Exhibit 10.126
PURCHASE AND SALE AGREEMENT
dated as of March 2, 2001
by and between
XXXXX & XXXXXX MANUFACTURING COMPANY
as Seller
and
PRECISION PARK PARTNERS, LLC
as Buyer
with respect to approximately 169 acres of real property and
improvements located on Frenchtown Road in North Kingstown, Rhode Island
(with a portion thereof located in East Greenwich, Rhode Island
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this "Agreement") is made and entered
into as of this 2nd day of March, 2001 (the "Effective Date"), by and between
XXXXX & XXXXXX MANUFACTURING COMPANY, a Delaware corporation having an address
at 000 Xxxxxxxxxx Xxxx, Xxxxx Xxxxxxxxx, Xxxxx Xxxxxx 00000 ("Seller"), and
PRECISION PARK PARTNERS, LLC, a Rhode Island limited liability company having
an address at 000 Xxxxxxxxxx Xxxxx Xxxx, Xxxxxxx, Xxxxx Xxxxxx 00000
("Buyer").
ARTICLE I
PROPERTY
Section 1.01. Property. Seller hereby agrees to sell and convey to Buyer,
and Buyer hereby agrees to purchase from Seller, upon the terms and conditions
set forth herein, those certain lots or parcels of land (the "Land"), with the
buildings, fixtures and improvements thereon (the "Improvements"), located at
200 Frenchtown Road, North Kingstown, Rhode Island, consisting of
approximately 169 acres (with a portion thereof located in East Greenwich,
Rhode Island), and more particularly described on Exhibit A attached hereto
and made a part hereof.
TOGETHER ALSO with all right, title and interest of Seller, if any, in and
to (i) the land in the bed of any public street, road or avenue, open or
proposed, in front of or adjoining the Land, to the center line thereof,
(ii) any rights of way, easements, appurtenances, alleys, gores and strips of
land adjoining or appurtenant to the Land and used in conjunction therewith,
(iii) any water rights, riparian rights and powers, hereditaments and
appurtenances with respect thereto, all right, title and interest of Seller in
and to any side or spur railroad tracks and all rights of way appurtenant
thereto, (iv) any award made or to be made in lieu of any of the foregoing and
any unpaid award for damage to the Land or the Improvements by reason of
change of grade of any street, road or avenue; (v) any award made or to be
made with respect to the Route 4 Condemnation (as hereinafter defined); (vi)
the Existing Leases (hereinafter defined) and the Hexagon Lease (as
hereinafter defined); (vii) all rents and profits from the Existing Leases and
the Hexagon Lease applicable to any period from and after the Closing Date
(hereinafter defined), and any security or tenant deposit made by any tenant
to Seller whether or not refundable, together with interest required by law or
by the applicable Existing Lease to be paid thereon, and any other documents,
records or rights owned by Seller affecting or relating to the Land, the
Existing Leases or the Improvements; and (viii) all fixtures and/or personal
property listed on Exhibit B attached hereto and made a part hereof (the
"Personal Property").
All of the foregoing items purchased under this Agreement are collectively
referred to as the "Property".
ARTICLE II
PURCHASE PRICE
Section 2.01. Purchase Price. The purchase price for the Property (the
"Purchase Price") shall be Fifteen Million Five Hundred Thousand and 00/100
Dollars ($15,500,000.00). The Purchase Price will be paid by Buyer to Seller
at the Closing (as hereinafter defined) and recording of the Deed (as
hereinafter defined) in cash or by wire transfer of immediately available
funds.
Section 2.02. Use of Purchase Price. To enable Seller to make conveyance as
provided in this Agreement, Seller shall use the Purchase Price or any portion
thereof to clear the title of any or all encumbrances or interests, other than
the Permitted Encumbrances (as hereinafter defined), provided that all
instruments so procured are recorded simultaneously with the delivery of the
Deed or that provision for prompt recording thereof satisfactory to the
Buyer's attorneys are made on the date of Closing.
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Section 2.03. Deposits. The Buyer shall make deposits against the Purchase
Price in the following manner:
(a) Contemporaneously with the execution of this Agreement, Buyer shall
deliver to CB Xxxxxxx Xxxxx--N.E. Partners, L.P. (the "Escrow Agent") the
sum of Fifty Thousand and 00/100 Dollars ($50,000.00) as xxxxxxx money
hereunder (the "Initial Deposit");
(b) On or before the expiration of the Review Period (as defined in
Section 3.01) the Buyer shall deliver to the Escrow Agent the sum of Six
Hundred Fifty Thousand and 00/100 Dollars ($650,000.00) (the "Additional
Deposit");
As used herein, the term "Deposit" shall mean both the Initial Deposit and
the Additional Deposit, together with all interest earned thereon.
Any deposit amount required hereunder, may, at the option of Buyer, be in
the form of cash or check. The Escrow Agent shall place the Deposit in an
interest-bearing account at a bank designated by Buyer, with all interest
being paid to Buyer. At the Closing, the Deposit will be applied toward the
Purchase Price, but otherwise the Deposit will be held by the Escrow Agent,
returned to Buyer, or delivered to Seller, in accordance with the terms of
this Agreement.
ARTICLE III
REVIEW PERIOD
Section 3.01. Review Period. Buyer has from the date of this Agreement
until 5:00 p.m., on May 2, 2001, which date is agreed to be sixty (60) days
from the date hereof (the "Review Period") to: (a) review and approve, at
Buyer's expense, such items (including the Existing Leases) and to conduct
such inspections, interviews, tests and audits as Buyer, in its sole
discretion, deems appropriate, including, without limitation, environmental
(including so-called phase I and II testing), engineering and zoning
inspections and investigations and review of those matters disclosed by survey
and any matters related to title to the Property; and (b) obtain financing for
the purchase of the Property.
Section 3.02. Inspection. Buyer shall have the right, at all reasonable
times during the Review Period and until Closing to conduct on-site
inspections of the Property and physical inspections and tests of the Property
(including, without limitation, the right to enter and inspect all portions of
the Property), provided, however, that any invasive inspection or testing
shall require the prior consent of the Seller, which consent shall not be
unreasonably withheld, and shall be scheduled only upon prior notice to
Seller. Upon the completion of any inspection or test conducted pursuant to
the provisions hereof, the Buyer agrees, at its sole cost and expense, to
return the Property to the condition as existed prior to the commencement of
such inspection or test. Seller hereby agrees to fully cooperate with Buyer in
providing access to any and all information with respect to the Property
requested by Buyer, including the execution of any consents or applications
for information from government or quasi-governmental agencies. Buyer shall
indemnify Seller from any physical damage to the Property and personal injury
resulting from Buyer's entry on the Property during the Review Period.
Section 3.03. Buyer's Notice. If for any or no reason Buyer, in its sole
and absolute discretion, is not satisfied with the results of such
inspections, interviews, tests or any other fact or situation with respect to
the Property, then in such event Buyer shall have the right to terminate this
Agreement by giving Seller and the Escrow Agent written notice thereof (the
"Buyer's Notice") on or before the expiration of the Review Period, and this
Agreement shall be immediately terminated upon Buyer's delivery of the Buyer's
Notice to Seller. The Seller shall be under no obligation in any event to
extend the Review Period. The Buyer's Notice need not set forth the reason for
such termination. Buyer's failure to deliver the Buyer's Notice on or before
the expiration of the Review Period shall be deemed a waiver of Buyer's right
to terminate this Agreement under this Section 3.03 and the terms of this
Agreement shall continue to bind the parties.
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Section 3.04. Termination. If Buyer elects to terminate this Agreement by
(i) delivering the Buyer's Notice in accordance with and subject to the terms
of this Article III, or (ii) failing to pay the Additional Deposit as provided
in Section 2.03 of this Agreement, the parties hereto shall thereupon be
relieved of all liabilities and obligations hereunder and the Initial Deposit
shall be paid to Seller by Escrow Agent in consideration of the agreements of
Seller contained herein. Buyer expressly acknowledges and agrees that, if
Seller requests Escrow Agent to pay to Seller the Initial Deposit as a result
of Buyer's election to terminate this Agreement under the provisions of this
Article III, then the Escrow Agent shall have no obligation to independently
determine whether Seller has the right to receive the Initial Deposit, and the
Escrow Agent may rely solely upon the written instructions set forth in any
written notice delivered by Seller from and after such election, without the
joinder, approval or consent of Buyer. If Buyer elects to terminate this
Agreement in accordance with and subject to the terms of this Article III,
Buyer shall furnish Seller, upon such termination and without charge, a copy
of each study, report and any other document prepared by Buyer in connection
with Buyer's due diligence for the Property.
ARTICLE IV
GOOD AND MARKETABLE TITLE
Section 4.01. Conveyance. At the Closing, Seller will convey good and
marketable record fee simple and insurable (at Buyer's expense) title to the
Property to Buyer by a warranty deed (the "Deed") and good and marketable
title to the Personal Property by a xxxx of sale (the "Xxxx of Sale"), free
and clear of any and all deeds of trust, mortgages or other liens or
indebtedness, encumbrances, conditions, easements, rights-of-way, assessments
and restrictions, except for the following (collectively, the "Permitted
Exceptions"):
(a) General real estate taxes for the year in which the Closing occurs
and subsequent years not yet due and payable.
(b) All easements, restrictions, rights-of-way, encroachments,
covenants, reservations, agreements, leases, tenancies, licenses,
conditions and other matters of record as of the date hereof, affecting all
or any portion of the Property to the extent not disapproved by Buyer
during the Review Period; Seller shall have no obligation to remove any
such matters of record, provided, however, nothing contained herein shall
deprive Buyer of its right to terminate this Agreement pursuant to the
terms of Section 3.03 hereof.
(c) The terms and provisions of the Hexagon Lease and of those leases
listed on Exhibit C attached hereto and made a part hereof (the "Existing
Leases").
Section 4.02. Extension to Cure. If Seller shall be unable to give title or
to make conveyance, or to deliver possession of the Property, all as herein
stipulated, or if on the date of Closing the Property does not conform with
the provisions hereof, then Seller shall use good faith and reasonable efforts
to remove any defects in title, or to deliver possession as provided herein,
or to make the Property conform to the provisions hereof, as the case may be,
and the Closing shall automatically be extended for a period of sixty (60)
days (the "Extended Time"). If at the expiration of the Extended Xxxx Xxxxxx
shall have failed so to remove any defects in title, deliver possession, or
make the Property conform, as the case may be, all as herein agreed, after
using good faith and reasonable efforts to do so, then, at Buyer's option, the
Deposit shall be forthwith refunded by Escrow Agent to Buyer and all other
obligations of all parties hereto shall cease and this Agreement shall be void
without recourse to the parties hereto.
Buyer shall have the election, at either the original date of Closing or
the Extended Time, to accept such title as Seller can deliver to the Property
in its then condition and to pay therefore the Purchase Price without
deduction, in which case Seller shall convey such title.
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ARTICLE V
CLOSING
Section 5.01. Closing. The purchase and sale of the Property will be held
at Xxxxxxx & Xxxxxx, LLP, 2800 Financial Plaza, Providence, Rhode Island or
such other place as may be agreed upon by Seller and Buyer, and will occur,
subject to satisfaction of all conditions precedent set forth in Section 9.01
of this Agreement at 10:00 a.m. local time on June 5, 2001 (the "Closing"). If
the day on which the Closing is scheduled to occur is a Sunday or holiday then
the Closing shall take place on the first business day thereafter.
Section 5.02. Seller's Obligations. At the Closing, Seller shall execute
and deliver to Buyer, and/or cause the execution and delivery by all parties
other than Buyer of, the following:
(a) The Deed (with payment by Seller of the required state and/or local
documentary stamps and any other applicable tax transfers, if any, to be
affixed thereto).
(b) An assignment of leases, in the form attached hereto as Exhibit D,
pursuant to which all of Seller's right, title and interest in and to the
Existing Leases and the Hexagon Lease shall be assigned to Buyer and Buyer
shall assume, from and after the Closing, all of Seller's rights and
obligations under the Existing Leases and the Hexagon Lease (the
"Assignment of Leases").
(c) The Xxxx of Sale.
(d) A FIRPTA affidavit in a form acceptable to Buyer and the title
insurance company selected by Buyer (the "Title Company").
(e) A Rhode Island Residency Affidavit, in a form acceptable to Buyer
and the Title Company, sufficient to comply with the provisions of R.I.G.L.
(S) 44-30-71.3 in order that there shall be no lien on the Property.
(f) Evidence of Seller's good standing in each of Delaware and Rhode
Island issued by the Secretary of State of each of Delaware and Rhode
Island.
(g) A good standing certificate from the Rhode Island Division of
Taxation and, if the transaction is a sale of all or substantially all of
the assets of Seller, a discharge of lien from the Division of Taxation.
(h) Original counterparts (to the extent available) or copies of the
Existing Leases and the Hexagon Lease (and lease files) and of all
operating agreements, reciprocal easement agreements, options, warranties,
guarantees, permits and other agreements related to the Property, including
all modifications, supplements or amendments to each of the foregoing.
(i) Copies of any permits, licenses and approvals relating to operation
of the sewage treatment plant facility located at the Property and an
assignment thereof to Buyer.
(j) An assignment of any and all permits, licenses, approvals and
warranties relating to the Property, to the extent assignable.
(k) To the extent necessary to permit the Title Company to remove any
exception in the owner's policy for mechanics' and materialmens' liens and
general rights of parties in possession, an affidavit executed by Seller as
to the absence of debts and liens and a listing of all parties in
possession executed by Seller, made to Buyer and the Title Company and in a
form acceptable to the Title Company, along with any other items reasonably
required by the Title Company.
(l) Evidence acceptable to the Title Company of Seller's authority to
consummate the transactions contemplated by this Agreement.
(m) Seller's certification that all representations and warranties made
by Seller under this Agreement are true, complete and correct in all
material respects as of the Closing.
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(n) A settlement statement with respect to the purchase and sale of the
Property (the "Settlement Statement").
(o) To the extent the same are in Seller's possession, all original
certificates of occupancy and licenses, permits, authorizations and
approvals issued by the appropriate authorities with respect to the
Property.
(p) Any surveys and architect's plans, specifications and reports
pertaining to the Property in Seller's possession and any licenses,
permits, authorizations and approvals pertaining to the operation thereof.
(q) Notice to each tenant advising such tenant of the sale of the
Property and instructing such tenant to send all rent to such address as
Buyer requests.
(r) The information necessary to complete form 1099B and such other
forms and information required by the Internal Revenue Code and regulations
thereunder with respect to the transaction.
(s) All other instruments and documents to which Buyer may be entitled
under any provision of this Agreement.
(t) Signed tenant estoppel certificates and subordination, non-
disturbance and attornment agreements (on forms acceptable to Buyer and
Seller) from each of the tenants under the Existing Leases and the Hexagon
Lease.
(u) An assignment of any surviving Service Contracts (as hereinafter
defined), in the form attached hereto as Exhibit E.
Section 5.03. Buyer's Obligations. At the Closing, Buyer shall pay the
Purchase Price to Seller in cash or by wire transfer of immediately available
funds, and shall execute and deliver to Seller the following:
(a) The Assignment of Leases.
(b) Buyer's certification that all representations and warranties made
by Buyer under this Agreement are true, complete and correct in all
material respects as of the Closing.
(c) Appropriate evidence of Buyer's authority to consummate the
transactions contemplated by this Agreement.
(d) The Settlement Statement.
Section 5.04. Possession. At the Closing, full possession of the Property,
subject only to the rights of the tenants under the Existing Leases and the
Hexagon Lease, shall be delivered by Seller to Buyer in the same condition as
it now is, reasonable wear and tear excepted. Buyer acknowledges that it is
purchasing the Property "AS IS".
ARTICLE VI
CLOSING ADJUSTMENTS
Section 6.01. Adjustments and Prorations.
(a) Real and (if a lien on the Property) personal property taxes, fire
district (if any) taxes, water and sewer bills and any other costs or expenses
allocable to the parties hereto shall be prorated as of the Closing on the
basis of a 365-day year, except that if any amount to be prorated covers a
period of less than a year, the proration as to such amount shall be made as
of the Closing on the basis of the period so covered. Seller shall, at the
Closing, pay a pro rata share of all items so prorated to and including the
day of the Closing, and Buyer shall pay or assume the balance thereof. Seller
shall pay all utility charges on the Property for the period up to Closing.
The net amount of any adjustments shall be added to or subtracted from the
Purchase Price, as applicable. Any unpaid betterment or improvement
assessments (the "Assessments") constituting a lien against the Premises shall
be paid in the following manner: (i) Seller shall pay for all Assessments due
and payable prior to the calendar year 2001; (ii) Assessments due and payable
during the calendar year 2001 shall be prorated as of the Closing Date; and
(iii) Buyer shall pay for all Assessments due and payable in the calendar
years 2002 and beyond.
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(b) Rents under the Existing Leases and the Hexagon Lease shall be prorated
as of the Closing based on the applicable period relating to such rents,
except that no proration shall be made for rents delinquent as of the Closing
(hereinafter called the "Delinquent Rents"). Delinquent Rents shall be any
rents that are more than thirty (30) days past due. The balance remaining from
any security deposits or prepaid rents which are held by Seller after
deductions previously made by Seller in accordance with the Existing Leases
and the Hexagon Lease shall be transferred to Buyer, provided, however, that
from and after the date hereof Seller will make no further deductions from any
security deposit without the prior written consent of Buyer, which consent
shall not be unreasonably withheld. Buyer shall assume all liability and
obligations relating to such security deposits and prepaid rents and shall
indemnify and hold Seller harmless from all claims, liabilities and
obligations relating thereto. Delinquent Rents, if any, shall be similarly
prorated as of the Closing, and Seller's share thereof shall be remitted to
Seller promptly when, as and if received by Buyer; provided, however, nothing
herein contained shall operate to require Buyer to institute any lawsuit or
other collection procedures to collect any Delinquent Rents. Amounts collected
by Buyer from tenants owing Delinquent Rents shall be applied first to rent
for the month in which the Closing occurs, then current rents owed by such
tenant and finally to Delinquent Rents owed by such tenant in the inverse
order in which the Delinquent Rents arose.
Section 6.02. Transaction Costs. Each party will pay its own expenses
incurred in connection with this Agreement and the transactions contemplated
hereby, including, without limitation, (a) all costs and expenses stated
herein to be borne by a party, and (b) each party's respective legal fees and
expenses. Buyer, in addition to its other expenses, shall pay at the Closing
(i) all recording charges incident to the recording of the Deed, and (ii) all
premiums for Buyer's title insurance policy. Seller, in addition to its other
expenses, shall pay at the Closing the cost of any documentary stamps or other
sales or transfer taxes applicable to the sale.
Section 6.03. Brokerage Commissions. Seller and Buyer acknowledge and agree
that neither has dealt with any real estate broker, agent or salesman, except
CB Xxxxxxx Xxxxx--N.E. Partners, L.P. ("Xxxxx"). Seller and Buyer acknowledge
and agree that Seller shall be solely responsible for payment of any broker's
fee or commission due Xxxxx, and Seller shall indemnify, protect, defend and
hold harmless Buyer from any and all claims for any such fees or commissions
due Xxxxx. Seller and Buyer further acknowledge and agree that any other fees
or real estate commissions occasioned by the execution and/or consummation of
this Agreement shall be the sole responsibility of the party contracting
therefor, and such party agrees to indemnify, protect, defend and hold
harmless the other party from any and all claims for such other fees or real
estate commissions.
Sections 6.04. Survival. The terms of this Article VI shall survive the
termination of this Agreement on the Closing and delivery of the Deed.
ARTICLE VII
DEFAULT AND REMEDIES
Section 7.01. Buyer's Default. If Buyer fails to close for any reason,
except (i) Seller's default or (ii) the permitted termination of this
Agreement by Buyer or Seller as herein expressly provided, Seller shall be
entitled to terminate this Agreement and to instruct the Escrow Agent to
deliver the Deposit to Seller as liquidated damages, which right shall be
Seller's sole remedy hereunder.
Section 7.02. Seller's Default. If Seller is in default under the terms of
this Agreement, or if Seller fails to close for any reason, except (i) Buyer's
default or (ii) the permitted termination of this Agreement by either Seller
or Buyer as herein expressly provided, Buyer shall be entitled to terminate
this Agreement upon written notice to Seller and to request the Escrow Agent
to return the Deposit to Buyer. In addition to, but not in lieu of, the return
of the Deposit, Buyer shall be entitled to exercise any and all available
remedies at law, in equity or otherwise, including specific performance of
this Agreement.
Section 7.03. Legal Fees. In the event of any litigation between the
parties with respect to the subject matter of this Agreement, the prevailing
party shall be entitled to recover its reasonable legal fees from the other
party.
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ARTICLE VIII
REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 8.01. Seller's Representations. Seller hereby represents and
warrants to Buyer, as of the date hereof and as of the Closing, as follows:
(a) Attached hereto as Exhibit C is a schedule of all Existing Leases.
Seller covenants that it has previously and/or contemporaneously herewith
delivered to Buyer true copies of all Existing Leases, and all amendments
and agreements relating thereto. Seller covenants that prior to the Closing
it will not enter into any new lease, or amend, modify, extend, assign or
terminate any Existing Lease or the Hexagon Lease, or consent to any
assignment or subletting under any Existing Lease or the Hexagon Lease,
without the prior written consent of Buyer which consent shall not be
unreasonably withheld or delayed. Except for the Existing Leases there are
no other leases or occupancy agreements with respect to the Property. The
Existing Leases are in full force and effect and there are no material
defaults by either landlord or tenant thereunder;
(b) The rent roll which is attached as Exhibit F hereto (the "Rent
Roll") accurately and completely identifies, as of the date of this
Agreement, all Existing Leases and the Hexagon Lease, including the terms
thereof and any security deposits and prepaid rent held by Seller. All
information set forth in the Rent Roll is true and accurate. The Rent Roll
shall be mutually satisfactory to the parties and shall list, inter alia,
the base rent, additional rent, options to extend, option rent and any
rights of first refusal to lease or purchase.
(c) Except as set forth on the Rent Roll, all rents which are payable by
tenants under their respective Existing Leases are presently current.
(d) Except as set forth on the Rent Roll, no tenant has paid rent for
more than one (1) month in advance.
(e) Seller shall, from and after the date of this Agreement to the
Closing Date, perform and discharge its duties and obligations and
otherwise comply with every material covenant and agreement of the landlord
under the Existing Leases.
(f) To the best knowledge of Seller, water, gas and electric lines to
service the Property are located on or adjacent to the Property directly
from a public street; there are no unpaid assessments or charges for the
installation of any such utilities or for making connection thereto that
have not been fully paid and Seller has no knowledge of any contemplated
assessments or charges.
(g) Each service or similar contract (excluding any applicable Permitted
Encumbrances) relating to the ownership, operation or use of the Property,
is accurately described on Exhibit G which is attached hereto
(collectively, the "Service Contracts"). To the best of Seller's knowledge,
(i) all of the Service Contracts are in full force and effect, and (ii)
neither Seller nor the vendor under each Service Contract is in default of
its obligations thereunder.
(h) Seller has received no written notice alleging that the Property is
in violation of any applicable building, environmental or zoning laws,
rules, codes or regulations.
(i) (i) Seller is not a party to any litigation, arbitration or
administrative proceeding (1) with any past or present tenant of the
Property, (2) with any person or entity having or claiming any interest in
or lien on the Property, or (3) which affects or questions Seller's title
to the Property or Seller's ability to perform its obligations under this
Agreement.
(ii) Seller knows of no presently pending litigation, arbitration or
administrative proceeding and no litigation, arbitration or administrative
proceeding has been threatened against Seller or the property, in either
case, affecting or questioning Seller's title to, or use of, the Property
or any part thereof.
(j) Seller has received no written or other notice of any condemnation
proceeding nor declaration of taking or other similar instrument filed
against the Property, but has knowledge that the State of Rhode Island
intends to take a portion of the Land for purposes of constructing a
connector to Xxxxx Xxxxxx Xxxxx Xxxxx 0 (xxx "Xxxxx 0 Xxxxxxxxxxxx").
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(x) To the best of Seller's knowledge, (i) there are no underground
storage tanks on the Property, and (ii) any underground storage tanks
previously existing on the Property were removed therefrom in accordance
with applicable law and Seller has obtained closure certificates evidencing
such removal.
(l) Seller has not used or knowingly permitted the Property to be used,
and to the best of Seller's knowledge, the Property has not been used for,
storage, transfer, transportation or disposal of dangerous, toxic or
hazardous materials, chemicals, wastes or similar substances or for the
discharge of the same into the environment other than in the normal course
of the businesses of Seller and Seller's tenants and in accordance with
applicable law. Contemporaneously with the execution of this Agreement,
Seller shall deliver to Buyer (to the extent in Seller's possession or
control) copies of all environmental site assessments, site inspections,
agreements and any other environmental due diligence relating to the
Property.
(m) The Seller is a corporation (i) duly organized, validly existing and
in good standing under the laws of the State of Delaware, (ii) qualified to
conduct business in the State of Rhode Island, and (iii) with full power
and authority to execute and deliver this Agreement, to perform its
covenants, agreements and obligations hereunder and to sell the Property.
(n) This Agreement and its execution by Seller have been duly authorized
and are a valid and binding obligations of Seller; and the transfer of the
Property, and the consummation of the transactions contemplated hereby,
will not result in any violation or breach of any indenture or agreement to
which Seller is a party or by which Seller or the Property is affected or
bound.
The representations and warranties in this Section 8.01 are made by Seller
in order to facilitate Buyer's due diligence process and shall not survive the
Closing and delivery of the Deed. Notwithstanding the foregoing limitation,
the terms of Section 8.01(a)-(e) shall survive the Closing and delivery of the
Deed for a period of six (6) months.
Section 8.02. Buyer's Representations.
(a) Buyer hereby represents and warrants to Seller, as of the date
hereof and as of the Closing, that Buyer has the legal capacity and
complete authority to enter into and perform this Agreement, and no
consent, approval or other action by any person or entity will be needed
thereafter to authorize Buyer's execution and performance of this
Agreement.
(b) Buyer is a limited liability company duly organized and validly
existing under the laws of the State of Rhode Island.
Section 8.03. Operating Covenants. From the date hereof until the date of
Closing, the Seller shall not take any of the following actions with respect
to the Property:
(a) make or permit any structural modifications of or additions to the
Property without the Buyer's consent, which consent shall not be
unreasonably withheld;
(b) mortgage or otherwise further encumber or to permit liens (whether
inchoate or not) upon the Property;
(c) enter into any agreements relating to the operation or maintenance
of the Property the term of which agreements shall extend beyond the date
of Closing;
(d) enter into any lease, license or other agreement with respect to the
use or occupancy of the Property or otherwise grant or create any
easements, restrictions or other encumbrances on or affecting the Property;
or
(e) amend, alter or modify any of the Existing Leases or the Hexagon
Lease.
Section 8.04. Route 4 Condemnation. From and after the date hereof, Seller
shall promptly deliver to Buyer copies of any and all notices, correspondence
and any other materials received by Seller with respect to the Route 4
Condemnation. Prior to the earlier of termination of this Agreement or
Closing, Seller will not enter into any agreement with any governmental entity
with respect to the Route 4 Condemnation without the prior written consent of
Buyer.
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ARTICLE IX
CONDITIONS PRECEDENT
Section 9.01. Mutual Contingency. Seller's obligation to sell the Property
and Buyer's obligation to purchase the Property (as set forth in this
Agreement) shall be contingent upon Seller entering into a lease, prior to
Closing, with Hexagon Holdings, Inc. ("Hexagon") pursuant to which Seller
shall lease to Hexagon approximately 333,080 square feet of space in the
Improvements (the "Hexagon Lease"). The Hexagon Lease shall be in the form
attached hereto as Exhibit H.
Section 9.02. Discovery. If either Seller or Buyer discovers, prior to or
at the Closing, that any representation or warranty of the other party is
false, misleading or inaccurate in any material respect, the discovering party
may (but shall not be obligated to), at such party's option, terminate this
Agreement and the parties hereto shall be relieved of all liabilities and
obligations hereunder and (a) if Buyer is the discovering party, Buyer shall
be entitled to the immediate return of the Deposit, together with all accrued
interest thereon, and to pursue Buyer's remedies under Article VII of this
Agreement, and (b) if Seller is the discovering party, Seller shall be
entitled to pursue Seller's remedies under Article VII of this Agreement.
ARTICLE X
NOTICES
Any notice, demand or other communication which may or is required to be
given under this Agreement must be in writing and must be: (a) personally
delivered with a signed receipt; (b) transmitted by United States postage
prepaid mail, registered or certified mail, return receipt requested; (c)
transmitted by reputable overnight courier service, such as Federal Express;
or (d) transmitted by legible facsimile (with answer back confirmation) to
Buyer and Seller as listed below. Notices hereunder shall be directed as
follows:
If to Seller:
Xxxxx & Xxxxxx Manufacturing Company
000 Xxxxxxxxxx Xxxx
Xxxxx Xxxxxxxxx, Xxxxx Xxxxxx 00000
Attention: Xxxxx X. Xxxxx, III, Esq.--Secretary and General Counsel
Facsimile: (000) 000-0000
With a copy to (which copy shall not constitute notice):
Xxxxxxx & Xxxxxx, LLP
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxx Xxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Xx., Esq.
Facsimile: (000) 000-0000
If to Buyer:
Precision Park Partners, LLC
000 Xxxxxxxxxx Xxxxx Xxxx
Xxxxxxx, Xxxxx Xxxxxx 00000
Attn: Xxxx X. Xxxxxxx
Facsimile:
With a copy to (which copy shall not constitute notice):
Holland & Knight LLP
Xxx Xxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxx Xxxxxx 00000
Attention: Xxxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
D-9
If to Escrow Agent:
CB Xxxxxxx Xxxxx--N.E. Partners, L.P.
00 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxx Xxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
Notwithstanding the foregoing, any notices delivered by one party to the other
party under Article III shall be deemed given on the date and time of posting
if transmitted by United States mail, postage prepaid, registered or certified
mail, return receipt requested, to the respective addresses set forth above.
Buyer's counsel may deliver any notice under Article III on behalf of Buyer.
ARTICLE XI
RISK OF LOSS
Section 11.01. Insurance. Until Closing, Seller shall at its sole cost and
expense keep the Property insured with standard all-risk coverage as provided
in Exhibit I attached hereto.
Section 11.02. Minor Damage. In the event of "minor" loss or damage being
defined for the purpose of this Agreement as damage to the Property such that
the Property could be repaired or restored, in the opinion of an architect
mutually acceptable to Seller and Buyer (with any fees, costs or expenses
pertaining to such opinion to be borne equally by Buyer and Seller), to a
condition substantially identical to that of the Property immediately prior to
the event of damage at a cost equal to or less than Five Hundred Thousand and
00/100 Dollars ($500,000.00), neither Seller nor Buyer shall have the right to
terminate this Agreement due to such damage but Seller shall reduce the
Purchase Price by an amount equal to the cost to repair such damage (unless
such damage has been repaired prior to Closing) and the Closing shall take
place as provided herein, and in such event Seller shall retain all of
Seller's right, title and interest to any claims and proceeds Seller may have
with respect to any casualty insurance policies relating to the Property.
Section 11.03. Major Damage. In the event of a "major" loss or damage
(being defined as any loss or damage which is not "minor" as defined
hereinabove), Buyer shall have the option of terminating this Agreement by
written notice to Seller, in which event Seller and Buyer shall thereupon be
released from any and all liability hereunder and the Deposit, together with
all accrued interest thereon, shall be immediately returned to Buyer by the
Escrow Agent. If Buyer elects not to terminate this Agreement, Buyer and
Seller shall proceed with the Closing, provided Seller shall assign all of
Seller's right, title and interest to any claims and proceeds Seller may have
with respect to any casualty insurance policies relating to the Property, and
Buyer shall receive a credit against the Purchase Price in an amount equal to
the aggregate amount of any deductible(s) under the insurance policies
assigned to Buyer, plus any costs to repair any such major damage not covered
by insurance provided, however, that any insurance proceeds remaining after
Buyer shall have so repaired or restored the Property shall be retained by
Buyer.
Section 11.04. Condemnation. With the exception of the Route 4
Condemnation, if before the Closing any condemnation or eminent domain
proceedings are threatened or initiated against all or any portion of the
Property and, in the sole discretion of Buyer, such condemnation or eminent
domain proceedings would interfere with the current use of the Property, then
Buyer may terminate this Agreement upon written notice to Seller and Seller
and Buyer shall thereupon be released from any and all further liability
hereunder and the Initial Deposit, together with all accrued interest thereon,
shall be immediately returned to Buyer by the Escrow Agent. If Buyer does not
elect to terminate this Agreement within ten (10) business days after receipt
of written notice of the commencement of any such proceedings, or if, in the
opinion of Buyer, such condemnation or eminent domain proceedings would not
interfere with the current use of the Property, the Closing shall take place
as provided herein and Seller shall assign to Buyer at the Closing all rights
and interest of Seller in and to any condemnation awards payable or to become
payable on account of such condemnation or eminent domain proceedings. Buyer
shall have no right to terminate this Agreement with respect to the Route 4
Condemnation.
D-10
ARTICLE XII
MISCELLANEOUS
Section. 12.01. Raw Land. Pursuant to Section 23-19.5-1 of the Rhode Island
General Laws of 1956, as amended, the Buyer acknowledges that the Rhode Island
Department of Environmental Management has not certified the Property for
development as part of a subdivision or approved the Property as being
suitable for on-site disposal of sanitary sewage or other liquid waste.
Section 12.02. Successors and Assigns. This Agreement shall be binding
upon, and inure to the benefit of, the parties hereto and their respective
successors, heirs, administrators and assigns. Without being relieved of any
liability under this Agreement, Buyer reserves the right to take title to the
Property in a name or nominee or assignee other than Buyer.
Section 12.03. Amendments and Termination. Except as otherwise provided
herein, this Agreement may be amended or modified by, and only by, a written
instrument executed by Seller and Buyer.
Section 12.04. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Rhode Island.
Section 12.05. Merger of Prior Agreements. This Agreement supersedes all
prior written or oral agreements and understandings between the parties hereto
relating to the subject matter hereof.
Section 12.06. Time of Essence. Time is of the essence to both Seller and
Buyer in the performance of this Agreement, and they have agreed that strict
compliance by both of them is required as to any date and/or time set out
herein, including, without limitation, the dates and times set forth in
Article III of this Agreement. If the final day of any period of time set out
in any provision of this Agreement falls upon a Saturday, Sunday or a legal
holiday under the laws of the State of Rhode Island, then and in such event,
the time of such period shall be extended to the next day which is not a
Saturday, Sunday or legal holiday.
Section 12.07. Counterparts. This Agreement may be executed in identical
counterparts, each of which, when construed together, shall be deemed an
original hereof.
(The Next Page is the Signature Page)
D-11
IN WITNESS WHEREOF, this Agreement has been executed by Buyer and Seller as
of the date and year first above written.
Seller:
Xxxxx & Xxxxxx Manufacturing
Company,
a Delaware corporation
/s/ Xxxxxx X. Xxxxx
By: _________________________________
Name: Xxxxxx X. Xxxxx
Title: Chief Financial Officer
Buyer:
Precision Park Partners, LLC,
a Rhode Island limited liability
company
/s/ Xxxx X. Xxxxxxx
By: _________________________________
Name: Xxxx X. Xxxxxxx
Title: General Partner
D-12
AMENDMENT TO PURCHASE AND SALE AGREEMENT
----------------------------------------
This Agreement is made as of the 31st day of May 2001, by and between BNS
Co. (f/k/a Xxxxx & Xxxxxx Manufacturing Company). A Delaware corporation
("Seller") and PRECISION PARK PARTNERS, LLC, a Rhode Island limited liability
company ("Buyer").
WITNESSETH:
WHEREAS, pursuant to Purchase and Sale Agreement dated as of March 2, 2001
by and between Seller and Buyer (the "Agreement"), Seller has agreed to sell and
Buyer has agreed to buy certain real estate and improvements located at 200
Frenchtown Road, North Kingstown, Rhode Island and more particularly described
in the Agreement; and
WHEREAS, pursuant to the terms of the Agreement, Buyer was entitled to
conduct due diligence with respect to the property for a period of time defined
in the Agreement as the "Review Period"; and
WHEREAS, pursuant to letter agreement between the parties, the Review
Period was extended until May 31, 2001; and
WHEREAS, the parties wish to further extend the Review Period.
NOW, THEREFORE, in consideration of the premises and other valuable
consideration, the receipt of which is hereby acknowledged, the parties hereby
agree as follows:
1. Review Period. The Review Period is hereby extended until 5:00 p.m.,
-------------
local time on September 30, 2001.
2. Further Environmental Investigation. The parties acknowledge that
-----------------------------------
Seller will retain Environmental Science Services, Inc. to conduct subsurface
investigation of the environmental condition of the Property. The cost of such
investigation will be paid by Seller.
3. Ratification. Except as amended hereby, the Agreement remains in full
------------
force and effect and is hereby ratified and confirmed.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
day and year first above written.
[the remainder of this page is left intentionally blank]
BNS Co., Inc. (f/k/a Xxxxx & Xxxxxx Manufacturing Company)
By: /s/ Xxxxxx X. Xxxxx
---------------------------------------------
Xxxxxx X. Xxxxx
Vice President and Chief Financial Officer
PRECISION PARK PARTNERS, LLC
By: /s/ Xxxx X. Xxxxxxx
---------------------------------------------
Xxxx X. Xxxxxxx
Member
