 Buyer's Review of Title ................................ 7
3.10.3 Seller's Obligations Regarding Title ................... 7
3.10.4 Condition of Title at Closing .......................... 8
4 SELLER'S REPRESENTATIONS AND WARRANTIES ............................. 8
4.1 Authority ..................................................... 8
4.2 No Conflicts .................................................. 9
4.4 Property Documents ............................................ 9
4.5 Tenant Leases ................................................. 9
4.7 Unpaid Commissions ............................................ 10
4.8 Special Assessments or Condemnation ........................... 10
4.9 Service Contracts ............................................. 10
4.10 Employees ..................................................... 10
4.11 Existing Approvals ............................................ 10
4.12 Insurance ..................................................... 10
4.13 Litigation .................................................... 11
4.14 Compliance with Laws .......................................... 11
4.15 Environmental Materials ....................................... 11
4.16 No Income ..................................................... 13
4.17 Survival ...................................................... 13
4.18 Seller's Knowledge ............................................ 13
4.19 As-Is ......................................................... 13
5 BUYER'S REPRESENTATIONS AND WARRANTIES .............................. 14
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5.1 No Conflicts .................................................. 14
5.2 Due Organization: Consents .................................... 14
5.3 Buyer's Authority; Validity of Agreements ..................... 14
5.4 Bankruptcy .................................................... 14
6 COVENANTS OF SELLER AND BUYER ....................................... 14
6.1 Covenants of Seller ........................................... 14
6.1.1 Title ................................................... 15
6.1.2 Notice of Change in Circumstances ....................... 15
6.1.3 No Defaults: Maintenance of Property .................... 15
6.1.4 Exclusive Negotiations .................................. 15
6.1.5 Development Activities .................................. 15
6.1.6 Service, Management and Employment Contracts ............ 16
6.1.7 Tenant Leases ........................................... 16
6.1.8 Insurance ............................................... 16
6.1.9 Litigation .............................................. 16
6.2 Covenants of Buyer ............................................ 16
6.2.1 Development Activities .................................. 16
7 CONDITIONS PRECEDENT TO CLOSING ..................................... 17
7.1 Buyer's Conditions ............................................ 17
7.1.1 Title ................................................... 17
7.1.2 Seller's Due Performance ................................ 17
7.1.3 Condition of Property ................................... 17
7.1.4 Bankruptcy .............................................. 17
7.1.6 No Moratoria ............................................ 18
7.2 Failure of Buyer's Conditions ................................. 18
7.2.1 Waive and Close ......................................... 18
7.2.2 Terminate ............................................... 18
7.3 Seller's Conditions ........................................... 18
7.3.1 Buyer's Due Performance ................................. 18
7.3.2 Bankruptcy .............................................. 18
7.4 Failure of Seller's Conditions ................................ 18
8 CLOSING ............................................................. 19
8.1 Closing Date .................................................. 19
8.2 Closing Costs ................................................. 19
9 CLOSING DELIVERIES .................................................. 20
9.1 Deliveries by Seller to Escrow ................................ 20
9.1.1 Deed .................................................... 20
9.1.2 Non-foreign Affidavit ................................... 20
9.1.3 Xxxx of Sale and Assignment ............................. 20
9.1.4 Seller's Certificate .................................... 20
9.1.5 Proof of Authority ...................................... 20
9.1.6 Other ................................................... 20
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9.2 Deliveries by Buyer ........................................... 20
9.2.1 Balance, Prorations & Closing Costs: .................... 20
9.2.2 Buyer's Certificate ..................................... 20
9.2.4 Other ................................................... 21
9.3 Deliveries Outside of Escrow .................................. 21
9.3.1 Service Contracts ....................................... 21
9.3.2 Intangible Property ..................................... 21
9.3.3 Property Documents ...................................... 21
9.3.4 Personal Property ....................................... 21
9.3.5 Other ................................................... 21
10 PRORATIONS .......................................................... 22
10.1 Prorations .................................................... 22
10.2 Preliminary Closing Statement ................................. 22
11 ESCROW .............................................................. 23
11.1 Opening of Escrow ............................................. 23
11.2 Escrow Instructions ........................................... 23
11.3 Actions by Escrow Agent ....................................... 23
11.3.1 Recording .............................................. 23
11.3.2 Funds .................................................. 24
11.3.3 Owner's Title Policy ................................... 24
11.3.4 Delivery of Documents .................................. 24
11.4 Conflicting Demands ........................................... 24
11.5 Real Estate Reporting Person .................................. 25
11.6 Destruction of Documents; Survival ............................ 25
12 RISK OF LOSS ........................................................ 25
12.1 Condemnation .................................................. 25
12.2 Casualty ...................................................... 26
13 DEFAULT ............................................................. 26
13.1 Default by Buyer .............................................. 26
13.2 Default by Seller ............................................. 27
14 BROKERS ............................................................. 27
15 CONFIDENTIALITY ..................................................... 27
15.1 Buyer ......................................................... 27
15.2 Seller ........................................................ 28
16 MISCELLANEOUS PROVISIONS ............................................ 28
16.1 Governing Law and Jurisdiction ................................ 28
16.2 Entire Agreement .............................................. 28
16.3 Modifications; Waiver ......................................... 28
16.4 Notices ....................................................... 29
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16.5 Expenses ............................................................ 30
16.6 Assignment .......................................................... 30
16.6.1 Seller's Right to Assign ..................................... 30
16.6.2 Buyer's Right to Assign ...................................... 30
16.7 Severability ........................................................ 30
16.8 Successors and Assigns: Third Parties ............................... 31
16.9 Counterparts ........................................................ 31
16.10 Headings ............................................................ 31
16.11 Time of the Essence ................................................. 31
16.12 Further Assistance .................................................. 31
16.13 Number and Gender ................................................... 31
16.14 Construction ........................................................ 31
16.15 Post-Closing Access to Records ...................................... 31
16.16 Exhibits ............................................................ 32
16.17 Attorneys' Fees ..................................................... 32
16.18 Business Days ....................................................... 32
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LIST OF EXHIBITS
EXHIBIT A Legal Description
EXHIBIT B Intentionally Left Blank
EXHIBIT C-1 Personal Property Inventory
EXHIBIT C-2 Excluded Property
EXHIBIT D Allocation Schedule
EXHIBIT E Description of Property Documents
EXHIBIT F Intentionally Left Blank
EXHIBIT G Property Questionnaire
EXHIBIT H Surveyor's Certificate
EXHIBIT I Quitclaim Deed
EXHIBIT J Service Contracts
EXHIBIT K-1 Seller's Certificate
EXHIBIT K-2 Buyer's Certificate
EXHIBIT L Non-Foreign Affidavit
EXHIBIT M Intentionally Left Blank
EXHIBIT N Xxxx of Sale and Assignment
EXHIBIT 0 Approvals
EXHIBIT P Litigation
EXHIBIT Q Phase II Results
EXHIBIT R Environmental Reports
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PURCHASE AND SALE AGREEMENT
AND JOINT ESCROW INSTRUCTIONS
THIS PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS (this
"Agreement") is made and entered into as of February 29, 2000, by and between
ALEXANDRIA REAL ESTATE EQUITIES, INC., a Maryland corporation ("Buyer"), and
GENERAL SCANNING INC., a Massachusetts corporation ("Seller"), for the purposes
of setting forth the agreement of the parties and of instructing CHICAGO TITLE
INSURANCE COMPANY ("Escrow Agent"), with respect to the transactions
contemplated by this Agreement.
RECITALS
Upon and subject to the terms and conditions set forth in this Agreement,
Seller desires to sell and Buyer desires to purchase the following
(collectively, the "Property"):
(i) the fee interest in that certain real property commonly known as
000 Xxxxxxx Xxxxxx and located in the City of Watertown, County of
Middlesex, Commonwealth of Massachusetts, as legally described on Exhibit
A attached hereto, together with all rights, privileges and easements
appurtenant thereto or used in connection therewith, including, without
limitation, all minerals, oil, gas and other hydrocarbon substances
thereon, all development rights, air rights, water, water rights and water
stock relating thereto, all strips and gores, and all of Seller's right,
title and interest in and to any streets, alleys, easements,
rights-of-way, public ways, or other rights appurtenant, adjacent or
connected thereto or used in connection therewith (collectively, the
"Land");
(ii) all buildings, improvements, structures and fixtures now or
hereafter included or located on or in the Land (collectively, the
"Improvements"), and all apparatus, equipment, appliances and other
fixtures used in connection with the operation or occupancy of the Land
and the Improvements, such as heating, air conditioning or mechanical
systems and facilities used to provide any utility services,
refrigeration, ventilation, waste disposal or other services now or
hereafter located on or in the Land or the Improvements (provided,
however, the Improvements shall not include the items listed in Exhibit
C-2 attached hereto (the "Excluded Property"));
(iii) Seller's interest in all leases, licenses and other occupancy
agreements covering the Land and Improvements, if any (these leases,
together with all amendments, modifications, extensions or supplements
thereto or guarantees thereof, are collectively referred to in this
Agreement as the "Tenant Leases") (the Land, the Improvements and Seller's
interest in the Tenant Leases are sometimes hereinafter collectively
referred to as the "Real Property");
(iv) all tangible personal property, equipment and supplies
(collectively, the "Personal Property") now or hereafter owned by Seller
and located on or about the
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Land or the Improvements or attached thereto or used in connection with
the use, operation, maintenance or repair thereof, including, without
limitation, the personal property designated in Exhibit C-1 attached
hereto; provided, however, that such Personal Property shall not include
any of the Excluded Property listed in Exhibit C-2 attached hereto; and
(v) all intangible property (collectively, the "Intangible
Property") now or hereafter owned by Seller and used in connection with
the Land, the Improvements or the Personal Property, including, without
limitation, property or building-specific trademarks and trade names,
transferable licenses, architectural, site, landscaping or other permits,
applications, approvals, authorizations and other entitlements,
transferable guarantees and warranties covering the Land and/or
Improvements, all contract rights (including rights under the Service
Contracts (as hereinafter defined)), books, records, reports, test
results, environmental assessments, as-built plans, specifications and
other similar documents and materials relating to the use or operation,
maintenance or repair of the Property or the construction or fabrication
thereof, and all transferable utility contracts; provided, however, that
"Intangible Property" shall not include (A) intellectual property rights
related to Seller's business operations, or (B) intangible property
related to the Excluded Property.
NOW, THEREFORE, in consideration of the foregoing Recitals which are
incorporated herein by this reference, the mutual covenants contained in this
Agreement and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Buyer and Seller hereby agree, and
instruct Escrow Agent, as follows:
1 AGREEMENT TO PURCHASE AND SELL.
Subject to all of the terms and conditions of this Agreement, Seller
agrees to sell, transfer and convey to Buyer, and Buyer agrees to acquire and
purchase from Seller, the Property upon the terms and conditions set forth
herein.
2 PURCHASE PRICE.
The purchase price for the Property (the "Purchase Price") shall be the
sum of $10,350,000, payable as follows:
2.1 Deposit. Not later than the date which is 3 Business Days (as hereinafter
defined) after the Execution Date (as hereinafter defined), Buyer shall
deposit into Escrow the sum of $100,000 (which amount, together with any
and all interest and dividends earned thereon, shall hereinafter be
referred to as the "Initial Deposit"). In the event that Buyer does not
terminate this Agreement on or before the Due Diligence Termination Date
(as hereinafter defined), not later than the date which is 2 Business Days
after the Due Diligence Termination Date, Buyer shall deposit into Escrow
the sum of $300,000 (which amount, together with any and all interest and
dividends earned thereon, shall hereinafter be referred to as the
"Additional Deposit"). The Initial Deposit and the Additional Deposit
shall be referred to herein collectively as the "Deposit." For
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purposes of this Agreement, the "Execution Date" shall mean the date,
after Seller has executed this Agreement, that written notice to Seller
and Escrow Agent is delivered by Buyer advising that Buyer has executed
this Agreement. Within 5 Business Days after the Execution Date, Seller
and Buyer shall confirm in writing the specific dates for deadlines under
this Agreement based upon the Execution Date determined as provided above.
Escrow Agent shall deposit the Deposit in a non-commingled trust account
and shall invest the Deposit in insured money market accounts,
certificates of deposit, United States Treasury Bills or such other
instruments as Buyer may instruct from time to time. In the event of the
consummation of the purchase and sale of the Property as contemplated
hereunder, the Deposit shall be paid to Seller at the Closing (as defined
in Section 8 below) and credited against the Purchase Price. In the event
the sale of the Property is not consummated because of the termination of
this Agreement by Buyer in accordance with any right to so terminate
provided herein, or the failure of any Buyer's Conditions Precedent
(hereinafter defined), or for any other reason except for a default under
this Agreement solely on the part of Buyer, Buyer shall notify Escrow
Agent in writing of the same, and the Deposit shall be immediately
returned to Buyer.
2.2 Balance. On the Closing Date (as defined below), Buyer shall pay to Seller
the balance of the Purchase Price over and above the Deposit paid by Buyer
under Section 2.1 above, by wire transfer of federal funds to Escrow
Agent, net of all prorations and adjustments as provided herein.
2.3 Allocation of Purchase Price. Buyer and Seller hereby agree to allocate
the Purchase Price among the Property for all tax and non-tax purposes in
accordance with Exhibit D attached hereto (the "Allocation Schedule").
Buyer and Seller hereby agree that the Allocation Schedule shall be
prepared in a manner consistent with the rules prescribed under Section
1060 of the Internal Revenue Code of 1986, as amended (the "Code"). Buyer
and Seller hereby each (a) agree to utilize the amounts allocated pursuant
to the Allocation Schedule in filing all tax returns (including any
amended tax returns) and (b) agree not to take any position on or in
connection with any such tax return or otherwise that is inconsistent with
such allocation.
3 DUE DILIGENCE
3.1 Property Documents. Not later than the date which is 5 Business Days after
the Execution Date, Seller shall, at Seller's sole cost and expense,
deliver or make available to Buyer, to the extent such items are in
Seller's possession, or, with respect to such items not available in the
public records, to the extent that such items are in the possession or
control of Seller's agents, auditors, independent contractors or
representatives and Seller can, with diligent efforts, obtain possession
of such items after due inquiry and/or investigation, copies of all
agreements, contracts, documents, information, Tenant Leases (if any),
reports, books, records and other materials pertinent to the current or
future ownership, operation, occupancy, use, or management of the Property
including the items described in Exhibit E attached hereto (the "Property
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Documents"). Upon the date of satisfactory receipt of all of the Property
Documents, Buyer shall confirm the same to Seller in writing; provided,
however, (a) Buyer shall notify Seller in writing of any Property Document
not received by Buyer promptly after Buyer determines the same, and (b) on
or before the Due Diligence Termination Date, Buyer shall notify Seller in
writing of any Property Documents which Buyer then knows have not been
delivered to Buyer or obtained by Buyer through other sources.
3.2 Investigations. At all reasonable times from the Execution Date until the
Closing or earlier termination of this Agreement and upon not less than 24
hours prior notice provided prior to the date on which Buyer, its agents
and representatives perform the investigations contemplated herein
(provided, however, that Buyer shall only be obligated to provide such
notice once for each continuous period that Buyer shall be performing the
investigations contemplated herein), Buyer, its agents and representatives
shall be entitled at Buyer's sole cost and expense to (i) enter onto the
Property during normal business hours to perform any inspections,
investigations, studies and tests of the Property, including, without
limitation, physical, structural, mechanical, architectural, engineering,
soils, geotechnical and environmental/asbestos tests that Buyer deems
reasonable; (ii) cause environmental assessments of the Property to be
performed; (iii) review all Property Documents and examine and copy any
and all other books and records in the possession or control of Seller or
its agents relating to the Property (including, without limitation, all
documents relating to utilities, zoning, and the access, subdivision and
appraisal of the Property); and (iv) interview Seller's property manager
("Manager") and its employees, if any. In performing the investigations
contemplated herein, Buyer, its agents and representatives shall not
unreasonably interfere with Seller's operations at the Property.
3.2.1 Prior Environmental Due Diligence. Buyer has previously performed a
Phase I Environmental Assessment of the Property, a Phase II
Environmental Assessment of the Property (the "Phase II"), other
related environmental testing of the Property, and interviews with
tenants, property managers and Seller's personnel in connection
therewith (collectively, the "Prior Investigations"). Seller hereby
agrees and acknowledges that Buyer has previously delivered to
Seller the results of the Prior Investigations, which results are
summarized in Exhibit Q attached hereto and indicate the presence of
contamination at the Property (the "Existing Contamination").
Nothing contained herein shall be deemed or construed as Buyer's
approval of the environmental condition of the Property, the results
of the Prior Investigations or the Existing Contamination. Prior to
the Due Diligence Termination Date (as hereinafter defined) Buyer
intends to conduct further environmental investigations, including,
without limitation, with respect to the Existing Contamination,
obtaining opinion letters, in form and substance satisfactory to
Buyer in its sole and absolute discretion, from GZA
GeoEnvironmental, Inc., a Licensed Site Professional ("LSP") and
opinions from such other LSPs as Buyer shall deem necessary in its
sole and absolute discretion (collectively, the "LSP Opinions").
Prior to the Due Diligence
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Termination Date, Buyer shall deliver written notice to Seller as to
whether, as of the date of such LSP Opinions, Buyer is satisfied
with the LSP Opinions regarding the condition of the Existing
Contamination.
3.3 Occupants. The Property is 100% Seller-occupied. Not later than the date
which is 10 days after the Execution Date, Seller shall arrange for an
introduction of Buyer to such occupants of the Property as Buyer may
request and shall otherwise assist and cooperate with Buyer in providing
Buyer access to such occupants. Buyer and its agents, and employees shall
observe and comply with Seller's reasonable requests regarding entry into
facilities at the Property for purpose of inspection. Buyer may conduct
such inquiries and investigations of any and all occupants (or prospective
tenants) as Buyer, in its sole discretion, deems advisable or necessary.
3.4 CC&Rs. Buyer may conduct such inquiries and investigations of any and all
declarants or associations created by any covenants, conditions or
restrictions encumbering the Property ("CC&Rs") as Buyer, in its sole
discretion, deems advisable or necessary. Seller shall cooperate with
Buyer in Buyer's efforts to obtain not later than the date which is 5
Business Days before the Due Diligence Termination Date an estoppel
certificate, each substantially in form and substance acceptable to Buyer,
executed by each such declarant or association under any CC&Rs
(collectively, the "CC&Rs Estoppels"). Seller's obligation to cooperate
with Buyer under this section shall include (A) executing and delivering
letters to such declarants and/or associations, (B) telephoning the
representatives of such declarants and/or associations, and (C)
participating in such other follow up activities as may be reasonably
requested by Buyer.
3.5 Property Questionnaire. Not later than the date which is 10 days after the
Execution Date, Seller shall deliver to Buyer a property questionnaire in
the form attached hereto as Exhibit G (the "Property Questionnaire")
completed by Seller and its Manager, if any.
3.6 Termination Right. Buyer shall have the right at any time on or before
5:00 p.m. (Los Angeles, California time) on March 15, 2000 (the "Due
Diligence Termination Date") to terminate this Agreement if, during the
course of Buyer's due diligence investigations of the Property, Buyer
determines in its sole and absolute discretion that the Property or the
Property Questionnaire is not acceptable to Buyer. Buyer may exercise such
termination right by delivering written notice of termination to Seller
and Escrow Agent (a "Due Diligence Termination Notice") on or before the
Due Diligence Termination Date. Upon the timely delivery of such Due
Diligence Termination Notice, (i) Escrow Agent shall immediately return
the Deposit to Buyer, (ii) if Buyer has terminated for any reason (other
than a default by Seller or the failure of Seller to remove an Obligatory
Removal Exception (as hereinafter defined)), Buyer shall pay all
cancellation charges of Title Company (as hereinafter defined) and Escrow
Agent ("Cancellation Charges"), and (iii) this Agreement shall
automatically terminate and be of no further force or effect and neither
party shall have any further rights or obligations hereunder, other than
pursuant to any provision hereof which expressly survives the termination
of this Agreement. If Buyer has timely delivered to Escrow Agent a Due
Diligence Termination Notice, no
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notice to Escrow Agent from Seller shall be required for the return of the
Deposit to Buyer. If Buyer does not exercise such termination by delivery
of the Due Diligence Termination Notice on or before the Due Diligence
Termination Date, then Buyer's right to terminate this Agreement pursuant
to this Section shall automatically lapse.
3.7 Return of Property Documents; Third-Party Reports. In the event that Buyer
terminates this Agreement pursuant to Section 3.6 herein, (a) Buyer shall
return to Seller all Property Documents delivered by Seller to Buyer
within 10 Business Days of such termination, and (b) Buyer shall deliver
to Seller such reports and studies prepared for Buyer by independent third
party consultants and engineers (the "Third Party Reports") as Seller
shall request in writing; provided, however, Buyer's obligation to deliver
such Third Party Reports shall be subject to the following conditions: (i)
the preparer of such requested Third Party Report shall consent to the
delivery of such Third Party Report to Seller, without any cost or expense
to Buyer, (ii) Seller shall reimburse Buyer for the cost (or such portion
thereof acceptable to Buyer in its sole and absolute discretion) of
obtaining such Third Party Report, and (iii) such Third Party Report shall
be delivered subject to Buyer's and such preparer's standard
acknowledgments and disclaimers. Notwithstanding anything to the contrary
contained herein, Buyer shall not be obligated to deliver to Seller any
confidential or privileged information, documents or reports, whether
prepared internally by Buyer or prepared by third parties.
3.8 Insurance. Buyer agrees that from the Execution Date through the earlier
of (a) termination of this Agreement and (b) the Closing, Buyer shall
carry, or cause its agents and representatives that will enter the
Property in connection with the investigations pursuant to Section 3.2 to
carry, workers' compensation and general liability insurance in the amount
of $1,000,000 per occurrence, which insurance shall name Seller as an
additional insured; Buyer shall provide Seller with proof of such
insurance prior to commencing Buyer's physical inspections of the
Property.
3.9 Indemnity and Repair. Buyer agrees to indemnify and hold harmless Seller
from any losses, cost, damage and expenses arising from any actual damage
to the Property or any injury to persons caused by any act of Buyer or
Buyer's agents or representatives as a result of the inspections,
investigations, tests or other activities performed pursuant to Section
3.2 above, which indemnity shall survive the termination of this Agreement
or the Closing for a period of 90 days; provided, however, that Buyer's
indemnity hereunder shall not include any losses, cost, damage or expenses
resulting from (x) the acts of Seller, its agents or representatives, or
(y) the discovery of any pre-existing condition of the Property. In
addition, if this Agreement is terminated, Buyer shall repair any material
damage to the Property caused by its entry thereon and shall restore the
Property substantially to the condition in which it existed prior to such
entry; provided, however, that Buyer shall have no obligation to repair
any damage caused by the acts or omissions of Seller, its agents or
representatives or to remediate, contain, xxxxx or control any
pre-existing condition of the Property which existed prior to Buyer's
entry thereon.
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3.10 Title.
3.10.1 Deliveries by Seller. Buyer acknowledges that Seller has delivered
to Buyer (a) Seller's existing title policy for the Property, and
(b) the most recently updated as-built survey for the Property in
Seller's possession. Not later than 10 days after the Execution
Date, Buyer shall order (a) an ALTA extended coverage commitment
for title insurance (the "Commitment") issued by Chicago Title
Insurance Company (in such capacity, "Title Company"), together
with legible copies of all documents referenced as exceptions
therein, (b) a current As-Built American Land Title Association
survey of the Property (the "Survey"), in form reasonably
satisfactory to Buyer and Title Company, prepared by a surveyor
licensed in the State where the Property is located and certified
(using a surveyor's certificate in substantially the same form as
the certificate attached hereto as Exhibit H) to Buyer and Title
Company and such other persons or entities as Buyer may, in its
discretion, request, and (c) a UCC Search with regard to Seller
and the Property (the "UCC Search").
3.10.2 Buyer's Review of Title. Buyer shall have until the Due Diligence
Termination Date to notify Seller in writing of any objection
which Buyer may have to any exception reported in the Commitment
or matter shown on the Survey or the UCC Search or any updates
thereof; provided, however, that if any such updates are received
by Buyer, Buyer shall have an additional 5 Business Days,
regardless of the Due Diligence Termination Date or Closing Date,
following Buyer's receipt of such update and legible copies of all
documents referenced therein to notify Seller of objections to
items shown on any such update. Exceptions reported in the
Commitment and matters shown on the Survey or the UCC Search (or
any updates thereof) not objected to by Buyer as provided above
shall be deemed to be "Permitted Exceptions."
3,10.3 Seller's Obligations Regarding Title. As a condition to Closing,
Seller shall take all action necessary to remove from title to the
Property (or in the alternative, Seller shall obtain for Buyer
title insurance insuring over such exceptions or matters, such
insurance to be in form and substance satisfactory to Buyer in its
sole discretion) the following matters: (a) all exceptions to
title and survey matters created by Seller on or after the
Execution Date without the prior written consent of Buyer (which
consent may be withheld in Buyer's sole and absolute discretion);
(b) any and all liens and encumbrances affecting the Property
which secure an obligation to pay money (other than installments
of real estate taxes or assessments not delinquent as of the
Closing); (c) all taxes and assessments due and payable for any
period prior to the Closing; and (d) all claims of any right to
occupancy, use or possession other than under the Permitted
Exceptions (collectively, the "Obligatory Removal Exceptions").
If, prior to the Closing, Seller is unable to remove or
satisfactorily insure over any of the Obligatory Removal
Exceptions, then, in addition to any and all other rights and
remedies which Buyer may have hereunder, Buyer may (a) terminate
this Agreement by delivering written notice to Seller and Escrow
Agent (in which
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case Escrow Agent shall return the Deposit to Buyer, and Seller
shall pay the Cancellation Charges), and Seller shall reimburse
Buyer for all of Buyer's out-of-pocket costs and expenses incurred
in connection with the transaction contemplated by this Agreement
up to a maximum amount of $150,000 (including attorneys' fees
incurred in connection with the transaction contemplated by this
Agreement up to a maximum amount of $15,000 (excluding, however,
attorneys' fees incurred by Buyer in connection with the
negotiation of this Agreement) and excluding the cost of obtaining
any Third Party Report not delivered to Seller hereunder;
provided, however, that (A) the $150,000 cap on such reimbursement
shall not apply to Seller's independent obligation to reimburse
Buyer for a portion of Buyer's Phase II due diligence costs, (B)
Buyer shall deliver to Seller a commercially reasonable detailed
invoice for such costs and expenses, and (C) Buyer shall deliver
to Seller such Third Party Reports as Seller shall request in
writing (provided that (x) such requested Third Party Report shall
be delivered subject to Buyer's and such preparer's standard
acknowledgments and disclaimers and (y) the preparer of such
requested Third Party Report shall consent to the delivery of such
Third Party Report to Seller, without any cost or expense to
Buyer), and thereafter neither party shall thereafter have any
rights or obligations to the other hereunder, other than pursuant
to any provision hereof which expressly survives the termination
of this Agreement; (b) pursue an action for specific performance
to compel Seller to remove the Obligatory Removal Exceptions; or
(c) waive Buyer's objections to such Obligatory Removal Exceptions
and proceed to a timely Closing whereupon such Obligatory Removal
Exceptions shall be deemed "Permitted Exceptions." If, prior to
the Closing, Seller is unable to, or elects not to, remove or
satisfactorily insure over any other exceptions or matters
objected to by Buyer in accordance with Section 3.10.2 (other than
Obligatory Removal Exceptions), then, in addition to any and all
other rights and remedies which Buyer may have hereunder, Buyer
may (x) terminate this Agreement by delivering written notice to
Seller and Escrow Agent (in which case Escrow Agent shall return
the Deposit to Buyer, and Buyer shall pay the Cancellation
Charges), and thereafter neither party shall thereafter have any
rights or obligations to the other hereunder, other than pursuant
to any provision hereof which expressly survives the termination
of this Agreement; or (y) waive Buyer's objections to such other
exceptions and matters (other than Obligatory Removal Exceptions)
and proceed to a timely Closing whereupon such other exceptions
and matters shall be deemed "Permitted Exceptions."
3.10.4 Condition of Title at Closing. Upon the Closing, Seller shall
sell, transfer and convey to Buyer indefeasible fee simple title
to the Land and the Improvements thereon by a duly executed and
acknowledged quitclaim deed in the form of Exhibit I attached
hereto (the "Deed"), subject only to the Permitted Exceptions.
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4 SELLER'S REPRESENTATIONS AND WARRANTIES.
Seller represents and warrants to and agrees with Buyer that, as of the
date hereof and as of the Closing Date:
4.1 Authority. Within 10 days from the Execution Date, this Agreement and all
other documents delivered prior to or at the Closing (i) shall have been
duly authorized, executed, and delivered by Seller; (ii) shall be binding
obligations of Seller; (iii) shall be collectively sufficient to transfer
all of Seller's rights to the Property; and (iv) shall not violate the
formation documents of Seller. Seller shall, within 5 days from the
Execution Date, obtain all required consents, releases, and approvals
necessary to execute this Agreement and consummate the transaction
contemplated by this Agreement. Upon obtaining such required consents,
releases, and approvals necessary to execute this Agreement and consummate
the transaction contemplated by this Agreement, Seller shall promptly
notify Buyer in writing of the same and deliver Buyer a certificate
executed by Seller confirming that all such required consents, releases
and approvals described in this Section 4.1 have been obtained. Seller
further represents that it is a corporation, duly organized and existing
in good standing under the laws of the Commonwealth of Massachusetts, with
its principal place of business in the Commonwealth of Massachusetts.
4.2 No Conflicts. The execution and delivery of this Agreement, the
consummation of the transactions herein contemplated, and compliance with
the terms of this Agreement will not conflict with, or, with or without
notice or the passage of time or both, result in a breach of any of the
terms or provisions of, or constitute a default under, any indenture, deed
of trust, mortgage, loan agreement, or other document, or instrument or
agreement, oral or written, to which Seller is a party or by which Seller
or the Property is bound, or any applicable regulation of any governmental
agency, or any judgment, order or decree of any court having jurisdiction
over Seller or all or any portion of the Property.
4.3 Preferential Rights, Seller has not granted any options or rights of first
refusal or rights of first offer to third parties to purchase or otherwise
acquire an interest in the Property.
4.4 Property Documents. The Property Documents required to be delivered by
Seller pursuant to the terms hereof constitute all of the material
documents relating to the Property that are in (i) Seller's possession or
(ii) with respect to such items not available in the public records, the
possession or control of Seller's agents, auditors, independent
contractors or representatives, to the extent Seller could have with
diligent efforts obtained possession of such items after due inquiry
and/or investigation. Each such Property Document as delivered by Seller
constitutes a true, correct and complete copy of such Property Document.
There are no commitments or agreements affecting the Property which have
not been disclosed by Seller to Buyer in writing. Seller is not in default
of Seller's obligations or liabilities pertaining to the Property or the
Property Documents; nor, to Seller's Knowledge, are there facts,
circumstances, conditions, or events which, after notice or lapse of time,
would constitute a default. Seller has not
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received notice or information that any party to any of the Property
Documents considers a breach or default to have occurred.
4.5 Tenant Leases. As of the Execution Date, there are no Tenant Leases
affecting the Property and the Property is 100% Seller occupied. Buyer
acknowledges that Seller has advised Buyer that (a) Seller is
contemplating selling its printed circuit board ("PCB") division to a
third party, and (b) in connection with such sale, Seller and the new
owner of the PCB division may enter into an agreement for the continued
use and occupancy by the PCB division of a portion of the Property (the
"PCB Agreement"); provided however, that such PCB Agreement shall provide
that all rights of such third party to such continued use, occupancy and
possession of the Property shall terminate on or before September 19, 2000
and such third party shall vacate and surrender the Property prior to the
Closing. There shall be no documents or agreements binding upon the
Property or Buyer after the Closing which grant rights to third parties
(including any third party owner of the PCB division) to occupy or possess
the Property or any portion thereof or interest therein. As of the
Execution Date, no person or entity other than Seller has any claim to
use, occupancy or possession of the Property other than under the
Permitted Exceptions. As of the time immediately prior to the Closing, no
person or entity other than Seller shall have any claim to use, occupancy
or possession of the Property other than under the Permitted Exceptions.
4.6 Bankruptcy. No attachments, execution proceedings, assignments for the
benefit of creditors, insolvency, bankruptcy, reorganization or other
proceedings are pending, or, to Seller's knowledge, threatened against
Seller.
4.7 Unpaid Commissions. As of the Closing Date, there will be no brokerage or
other leasing commissions due or payable on an absolute or contingent
basis to any person in connection with any tenants or Tenant Leases.
4.8 Special Assessments or Condemnation. To Seller's Knowledge, there are no
existing, proposed or contemplated (i) special assessments, except those
shown as exceptions on the Commitment, or (ii) condemnation actions
against the Property or any part. Seller has not received notice of any
contemplated special assessments or eminent domain proceedings that would
affect the Property.
4.9 Service Contracts. There are no service, maintenance, repair, management,
leasing, or supply contracts or other contracts (including, without
limitation, janitorial, elevator and landscaping agreements) affecting the
Property, oral or written, except as set forth on the schedule attached
hereto as Exhibit J (the "Service Contracts") and, except as set forth on
such schedule, all Service Contracts are cancelable without cost at the
option of Seller or the then owner of the Property upon not more than 30
days prior written notice.
4.10 Employees. There are no employees who are employed by Seller or Manager in
the operation, management or maintenance of the Property and whose
employment will continue after the Closing. On and after the Closing,
there will be no obligations
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concerning any pre-Closing employees of Seller or Manager which will be
binding upon Buyer or the Property.
4.11 Existing Approvals. To Seller's Knowledge, the documents set forth on
Exhibit O attached hereto (collectively, the "Approvals") are in full
force and effect and, constitute all necessary or appropriate
certifications, approvals, consents, authorizations, licenses, permits,
easements, rights of way, and all valid, final and unconditional
certificates of occupancy, or the equivalent permitting required by the
applicable licensing agency, or required by any governmental authority in
connection with the ownership, development, use and maintenance of the
Property. To Seller's Knowledge, all of the Approvals are transferable to
Buyer without the necessity of any approval or consent or additional
payment and no such transfer will affect the validity thereof.
4.12 Insurance. There are currently in effect such insurance policies as are
customarily maintained with respect to similar properties. Seller has not
received any notice or request from any insurance company requesting the
performance of any work or alteration with respect to the Property. Seller
has received no notice from any insurance company concerning, nor, to
Seller's Knowledge, are there any defects or inadequacies in the Property
which, if not corrected, would result in the termination of insurance
coverage or increase its cost.
4,13 Litigation. Except as set forth on the schedule attached hereto as Exhibit
P, there are no actions, suits or proceedings before any judicial or
quasi-judicial body, pending, or to Seller's Knowledge, threatened,
against or affecting all or any portion of the Property.
4,14 Compliance with Laws. To Seller's Knowledge, the Property is in full
compliance with all existing laws, rules, regulations, ordinances and
orders of all applicable federal, state, city and other governmental
authorities in effect as of the date of this Agreement (collectively,
"Laws"), including, without limitation, all Laws with respect to zoning,
building, fire and health codes, environmental protection and sanitation
and pollution control and the Americans with Disabilities Act, as amended.
Seller has received no notice of, and has no Knowledge of, any condition
currently or previously existing on the Property or any portion thereof
which may give rise to any violation of any Laws applicable to the
Property if it were disclosed to the authorities having jurisdiction over
the Property.
4.15 Environmental Materials.
4.15.1 Definitions.
(a) "Environmental Claim" means any and all actions
(including, without limitation, investigatory, remedial or
enforcement actions of any kind, administrative or judicial
proceedings, and orders or judgments arising out of or resulting
therefrom), costs, claims, damages (including, without limitation,
punitive damages), expenses (including, without limitation,
attorneys', consultants' and experts' fees, court costs and amounts
paid in settlement of any
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claims or actions), fines, forfeitures or other civil,
administrative or criminal penalties, injunctive or other relief
(whether or not based upon personal injury, property damage, or
contamination of, or adverse effects upon, the environment, water
tables or natural resources), liabilities or losses arising from or
relating to the presence or suspected presence of any Environmental
Materials in, on, under, or about the Property or properties
adjacent thereto.
(b) "Environmental Materials" means chemicals, pollutants,
contaminants, wastes, toxic substances, petroleum and petroleum
products or any other chemical, material, or substance that, because
of its quantity, concentration, or physical or chemical
characteristics, exposure to which is limited or regulated for
health and safety reasons by any governmental authority, or which
poses a significant present or potential hazard to human health and
safety or to the environment if released into the workplace or the
environment.
4.15.2 Representations and Warranties. Seller represents and warrants to
and agrees with Buyer that, as of the date hereof, and as of the
Closing Date: (i) except with respect to the Existing
Contamination disclosed by the Prior Investigations, to Seller's
Knowledge, each of the Property and Seller is in full compliance
with all Laws relating to Environmental Materials, which
compliance includes, but is not limited to, the possession by
Seller of all permits and other governmental authorities required
under applicable Laws, and compliance with the terms and
conditions thereof; (ii) except as disclosed in the reports
described in Exhibit R attached hereto (the "Environmental
Reports"), Seller has not received any communication (written or
oral) that alleges that Seller or the Property is not in such full
compliance and, to Seller's Knowledge, there are no circumstances
that may prevent or interfere with such full compliance in the
future; (iii) except as disclosed in the Environmental Reports,
there is no Environmental Claim pending or, to Seller's Knowledge,
threatened with regard to the Property; (iv) except as disclosed
in the Environmental Reports, to Seller's Knowledge, there are no
past or present actions, activities, circumstances, conditions,
events or incidents relating to the Environmental Materials that
could form the basis of any Environmental Claim against Seller or
against any person or entity, including, without limitation,
persons or entities whose liability for any such Environmental
Claim Seller has or may have retained or assumed either
contractually or by operation of law; (v) except as disclosed in
the Environmental Reports, Seller has received no notice of any
past or present actions, activities, circumstances, conditions,
events or incidents relating to the Environmental Materials that
could form the basis of any Environmental Claim against Seller or
against any person or entity, including, without limitation,
persons or entities whose liability for any such Environmental
Claim Seller has or may have retained or assumed either
contractually or by operation of law; and (vi) without in any way
limiting the generality of the foregoing, except as set forth in
the Environmental Reports, to Seller's Knowledge (a) Seller has
not used, stored, generated, released, disposed or arranged for
the disposal of Environmental Materials on the Property, (b) there
are no underground storage tanks located on
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the Property, (c) there is no asbestos contained in or forming
part of any Improvement, including, without limitation, any
building, building component, structure or office space on the
Property, and (d) no polychlorinated biphenyls (PCBs) are used or
stored at the Property.
4.15.3 Indemnification. Seller hereby indemnifies and agrees to
reimburse, defend, and hold Buyer harmless from, for and against
all Environmental Claims arising from, asserted against, imposed
on, or incurred by Buyer, directly or indirectly, in connection
with (i) the breach of any representation or warranty set forth in
Section 4.15.2 of this Agreement, or (ii) any event or condition,
occurring or arising after the date of the Environmental Reports
prepared on behalf of Buyer and prior to the Closing. With respect
to the matters covered by clause (i) above, the indemnity in this
Section shall survive the Closing until the final resolution of
all claims raised by Buyer within 18 months from the Closing Date,
and, with respect to the matters covered by clause (ii) above, the
indemnity in this Section shall survive until the date all of the
following conditions are satisfied: (x) Seller has completely
vacated the Property, (y) Buyer has received from its
environmental consultants an environmental exit audit (the
"Environmental Exit Audit") for the Property indicating that,
except as disclosed in the Environmental Reports, there are no
events or conditions relating to Environmental Materials which
have arisen in connection with Seller's continued use and
occupancy of the Property (or the continued use and occupancy of
the Property by Seller's PCB division) that could form the basis
of any Environmental Claim against Seller, Buyer, the Property or
against any person or entity, and (c) any deficiencies noted in
the Environmental Exit Audit have been resolved. Buyer shall use
commercially reasonable efforts to cause its environmental
consultants to issue the Environmental Exit Audit within 30 days
from the date on which Seller has completely vacated the Property.
Notwithstanding anything contained herein to the contrary, Buyer
may have non-contractual statutory and common law rights and
remedies against Seller for non-disclosure or noncompliance with
certain matters which are also the subject matter of the
representations, warranties and agreements contained in this
Section, and the limited representations, warranties and
agreements and limited survival periods set forth herein will not
be deemed or construed as limiting, waiving or relinquishing any
such non-contractual statutory or common law right or remedy, and
the effect of the representations, warranties and agreements made
in this Section will not be diminished or deemed to be waived by
any inspections, tests or investigations made by Buyer or its
agents.
4.16 No Income. As of the Execution Date, there are no rentals, revenues or
other income, of any kind whatsoever, from the Property.
4.17 Survival. All of the representations, warranties and agreements of Seller
set forth in Article 4, Article 10, Article 14, Section 15.2 and Article
16 shall be true upon the execution of this Agreement, shall be deemed to
be repeated at and as of the Closing Date without the necessity of a
separate certificate with respect thereto and shall survive
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the delivery of the Deed and other Closing instruments and documents for a
period of 12 months from the Closing Date, except for the representations
and warranties contained in Section 4.15 herein, which shall survive for a
period of 18 months from the Closing Date and the indemnity contained in
Section 4.15.3 herein, which shall survive as set forth in such Section
4.15.3. Notwithstanding anything contained herein to the contrary,
Seller's liability with respect to any breach by Seller of any covenant
contained in Section 6.1 herein, of which Buyer first obtains actual
knowledge after the Closing and for which Buyer has not specifically
waived in a writing executed by Buyer shall survive for the longest period
permitted by applicable law.
4.18 Seller's Knowledge. As used in this Agreement, the phrase "to Seller's
Knowledge" and words of similar import shall mean the actual knowledge of
Xxxxxx X. Xxxxx, and Xxx Xxxxxx, without any duty of inquiry or
investigation. Seller represents and warrants that the foregoing persons
are those persons affiliated with Seller most knowledgeable regarding the
ownership and operation of the Property, possessing the greatest
experience and familiarity with the Property, that no other person
presently affiliated with Seller possesses any equal or greater
familiarity and experience with the Property, that Xxxxxx X. Xxxxx has
been involved with the Property since March 1, 1999 and that Xxx Xxxxxx
has been involved with the Property since June 1, 1993.
4.19 As-Is. Except as expressly set forth in this Article 4, Section 6.1,
Article 10, and Article 16 and except for those warranties, expressly set
forth, or implied by law, in the Deed or other documents delivered at the
Closing, at the Closing, Seller shall convey the Property to Buyer and
Buyer shall accept the Property in its present "AS-IS" condition, without
any warranties, expressed or implied.
5 BUYER'S REPRESENTATIONS AND WARRANTIES.
Buyer represents and warrants to and agrees with Seller that, as of the
date hereof, and as of the Closing Date (or the earlier termination of this
Agreement):
5.1 No Conflicts. The execution and delivery of this Agreement, the
consummation of the transactions herein contemplated, and compliance with
the terms of this Agreement will not conflict with, or, with or without
notice or the passage of time or both, result in a breach of any of the
terms or provisions of, or constitute a default under, any indenture, deed
of trust, mortgage, loan agreement, or other document or instrument to
which Buyer is a party or by which Buyer is bound, or any applicable
regulation of any governmental agency, or any judgment, order or decree of
any court having jurisdiction over Buyer or all or any portion of the
Property.
5.2 Due Organization: Consents. Buyer is a corporation duly organized and
existing in good standing under the laws of the State of Maryland with its
principal place of business in the State of California. All requisite
corporate action has been taken by Buyer in connection with entering into
this Agreement, and will be taken prior to the Closing in connection with
the execution and delivery of the instruments referenced herein and the
consummation of the transactions contemplated hereby. No consent of
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any partner, shareholder, beneficiary, creditor, investor, judicial or
administrative body, governmental authority or other party is required in
connection herewith which has not been obtained.
5.3 Buyer's Authority; Validity of Agreements. Buyer has full right, power and
authority to purchase the Property from Seller as provided in this
Agreement and to carry out its obligations hereunder. The individual(s)
executing this Agreement and the instruments referenced herein on behalf
of Buyer have the legal power, right and actual authority to bind Buyer to
the terms hereof and thereof. This Agreement is and all other documents
and instruments to be executed and delivered by Buyer in connection with
this Agreement shall be duly authorized, executed and delivered by Buyer
and shall be valid, binding and enforceable obligations of Buyer.
5.4 Bankruptcy. No attachments, execution proceedings, assignments for the
benefit of creditors, insolvency, bankruptcy, reorganization or other
proceedings are pending, or, to Buyer's knowledge, threatened against
Buyer.
6 COVENANTS OF SELLER AND BUYER.
6.1 Covenants of Seller. In addition to the covenants and agreements of Seller
set forth elsewhere in this Agreement, Seller covenants and agrees that
between the date hereof and the Closing Date (or the earlier termination
of this Agreement):
6.1.1 Title. Seller shall not (a) directly or indirectly sell, assign or
create any right, title or interest whatsoever in or to the Property
(other than the PCB Agreement), (b) take any action, create, commit,
permit to exist or suffer any acts which would (i) give rise to a
variance from the current legal description of the Land, or (ii)
cause the creation of any lien, charge or encumbrance other than the
Permitted Exceptions, or (c) enter into any agreement to do any of
the foregoing without Buyer's prior written consent (which consent
may be withheld in Buyer's sole and absolute discretion).
6.1.2 Notice of Change in Circumstances. Seller shall promptly notify
Buyer of any change in any condition with respect to the Property or
any portion thereof or of any event or circumstance of which Seller
has Knowledge subsequent to the date of this Agreement which (a)
materially, adversely affects the Property or any portion thereof or
the use or operation of the Property or any portion thereof, (b)
makes any representation or warranty of Seller to Buyer under this
Agreement untrue or misleading, or (c) makes any covenant or
agreement of Seller under this Agreement incapable or less likely of
being performed, it being expressly understood that Seller's
obligation to provide information to Buyer under this Section shall
in no way relieve Seller of any liability for a breach by Seller of
any of its representations, warranties, covenants or agreements
under this Agreement.
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6.1.3 No Defaults; Maintenance of Property. Seller shall not default with
respect to the performance of any obligation relating to the
Property, including, without limitation, the payment of all amounts
due and the performance of all obligations with respect to the
Service Contracts and any existing indebtedness relating to the
Property. Subject to Section 12, Seller shall operate and maintain
the Property in its current condition, reasonable wear and tear
excepted, in accordance with all applicable Laws.
6.1.4 Exclusive Negotiations. Seller shall (i) remove the Property from
the market, (ii) cease and refrain from any and all negotiations
with any other prospective optionees or purchasers of the Property,
and (iii) refrain from any and all negotiations with potential
tenants for the Property (other than negotiations related to the PCB
Agreement).
6.1.5 Development Activities. Seller shall not take any actions with
respect to the development of the Property, including, without
limitation, applying for, pursuing, accepting or obtaining any
permits, approvals or other development entitlements from any
governmental or other regulatory entities or finalizing or entering
into any agreements relating thereto without Buyer's prior written
consent (which consent may be withheld in Buyer's sole and absolute
discretion). Seller hereby agrees to reasonably cooperate with
Buyer in Buyer's efforts to obtain such governmental approvals as
Buyer deems necessary to permit Buyer to operate the Property as
Buyer wishes.
6.1.6 Service, Management and Employment Contracts. Seller shall not enter
into, extend, renew or replace any existing service, property
management or employment contracts in respect of the Property
without Buyer's prior written consent (which consent may be withheld
in Buyer's sole and absolute discretion), unless the same shall be
cancelable without penalty or premium, upon not more than 30 days'
notice from the owner of the Property and Seller shall immediately
notify Buyer of any such new, extended, renewed or replaced
contract.
6.1.7 Tenant Leases. Other than the PCB Agreement, Seller shall not enter
into any new lease, without Buyer's prior written consent (which
consent may be withheld in Buyer's sole and absolute discretion).
Seller shall deliver a copy of the proposed PCB Agreement to Buyer
for approval, which shall not be unreasonably withheld so long as
such PCB Agreement shall terminate prior to August 31, 2000 and the
third party owner of the PCB division shall vacate and surrender the
Property prior to the Closing. Other than under the PCB Agreement,
Seller shall not accept any rent from any tenant under any new
tenant under any new lease to which Buyer has consented for more
than 1 month in advance of the payment date without Buyer's prior
written consent (which consent may be withheld in Buyer's sole and
absolute discretion).
6.1.8 Insurance. Seller will maintain its current insurance in place from
the date hereof through the Closing Date or earlier termination of
this Agreement. Seller
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hereby covenants to name Buyer, at no cost or expense to Seller, as
an additional insured under such insurance during the period prior
to the Closing.
6.1.9 Litigation. Seller shall not allow to be commenced on its behalf any
action, suit or proceeding with respect to all or any portion of the
Property without Buyer's prior written consent (which consent may be
withheld in Buyer's sole and absolute discretion). In the event
Seller receives any notice of any proceeding of the character
described in Sections 4.6, 4.8 or 4.13 which has not been previously
disclosed to Buyer prior to the Closing, Seller shall promptly
advise Buyer in writing.
6.2 Covenants of Buyer. In addition to the covenants and agreements of Buyer
set forth elsewhere in this Agreement, Buyer covenants and agrees that
between the date hereof and the Closing Date (or the earlier termination
of this Agreement):
6.2.1 Development Activities. Buyer shall not take any action with respect
to the renovation or development of the Property (including, without
limitation, applying for, pursuing, accepting or obtaining any
permits, approvals or other governmental entitlements from any
governmental or regulatory entity) that would be binding on Seller
or the Property in the event that Buyer terminates this Agreement.
7 CONDITIONS PRECEDENT TO CLOSING.
7.1 Buyer's Conditions. The obligation of Buyer to render performance under
this Agreement is subject to the following conditions precedent (and
conditions concurrent, with respect to deliveries to be made by the
parties at Closing) ("Buyer's Conditions"), which conditions may be
waived, or the time for satisfaction thereof extended, by Buyer only in a
writing executed by Buyer; provided, however, that any such waiver shall
not affect Buyer's ability to pursue any remedy, for the period set forth
in Section 4.17 herein, Buyer may have with respect to any breach under
Section 6.1 herein by Seller of which Buyer first obtains actual knowledge
after the Closing and for which Buyer has not specifically waived in a
writing executed by Buyer:
7.1.1 Title. Title Company shall be prepared and irrevocably committed to
issue (a) to Buyer an American Land Title Association extended
coverage owner's policy of title insurance (Form B)-1970 (expressly
deleting any creditor's rights exclusion) in favor of Buyer in an
amount equal to the Purchase Price showing indefeasible fee simple
title to the Property vested in Buyer, with those endorsements and
reinsurance reasonably requested by Buyer prior to the Due Diligence
Termination Date, subject only to the Permitted Exceptions
(collectively, the "Owners Title Policy").
7.1.2 Seller's Due Performance. All of the representations and warranties
of Seller set forth in Sections 4 and 14 and shall be true and
correct as of the Closing Date, and Seller, on or prior to the
Closing Date, shall have complied with and/or
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performed all of the obligations, covenants and agreements required
on the part of Seller to be complied with or performed pursuant to
the terms of this Agreement, including, without limitation, the
deliveries required to be made by Seller pursuant to Sections 9.1
and 9.3 hereof.
7.1.3 Condition of Property. Subject to the provisions of Section 12
below, the condition of the Property shall be substantially the same
on the Closing Date as on the Execution Date, except for reasonable
wear and tear and any damages due to any act of Buyer or Buyer's
representatives.
7.1.4 Bankruptcy. No action or proceeding shall have been commenced by or
against Seller under the federal bankruptcy code or any state law
for the relief of debtors or for the enforcement of the rights of
creditors and no attachment, execution, lien or levy shall have
attached to or been issued with respect to the Property or any
portion thereof.
7.1.5 Possession of the Property. On or before September 19, 2000, Seller
and any entity occupying or having possession of the Property or any
portion thereof shall have completely vacated and surrendered the
Property. The Property shall be delivered to Buyer at the Closing
free and clear of any claims to occupancy, use or possession other
than under the Permitted Exceptions.
7.1.6 No Moratoria. No moratorium, statute, regulation, ordinance, or
federal, state, county or local legislation, or order, judgment,
ruling or decree of any governmental agency or of any court shall
have been enacted, adopted, issued, entered or pending which would
materially, adversely affect Buyer's intended use of the Property.
For purposes of this Section 7.1.6, Buyer hereby acknowledges that
Buyer's intended use of the Property includes business offices,
light industry, manufacturing, including without limitation,
administrative, executive, professional and similar offices,
laboratories engaged in research, experimental and testing
activities.
7.2 Failure of Buyer's Conditions. Subject and without limitation to Buyer's
rights hereunder, including, without limitation, Section 13.2 and Section
8.1 hereof, if any of Buyer's Conditions have not been fulfilled within
the applicable time periods, Buyer may:
7.2.1 Waive and Close. Waive the Buyer's Condition and close Escrow in
accordance with this Agreement, without adjustment or abatement of
the Purchase Price (or with adjustment of the Purchase Price as
mutually agreed upon by Buyer and Seller); or
7.2.2 Terminate. Terminate this Agreement by delivering written notice to
Seller and to Escrow Agent, in which event Escrow Agent shall return
the Deposit to Buyer, Seller shall pay the Cancellation Charges, and
Buyer shall be entitled to pursue any other rights and remedies
which it may have against Seller in connection herewith.
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7.3 Seller's Conditions. The obligation of Seller to render performance under
this Agreement is subject to the following conditions precedent (and
conditions concurrent with respect to deliveries to be made by Buyer at
Closing) ("Seller's Conditions"), which conditions may be waived, or the
time for satisfaction thereof extended, by Seller only in a writing
executed by Seller:
7.3.1 Buyer's Due Performance. All of the representations and warranties
of Buyer set forth in Sections 5 and 14 hereof shall be true and
correct as of the Closing Date, and Buyer, on or prior to the
Closing Date, shall have complied with and/or performed all of the
obligations, covenants and agreements required on the part of Buyer
to be complied with or performed pursuant to the terms of this
Agreement, including, without limitation, the deliveries required to
be made by Buyer pursuant to Section 9.2 hereof.
7.3.2 Bankruptcy. No action or proceeding shall have been commenced by or
against Buyer under the federal bankruptcy code or any state law for
the relief of debtors or for the enforcement of the rights of
creditors.
7.4 Failure of Seller's Conditions. In the event that the Escrow and the
transaction contemplated by this Agreement fail to close solely as a
result of the default of Buyer in the performance of its obligations
hereunder, Seller shall be entitled to the sole and exclusive remedy set
forth in Section 13.1 herein. In the event that the Escrow and the
transaction contemplated by this Agreement fail to close for any reason
other than as a result of the default of Buyer in the performance of its
obligations hereunder, Seller may terminate this Agreement by delivery of
written notice to Buyer and Escrow Agent, in which event Escrow Agent
shall return the Deposit to Buyer, Buyer shall pay the Cancellation
Charges, and neither party shall thereafter have any rights or obligations
to the other hereunder.
8 CLOSING.
8.1 Closing Date. Subject to the provisions of this Agreement, the Closing
shall take place on the 10th day after Buyer's Condition set forth in
Section 7.1.5 has been satisfied, or on such other date as the parties
hereto may agree, but in no event (i) earlier than June 1, 2000 nor (ii)
later than September 29, 2000. As used herein, the "Closing" shall mean
the recordation of the Deed in the Official Records of the Middlesex
County Southern District Registry of Deeds, Commonwealth of Massachusetts
(the "Official Records"), and the "Closing Date" shall mean the date upon
which the Closing actually occurs. If Buyer's Condition set forth in
Section 7.1.5 has not been satisfied prior to September 19, 2000, Buyer
shall have the right to terminate this Agreement, and upon such
termination Seller shall pay all Cancellation Charges and Seller shall
reimburse Buyer all costs and expenses incurred by Buyer incurred in
connection with the transaction contemplated by this Agreement (including
costs and expenses incurred by Buyer in planning for the renovation,
ownership, operation and leasing of the Property) up to a maximum amount
of $150,000 (including attorneys' fees incurred in connection
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with the transaction contemplated by this Agreement up to a maximum amount
of $15,000 (excluding, however, attorneys' fees incurred by Buyer in
connection with the negotiation of this Agreement) and excluding the cost
of obtaining any Third Party Report not delivered to Seller hereunder;
provided, however, that (A) the $150,000 cap on such reimbursement shall
not apply to Seller's independent obligation to reimburse Buyer for a
portion of Buyer's Phase II due diligence costs, (B) Buyer shall deliver
to Seller a commercially reasonable detailed invoice for such costs and
expenses and (C) Buyer shall deliver to Seller such Third Party Reports as
Seller shall request in writing (provided that (x) such requested Third
Party Report shall be delivered subject to Buyer's and such preparer's
standard acknowledgments and disclaimers and (y) the preparer of such
requested Third Party Report shall consent to the delivery of such Third
Party Report to Seller, without any cost or expense to Buyer).
8.2 Closing Costs. Each party shall pay its own costs and expenses arising in
connection with the Closing (including, without limitation, its own
attorneys' and advisors' fees), except the following costs (the "Closing
Costs"), which shall be allocated between the parties as follows:
8.2.1 Seller shall pay all documentary transfer, stamp, sales and other
taxes related to the transfer of the Property, 1/2 of Escrow Agent's
escrow fees and costs, the cost of the UCC Search, and 1/2 of all
recording fees related to the transfer of ownership of the Property.
8.2.2 Buyer shall pay 1/2 of Escrow Agent's escrow fees and costs, all
recording fees related to the financing of Buyer's acquisition of
the Property, all premiums, costs and fees related to the delivery
of the Owner's Title Policy, the cost of the Survey, and 1/2 of all
recording fees related to the transfer of ownership of the Property.
9 CLOSING DELIVERIES.
9.1 Deliveries by Seller to Escrow. Not less than 2 Business Days prior to the
Closing Date, Seller, at its sole cost and expense, shall deliver or cause
to be delivered into Escrow the following documents and instruments, each
effective as of the Closing Date and executed by Seller, in addition to
the other items and payments required by this Agreement to be delivered by
Seller:
9.1.1 Deed. The original executed and acknowledged Deed conveying the
Property to Buyer or its nominee;
9.1.2 Non-foreign Affidavit. 2 originals of the Non-Foreign Affidavit in
the form of Exhibit L attached hereto, each executed by Seller;
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9.1.3 Xxxx of Sale and Assignment. 2 original counterparts of the Xxxx of
Sale and Assignment in the form of Exhibit N attached hereto, each
executed by Seller, pursuant to which Seller shall transfer to Buyer
all the Personal Property and the Intangible Property, including,
without limitation, the Property Documents, in each case free of all
liens and encumbrances;
9.1.4 Seller's Certificate. 2 originals of a certificate, in the form of
Exhibit K-1 attached hereto (the "Seller's Certificate"), each
executed by Seller;
9.1.5 Proof of Authority. Such proof of Seller's authority and
authorization to enter into this Agreement and the transaction
contemplated hereby, and such proof of the power and authority of
the individual(s) executing or delivering any instruments, documents
or certificates on behalf of Seller to act for and bind Seller as
may be reasonably required by Title Company; and
9.1.6 Other. Such other documents and instruments, signed and properly
acknowledged by Seller, if appropriate, as may be reasonably
required by Escrow Agent or otherwise in order to effectuate the
provisions of this Agreement and the Closing of the transactions
contemplated herein, including, without limitation, reasonable or
customary title affidavits and indemnities.
9.2 Deliveries by Buyer. On or before the Closing, Buyer, at its sole cost and
expense, shall deliver or cause to be delivered into Escrow the following:
9.2.1 Balance, Prorations & Closing Costs. The balance of the Purchase
Price pursuant to Section 2 hereof and Buyer's share of prorations
and Closing Costs (as hereinafter defined), as provided in Sections
10 and 8.2, respectively;
9.2.2 Buyer's Certificate. 2 originals of a certificate, in the form of
Exhibit K-2 attached hereto (the "Buyer's Certificate"), each
executed by Buyer;
9.2.3 Proof of Authority. Such proof of Buyer's authority and
authorization to enter into this Agreement and the transaction
contemplated hereby, and such proof of the power and authority of
the individual(s) executing or delivering any instruments, documents
or certificates on behalf of Buyer to act for and bind Buyer as may
be reasonably required by Title Company; and
9.2.4 Other. Such other documents and instruments, signed and properly
acknowledged by Buyer, if appropriate, as may reasonably be required
by Escrow Agent or otherwise in order to effectuate the provisions
of this Agreement and the closing of the transactions contemplated
herein.
9.3 Deliveries Outside of Escrow. Seller shall deliver possession of the
Property to Buyer upon the Closing, free and clear of any claims of any
person or entity to occupancy, use or possession other than under the
Permitted Exceptions, (without any options or rights of first refusal or
other preferential rights to purchase the Property). Further, Seller
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hereby covenants and agrees, at its sole cost and expense, to deliver or
cause to be delivered to Buyer, on or prior to the Closing, the following
items:
9.3.1 Service Contracts. An original, fully executed counterpart of each
of the Service Contracts being assumed by Buyer, and any amendments,
modifications, supplements and restatements thereto (or if originals
are not available, copies certified by all parties thereto as true,
correct and complete);
9.3.2 Intangible Property. The original of each document evidencing the
Intangible Property or rights to ownership and use thereof,
including without limitation the Approvals, in Seller's possession
or, with respect to such items not available in the public records,
in the possession or control of Seller's agents, auditors,
independent contractors or representatives and that Seller can, with
diligent efforts, obtain possession of after due inquiry and/or
investigation (or if originals are not available, copies certified
by all parties thereto as true, correct and complete);
9.3.3 Property Documents. To the extent not previously delivered,
originals of all of the Property Documents, other than such items
available in the public records, (or if originals are not available,
copies certified by Seller, to Seller's Knowledge as true, correct
and complete);
9.3.4 Personal Property. The Personal Property, including, without
limitation, all keys, pass cards, remote controls, security codes,
computer software and other devices relating to access to the
Improvements; and
9.3.5 Other. Keys, combinations or card keys to all locks and security
systems, and such other documents and instruments, as may be
reasonably required by Buyer or otherwise in order to effectuate the
provisions of this Agreement and the Closing of the transactions
contemplated herein.
10 PRORATIONS.
10.1 Prorations.
10.1.1 Expenses. Taxes, assessments, improvement bonds, service or other
contract fees, utility costs (including, without limitation, water
and sewer use charges), and other expenses affecting the Property
shall be prorated between Buyer and Seller as of the Closing Date
to the extent due and payable for any period prior to the Closing.
All non-delinquent real estate taxes or assessments on the
Property shall be prorated based on the actual current tax xxxx,
but if such tax xxxx has not yet been received by Seller by the
Closing Date or if supplemental taxes are assessed after the
Closing for the period prior to the Closing, the parties shall
make any necessary adjustment after the Closing by cash payment to
the party entitled thereto so that Seller shall have borne all
taxes, including all supplemental taxes, allocable to the period
prior to the Closing and Buyer shall
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bear all taxes, including all supplemental taxes, allocable to the
period after the Closing.
10.1.2 Adjustments. If any expenses attributable to the Property and
allocable to the period prior to the Closing are discovered or
billed after the Closing, the parties shall make any necessary
adjustment after the Closing by cash payment to the party entitled
thereto so that Seller shall have borne all expenses allocable to
the period prior to the Closing and Buyer shall bear all expenses
allocable to the period from and after the Closing.
10.1.3 Tax Appeals. With respect to any property tax appeals or
reassessments filed by Seller for tax years prior to the year in
which the Closing occurs, Seller shall be entitled to the full
amount of any refund or rebate resulting therefrom, and with
respect to any property tax appeals or reassessments filed by
Seller for the tax year in which the Closing occurs, Seller and
Buyer shall share the amount of any rebate or refund resulting
therefrom (after first paying to Seller all costs and expenses
incurred by Seller in pursuing such appeal or reassessment) in
proportion to their respective periods of ownership of the
Property for such tax year;
10.1.4 Generally. For purposes of calculating prorations, Buyer shall be
deemed to be in title to the Property, and therefore entitled to
the income and responsible for the expenses, after 12:01 a.m.
(Boston, Massachusetts time) on the Closing Date. All such
prorations shall be made on the basis of the actual number of days
of the month which shall have elapsed as of the day of the Closing
and based upon the actual number of days in the month and a three
hundred sixty-five (365) day year. The provisions of this Section
10 shall survive the Closing for a period of 1 year.
10.2 Preliminary Closing Statement. 10 days prior to the Closing, Escrow Agent
shall deliver to each of the parties for their review and approval a
preliminary closing statement (the "Preliminary Closing Statement") based
on an income expense statement prepared by Seller, approved by Buyer, and
delivered to Escrow Agent prior to said date, setting forth (i) the
proration amounts allocable to each of the parties pursuant to this
Section 10 and (ii) the Closing Costs allocable to each of the parties
pursuant to Section 8.2 hereof. Based on each of the party's comments, if
any, regarding the Preliminary Closing Statement, Escrow Agent shall
revise the Preliminary Closing Statement and deliver a final, signed
version of a closing statement to each of the parties at the Closing (the
"Closing Statement").
11 ESCROW.
11.1 Opening of Escrow. Promptly following the Execution Date, Buyer and Seller
shall each cause a purchase and sale escrow ("Escrow") to be opened with
Escrow Agent by delivery to Escrow Agent of 2 duplicate partially executed
originals of this Agreement executed by Seller and Buyer. Upon receipt of
such partially executed originals of this
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Agreement, Escrow Agent shall form 2 duplicate original counterparts of
this Agreement and telephonically confirm to Buyer and Seller the date
upon which Escrow is opened (the "Opening of Escrow"). On or immediately
after the Opening of Escrow, Escrow Agent shall (a) confirm the same by
executing and dating the 3 duplicate original counterparts of this
Agreement in the space provided for Escrow Agent, and (b) deliver a fully
executed original of this Agreement to each of Seller and Buyer.
11.2 Escrow Instructions. This Agreement shall constitute escrow instructions
to Escrow Agent as well as the agreement of the parties. Escrow Agent is
hereby appointed and designated to act as Escrow Agent and instructed to
deliver, pursuant to the terms of this Agreement, the documents and funds
to be deposited into Escrow as herein-provided. The parties hereto shall
execute such additional escrow instructions, not inconsistent with this
Agreement as determined by counsel for Buyer and Seller, as Escrow Agent
shall deem reasonably necessary for its protection, if any (as may be
modified by and mutually acceptable to Buyer, Seller and Escrow Agent). In
the event of any inconsistency between this Agreement and such additional
escrow instructions, the provisions of this Agreement shall govern.
11.3 Actions by Escrow Agent. Provided that Escrow Agent shall not have
received written notice from Buyer or Seller of the failure of any
condition to the Closing or of the termination of the Escrow and this
Agreement, when Buyer and Seller have deposited into Escrow the documents
and funds required by this Agreement (including the balance of the
Purchase Price pursuant to Section 2 hereof and each parties share of
prorations and Closing Costs) and Title Company is unconditionally and
irrevocably committed to issue the Owner's Title Policy concurrently with
the Closing, Escrow Agent shall, in the order and manner herein below
indicated take the following actions:
11.3.1 Recording. Following Title Company's acknowledgment that it is
prepared and irrevocably committed to issue the Owner's Title
Policy to Buyer, cause the Deed and any other documents which the
parties hereto may mutually direct to be recorded in the Official
Records and obtain conformed copies thereof for distribution to
Buyer and Seller.
11.3.2 Funds. Upon receipt of confirmation of the recordation of the Deed
and such other documents as were recorded pursuant to Section
11.3.1 above, disburse all funds deposited with it by Buyer as
follows:
(a) Pursuant to the Closing Statement (as defined in Section
10.2 herein), retain for Escrow Agent's own account all escrow fees
and costs, disburse to Title Company the fees and expenses incurred
in connection with the issuance of the Owner's Title Policy, and
disburse to any other persons or entities entitled thereto the
amount of any other Closing Costs;
(b) Disburse to Seller an amount equal to the Purchase Price,
less or plus the net debit or credit to Seller by reason of the
prorations and allocation of Closing Costs provided for in Sections
10 and 8.2. Seller's portion (as provided
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in Section 8.2) of the escrow fees, title fees and other Closing
Costs shall be paid pursuant to clause (a) above; and
(c) Disburse to Buyer any remaining funds in the possession of
Escrow Agent after payments pursuant to clauses (a) and (b) above
have been completed.
11.3.3 Owner's Title Policy. Cause Title Company to issue the Owner's
Title Policy to Buyer.
11.3.4 Delivery of Documents. Deliver to Buyer and Seller one original of
each of all documents deposited into Escrow, other than the Deed
and any other recorded documents.
11.4 Conflicting Demands. Upon receipt of a written demand for the Deposit (a
"Deposit Demand") by Seller or Buyer (the "demanding party"), Escrow Agent
shall promptly send a copy of such Deposit Demand to the other party (the
"non-demanding party"). Except in connection with the delivery of a Due
Diligence Termination Notice (in which event the Deposit shall be
immediately returned to Buyer), Escrow Agent shall hold the Deposit for 5
Business days from the date of delivery by Escrow Agent of the Deposit
Demand to the non-demanding party ("Objection Period") or until Escrow
Agent receives a confirming instruction from the non-demanding party. In
the event the non-demanding party delivers to Escrow Agent written
objection to the release of the Deposit to the demanding party (an
"Objection Notice") within the Objection Period (which Objection Notice
shall set forth the basis under this Agreement for objecting to the
release of the Deposit), Escrow Agent shall promptly send a copy of the
Objection Notice to the demanding party. In the event of any dispute
between the parties regarding the release of the Deposit, Escrow Agent, in
its good faith business judgment, may disregard all inconsistent
instructions received from either party and may either (a) hold the
Deposit until the dispute is mutually resolved and Escrow Agent is advised
of such mutual resolution in writing by both Seller and Buyer, or Escrow
Agent is otherwise instructed by a final non-appealable judgment of a
court of competent jurisdiction, or (b) deposit the Deposit with a court
of competent jurisdiction by an action of interpleader (whereupon Escrow
Agent shall be released and relieved of any further liability or
obligations hereunder from and after the date of such deposit). In the
event Escrow Agent shall in good faith be uncertain as to its duties or
obligations hereunder or shall receive conflicting instructions, claims or
demands from the parties hereto (expressly excluding however a conflicting
demand given by Seller after Buyer has delivered a Due Diligence
Termination Notice and demand for the Deposit), Escrow Agent shall
promptly notify both parties in writing and thereafter Escrow Agent shall
be entitled (but not obligated) to refrain from taking any action other
than to keep safely the Deposit until Escrow Agent shall receive a joint
instruction from both parties clarifying Escrow Agent's uncertainty or
resolving such conflicting instructions, claims or demands, or until a
final non-appealable judgment of a court of competent jurisdiction
instructs Escrow Agent to act.
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11.5 Real Estate Reporting Person. Escrow Agent is designated the "real estate
reporting person" for purposes of section 6045 of title 26 of the United
States Code and Treasury Regulation 1.6045-4 and any instructions or
settlement statement prepared by Escrow Agent shall so provide. Upon the
consummation of the transaction contemplated by this Agreement, Escrow
Agent shall file Form 1099 information return and send the statement to
Seller as required under the aforementioned statute and regulation.
11.6 Destruction of Documents; Survival. Escrow Agent is hereby authorized to
destroy or otherwise dispose of any and all documents, papers,
instructions and other material concerning the Escrow at the expiration of
6 years from the later of (a) the Closing, (b) the final disbursement of
any funds maintained in Escrow after the Closing, or (c) the final release
of the Deposit following the termination of this Agreement. The provisions
of this Section 11 shall survive the Closing or earlier termination of
this Agreement until Escrow Agent's duties and obligations hereunder are
fully and finally discharged.
12 RISK OF LOSS.
12.1 Condemnation. If, prior to the Closing Date, all or any portion of the
Property is taken by condemnation or eminent domain (or is the subject of
a pending or contemplated taking which has not been consummated), Seller
shall immediately notify Buyer of such fact. In such event, Buyer shall
have the option to terminate this Agreement by delivering written notice
to Seller not later than 15 days after delivery of such notice from
Seller. Upon such termination, Escrow Agent shall immediately return the
Deposit to Buyer, the parties shall equally share the Cancellation
Charges, and neither party shall have any further rights or obligations
hereunder, other than pursuant to any provision hereof which expressly
survives the termination of this Agreement. If Buyer does not elect to
terminate this Agreement, Seller shall not compromise, settle or adjust
any award without Buyer's prior written consent (which consent may be
withheld in Buyer's sole and absolute discretion). At the Closing, Seller
shall assign and turn over to Buyer, and Buyer shall be entitled to
receive and keep all awards for such taking or pending or contemplated
taking.
12.2 Casualty. If, prior to Closing any part of the Property is damaged or
destroyed, Seller shall immediately notify Buyer of such fact. If such
damage or destruction is a Material Casualty (as hereinafter defined),
Buyer shall have the option to terminate this Agreement by delivering
written notice to Seller not later than 30 days after delivery of any such
notice from Seller. As used herein "Material Casualty" shall mean any
damage or destruction which results in either (i) the cost of repairing
such damage or destruction being equal to or greater than $500,000, as
reasonably determined by Buyer, or (ii) the amount of time required to
repair such damage or destruction being equal to or greater than 30 days,
as reasonably determined by Buyer. If Buyer does not elect to terminate
this Agreement or if a non-Material Casualty shall occur, Seller shall
assign and turn over, and Buyer shall be entitled to receive and keep, all
insurance proceeds payable with respect to such damage or destruction
(which shall then be repaired or not at Buyer's sole option and cost),
plus Seller shall pay over to Buyer an amount equal to the deductible
amount with respect to the insurance or uninsured amount and
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the parties shall proceed to Closing pursuant to the terms hereof without
modification of the terms of this Agreement and without any reduction in
the Purchase Price. If Buyer does not elect to terminate this Agreement or
if a non-Material Casualty shall occur, Buyer shall have the right to
participate in any adjustment of the insurance claim and Seller shall not
compromise, settle or adjust any such claim without Buyer's prior written
consent (which consent may be withheld in Buyer's sole and absolute
discretion).
13 DEFAULT.
13.1 Default by Buyer. IN THE EVENT THAT THE ESCROW AND THIS TRANSACTION FAIL
TO CLOSE SOLELY AS A RESULT OF THE DEFAULT OF BUYER IN THE PERFORMANCE OF
ITS OBLIGATIONS UNDER THIS AGREEMENT, BUYER AND SELLER AGREE THAT SELLER'S
ACTUAL DAMAGES WOULD BE IMPRACTICABLE OR EXTREMELY DIFFICULT TO FIX AND
THAT THE AMOUNT OF THE DEPOSIT REPRESENTS THE PARTIES' REASONABLE ESTIMATE
OF SUCH DAMAGES. THE PARTIES THEREFORE AGREE THAT IN THE EVENT THAT ESCROW
AND THIS TRANSACTION FAIL TO CLOSE SOLELY AS A RESULT OF THE DEFAULT OF
BUYER IN THE PERFORMANCE OF ITS OBLIGATIONS HEREUNDER AND SELLER IS READY,
WILLING AND ABLE TO PERFORM ITS OBLIGATIONS HEREUNDER, SELLER, AS SELLER'S
SOLE AND EXCLUSIVE REMEDY, IS ENTITLED TO LIQUIDATED DAMAGES IN THE AMOUNT
OF THE DEPOSIT (INCLUDING INTEREST AND DIVIDENDS EARNED THEREON) THEN HELD
BY ESCROW AGENT. IN THE EVENT ESCROW FAILS TO CLOSE SOLELY AS A RESULT OF
BUYER'S DEFAULT AND SELLER IS READY, WILLING AND ABLE TO PERFORM ITS
OBLIGATIONS HEREUNDER, THEN (1) THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF BUYER AND SELLER HEREUNDER AND THE ESCROW CREATED HEREBY
SHALL TERMINATE, (2) ESCROW AGENT SHALL, AND IS HEREBY AUTHORIZED AND
INSTRUCTED TO, RETURN PROMPTLY TO BUYER AND SELLER ALL DOCUMENTS AND
INSTRUMENTS TO THE PARTIES WHO DEPOSITED THE SAME, AND (3) ESCROW AGENT
SHALL DELIVER THE DEPOSIT (INCLUDING INTEREST AND DIVIDENDS EARNED
THEREON) THEN HELD BY ESCROW AGENT TO SELLER PURSUANT TO SELLER'S
INSTRUCTIONS, AND THE SAME SHALL BE THE FULL, AGREED AND LIQUIDATED
DAMAGES. SELLER AND BUYER ACKNOWLEDGE THAT THEY HAVE READ AND UNDERSTAND
THE PROVISIONS OF THIS SECTION 13.1, AND BY THEIR INITIALS IMMEDIATELY
BELOW AGREE TO BE BOUND BY ITS TERMS.
13.2 Default by Seller. In the event of any breach or default by Seller, then
Buyer shall be entitled to pursue any remedy available to Buyer hereunder,
at law or in equity, including, without limitation, the specific
performance of this Agreement.
14 BROKERS.
Seller and Buyer each hereby represent, warrant to and covenant to each
other that it has not dealt with any third party (other than CB Xxxxxxx
Xxxxx/Whittier Partners) ("Brokers") in a manner which would obligate the other
to pay any brokerage commission, finder's fee or other
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compensation due or payable with respect to the transaction contemplated hereby
other than a commission to be paid to Brokers pursuant to a separate agreement,
which shall be paid by Seller only upon the Closing of the purchase and sale
contemplated hereby. Seller hereby indemnifies and agrees to protect, defend and
hold Buyer harmless from and against any and all claims, losses, damages, costs
and expenses (including attorneys' fees, charges and disbursements) incurred by
Buyer by reason of any breach or inaccuracy of the representation, warranty and
agreement of Seller contained in this Section 14. Buyer hereby indemnifies and
agrees to protect, defend and hold Seller harmless from and against any and all
claims, losses, damages, costs and expenses (including attorneys' fees, charges
and disbursements) incurred by Seller by reason of any breach or inaccuracy of
the representation, warranty and agreement of Buyer contained in this Section
14. The provisions of this Section 14 shall survive the Closing or earlier
termination of this Agreement.
15 CONFIDENTIALITY.
15.1 Buyer. Buyer agrees that until the Closing, except as otherwise provided
herein or required by law and except for the exercise by Buyer of any
remedy hereunder, Buyer shall (a) keep confidential the pendency of this
transaction and the documents and information supplied by Seller to Buyer,
(b) disclose such information only to Buyer's agents, employees,
contractors, consultants or attorneys, as well as lenders (if any),
investment bankers, venture capital groups, investors, title company
personnel and tenants, with a need to know in connection with Buyer's
review and consideration of the Property, provided that Buyer shall inform
all persons receiving such information from Buyer of the confidentiality
requirement and (to the extent within Buyer's control) cause such
confidence to be maintained, and (c) upon the termination of this
Agreement prior to the Closing, return to Seller promptly upon request all
copies of documents and materials supplied by Seller. Disclosure of
information by Buyer shall not be prohibited if that disclosure is of
information that is or becomes a matter of public record or public
knowledge as a result of the Closing of this transaction or from sources
other than Buyer or its agents, employees, contractors, consultants or
attorneys.
15.2 Seller. Seller agrees that both prior to and after the Closing, except as
otherwise provided herein or required by law, and except for the exercise
by Seller of any remedy hereunder, Seller shall (a) keep confidential the
pendency of this transaction with Buyer, the terms and conditions
contained in the Agreement and the identity of Buyer and the relationship
between Buyer and the entity to which Buyer may assign this Agreement or
which Buyer designates as the party to whom Seller shall convey the
Property at the Closing, and (b) disclose such information only to
Seller's agents, employees, contractors, consultants or attorneys, as well
as tenants and title company personnel, with a need to know such
information in connection with effecting this transaction, provided that
Seller shall inform all such persons receiving such confidential
information from Seller of the confidentiality requirement and (to the
extent within Seller's control) cause such confidence to be maintained.
Disclosure of the pendency of this transaction by Seller shall not be
prohibited if that disclosure is of information that is or becomes a
matter of public record or public knowledge as a result of the Closing of
this transaction
[500 Xxxxxxx Xxxxxx]
00 (X) Xxxxxxxxxx Xxxx Xxxxxx
Equities, Inc. 1999
or from sources other than Seller or its agents, employees, contractors,
consultants or attorneys.
16 MISCELLANEOUS PROVISIONS.
16.1 Governing Law and Jurisdiction. This Agreement and the legal relations
between the parties hereto shall be governed by and construed and enforced
in accordance with the laws of the Commonwealth of Massachusetts, without
regard to its principles of conflicts of law. In the event that legal
proceedings are initiated in connection with this Agreement, Seller and
Buyer consent to exclusive personal jurisdiction by any court of the
Commonwealth of Massachusetts or any court of the United States of America
within the Commonwealth of Massachusetts.
16.2 Entire Agreement. This Agreement, including the exhibits and schedules
attached hereto, constitutes the entire agreement between Buyer and Seller
pertaining to the subject matter hereof and supersedes all prior
agreements, understandings, letters of intent, negotiations and
discussions, whether oral or written, of the parties, and there are no
warranties, representations or other agreements, express or implied, made
to either party by the other party or by the other party's Broker in
connection with the subject matter hereof except as specifically set forth
herein or in the documents delivered pursuant hereto or in connection
herewith. Without limiting the foregoing, upon the execution of this
Agreement, that certain Letter of Intent dated as of October 18, 1999, as
amended, between Buyer and Seller, shall terminate and be of no further
force or effect.
16.3 Modifications: Waiver. No supplement, modification, waiver or termination
of this Agreement shall be binding unless executed in writing by the party
to be bound thereby. No waiver of any provision of this Agreement shall be
deemed or shall constitute a waiver of any other provision hereof (whether
or not similar), nor shall such waiver constitute a continuing waiver
unless otherwise expressly provided.
16.4 Notices. All notices, consents, requests, reports, demands or other
communications hereunder (collectively, "Notices") shall be in writing and
may be given personally, by reputable overnight delivery service or by
facsimile transmission (with in the case of a facsimile transmission,
confirmation by reputable overnight delivery service) to each of the
parties at the following addresses:
To Buyer: c/o Alexandria Real Estate Equities, Inc.
000 X. Xxx Xxxxxx Xxx.
Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Re: 000 Xxxxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (626) 578-0770
[500 Xxxxxxx Xxxxxx]
00 (X) Xxxxxxxxxx Xxxx Xxxxxx
Equities, Inc. 1999
With A Copy To: Xxxxx, Xxxxx & Xxxxx
000 Xxxxx Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxx Xxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
To Seller: c/o GSI Lumonics, Inc.
0000 X. Xxxxxxx Xxxxxx
Xxxx Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With A Copy To: Xxxxxx & King
0 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
To Escrow Agent: Chicago Title Insurance Company
000 Xxxxx Xxxxxx Xxxxxx
Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or to such other address or such other person as the addressee party shall
have last designated by written notice to the other party. Notices given
by facsimile transmission shall be deemed to be delivered as of the date
and time when transmission and receipt of such facsimile is confirmed; and
all other Notices shall have been deemed to have been delivered on the
date of delivery or refusal.
16.5 Expenses. Subject to the allocation of Closing Costs provided in Section
8.2 hereof, whether or not the transactions contemplated by this Agreement
shall be consummated, all fees and expenses incurred by any party hereto
in connection with this Agreement shall be borne by such party.
[500 Xxxxxxx Xxxxxx]
00 (X) Xxxxxxxxxx Xxxx Xxxxxx
Equities, Inc. 1999
16.6 Assignment.
16.6.1 Seller's Right to Assign. Seller shall not have the right, power,
or authority to assign, pledge or mortgage this Agreement or any
portion of this Agreement, or to delegate any duties or
obligations arising under this Agreement, voluntarily,
involuntarily, or by operation of law.
16.6.2 Buyer's Right to Assign. Upon delivery of written notice to Seller
and Escrow Agent, Buyer shall have the right, power, and authority
to assign this Agreement or to delegate any duties or obligations
arising under this Agreement, voluntarily, involuntarily or by
operation of law, to any affiliate of Buyer. Upon such assignment
and the consummation of the transaction contemplated by this
Agreement, Buyer shall be relieved of all obligations under this
Agreement and the Escrow. Buyer shall have the right, power, and
authority to assign this Agreement or to delegate any duties or
obligations arising under this Agreement, voluntarily,
involuntarily or by operation of law, to any person or entity
other than an affiliate of Buyer, with Seller's prior written
consent (which consent shall not be unreasonably withheld or
delayed). Upon such assignment, Buyer shall be relieved of all
obligations under this Agreement and the Escrow.
16.7 Severability. Any provision or part of this Agreement which is invalid or
unenforceable in any situation in any jurisdiction shall, as to such
situation and such jurisdiction, be ineffective only to the extent of such
invalidity and shall not affect the enforceability of the remaining
provisions hereof or the validity or enforceability of any such provision
in any other situation or in any other jurisdiction.
16.8 Successors and Assigns; Third Parties. Subject to and without waiver of
the provisions of Section 16.6 hereof, all of the rights, duties,
benefits, liabilities and obligations of the parties shall inure to the
benefit of, and be binding upon, their respective successors and assigns.
Except as specifically set forth or referred to herein, nothing herein
expressed or implied is intended or shall be construed to confer upon or
give to any person or entity, other than the parties hereto and their
successors or assigns, any rights or remedies under or by reason of this
Agreement.
16.9 Counterparts. This Agreement may be executed in as many counterparts as
may be deemed necessary and convenient, and by the different parties
hereto on separate counterparts, each of which, when so executed, shall be
deemed an original, but all such counterparts shall constitute one and the
same instrument.
16.10 Headings. The section headings of this Agreement are for convenience of
reference only and shall not be deemed to modify, explain, restrict, alter
or affect the meaning or interpretation of any provision hereof.
16.11 Time of the Essence. Time shall be of the essence with respect to all
matters contemplated by this Agreement.
[500 Xxxxxxx Xxxxxx]
00 (X) Xxxxxxxxxx Xxxx Xxxxxx
Equities, Inc. 1999
16.12 Further Assistance. In addition to the actions recited herein and
contemplated to be performed, executed, and/or delivered by Seller and
Buyer, Seller and Buyer agree to perform, execute and/or deliver or cause
to be performed, executed and/or delivered at the Closing or after the
Closing any and all such further acts, instruments, deeds and assurances
as may be reasonably required to consummate the transactions contemplated
hereby.
16.13 Number and Gender. Whenever the singular number is used, and when required
by the context, the same includes the plural, and the masculine gender
includes the feminine and neuter genders.
16.14 Construction. This Agreement shall not be construed more strictly against
one party hereto than against any other party hereto merely by virtue of
the fact that it may have been prepared by counsel for one of the parties.
16.15 Post-Closing Access to Records. Upon receipt by Seller of Buyer's
reasonable written request at anytime and from time to time within a
period of 1 year after the Closing, Seller shall make available (or cause
its Manager or asset manager, as applicable, to make available) to Buyer
and its accountants and designees, for inspection and copying during
normal business hours and at Buyer's sole cost and expense, (i) all
accounting records relating to the Property for the calendar year period
ended December 31, 1999 and for the period from January 1, 2000 through
the Closing Date, including, without limitation, all general ledgers, cash
receipts, canceled checks and other accounting documents or information
reasonably requested by Buyer and related to the Property, and (ii) all
other records related to the Property, in either case whether in the
possession or control of Seller or Seller's Manager, asset manager or
other agent.
16.16 Exhibits. All exhibits attached hereto are hereby incorporated by
reference as though set out in full herein.
16.17 Attorneys' Fees. If any action is brought by either party against the
other party, relating to or arising out of this Agreement, the transaction
described herein or the enforcement hereof, the prevailing party shall be
entitled to recover from the other party reasonable attorneys' fees, costs
and expenses incurred in connection with the prosecution or defense of
such action. For purposes of this Agreement, the term "attorneys' fees" or
"attorneys' fees and costs" shall mean the fees and expenses of counsel to
the parties hereto, which may include printing, photostating, duplicating
and other expenses, air freight charges, and fees billed for law clerks,
paralegals and other persons not admitted to the bar but performing
services under the supervision of an attorney, and the costs and fees
incurred in connection with the enforcement or collection of any judgment
obtained in any such proceeding. The provisions of this Section shall
survive the entry of any judgment, and shall not merge, or be deemed to
have merged, into any judgment.
[500 Xxxxxxx Xxxxxx]
00 (X) Xxxxxxxxxx Xxxx Xxxxxx
Equities, Inc. 1999
16.18 Business Days. As used herein, the term "Business Day" shall mean a day
that is not a Saturday, Sunday or legal holiday. In the event that the
date for the performance of any covenant or obligation under this
Agreement shall fall on a Saturday, Sunday or legal holiday under the laws
of the Commonwealth of Massachusetts or State of California, the date for
performance thereof shall be extended to the next Business Day.
[Remainder of page intentionally blank.]
[500 Xxxxxxx Xxxxxx]
00 (X) Xxxxxxxxxx Xxxx Xxxxxx
Equities, Inc. 1999
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
BUYER: ALEXANDRIA REAL ESTATE EQUITIES, INC.,
a Maryland corporation
Execution Date: February 29, 2000 By: /s/ Xxxx Xxxx Xxxxxxx
-------------------------------
Name: XXXX XXXX XXXXXXX
-------------------------
Its: GENERAL COUNSEL
-------------------------
SELLER: GENERAL SCANNING INC.,
a Massachusetts corporation
Execution Date: February 21, 2000 By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------
Name: XXXXXXX X. XXXXXXX
-------------------------
Its: VICE PRESIDENT
-------------------------
ESCROW AGENT:
The undersigned Escrow Agent accepts the foregoing Agreement of Purchase and
Sale and Joint Escrow Instructions and agrees to act as Escrow Agent under this
Agreement in strict accordance with its terms.
CHICAGO TITLE INSURANCE COMPANY Date: February__, 2000
SEE ATTACHED ESCROW LETTER
[500 Xxxxxxx Xxxxxx]
X-0 (C) Alexandria Real Estate
Equities, Inc. 1999
EXHIBIT A
The land in Watertown, Middlesex County, Massachusetts, being Parcel A and
Parcel C on a plan entitled Plan of Land in Watertown, Mass., dated April 1,
1977, Bradford, Xxxxxxx & Assoc. Inc., Engineers-Architects, recorded with
Middlesex South District Deeds, Book 13181, Page 435.
Parcel C contains .32 acres and Parcel A contains 4.95 acres, according to said
Plan. Together with the right to pass and xxxxxx over Parcel B on the aforesaid
Plan and together with and subject to rights in the forty (40) foot private way
shown on the aforesaid Plan as Birch Street, all as set forth in deed of Parcel
B, dated April 14, 1977, recorded Middlesex South District Deeds, Book 13181,
Page 435.
270836
A-1
EXHIBIT B
INTENTIONALLY LEFT BLANK
[500 Arsenal Street]
B-1 (C) Alexandria Real Estate
Equities, Inc. 1999
EXHIBIT C-1
PERSONAL PROPERTY INVENTORY
All tangible personal property, fixtures (including blinds and window
treatments, doors and door hardware, security and alarm systems, drinking
fountains, picnic tables, sinks and countertops, and all heating, ventilation
and air conditioning equipment (including the wall mounted air conditioner in
the facilities office, the 2nd floor air conditioning units, and the wall
mounted air conditioner in the telephone room) but expressly excluding the
chiller located on the pad outside the rear of the building, the wall mounted
air conditioner located in the computer room and hoods and venting systems
designed to fit specific production or manufacturing equipment (provided,
however, (a) all portions of such venting systems inside ceilings and walls
shall be left in place from exterior connection closest to such ceilings and
walls, and (b) the hood in the 2nd floor wet lab is not so excluded), equipment
and supplies owned by Seller and located on or about the Land or the
Improvements or attached thereto or used in connection with the use, operation,
maintenance or repair thereof (expressly excluding, however, the Excluded
Property listed in Exhibit C-2).
[500 Xxxxxxx Xxxxxx]
X-0-0 (X) Xxxxxxxxxx Xxxx Xxxxxx
Equities, Inc. 1999
EXHIBIT C-2
EXCLUDED PROPERTY
The Excluded Property shall mean all of the following described personal
property, furniture, equipment and supplies:
1. All compressed air dryers including the compressed air dryers located in
the machine shop;
2. All wire caging and stock racking in the warehouse portion of the
Improvements (except the mezzanine in the warehouse and the wire cage tool
crib and storage areas in the warehouse, which are being sold to Buyer as
fixtures to the Improvements and are to remain at the Property);
3. the vacuum system and motor located in the machine shop;
4. All compressors (including 3 10-horsepower compressors with dryers and
storage tanks located in the 1st floor electrical room) but expressly
excluding
a. the 10-horsepower compressor located in the warehouse portion of the
Improvements;
b. the small compressor for 2nd floor air conditioning units located in
the 1st floor electrical room; and
c. the 5-horsepower compressor located in the 1st floor electrical
room, all of which are being sold to Buyer as fixtures to the
Improvements and are to remain at the Property.
5. the chiller located on the pad outside the rear of the building;
6. all trash compactors (which are not owned by Seller but are rented and
will be removed from the Property without damage to the Property on or
before the Closing);
7. all reverse osmosis hot/cold water dispensers (which are not owned by
Seller but are rented and will be removed from the Property without damage
to the Property on or before the Closing);
8. all vending and coffee machines (which are not owned by Seller but are
rented and will be removed from the Property without damage to the
Property on or before the Closing);
9. all mailboxes (including the mailboxes located in the front lobby) but
expressly excluding any exterior mail boxes or mail slots in doors (which
are being sold to Buyer as fixtures to the Improvements and are to remain
at the Property);
[500 Xxxxxxx Xxxxxx]
X-0-0 (X) Xxxxxxxxxx Xxxx Xxxxxx
Equities, Inc. 1999
10. the wall mounted air conditioner located in the computer room;
11. all hoods and venting systems designed to fit specific production or
manufacturing equipment (provided, however, (a) all portions of such
venting systems inside ceilings and walls shall be left in place from
exterior connection closest to such ceilings and walls, (b) the hood in
the 2nd floor wet lab, (c) all copper air drops and pvc vacuum lines, and
(d) the built-in vent hoods in the potting area are not part of the
Excluded Property and are not being removed by Seller);
12. All air regulators;
13. All silk plants in the lobby;
14. the display case in the lobby;
15. the PBX system;
16. all production and operation equipment specifically associated with the
printed circuit board manufacturing operation (including the smog hog,
transformers, vacuum systems and hoods);
17. all chairs, desks, non-built in cabinets, credenzas, tables, couches,
non-built in book cases and shelving, partitions, equipments stands,
moveable lamps, and other furniture and office equipment);
18. all manufacturing equipment and accessories used in Seller's business and
not specifically listed as part of the Personal Property;
19. All supplies located at the Property other than miscellaneous supplies of
the existing building finish materials available to repair or replace
existing finishes of the Improvements (including ceiling tiles, floor
tiles, paint, carpet and other similar finish materials); and
20. All artwork at the Improvements other than the artwork in the lobby.
[500 Xxxxxxx Xxxxxx]
X-0-0 (X) Xxxxxxxxxx Xxxx Xxxxxx
Equities, Inc. 1999
EXHIBIT D
ALLOCATION SCHEDULE
Item Allocation
---- ----------
Real Property 100%
Personal Property 0%
Intangible Property 0%
[500 Xxxxxxx Xxxxxx]
X-0 (X) Xxxxxxxxxx Xxxx Xxxxxx
Equities, Inc. 1999
EXHIBIT E
PROPERTY DOCUMENTS
--------------------------------------------------------------------------------
No. Item Delivered
--------------------------------------------------------------------------------
1. Lease Information None
--------------------------------------------------------------------------------
a. An updated current rent roll for the Property. N/A
--------------------------------------------------------------------------------
b. Copies of all Tenant Leases for the Property
including any occupancy agreement for the Printed
Circuit Board Division
--------------------------------------------------------------------------------
c. A list of all tenant security deposits and None
prepayments (if any) related to the Tenant Leases
held by or on behalf of Seller
--------------------------------------------------------------------------------
d. CAM Reconciliation Records for prior year and None
current year to date
--------------------------------------------------------------------------------
e. List of Tenant Fixtures None
--------------------------------------------------------------------------------
2. Other Property Information
--------------------------------------------------------------------------------
a. All documentation evidencing the ownership the
Personal Property described in Exhibit C-1 attached
hereto (specifically excluding the Excluded Property
described in Exhibit C-2)
--------------------------------------------------------------------------------
b. All documents evidencing the Intangible Property in
Seller's possession or, with respect to such items
not available in the public records, in the
possession or control of Seller's agents, auditors,
independent contractors or representatives and that
Seller can, with diligent efforts, obtain possession
of after due inquiry and/or investigation.
--------------------------------------------------------------------------------
c. Copies of all outstanding labor, service, equipment,
supply, management, maintenance, concession,
utility, construction and operating contracts, and
any amendments thereto to which Seller is a party
(collectively, the "Service Contracts")
--------------------------------------------------------------------------------
d. Property Sales Contracts (prior purchase and sales
agreements with surviving representations,
warranties, indemnities or preferential rights to
purchase or lease, first right of negotiation or
refusal regarding the same or other option rights)
--------------------------------------------------------------------------------
e. Copies of any Ground Leases and amendments thereto None
--------------------------------------------------------------------------------
f. Copies of existing Loan Documents, if assumption None
contemplated
--------------------------------------------------------------------------------
g. Copies of all Approvals in Seller's possession or,
with respect to such items not available in the
public records, in the possession or control of
Seller's agents, auditors, independent contractors
or representatives and that Seller can, with
diligent efforts, obtain possession of after due
inquiry and/or investigation.
--------------------------------------------------------------------------------
h. Property Association Documents: including
Conditions, Covenants and Restrictions, Association
Articles of Incorporation and Bylaws, Financial
Statements, Budgets and Information on Reserves,
Reciprocal Easement Agreements
--------------------------------------------------------------------------------
[500 Xxxxxxx Xxxxxx]
X-0 (X) Xxxxxxxxxx Xxxx Xxxxxx
Equities, Inc. 1999
--------------------------------------------------------------------------------
No. Item Delivered
--------------------------------------------------------------------------------
i Capital Improvement and Preventative Maintenance
Program for the improvements
--------------------------------------------------------------------------------
3. Drawings and Specifications, Maps, Plans and Photographs
--------------------------------------------------------------------------------
a. All as-built plans and specifications, site plans,
aerial photographs, floor plans, CAD drawing and
other similar maps, plans and drawings.
--------------------------------------------------------------------------------
b. American Land Title Association (ALTA) Survey
sufficient to obtain extended coverage Owner's Policy
of Title Insurance
--------------------------------------------------------------------------------
4. Financial Information
--------------------------------------------------------------------------------
a. Year end and monthly operating statements for the
Property, if any, and Income and expense statements
for the Property for 1998 and 1999, and for the
period from January 1, 2000 through the Execution
Date, if they exist.
--------------------------------------------------------------------------------
b. Monthly general ledgers for 1999 and for the period N/A
from January 1, 2000 through the Execution Date.
--------------------------------------------------------------------------------
c. A budget for the Property for calendar year 2000, if
it exists.
--------------------------------------------------------------------------------
d. A copy of the tax xxxx issued for the prior 3 years
for real estate taxes
--------------------------------------------------------------------------------
e. Expense Records: including invoice receipts and
disbursements for the Property for 1998 and 1999 and
for the period from January 1, 2000 through the
Execution Date (including any property expenses to be
paid prior to the Closing)
--------------------------------------------------------------------------------
f. Accounts Receivable and Payable Records: including None
current and breakdown of over 30, 60 and 90 days
--------------------------------------------------------------------------------
g. Bank Statements and check registers for all Property None
operating accounts: for 1999 and for the period from
January 1, 2000 through the Execution Date.
--------------------------------------------------------------------------------
h. Most recent audited financial statements, if audited None
within last two years
--------------------------------------------------------------------------------
i. Appraisals
--------------------------------------------------------------------------------
5. Insurance Information
--------------------------------------------------------------------------------
a. Statement of insurance coverage and premiums by
policy type, and evidence of insurance
--------------------------------------------------------------------------------
b. Copies of all pending insurance claims and
insurance-related litigation documents
--------------------------------------------------------------------------------
[500 Xxxxxxx Xxxxxx]
X0 (X) Xxxxxxxxxx Xxxx Xxxxxx
Equities, Inc. 1999
--------------------------------------------------------------------------------
No. Item Delivered
--------------------------------------------------------------------------------
6. Governmental Documents
--------------------------------------------------------------------------------
a. Development Agreements in Seller's possession or,
with respect to such items not available in the
public records, in the possession or control of
Seller's agents, auditors, independent contractors or
representatives and that Seller can, with diligent
efforts, obtain possession of after due inquiry
and/or investigation.
--------------------------------------------------------------------------------
b. Building Permits in Seller's possession or, with
respect to such items not available in the public
records, in the possession or control of Seller's
agents, auditors, independent contractors or
representatives and that Seller can, with diligent
efforts, obtain possession of after due inquiry
and/or investigation.
--------------------------------------------------------------------------------
c. Certificates of Occupancy/Completion in Seller's
possession or, with respect to such items not
available in the public records, in the possession or
control of Seller's agents, auditors, independent
contractors or representatives and that Seller can,
with diligent efforts, obtain possession of after due
inquiry and/or investigation.
--------------------------------------------------------------------------------
d. Variances in Seller's possession or, with respect to
such items not available in the public records, in
the possession or control of Seller's agents,
auditors, independent contractors or representatives
and that Seller can, with diligent efforts, obtain
possession of after due inquiry and/or investigation.
--------------------------------------------------------------------------------
e. Special or Conditional Use Permits for Building in
Seller's possession or, with respect to such items
not available in the public records, in the
possession or control of Seller's agents, auditors,
independent contractors or representatives and that
Seller can, with diligent efforts, obtain possession
of after due inquiry and/or investigation.
--------------------------------------------------------------------------------
f. Special Agreements with Utilities and Districts in
Seller's possession or, with respect to such items
not available in the public records, in the
possession or control of Seller's agents, auditors,
independent contractors or representatives and that
Seller can, with diligent efforts, obtain possession
of after due inquiry and/or investigation.
--------------------------------------------------------------------------------
g. Environmental Impact Reports (EIR) in Seller's
possession or, with respect to such items not
available in the public records, in the possession or
control of Seller's agents, auditors, independent
contractors or representatives and that Seller can,
with diligent efforts, obtain possession of after due
inquiry and/or investigation.
--------------------------------------------------------------------------------
h. Negative declarations in Seller's possession or, with
respect to such items not available in the public
records, in the possession or control of Seller's
agents, auditors, independent contractors or
representatives and that Seller can, with diligent
efforts, obtain possession of after due inquiry
and/or investigation.
--------------------------------------------------------------------------------
i Other zoning, entitlements and developments rights
agreements and information in Seller's possession or,
with respect to such items not available in the
public records, in the possession or control of
Seller's agents, auditors, independent contractors or
representatives and that Seller can, with diligent
efforts, obtain possession of after due inquiry
and/or investigation.
--------------------------------------------------------------------------------
[500 Xxxxxxx Xxxxxx]
X0 (X) Xxxxxxxxxx Xxxx Xxxxxx
Equities, Inc. 1999
EXHIBIT F
INTENTIONALLY LEFT BLANK
[500 Arsenal Street]
F-1 (C) Alexandria Real Estate
Equities, Inc. 1999
EXHIBIT G
PROPERTY QUESTIONNAIRE
Attached.
[500 Arsenal Street]
G-1 (C) Alexandria Real Estate
Equities, Inc. 1999
ALEXANDRIA REAL ESTATE EQUITIES, INC.
PROPERTY QUESTIONNAIRE
Name of Property: 000 Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx (the "Property")
--------------------------------------------------------------------------------
THIS QUESTIONNAIRE SHOULD BE COMPLETED BY THE PROPERTY MANAGER OR
THE MOST SENIOR MANAGEMENT PERSON OF THE COMPANY THAT IS FAMILIAR
WITH THE DETAILS OF THE PROPERTY AND ITS OPERATION.
--------------------------------------------------------------------------------
1. Which of the following best describes the Property? (Check more than one
box if applicable.)
|_| Scientific research and development laboratory facility
|_| Assembly, distribution, pilot plant, or full-scale manufacturing facility
|_| Headquarters or administrative offices
|_| Build-to-suit or retrofit project
|_| Warehouse facility
|_| Raw land
|_| Other (please describe):
2. How many different tenants currently lease space at the Property?
|_| 0-5
|_| 6-10
|_| 11-15
|_| More than 15
3. a. Does any lease in connection with the Property provide for any rental
payments based upon the net income or profits of the tenant(1) or that are
contingent in any respect, other than rental payments that vary (i) as a
----------
(1) Responses to any questions about leases or tenants should take into
account, where applicable, any subleases and sub-tenants.
G-2
percentage or percentages of the tenant's gross receipts or sales, or (ii)
because of "escalation clauses"? If yes, please explain.
|_| YES |_| NO
Explain:
b. Do the terms of any lease contain "escalation clauses" other than
standard escalation provisions requiring adjustments in the amount of rent
due based upon changes in the consumer price index or in the costs of the
Owner for insurance, property taxes or maintenance expenses? If yes,
please list all such items that would potentially require any adjustment
under any escalation clause.
|_| YES |_| NO
List:
c. In connection with the lease of the Property, is any tenant entitled to
receive any economic incentives (e.g., "free" or reduced rent, tenant
improvement allowances, etc.)? If yes, please explain.
|_| YES |_| NO
Explain:
d. Are the terms of all lease payments and formulas typical and customary
for properties of a character and quality similar to the Property that are
located in the same geographic market, and do these provisions conform
with normal
G-3
business practice? If no, please explain which provisions are not typical
or customary, or do not conform with normal business practice.
|_| YES |_| NO
Explain:
e. Which of the following best describes the percentage of the leases that
are "triple net"?
|_| ALL |_| MOST |_| SOME |_| NONE
4. a. Is the percentage of the total rent attributable to personal property
more than 15 percent of the total rent from any lease?
|_| YES |_| NO
b. Are any temperature-controlled or other specialized rooms located at
the Property (e.g., "cold rooms", "warm rooms", or "clean rooms")? If yes,
please list the approximate number of such items located in each unit
and/or floor.
|_| YES |_| NO
List:
c. Do any of the units at the Property contain any individual air
conditioning, heating, refrigeration, or freezer units that are owned or
leased by the
G-4
Owner, other than centralized HVAC or any specialized rooms described in
question 4(b)? If yes, please describe.
|_| YES |_| NO
Explain:
d. Do any of the units at the Property contain any movable lab benches or
tables, furniture (e.g., desks, chairs or lamps), laboratory equipment
(e.g., microscopes, centrifuges or glassware), boilers, air compressors,
deionizing apparatus, reverse osmosis apparatus, vacuum pumps, glassware
washers, oven dryers, animal washers, animal caging, incinerators, or
other significant items of specialized equipment that is owned or leased
by the Owner? If yes, please attach a list of such items (if available).
|_| YES |_| NO
5. a. Does any entity other than the Owner manage the Property or any portion
of the Property (the "Manager")? If yes, please identify the Manager:
|_| YES |_| NO
Name of Manager: ____________________________
b. If the answer to question 5(a) is yes, are there any arrangements
pursuant to which the Manager refunds, rebates or otherwise provides any
credit with respect to its fee relating to the Property? If yes, please
explain.
|_| YES |_| NO |_| N/A
Explain:
G-5
c. Does the Owner employ any on-site personnel at the Property? If yes,
please name such person(s) and describe their general duties.
|_| YES |_| NO
Explain:
6. a. Are all services provided to tenants of the Property by the Owner or
the Manager (if applicable) typical and customary for properties of a
character and quality similar to the Property that are located in the same
geographic market? If no, please describe which services or arrangements
are not typical and customary.
|_| YES |_| NO
Explain:
b. Are you aware of any other services provided to tenants by any person
hired by the Owner or the Manager that are not typical and customary for
properties of a character and quality similar to the Property that are
located in the same geographic market? If yes, please explain.
|_| YES |_| NO
Explain:
7. a. Are there any arrangements for the Owner or the Manager to provide
architectural, construction or engineering services to any tenant at the
Property (e.g., "building-out" the Property as part of lease inducements)?
|_| YES |_| NO
IF THE ANSWER TO QUESTION 7(a) IS NO, PLEASE SKIP TO QUESTION 8; OTHERWISE,
PLEASE ANSWER QUESTIONS 7(b) THROUGH 7(d).
G-6
b. Are such arrangements only provided as an inducement to the tenant to
enter into or extend a lease?
|_| YES |_| NO
c. Are such arrangements typical and customary for properties of a
character and quality similar to the Property that are located in the same
geographic market? If no, please explain which arrangements are not
typical and customary.
|_| YES |_| NO
Explain:
d. Does the Owner or the Manager expect to derive any income (e.g.,
development fees) from such arrangements? If yes, please describe.
|_| YES |_| NO
Explain:
e. Do any such arrangements provide for the purchase, funding, or
installation by the Owner of any significant items of property which could
be deemed to constitute "personal property"? If yes, please describe any
such items of property.
|_| YES |_| NO
Explain:
G-7
8. a. Please check any utility services that the Owner or the Manager
directly or indirectly plays any role in providing to tenants at the
Property:
|_| Electric |_| Gas |_| Water |_| Telephone
|_| Heat/Air cond. |_| Sewage |_| Facsimile |_| Cable TV
|_| Other: (Please list) _________________________________________
__________________________________________________________________
b. Are all such utility services typical and customary for properties of a
character and quality similar to the Property that are located in the same
geographic market? If no, please list any utility services that are not
typical and customary.
|_| YES |_| NO |_| N/A
List:
c. Are tenants charged, either as a separate recoverable amount or as part
of common area maintenance costs, for all such utility services? If no,
please explain which services are provided at no charge and whether this
is a typical and customary practice for properties of a quality and
character similar to the Property that are located in the same geographic
market.
|_| YES |_| NO
Explain:
d. Are individual units separately metered to measure utility usage, with
tenants charged by the Owner or the Manager, as appropriate, in proportion
to usage? If no, please briefly explain how charges for utilities are
determined and allocated among the various tenants (e.g., pro-rata based
on square footage, etc.).
|_| YES |_| NO |_| N/A
Explain:
G-8
e. If any tenant is charged by the Owner or the Manager for any utility
service, is the tenant billed without any fee, income, profit or other
markup over the cost? If no, please explain.
|_| YES |_| NO |_| N/A
Explain:
f. Does the Owner or the Manager derive any income from any utility
provider at the Property? If yes, please explain.
|_| YES |_| NO |_| N/A
Explain:
9. a. Are pay telephones and vending (e.g., soda, cigarette, candy, etc.)
machines provided at the Property by the Owner, by the Manager, or by
third-party suppliers? (Check more than one response if appropriate.)
|_| OWNER |_| MANAGER |_| THIRD PARTY |_| N/A
b. If pay telephones or vending machines are provided or operated by a
third-party supplier, does that person pay the Owner or the Manager any
rent, fee, or any other amount?
|_| YES |_| NO |_| N/A
c. If the answer to question 9(b) is yes, is such amount fixed or based
upon a percentage of gross receipts? If it is not fixed or based upon a
percentage of gross receipts, please explain.
|_| YES |_| NO |_| N/A
Explain:
G-9
10. a. Please check any of the following that describes the parking provided
at or with respect to the Property. (Check more than one box if
applicable.)
|_| Open lot / no gated entry
|_| Open lot / gated entry
|_| Single level parking garage
|_| Multi-tier parking garage
|_| Specific spaces (or group of spaces) reserved or preferential parking
for tenant(s) or their employees
|_| Cashier/parking lot attendant on duty
|_| Valet parking available
|_| Security guard on duty
b. Is all parking at or with respect to the Property available to tenants
(or to their or employees or guests) without separate charge and only on
an unreserved basis (i.e., no tenant is assigned particular space(s)),
other than valet parking services (as described in response to question
11(c) below) or reserved parking for handicapped persons? If no, please
explain the parking arrangements between the Owner and the tenants.
|_| YES |_| NO
Explain:
c. Are there any attendants or are any additional related services
provided (e.g., valet parking, security, car wash)? If yes, please
describe the functions of such person(s) and the nature of such services
(including any services indicated in response to question 10(a)). In
addition, please indicate whether any such services are typical and
customary for properties of a similar character and quality as the
Property that are located in the same geographic market.
|_| YES |_| NO
Explain:
G-10
d. For those persons who pay to park at the Property (including in
connection with any valet parking services), please indicate the period of
time, if any, for which their parking privileges are generally valid
(e.g., hourly, daily, monthly, etc.).
Duration: _____________________________
e. Is there a person or entity (an "Operator") that either operates the
parking facilities or provides related services (e.g., valet services)? If
yes, please identify the Operator and attach any separate agreement
evidencing those arrangements.
|_| YES |_| NO
Operator(s): ________________________________
IF THE ANSWER TO QUESTION 10(e) IS NO, PLEASE SKIP TO QUESTION 11; OTHERWISE,
PLEASE ANSWER QUESTIONS 10(f) THROUGH 10(h).
f. Please briefly explain the manner in which each Operator is compensated
for its role in providing parking (e.g., fixed fee, percentage of gross
parking revenues, etc.).
Explain:
g. Does either of the Owner or the Manager bear any portion of any
Operator's costs or expenses? If yes, please explain the arrangement.
|_| YES |_| NO
Explain:
G-11
h. Does either of the Owner or the Manager derive any income from the
Operator or from any parking charges? If yes, please explain.
|_| YES |_| NO
Explain:
11. Does the Owner or the Manager directly or indirectly play any role in
providing security services to individual tenants? Answer no if the only
involvement of these entities in providing security services is with
respect to the Property as a whole or its common areas, and not for
individual units or tenants.
|_| YES |_| NO
12. a. Does the Owner or the Manager directly or indirectly play any role in
providing janitorial services to individual tenants? Answer no if the only
involvement of these entities in providing janitorial services is with
respect to the Property as a whole or its common areas, and not for
individual units or tenants.
|_| YES |_| NO
IF THE ANSWER TO QUESTION 12(a) IS NO, PLEASE SKIP TO QUESTION 13; OTHERWISE,
PLEASE ANSWER QUESTIONS 12(b) THROUGH 12(d).
b. Is the provision of such service typical and customary for properties
of a character and quality similar to the Property that are located in the
same geographic market? If no, please explain.
|_| YES |_| NO
Explain:
G-12
c. Does the Owner or the Manager bear any portion of the cost or expense
of providing janitorial services to tenants? If yes, please explain.
|_| YES |_| NO
Explain:
d. Does the Owner or the Manager derive any income in connection with the
janitorial services provided to tenants? If yes, please explain.
|_| YES |_| NO
Explain:
e. Are tenants directly or indirectly charged for any janitorial services
provided at the Property? If yes, please briefly explain the manner in
which these charges are determined (e.g., pro-rata based on relative
square footage).
|_| YES |_| NO
Explain:
13. a. Is the actual maintenance of the Property's common areas performed by
employees of the Owner, the Manager, or an unrelated third-party? (Check
more than one response if appropriate.)
|_| OWNER |_| MANAGER |_| THIRD-PARTY
G-13
b. Does the Owner or the Manager bear any portion of the cost of common
area maintenance? If yes, please explain.
|_| YES |_| NO
Explain:
c. Are tenants charged for common area maintenance? If yes, please explain
the manner in which these charges are determined (e.g., pro-rata based on
relative square footage).
|_| YES |_| NO
d. Are the services and arrangements with respect to the Property's common
area maintenance typical and customary for properties of a character and
quality similar to the Property that are located in the same geographic
market? If no, please explain.
|_| YES |_| NO
Explain:
14. Are any tenants charged by the Owner or the Manager any fee or other
amount that is not typically and customarily charged in connection with
the rental of properties of a character and quality similar to the
Property in the same geographic market?(2) If yes, please explain.
|_| YES |_| NO
Explain:
15. a. Does the Owner or the Manager render any services to any tenant (or to
employees of any tenant) other than as disclosed above in this
questionnaire
----------
(2) Typical and customary fees might include, in some markets, late payment
fees, subleasing fees, application fees, credit check fees, release fees,
etc.
G-14
(e.g., glassware cleaning, electron microscopy, animal care or storage,
information services (e.g., Internet or LAN connections),
telecommunication services (e.g., voice mail), day care, babysitters, food
services, etc.)?
|_| YES |_| NO
Explain:
b. Are all of the services described in the response to question 15(a)
above typical and customary for properties of a character and quality
similar to the Property that are located in the same geographic market? If
no, please describe which services or amenities are not typical and
customary.
|_| YES |_| NO |_| N/A
Explain:
c. Does the Owner or the Manager directly or indirectly derive any income,
bear any costs or expenses, or employ any persons in connection with any
atypical or non-customary services indicated in the response to question
15(b) above? If yes, please explain.
|_| YES |_| NO |_| N/A
Explain:
16. Is any space at the Property leased to any non-commercial tenants (i.e.,
residential tenants)?
|_| YES |_| NO
17. a. Are any services rendered to any tenant by third-party suppliers hired
by the Owner or the Manager, other than as previously disclosed in this
questionnaire?
|_| YES |_| NO
G-15
b. If the answer to question 17(a) above is yes, are all of those services
typical and customary for properties of a character and quality similar to
the Property that are located in the same geographic market? If not,
please describe which services are not typical and customary.
|_| YES |_| NO |_| N/A
Explain:
18. Does any of the Owner, an Affiliate or the Manager share in any income or
compensation received by any third-party service provider with respect to
the rendering of services to any tenant, other than as previously
disclosed in this questionnaire? If yes, please explain the arrangements.
|_| YES |_| NO |_| N/A
Explain:
19. Does the Company or the Manager engage in any revenue-generating
activities in connection with the Property not mentioned previously in
this questionnaire (other than the rental of real property or the
investment of excess cash)?
|_| YES |_| NO
Explain:
20. a. Does the Owner separately lease any storage space at the Property?
|_| YES |_| NO
G-16
b. If the answer to question 19(a) is yes, is such storage space a
temperature-controlled or other specialized room described in question
4(b) (e.g., freezer warehouse)?
|_| YES |_| NO
Explain:
______________________________
Name: ________________________
Title: _______________________
Dated: __________ __, 2000 ______________________________
Signature
G-17
EXHIBIT H
SURVEYOR'S CERTIFICATE
To: Alexandria Real Estate Equities, Inc., a Maryland corporation,
[ARE-_______, a _______________], and their successors and assigns, and
Chicago Title Insurance Company.
This is to certify that this map or plat and the survey on which it is based
were made on the date shown below of the premises described in Chicago Title
Company's title commitment dated as of __________ ___, 1999, issued under Order
No. ____________, (i) in accordance with the "Minimum Standard Detail
Requirements for ALTA/ACSM Land Title Surveys," jointly established and adopted
by ALTA, ACSM and NSPS in 1997, as defined therein, and includes Items 1, 2, 3,
4, 6, 7(a), 7(b), 7(c), 8, 9, 10, 11, 13, 14, 15 and 16 of Table A thereof and
(ii) pursuant to the Accuracy Standards (as adopted by ALTA and ACSM and in
effect on the date of this certification) of an Urban Survey, as defined
therein. This survey was also made in accordance with the State of __________
Minimum Standards of Practice for Land Surveyors.
The subject property contains __________ square feet or ______ acres, is located
in a zoning district classification of ______, and contains _____ regular
parking spaces and _____ handicapped parking spaces, totaling _____ regular and
handicapped parking spaces.
The survey correctly shows the zone designation of any area shown as being
within a Special Flood Hazard Area according to current Federal Emergency
Management Agency Maps which make up a part of the National Flood Insurance
Administration Report; Community No. _______, Panel No. _____ dated _______ __,
1999.
The subject property has ingress and egress to and from ___________________
which is a paved, public right-of-way.
The street address of the subject property is _________________________________.
[Surveyor's Name]
By _________________________________________ Date: _______________
__________ Registered Land Surveyor No. ____________
Date of Survey: _____________________
Date of Last Revision: _____________________
[500 Xxxxxxx Xxxxxx]
X-0 (X) Xxxxxxxxxx Xxxx Xxxxxx
Equities, Inc. 1999
EXHIBIT I
QUITCLAIM DEED
GENERAL SCANNING INC., f/k/a GENERAL SCANNING, INC., a Massachusetts
corporation having an address of 000 Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx
("Grantor"),
for consideration of Ten Million Three Hundred Fifty Thousand Dollars
($10,350,000.00) paid,
grants to ALEXANDRIA REAL ESTATE EQUITIES, INC., a Maryland corporation with an
address of 000 X. Xxx Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxxxxx, 00000,
Attn: General Counsel, ("Grantee")
with QUITCLAIM COVENANTS,
the land in the City of Watertown, County of Middlesex, Commonwealth of
Massachusetts known as and numbered 000 Xxxxxxx Xxxxxx, and more particularly
described in Exhibit A attached hereto, together with (a) all buildings and
other improvements and fixtures affixed or attached to or situated upon the
land, and (b) all Grantor's right, title and interest, if any, in and to any
easements, rights of way, reservations, privileges, appurtenances and other
estates and rights of Grantor pertaining to the land (collectively, the
"Property").
The Property is conveyed subject to and with the benefit of all covenants,
easements, agreements and other matters of record, insofar as the same are in
force and applicable.
Grantor represents that the Property does not constitute all or
substantially all of the assets held by Grantor.
Property Address: 000 Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx
For Grantor's title see: Deed of BayBank Xxxxxx-Waltham Trust Company,
dated May 25, 1977 and recorded with Middlesex County (Southern District)
Registry of Deeds in Book 13458, Page 461.
GRANTOR:
GENERAL SCANNING INC.
(f/k/a GENERAL SCANNING, INC.)
By:_____________________________________
Name:___________________________________
Title:__________________________________
I-1
COMMONWEALTH OF MASSACHUSETTS
___________, ss. _____________, 2000
Then personally appeared the above named __________________,
_________________ of General Scanning Inc., and acknowledged the foregoing
instrument to be his/her free act, as aforesaid, and the free act and deed of
General Scanning Inc., before me,
__________________________________
My Commission Expires:
I-2
EXHIBIT A
The land in Watertown, Middlesex County, Massachusetts, being Parcel A and
Parcel C on a plan entitled Plan of Land in Watertown, Mass., dated April
1, 1977, Bradford, Xxxxxxx & Assoc. Inc., Engineers-Architects, recorded with
Middlesex South District Deeds, Book 13181, Page 435.
Parcel C contains .32 acres and Parcel A contains 4.95 acres, according to said
Plan. Together with the right to pass and xxxxxx over Parcel B on the aforesaid
Plan and together with and subject to rights in the forty (40) foot private way
shown On the aforesaid Plan as Birch Street, all as set forth in deed of Parcel
B, dated April 14, 1977, recorded Middlesex South District Deeds, Book 13181,
Page 435.
I-3
EXHIBIT J
SERVICE CONTRACTS
[Attached]
[500 Xxxxxxx Xxxxxx]
X-0 (X) Xxxxxxxxxx Xxxx Xxxxxx
Equities, Inc. 1999
Service Contracts
Prepared by Seller
The following contracts are currently in force and have provisions that they may
be terminated by Seller prior to closing. Seller will terminate all such
contracts as of closing date unless advised in writing by Buyer by May 1, 2000
of desire to have contract transfered where assignable to Buyer:
Elevator (Passenger) - Maintenance contract with Xxxx Elevator in process of
renewal subject to cancellation by Buyer.
Fire Alarm Monitoring - Contract with Honeywell
Janitorial service - Contract with Bay State Cleaning (cancellable with 14 days
notice)
Security - Monitoring contract with SAS
Pest control - Contract with Waltham Chemical
EXHIBIT K-1
SELLER'S CERTIFICATE
The undersigned hereby certifies to [ARE_____________________________, a
__________________ ] ("Buyer") that, as of the date hereof:
1. all of the representations, covenants and warranties of GENERAL SCANNING
INC., a Massachusetts corporation ("Seller") made in or pursuant to that
certain Purchase and Sale Agreement and Joint Escrow Instructions dated as
of February ___, 2000 (the "Agreement"), between Seller and Alexandria
Real Estate Equities, Inc. ("ARE") are true, accurate, correct and
complete;
2. all conditions to the Closing (as such term is defined in the Agreement)
that Seller was to satisfy or perform have been satisfied and performed;
and
3. all conditions to the Closing that ARE or Buyer was to perform have been
satisfied and performed.
Dated: _____ ____, 2000 GENERAL SCANNING INC.,
a Massachusetts corporation
By: ________________________________
Name: __________________________
Title: _________________________
[500 Xxxxxxx Xxxxxx]
X-0-0 (X) Xxxxxxxxxx Xxxx Xxxxxx
Equities, Inc. 1999
EXHIBIT K-2
BUYER'S CERTIFICATE
The undersigned hereby certifies to GENERAL SCANNING INC. ("Seller") that,
as of the date hereof:
1. all of the representations, covenants and warranties of
[ARE-_________________, a _________________] ("Buyer") made in or pursuant
to that certain Purchase and Sale Agreement and Joint Escrow Instructions
dated as of February ___, 2000 (the "Agreement"), between Seller and
Alexandria Real Estate Equities, Inc. are true, accurate, correct and
complete; and
2. all conditions to the Closing (as such term is defined in the Agreement)
that Buyer was to satisfy or perform have been satisfied and performed;
and
3. all conditions to the Closing that Seller was to perform have been
satisfied and performed.
Dated: ________ __, 2000 [ARE-___________________________],
a _______________________________
By: ________________________________
Name: __________________________
Title: _________________________
[500 Xxxxxxx Xxxxxx]
X-0-0 (X) Xxxxxxxxxx Xxxx Xxxxxx
Equities, Inc. 1999
EXHIBIT L
NON-FOREIGN AFFIDAVIT
1. Section 1445 of the Internal Revenue Code of 1986, as amended (the
"Code"), provides that a transferee of a United States real property
interest must withhold tax if the transferor is a foreign person.
2. In order to inform Alexandria Real Estate Equities, Inc., a Maryland
corporation, and its nominees, designees and assigns (collectively,
"Transferee"), that withholding of tax is not required upon the
disposition by GENERAL SCANNING INC., a Massachusetts corporation
("Transferor"), of the United States real property more particularly
described on Exhibit A attached hereto and incorporated herein by
reference (the "Property"), the undersigned Transferor certifies and
declares by means of this certification, the following:
a. Transferor is not a foreign person, foreign corporation, foreign
partnership, foreign trust or foreign estate (as such terms are
defined in the Code and the Income Tax Regulations).
b. Transferor's federal taxpayer identification number is: ___________.
c. Transferor's address is: __________________________________________
__________________________________________
__________________________________________
3. Transferor understands that this certification may be disclosed to the
Internal Revenue Service by Transferee and that any false statement
contained in this certification may be punished by fine, imprisonment or
both.
Under penalties of perjury, Transferor declares that it has carefully
examined this certification and it is true, correct and complete.
Executed this ______ day of __________, 2000 at ____________________.
TRANSFEROR: GENERAL SCANNING INC.,
a Massachusetts corporation
By: __________________________
Name: ____________________
Its: ____________________
[500 Xxxxxxx Xxxxxx]
X-0 (X) Xxxxxxxxxx Xxxx Xxxxxx
Equities, Inc. 1999
EXHIBIT A
The land in Watertown, Middlesex County, Massachusetts, being Parcel A and
Parcel C on a plan entitled Plan of Land in Watertown, Mass., dated April
1, 1977, Bradford, Xxxxxxx & Assoc. Inc., Engineers-Architects, recorded with
Middlesex South District Deeds, Book 13181, Page 435.
Parcel C contains .32 acres and Parcel A contains 4.95 acres, according to said
Plan. Together with the right to pass and xxxxxx over Parcel B on the aforesaid
Plan and together with and subject to rights in the forty (40) foot private way
shown on the aforesaid Plan as Birch Street, all as set forth in deed of Parcel
B, dated April 14, 1977) recorded Middlesex Xxxxx Xxxxxxxx Xxxxx, Xxxx x0x00,
Page 435.
L-2
EXHIBIT M
INTENTIONALLY LEFT BLANK
[500 Arsenal Street]
M-1 (C) Alexandria Real Estate
Equities, Inc. 1999
EXHIBIT N
XXXX OF SALE AND ASSIGNMENT
THIS XXXX OF SALE AND ASSIGNMENT ("Xxxx of Sale") is made as of_______
______, 2000, by GENERAL SCANNING INC., a Massachusetts corporation ("Seller"),
to ARE- __________________, a __________________ ("Buyer").
RECITALS
A. Seller is the owner of that certain real property located in the County
of Middlesex, Commonwealth of Massachusetts (the "Real Property"), as more
particularly described on Exhibit A attached hereto and incorporated herein by
reference.
B. Buyer and Seller have entered into that certain Purchase and Sale
Agreement and Joint Escrow Instructions dated as of February ___, 2000 (the
"Purchase Agreement"), with respect to, among other things, the acquisition of
the "Personal Property" and the "Intangible Property" (each as defined below),
and certain other property (expressly excluding, however, the Excluded
Property).
C. The Purchase Agreement requires Seller to convey all of Seller's right,
title and interest in, to and under the Personal Property and the Intangible
Property to Buyer.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Seller hereby agrees as follows:
1. Unless the context otherwise requires, all capitalized terms used but not
otherwise defined herein shall have the respective meanings provided
therefor in the Purchase Agreement.
2. Seller does hereby unconditionally, absolutely, and irrevocably grant,
bargain, sell, transfer, assign convey, set over and deliver unto Buyer
all of Seller's right, title and interest in and to:
a. all tangible personal property now or hereafter owned by Seller and
located on or about the Land or Improvements or attached thereto or
used in connection with the use, operation, maintenance or repair
thereof (expressly excluding, however, the Excluded Property)
(collectively, the "Personal Property"); and
b. all intangible property now or hereafter owned by Seller and used in
connection with the Land, the Improvements or the Personal Property,
including, without limitation, property or building-specific
trademarks and trade names, transferable licenses, architectural,
site, landscaping or other permits, applications, approvals,
authorizations and other entitlements, transferable guarantees and
warranties covering the Land and/or Improvements, all contract
rights (including rights under the Service Contracts listed in
Exhibit B), books, records, reports,
[500 Arsenal Street]
N-1 (C) Alexandria Real Estate
Equities, Inc. 1999
test results, environmental assessments, as-built plans,
specifications and other similar documents and materials relating to
the use or operation, maintenance or repair of the Property or the
construction or fabrication thereof, and all transferable utility
contracts; provided, however, that such intangible property shall
not include (A) intellectual property rights related to Seller's
business operations, or (B) intangible property related to the
Excluded Property (collectively, the "Intangible Property" and,
together with the Personal Property, the "Property").
3. [Buyer hereby expressly assumes, for itself and its successors, assigns
and legal representatives, the Service Contracts listed in Exhibit B and
all of the obligations and liabilities, fixed and contingent, of Seller
thereunder accruing from and after the date hereof with respect thereto
and agrees to (a) be fully bound by all of the terms, covenants,
agreements, provisions, conditions, obligations and liability of Seller
thereunder, which accrue from the date hereof, and (b) keep, perform and
observe all of the covenants and conditions contained therein on the part
of Seller to be kept, performed and observed, from and after the date
hereof.]
4. Seller represents and warrants that its title to the Property is free and
clear of all liens, mortgages, pledges, security interests, prior
assignments, encumbrances and claims of any nature other than the
Permitted Exceptions.
5. [Seller hereby agrees to indemnify, protect, defend and hold Buyer
harmless from and against any and all claims, losses, damages, costs and
expenses (including, without limitation, reasonable attorney's fees and
disbursements) incurred or suffered by Buyer in connection with the
Service Contracts listed in Exhibit B and arising prior to the Closing.
Buyer hereby agrees to indemnify, protect, defend and hold Seller harmless
from and against any and all claims, losses, damages, costs and expenses
(including, without limitation, reasonable attorney's fees and
disbursements) incurred or suffered by Seller in connection with the
Service Contracts listed in Exhibit B and arising on or after the
Closing.]
6. This Xxxx of Sale shall be binding upon and inure to the benefit of the
parties hereto and their respective heirs, legal representatives,
successors and assigns.
7. This Xxxx of Sale and the legal relations of the parties hereto shall be
governed by and construed and enforced in accordance with the laws of the
Commonwealth of Massachusetts, without regard to its principles of
conflicts of law.
[Signatures on next page]
[500 Arsenal Street]
N-2 (C) Alexandria Real Estate
Equities, Inc. 1999
IN WITNESS WHEREOF, this Xxxx of Sale was made and executed as of the date
first above written.
SELLER: GENERAL SCANNING INC.,
a Massachusetts corporation
By: ____________________________
Its: _______________________
[500 Arsenal Street]
N-3 (C) Alexandria Real Estate
Equities, Inc. 1999
EXHIBIT A
The land in Watertown Middlesex County, Massachusetts, being Parcel A and Parcel
C on a plan entitled Plan of Land in Watertown, Mass., dated April 1, 1977,
Bradford, Xxxxxxx & Assoc. Inc., Engineers-Architects recorded with Middlesex
South District Deeds, Book 13181, Page 435.
Parcel C contains .32 acres and Parcel A contains 4.95 acres, according to said
Plan. Together with the right to pass and xxxxxx over Parcel B on the aforesaid
Plan kind together with and subject to rights in the forty (40) foot private way
shown on thc aforesaid Plan as Birch Street, all as set forth in deed of Parcel
B, dated April 14, 1977, recorded Middlesex South District Deeds, Book 13181,
Page 435.
[500 Arsenal Street]
N-4 (C) Alexandria Real Estate
Equities, Inc. 1999
EXHIBIT B
List of Service Contracts Assumed
[Attached]
[500 Arsenal Street]
N-5 (C) Alexandria Real Estate
Equities, Inc. 1999
EXHIBIT O
APPROVALS
1. Certificates of Use and Occupancy (1978, 1982, 1988) from the Town of
Watertown Building Department
2. Special Permits (1978, 1982) from the Town of Watertown Zoning Board of
Appeals
3. Industrial Wastewater Discharge Permit from the Massachusetts Water
Resources Authority
4. Elevator Inspection Permit from the Commonwealth of Massachusetts
Department of Public Safety
[500 Arsenal Street]
O-1 (C) Alexandria Real Estate
Equities, Inc. 1999
EXHIBIT P
LITIGATION
None.
[500 Arsenal Street]
P-1 (C) Alexandria Real Estate
Equities, Inc. 1999
EXHIBIT Q
PHASE II RESULTS
[ATTACHED]
[500 Arsenal Xxxxxx]
X-0 (C) Alexandria Real Estate
Equities, Inc. 1999
EXHIBIT R
ENVIRONMENTAL REPORTS
[Attached]
[500 Xxxxxxx Xxxxxx]
X-0 (X) Xxxxxxxxxx Xxxx Xxxxxx
Equities, Inc. 1999
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
BUYER: ALEXANDRIA REAL ESTATE EQUITIES, INC.,
a Maryland corporation
Execution Date: February 29, 2000 By: /s/ Xxxx Xxxx Xxxxxxx
--------------------------------------
Name: XXXX XXXX XXXXXXX
--------------------------------
Its: GENERAL COUNSEL
--------------------------------
SELLER: GENERAL SCANNING INC.,
a Massachusetts corporation
Execution Date: February 21, 2000 By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------
Name: XXXXXXX X. XXXXXXX
--------------------------------
Its: VICE PRESIDENT
--------------------------------
ESCROW AGENT:
The undersigned Escrow Agent accepts the foregoing Agreement of Purchase and
Sale and Joint Escrow Instructions and agrees to act as Escrow Agent under this
Agreement in strict accordance with its terms.
CHICAGO TITLE INSURANCE COMPANY Date: March 1, 2000
By: /s/ X. Xxxxxxx
--------------------------------------
Name: X. XXXXXXX
--------------------------------
Its: ESCROW OFFICER
--------------------------------
[500 Xxxxxxx Xxxxxx]
X-0 (C) Alexandria Real Estate
Equities, Inc. 1999
FIRST AMENDMENT TO
PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS
THIS FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT AND JOINT ESCROW
INSTRUCTIONS (this "First Amendment") is entered into as of March 15, 2000, by
and between GENERAL SCANNING INC., a Massachusetts corporation ("Seller"), and
ALEXANDRIA REAL ESTATE EQUITIES, INC., a Maryland corporation ("Buyer"), with
reference to the following Recitals:
RECITALS:
A. Seller and Buyer have entered into that certain Purchase and Sale
Agreement and Joint Escrow Instructions Sale dated as of February 29, 2000 (the
"Original Agreement"). All initial capitalized terms not otherwise defined
herein shall have the meanings set forth in the Original Agreement unless the
context clearly indicates otherwise. References to "the Agreement" or "this
Agreement" in the Original Agreement or in this First Amendment shall mean and
refer to the Original Agreement, as amended by this First Amendment.
B. Seller and Buyer desire to amend the Agreement as more
particularly set forth herein.
NOW, THEREFORE, in consideration of the foregoing Recitals and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereby agree as follows:
1. Deposit: The second sentence of Section 2.1 of the Original Agreement is
hereby deleted in its entirety and the following is substituted in its
place:
In the event that Buyer does not terminate this Agreement on or before the
Due Diligence Termination Date (as hereinafter defined), not later than
the Due Diligence Termination Date, Buyer shall deposit into Escrow the
sum of $300,000 (which amount, together with any and all interest and
dividends earned thereon, shall hereinafter be referred to as the
"Additional Deposit").
2. Due Diligence Termination Date: The first sentence of Section 3.6 of the
Original Agreement is hereby deleted in its entirety and the following is
substituted in its place:
Buyer shall have the right at any time on or before 5:00 p.m. (Los
Angeles, California time) on March 17, 2000 (the "Due Diligence
Termination Date") to terminate this Agreement if, during the course of
Buyer's due diligence investigations of the Property, Buyer determines in
its sole and absolute discretion that the Property is not acceptable to
Buyer.
3. Effect of this First Amendment. Except as amended and/or modified by this
First Amendment, the Agreement is hereby ratified and confirmed and all
other terms of the Original Agreement shall remain in full force and
effect, unaltered and unchanged by this First Amendment. In the event of
any conflict between the provisions of this First
[500 Arsenal Street]
-1- (C) Alexandria Real Estate
Equities, Inc. 1999
Amendment and the provisions of the Original Agreement, the provisions of
this First Amendment shall prevail. Whether or not specifically amended by
this First Amendment, all of the terms and provisions of the Original
Agreement are hereby amended to the extent necessary to give effect to the
purpose and intent of this First Amendment.
4. Counterparts. This First Amendment may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
when taken together shall constitute one and the same instrument. The
signature page of any counterpart may be detached therefrom without
impairing the legal effect of the signature(s) thereon provided such
signature page is attached to any other counterpart identical thereto
except having additional signature pages executed by other parties to this
First Amendment attached thereto.
[Signatures on next page]
[500 Xxxxxxx Xxxxxx]
-0- (X) Xxxxxxxxxx Xxxx Xxxxxx
Equities, Inc. 1999
IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized representatives to execute this First Amendment as of the date first
above written.
SELLER: GENERAL SCANNING INC.,
a Massachusetts corporation
By: /s/ Xxxxxx X. Xxxx
-----------------------------------------------
Name: Xxxxxx X. Xxxx
-----------------------------------------
Its: Director of Real Estate Operations
-----------------------------------------
BUYER: ALEXANDRIA REAL ESTATE EQUITIES, INC.,
a Maryland corporation
By: /s/ Xxxx Xxxx Xxxxxxx
-----------------------------------------------
Xxxx Xxxx Xxxxxxx
General Counsel
[500 Xxxxxxx Xxxxxx]
X-0 (C) Alexandria Real Estate
Equities, Inc. 1999
[LETTERHEAD OF XXXXX, XXXXX & XXXXX]
FACSIMILE COVER SHEET
Time: 5:21 pm PAGES
-------------------------------------- --------------------------------------
Date: March 17, 2000 TELEPHONE: (000) 000-0000
-------------------------------------- --------------------------------------
FROM: Xxxxxx Xxxxx CLIENT MATTER NO.: 99592651
--------------------------------------
TO THE FOLLOWING:
TO: NAME/FIRM: Xx. Xxxxxx Xxxxx / General Scanning Inc.
---------------------------------------------------------------
CONFIRM #: (000) 000-0000 FAX #: (000) 000-0000
---------------------------- ------------------------------
NAME/FIRM: Mr. Xxxxxx Xxxxxxx / Alexandria Real Estate Equities, Inc.
---------------------------------------------------------------
CONFIRM #: (000) 000-0000 FAX #: (000) 000-0000
---------------------------- ------------------------------
NAME/FIRM: Xx. Xxxxx X. Xxxxxxxxxx / Alexandria Real Estate Equities, Inc.
---------------------------------------------------------------
CONFIRM #: (000) 000-0000 FAX #: (000) 000-0000
---------------------------- ------------------------------
NAME/FIRM: Xx. Xxxxx X. Xxxxxx / Alexandria Real Estate Equities, Inc.
---------------------------------------------------------------
CONFIRM #: (000) 000-0000 FAX #: (000) 000-0000
---------------------------- ------------------------------
NAME/FIRM: Xxxxxxx Xxxxxxxx / Xxxxxx & Xxxx
---------------------------------------------------------------
CONFIRM #: (000) 000-0000 FAX #: (000) 000-0000
---------------------------- ------------------------------
CC: Xx. Xxxx X. Xxxxxx (via pouch)
---------------------------------------------------------------
Xxxx Xxxx Xxxxxxx, Esq. (2 copies via pouch)
---------------------------------------------------------------
Xx. Xxxx Xxxxxx (via pouch)
---------------------------------------------------------------
Xxxx Xxxx Xxxxx, Esq.
--------------------------------------------------------------------------------
MESSAGE:
Re: 000 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX
THIS MESSAGE IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHICH
IT IS ADDRESSED AND MAY CONTAIN INFORMATION THAT IS PRIVILEGED, CONFIDENTIAL AND
EXEMPT FROM DISCLOSURE UNDER APPLICABLE LAW. IF THE READER OF THIS MESSAGE IS
NOT THE INTENDED RECIPIENT, OR THE EMPLOYEE OR AGENT RESPONSIBLE FOR DELIVERING
THE MESSAGE TO THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY
DISSEMINATION, DISTRIBUTION OR COPYING OF THIS COMMUNICATION IS STRICTLY
PROHIBITED. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY US
IMMEDIATELY BY TELEPHONE AND RETURN THE ORIGINAL MESSAGE TO US AT THE ABOVE
ADDRESS VIA THE U.S. POSTAL SERVICE. THANK YOU.
Messages transmitted via: Pitney Xxxxx -- 000-000-0000
IF YOU HAVE ANY TRANSMISSION DIFFICULTY, PLEASE CONTACT
THE FACSIMILE DEPARTMENT AT 000-000-0000
SECOND AMENDMENT TO
PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS
THIS SECOND AMENDMENT TO PURCHASE AND SALE AGREEMENT AND JOINT
ESCROW INSTRUCTIONS (this "Second Amendment") is entered into as of March 17,
2000, by and between GENERAL SCANNING INC., a Massachusetts corporation
("Seller"), and ALEXANDRIA REAL ESTATE EQUITIES, INC., a Maryland corporation
("Buyer"), with reference to the following Recitals:
RECITALS:
A. Seller and Buyer have entered into that certain Purchase and Sale
Agreement and Joint Escrow Instructions dated as of February 29, 2000, which has
been amended by that certain First Amendment to Purchase and Sale Agreement and
Joint Escrow Instructions dated as of March 15, 2000, by and between Seller and
Buyer (as so amended, the "Original Agreement"). All initial capitalized terms
not otherwise defined herein shall have the meanings set forth in the Original
Agreement unless the context clearly indicates otherwise. References to "the
Agreement" or "this Agreement" in the Original Agreement or in this Second
Amendment shall mean and refer to the Original Agreement, as amended by this
Second Amendment.
B. Seller and Buyer desire to amend the Agreement as more
particularly set forth herein.
NOW, THEREFORE, in consideration of the foregoing Recitals and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereby agree as follows:
1. Purchase Price: Section 2.2 of the Original Agreement is hereby deleted in
its entirety and the following is substituted in its place:
2.2 Balance. On the Closing Date (as defined below), Buyer shall pay to
Seller the balance of the Purchase Price over and above (i) the
Deposit paid by Buyer under Section 2.1 above and (ii) an
unconditional credit of $125,000 against the Purchase Price in favor
of Buyer, by wire transfer of federal funds to Escrow Agent, net of
all prorations and adjustments as provided herein.
2. Exhibit C-2. Exhibit C-2 entitled "Excluded Property" is hereby deleted in
its entirety and replaced with Exhibit C-2 attached hereto.
3. Access to the Property. Buyer hereby waives its objection to the exception
shown on the Commitment and note shown on the Survey indicating that
access to the Property along the northwest corner of the Property may
result in encroachment onto the parcel identified as Parcel "D" on the
Survey.
4. Effect of this Second Amendment. Except as amended and/or modified by this
Second Amendment, the Agreement is hereby ratified and confirmed and all
other terms of the Original Agreement shall remain in full force and
effect, unaltered end unchanged by this
[500 Xxxxxxx Xxxxxx]
-0- (X) Xxxxxxxxxx Xxxx Xxxxxx
Equities, Inc. 1999
Second Amendment. In the event of any conflict between the provisions of
this Second Amendment and the provisions of the Original Agreement, the
provisions of this Second Amendment shall prevail. Whether or not
specifically amended by this Second Amendment, all of the terms and
provisions of the Original Agreement are hereby amended to the extent
necessary to give effect to the purpose and intent of this Second
Amendment.
5. Counterparts. This Second Amendment may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
when taken together shall constitute one and the same instrument. The
signature page of any counterpart may be detached therefrom without
impairing the legal effect of the signature(s) thereon provided such
signature page is attached to any other counterpart identical thereto
except having additional signature pages executed by other parties to this
Second Amendment attached thereto.
[Signatures on next page]
[500 Xxxxxxx Xxxxxx]
-0- (X) Xxxxxxxxxx Xxxx Xxxxxx
Equities, Inc. 1999
IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized representatives to execute this Second Amendment as of the date first
above written.
SELLER: GENERAL SCANNING INC.,
a Massachusetts corporation
By: /s/ Xxxxxx X. Xxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxx
----------------------------------
Its: Director of Real Estate Operations
----------------------------------
BUYER: ALEXANDRIA REAL ESTATE EQUITIES, INC.,
a Maryland Corporation
By:
----------------------------------------
Name:
----------------------------------
Its:
----------------------------------
[500 Xxxxxxx Xxxxxx]
X-0 (C) Alexandria Real Estate
Equities, Inc. 1999
IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized representatives to execute this Second Amendment as of the date first
above written.
SELLER: GENERAL SCANNING INC.,
a Massachusetts corporation
By:
----------------------------------------
Name:
----------------------------------
Its:
----------------------------------
BUYER: ALEXANDRIA REAL ESTATE EQUITIES, INC.,
a Maryland Corporation
By: /s/ Xxxxx X. Xxxxxx
----------------------------------------
Name: XXXXX X. XXXXXX
----------------------------------
Its: SENIOR VICE PRESIDENT &
CHIEF FINANCIAL OFFICER
----------------------------------
[500 Xxxxxxx Xxxxxx]
X-0 (C) Alexandria Real Estate
Equities, Inc. 1999
THIRD AMENDMENT TO
PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS
THIS THIRD AMENDMENT TO PURCHASE AND SALE AGREEMENT AND JOINT ESCROW
INSTRUCTIONS (this "Third Amendment") is entered into as of June ___, 2000, by
and between GENERAL SCANNING INC., a Massachusetts corporation ("Seller"), and
ALEXANDRIA REAL ESTATE EQUITIES, INC., a Maryland corporation ("Buyer"), with
reference to the following Recitals:
RECITALS:
A. Seller and Buyer have entered into that certain Purchase and Sale
Agreement and Joint Escrow Instructions Sale dated as of February 29,2000, which
has been amended by that certain First Amendment to Purchase and Sale Agreement
and Joint Escrow Instructions dated as of March 15, 2000 and that certain Second
Amendment to Purchase and Sale Agreement and Joint Escrow Instructions dated as
of March 17, 2000, by and between Seller and Buyer (as so amended, the "Original
Agreement"). All initial-capitalized terms not otherwise defined herein shall
have the meanings set forth in the Original Agreement unless the context clearly
indicates otherwise. References to "the Agreement" or "this Agreement" in the
Original Agreement or in this Third Amendment shall mean and refer to the
Original Agreement, as amended by this Third Amendment.
B. Seller and Buyer desire to amend the Agreement as more
particularly set forth herein.
NOW, THEREFORE, in consideration of the foregoing Recitals and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereby agree as follows:
1. Leasing of Property; Marketing Efforts. Notwithstanding anything contained
in the Agreement to the contrary, Seller and Buyer hereby agree that
Buyer, or its designated representative, shall have the right to enter the
Property, during normal business hours, for purposes of: (a) preparing
brochures, property profiles, fliers and other marketing materials
(collectively, the "Marketing Materials") related to Buyer's efforts to
lease the Property, and (b) touring the Property with prospective tenants.
Buyer shall have the right to distribute the Marketing Materials to any
prospective tenant. Buyer shall have the right to place "For Lease" signs
on the Property, provided that the size, content and location of such
signs shall be subject to Seller's reasonable approval. Seller shall
cooperate with Buyer's efforts to lease the Property to prospective
tenants and Seller shall not interfere with Buyer's leasing and marketing
efforts. Buyer shall not unreasonably interfere with any occupant's
operations at the Property. The indemnity and repair obligations set forth
in Section 3.9 of the Agreement shall apply to Buyer's activities on the
Property pursuant to this Section. The Marketing Materials shall contain a
statement that they were prepared by Buyer.
000 Xxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxxxxxxx
-1- (C) Alexandria Real Estate
Equities, Inc. 2000
2. Effect of this Third Amendment. Except as amended and/or modified by this
Third Amendment, the Agreement is hereby ratified and confirmed and all
other terms of the Original Agreement shall remain in full force and
effect, unaltered and unchanged by this Third Amendment. In the event of
any conflict between the provisions of this Third Amendment and the
provisions of the Original Agreement, the provisions of this Third
Amendment shall prevail. Whether or not specifically amended by this Third
Amendment, all of the terms and provisions of the Original Agreement are
hereby amended to the extent necessary to give effect to the purpose and
intent of this Third Amendment.
3. Counterparts. This Third Amendment may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
when taken together shall constitute one and the same instrument. The
signature page of any counterpart may be detached therefrom without
impairing the legal effect of the signature(s) thereon provided such
signature page is attached to any other counterpart identical thereto
except having additional signature pages executed by other parties to this
Third Amendment attached thereto.
[Signatures on next page]
000 Xxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxxxxxxx
-2- (C) Alexandria Real Estate
Equities, Inc. 2000
IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized representatives to execute this Third Amendment as of the date first
above written.
SELLER: GENERAL SCANNING INC.,
a Massachusetts corporation
By: /s/ Xxxxxx X. Xxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxx
----------------------------------
Its: Director of Real Estate Operations
----------------------------------
BUYER: ALEXANDRIA REAL ESTATE EQUITIES, INC.,
a Maryland corporation
By: /s/ Xxxx Xxxx Xxxxxxx
----------------------------------------
Name: XXXX XXXX XXXXXXX
----------------------------------
Its: GENERAL COUNSEL
----------------------------------
000 Xxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxxxxxxx
S-1 (C) Alexandria Real Estate
Equities, Inc. 2000
IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized representatives to execute this Third Amendment as of the date first
above written.
SELLER: GENERAL SCANNING INC.,
a Massachusetts corporation
By:
----------------------------------------
Name:
----------------------------------
Its:
----------------------------------
BUYER: ALEXANDRIA REAL ESTATE EQUITIES, INC.,
a Maryland corporation
By: /s/ Xxxx Xxxx Xxxxxxx
----------------------------------------
Name: XXXX XXXX XXXXXXX
----------------------------------
Its: GENERAL COUNSEL
----------------------------------
000 Xxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxxxxxxx
S-1 (C) Alexandria Real Estate
Equities, Inc. 0000
XXXXXX XXXXXXXXX TO
PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS
THIS FOURTH AMENDMENT TO PURCHASE AND SALE AGREEMENT AND JOINT
ESCROW INSTRUCTIONS (this "Fourth Amendment") is entered into as of August ___,
2000. by and between GENERAL SCANNING INC, a Massachusetts corporation
("Seller"), and ARE-500 ARSENAL STREET, LLC, a Delaware limited liability
company ("Buyer"), with reference to the following Recitals:
RECITALS:
A. Seller and Buyer, as successor in interest to Alexandria Real
Estate Equities, Inc., have entered into that certain Purchase and Sale
Agreement and Joint Escrow Instructions dated as of February 29, 2000, which has
been amended by that certain First Amendment to Purchase and Sale Agreement and
Joint Escrow Instructions dated as of March 15, 2000, that certain Second
Amendment to Purchase and Sale Agreement and Joint Escrow Instructions dated as
of March 17, 2000 (the "Second Amendment") and that certain Third Amendment to
Purchase and Sale Agreement and Joint Escrow Instructions dated as of June __,
2000 (as so amended, the "Original Agreement"). All initially-capitalized terms
not otherwise defined herein shall have the meanings set forth in the Original
Agreement unless the context clearly indicates otherwise. References to "the
Agreement" or this Agreement" in the Original Agreement or in this Fourth
Amendment shall mean and refer to the Original Agreement, as amended by this
Fourth Amendment.
B. Seller and Buyer desire to amend the Agreement as more
particularly set forth herein.
NOW, THEREFORE, in consideration of the foregoing Recitals and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereby agree as follows:
1. Purchase Price. The Second Amendment amended Section 2.2 of the Original
Agreement. Section 2.2 of the Original Agreement is hereby further amended
by deleting Section 2.2 in its entirety and substituting the following in
its place:
2.2 Balance. On the Closing Date (as defined below), Buyer shall pay to
Seller the balance of the Purchase Price over and above (i) the
Deposit paid by Buyer under Section 2.1 above and (ii) an
unconditional credit of $175,000 against the Purchase Price in favor
of Buyer, by wire transfer of federal funds to Escrow Agent, net of
all prorations and adjustments as provided herein.
2. Costs of Signalization Improvements. Buyer and Seller hereby agree that
Buyer shall pay the proportional share allocated to the Property for the
signalization improvement costs
[500 Arsenal Street]
-1- (C) Alexandria Real Estate
Equities, Inc. 2000
described in that certain Decision by the Town of Watertown Board of
Appeals dated June 7, 1982.
3. Effect of this Fourth Amendment. Except as amended and/or modified by this
Fourth Amendment, the Agreement is hereby ratified and confirmed and all
other terms of the Original Agreement shall remain in full force and
effect, unaltered and unchanged by this Fourth Amendment. In the event of
any conflict between the provisions of this Fourth Amendment and the
provisions of the Original Agreement, the provisions of this Fourth
Amendment shall prevail. Whether or not specifically amended by this
Fourth Amendment, all of the terms and provisions of the Original
Agreement are hereby amended to the extent necessary to give effect to the
purpose and intent of this Fourth Amendment.
4. Counterparts. This Fourth Amendment may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
when taken together shall constitute one and the same instrument. The
signature page of any counterpart may be detached therefrom without
impairing the legal effect of the signature(s) thereon provided such
signature page is attached to any other counterpart identical thereto
except having additional signature pages executed by other parties to this
Fourth Amendment attached thereto.
[Signatures on next page]
[500 Xxxxxxx Xxxxxx]
-0- (X) Xxxxxxxxxx Xxxx Xxxxxx
Equities, Inc. 2000
IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized representatives to execute this Fourth Amendment as of the date first
above written.
SELLER: GENERAL SCANNING INC.,
a Massachusetts corporation
By: /s/ Xxxxxx X. Xxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxx
----------------------------------
Its: Director of Real Estate Operations
----------------------------------
BUYER: ARE-500 ARSENAL STREET, LLC,
a Delaware limited liability company
By: ALEXANDRIA REAL ESTATE EQUITIES, LP.,
a Delaware limited partnership,
its sole member
By: ARE-QRS CORP.,
a Maryland corporation.
its general partner
By:
--------------------------------
Name:
--------------------------
Its:
--------------------------
[500 Xxxxxxx Xxxxxx]
X-0 (C) Alexandria Real Estate
Equities, Inc. 0000
XXXXXX XXXXXXXXX TO
PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS
THIS FOURTH AMENDMENT TO PURCHASE AND SALE AGREEMENT AND JOINT
ESCROW INSTRUCTIONS (this "Fourth Amendment") is entered into as of August __,
2000, by and between GENERAL SCANNING INC, a Massachusetts corporation
("Seller"), and ARE-500 ARSENAL STREET, LLC, a Delaware limited liability
company ("Buyer"), with reference to the following Recitals:
RECITALS:
A. Seller and Buyer, as successor in interest to Alexandria Real
Estate Equities, Inc., have entered into that certain Purchase and Sale
Agreement and Joint Escrow instructions dated as of February 29, 2000, which has
been amended by that certain First Amendment to Purchase and Sale Agreement and
Joint Escrow Instructions dated as of March 15,2000, that certain Second
Amendment to Purchase and Sale Agreement and Joint Escrow Instructions dated as
of March 17,2000 (the "Second Amendment") and that certain Third Amendment to
Purchase and Sale Agreement and Joint Escrow instructions dated as of June ____,
2000 (as so amended, the "Original Agreement"). All initially-capitalized terms
not otherwise defined herein shall have the meanings set forth in the Original
Agreement unless the context clearly indicates otherwise. References to "the
Agreement" or "this Agreement" in the Original Agreement or in this Fourth
Amendment shall mean and refer to the Original Agreement, as amended by this
Fourth Amendment.
B. Seller and Buyer desire to amend the Agreement as more
particularly set forth herein.
NOW, THEREFORE, in consideration of the foregoing Recitals and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereby agree as follows:
1. Purchase Price. The Second Amendment amended Section 2.2 of the Original
Agreement. Section 2.2 of the Original Agreement is hereby further amended
by deleting Section 2.2 in its entirety and substituting the following in
its place:
2.2 Balance. On the Closing Date (as defined below), Buyer shall pay to
Seller the balance of the Purchase Price over and above (i) the
Deposit paid by Buyer under Section 2.1 above and (ii) an
unconditional credit of $175,000 against the Purchase Price in favor
of Buyer, by wire transfer of federal funds to Escrow Agent, net of
all prorations and adjustments as provided herein.
2. Effect of this Fourth Amendment. Except as amended and/or modified by this
Fourth Amendment, the Agreement is hereby ratified and confirmed and all
other terms of the Original Agreement shall remain in full force and
effect, unaltered and unchanged by this
[500 Arsenal Street]
-1- (C) Alexandria Real Estate
Equities, Inc. 0000
Xxxxxx Xxxxxxxxx. In the event of any conflict between the provisions of
this Fourth Amendment and the provisions of the Original Agreement, the
provisions of this Fourth Amendment shall prevail. Whether or not
specifically amended by this Fourth Amendment, all of the terms and
provisions of the Original Agreement are hereby amended to the extent
necessary to give effect to the purpose and intent of this Fourth
Amendment.
3. Counterparts This Fourth Amendment may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
when taken together shall constitute one and the same instrument. The
signature page of any counterpart may be detached therefrom without
impairing the legal effect of the signature(s) thereon provided such
signature page is attached to any other counterpart identical thereto
except having additional signature pages executed by other parties to this
Fourth Amendment attached thereto.
[Signatures on next page]
[500 Xxxxxxx Xxxxxx]
-0- (X) Xxxxxxxxxx Xxxx Xxxxxx
Equities, Inc. 2000
IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized representatives to execute this Fourth Amendment as of the date first
above written.
SELLER: GENERAL SCANNING INC.,
a Massachusetts corporation
By:
----------------------------------------
Name:
----------------------------------
Its:
----------------------------------
BUYER: ARE-500 ARSENAL STREET, LLC,
a Delaware limited liability company
By: ALEXANDRIA REAL ESTATE EQUITIES, LP.,
a Delaware limited partnership,
its sole member
By: ARE-QRS CORP.,
a Maryland corporation.
its general partner
By: /s/ Xxxxx X. Xxxxxx
--------------------------------
Name: XXXXX X. XXXXXX
--------------------------
Its: SENIOR VICE PRESIDENT &
CHIEF FINANCIAL OFFICER
--------------------------
[500 Xxxxxxx Xxxxxx]
X-0 (C) Alexandria Real Estate
Equities, Inc. 2000
[LETTERHEAD OF XXXXXX & XXXX]
July 27, 2000
By Facsimile and Federal Express
Xxxxxx Xxxxx, Esq.
Xxxxx, Xxxxx & Plait
3S0 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, XX 00000-0000
Re: General Scanning Inc./Alexandria Real Estate Equities, Inc.
000 Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx ("Property")
Escrow No. 201005080 x70
Dear Xxxxxx:
This is to confirm that our clients have agreed to a Closing Date of
August 10, 2000. The entity occupying the Property pursuant to the PCB Agreement
has vacated and surrendered the Property, as of July 26, 2000, in accordance
with section 7.1.5 of the Purchase and Sale Agreement.
Please forward to me execution copies of the closing documents which you
prepared as Exhibits to the Purchase and Sale Agreement. By copy of this letter,
I am notifying Xxxxxx Xxxxxx of Chicago Title insurance Company of the August
10th Closing Date and asking her to proceed with the closing preparation and to
forward the Preliminary Closing Statement, as provided in section 10.2 of the
Purchase and Sale Agreement.
Please call me to discuss these Closing arrangements.
Sincerely,
/s/ Xxxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxxxx
283408
cc: Xxxxxx X. Xxxxx (by fax)
Xxxxxx Xxxxxx, Esq. (by fax)
ALEXANDRIA
CONFIDENTIAL FOR ADDRESSEE ONLY-
DO NOT COPY OR DISTRIBUTE
[LOGO]
000 X. XXX XXXXXX XXXXXX
XXXXX 000 x XXXXXXXX, XX 00000
TEL: 000-000-0000
FAX: 000-000-0000
Xxxxxx 00, 0000
XXX XXXXXXXXX
General Scanning Inc.
0000 X. Xxxxxxx Xxxxxx
Xxxx Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx
Facsimile: (000) 000-0000
Re: 000 Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx
Ladies and Gentlemen:
Reference is made to that certain Purchase and Sale Agreement and Joint
Escrow Instructions dated as of February 29,2000, which has been amended by that
certain First Amendment to Purchase and Sale Agreement and Joint Escrow
Instructions dated as of March 15, 2000, that certain Second Amendment to
Purchase and Sale Agreement and Joint Escrow Instructions dated as of March 17,
2000, that certain Third Amendment to Purchase and Sale Agreement and Joint
Escrow Instructions dated as of June ___, 2000, and that certain Fourth
Amendment to Purchase and Sale Agreement and Joint Escrow Instructions dated as
of August ___, 2000, by and between ARE-500 Arsenal Street, LLC, a Delaware
limited liability company, as successor in interest to Alexandria Real Estate
Equities, Inc., and General Scanning Inc., a Massachusetts corporation (as so
amended, the "Original Agreement"). All initially-capitalized terms not
otherwise defined herein shall have the meanings set forth in the Original
Agreement unless the context clearly indicates otherwise. References to "the
Agreement" or "this Agreement" in the Original Agreement or in this letter shall
mean and refer to the Original Agreement, as amended by this letter.
Buyer and Seller hereby agree that the date of the Closing shall be August
11, 2000. Except as amended and/or modified by this letter all other terms of
the Original Agreement shall remain in full force and effect, unaltered and
unchanged by this letter. In the event of any conflict between the provisions of
this letter and the provisions of the Original Agreement, the provisions of this
letter shall prevail. This letter may be executed in as many counterparts as may
be deemed necessary and convenient, and by the different parties hereto on
separate counterparts, each of which, when so executed, shall be deemed an
original, but all such counterparts shall constitute one and the same
instrument.
Xx. Xxxxxx X. Xxxxx CONFIDENTIAL FOR ADDRESSEE ONLY-
August 10, 2000 DO NOT COPY OR DISTRIBUTE
Page 2
If the foregoing accurately reflects your understanding, please execute
and return this letter to the undersigned.
Sincerely,
Xxxxx X. Xxxxxx
cc: Xxxx X. Xxxxxx
Xxxxx X. Xxxxxxxxxx
Xxxx Xxxxxx
Xxxxxx X. Xxxxxxx
Xxxxxx Xxxxx
AGREED AND ACCEPTED AS OF AUGUST __, 2000
GENERAL SCANNING INC.,
a Massachusetts corporation
By: ____________________________
Name: ______________________
Title: _____________________
