EXHIBIT 10.1
CONTRACT OF SALE ("Agreement"), dated as of October 26,
1995, between 580 WINTER STREET CORP., a Massachusetts
corporation ("Seller"), having offices c/o Svenska Handelsbanken,
599 Lexington Avenue, New York, New York 10022 and BGS SYSTEMS,
INC., a Massachusetts corporation ("Purchaser") having offices
at 128 Technology Center, Waltham, Massachusetts 02254-9111.
RECITALS:
A. Seller is the owner of the land ("Land") described in
Exhibit A annexed hereto and the building and improvements
situated thereon or appurtenant thereto (collectively, the
"Improvements"; together with the Land, collectively, "Premises")
known as 580 Winter Street, Waltham, Massachusetts.
B. Seller desires to sell and Purchaser desires to
purchase the Premises on the terms and subject to the conditions
set forth in this Agreement.
AGREEMENT:
Seller and Purchaser agree as follows:
1. Certain Definitions. Whenever used in this Agreement,
the words and phrases set forth below shall have the following
meanings:
1.1 "Closing" means the closing pursuant to the terms and
conditions set forth in this Agreement, at which closing title to
the Premises shall be transferred to Purchaser.
1.2 "Contract Date" means the date on which this Agreement
is executed.
1.3 "Downpayment" shall mean the initial sum of $505,000
paid by Purchaser to Escrow Agent on account of this Agreement in
accordance with Article 3, together with any interest accrued on
such sum from time to time.
1.4 "Escrow Agent" shall mean Sullivan & Worcester, a
Registered Limited Liability Partnership, counsel to Seller.
1.5 "Improvements" has the meaning set forth in Recital A.
1.6 "Initial Notice" shall have the meaning set forth in
Section 10.1.
1.7 "Land" means the land located in Middlesex County,
Massachusetts, described by metes and bounds on Exhibit A hereto.
1.8 "Leases" means, collectively, (a) the lease, dated
March 20, 1990, by 580 Winter Street Limited Partnership ("580
LP"), as landlord, to Harte-Hanks Communications, Inc. ("HHC"),
as tenant, as amended by a First Amendment to Lease, dated
September 1, 1992, between 580 LP and HHC, as tenant, as amended
by a First Amendment to Lease, dated September 1, 1992, between
580 LP and HHC and a Second Amendment to Lease, dated October 3,
1994. betweem Seller and HHC, and (b) the lease, dated October
20, 1994, by Seller, as landlord, to MFS Intelenet of
Massachusetts, Inc., as tenant, copies of which leases have been
delivered to Purchaser for its examination prior to execution of
this Agreement.
1.9 "Permitted Encumbrances" means the matters set forth in
Section 2.2, any matters arising therefrom or relating thereto,
to the extent the same may be of force or effect or affect title
to the Premises as of the Closing Date, and such other matters as
are customarily contained in the standard exceptions from fee
title insurance coverage in the State of Massachusetts.
1.10 "Premises" means the Land and the Improvements.
1.11 "Qualified Bank" means a bank or trust company having a
banking office in the City of Boston, Massachusetts, or which is
a member of the New York Clearing House Association.
1.26 "Title Company" means any reputable title insurance
company duly licensed in the State of Massachusetts.
2. Sale of Premises; Permitted Encumbrances.
2.1 Seller shall sell and convey good, clear, record and
marketable title to the Premises to Purchaser and Purchaser shall
purchase the Premises from Seller, on the terms and subject to
the conditions set forth in this Agreement. The Premises shall
be conveyed to Purchaser free and clear of all liens and
encumbrances (other than the Permitted Encumbrances), and shall
include all of Seller's right, title and interest, if any, in and
to the following:
2.1.1 Any land lying in the bed of any street, road
or avenue opened or proposed, in front of or adjoining the
premises, to the center line thereof, and all right, title and
interest of Seller in and to any award made or to be made in lieu
thereof and in and to any unpaid award for damages to the
premises by reason of change of grade of any street and any right
of reversion.
2.1.2 All fixtures attached to the Land or
Improvements and present at the time of execution of this
Agreement and those fixtures which may be attached between the
date hereof and the Closing Date.
2.2 The Premises shall be sold and conveyed subject to the
following (collectively, the "Permitted Encumbrances"):
2.2.1 Zoning regulations and ordinances which are
not violated by existing structures or improvements or present
use therefor.
2.2.2 Consents by Seller or any former owner of the
Premises for the erection of any structure or structures on,
under or above any street or streets on which the Premises may
abut.
2.2.3 Encroachments of stoops, areas, cellar steps,
trim and cornices, lintels, window sills, awnings, canopies,
ledges, fences, coping, retaining walls and wires projecting from
the Premises over any street or highway or over any adjoining
property and encroachments of similar elements projecting from
adjoining property over the Premises.
2.2.4 Rights of telephone, electric, gas, water and
sewer and other utility companies to lay, maintain, install and
repair poles, wires, mains, lines, pipes, conduits, cable boxes,
cables and related equipment on, over, along, and under the
Premises or the streets abutting the Premises, and any such
utility service facilities running to any building or improvement
on the Premises.
2.2.5 Revocability or lack of right to maintain
vaults, coal chutes, excavations or subsurface equipment beyond
the line of the Premises.
2.2.6 Restrictive Agreement, dated October 14,
1954, recorded in the land records of the Middlesex County,
Massachusetts ("Land Records") in Deeds, Book 8364, pg. 325.
2.2.7 Restrictions in Deed by Gerald W. Blakely,
dated July 26, 1956, recorded in the Land Records in Deeds, Book
8777, pg. 524; Agreement Concerning Restrictions, dated December
20, 1960, recorded in the Land Records in Deeds, Book 9775, pg.
529; as affected by agreement, dated March 14, 1961, recorded in
the Land Records in Deeds, Book 9775, pg. 531; as further
affected by agreement, dated October 2, 1964, recorded in the
Land Records in Deeds, Book 10660, pg. 38; and any additional
covenants, agreements, licenses, easements and restrictions of
record, provided that such additional covenants, agreements,
licenses, easements, and restrictions do not prohibit the present
use of the Premises.
2.2.8 State of facts shown on a survey of the
Premises dated September 15, 1988 and last revised June 20, 1989
(the "Survey"), a copy of which has been reviewed by the
Purchaser, and any changes therefrom an accurate survey of the
Premises through the date of Closing would show, provided that no
such changes render title unmarketable.
2.2.9 The Leases.
2.2.10 Any notice of lease of a tenant no longer in
possession provided that the Title Company shall be willing to
insure against the lease being enforced against the Premises.
2.2.11 Real estate taxes and assessments and unpaid
installments of assessments, which are a lien but not yet due and
payable on the Closing Date.
2.2.12 Financing statements, chattel mortgages and
liens on personalty filed more than five (5) years prior to the
Closing Date and not renewed, or filed against property or
equipment no longer located on the Premises or owned by tenants.
2.2.13 Rights of utility companies to lay, maintain,
install and repair pipes, lines, poles, conduits, cable boxes and
related equipment on, over and under the Premises, provided that
none of such rights imposes any monetary obligation on the owner
of the Premises.
3. Purchase Price
3.1 The purchase price ("Purchase Price") is FIVE MILLION
FIFTY THOUSAND DOLLARS and is payable by Purchaser to Seller as follows:
3.1.1 FIVE HUNDRED FIVE THOUSAND DOLLARS
by delivery on or before execution of this Agreement of Purchaser's check,
subject to collection (together with any interest accrued on such deposit
from time to time, the"Downpayment"), payable to the order of Escrow Agent,
as payee to be held by Escrow Agent in accordance with the escrow provisions
set forth in Article 16; and
3.1.2 FOUR MILLION FIVE HUNDRED FORTY-FIVE THOUSAND
DOLLARS at Closing, subject to adjustment in accordance with Article 8.
3.2 At Closing, any interest earned on the Downpayment
shall be paid to the party entitled to the Downpayment.
3.3 All amounts payable at Closing shall be paid by (i)
unendorsed certified checks of Purchaser or any person making a
purchase money loan to Purchaser drawn on a Qualified Bank to the
order of Seller, or (ii) unendorsed official bank checks drawn by
any Qualified Bank to the order of Seller. At the option of
either Purchaser or Seller, all or any part of the amounts
payable at Closing shall be paid by a wire transfer of Federal
Funds for same day value to an account or accounts designated by
Seller.
3.4 If any instrument for the payment of the Downpayment
fails of collection, Seller shall have the right to sue on the
uncollected instrument. In addition, such failure of collection
shall be a default under this Agreement, provided Seller gives
Purchaser notice of such failure of collection and, within three
(3) days after such notice, Escrowee does not receive from
Purchaser an unendorsed certified check, bank check or
immediately available funds in the amount of the uncollected
funds. Failure to cure such default shall entitle Seller to the
remedy set forth in the case of default by Purchaser and to
retain all sums as may be collected and/or recovered. Time shall
be of the essence with respect to the time periods set forth in
this Section.
4. Physical Condition; Personal Property; Operating
Pending Closing.
4.1 Purchaser has made such examination of the operation,
income, expenses and physical condition of the Premises and the
legal, zoning, land use, environmental, toxic and hazardous
materials, water and sewer availability, development potential,
reclamation and other matters affecting or relating to this
transaction as Purchaser deemed necessary or as were required by
law, rule, regulation or otherwise or Purchaser has waived such
examination. In entering into this Agreement, Purchaser has not
been induced by and has not relied upon any representations,
warranties, guarantees or promises, whether express or implied,
made by Seller or any agent, employee or other representative of
Seller or by any broker or any other person representing or
purporting to represent Seller, which are not expressly set forth
in this Agreement, whether or not any such representations,
warranties, guarantees, promises, or statements were made in
writing or orally. Purchaser confirms that it has examined a
current environmental inspection report of the Premises prepared
by Environmental Science Services ("ESS"), and the correspondence
of Seller and ESS with the Massachusetts Department of
Environmental Protection ("DEP") concerning the conditions
described in such examination, and that Seller has afforded
Purchaser full opportunity to examine the premises and discuss
such matters with ESS. Purchaser is fully satisfied with the
testing, remediation, DEP disposition and environmental
conditions at the Premises.
4.2 The sale under this Agreement includes the following
fixtures and articles of personal property, to the extent
presently existing at the Premises and owned by Seller: heating,
ventilating and air conditioning equipment, plumbing and
electrical equipment and fixtures, carpets and other floor
coverings, curtains, drapes, blinds and related window
treatments, partitions, fire safety devices, and fire protection
and burglar alarm equipment.
4.3 Between the date of this Agreement and Closing, Seller
shall not enter into any new lease affecting the premises, or
modify or amend any existing lease, provided that Seller shall
have the right to comply with and enforce the terms of any
existing Lease, to waive default by the tenant thereunder or to
exercise any rights and remedies of the Landlord thereunder,
including the right to terminate the Lease for default of the
tenant thereunder. Seller shall have no obligation to extend the
term of any existing Lease.
5. Casualty and Eminent Domain
5.1 Seller is responsible for any damage to the Premises,
other than for ordinary use, wear, tear and natural
deterioration, until the Closing. If the Premises are damaged by
fire, vandalism, storm, flood or any other casualty between the
date of this Agreement and Closing, Seller shall promptly notify
Purchaser and the parties shall obtain an estimate of the cost of
repairing the damage from an unaffiliated contractor of their
mutual choice. If the estimated cost is less than $50,000 Seller
shall repair the damage at Seller's expense, the Closing shall
take place as provided herein and Seller shall be entitled to
receive all insurance proceeds as a result of the casualty. If
the estimated cost is more than $50,000, Seller shall forthwith
proceed to commence and complete the necessary repairs and the
Closing shall take place as provided herein; provided, however,
that if Seller has not commenced such repairs as of the scheduled
date of Closing or the repairs are reasonably estimated to take
more than four months after the Closing to complete, then, at
Purchaser's option, the Closing shall be delayed until the work
is completed, or if the Closing shall occur, the Purchase Price
shall be reduced by an amount equal to the deductible on Seller's
insurance policy, and there shall be assigned to Purchaser at the
Closing, all of Seller's right, title and interest in and to the
remaining insurance proceeds to the extent such proceeds relate
to restoration and repair of the Premises to be conveyed
hereunder, net of such sums as have reasonably been expended by
Seller on such repairs. In addition, at Closing, Seller shall
assign to Purchaser and Purchaser shall assume all construction
contracts for such repair and restoration, to the extent such
contracts are assignable and relate to the Premises to be
conveyed hereunder. If, for any reason, insurance proceeds are
not received on account of the damage or destruction, the parties
shall agree upon the amount necessary to repair the damage, and
such amount shall be credited against the Purchase Price. In
addition, if Seller's mortgagee does not release all or a portion
of such insurance proceeds, Seller shall credit against the
Purchase Price the amount of such proceeds withheld to the extent
that such proceeds relate to restoration and repair of the
Premises to be conveyed hereunder.
5.2 If prior to Closing there shall be a taking of all or
any portion of the Premises by a governmental or other public
authority by eminent domain, condemnation or otherwise
(collectively "Condemnation") which shall prevent continued use
of the premises (to include a loss of all access of the remaining
portion of the Premises to a public highway or street) for
substantially the same purposes and substantially in the same
manner to substantially the same extent as prior to Closing (a
"Total Condemnation"), Purchaser shall either:
5.2.1 Accept title to the premises pursuant to the
terms of this Agreement upon payment of the full Purchase Price
without any credit against or abatement of the Purchase Price by
reason of the Condemnation (except as hereinafter provided), but
with an assignment by Seller (without recourse or warranty) of
Seller's right, title and interest as owner of the Premises in
the award or awards resulting from the condemnation and in the
proceeds thereof, and Seller shall deliver to Purchaser at
Closing any such proceeds received by Seller; provided, however,
that if any such Condemnation award is payable to the holder of
any mortgage or other lien on the Premises, then the Purchase
Price shall be reduced by the amount of such Condemnation award
payable to such mortgagee; or
5.2.2. Terminate this Agreement, and upon such
election, Seller shall return any amounts theretofore paid on
account of the Purchase Price with any interest earned thereon,
and Seller and Purchaser shall be released and discharged from
any and all further liability and obligation under this
Agreement.
5.3 If, prior to Closing, there shall be a Condemnation
other than a Total Condemnation, Seller shall assign and pay over
to Purchaser at Closing the entire proceeds of the payment by the
condemning authority and any right to receive the same and title
shall pass to Purchaser at Closing; provided, however, that if
any such Condemnation award has been paid to the holder of any
mortgage or any other lien on the Premises, then the Purchase
Price shall be reduced by the amount of such Condemnation award
payable to such mortgagee.
5.4 The provisions of this Article shall survive the
Closing and are in lieu of the provisions of any otherwise
applicable statute.
6. Representations and Covenants of Parties.
6.1 Seller makes the following representations:
6.1.1 Seller is a corporation duly organized,
validly existing and in good standing under the laws of the state
of Massachusetts.
6.1.2 Seller has full power, authority and
legal right to execute and deliver this Agreement and the
documents contemplated hereunder to be delivered by it and to
perform and observe the terms and provisions of this Agreement
and such other documents on its part to be performed or observed.
6.1.3 The execution and delivery by Seller of
this Agreement and all the other documents contemplated to be
delivered by it hereunder, and the performance and observance by
it of the terms of this Agreement and the other documents and
instruments on its part to be performed or observed, have been
duly authorized by all necessary action (corporate or otherwise),
including without limitation, all necessary administrative and
other governmental action, and do not contravene (i) any law,
rule, regulation, order, writ, judgment, award, injunction or
similar legal restriction applicable to Seller, (ii) any
contractual restriction which binds or affects or purports to
bind or affect Seller, or (iii) its certificate of incorporation
or by-laws.
6.1.4 There are no leases of all or any
portion of the Premises other than the Leases. The Leases have
not been amended except as set forth in the definition of
"Leases."
6.1.5 No brokerage, leasing or other
commissions are due with respect to any Lease. There are no
alterations, improvements or other work required to be performed
by Seller as landlord under any lease which have not been
completed and paid for in full. Seller is not in material
default of any obligation of the landlord under any lease.
6.1.6 This Agreement has been duly executed
and delivered by Seller and is, and the other documents
contemplated hereunder when executed and delivered by it
hereunder will be, the legal, valid and binding obligations of
Seller enforceable against Seller in accordance with their terms.
6.1.7 Exhibit B attached hereto constitutes a
complete list of any service contracts (collectively, the
"Service Contracts") now affecting the Premises.
6.1.8 All fixtures, equipment and articles of
personal property included in this sale will, at Closing, be
owned by Seller free from all liens and encumbrances other than
the Permitted Encumbrances.
6.2 Purchaser makes the following representations:
6.2.1 Purchaser is a corporation duly
organized, validly existing and in good standing under the laws
of the State of Massachusetts.
6.2.2 Purchaser has full power, authority and
legal right to execute and deliver this Agreement and the
documents contemplated hereunder to be delivered by it and to
perform and observe the terms and provisions of this Agreement
and of such other documents on its part to be performed or
observed.
6.2.3 The execution and delivery by Purchaser
of this Agreement and all the other documents contemplated to be
delivered by it hereunder and the performance and observance by
it of the terms of this Agreement and the other documents and
instruments on its part to be performed or observed, have been
duly authorized by all necessary action (corporate or otherwise),
including, without limitation, all necessary administrative and
other governmental action and do not contravene (i) any law,
rule, regulation, order, writ, judgment, award, injunction or
similar legal restriction applicable to Purchaser, (ii) any
contractual restriction which binds or affects or purports to
bind or affect Purchaser or (iii) its certificate of
incorporation or by-laws.
6.2.4 This Agreement has been duly executed
and delivered by Purchaser and is, and the other documents
contemplated hereunder when executed and delivered by it
hereunder will be, the legal, valid and binding obligations of
Purchaser enforceable against Purchaser in accordance with their
terms.
6.2.5 Purchaser has inspected the Premises and
is fully familiar with its physical condition and state of
repair, and except as may otherwise be expressly set forth in
this Agreement, shall accept the Premises "as is" and in its
present condition, subject to Seller's express obligations under
this Agreement, and subject to reasonable use, wear, tear and
natural deterioration between now and Closing, without any
reduction in the Purchase Price for any change in such condition
by reason thereof subsequent to the date of this Agreement.
6.2.6 Purchaser has made such examination of
the operation, income and expenses of the Premises and all other
matters affecting or relating to this transaction as Purchaser
deemed necessary. In entering into this Agreement, Purchaser has
not been induced by and has not relied upon any representations,
warranties, guarantees or promises, whether express or implied,
made by Seller or any agent, employee or other representative of
Seller or by any broker or any other person representing or
purporting to represent Seller, which are not expressly set forth
in this Agreement, whether or not any such representations,
warranties, guarantees, promises, or statements were made in
writing or orally.
6.3 The representations contained in Sections 6.1.4
and 6.1.5 shall survive the Closing for a period of six (6)
months.
6.4 Seller covenants to terminate the Service
Contracts on or prior to the Closing Date.
6.5 The representations, warranties, covenants,
indemnities and agreements of Seller and Purchaser contained in
this Agreement or contained in any certificate or document
delivered in connection with the Closing by or on behalf of the
Purchaser or the Seller, shall not survive the Closing under this
Agreement unless specifically stated to survive in this Agreement
or unless, pursuant to this Agreement or such certificate or
document in which it is contained, such covenant or agreement is
to be performed after the Closing Date. Purchaser's sole remedy
for any breach of any representation or warranty of Seller known
to Purchaser prior to Closing shall be to terminate this
Agreement and to be reimbursed for the actual cost for Buyer's
title examination and survey inspection and the Downpayment, if
made, and all other remedies are waived by Purchaser; and such
known breach shall not survive the Closing.
7. Litigation; Plans; Maintenance.
7.1 Seller represents that there is no pending litigation
related to the Premises by or against Seller. To Seller's best
knowledge, no litigation is threatened against Seller with
respect to the Premises nor is there any actual or threatened
condemnation of the Premises. Seller further represents that
there are no presently pending applications or appeals for
reduction of assessments or real estate taxes.
7.2 At Closing, Seller will deliver to Purchaser all
existing plans and specifications for the Improvements and any
permits and licenses assigned to Purchaser hereunder, to the
extent such items are in the possession of Seller.
7.3 If mechanic's or materialman's liens are filed against
the Premises prior to Closing for materials, labor or other
services alleged to have been delivered to or performed at the
request of Seller, Seller shall discharge or satisfy such liens
at or prior to Closing, or deliver such assurances to Purchaser's
Title Company as may be required to permit the issuance of title
insurance to Purchaser either free of any such liens or with
insurance against enforcement of same out of the Premises.
7.4 The sole obligation of Seller with respect to the
physical condition of the Premises until Closing shall be to
maintain the Premises in its present condition, and in compliance
with all applicable laws, rules, regulations and ordinances
subject to reasonable use, wear, tear and natural deterioration.
8. Adjustments
8.1 The following shall be apportioned between Seller and
Purchaser as of the midnight prior to the Closing Date and net
thereof in favor of Seller or Purchaser ("Net Adjustment") shall
be paid by Purchaser or credited against the Purchase Price, as
the case may be:
8.1.1 Permit and license fees of assignable permits
and licenses, if any, and inspection charges.
8.1.2 Utility charges, based on the most recent
available meter readings, if final readings cannot be obtained as
of the Closing Date, any unfixed utility charges based thereon
for the intervening period shall be apportioned on the basis of
such reading.
8.1.3 value of fuel oil stored on the Premises, at
the price then charged by Seller's supplier, including any taxes;
8.1.4 prepaid rents;
8.1.5 permitted administrative charges, if any, on
tenants' security deposits;
8.1.6 Real estate taxes on the basis of the fiscal
year for which assessed. If the tax for the fiscal year in which
the Closing occurs has not been fixed as of the Closing Date,
then the apportionment thereof shall be based on the tax rate for
the next preceding year applied to the latest assessed valuation,
and the same shall be readjusted after Closing based upon the
actual taxes.
8.1.7 Seller shall be entitled to any and all real
estate tax savings or refunds for the tax fiscal years ending
prior to the Closing Date. If any proceeding for reduction of
the assessed valuation of the Premises has been or is hereafter
filed affecting a tax period containing any period prior to the
Closing Date, the net tax savings for such period shall be
apportioned as of the Closing Date. If such proceeding was
commenced by Seller, it shall be continued by Seller's attorney
whose charges, fees and disbursements shall be paid pro rata by
the parties. If, after the Closing Date, Purchaser receives any
such tax savings as a credit against taxes payable in a
subsequent tax period in lieu of a refund, Purchaser shall
promptly pay to Seller the pro-rata share of the net tax savings
to which Seller is entitled. If any such tax savings received by
Purchaser result from any proceedings commenced by Purchaser,
Purchaser's attorneys charges, fees and disbursements shall be
paid pro rata by the parties.
8.1.8 Water and sewer charges, based on the most
recent available meter readings, any unfixed meter charge and any
unfixed sewer rent based thereon for the intervening period,
shall be apportioned on the basis of such reading.
8.1.9 wages, of all persons employed at the
Premises whose employment was not terminated at or prior to the
Closing.
8.1.10 municipal license charges, if any.
8.1.11 management fees of the managing agent of the
Premises, unless such managing agent's employment is terminated
at or prior to the Closing.
8.1.12 Assessments, in accordance with the
provisions of Section 8.5.
8.1.13 Payments required under any service contracts
not cancelled at or before Closing.
8.2 Any errors or omissions made in computing
apportionments at Closing shall be corrected. The provisions of
this Article 8 shall survive Closing.
8.3 If any tenant is in arrears in the payment of rent on
the Closing Date, rents received from such tenant after the
Closing shall be applied in the following order of priority; (a)
first to the month preceding the month in which the Closing
occurred; (b) then to the month in which the Closing occurred;
(c) then to any month or months following the month in which the
Closing occurred; and (d) then to the period prior to the month
preceding the month in which the Closing occurred. If rents or
any portion thereof received by Seller or Purchaser after the
Closing are payable to the other party by reason of this
allocation, the appropriate sum, less a proportionate share of
any reasonable attorneys' fees, costs and expenses of collection
thereof, shall be promptly paid to the other party, which
obligation shall survive the Closing.
8.4 At Closing, certified or official bank checks payable
to the order of the appropriate State, City or County officer in
the amount of any applicable Massachusetts Realty Transfer Tax
and any other applicable excise, transfer and/or recording tax
payable by reason of the delivery or recording of the deed shall
be delivered by the party required by law or by this Agreement to
pay such excise, transfer and/or recording tax, together with any
required tax returns or affidavits duly executed and sworn to,
and such party shall cause any such checks and returns to be
delivered to the appropriate officer promptly after Closing. The
obligation to pay any additional tax or deficiency and any
interest or penalties thereon shall survive Closing. At
Seller's option, Purchaser shall pay on Seller's behalf any such
tax imposed in the first instance on Seller and receive a credit
against the Purchase Price.
8.4.1 If at the Closing Date, there may be any
other liens or encumbrances which Seller is obligated to pay and
discharge, including any outstanding mortgages, Seller may use
any portion of the balance of the Purchase Price to satisfy the
same, provided Seller shall simultaneously either deliver to
Purchaser title instruments in recordable form and sufficient to
satisfy such liens and encumbrances of record together with the
cost of recording or filing said instruments, or deposit with the
Title Company sufficient monies, acceptable to and required by it
to insure obtaining and the recording of such satisfactions and
the issuance of title insurance to Purchaser either free of any
such liens and encumbrances, or with insurance against
enforcement of same out of the Premises. If requested at least
one (1) day prior to Closing, Purchaser agrees to provide at
Closing separate certified or cashier's checks or wire transfers
of Federal Funds for same day value as requested, aggregating not
more than the amount of the balance of the Purchase Price to
facilitate the satisfaction of any such liens or encumbrances.
The existence of any such taxes or other liens and encumbrances
shall not be deemed objections to title if Seller shall comply
with the foregoing requirements.
8.5 If, at Closing the Premises or any part thereof are
subject to any assessment or assessments for municipal
improvements (each, an "Assessment") which are or may become
payable in annual installments, the first installment of which is
than a charge or lien or has been paid, any installment payable
for the year in which the Closing takes place shall be adjusted
at the Closing, and Purchaser shall assume the obligation to pay
the unpaid installments of such Assessment which are to become
due and payable after Closing.
9. Closing.
9.1 The Closing shall take place at 10:00 a.m. on December
28, 1995 (the "Closing Date"), or on such other date set by
agreement between the parties. The Closing shall be held at the
offices of purchaser's attorneys, Peabody & Brown, 101 Federal
Street, Boston, Massachusetts. Any agreement setting or
adjourning the date set for the Closing may be made in a writing
signed by the parties' attorneys.
9.2 The deed shall be a good and sufficient quitclaim deed
in proper form for recording and shall be duly executed and
acknowledged so as to convey to Purchaser good, clear, record and
marketable title to the Premises, free of all encumbrances except
the Permitted Encumbrances. Seller will deliver to Purchaser the
following additional documents at Closing:
9.2.1 Any required transfer tax returns,
certificates and affidavits required by governmental authorities
in connection with this transaction, executed by Seller.
9.2.2 A resolution of Seller's Board of Directors
authorizing the sale and delivery of the deed and a certificate
by its Secretary or Assistant Secretary certifying such
resolution.
9.2.3 An affidavit of title verified by one of
Seller's officers certifying to any facts reasonably required by
the Title Company in order to certify title as required
hereunder.
9.2.4 A non-foreign person affidavit in accordance
with the Foreign Investment in Real Property Tax Act of 1980 as
amended by the Tax Reform Act of 1984.
9.2.5 Certificates or telegrams from the Secretary
of State of Massachusetts stating that Seller is in good
standing, dated after the date of this Agreement.
9.2.6 An assignment of the Leases and any security
deposits held thereunder, effective the Closing Date, together
with delivery of any original guaranty of a Lease then held by
Seller.
9.2.7 An assignment of any and all service
agreements and equipment guarantees and warranties, if any,
relating solely to the property sold to Purchaser hereunder,
which assignment shall state that it is without representation,
warranty or recourse.
9.2.8 An estoppel certificate or pay-off letter
from the holder of any mortgage against the Premises, which shall
state the amount required to either pay such mortgage in full or
to obtain a release of the lien thereof on the premises, or an
executed satisfaction of mortgage in statutory form for recording
from the holder of any such mortgage.
9.2.9 A bill of sale for any personal property
located in the Premises, which bill of sale shall state that the
personal property is sold "as is", and that such sale is without
representation, warranty or recourse.
9.2.10 Estoppel letters, in the form annexed as
Exhibit C, from each tenant under a Lease, dated no earlier than
forty-five (45) days prior to Closing, provided that if any
estoppel letter shall not be obtained from any such tenant after
diligent effort by Seller, Seller may deliver in its place a
certificate by Seller setting forth the same matters and stating
that Seller has no reason to believe that an estoppel letter, if
given, would have disclosed any material defaults.
9.2.11 A letter by Seller to the tenants under the
Leases informing them of the conveyance and the address
designated by Purchaser for the payment of future rents and
delivery of future communications under the Lease.
9.2.12 Copies of al current real estate tax and
utility bills, or if unpaid, then the original bills.
9.3 At Closing, Purchaser will deliver the following to
Seller:
9.3.1 Checks or the appropriate wire transfers in
payment of the Purchase Price, as provided in this Agreement.
9.3.2 Any required transfer tax returns,
certificates and affidavits required by governmental authorities
in connection with this transaction executed by Purchaser.
9.3.3 An acceptance of assignment and assumption of
the Leases, and receipt for security deposits thereunder,
effective from and after the Closing Date.
9.3.4 The agreement of Broker to release Seller
from any obligation for any brokerage fees or other compensation
due in connection with this transaction.
9.4 The parties shall also execute such documents and make
such payments as are required pursuant to this Agreement at the
Closing Date, and shall perform or cause to be performed such
other acts as shall be required to effectuate the Closing, all
subject to and in accordance with the terms and provisions of
this Agreement.
10. Objections to Title; Default.
10.1 Upon receipt of an executed counterpart of this
Agreement, Purchaser will promptly order a title commitment from
a Title Company and promptly after such commitment is received
shall deliver a copy to Seller's attorney. If there shall be
any objection to title, Purchaser shall, not later than thirty
(30) days prior to Closing, provide Seller with a Notice (as
hereinafter defined) identifying such objection and specifying
the nature thereof ("Initial Notice"). Thereafter, Purchaser may
give Seller written Notice of objections to title arising after
the date of the Initial Notice, but shall have waived objection
to matters disclosed by the Title Company prior to such date. If
no Notice of objections is timely given by Purchaser, Purchaser
shall accept title subject to any objections which may then
affect the Premises. Seller shall be entitled to an adjournment
or adjournments of Closing for up to ninety (90) days to remove
any objection to title.
10.2 If Seller shall be unable to convey title to the
Premises in accordance with the provisions of this Agreement, or
if Purchaser has other valid grounds for refusing to close,
whether by reason of liens, encumbrances or other objections to
title or otherwise, other than those subject to which Purchaser
is obligated to accept title hereunder, or if any of Seller's
representations or warranties shall not be true, or if Seller is
otherwise unable to comply with this Agreement for any reason
other than Seller's willful default (such matters, collectively
"Title Defects"), the sole remedy of Purchaser shall be to
terminate this Agreement and the sole liability of Seller shall
be to return or cause Escrow Agent to return the Downpayment to
Purchaser. Upon such refund and reimbursement, this Agreement
shall be null and void and the parties shall be relieved of all
further obligations and liability other than any liability
arising under Article 11. Seller shall not be required to bring
any action or proceeding or incur any expense to cure any Title
Defect or to enable Seller otherwise to comply with the
provisions of this Agreement, except that Seller shall discharge
any mortgage, monetary judgment or other lien in a liquidated
amount encumbering the premises.
10.3 Seller shall give and Purchaser shall accept such title
as the Title Company or another reputable title insurance company
licensed in the State of Massachusetts will be willing to insure
in accordance with the standard form of fee title insurance
policy approved by the regulatory authorities of the State of
Massachusetts, subject only to the Permitted Encumbrances.
10.4 Any unpaid water charges, sewer rents or other similar
charges, together with any interests and penalties thereon, and
any other liens or encumbrances that relate to the Premises and
which Seller is obligated to pay and discharge or which are
against corporations, estates or other persons in the chain of
title, together with the cost of recording or filing any
instruments necessary to discharge such liens or encumbrances of
record, may be paid out of the funds to be delivered by Purchaser
at Closing in payment of the Purchase Price. Upon request of
Seller, Purchaser shall provide at Closing separate checks for
the foregoing payable to the order of such persons as Seller
shall designate.
10.5 Purchaser shall take title subject to all notes or
notices of violations of law or municipal ordinances, orders or
requirements noted or issued by any governmental department
having authority as to lands, housing, buildings, fire, streets,
health, environmental and labor conditions affecting the
Premises. Seller shall furnish Purchaser with any authorizations
necessary to make the searches that could easily disclose these
matters.
10.6 Any transfer, franchise, license or other similar taxes
or liens on the Premises shall not be deemed an objection to
title if the Title Company issues or binds itself to issue its
fee owner's policy insuring Purchaser against collection of such
taxes or lien out of the Premises.
10.7 Notwithstanding any other provision of this Agreement,
Purchaser shall have the option to waive Purchaser's objections
to all Title Defects and accept the Premises in its then present
condition with such title and performance as Seller can deliver
and to pay therefor the Purchase Price, without reduction or
abatement, provided that, if the Premises have been damaged by
fire or other casualty, Seller shall deliver and assign to
Purchaser any and all recovery and right of recovery under
existing policies of insurance covering such casualty.
10.8 Seller and Purchaser agree that if the Closing shall
not occur as and when provided hereby due to the failure by
Purchaser to perform, satisfy or comply with any of the
obligations, provisions, terms, agreements or conditions of this
Agreement to be performed, satisfied or complied with by
Purchaser, Seller as its sole and exclusive remedy shall be
entitled to receive and retain the Downpayment and all other
amounts, if any, paid by Purchaser on account of the Purchase
Price or otherwise, including the interest accrued thereon, as
and for liquidated damages, which liquidated damages the parties
presently contemplate as being fair and reasonable under the
circumstances described in this Section. As a special inducement
for the execution hereof by Seller, Purchaser covenants that it
shall not contest the amount of such liquidated damages or seek
the return of any such payments to or for the account of
Purchaser, or seek to prevent or delay payment to Seller of any
such payments. Upon receipt of such liquidated damages by
Seller, neither party shall have any further rights hereunder or
otherwise against the other, except as set forth in Article 11.
11. Broker. Seller and Purchaser each represent and
warrant that neither has dealt with any broker in connection with
the transaction contemplated by this Agreement other than
Whittier Partners ("Broker"). Purchaser agrees to pay Broker any
commission or other compensation due Broker in connection with
this transaction pursuant to Purchaser's separate agreement with
Broker. Each party shall indemnify and hold harmless the other
from and against any costs, claims or expenses, including,
without limitation, attorneys' fees arising out of the breach by
such party of its representation, warranty and agreement
contained in this Article. The provisions of this Article shall
survive Closing and any termination of this Agreement.
12. Integrated Contract. It is understood and agreed that
all prior understandings and agreements between Seller and
Purchaser are merged in this Agreement, which alone fully and
completely expresses their agreement, and that the same is
entered into after full investigation, neither party relying upon
any statement, representation or covenant not embodied in this
Agreement.
13. No Memorandum of Contract of Sale. The parties shall
not record this Agreement or any memorandum of this Agreement in
the Land Records.
14. Notices. Any notice, election, report, demand,
direction or other communication (each, a "notice") authorized or
required to be given or furnished shall be deemed given or
furnished (i) when addressed to the party intended to receive the
same, at the address of such party as set forth below, and
delivered at such address or (ii) three (3) days after the same
is deposited in the United States mail as first class certified
mail, return receipt requested, postage paid or (iii) when
delivered by overnight nationwide commercial courier service, one
(1) business day after the date of delivery of such notice to the
courier service or (iv) when transmitted by telecopy to the
telecopier number set forth below, to the party intended to
receive same, provided that such transmission is confirmed by
duplicate notice in such other manner as permitted above, upon
receipt at such telecopier number:
(a) if to Seller:
580 Winter Street Corp.
c/o Svenska Handelsbanken
599 Lexington Avenue
New York, NY 10022
Attention: Harry Roberts
Telecopy No.: (212) 326-5100
Telephone No.: (212) 326-2725
with a copy to:
Sullivan & Worcester
767 Third Avenue
New York, NY 10017
Attention: Charles Dubroff and Steve M. Bederman
Telecopy No.: (212) 758-2151
Telephone No.: (212) 486-8200
(b) if to Purchaser:
BGS Systems, Inc.
128 Technology Center
Waltham, Massachusetts 02254-9111
Attention: C. Russel Hansen, Jr.
Telecopy No.: (617) 890-0000
Telephone No.: (617) 891-0000
with a copy to:
Peabody & Brown
101 Federal Street
Boston, Massachusetts 02110
Attention: William A. Kuncik
Telecopy No.: (617) 345-1000
Telephone No.: (617) 345-1300
Any party may change the address to which any such notice,
report, demand or other instrument is to be delivered or mailed,
by furnishing written notice of such change to the other parties,
but no such notice of change shall be effective unless and until
received by such other parties. Rejection or refusal to accept
or inability to deliver because of changed address, or because no
notice of changed address was given, shall be deemed to be
receipt of any such notice.
15. Miscellaneous.
15.1 This Agreement may be modified only by an agreement in
writing signed by Seller and Purchaser, and no provision or
condition herein may be waived other than by a writing signed by
the party waiving such provision or condition.
15.2 This Agreement shall be binding upon and inure to the
benefit of the heirs, executors, administrators, successors and
assigns of Seller and Purchaser.
15.3 Article and Section headings in this Agreement are for
the sole purpose of convenient reference and in no way define,
limit or prescribe the scope or intent of this Agreement or any
part thereof, and such headings shall not be considered in
interpreting or construing this Agreement.
15.4 Neither party may assign this Agreement or its rights
hereunder without the other party's consent in writing.
Purchaser shall be entitled to assign this Agreement to a wholly
owned special purpose subsidiary of Purchaser on the Closing Date
and direct that the deed and other conveyance documents be
conveyed to such subsidiary, provided, that Purchaser shall give
no less than ten (10) business days' prior written notice to
Seller specifying the name, address and situs of incorporation of
such subsidiary receiving the deed and shall provide to Seller at
Closing an original counterpart of the assignment between
Purchaser and the subsidiary.
15.5 This Agreement, together with the exhibits hereto,
constitutes the entire agreement of the parties regarding the
subject matter of this Agreement and all prior or contemporaneous
agreements, understandings, representations and statements, oral
or written, are hereby merged herein.
15.6 This Agreement (but not any informational Exhibits
hereto) shall not be construed more strictly against one party
than against the other, merely by virtue of the fact that it may
have been prepared by counsel for one of the parties, it being
recognized both Purchaser and Seller have contributed
substantially and materially to the preparation of this
Agreement.
15.7 This Agreement and the documents contemplated hereunder
shall be governed by, and construed in accordance with the laws
of the State of Massachusetts.
15.8 This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall
be deemed an original, but such counterparts together shall
constitute but one and the same instrument.
16. Escrow Provisions.
16.1 Escrow Agent shall hold the Downpayment for Seller's
account in escrow in its master escrow account at The Bank of New
York, 360 Park Avenue, New York, New York, until Closing or
sooner termination of this Agreement and shall pay over or apply
the Downpayment in accordance with the terms of this Article.
Escrow Agent shall hold the Downpayment in an interest-bearing
account for the benefit of the parties. Any interest received
shall be paid (a) to Purchaser, if the Closing shall take place
pursuant to this Agreement, or (b) in any other instance to the
party entitled to the Downpayment. The party receiving the
interest shall pay any income taxes thereon. The Social Security
or Federal Tax Identification numbers of the parties shall be
furnished to Escrow Agent upon request. At Closing, the
Downpayment shall be paid by Escrow Agent to Seller. If for any
reason Closing does not occur and either party gives Notice to
Escrow Agent demanding payment of the Downpayment, Escrow Agent
shall give prompt Notice to the other party of such demand. If
Escrow Agent does not receive Notice of objection from such other
party to the proposed payment within 5 days after the giving of
such Notice, Escrow Agent is hereby authorized and directed to
make such payment. If Escrow Agent does receive such Notice of
objection within such 5 day period or if for any other reason,
Escrow Agent in good faith shall elect not to make such payment,
Escrow Agent shall continue to hold such amount until otherwise
directed by Notice from the parties to this Agreement or a final,
nonappealable judgment, order or decree of a court. However,
Escrow Agent shall have the right at any time to deposit the
Downpayment and the interest thereon with the clerk of a court in
the County in which the Premises are located and shall give
Notice of such deposit to Seller and Purchaser. Upon such
deposit or other disbursement in accordance with the terms of
this Article, Escrow Agent shall be relieved and discharged of
all further obligations and responsibilities hereunder.
16.2 The parties acknowledge that, although Escrow Agent is
holding the Downpayment for Seller's account, for all other
purposes Escrow Agent is acting solely as a stakeholder at their
request and for their convenience and that Escrow Agent shall not
be liable to either party for any act or omission on its part
unless taken or suffered in bad faith or in willful disregard of
this Agreement. Seller and Purchaser jointly and severally agree
to defend, indemnify and hold Escrow Agent harmless from and
against all costs, claims and expenses (including reasonable
attorneys' fees) incurred in connection with the performance of
Escrow Agent's duties hereunder, except with respect to actions
or omissions taken or suffered by Escrow Agent in bad faith or in
willful disregard of this Agreement.
16.3 Escrow Agent may act or refrain from acting in respect
of any matter referred to herein in full reliance upon and with
the advice of counsel which may be selected by it (including any
member of its firm) and shall be fully protected in so acting or
refraining from action upon the advice of such counsel.
16.4 Escrow Agent acknowledges receipt of the Downpayment by
check subject to collection and Escrow Agent's agreement to the
provisions of this Article by signing in the place indicated on
this signature page of this Agreement.
16.5 Escrow Agent or any member of its firm shall be
permitted to act as counsel for Seller in any dispute as to the
disbursement of the Downpayment or any other dispute between the
parties whether or not Escrow Agent is in possession of the
Downpayment and continues to act as Escrow Agent.
IN WITNESS WHEREOF, this Agreement has been duly executed by
Seller and Purchaser as of the day and year first above written.
580 WINTER STREET CORP., Seller
By: /s/ CHARLES DUBROFF
-----------------------------------
Name: Charles Dubroff
Office: Director
Tax ID No. 04-3197748
BGS SYSTEMS, INC., Purchaser
By: /s/ JAMES S. MCGUIRE
-----------------------------------
- ------- James S. McGuire
Chief Operating Officer
Tax ID No. 04-2559993
Receipt on November 1, 1995, of the $505,000.00 Downpayment (if
by check, subject to collection) is acknowledged and the
undersigned agrees to act in accordance with the provisions of
Article 16:
SULLIVAN & WORCESTER, A REGISTERED
LIMITED LIABILITY PARTNERSHIP
By: /s/ CHARLES DUBROFF
- ----------------------------------------------------------
a member
EXHIBIT A
The Land
The land referred to in this Agreement is the land at Winter
Street, West Street and First Avenue, Waltham, Middlesex County,
Massachusetts, more particularly bounded and described as
follows:
Westerly by West Street by four lines measuring
respectively 40.25 feet, 59.78 feet, 131.95 feet and 82.81 feet;
Northerly by land formerly of Griggs shown as Lot 10A on a
Plan dated July 23, 1960 by Raymond C. Pressey, Inc.,
Registered Land Surveyors, recorded with said Deeds, Book 9735 End, 207.12
feet;
Westerly again, by the same land, 403.81 feet;
Northerly again, by the new line of Winter Street, 245.5
feet;
Northeasterly by a curved line forming the Southwesterly
Junction of Winter Street and First Avenue, 80.95
feet;
Easterly by the Westerly line of First Avenue, 385.74 feet;
Southerly by land now or late of Crucible Center Company,
295 feet
Easterly again, by the same land, 255.27 feet; and
Southerly again, by Lot 6 as shown on a Plan dated February
1958 duly recorded in Book 9111, Page 385, 200 feet.
EXHIBIT B
Service Contracts
EXHIBIT C
Form of Tenant Estoppel
The undersigned, having the power and authority to do
so, certifies as follows to all persons to whom this
statement may be presented:
1. The undersigned, (the
"Tenant") is the tenant under a lease, dated 199 ,
between , as landlord, and Tenant,
as tenant (including any amendments listed below, the
"Lease"), for premises consisting of [all] [a portion] of
the floor (the "Premises") in the building located at
580 Winter Street, Waltham, Massachusetts.
2. As of the date of this certificate, the Lease is
in full force and effect and, except as specifically set
forth below, has not been amended, modified, or extended in
any manner whatsoever: [List amendments, if any, and their
dates below]
3. Attached hereto as Exhibit A is a true and
complete copy of the Lease.
4. The current fixed minimum rental under the lease
is $ per month and has been paid to and including the
month of , 1995. Tenant has not prepaid any
sums payable to the landlord under the Lease beyond the
current month.
5. Tenant is not in default of any of its obligations
under the Lease and, to the best knowledge of Tenant,
landlord is not in default under any of its obligations
under the Lease.
6. Tenant (i) has no present right of offset or
defense against any rent, additional rent, or other sums
which are due or to become due from Tenant under the Lease,
(ii) has no actions, claims, proceedings or suits pending or
threatened against the landlord or relating to the Premises
(iii) is not entitled to any rent concessions or abatements.
7. There is currently on deposit under the Lease a
security deposit of $ .
Very truly yours,
[Tenant]:
By: