AGREEMENT OF PURCHASE AND SALE
[Kronos Building, Boston, Massachusetts]
This Agreement of Purchase and Sale ("Agreement") is made and entered
into by and between Purchaser and Seller.
RECITALS
A. Defined terms are indicated by initial capital letters. Defined
terms shall have the meaning set forth herein, whether or not such
terms are used before or after the definitions are set forth.
B. Purchaser desires to purchase the Property and Seller desires to sell
the Property, all upon the terms and conditions set forth in this
Agreement.
NOW, THEREFORE, in consideration of the mutual terms, provisions,
covenants and agreements set forth herein, as well as the sums to be paid by
Purchaser to Seller, and for other good and valuable consideration, the receipt
and sufficiency of which are acknowledged, Purchaser and Seller agree as
follows:
ARTICLE 1 - Basic Information
1.1 Certain Basic Terms. The following defined terms shall have the
meanings set forth below:
1.1.1 Seller: W9/TIB-L Real Estate Limited Partnership, a Delaware
limited partnership
Agreement of Purchase and Sale-(Kronos Building, Boston, Massachusetts) - Page 1
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1.1.2 Purchaser: Kronos Incorporated, a Massachusetts corporation
1.1.3 Purchase Price: $2,000,000.00, plus the total of the actual costs
listed on Exhibit H attached hereto, and any additional costs
reasonably incurred by Seller in connection with the
development of the Property subsequent to the date through
which the actual costs listed on Exhibit H are current,
which additional costs must be substantially consistent with
the types of projected costs listed on Exhibit H attached hereto
and shall be evidenced by a schedule of said additional costs
delivered from Seller to Purchaser as of Closing (Seller to be
reimbursed for said costs by adding same to the $2,000,000
base price).
1.1.4 Earnest Money: $25,000.00 (the "Earnest Money"), including interest
thereon, to be deposited in accordance with Section 3.1 below.
1.1.5 Title Company: Chicago Title Insurance Company
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75 Federal Street
4th Floor
Boston, Massachusetts 02110
Attention: Beth Harrington
Telephone: (617) - 210-0750
Facsimile: (617) - 210-0777
1.1.6 Escrow Agent: Chicago Title Insurance Company
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75 Federal Street
4th Floor
Boston, Massachusetts 02110
Attention: Beth Harrington
Telephone: (617) - 210-0750
Facsimile: (617) - 210-0777
1.1.7 Broker: None
1.1.8 Effective Date: The date on
which this Agreement is
executed by the latter to
sign of Purchaser or
Seller, as indicated on the
signature page of this
Agreement.
1.1.9 Property
Information
Delivery Date: The date which is five (5) business days after the
Effective Date.
1.1.10 Title Commitment
Delivery Date: The date which is ten (10) days after the
Effective Date.
1.1.11 Survey Delivery
Date: N/A.
1.1.12 Title and Survey Review Period: The period ending
ten (10) days after
Purchaser's receipt of the
initial Title Commitment
and the initial Survey, but
in any event not later than
the expiration of the
Inspection Period.
1.1.13 Inspection Period: The period beginning on
the Effective Date and
ending ten (10) days
after the Effective Date.
1.1.14 Closing Date: The date
which is ten (10) days
after the later to occur of
(i) the expiration of the
Inspection Period, or (ii)
satisfaction of the
conditions set forth in
Subsections 7.2.4, 7.2.5,
7.2.6 and 7.2.7, but in no
event later than May 1,
1999 (the "Outside Date for
Closing").
1.2 Closing Costs. Closing costs shall be allocated and paid as follows:
Cost Responsible Party
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Title Commitment required to be delivered pursuant
to Section 5.1 Purchaser
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Premium for standard form Title Policy required to
be delivered pursuant to Section 5.4 Purchaser
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Premium for any upgrade of Title Policy for extended Purchaser
or additional coverage and any endorsements
desired by Purchaser, any inspection fee charged by
the Title Company, tax certificates, municipal and
utility lien certificates, and any other Title Company
charges
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Costs of Survey and/or any revisions, modifications
or recertifications thereto Purchaser
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Costs for UCC Searches Purchaser
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Recording fees for title clearing documents (if any), Seller
municipal lien certificate and Seller's legal
existence and authority documents
- --------------------------------------------------- ----------------------------
All other recording fees Purchaser
- ---------------------------------------------------- --------------------------
Any deed taxes, documentary stamps, transfer taxes, Seller
intangible taxes, mortgage taxes or other similar
taxes, fees or assessments
- ---------------------------------------------------- ---------------------------
Any escrow fee charged by Escrow Agent for holding
the Earnest Money or conducting the Closing Purchaser 1/2
Seller 1/2
- ---------------------------------------------------- ---------------------------
Real Estate Sales Commission to Broker Seller
- ---------------------------------------------------- ---------------------------
All other closing costs, expenses, charges and fees Purchaser
- ---------------------------------------------------- ---------------------------
1.3 Notice Addresses:
Purchaser: Kronos Incorporated Copy to:Francis X. Hanlon, Esq.
400 Fifth Avenue Ropes & Gray
Waltham, MA 02154 One International Place
Attention: Sally Wallace, Esq. Boston, MA 02110-2624
Telephone: (781) 487-4903 Telephone: (617) 951-7232
Facsimile: (781) 622-3950 Facsimile: (617) 951-7050
Seller: W9/TIB-L Real Estate Limited Copy to:C. Bradford Lowry
Partnership Haynes and Boone, LLP
c/o Archon Group 901 Main Street
1275 K Street Northwest 3100 NationsBank Plaza
Suite 900 Dallas, Texas 75202
Washington D.C. 20005 Telephone: (214) 651-5515
Attention: Mr. Paul Douglas Facsimile: (214) 651-5940
Telephone: (202) 216-5867
Facsimile: (202) 216-5801
1.4 Index of Certain Additional Defined Terms:
Asset Manager Section 12.18
Asset Manager's Employee Section 9.3
Assignment Subsection 7.3.2
CERCLA Section 11.3
Closing Section 7.1
Deed Subsection 7.3.1
Designated Representative(s) Section 12.20
Due Diligence Termination Notice Section 4.5
ERISA Subsection 7.4.3
Hazardous Materials Section 11.4
Improvements Subsection 2.1.1
Intangible Personal Property Subsection 2.1.4
Land Subsection 2.1.1
Lease Files Subsection 4.2.1
Permitted Exceptions Section 5.3
Permitted Outside Parties Section 4.8
Property Section 2.1
Property Documents Section 4.5
RCRA Section 11.3
Real Property Subsection 2.1.1
Reports Section 4.4
Rules Section 12.21
Survey Section 5.2
Tangible Personal Property Subsection 2.1.3
Taxes Section 8.1
Termination Reimbursement Section 12.20
Title Commitment Section 5.1
Title Policy Section 5.4
ARTICLE 2 - Property
2.1 Subject to the terms and conditions of this Agreement, Seller
agrees to sell to Purchaser, and Purchaser agrees to purchase from Seller, the
following property (collectively, the "Property"):
2.1.1 Real Property. The land described in Exhibit A attached
hereto (the "Land"), together with (i) all improvements located thereon, if any
("Improvements"), (ii) all and singular the rights, benefits, privileges,
easements, tenements, hereditaments, and appurtenances thereon or in anywise
appertaining thereto including, without limitation, the Drainage Easement
described in Section 6.6 hereof, and (iii) without warranty, all right, title,
and interest of Seller, if any, in and to all strips and gores and any land
lying in the bed of any street, road or alley, open or proposed, adjoining such
Land (collectively, the "Real Property").
2.1.2 [Intentionally Omitted]
2.1.3 Tangible Personal Property. All of Seller's right, title
and interest, without warranty, in the equipment, machinery, furniture,
furnishings, supplies and other tangible personal property, if any, owned by
Seller and now or hereafter located in and used in connection with the
operation, ownership or management of the Real Property, but specifically
excluding any items of personal property owned by tenants at or on the Real
Property and further excluding any items of personal property owned by third
parties and leased to Seller (collectively, the "Tangible Personal Property").
2.1.4 Intangible Personal Property. All of Seller's right,
title and interest, if any, without warranty, in all intangible personal
property related to the Real Property and the Improvements, including, without
limitation: all trade names and trade marks associated with the Real Property
and the Improvements, including Seller's rights and interests, if any, in the
name of the Real Property; the plans and specifications and other architectural
and engineering drawings for the Improvements, if any (to the extent
assignable); warranties (to the extent assignable); contract rights, permits and
approvals related to the construction, operation, ownership or management of the
Real Property, including, without limitation, those listed on Exhibit D attached
hereto (but only to the extent assignable and Seller's obligations thereunder
are expressly assumed by Purchaser pursuant to this Agreement); governmental
permits, approvals and licenses, if any (to the extent assignable); and
telephone exchange numbers (to the extent assignable) (collectively the
"Intangible Personal Property").
ARTICLE 3 - Earnest Money
3.1 Deposit and Investment of Earnest Money. Within three (3) business
days after the Effective Date, Purchaser shall deposit the Earnest Money with
Escrow Agent. Escrow Agent shall invest the Earnest Money in government insured
interest-bearing accounts satisfactory to Seller and Purchaser, shall not
commingle the Earnest Money with any funds of Escrow Agent or others, and shall
promptly provide Purchaser and Seller with confirmation of the investments made.
Such account shall have no penalty for early withdrawal, and Purchaser accepts
all risks with regard to such account.
3.2 Form; Failure to Deposit. The Earnest Money shall be in the form of
a certified or cashier's check or the wire transfer to Escrow Agent of
immediately available U.S. federal funds. If Purchaser fails to timely deposit
any portion of the Earnest Money within the time periods required, Seller may
terminate this Agreement by written notice to Purchaser, in which event the
parties hereto shall have no further rights or obligations hereunder, except for
rights and obligations which, by their terms, survive the termination hereof.
3.3 Disposition of Earnest Money. The Earnest Money shall be applied as
a credit to the Purchase Price at Closing. However, if Purchaser elects to
terminate this Agreement prior to the expiration of the Inspection Period
pursuant to Section 4.5, Escrow Agent shall pay the Earnest Money (less an
amount equal to the Termination Reimbursement) to Purchaser one (1) business day
following receipt of the Due Diligence Termination Notice from Purchaser (as
long as the current investment can be liquidated and disbursed in one business
day). No notice to Escrow Agent from Seller shall be required for the release of
the Earnest Money (less an amount equal to the Termination Reimbursement) to
Purchaser by Escrow Agent if Purchaser terminates this Agreement pursuant to
Section 4.5. Notwithstanding anything herein to the contrary, in all events
where the Earnest Money is to be returned to Purchaser, other than in case of
Seller's default hereunder, a portion of the Earnest Money equal to the
Termination Reimbursement shall be delivered to Seller as reimbursement to
Seller pursuant to Section 12.20. In the event of a termination of this
Agreement by either Seller or Purchaser for any reason other than pursuant to
Section 4.5, Escrow Agent is authorized to deliver the Earnest Money (or portion
thereof) to the party hereto entitled to same pursuant to the terms hereof on or
before the fifth (5th) business day following receipt by Escrow Agent and the
non-terminating party of written notice of such termination from the terminating
party, unless the other party hereto notifies Escrow Agent that it disputes the
right of the other party to receive the Earnest Money (or portion thereof). In
such event, Escrow Agent may interplead the Earnest Money (or portion thereof in
dispute) into a court of competent jurisdiction in the county in which the
Earnest Money has been deposited. All attorneys' fees and costs and Escrow
Agent's costs and expenses incurred in connection with such interpleader shall
be assessed against the party that is not awarded the Earnest Money, or if the
Earnest Money is distributed in part to both parties, then in the inverse
proportion of such distribution.
ARTICLE 4 - Due Diligence
4.1 Due Diligence Materials To Be Delivered. To the extent such items
are in Seller's possession or in the possession of Seller's agents, employees or
contractors, Seller shall deliver to Purchaser the following (the "Property
Information") on or before the Property Information Delivery Date:
4.1.1 Development Related Contracts. Copy of any contracts
between Seller and third party service providers in connection with the
development of the Property undertaken by Seller, including, without limitation,
any agreements by and between Seller and any architect, environmental and
engineering firm, and civil, structural, HVAC, geotechnical or traffic engineer;
4.1.2 [Intentionally Omitted]
4.1.3 Reports. Copy of any environmental and engineering reports or site
assessments related to the Property prepared for the benefit of Seller;
4.1.4 Tax Statements. Copy of ad valorem tax statements relating to the
Property for the current tax period;
4.1.5 Title and Survey. Copy of Seller's most current title insurance
information and survey of the Property;
4.1.6 [Intentionally Omitted]
4.1.7 Personal Property. A list of Tangible and Intangible Personal
Property; and
4.1.8 Leasing Commissions. A list of contingent leasing commissions with
respect to the Property, if any.
4.2 Due Diligence Materials To Be Made Available. To the extent such
items are in Seller's possession or in the possession of Seller's agents,
employees or contractors, Seller shall make available to Purchaser for
Purchaser's review, at Seller's option at either the offices of Seller's Asset
Manager or property manager or at the Property, the following items and
information (the "Additional Property Information") on or before the Property
Information Delivery Date, and Purchaser at its expense shall have the right to
make copies of same:
4.2.1 [Intentionally Omitted]
4.2.2 [Intentionally Omitted]
4.2.3 [Intentionally Omitted]
4.2.4 Licenses, Permits and Certificates of Occupancy.
Licenses, permits and certificates of occupancy relating to or authorizing
construction or operation of a building or improvements on the property.
4.3 Physical Due Diligence. Commencing on the Effective Date and
continuing until the Closing, Purchaser shall have reasonable access to the
Property at all reasonable times for the purpose of conducting reasonably
necessary tests, including surveys and architectural, engineering, geotechnical
and environmental inspections and tests, provided that (i) Purchaser must give
Seller twenty-four (24) hours' prior telephone or written notice of any such
inspection or test, and with respect to any intrusive inspection or test (i.e.,
core sampling) must obtain Seller's prior written consent (which consent shall
not be unreasonably withheld or conditioned), (ii) prior to performing any
inspection or test, Purchaser must deliver a certificate of insurance to Seller
evidencing that Purchaser and its contractors, agents and representatives have
in place reasonable amounts of comprehensive general liability insurance and
workers compensation insurance for its activities on the Property in terms and
amounts reasonably satisfactory to Seller covering any accident arising in
connection with the presence of Purchaser, its contractors, agents and
representatives on the Property, which insurance shall name Seller and Asset
Manager as additional insureds thereunder, and (iii) all such tests shall be
conducted by Purchaser in compliance with Purchaser's responsibilities set forth
in Section 4.12 below. Purchaser shall bear the cost of all such inspections or
tests and shall be responsible for and act as the generator with respect to any
wastes generated by those tests. Subject to the provisions of Section 4.8
hereof, Purchaser or Purchaser's representatives may meet with any governmental
authority for any good faith, reasonable purpose in connection with the
transaction contemplated by this Agreement; provided, however, Purchaser must
contact Seller at least forty-eight (48) hours in advance by telephone or fax to
inform Seller of Purchaser's intended meeting and to allow Seller the
opportunity to attend such meeting if Seller desires.
During the Inspection Period Purchaser shall review the contracts
listed on Exhibit D attached hereto and notify Seller prior to the termination
of the Inspection Period as to which contracts Purchaser has elected to take
assignment of and assume obligations thereunder arising from and after the
Closing Date (the "Assumed Contracts"). It shall be a condition to Purchaser's
obligation to close on the Closing Date that any and all consents required in
connection with the assignment and assumption of the Assumed Contracts be
delivered on the Closing Date.
4.4 [Intentionally Omitted]
4.5 Due Diligence/Termination Right. Purchaser shall have through the
last day of the Inspection Period in which to (i) examine, inspect, and
investigate the Property Information and the Additional Property Information
(collectively, the "Property Documents") and the Property and, in Purchaser's
sole and absolute judgment and discretion, determine whether the Property is
acceptable to Purchaser, (ii) obtain all necessary internal approvals, and (iii)
satisfy all other contingencies of Purchaser, including those listed in Section
6.1.4 below. Notwithstanding anything to the contrary in this Agreement,
Purchaser may terminate this Agreement for any reason or no reason by giving
written notice of termination to Seller and Escrow Agent (the "Due Diligence
Termination Notice") on or before the last day of the Inspection Period. If
Purchaser does not give a Due Diligence Termination Notice, this Agreement shall
continue in full force and effect, Purchaser shall be deemed to have waived its
right to terminate this Agreement pursuant to this Section 4.5, and Purchaser
shall be deemed to have acknowledged that it has received or had access to all
Property Documents and conducted all inspections and tests of the Property that
it considers important.
4.6 Return of Documents and Reports. If this Agreement terminates for
any reason other than Seller's default hereunder, Purchaser shall promptly
return and/or deliver to Seller all Property Documents and copies thereof.
Additionally, if this Agreement terminates for any reason other than Seller's
default, then Purchaser must deliver to Seller copies of all third party
reports, investigations and studies, other than economic analyses (collectively,
the "Reports" and, individually, a "Report") prepared for Purchaser in
connection with its due diligence review of the Property. The Reports shall be
delivered to Seller without any representation or warranty as to the
completeness or accuracy of the Reports or any other matter relating thereto,
and Seller shall have no right to rely on any Report without the written consent
of the party preparing same. Purchaser's obligation to deliver the Property
Documents and the Reports to Seller shall survive the termination of this
Agreement.
4.7 [Intentionally Omitted]
4.8 Proprietary Information; Confidentiality. Purchaser acknowledges
that the Property Documents are proprietary and confidential and will be
delivered to Purchaser solely to assist Purchaser in determining the feasibility
of purchasing the Property. Purchaser shall not use the Property Documents for
any purpose other than as set forth in the preceding sentence. Purchaser shall
not disclose the contents to any person other than to those persons providing
financing or who are responsible for determining the feasibility of Purchaser's
acquisition of the Property and who have agreed to preserve the confidentiality
of such information as required hereby (collectively, "Permitted Outside
Parties"). At any time and from time to time, within two (2) business days after
Seller's request, Purchaser shall deliver to Seller a list of all parties to
whom Purchaser has provided any Property Documents or any information taken from
the Property Documents. Purchaser shall not divulge the contents of the Property
Documents and other information except in strict accordance with the
confidentiality standards set forth in this Section 4.8. In permitting Purchaser
to review the Property Documents or any other information, Seller has not waived
any privilege or claim of confidentiality with respect thereto, and no third
party benefits or relationships of any kind, either express or implied, have
been offered, intended or created.
4.9 No Representation or Warranty by Seller . Purchaser acknowledges
that, except as expressly set forth in this Agreement, neither Seller nor Asset
Manager has made nor makes any warranty or representation regarding the truth,
accuracy or completeness of the Property Documents or the source(s) thereof.
Purchaser further acknowledges that some if not all of the Property Documents
were prepared by third parties other than Seller and Asset Manager. Seller and
Asset Manager expressly disclaim any and all liability for representations or
warranties, express or implied, statements of fact and other matters contained
in such information, or for omissions from the Property Documents, or in any
other written or oral communications transmitted or made available to Purchaser.
Purchaser shall rely solely upon its own investigation with respect to the
Property, including, without limitation, the Property's physical, environmental
or economic condition, compliance or lack of compliance with any ordinance,
order, permit or regulation or any other attribute or matter relating thereto.
Seller and Asset Manager have not undertaken any independent investigation as to
the truth, accuracy or completeness of the Property Documents and are providing
the Property Documents solely as an accommodation to Purchaser.
4.0 Purchaser's Responsibilities. In conducting any inspections,
investigations or tests of the Property and/or Property Documents, Purchaser and
its agents and representatives shall: (i) not interfere with the operation and
maintenance of the Property; (ii) not damage any part of the Property; (iii) not
injure or otherwise cause bodily harm to Seller, Asset Manager, or their
respective agents, guests, invitees, contractors and employees or any tenants or
their guests or invitees; (iv) comply with all applicable laws; (v) not permit
any liens to attach to the Real Property by reason of the exercise of its rights
hereunder; (vi) repair any damage to the Real Property resulting directly or
indirectly from any such inspection or tests; and (vii) not reveal or disclose
prior to Closing any information obtained during the Inspection Period
concerning the Property and the Property Documents to anyone other than the
Permitted Outside Parties, in accordance with the confidentiality standards set
forth in Section 4.8 above, or except as may be otherwise required by law.
4.11 Purchaser's Agreement to Indemnify. Purchaser indemnifies and
holds Seller and Asset Manager harmless from and against any and all liens,
claims, causes of action, damages, liabilities and expenses (including
reasonable attorneys' fees) arising out of Purchaser's inspections or tests
permitted under this Agreement or any violation of the provisions of Sections
4.3, 4.8 and 4.10; provided, however, the indemnity shall not extend to protect
Seller from any pre-existing liabilities for matters merely discovered by
Purchaser (i.e., latent environmental contamination) so long as Purchaser's
actions do not aggravate any pre-existing liability of Seller. Purchaser also
indemnifies and holds any tenant harmless from and against any and all claims,
causes of action, damages, liabilities and expenses which such tenant may suffer
or incur due to Purchaser's breach of its obligation under Section 4.8 above to
maintain the confidential nature of any Property Documents or other information
relative to such tenant. Purchaser's obligations under this Section 4.11 shall
survive the termination of this Agreement and shall survive the Closing.
4.12 Environmental Studies; Seller's Right to Terminate. As additional
consideration for the transaction contemplated in this Agreement, Purchaser must
provide to Seller, immediately following the receipt of same by Purchaser,
copies of any and all reports, tests or studies involving contamination of or
other environmental concerns relating to the Property; provided, however,
Purchaser shall have no obligation to cause any such tests or studies to be
performed on the Property. Seller acknowledges that Purchaser has not made and
does not make any warranty or representation regarding the truth or accuracy of
any such studies or reports. Notwithstanding Section 4.11 above, Purchaser shall
have no liability or culpability of any nature as a result of having provided
such information to Seller or as a result of Seller's reliance thereon or
arising out of the fact that Purchaser merely conducted such tests or studies,
so long as Purchaser's actions do not aggravate any pre-existing liability of
Seller. In the event that such reports, tests or studies indicate the existence
or reasonable potential existence of any contamination of any portion of the
Property that is not disclosed in the Property Documents and that is material
(meaning that the reasonably estimated cost of remediation and/or other
liability associated therewith, as determined by Seller's environmental
consultants, exceeds $100,000.00), then Seller may terminate this Agreement by
giving written notice to Purchaser within ten (10) business days after Purchaser
has provided Seller with copies of such reports, tests or studies, whereupon the
Earnest Money (less the Termination Reimbursement, which shall be delivered to
Seller) shall be returned to Purchaser, the parties shall have no further
obligations hereunder except for obligations that expressly survive the
termination hereof, and Seller shall pay to Purchaser an amount equal to the
lesser of (A) Purchaser's actual out-of-pocket expenditures incurred directly in
connection with negotiating this Agreement and/or conducting due diligence
activities contemplated hereunder, or (B) Twenty-Five Thousand and No/100
Dollars ($25,000.00), provided, however, that Purchaser must make written demand
of Seller for such reimbursement and provide Seller reasonable supporting
documentation of actual expenditures within thirty (30) days of the termination
of this Agreement, and if Purchaser fails to provide such written demand and
supporting documentation within such thirty (30) day period, then Purchaser
shall be deemed to have forever waived its right to recover any amount from
Seller.
ARTICLE 5 - Title and Survey
5.1 Title Commitment. Purchaser shall cause to be prepared and
delivered to Seller on or before the Title Commitment Delivery Date: (i) a
current commitment for title insurance or preliminary title report (the "Title
Commitment") issued by the Title Company, in the amount of the Purchase Price
and on a ALTA 1992 Standard Form commitment, with Purchaser as the proposed
insured, and (ii) copies of all documents of record referred to in the Title
Commitment as exceptions to title to the Property.
5.2 New or Updated Survey. Purchaser may elect to obtain a new survey
or revise, modify, or re-certify an existing survey ("Survey") as necessary in
order for the Title Company to delete the survey exception from the Title Policy
or to otherwise satisfy Purchaser's objectives.
5.3 Title Review. During the Title and Survey Review Period, Purchaser
shall review title to the Property as disclosed by the Title Commitment and the
Survey. Seller shall have no obligation to cure title objections except
financing liens of an ascertainable amount created by, under or through Seller,
which liens Seller shall cause to be released at or prior to Closing (with
Seller having the right to apply the Purchase Price or a portion thereof for
such purpose), and Seller shall deliver the Property free and clear of any such
financing liens. Seller further agrees to remove any exceptions or encumbrances
to title which are voluntarily created by, under or through Seller after the
Effective Date without Purchaser's consent. The term "Permitted Exceptions"
shall mean: the specific exceptions (excluding exceptions that are part of the
promulgated title insurance form) in the Title Commitment that the Title Company
has not agreed to remove from the Title Commitment as of the end of the Title
and Survey Review Period and that Seller is not required to remove as provided
above; matters created by, through or under Purchaser; items shown on the Survey
which have not been removed as of the end of the Inspection Period; real estate
taxes not yet due and payable; tenants under any leases; and any licensees not
terminated as of Closing.
5.4 Delivery of Title Policy at Closing. In the event that the Title
Company does not issue at Closing, or unconditionally commit at Closing to
issue, to Purchaser, an owner's title policy in accordance with the Title
Commitment, insuring good, clear and marketable title to the Property in the
amount of the Purchase Price, subject only to the standard exceptions and
exclusions from coverage contained in such policy and the Permitted Exceptions
(the "Title Policy"), Purchaser shall have the right to terminate this
Agreement, in which case the Earnest Money (less the Termination Reimbursement,
which shall be delivered to Seller) shall be immediately returned to Purchaser
and the parties hereto shall have no further rights or obligations, other than
those that by their terms survive the termination of this Agreement.
ARTICLE 6 - Operations, Risk of Loss, and Covenants Prior to Closing
6.1 Ongoing Operations. From the Effective Date through Closing, Seller
will not enter into any contract that will be an obligation affecting the
Property subsequent to the Closing, except contracts entered into in the
ordinary course of business that are terminable without cause and without the
payment of any termination penalty on not more than thirty (30) days' prior
notice.
6.2 [Intentionally Omitted]
6.3 Condemnation. If proceedings in eminent domain are instituted with
respect to the Property or any portion thereof, Purchaser may, at its option, by
written notice to Seller given within ten (10) days after Seller notifies
Purchaser of such proceedings (and if necessary the Closing Date shall be
automatically extended to give Purchaser the full ten-day period to make such
election), either: (i) terminate this Agreement, in which case the Earnest Money
(less the Termination Reimbursement, which shall be delivered to Seller) shall
be immediately returned to Purchaser and the parties hereto shall have no
further rights or obligations, other than those that by their terms survive the
termination of this Agreement, or (ii) proceed under this Agreement, in which
event Seller shall, at the Closing, assign to Purchaser its entire right, title
and interest in and to any condemnation award, and Purchaser shall have the sole
right after the Closing to negotiate and otherwise deal with the condemning
authority in respect of such matter. If Purchaser does not give Seller written
notice of its election within the time required above, then Purchaser shall be
deemed to have elected option (ii) above.
6.4 New Subdivision Plan. The Property is comprised of (i) an
approximate one (1) acre portion (the "One Acre Portion") out of a parcel
currently containing approximately 9.77 acres and known as 5 Omni Way,
Chelmsford, Massachusetts and described as Lot 2A on Exhibit A attached hereto
(the "5 Omni Way Parcel"), said 5 Omni Way Parcel being a registered parcel
subject to the jurisdiction of the Land Court of Massachusetts, and (ii) all of
a parcel containing approximately 9.16 acres and known as 297 Billerica Road,
Chelmsford, Massachusetts, and described as Lot 1 A on Exhibit A attached hereto
(the "Non-Registered Parcel"), which is not a registered parcel. It is the
parties' intent that the One Acre Portion be subdivided from the 5 Omni Way
Parcel pursuant to a new subdivision plan (the "New Subdivision Plan") that must
be approved by the Land Court of Massachusetts. Seller has heretofore been
pursuing approval of the New Subdivision Plan and will continue to use
reasonable efforts to obtain such approval prior to the Outside Date for
Closing. Among other things, such approval will require that the current tenant
of the 5 Omni Way Parcel, Sun Microsystems, Inc. ("Sun Microsystems"), agree to
release the One Acre Portion from its leasehold estate by the execution of an
amendment to its existing lease, and further that Seller's current mortgagee of
the 5 Omni Way Parcel ("Seller's Lender") agree to release the One Acre Parcel
from the lien of its mortgage. Seller shall use reasonable efforts to cause Sun
Micro Systems to agree to release the One Acre Portion from its leasehold
estate, and to cause Seller's Lender to release the One Acre Portion from the
lien of its mortgage, prior to the Outside Date for Closing, but Seller shall
not be obligated to incur any material cost or expense whatsoever in connection
therewith, except that Seller agrees to pay the release price required by
Seller's Lender, and Seller shall further pay any reasonable, usual and
customary legal fees of Seller's counsel (but not any legal fees or other fees
that may be charged by Seller's Lender) in connection with said release.
Purchaser shall reasonably cooperate with Seller in satisfying the conditions of
this paragraph, and shall reimburse Seller for its costs and expenses in
connection therewith in accordance with the terms of Section 12.20 hereof.
Approval of the New Subdivision Plan is a condition precedent to both Seller's
and Purchaser's obligation to close in accordance with Subsection 7.2.4 hereof.
The provisions of Section 12.22 hereof shall apply with respect to this
paragraph.
6.5 New Lease for 2 Omni Way. Seller and Purchaser intend to negotiate
and enter into a new lease agreement (the "2 Omni Way Lease") pursuant to which
Purchaser, as tenant, will lease from Seller, as landlord, that certain building
owned by Seller adjacent to the Property and known as 2 Omni Way, Chelmsford,
Massachusetts (the "2 Omni Way Building"). Seller and Purchaser will negotiate
in good faith and use reasonable efforts to execute and enter into the 2 Omni
Way Lease prior to the Outside Date for Closing. The 2 Omni Way Lease is and
shall be subject to and conditioned on (i) termination of the existing lease
agreement between Seller and Sun Microsystems pursuant to which Sun Microsystems
currently leases from Seller the 2 Omni Way Building, and (ii) vacation of the 2
Omni Way Building by Sun Microsystems. Seller shall use reasonable efforts to
cause Sun Microsystems to terminate its lease and vacate the 2 Omni Way
Building, but Seller shall not be obligated to incur any material cost or
expense whatsoever in connection therewith. Satisfaction of the foregoing
requirements is a condition to Purchaser's obligation to close in accordance
with Subsection 7.2.5 hereof, and if by the Outside Date for Closing the 2 Omni
Way Lease has not been executed and entered into by Seller and Purchaser and/or
if Sun Microsystems has not terminated its lease and vacated the 2 Omni Way
Building, then Purchaser shall have the right to terminate this Agreement, in
which event the Earnest Money (less the Termination Reimbursement, which shall
be delivered to Seller) shall be returned to Purchaser. The provisions of
Section 12.22 hereof shall apply with respect to this paragraph.
6.6 Drainage Easement; Sun Microsystems' Consent. Both parties
acknowledge the need for a non-exclusive drainage easement benefitting the
Property (the "Drainage Easement") over and across the 5 Omni Way Parcel as
shown on the Plan attached hereto as Exhibit F-1. Seller and Purchaser agree
that the form of Drainage Easement shall be substantially in the form of Exhibit
F-2 hereto. Final approval of the Drainage Easement is and shall be conditioned
on the current tenant of the 5 Omni Way Parcel, Sun Microsystems, and Seller's
Lender each consenting in writing to the Drainage Easement and on Seller's
Lender subordinating its lien to the Drainage Easement. Seller shall use
reasonable efforts to cause Sun Microsystems and Seller's Lender each to consent
in writing to the Drainage Easement (and Seller's Lender to subordinate its lien
to the Drainage Easement) prior to the Outside Date for Closing, but Seller
shall not be obligated to incur any cost or expense whatsoever in connection
therewith. If the foregoing requirements have been satisfied as of Closing, then
at Closing Seller shall execute the Drainage Easement document and have same
recorded in the real property records of the county in which the Property is
located. Satisfaction of the foregoing requirements is a condition to
Purchaser's obligation to close in accordance with Subsection 7.2.6 hereof, and
if by the Outside Date for Closing the foregoing requirements have not been
satisfied, then Purchaser shall have the right to terminate this Agreement, in
which event the Earnest Money (less the Termination Reimbursement, which shall
be delivered to Seller) shall be returned to Purchaser. The provisions of
Section 12.22 hereof shall apply with respect to this paragraph.
6.7 Building Permit. Purchaser, at Purchaser's sole cost and expense,
shall, as soon as reasonably possible after the Effective Date, make application
with the appropriate municipal authorities to obtain a building permit for the
construction of a three (3) story, approximate 127,000 square feet office
building on the Property; provided, however, prior to submitting any
application, filing or any other document in connection therewith, Purchaser
shall submit same to Seller for Seller's approval, which approval shall not be
unreasonably withheld or delayed so long as Purchaser is otherwise not in
default under the terms of this Agreement. Purchaser shall diligently pursue the
building permit and use all reasonable efforts to obtain said permit as soon as
reasonably possible. Seller shall reasonably cooperate with Purchaser in this
regard, but shall not be obligated to incur any cost or expense whatsoever in
connection therewith. The issuance of a building permit shall be a condition to
Purchaser's obligation to close, and if Purchaser has not obtained the building
permit or is otherwise not satisfied with the status of the building permit
process prior to the Outside Closing Date, then Purchaser shall have the right
to terminate this Agreement, in which event the Earnest Money (less the
Termination Reimbursement, which shall be delivered to Seller) shall be returned
to Purchaser.
ARTICLE 7 - Closing
7.1 Closing. The consummation of the transaction contemplated herein
("Closing") shall occur on the Closing Date at the offices of Escrow Agent (or
such other location as may be mutually agreed upon by Seller and Purchaser).
Funds shall be deposited into and held by Escrow Agent in a closing escrow
account with a bank satisfactory to Purchaser and Seller. Upon satisfaction or
completion of all closing conditions and deliveries, the parties shall direct
Escrow Agent to immediately record and deliver the closing documents to the
appropriate parties and make disbursements according to the closing statements
executed by Seller and Purchaser.
7.2 Conditions to Parties' Obligation to Close. In addition to all
other conditions set forth herein, the obligation of Seller, on the one hand,
and Purchaser, on the other hand, to consummate the transactions contemplated
hereunder are conditioned upon the following:
7.2.1 Representations and Warranties. The other party's
representations and warranties contained herein shall be true and correct in all
material respects as of the date of this Agreement and the Closing Date;
7.2.2 Deliveries. As of the Closing Date, the other party
shall have tendered all deliveries to be made at Closing; and
7.2.3 Actions, Suits, etc. There shall exist no pending or
threatened actions, suits, arbitrations, claims, attachments, proceedings,
assignments for the benefit of creditors, insolvency, bankruptcy, reorganization
or other proceedings, against the other party that would materially and
adversely affect the operation or value of the Property or the other party's
ability to perform its obligations under this Agreement.
7.2.4 Release of One Acre Portion; New Subdivision Plan. The
releases from Sun Microsystems and Seller's Lender shall have been obtained in
accordance with Section 6.4, and the New Subdivision Plan shall have been
approved by the Land Court of Massachusetts. Notwithstanding anything herein to
the contrary, if this condition has not been satisfied by the Outside Date for
Closing, then either party may terminate this Agreement, in which event the
Earnest Money (less an amount equal to the Termination Reimbursement, which
shall be delivered to Seller) shall be delivered to Purchaser.
In addition to the foregoing conditions, the following shall be
additional conditions to Purchaser's obligation to consummate the transactions
contemplated hereunder:
7.2.5 New Lease for 2 Omni Way. The 2 Omni Way Lease shall
have been executed and entered into by Seller and Purchaser, and the other
conditions set forth in Section 6.5 shall have been satisfied. Notwithstanding
anything herein to the contrary, if this condition has not been satisfied by the
Outside Date for Closing, then Purchaser may terminate this Agreement, in which
event the Earnest Money (less an amount equal to the Termination Reimbursement,
which shall be delivered to Seller) shall be delivered to Purchaser.
7.2.6 Consent to Drainage Easement. Sun Microsystems and
Seller's Lender shall have consented to the Drainage Easement, and Seller's
Lender shall have subordinated its lien to the Drainage Easement, in accordance
with Section 6.6. Notwithstanding anything herein to the contrary, if this
condition has not been satisfied by the Outside Date for Closing, then Purchaser
may terminate this Agreement, in which event the Earnest Money (less an amount
equal to the Termination Reimbursement, which shall be delivered to Seller)
shall be delivered to Purchaser.
7.2.7 Building Permit. Purchaser shall have obtained the
building permit contemplated by Section 6.7. Notwithstanding anything herein to
the contrary, if this condition has not been satisfied by the Outside Date for
Closing, then Purchaser may terminate this Agreement, in which event the Earnest
Money (less an amount equal to the Termination Reimbursement, which shall be
delivered to Seller) shall be delivered to Purchaser.
So long as a party is not in default hereunder, if any condition to
such party's obligation to proceed with the Closing hereunder has not been
satisfied as of the Closing Date (or such earlier date as is provided herein),
such party may, in its sole discretion, terminate this Agreement by delivering
written notice to the other party on or before the Closing Date (or such earlier
date as is provided herein), or elect to close (or to permit any such earlier
termination deadline to pass) notwithstanding the non-satisfaction of such
condition, in which event such party shall be deemed to have waived any such
condition. In the event such party elects to close (or to permit any such
earlier termination deadline to pass), notwithstanding the non-satisfaction of
such condition, said party shall be deemed to have waived said condition, and
there shall be no liability on the part of any other party hereto for breaches
of representations and warranties of which the party electing to close had
knowledge at the Closing.
7.3 Seller's Deliveries in Escrow. As of or prior to the Closing Date,
Seller shall deliver in escrow to Escrow Agent the following:
7.3.1 Deed. A quitclaim deed in substantially the form
attached hereto as Exhibit E, executed and acknowledged by Seller, conveying to
Purchaser Seller's interest in the Real Property, subject to the Permitted
Exceptions (the "Deed");
7.3.2 Bill of Sale, Assignment and Assumption. A Bill of Sale,
Assignment and Assumption of Leases and Contracts in the form of Exhibit B
attached hereto (the "Assignment"), executed and acknowledged by Seller, vesting
in Purchaser, without warranty (except for title), Seller's right, title and
interest in and to the property described therein free of any claims, except for
the Permitted Exceptions to the extent applicable. The Assignment shall be
accompanied by any and all consents necessary for the assignment and assumption
of the Assumed Contracts which Purchaser has elected to assume pursuant to
Section 4.3 thereof.
7.3.3 Conveyancing or Transfer Tax Forms or Returns. Such
conveyancing or transfer tax forms or returns, if any, as are required to be
delivered or signed by Seller by applicable state and local law in connection
with the conveyance of the Real Property.
7.3.4 FIRPTA. A Foreign Investment in Real Property Tax Act
affidavit executed by Seller;
7.3.5 Drainage Easement. If the requirements of Section 6.6
are satisfied, the Drainage Easement document agreed to by Seller and Purchaser
substantially in the form of Exhibit F-2 attached hereto, executed and
acknowledged by Seller;
7.3.6 2 Omni Way Lease. If the requirements of Section 6.5
are satisfied, the 2 Omni Way Lease agreed to by Seller and Purchaser, executed
by Seller;
7.3.7 Authority. Evidence of the existence, organization and
authority of Seller and of the authority of the persons executing documents on
behalf of Seller reasonably satisfactory to the underwriter for the Title
Policy;
7.3.8 Schedule of Additional Costs. A schedule, certified by
Seller, of additional costs reasonably incurred by Seller subsequent to the date
through which the actual costs listed on Exhibit H are current, which additional
costs must be substantially consistent with the types of projected costs listed
on Exhibit H attached hereto; and
7.3.10 Additional Documents. Any additional documents that
Escrow Agent or the Title Company may reasonably require for the proper
consummation of the transaction contemplated by this Agreement (provided,
however, no such additional document shall expand any obligation, covenant,
representation or warranty of Seller or result in any new or additional
obligation, covenant, representation or warranty of Seller under this Agreement
beyond those expressly set forth in this Agreement).
7.4 Purchaser's Deliveries in Escrow. As of or prior to
the Closing Date, Purchaser shall deliver in escrow to Escrow Agent the
following:
7.4.1 Bill of Sale, Assignment and Assumption.
The Assignment, executed and acknowledged by Purchaser;
7.4.2 ERISA Letter. A letter to Seller in the form of Exhibit
C attached hereto duly executed by Purchaser, confirming that Purchaser is not
acquiring the Property with the assets of an employee benefit plan as defined in
Section 3(3) of the Employee Retirement Income Security Act of 1974 ("ERISA")
and, in the event Purchaser is unable or unwilling to make such a
representation, Purchaser shall be deemed to be in default hereunder, and Seller
shall have the right to terminate this Agreement and to receive and retain the
Earnest Money;
7.4.3 Conveyancing or Transfer Tax Forms or Returns. Such
conveyancing or transfer tax forms or returns, if any, as are required to be
delivered or signed by Purchaser by applicable state and local law in connection
with the conveyance of Real Property;
7.4.4 Drainage Easement. If the requirements of Section 6.6
are satisfied, the Drainage Easement document agreed to by Seller and Purchaser,
substantially in the form of Exhibit F-2 attached hereto, executed and
acknowledged by Purchaser; and
7.4.5 2 Omni Way Lease. If the requirements of Section 6.5
are satisfied, the 2 Omni Way Lease agreed to by Seller and Purchaser, executed
by Purchaser;
7.4.6 Additional Documents. Any additional documents that
Seller, Escrow Agent or the Title Company may reasonably require for the proper
consummation of the transaction contemplated by this Agreement (provided,
however, no such additional document shall expand any obligation, covenant,
representation or warranty of Purchaser or result in any new or additional
obligation, covenant, representation or warranty of Purchaser under this
Agreement beyond those expressly set forth in this Agreement).
7.5 Closing Statements. As of or prior to the Closing Date, Seller and
Purchaser shall deposit with Escrow Agent executed closing statements consistent
with this Agreement in the form required by Escrow Agent.
7.6 Purchase Price. At or before 1:00 p.m. local time on the Closing
Date, Purchaser shall deliver to Escrow Agent the Purchase Price, less the
Earnest Money that is applied to the Purchase Price, plus or minus applicable
prorations, in immediate, same-day U.S. federal funds wired for credit into
Escrow Agent's escrow account, which funds must be delivered in a manner to
permit Escrow Agent to deliver good funds to Seller or its designee on the
Closing Date (and, if requested by Seller, by wire transfer); in the event that
Escrow Agent is unable to deliver good funds to Seller or its designee on the
Closing Date, then the closing statements and related prorations will be revised
as necessary.
7.7 Possession. Seller shall deliver possession of the Property to
Purchaser at the Closing subject only to the Permitted Exceptions.
7.8 Delivery of Books and Records. After the Closing, Seller shall
deliver to the offices of Purchaser's property manager or to the Real Property
to the extent in Seller's or its property manager's possession or control: Lease
Files; maintenance records and warranties; plans and specifications; licenses,
permits and certificates of occupancy; copies or originals of all books and
records of account, contracts, and copies of correspondence with tenants and
suppliers; receipts for deposits, unpaid bills and other papers or documents
which pertain to the Property; all advertising materials; booklets; keys; and
other items, if any, used in the operation of the Property.
ARTICLE 8 - Prorations, Deposits, Commissions
8.1 Prorations. At Closing, the following items shall be prorated as of
the date of Closing with all items of income and expense for the Property being
borne by Purchaser from and after (but including) the date of Closing: Any
income and rents; fees and assessments; prepaid expenses and obligations;
accrued operating expenses; real and personal ad valorem taxes ("Taxes"); and
any assessments by private covenant for the then-current calendar year of
Closing. Specifically, the following shall apply to such prorations:
8.1.1 Taxes. If Taxes for the year of Closing are not known or
cannot be reasonably estimated, Taxes shall be prorated based on Taxes for the
year prior to Closing. Any additional Taxes relating to the year of Closing or
prior years arising out of a change in the use of the Real Property or a change
in ownership shall be assumed by Purchaser effective as of Closing and paid by
Purchaser when due and payable, and Purchaser shall indemnify Seller from and
against any and all such Taxes, which indemnification obligation shall survive
the Closing.
8.1.2 Utilities. Purchaser shall take all steps necessary to
effectuate the transfer of all utilities to its name as of the Closing Date, and
where necessary, post deposits with the utility companies. Seller shall ensure
that all utility meters are read as of the Closing Date. Seller shall be
entitled to recover any and all deposits held by any utility company as of the
Closing Date.
8.2 [Intentionally Omitted]
8.3 Closing Costs. Closing costs shall be allocated between
Seller and Purchaser in accordance with Section 1.2.
8.4 Final Adjustment After Closing. If final bills are not available or
cannot be issued prior to Closing for any item being prorated under Section 8.1,
then Purchaser and Seller agree to allocate such items on a fair and equitable
basis as soon as such bills are available, final adjustment to be made as soon
as reasonably possible after the Closing. Payments in connection with the final
adjustment shall be due within thirty (30) days of written notice. All such
rights and obligations shall survive the Closing.
8.5 [Intentionally Omitted]
8.6 Commissions. Seller and Purchaser each represent and warrant to the
other that no real estate brokerage commission is payable to any person or
entity in connection with the transaction contemplated hereby, and each agrees
to and does hereby indemnify and hold the other harmless against the payment of
any commission to any other person or entity claiming by, through or under
Seller or Purchaser, as applicable. This indemnification shall extend to any and
all claims, liabilities, costs and expenses (including reasonable attorneys'
fees and litigation costs) arising as a result of such claims and shall survive
the Closing.
ARTICLE 9 - Representations and Warranties
9.1 Seller's Representations and Warranties. Seller represents and
warrants to Purchaser that:
9.1.1 Organization and Authority. Seller has been duly
organized, is validly existing, and is in good standing in the state in which it
was formed and is authorized to do business and is in good standing in the
Commonwealth of Massachusetts. Seller has the full right and authority and has
obtained any and all consents required to enter into this Agreement and (subject
to the expressed conditions set forth in this Agreement) to consummate or cause
to be consummated the transactions contemplated hereby. This Agreement has been,
and all of the documents to be delivered by Seller at the Closing will be,
authorized and executed and constitute, or will constitute, as appropriate, the
valid and binding obligation of Seller, enforceable in accordance with their
terms.
9.1.2 Conflicts and Pending Actions. There is no agreement to
which Seller is a party or, to Seller's knowledge, that is binding on Seller
which is in conflict with this Agreement. To Seller's knowledge, there is no
action or proceeding pending or threatened against Seller or relating to the
Property, which challenges or impairs Seller's ability to execute or perform its
obligations under this Agreement.
9.1.3 Tenant/Leases. As of the Effective Date, there are no
tenants of the Property.
9.1.4 Service Contracts. To Seller's knowledge, there are
no service contracts with respect to the Property.
9.1.5 Notices from Governmental Authorities. To Seller's
knowledge, Seller has not received from any governmental authority written
notice of any material violation of any laws applicable (or alleged to be
applicable) to the Real Property, or any part thereof, that has not been
corrected, except as may be reflected by the Property Documents.
9.1.6. Project Costs. The project costs listed on Exhibit H
and any additional
costs incurred by Seller between the Effective Date and the Closing were
incurred in good faith by Seller in connection with the development of the
Property and the costs and any such additional costs are true and correct in all
material respects and represent arms-length transactions between Seller and the
parties to whom such costs are payable.
9.1.7. Sun Microsystem Agreements. To Seller's knowledge,
the agreements
of Sun Microsystems as described in Sections 6.4 and 6.6 hereof have been, or
as of Closing will have been, duly authorized and executed by Sun Microsystems
and are, or as of Closing will be, valid and binding agreements in accordance
with their respective terms.
9.2 Purchaser's Representations and Warranties. Purchaser represents
and warrants to Seller that:
9.2.1 Organization and Authority. Purchaser has been duly
organized and is validly existing as a corporation in good standing in the State
of Delaware and is qualified to do business in the state in which the Real
Property is located. Purchaser has the full right and authority and has obtained
any and all consents required to enter into this Agreement and to consummate or
cause to be consummated the transactions contemplated hereby. This Agreement has
been, and all of the documents to be delivered by Purchaser at the Closing will
be, authorized and properly executed and constitute, or will constitute, as
appropriate, the valid and binding obligation of Purchaser, enforceable in
accordance with their terms.
9.2.2 Conflicts and Pending Action. There is no agreement to
which Purchaser is a party or to Purchaser's knowledge binding on Purchaser
which is in conflict with this Agreement. There is no action or proceeding
pending or, to Purchaser's knowledge, threatened against Purchaser which
challenges or impairs Purchaser's ability to execute or perform its obligations
under this Agreement.
9.3 Survival of Representations and Warranties. The representations and
warranties set forth in this Article 9 are made as of the date of this Agreement
and are remade as of the Closing Date and shall not be deemed to be merged into
or waived by the instruments of Closing, but shall survive the Closing for a
period of twelve (12) months (the "Survival Period"). Terms such as "to Seller's
knowledge," "to the best of Seller's knowledge" or like phrases mean the actual
present and conscious awareness or knowledge of Paul Douglas, asset manager of
the Property ("Asset Manager's Employee"), without any duty of inquiry or
investigation; provided that so qualifying Seller's knowledge shall in no event
give rise to any personal liability on the part of Asset Manager's Employee or
any other officer or employee of Seller or its Asset Manager, on account of any
breach of any representation or warranty made by Seller herein. Said terms do
not include constructive knowledge, imputed knowledge, or knowledge Seller or
such persons do not have but could have obtained through further investigation
or inquiry. No broker, agent, or party other than Seller is authorized to make
any representation or warranty for or on behalf of Seller. Each party shall have
the right to bring an action against the other on the breach of a representation
or warranty hereunder, but only on the following conditions: (i) the party
bringing the action for breach first learns of the breach after Closing and
files such action within the Survival Period, and (ii) neither party shall have
the right to bring a cause of action for a breach of a representation or
warranty unless the damage to such party on account of such breach (individually
or when combined with damages from other breaches) equals or exceeds $15,000.00.
Neither party shall have any liability after Closing for the breach of a
representation or warranty hereunder of which the other party hereto had
knowledge as of Closing. Furthermore, Purchaser agrees that the maximum
liability of Seller for the alleged breach of any or all representations or
warranties set forth in this Agreement is limited to $250,000.00. The provisions
of this Section 9.3 shall survive the Closing. Any breach of a representation or
warranty that occurs prior to Closing shall be governed by Article 10.
ARTICLE 10 - Default and Remedies
10.1 Seller's Remedies. If Purchaser fails to perform its obligations
pursuant to this Agreement at or prior to Closing for any reason except failure
by Seller to perform hereunder, or if prior to Closing any one or more of
Purchaser's representations or warranties are breached in any material respect,
Seller shall be entitled, as its sole remedy (except as provided in Sections
4.11, 8.6, 10.3 and 10.4 hereof), to terminate this Agreement and recover the
Earnest Money as liquidated damages and not as penalty, in full satisfaction of
claims against Purchaser hereunder. Seller and Purchaser agree that Seller's
damages resulting from Purchaser's default are difficult, if not impossible, to
determine and the Earnest Money is a fair estimate of those damages which has
been agreed to in an effort to cause the amount of such damages to be certain.
Notwithstanding anything in this Section 10.1 or in Exhibit G to the contrary,
in the event of Purchaser's default and a termination of this Agreement, Seller
shall have all remedies available at law or in equity in the event Purchaser or
any party related to or affiliated with Purchaser is asserting any claims or
right to the Property that would otherwise delay or prevent Seller from having
clear, indefeasible and marketable title to the Property. In all other events
Seller's remedies shall be limited to those described in this Section 10.1 and
Sections 4.11, 8.6, 10.3 and 10.4 hereof.
10.2 Purchaser's Remedies. If Seller fails to perform its obligations
pursuant to this Agreement for any reason except failure by Purchaser to perform
hereunder, or if prior to Closing any one or more of Seller's representations or
warranties are breached in any material respect, Purchaser shall elect, as its
sole remedy, either to (i) terminate this Agreement by giving Seller timely
written notice of such election prior to or at Closing and recover the Earnest
Money, (ii) enforce specific performance, or (iii) waive said failure or breach
and proceed to Closing. Notwithstanding anything herein to the contrary,
Purchaser shall be deemed to have elected to terminate this Agreement if
Purchaser fails to deliver to Seller written notice of its intent to file a
claim or assert a cause of action for specific performance against Seller on or
before twenty (20) business days following the scheduled Closing Date or, having
given such notice, fails to file a lawsuit asserting such claim or cause of
action in the county in which the Property is located within three (3) months
following the scheduled Closing Date. Purchaser's remedies shall be limited to
those described in this Section 10.2 and Sections 10.3 and 10.4 hereof. If,
however, the equitable remedy of specific performance is not available,
Purchaser may seek any other right or remedy available at law or in equity;
provided, however, that in no event shall Seller's liability exceed the Earnest
Money, if it is not refunded to Purchaser), plus the lesser of (i) $75,000.00 or
(ii) the actual reasonable out-of-pocket expenses incurred by Purchaser and paid
(A) to Purchaser's attorneys in connection with the negotiation of this
Agreement and (B) to unrelated and unaffiliated third party consultants in
connection with the performance of examinations, inspections and/or
investigations pursuant to Article 4. For purposes of this provision, specific
performance shall be considered not available to Purchaser only if a court of
competent jurisdiction (or an arbitrator, as per Exhibit G) determines
conclusively that Purchaser is entitled to specific performance on the merits of
its claim but said court or arbitrator is unable to enforce specific performance
due to reasons beyond the control of the court or arbitrator. IN NO EVENT SHALL
SELLER'S DIRECT OR INDIRECT PARTNERS, SHAREHOLDERS, OWNERS OR AFFILIATES, ANY
OFFICER, DIRECTOR, EMPLOYEE OR AGENT OF THE FOREGOING, OR ANY AFFILIATE OR
CONTROLLING PERSON THEREOF HAVE ANY LIABILITY FOR ANY CLAIM, CAUSE OF ACTION OR
OTHER LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE PROPERTY,
WHETHER BASED ON CONTRACT, COMMON LAW, STATUTE, EQUITY OR OTHERWISE.
10.3 Attorneys' Fees. In the event either party hereto employs an
attorney in connection with claims by one party against the other arising from
the operation of this Agreement, the non-prevailing party shall pay the
prevailing party all reasonable fees and expenses, including attorneys' fees,
incurred in connection with such claims.
10.4 Other Expenses. If this Agreement is terminated due to the default
of a party, then the defaulting party shall pay any fees or charges due to
Escrow Agent for holding the Earnest Money as well as any escrow cancellation
fees or charges and any fees or charges due to the Title Company for preparation
and/or cancellation of the Title Commitment.
ARTICLE 11 - Disclaimers, Release and Indemnity
11.1 Disclaimers By Seller. Except as expressly set forth in this
Agreement, it is understood and agreed that Seller and Asset Manager have not at
any time made and are not now making, and they specifically disclaim, any
warranties or representations of any kind or character, express or implied, with
respect to the Property, including, but not limited to, warranties or
representations as to (i) matters of title, (ii) environmental matters relating
to the Property or any portion thereof, including, without limitation, the
presence of Hazardous Materials in, on, under or in the vicinity of the
Property, (iii) geological conditions, including, without limitation,
subsidence, subsurface conditions, water table, underground water reservoirs,
limitations regarding the withdrawal of water, and geologic faults and the
resulting damage of past and/or future faulting, (iv) whether, and to the extent
to which the Property or any portion thereof is affected by any stream (surface
or underground), body of water, wetlands, flood prone area, flood plain,
floodway or special flood hazard, (v) drainage, (vi) soil conditions, including
the existence of instability, past soil repairs, soil additions or conditions of
soil fill, or susceptibility to landslides, or the sufficiency of any
undershoring, (vii) the presence of endangered species or any environmentally
sensitive or protected areas, (viii) zoning or building entitlements to which
the Property or any portion thereof may be subject, (ix) the availability of any
utilities to the Property or any portion thereof including, without limitation,
water, sewage, gas and electric, (x) usages of adjoining property, (xi) access
to the Property or any portion thereof, (xii) the value, compliance with the
plans and specifications, size, location, age, use, design, quality,
description, suitability, structural integrity, operation, title to, or physical
or financial condition of the Property or any portion thereof, or any income,
expenses, charges, liens, encumbrances, rights or claims on or affecting or
pertaining to the Property or any part thereof, (xiii) the condition or use of
the Property or compliance of the Property with any or all past, present or
future federal, state or local ordinances, rules, regulations or laws, building,
fire or zoning ordinances, codes or other similar laws, (xiv) the existence or
non-existence of underground storage tanks, surface impoundments, or landfills,
(xv) the merchantability of the Property or fitness of the Property for any
particular purpose, (xvi) the truth, accuracy or completeness of the Property
Documents, (xvii) tax consequences, or (xviii) any other matter or thing with
respect to the Property.
11.2 Sale "As Is, Where Is." Purchaser acknowledges and agrees that
upon Closing, Seller shall sell and convey to Purchaser and Purchaser shall
accept the Property "AS IS, WHERE IS, WITH ALL FAULTS," except to the extent
expressly provided otherwise in this Agreement and any document executed by
Seller and delivered to Purchaser at Closing. Except as expressly set forth in
this Agreement, Purchaser has not relied and will not rely on, and Seller has
not made and is not liable for or bound by, any express or implied warranties,
guarantees, statements, representations or information pertaining to the
Property or relating thereto (including specifically, without limitation,
Property information packages distributed with respect to the Property) made or
furnished by Seller, the Asset Manager of the Property, or any real estate
broker, agent or third party representing or purporting to represent Seller, to
whomever made or given, directly or indirectly, orally or in writing. Purchaser
represents that it is a knowledgeable, experienced and sophisticated purchaser
of real estate and that, except as expressly set forth in this Agreement, it is
relying solely on its own expertise and that of Purchaser's consultants in
purchasing the Property and shall make an independent verification of the
accuracy of any documents and information provided by Seller. Purchaser will
conduct such inspections and investigations of the Property as Purchaser deems
necessary, including, but not limited to, the physical and environmental
conditions thereof, and shall rely upon same. By failing to terminate this
Agreement prior to the expiration of the Inspection Period, Purchaser
acknowledges that Seller has afforded Purchaser a full opportunity to conduct
such investigations of the Property as Purchaser deemed necessary to satisfy
itself as to the condition of the Property and the existence or non-existence or
curative action to be taken with respect to any Hazardous Materials on or
discharged from the Property, and will rely solely upon same and not upon any
information provided by or on behalf of Seller or its agents or employees with
respect thereto, other than such representations, warranties and covenants of
Seller as are expressly set forth in this Agreement. Upon Closing, Purchaser
shall assume the risk that adverse matters, including, but not limited to,
adverse physical or construction defects or adverse environmental, health or
safety conditions, may not have been revealed by Purchaser's inspections and
investigations.
Purchaser's Initials
11.3 Seller Released from Liability. Purchaser acknowledges that it
will have the opportunity to inspect the Property during the Inspection Period,
and during such period, observe its physical characteristics and existing
conditions and the opportunity to conduct such investigation and study on and of
the Property and adjacent areas as Purchaser deems necessary, and Purchaser
hereby FOREVER RELEASES AND DISCHARGES Seller and Asset Manager from all
responsibility and liability, including without limitation, liabilities under
the Comprehensive Environmental Response, Compensation and Liability Act Of 1980
(42 U.S.C. Sections 9601 et seq.), as amended ("CERCLA"), regarding the
condition (including the presence in the soil, air, indoor air, structures and
surface and subsurface waters, of Hazardous Materials or other materials or
substances that have been or may in the future be determined to be toxic,
hazardous, undesirable or subject to regulation and that may need to be
specially treated, handled and/or removed from the Property under current or
future federal, state and local laws, regulations or guidelines), valuation,
salability or utility of the Property, or its suitability for any purpose
whatsoever. Purchaser further hereby WAIVES (and by closing this transaction
will be deemed to have waived) any and all objections to or complaints regarding
(including, but not limited to, federal, state, municipal and common law based
actions), or any private right of action under, state and federal law to which
the Property is or may be subject, including, but not limited to, CERCLA, RCRA,
physical characteristics and existing conditions, including, without limitation,
structural and geologic conditions, subsurface soil and water conditions and
solid and hazardous waste and Hazardous Materials on, under, adjacent to or
otherwise affecting the Property. Purchaser further hereby assumes the risk of
changes in applicable laws and regulations relating to past, present and future
environmental conditions on the Property and the risk that adverse physical
characteristics and conditions, including, without limitation, the presence of
Hazardous Materials or other contaminants, may not have been revealed by its
investigation.
11.4 "Hazardous Materials" Defined. For purposes hereof, "Hazardous
Materials" means "Hazardous Material," "Hazardous Substance," "Pollutant or
Contaminant," and "Petroleum" and "Natural Gas Liquids," as those terms are
defined or used in Section 101 of CERCLA, and any other substances regulated
because of their effect or potential effect on public health and the
environment, including, without limitation, PCBs, lead paint, asbestos, urea
formaldehyde, radioactive materials, putrescible, and infectious materials.
11.5 [Iintentionally Omitted]
11.6 Survival. The terms and conditions of this Article 11 shall
expressly survive the Closing, not merge with the provisions of any closing
documents and shall be incorporated into the Deed.
Purchaser acknowledges and agrees that the disclaimers and other
agreements set forth herein are an integral part of this Agreement and that
Seller would not have agreed to sell the Property to Purchaser for the Purchase
Price without the disclaimers and other agreements set forth above.
ARTICLE 12 - Miscellaneous
12.1 Parties Bound; Assignment. This Agreement, and the terms,
covenants, and conditions herein contained, shall inure to the benefit of and be
binding upon the heirs, personal representatives, successors, and assigns of
each of the parties hereto. Purchaser may assign its rights under this Agreement
upon the following conditions: (i) the Assignee of Purchaser must be an
affiliate of Purchaser or an entity controlling, controlled by, or under common
control with Purchaser, (ii) all of the Earnest Money must have been delivered
in accordance herewith, (iii) the Inspection Period shall be deemed to have
ended, (iv) the assignee of Purchaser shall assume all obligations of Purchaser
hereunder, but Purchaser shall remain primarily liable for the performance of
Purchaser's obligations, and (v) a copy of the fully executed written assignment
and assumption agreement shall be delivered to Seller at least ten (10) days
prior to Closing.
12.2 Headings. The article, section, subsection, paragraph and/or other
headings of this Agreement are for convenience only and in no way limit or
enlarge the scope or meaning of the language hereof.
12.3 Invalidity and Waiver. If any portion of this Agreement is held
invalid or inoperative, then so far as is reasonable and possible the remainder
of this Agreement shall be deemed valid and operative, and, to the greatest
extent legally possible, effect shall be given to the intent manifested by the
portion held invalid or inoperative. The failure by either party to enforce
against the other any term or provision of this Agreement shall not be deemed to
be a waiver of such party's right to enforce against the other party the same or
any other such term or provision in the future.
12.4 Governing Law. This Agreement shall, in all respects, be governed,
construed, applied, and enforced in accordance with the law of the state in
which the Real Property is located.
12.5 Survival. The provisions of this Agreement that contemplate
performance after the Closing and the obligations of the parties not fully
performed at the Closing shall survive the Closing and shall not be deemed to be
merged into or waived by the instruments of Closing.
12.6 Entirety and Amendments. This Agreement embodies the entire
agreement between the parties and supersedes all prior agreements and
understandings relating to the Property. This Agreement may be amended or
supplemented only by an instrument in writing executed by the party against whom
enforcement is sought.
12.7 Time. Time is of the essence in the performance of this Agreement.
12.8 Confidentiality. Purchaser shall make no public announcement or
disclosure of any information related to this Agreement to outside brokers or
third parties without the prior written specific consent of Seller; provided,
however, that Purchaser may, subject to the provisions of Section 4.8, make
disclosure of this Agreement to its Permitted Outside Parties as necessary to
perform its obligations hereunder and as may be required under laws or
regulations applicable to Purchaser.
12.9 Notices. All notices required or permitted hereunder shall be in
writing and shall be served on the parties at the addresses set forth in Section
1.3. Any such notices shall, unless otherwise provided herein, be given or
served (i) by depositing the same in the United States mail, postage paid,
certified and addressed to the party to be notified, with return receipt
requested, (ii) by overnight delivery using a nationally recognized overnight
courier, (iii) by personal delivery, or (iv) by facsimile, evidenced by
confirmed receipt. Notice deposited in the mail in the manner hereinabove
described shall be effective on the third (3rd) business day after such deposit.
Notice given in any other manner shall be effective only if and when received by
the party to be notified between the hours of 8:00 a.m. and 5:00 p.m. of any
business day with delivery made after such hours to be deemed received the
following business day. A party's address may be changed by written notice to
the other party; provided, however, that no notice of a change of address shall
be effective until actual receipt of such notice. Copies of notices are for
informational purposes only, and a failure to give or receive copies of any
notice shall not be deemed a failure to give notice. Notices given by counsel to
the Purchaser shall be deemed given by Purchaser and notices given by counsel to
the Seller shall be deemed given by Seller.
12.10 Construction. The parties acknowledge that the parties and their
counsel have reviewed and revised this Agreement and agree that the normal rule
of construction - to the effect that any ambiguities are to be resolved against
the drafting party shall not be employed in the interpretation of this Agreement
or any exhibits or amendments hereto.
12.11 Calculation of Time Periods. Unless otherwise specified, in
computing any period of time described herein, the day of the act or event after
which the designated period of time begins to run is not to be included and the
last day of the period so computed is to be included, unless such last day is a
Saturday, Sunday or legal holiday for national banks in the location where the
Property is located, in which event the period shall run until the end of the
next day which is neither a Saturday, Sunday, or legal holiday. The last day of
any period of time described herein shall be deemed to end at 5:00 p.m. local
time in the state in which the Real Property is located.
12.12 Execution in Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original, and all
of such counterparts shall constitute one Agreement. To facilitate execution of
this Agreement, the parties may execute and exchange by telephone facsimile
counterparts of the signature pages, provided that executed originals thereof
are forwarded to the other party on the same day by any of the delivery methods
set forth in Section 12.9 other than facsimile.
12.13 No Recordation. Without the prior written consent of Seller,
there shall be no recordation of either this Agreement or any memorandum hereof,
or any affidavit pertaining hereto, and any such recordation of this Agreement
or memorandum or affidavit by Purchaser without the prior written consent of
Seller shall constitute a default hereunder by Purchaser, whereupon Seller shall
have the remedies set forth in Section 10.1 hereof.
12.14 Further Assurances. In addition to the acts and deeds recited
herein and contemplated to be performed, executed and/or delivered by either
party at Closing, each party agrees to perform, execute and deliver, but without
any obligation to incur any additional liability or expense, on or after the
Closing any further deliveries and assurances as may be reasonably necessary to
consummate the transactions contemplated hereby or to further perfect the
conveyance, transfer and assignment of the Property to Purchaser.
12.15 Discharge of Obligations. The acceptance of the Deed by Purchaser
shall be deemed to be a full performance and discharge of every representation
and warranty made by Seller herein and every agreement and obligation on the
part of Seller to be performed pursuant to the provisions of this Agreement,
except those which are herein specifically stated to survive Closing.
12.16 ERISA. Under no circumstances shall Purchaser have the right to
assign this Agreement to any person or entity owned or controlled by an employee
benefit plan if Seller's sale of the Property to such person or entity would, in
the reasonable opinion of Seller's ERISA advisors or consultants, create or
otherwise cause a "prohibited transaction" under ERISA. In the event Purchaser
assigns this Agreement or transfers any ownership interest in Purchaser, and
such assignment or transfer would make the consummation of the transaction
hereunder a "prohibited transaction" under ERISA and necessitate the termination
of this Agreement then, notwithstanding any contrary provision which may be
contained herein, Seller shall have the right to terminate this Agreement.
12.17 No Third Party Beneficiary. The provisions of this Agreement and
of the documents to be executed and delivered at Closing are and will be for the
benefit of Seller, Asset Manager and Purchaser only and are not for the benefit
of any third party (other than Asset Manager), and accordingly, no third party
(other than Asset Manager) shall have the right to enforce the provisions of
this Agreement or of the documents to be executed and delivered at Closing,
except that a tenant of the Property may enforce Purchaser's indemnity
obligation under Section 4.11 hereof.
12.18 Asset Manager: Designated Representative. Seller has engaged
Archon Group, L.P. or affiliated companies ("Asset Manager") to provide certain
asset management services with respect to the Property, including acting as a
liaison between Seller and Purchaser in connection with the Property and this
Agreement. The Asset Manager will appoint one or more representatives
("Designated Representative(s)") to deal with Purchaser. Whenever any approval,
acceptance, consent, direction or action of Seller is required pursuant to this
Agreement, Purchaser shall send to the Designated Representative a written
notice requesting same, which notice shall: (i) describe in detail the matter
for which such approval, acceptance, consent, direction or other action of
Seller is requested; (ii) be accompanied by a copy of any contract, agreement or
other document to be executed by Seller evidencing such approval, consent,
acceptance, direction or action of Seller; and (iii) be accompanied by such
other documents, written explanations and information as may be reasonably
necessary to explain the request fully and completely. The Asset Manager will
communicate Seller's response to any such requests to Purchaser.
12.19 Mandatory Arbitration. The parties have agreed to submit certain
disputes to mandatory arbitration in accordance with the provisions of Exhibit G
attached hereto and made a part hereof for all purposes.
12.20 Termination Reimbursement. Notwithstanding anything herein to the
contrary, in all events where the Earnest Money is to be returned to Purchaser,
other than in case of (i) Seller's default and failure to close hereunder or
(ii) failure of Seller to obtain from Seller's Lender the release of the One
Acre Portion as contemplated by Section 6.4, or (iii) failure of Seller to be
ready, willing and able to deliver marketable title to the Property (subject to
the Permitted Exceptions) to Purchaser in accordance with this Agreement, a
portion of the Earnest Money equal to the sum of all costs and expenses incurred
by Seller from and after December 19, 1998 in connection with the prospective
development of the Property, including without limitation those costs and
expenses listed on Exhibit H attached hereto, to the extent said costs were
incurred on or after December 19, 1998, and additional costs and expenses
incurred subsequent to the date through which the actual costs listed on Exhibit
H are current (collectively, the "Termination Reimbursement"), shall be
delivered to Seller as reimbursement to Seller, Purchaser having agreed to
reimburse Seller for all such costs incurred from and after December 19, 1998,
regardless of whether Purchaser closes on the transaction, as consideration to
Seller for entering into this Agreement. If the amount of the Termination
Reimbursement exceeds the Earnest Money, then the entire Earnest Money shall be
delivered to Seller and Purchaser shall immediately pay to Seller the remainder
of the Termination Reimbursement, which obligation shall survive the termination
of this Agreement.
12.21. Further Assurances. Notwithstanding anything hereto to the
contrary, Seller agrees that if Purchaser reasonably determines that other
permits and approvals are required for the development of the Property in
accordance with existing permits and approvals and otherwise as currently
contemplated, Seller will take no action adverse to the interests of Purchaser
with respect to any such proceeding and will cooperate with Purchaser in all
reasonable respects in connection with any such proceeding, but Seller shall not
be obligated to incur any liability or material expense in connection therewith.
This Section 12.21 shall survive the Closing for a period of one (1) year.
12.22. W9/TIB. It is acknowledged that W9/TIB Real Estate Limited
Partnership, a Delaware limited partnership ("W9/TIB"), a related entity to
Seller, is the current owner of the 5 Omni Way Parcel (of which the One Acre
Portion is a part) and the 2 Omni Way Building. For purposes of Sections 6.4,
6.5, 6.6 and 12.23 hereof, and with respect to any expressed covenant on the
part of Seller that pertains to the 5 Omni Way Parcel and/or the 2 Omni Way
Building, Seller agrees to cause W9/TIB to perform or to cooperate with Seller
in permitting Seller to perform said covenants. Without limiting the generality
of the foregoing, and subject to the provisions of Section 6.4, Seller intends
to have W9/TIB convey the One Acre Portion to Seller prior to Closing.
12.23 Telecommunication Easement. Seller agrees that at any time within
twelve (12) months after the Closing (the "Telecommunications Easement Period"),
if requested by Purchaser in writing and subject to the conditions set forth
below, Seller shall grant a non-exclusive easement (the "Telecommuncations
Easement") for the installation of telecommuncations equipment over and across
the 5 Omni Way Parcel and connecting the 2 Omni Way Building to the Property.
Additionally, if at the time the Telecommunications Easement is executed
Purchaser, as tenant, has entered into a binding, written lease of the building
located at 4 Omni Way, Chelmsford, Massachusetts (the "4 Omni Way Building"),
then at Purchaser's written request the Telecommunications Easement shall also
serve to connect the 4 Omni Way Building to the Property. The Telecommunications
Easement shall survive only for so long as Purchaser remains a tenant of the 2
Omni Way Building or the 4 Omni Way Building. Seller and Purchaser agree that
the form of written instrument evidencing the Telecommunications Easement shall
be in a form which is usual and customary for easements of this type (subject to
each party's reasonable approval and subject to the requirements of this Section
12.23) and further agree to negotiate in good faith in order to reach a mutually
acceptable form of Telecommunications Easement instrument. Additionally, the
location of the Telecommunications Easement across the 5 Omni Way Parcel shall
be as directed by Seller, at Seller's sole but reasonable discretion. Final
approval of the Telecommunications Easement is and shall be conditioned on the
current tenant of the 5 Omni Way Parcel, Sun Microsystems, and Seller's Lender
each consenting in writing to the Telecommunications Easement. Seller shall use
reasonable efforts to cause Sun Microsystems and Seller's Lender each to consent
in writing to the Telecommunications Easement as soon as reasonably possible
after Seller and Purchaser have agreed on the form and location of the
Telecommunications Easement, but Seller shall not be obligated to incur any
material cost or expense whatsoever in connection therewith. All costs
associated with the installation of any telecommunications equipment and the
perpetual maintenance thereof shall be borne solely by Purchaser, and Purchaser
shall indemnify Seller from and against any and all claims, demands,
liabilities, causes of action, suits, judgments, damages and expenses (including
attorneys' fees) arising from the Telecommunications Easement. Only
telecommunications equipment that is normal and customary for communications
between buildings such as the office building contemplated to be built on the
Land, the existing 2 Omni Way Building and the existing 4 Omni Way Building, and
otherwise acceptable to Seller, in Seller's reasonable discretion, shall be
permitted. If for any reason the Closing does not occur or Purchaser does not
request the Telecommunications Easement in writing prior to the expiration of
the Telecommunications Easement Period, or if Purchaser does request the
Telecommunications Easement during the Telecommunications Easement Period but
thereafter the condtions to Seller's obligations under this Section 12.23 are
not satisfied, then Seller's obligation to grant the Telecommunications Easement
shall forever terminate and be of no further force or effect. The agreements set
forth in this Section 12.23 shall survive the Closing.
SIGNATURE PAGE TO AGREEMENT OF
PURCHASE AND SALE
BY AND BETWEEN
W9/TIB-L REAL ESTATE LIMITED PARTNERSHIP
AND
KRONOS INCORPORATED
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year written below.
SELLER: W9/TIB-L Real Estate Limited Partnership,
a Delaware limited partnership
By: W9/TIB-L, Gen-Par,Inc., a Delaware corporation,
General Partner
Date executed by Seller: By:/s/ S.M. Abelman
March 29, 1999 Name: Stephen M. Abelman
Title: Assistant Vice President
PURCHASER:
Kronos Incorporated, a Massachusetts corporation
Date executed by Purchaser: By:/s/ Lloyd B. Bussell
March 19, 1999 Name: Lloyd B. Bussell
Title: Vice President, Manufacturing
JOINDER BY ESCROW AGENT
Escrow Agent has executed this Agreement in order to confirm that Escrow Agent
has received and shall hold the Initial Earnest Money required to be deposited
under this Agreement and the interest earned thereto, in escrow, and shall
disburse the Earnest Money, and the interest earned thereon, pursuant to the
provisions of this Agreement.
Chicago Title Insurance Company,
a ______________________________
Date executed by Escrow Agent: By:/s/ Sharon A. Sbordon
Name: Sharon A. Sbordon
Title: Escrow Officer
LIST OF EXHIBITS
A - Legal Description of Real Property
B - Bill of Sale, Assignment and Assumption of Leases and Contracts
C - ERISA Letter
D - Contract Rights, Permits and Approvals
E - Form of Deed
F-1 - Site Plan of Drainage Easement
F-2 - Form of Drainage Easement
G - Mandatory Arbitration
H - Development Costs and Expenses
Agreement of Purchase and Sale - (Kronos Building, Boston, Massachusetts)
EXHIBIT A
LEGAL DESCRIPTION
[see attached]
4
Agreement of Purchase and Sale - (Kronos Building, Boston, Massachusetts)
EXHIBIT B
BILL OF SALE, ASSIGNMENT AND ASSUMPTION
(name of property)
THIS BILL OF SALE, ASSIGNMENT AND ASSUMPTION is made as of the _____
day of __________________, by and between ______________ REAL ESTATE LIMITED
PARTNERSHIP, a Delaware limited partnership ("Assignor"), and _______________, a
____________ ("Assignee").
W I T N E S S E T H:
For good and valuable consideration, receipt and sufficiency of which
are hereby acknowledged Assignor hereby agree as follows:
1. Assignor hereby sells, transfers, assigns and conveys to Assignee
the following:
a. All right, title and interest of Assignor in and to all
tangible personal property ("Personalty") set forth in the inventory on Exhibit
A attached hereto and made a part hereof, and located on, and used in connection
with the management, maintenance or operation of that certain land and
improvements located in the County of __________, State of ____________, as more
particularly described in Exhibit B attached hereto and made a part hereof
("Real Property"), but excluding tangible personal property owned or leased by
Assignor's property manager.
b. To the extent assignable, all right, title and interest of
Assignor in and to any and all warranties, guaranties, indemnities and claims
(including, without limitation, for workmanship, materials and performance), if
any, which exist or may hereafter exist against any contractor, subcontractor,
manufacturer or supplier or laborer, along with any plans and specifications and
other architectural and engineering drawings for the Real Property, permits and
approvals or development rights for the development of additional improvements
or associated with the existing improvements, including, without limitation,
those set forth on Exhibit D attached hereto and made a part hereof,
(collectively, the "Contracts").
2. This Bill of Sale, Assignment and Assumption is given pursuant to
that certain Agreement of Sale and Purchase (as amended, the "Purchase Agreement
") dated as of _____________, between Assignor and Assignee, providing for,
among other things, the conveyance of the Personalty, the Tenant Leases and the
Contracts.
3. As set forth in Article 11 of the Purchase Agreement, which is
hereby incorporated by reference as if herein set out in full and except as set
forth herein, the property conveyed hereunder is conveyed by Assignor and
accepted by Assignee AS IS, WHERE IS, AND WITHOUT ANY WARRANTIES OF WHATSOEVER
NATURE, EXPRESS OR IMPLIED, EXCEPT AS EXPRESSLY SET FORTH IN THE PURCHASE
AGREEMENT, IT BEING THE INTENTION OF ASSIGNOR AND ASSIGNEE EXPRESSLY TO NEGATE
AND EXCLUDE ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE, WARRANTIES
CREATED BY ANY AFFIRMATION OF FACT OR PROMISE OR BY ANY DESCRIPTION OF THE
PROPERTY CONVEYED HEREUNDER, OR BY ANY SAMPLE OR MODEL THEREOF, AND ALL OTHER
WARRANTIES WHATSOEVER CONTAINED IN OR CREATED BY THE ___________ UNIFORM
COMMERCIAL CODE.
4. Assignee hereby accepts the assignment of the Personalty, the Tenant
Leases and the Contracts and agrees to assume and discharge, in accordance with
the terms thereof, all of the obligations thereunder from and after the date
hereof. Additionally, but without limiting the generality of the foregoing,
Assignee agrees to assume and discharge all leasing commissions, costs for
tenant improvements, legal fees and other costs and expenses incurred with
respect to Leases and Lease renewals and extensions executed subsequent to the
Effective Date of the Agreement and those set forth on Exhibit E attached
hereto.
5. Assignee agrees to indemnify and hold harmless Assignor from any
cost, liability, damage or expense (including attorneys' fees) arising out of or
relating to Assignee's failure to perform any of the foregoing obligations
arising from and accruing on or after the date hereof.
6. Assignor agrees to indemnify and hold harmless Assignee from any
cost, liability, damage or expense (including attorneys' fees) arising out of or
relating to Assignor's failure to perform any of the obligations of Assignor
under the Tenant Leases or Contracts, to the extent accruing prior to the date
hereof.
7. This Bill of Sale, Assignment and Assumption may be executed in any
number of counterparts, each of which shall be deemed an original, but all of
which shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Bill
of Sale, Assignment and Assumption as of the date first above written.
ASSIGNOR:
__________ REAL ESTATE LIMITED PARTNERSHIP,
a Delaware limited partnership
By: ____________ Gen-Par, Inc.,
a Delaware corporation,
its general partner
By:
Name:
Title:
ASSIGNEE:
-------------------------,
a _______________________
By:
Name:
Title:
[INSERT APPROPRIATE ACKNOWLEDGMENTS FOR THE STATE]
Exhibit A Personalty
Exhibit B Real Property
Exhibit C Tenant Leases
Exhibit D Contracts
Exhibit E Lease Costs and Expenses
[PG NUMBER]
Agreement of Purchase and Sale - (Kronos Building, Boston, Massachusetts)
EXHIBIT C
ERISA LETTER
____________________, 199__
______________ Real Estate Limited Partnership
Re: Acquisition of [Property] in [City, State]
Ladies and Gentlemen:
The undersigned represents to you that [Purchaser], or any affiliates
thereof, or any firm, person or entity providing financing for the purchase of
the entire interest of _______________ Real Estate Limited Partnership in the
above-described property (the "Property") are not using the assets of an
employee benefit plan as defined in Section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA") and covered under Title I,
Part 4 of the ERISA or Section 4975 of the Internal Revenue Code of 1986, as
amended, in the performance or discharge of its obligations under that certain
Agreement of Purchase and Sale dated __________________, 199__, with respect to
the Property by and between _______________ Real Estate Limited Partnership, as
Seller, and the undersigned, as Purchaser, including the acquisition of the
Property.
Very truly yours,
,
a
By:
Name:
Title:
9
Agreement of Purchase and Sale - (Kronos Building, Boston, Massachusetts)
EXHIBIT D
LIST OF CONTRACT RIGHTS, PERMITS AND APPROVALS
[see attached]
EXHIBIT E
FORM OF DEED
COMMONWEALTH OF MASSACHUSETTS ss.
ss.
COUNTY OF ss.
W9/TIB-L REAL ESTATE LIMITED PARTNERSHIP, a Delaware limited
partnership having its usual place of business at c/o Archon Group, L.P., 600
Las Colinas Boulevard, Suite 1900, Irving, Texas 75039 ("Grantor"), for
consideration paid, and in full consideration of the sum of Dollars ($ ) grants
to , a ("Grantee"), whose address is , with QUITCLAIM COVENANTS, all of that
certain real property in County, Massachusetts, as more particularly described
on Exhibit A attached hereto and made a part hereof for all purposes, subject
to, however, and with the benefit of, all rights, agreements, easements,
reservations and restrictions of record, insofar as the same are or may be in
force and enforceable, along with the rights of tenants in possession pursuant
to unrecorded leases and to the lien of real property taxes for fiscal year 1999
(i.e., the taxes assessed as of January 1, 1998) and subsequent years to the
extent not yet due and payable, which taxes Grantee, by acceptance and recording
of this Deed, assumes and agrees to pay.
IN WITNESS WHEREOF, the said Grantor has caused these presents to be
signed, acknowledged and delivered in its name and behalf by , Assistant Vice
President of , Inc., its general partner hereto duly authorized, this day of ,
1999 and signed in the presence of:
Name:
GRANTOR:
W9/TIB-L REAL ESTATE LIMITED
PARTNERSHIP,
a Delaware limited partnership
By: , Inc.,
a Delaware corporation,
General Partner
By:
Name:
Title:
THE STATE OF ___________ ss.
ss.
COUNTY OF ___________ ss.
Then personally appeared before me ,the __________________________ of ,
Inc., a Delaware corporation, in its capacity as managing general partner of
W9/TIB-L Real Estate Limited Partnership, a Delaware limited partnership, and
acknowledged that he/she executed the foregoing instrument as the of , Inc., a
Delaware corporation, on behalf of said corporation, in its capacity as managing
general partner of W9/TIB-L Real Estate Limited Partnership, a Delaware limited
partnership, and further acknowledged the foregoing instrument to be his/her
free act and deed and the free act and deed of , Inc., a Delaware corporation,
in its capacity as managing general partner of W9/TIB-L Real Estate Limited
Partnership, a Delaware limited partnership.
Notary Public in and for the State of
{PERSONALIZED SEAL} Print Name of Notary:
My Commission Expires:
____________________________ 19___________
at ____________ o'clock and _______ minutes ___.m.
Received and entered with _______________________
__________________________________________ Deeds
Book _______________, Page ______________
Attest:
- --------------------------------------
Register
RETURN TO:
__________________
EXHIBIT F-1
SITE PLAN OF DRAINAGE EASEMENT
[see attached]
EXHIBIT F-2
FORM OF DRAINAGE EASEMENT
[see attached]
EXHIBIT G
MANDATORY ARBITRATION
The parties have agreed to submit certain disputes to mandatory arbitration in
accordance with the following provisions:
Scope of Arbitration. The parties to this Agreement have agreed to
submit all disputes with an amount in controversy of $250,000.00 or less to
final and binding arbitration as the sole and exclusive remedy for all claims
for damages arising out of, involving, or relating to (a) this Agreement or (b)
the events giving rise to this Agreement, including all non-contractual claims
for damages related to this Agreement or the events giving rise to it (including
claims for fraudulent inducement of contract). Notwithstanding the foregoing,
the dispute resolution procedure set forth below shall not apply to (i) claims
for injunctive or other equitable relief, or (ii) any claims for damages
exceeding $250,000.00. The parties agree that two (2) sets of rules will apply,
depending on the amount in controversy. If the amount in controversy is equal to
or less than $50,000.00, then SET A (as set forth below) will apply. If the
amount in controversy is greater than $50,000.00 and less than or equal to
$250,000.00, then SET B will apply. The amount in controversy is calculated
using the amount of actual damages alleged by the Claiming Party (defined
below), exclusive of interest and attorneys' fees. The dispute resolution
procedure set forth below does not independently give rise to any right or
remedy. The procedure is intended to be applied to rights or remedies expressly
granted in other sections of this Agreement.
Notice of Dispute. Any party shall give the other parties written
notice of the existence and nature of any dispute proposed to be arbitrated (the
"Written Notice"). The Written Notice must be served on the other parties as
required below. The party serving Written Notice shall be referred to as the
"Claiming Party." The party to whom the claims are directed shall be referred to
as the "Responding Party."
Appointment of Arbitrators.
SET A: The parties agree that these disputes will be
arbitrated by a single arbitrator who is a board certified or licensed real
estate attorney in the state in which the Property is located. The parties shall
attempt to agree upon an arbitrator within ten (10) days of the service of the
Written Notice. If the parties are unable to agree, then the arbitrator shall be
appointed from, and pursuant to the rules for commercial arbitration of, the
American Arbitration Association. Prior to appointment, the arbitrator shall
agree to conduct such arbitration in strict accordance with the terms of this
Agreement.
SET B: The parties agree that these disputes will be
arbitrated by a panel of three (3) arbitrators. Each party shall appoint one
person to serve as an arbitrator within fifteen (15) days of receipt of the
Written Notice. The two (2) arbitrators thus appointed shall within seven (7)
days of their appointment together select a third arbitrator with such knowledge
and expertise as necessary to serve as chairman of the panel of arbitrators
(preferably a board certified or licensed real estate attorney in the state in
which the Property is located), and this person shall serve as chairman. The
three arbitrators shall determine all matters, including the panel's final
decision with respect to the claims presented in the arbitration, by majority
vote. If the two arbitrators selected by the parties are unable to agree upon
the appointment of the third arbitrator within seven (7) days of their
appointment, both shall give written notice of such failure to agree to the
parties, and if the parties fail to agree upon the selection of such third
arbitrator within five (5) days thereafter, such third arbitrator shall be
appointed from, and pursuant to the rules for commercial arbitration of, the
American Arbitration Association. Prior to appointment, each arbitrator shall
agree to conduct such arbitration in strict accordance with the terms of this
Agreement.
Initial Meeting of the Arbitrators. Within seven (7) days after the
selection of the last arbitrator (SET A: the arbitrator; SET B: the third
arbitrator), the arbitrator(s) shall conduct an initial meeting with the parties
(the "Initial Meeting"). All meetings between the arbitrators, or between the
arbitrator(s) and the parties, including the Initial Meeting, may be conducted
by telephone, with the exception of the arbitration hearing at which evidence is
presented. At the Initial Meeting, the parties and the arbitrator(s) shall agree
upon a schedule for the arbitration proceedings, with dates no later than the
deadlines provided below. The statement of claim, the response to the statement
of claim and counterclaims (if any), and the response to the counterclaims (if
any) (collectively, the "Pleadings") shall be submitted to each arbitrator on
the date they are served, unless service occurs prior to appointment of all
arbitrators. If service of any of the Pleadings occurs prior to the appointment
of any of the arbitrators, copies of any such Pleadings shall be submitted to
such arbitrator promptly after such arbitrator's appointment.
Conduct of the Arbitration.
SET A: With respect to each dispute to be arbitrated, no more
than six (6) months shall pass between the selection of the arbitrator and the
release of a decision by the arbitrator; no more than two (2) depositions
(lasting in total for both depositions no more than 15 hours) may be taken by
each of the Claiming Party or the Responding Party, and no more than ten (10)
interrogatories may be asked for by each of the Claiming Party or the Responding
Party. The arbitration hearing shall last no more than two (2) days with the
time divided equally between the parties. All proceedings, including discovery,
depositions, and the arbitration hearings shall be governed by the Federal Rules
of Civil Procedure and the Local Rules of Civil Procedure of the United States
District Court for the district in which the Property is located, unless such
rules conflict with the provisions of this Agreement, in which case the
provisions of this Agreement control; provided, however, that the parties agree
that the provisions of Federal Rule of Civil Procedure 26(a) shall not apply.
SET B: With respect to each dispute to be arbitrated, no more
than eleven (11) months shall pass between the selection of the third arbitrator
and the release of a decision by the arbitration panel; no more than eight (8)
depositions (lasting in total for all eight depositions no more than 50 hours)
may be taken by each of the Claiming Party or the Responding Party, and no more
than thirty (30) interrogatories may be asked for by each of the Claiming Party
or the Responding Party. The arbitration hearing shall last no more than five
(5) days with the time divided equally between the parties. All proceedings,
including discovery, depositions, and the arbitration hearings shall be governed
by the Federal Rules of Civil Procedure and the Local Rules of Civil Procedure
of the United States District Court for the district in which the Property is
located, unless such rules conflict with the provisions of this Agreement, in
which case the provisions of this Agreement control; provided, however, that the
parties agree that the provisions of Federal Rule of Civil Procedure 26(a) shall
not apply.
Motions. The parties may make applications to the panel of
arbitrator(s) regarding issues of discovery, procedure and privilege. Any such
motions shall be made to and resolved by the arbitrator(s) as soon as
practicable. No party shall be permitted to file any motions for dismissal of
claims (including dismissal based upon failure to join an indispensable party),
or for summary judgment, concerning the claims or counterclaims asserted in any
arbitration.
Schedule of Arbitration Proceedings.
SET A: At the Initial Meeting, the parties and the
arbitrator shall agree to a schedule that conforms with the
following deadlines:
Event Deadline Not Later Than
Service of statement of claim by Claiming Party 15 days after service of Written Notice
Service of response to statement of claim and 21 days after service of statement of claim
counterclaims, if any, by Responding Party
Service of response to counterclaims, if any, by 7 days after service of counterclaims, if any
the Claiming Party
Commencement of document discovery 1 day after service of response to statement of claim
Commencement of deposition discovery 45 days after service of statement of claim
Completion of all discovery 100 days after service of statement of claim
Commencement of the arbitration hearing 21 days after the completion of discovery
Issuance of decision by the arbitrator(s) 14 days after receipt of the last hearing transcript
by the arbitrator(s). [All sessions of the arbitration
hearings shall be promptly transcribed and transcripts
shall be promptly provided to the parties and the
arbitrator(s).]
SET B: At the Initial Meeting, the parties and the arbitrators shall agree to a schedule that conforms with the
following deadlines:
Event Deadline Not Later Than
Service of statement of claim by Claiming Party 15 days after service of Written Notice
Service of response to statement of claim and 21 days after service of statement of claim
counterclaims, if any, by Responding Party
Service of response to counterclaims, if any, by 7 days after service of counterclaims, if any
the Claiming Party
Commencement of document discovery 1 day after service of response to statement of claim
Commencement of deposition discovery 75 days after service of statement of claim
Completion of all discovery 200 days after service of statement of claim
Commencement of the arbitration hearing 30 days after the completion of discovery
Issuance of decision by the arbitrator(s) 14 days after receipt of the last hearing transcript
by the arbitrator(s). [All sessions of the arbitration
hearings shall be promptly transcribed and transcripts
shall be promptly provided to the parties and the
arbitrator(s).]
Extensions of Time. The parties may jointly agree, in writing, to extend any
of the foregoing deadlines.
Decision Binding on the Parties. Unless the parties agree otherwise in
writing, the arbitrator(s)' decision shall become binding on the parties at such
time as the decision is confirmed by order of a court in the jurisdiction where
the Property is located. The parties irrevocably and unconditionally submit to
the jurisdiction of such court for any and all proceedings relating to such
confirmation. Any award ordered shall be paid within ten (10) days of
confirmation of the arbitrator(s)' decision.
Cost of Arbitration Proceeding. Except as specifically provided, the
costs incurred by the parties in conjunction with an arbitration proceeding
pursuant to this Agreement, including reasonable attorney's fees, fees paid to
experts, and fees for obtaining transcripts shall be paid or reimbursed in
accordance with the provisions of Section 10.3 of the Agreement. In the event
that the arbitrators determine that no party is entitled to indemnification by
any other party, then (a) each party shall pay its own expenses, including
attorney's fees, fees paid to experts, fees for obtaining transcripts, expenses
of witnesses called solely by that party, and all fees charged by the arbitrator
appointed by such party and (b) the parties shall each pay fifty percent of all
remaining expenses of the arbitration proceeding.
Service of Documents. Any process, notice, memorandum, motion, demand,
or other paper or communication, or application to the panel of arbitrators
shall be deemed to have been sufficiently served or submitted if done in
accordance with Section 12.9 of this Agreement, except that service by facsimile
shall not suffice for purposes of this Exhibit G.
1
Agreement of Purchase and Sale - (Kronos Building, Boston, Massachusetts)
EXHIBIT H
EXHIBIT H
297 Billerica Rd.
Category Spent/Date Vendor
Sitework $19,492.98 G. Conway
Subtotal $19,492.98
Architect & Engineer $665.56 Rimmer Environmental
$2,790.00 ENSR
$2,172.03 Elkus Manfredi Architects
$26,182.95 Vanasse & Associates, Inc.
$222,777.72 Spagnolo/Gisness &
Associates, Inc.
$129,110.29 Daylor Consulting Group,
Inc.
Subtotal $383,698.55
Testing $7,716.18 McPhail & Associates
Subtotal $7,716.18
Construction Management Fee $186,070.50 Trammell Crow Company
Subtotal $186,070.50
Legal/Closing $60,754.60 Riemer & Braunstein
Subtotal $60,754.60
Drainage Easement Legal $1,555.85 Choate, Hall, Stewart &
Stevenson
Subtotal $1,555.85
Utility Design and Permit $3,600.00 Massachusetts Electric
$172.00
$1,836.00
Subtotal $5,608.00
Total Costs-to-Date $664,896.66