EXHIBIT 10.1
REAL ESTATE PURCHASE AND SALE AGREEMENT
BETWEEN
GSI GROUP CORPORATION
(AS SELLER)
AND
SAGE AGGREGATION, LLC
(AS PURCHASER)
CONCERNING CERTAIN PROPERTY LOCATED AT
8401 JEFFERSON HIGHWAY, MAPLE GROVE, MINNESOTA
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TABLE OF CONTENTS
PAGE
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Schedules and Exhibits
Schedule 1.1 - Defined Terms
Schedule 3.1 - Deposit Escrow Provisions
Schedule 5.1 - Seller Deliveries
Exhibit A - Land
Exhibit B - Form of Tenant Estoppel
Exhibit C - Lease Related Disclosures
Exhibit D - Exceptions to Seller Representations
Exhibit E - Form of Deed
Exhibit F - (Reserved)
Exhibit G - Form of Assignment and Assumption
Exhibit H - Form of Updated Representation Certificate
REAL ESTATE PURCHASE AND SALE AGREEMENT
THIS REAL ESTATE PURCHASE AND SALE AGREEMENT (this "Agreement") is entered
into as of the Effective Date (defined below) by and between GSI Group
Corporation, a Michigan Corporation (the "Seller"), and SAgE Aggregation, LLC, a
Delaware limited liability company (the "Purchaser"), and is joined in by the
Title Company (defined below) in accordance with Schedule 3.1.
In consideration of the mutual promises hereinafter set forth and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.1 DEFINITIONS. For purposes of this Agreement, capitalized terms
not otherwise defined herein have the meaning set forth in Schedule 1.1.
ARTICLE 2
AGREEMENT; PURCHASE PRICE; CLOSING DATE
SECTION 2.1. AGREEMENT TO SELL AND PURCHASE. Subject to the terms and
provisions hereof, Seller agrees to sell the Property to Purchaser, and
Purchaser agrees to purchase the Property from Seller. The Property is located
at 8401 Jefferson Highway, Maple Grove, Minnesota.
SECTION 2.2. PURCHASE PRICE. The Purchase Price for the Property shall be
Six Million Two Hundred Fifty Thousand Dollars ($6,250,000). Subject to the
adjustments and apportionments as hereinafter set forth, the Purchase Price
shall be paid on the Closing Date by wire transfer of immediately available
federal funds.
SECTION 2.3. CLOSING DATE. The transaction contemplated hereby shall close
on the Closing Date, subject to extension as provided herein.
ARTICLE 3
DEPOSIT
SECTION 3.1. DEPOSIT. No later than the third Business Day following the
Effective Date, Purchaser shall deposit Fifty Thousand Dollars ($50,000) with
the Title Company. No later than the third Business Day immediately following
the end of the Study Period, unless this Agreement terminates in accordance with
Section 5.2 below, Purchaser shall deposit an additional Fifty Thousand Dollars
($50,000) with the Title Company. All deposits made pursuant to this Section
3.1, together with all interest and earnings thereon, are referred to
collectively in this Agreement as the "Deposit." The Deposit shall be held in a
segregated account in accordance with the provisions of Schedule 3.1 hereto. The
Deposit shall be applied to the Purchase Price if the Closing occurs. If the
Closing does not occur or if this Agreement otherwise terminates, the Deposit
shall be disbursed as provided herein. Notwithstanding anything in this
Agreement to the contrary, One Hundred and No/100 Dollars ($100.00) of the
Deposit is delivered to the Title Company as "Independent Contract
Consideration", and the Deposit is reduced by
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the amount of the Independent Contract Consideration so delivered to Seller,
which amount has been bargained for and agreed to as consideration for Seller's
execution and delivery of this Agreement.
ARTICLE 4
TITLE AND SURVEY
SECTION 4.1. TITLE AND SURVEY. Promptly upon execution of this Agreement,
(a) Seller shall provide, or cause to be provided, Purchaser with a copy of the
most recent owner's title insurance policy or title commitment issued in
connection with the Real Property; and (b) Purchaser shall order a title
commitment or pro forma title policy (the "Title Commitment") and ALTA survey of
the Real Property (the "Survey"). Purchaser shall have until the Study Period
Notice Deadline to give Seller a written notice that sets forth any objections
that Purchaser has to title or survey matters affecting the Property and
disclosed on the Title Commitment or the Survey (the "Purchaser Title
Objections"). Seller shall use reasonable efforts to cure the Purchaser Title
Objections before the Closing Date. If, despite such reasonable efforts, Seller
is unable to cure the Purchaser Title Objections by the Closing Date, Purchaser
shall have the option (in its sole discretion) of either (y) accepting the title
as it then is or (z) terminating this Agreement, in which event the Deposit
shall immediately be returned to Purchaser, this Agreement shall terminate and
Purchaser and Seller shall have no further obligations or liabilities hereunder
other than Purchaser's obligations under Section 5.1(b)(iv), Section 5.2 and
Section 5.3. Notwithstanding anything in this Agreement to the contrary, all
Voluntary Liens will be satisfied by Seller on or prior to the Closing Date or,
if not so satisfied, shall be satisfied at Closing out of the proceeds otherwise
payable to Seller, and Purchaser shall have no obligation to give Seller any
notice of objection with respect to any Voluntary Liens.
ARTICLE 5
INSPECTION AND AUDIT
SECTION 5.1. DUE DILIGENCE MATERIALS; ACCESS.
(a) No later than three (3) Business Days after the Effective Date, Seller
shall provide to Purchaser complete copies of the documents and materials listed
on Schedule 5.1, to the extent that such documents are in Seller's possession or
are reasonably available to Seller.
(b) During the term of this Agreement, Purchaser, personally or through its
authorized agents or representatives, shall be entitled to interview the Tenant
and, upon no less than two (2) Business Days' advance notice to Seller, to enter
upon the Property during normal business hours, and shall have the right to make
such investigations, including appraisals, engineering studies, soil tests,
environmental studies, inquiry of governmental officials, and underwriting
analyses, as Purchaser deems necessary or advisable, subject to the following
limitations: (i) Purchaser shall give Seller written or telephonic notice not
less than two (2) Business Days before conducting any inspections on the
Property, and a representative of Seller and Tenant shall have the right to be
present when Purchaser or its representatives conducts its or their
investigations on the Property; (ii) neither Purchaser nor its representatives
shall materially interfere with the construction, use, occupancy or enjoyment of
the Property by the Seller or Tenant; (iii) neither Purchaser nor its agents
shall damage the Property or any portion thereof, except for any immaterial
damage caused by environmental or geotechnical tests, all of which shall
promptly be repaired by Purchaser; and (iv) Purchaser shall indemnify, hold
harmless and defend the Seller against all costs (including reasonable
attorneys' fees) and damage to the Property caused by the activities of
Purchaser or its agents under this paragraph, provided; however, that such
indemnity shall not include any costs or damages caused by (x) the acts of the
Seller or its agents or representatives (to the extent caused by the
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acts of Seller or its agents or representatives), (y) any claims of diminution
in the value of the Property as a consequence of the results revealed by such
tests and inspections (except in the event of a breach by Purchaser of its
obligations under Section 5.3) or (z) any pre-existing condition of the Property
(except to the extent such condition is made worse by Purchaser). The foregoing
indemnification obligation shall survive the Closing or termination of this
Agreement for a period of six (6) months.
SECTION 5.2. STUDY PERIOD. Purchaser shall have the period ending at 6:00
p.m. (local time in Boston, Massachusetts) on December 13, 2005 (the "Study
Period"), to physically inspect the Property, review economic data and market
conditions, underwrite the Tenant and review the Lease, conduct appraisals, make
inquiry of governmental officials, perform examinations of the physical
condition of the Improvements, examine the Real Property for the presence of
Hazardous Materials, and to otherwise conduct such due diligence and
underwriting as Purchaser, in its sole and absolute discretion, deems
appropriate in accordance with Section 5.1(b) above. This Agreement shall
terminate unless, before 6:00 p.m. on the first business day following the end
of the Study Period (the "Study Period Notice Deadline"), Purchaser gives Seller
written notice (the "Study Period Notice") that Purchaser, in its absolute and
unreviewable discretion, elects to proceed with the purchase of the Property
subject to and in accordance with the terms of this Agreement. In addition, at
any time before the Study Period Notice Deadline, Purchaser may, in its absolute
and unreviewable discretion, terminate this Agreement by giving written notice
thereof to Seller (the "Termination Notice"). In the event that either: (a)
Purchaser gives a Termination Notice before the Study Period Notice Deadline, or
(b) Purchaser does not give a Termination Notice but fails to give the Study
Period Notice before the Study Period Notice Deadline, this Agreement shall
automatically terminate, the Deposit promptly shall be returned to Purchaser,
and Seller and Purchaser shall have no further obligations or liabilities to
each other hereunder other than Purchaser's obligations under Section
5.1(b)(iv), this Section 5.2 and Section 5.3. In the event of a termination of
this Agreement for any reason, Purchaser shall deliver to Seller originals or
copies of all materials and documents in Purchaser's possession relating to the
Property and obtained by Purchaser during its investigation of the Property.
SECTION 5.3. CONFIDENTIALITY. Purchaser shall use the Confidential
Information only for purposes of evaluating the Property in connection with its
potential purchase thereof in accordance with the terms of this Agreement (and,
if the Closing occurs, in connection with its ownership of the Property).
Notwithstanding the foregoing, Purchaser may disclose the Confidential
Information: (a) to its owners, legal counsel, accountants, lenders, potential
investors, regulatory authorities, or otherwise required by law, and other third
parties having a reason to review the Confidential Information in connection
with Purchaser's purchase of the Property; provided the Confidential Information
is kept confidential by such parties, (b) in connection with any legal
proceeding brought by Purchaser to enforce its rights under this Agreement; and
(c) to the extent that such disclosure is required by law or court order or by
discovery rules in any legal proceeding, provided that Purchaser first shall
provide written notice thereof to Seller. If this Agreement is terminated before
the Closing, Purchaser promptly shall return the Confidential Information to
Seller and shall not retain copies thereof. Except as otherwise provided in
Subsection (b) of this Section 5.3, the provisions of which shall apply to both
Seller and Purchaser for purposes of this sentence, neither Seller nor Purchaser
shall disclose this Agreement or make any public announcements concerning the
sale of the Property pursuant to this Agreement without first obtaining the
prior written consent of the other. In addition, and notwithstanding the
foregoing restrictions, Seller and Purchaser authorize each other and their
respective representatives to disclose, as necessary for the financing of the
purchase contemplated by this Agreement, the tax treatment and tax structure of
the transaction contemplated hereby and all related materials, including tax
analyses or opinions, relating to such tax treatment and tax structure. The
provisions of this paragraph shall survive the Closing or termination of this
Agreement.
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SECTION 5.4. TERMINATION OF CONTRACTS. No Contracts will be assigned to
Purchaser at Closing pursuant to this Agreement. Seller shall be responsible for
the termination of all Contracts prior to the Closing Date, and Purchaser shall
not have any liability under any of the Contracts. The provisions of this
Section 5.4 shall survive the Closing.
SECTION 5.5. COOPERATION. During the term of this Agreement, the Seller
shall direct its property manager, agents and employees to cooperate with the
reasonable requests of the Purchaser to obtain information concerning the
Property pursuant to the provisions of Section 5.1 and Section 5.3 above.
SECTION 5.6. NO ASSUMPTION OF EMPLOYEE CLAIMS. Purchaser and Seller agree
that Purchaser has not assumed and shall not assume any obligations to (or
regarding the employment of), any individuals previously or currently employed
by Seller in the management, ownership or operation of the Property. Purchaser
shall not assume, shall not take subject to and shall not be liable for, any
liabilities or obligations of any kind or nature, whether absolute, contingent,
accrued, known or unknown, to former or current employees of Seller (i) which
arise or accrue prior to the Closing including, without limitation, any
liabilities or obligations of Seller in connection with any employee benefit
plans or collective bargaining agreements, employment agreements or other
similar arrangement, any liabilities or obligations with respect to employment
arising under any federal, state or municipal statute or common law, or any
liabilities or obligations in respect of retiree health benefits, and (ii) with
respect to severance payments or other termination payments owing by Seller to
any of Seller's former or current employees (collectively, "Employee Claims").
Prior to the Closing Date Seller's employees shall vacate the Property. No
portion of any liability respecting the Employee Claims listed in clause (ii)
immediately above shall be passed through or charged to the Tenant by Seller.
The provisions of this paragraph shall survive the Closing.
ARTICLE 6
CONDITIONS PRECEDENT, CASUALTY DAMAGE OR CONDEMNATION
SECTION 6.1. CONDITIONS PRECEDENT FAVORING PURCHASER. In addition to the
conditions precedent in favor of Purchaser set forth elsewhere in this
Agreement, Purchaser's obligations under this Agreement are subject to the
timely fulfillment of the conditions set forth in this Section 6.1 on or before
the Closing Date, or such earlier date as is set forth below. Each condition may
be waived in whole or in part only by written notice of such waiver from
Purchaser to Seller. Purchaser, by consummation of the Closing pursuant to this
Agreement, shall have waived the conditions precedent set forth in this Section
6.1 (provided, however, that any such waiver shall not in any way modify or
affect any other provision, condition, obligation, representation, warranty or
covenant set forth elsewhere in this Agreement).
(a) Seller shall have performed and complied in all material respects
with all of the terms of this Agreement to be performed and complied with by
Seller prior to or at the Closing;
(b) On the Closing Date, the Seller Representations shall be true,
complete and accurate, except for changes occurring in the normal course of
business or pursuant to the express provisions of the Lease;
(c) Purchaser shall have received an estoppel certificate from the
Tenant dated no earlier than thirty (30) days prior to the Closing Date
reflecting the terms of the Lease and otherwise substantially in the form
attached hereto as Exhibit B. This condition shall not be satisfied if the
Tenant estoppel certificate discloses: (i) any default by landlord or Tenant;
(ii) any amendment, modification or supplement to the Lease that was not
provided to Purchaser before the commencement of the Restricted Period or
consented to in writing by the Purchaser; or (iii) any other information that is
inconsistent in
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any material respect with the Lease or related Lease information as provided to
Purchaser before the commencement of the Restricted Period. Seller shall use
good faith, commercially reasonable efforts to obtain such estoppel certificate
from the Tenant, and shall deliver a copy of such estoppel to Purchaser promptly
upon receipt thereof by Seller. Seller shall allow Purchaser to review the
estoppel certificate before presenting it to the Tenant in the event that the
form of estoppel certificate differs from the form attached as Exhibit B;
(d) Purchaser shall have received a subordination, non-disturbance and
attornment agreement ("SNDA"), subordinating the Lease to the loan of
Purchaser's mortgage lender, in a form that is recordable in the land records of
the Property and is reasonably acceptable to the Purchaser and such lender.
Seller shall use good faith, commercially reasonable efforts to obtain such
SNDA, and shall deliver the original of such SNDA in recordable form promptly
upon receipt thereof by Seller;
(e) On the Closing Date, title to the Property shall be conveyed to
Purchaser subject only to the Permitted Exceptions and the Title Company shall
issue to Purchaser an owner's title insurance policy without standard exceptions
(on the current ALTA Form B), so long as the Purchaser causes a copy of the
Survey to be provided to the Title Company, in the amount of the Purchase Price,
together with the Required Endorsements upon payment by Purchaser for the
Required Endorsements, insuring good and marketable fee simple title to the Real
Property in Purchaser, subject only to the Permitted Exceptions and the standard
printed exceptions, except that: (i) the exceptions for mechanic's liens or
construction liens, and unrecorded easements shall be deleted; (ii) the survey
exception shall be limited to Permitted Exceptions; (iii) the exception relating
to ad valorem taxes shall relate only to taxes and assessments that are due and
payable after the Closing Date; and (iv) the parties-in-possession exception
shall be deleted except as to the Tenant, as tenant only, as provided for in the
Lease;
(f) On the Closing Date, (i) the Property shall be in the same
condition that it is in now, reasonable wear and tear excepted, and free from
tenants and occupants, except for the Tenant pursuant to the Lease and except
for construction, alteration and modifications to the Property as and to the
extent permitted by the Lease; (ii) there shall be no judicial or administrative
or condemnation proceeding pending or threatened concerning the Property that
was not disclosed in writing to Purchaser before the commencement of the
Restricted Period; (iii) the Property and the use and operation thereof by
Seller and Tenant shall comply in all material respects with all Legal
Requirements; (iv) the Lease shall be in full force and effect and free from
default, except for any default that was disclosed in writing to Purchaser
before the end of the Study Period; (v) there shall be no bankruptcy proceeding
pending or threatened in writing with respect to the Tenant; and (vi) the
Property shall be free and clear of: (y) any management or leasing agreements
and any other Contracts under which Purchaser has any obligations; and (z) any
collective bargaining or employment agreements under which Purchaser has any
obligations;
(g) (Reserved);
(h) There shall be no Reciprocal Access Agreements encumbering the
Property (or, if there are Reciprocal Access Agreements encumbering the
Property, Purchaser shall have received an estoppel certificate dated no earlier
than thirty (30) days prior to the Closing Date, in form and substance
reasonably acceptable to Purchaser, from all parties to any Reciprocal Access
Agreements); and
(i) Seller shall use commercially reasonable efforts to obtain and
provide to Purchaser a final, non-appealable certificate of occupancy for all of
the Improvements and any certificates or approvals necessary to permit the use
of any parking facilities at the Property (collectively, the "Certificate of
Occupancy").
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SECTION 6.2. CONDITIONS PRECEDENT FAVORING SELLER. In addition to the
conditions precedent in favor of Seller set forth elsewhere in this Agreement,
Seller's obligations under this Agreement are expressly subject to the timely
fulfillment of the conditions set forth in this Section 6.2 on or before the
Closing Date, or such earlier date as is set forth below. Each condition may be
waived in whole or part only by written notice of such waiver from Seller to
Purchaser.
(a) Purchaser shall have performed and complied in all material
respects with all of the terms of this Agreement to be performed and complied
with by Purchaser prior to or at the Closing; and
(b) On the Closing Date, the representations of Purchaser set forth in
Section 7.2 shall be true, accurate and complete.
SECTION 6.3. RISK OF LOSS. Unless and until the Closing is completed, the
risk of loss to the Property from casualty or condemnation shall be borne by
Seller. If all or a portion of the Property is damaged or destroyed by fire or
other casualty prior to Closing such that: (1) Purchaser's reasonable estimate
of the cost to repair the same exceeds $200,000; (2) the Tenant has the right to
terminate the Lease or abate or offset rent under the Lease on account of such
casualty; or (3) access to or egress from the Property is materially impaired
(any such fire or other casualty, a "Material Casualty"), Purchaser may, at
Purchaser's sole option, elect to either:
(a) terminate this Agreement and receive back the Deposit, subject to
Purchaser's obligations under Section 5.1(b)(iv), Section 5.2 and Section 5.3;
or
(b) purchase the Property subject to and in accordance with the terms of
this Agreement.
In the event of a fire or other casualty that is not a Material Casualty,
and in connection with any Material Casualty as to which Purchaser elects to
proceed pursuant to Section 6.3(b), (A) Purchaser shall purchase the Property in
accordance with the terms hereof without reduction in the Purchase Price (except
for any applicable deductible that will reduce the insurance proceeds assigned
to Purchaser at Closing) and (B) Seller shall assign to Purchaser at Closing all
insurance proceeds paid or payable to Seller on account of such damage,
including any business interruption insurance (and the amount of any deductible
shall be credited against the Purchase Price). Purchaser shall be deemed to have
elected to terminate this Agreement under Section 6.3(a) unless, within ten (10)
Business Days from reasonably detailed written notice to Purchaser of such
casualty, Purchaser provides Seller with written notice that Purchaser elects to
proceed pursuant to Section 6.3(b). If the Closing Date would otherwise occur
sooner, it shall automatically be extended to the date that is fifteen (15)
Business Days after written notice to Purchaser of the Material Casualty. If any
insurance proceeds paid or payable on account of a fire or other casualty are to
be assigned to Purchaser in accordance with the provisions of this Agreement,
Seller shall cooperate as reasonably requested by Purchaser to effectuate such
assignment (including, if necessary, prosecuting claims in Purchaser's name or
for Purchaser's benefit), and Seller's obligation to so cooperate shall survive
the Closing. Notwithstanding anything to the contrary in this Section 6.3, if
Seller fails to maintain full replacement cost insurance as required herein, and
if there is a fire or other casualty that is not a Material Casualty, or if
there is a Material Casualty as to which Purchaser elects to proceed under
Section 6.3(b), Purchaser shall have the right, in lieu of an assignment of
insurance proceeds, to receive a credit against the Purchase Price in an amount
equal to the cost to repair the damage caused by such fire or other casualty as
estimated by a third party consultant selected by Purchaser and the amount of
any lost rents that would have been covered by insurance if Purchaser had
maintained the rental insurance required above.
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SECTION 6.4. CONDEMNATION. If, at any time before completion of the
Closing, a taking or condemnation (or proceeding in lieu thereof) is commenced
or threatened in writing: (i) of all or substantially all of the Property; or
(ii) of less than all or substantially all of the Property that: (1) results in
the Tenant having the right to terminate its Lease or abate or offset rent under
the Lease; (2) causes the Property to fail to comply with Legal Requirements or
any applicable Reciprocal Easement Agreements; (3) materially impairs access to
or egress from the Property; (4) causes the loss of any parking that benefits
the Property; or (5) otherwise, in Purchaser's reasonable business judgment,
results in a loss of value in excess of $200,000 (any of the foregoing, a
"Material Taking"), Purchaser may, at Purchaser's sole option, elect either to:
(a) terminate this Agreement and receive back the Deposit subject to
Purchaser's obligations under Section 5.1(b)(iv), Section 5.2 and Section 5.3;
or
(b) purchase the Property subject to and in accordance with this
Agreement.
In the event of condemnation or taking that does not constitute a Material
Taking, or if there is a Material Taking but Purchaser elects to proceed under
Section 6.4(b), (1) Purchaser shall purchase the Property in accordance with the
terms hereof (without reduction in the Purchase Price), (2) Seller shall assign
to Purchaser at Closing all condemnation proceeds and rental interruption
insurance paid or payable as a result of such condemnation, (3) Purchaser shall
have the right to be present with Seller at any hearings or negotiations with
respect thereto, and (4) Seller shall not settle or compromise any such matter
without Purchaser's prior written consent. Purchaser shall be deemed to have
elected to terminate this Agreement under Section 6.4(a) unless, within ten (10)
Business Days from written notice to Purchaser of the condemnation, Purchaser
provides Seller with written notice that Purchaser elects to proceed pursuant to
Section 6.4(b). If the Closing Date would otherwise occur sooner, it shall
automatically be extended to the date that is fifteen (15) Business Days after
written notice to Purchaser of the Material Taking.
SECTION 6.5. LEASING AND OTHER ACTIVITIES PRIOR TO CLOSING.
(a) During the term of this Agreement, Seller shall not enter into any
Lease Transaction without Purchaser's prior written consent, which consent may
be given or withheld in Purchaser's sole discretion.
(b) During the Restricted Period, Seller shall not enter into any new
Contracts or material modifications, renewals or terminations of any existing
Contracts that would impose any obligations on Purchaser or on the Property
after Closing, without the written consent of Purchaser, which consent may be
granted or denied in Purchaser's sole discretion. In its request for Purchaser's
approval under this Section 6.5(b), Seller shall include the following notice:
"NOTE: FAILURE TO RESPOND WITHIN THE TIME PERIOD SET FORTH IN SECTION 6.5(b)
WILL RESULT IN A DEEMED APPROVAL". If Seller so requests Purchaser's approval
and Purchaser does not notify Seller in writing of its consent or disapproval
within ten (10) Business Days after notice thereof from Seller, Purchaser shall
be deemed to have consented to such requested action. Without limiting the
foregoing approval rights, Seller shall provide Purchaser with prompt notice of
any new Contracts or material modifications, renewals or terminations of any
such contracts, together with complete copies of the documents relating thereto,
in the event that any of the same would impose any obligations on Purchaser or
the Property after Closing.
(c) During the Restricted Period, Seller shall not, without
Purchaser's prior written approval, (i) make any material alterations or
additions to the Property, except as may be required by law or contemplated by
the Lease or as may reasonably be required for the prudent repair and
maintenance of
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the Property, (ii) change or attempt to change (or consent to any change in) the
zoning or other Legal Requirements applicable to the Property, except and to the
extent contemplated by the Lease or (iii) cancel, amend or modify in any
material respect any Permit, except and to the extent contemplated by the Lease.
(d) At all times prior to Closing and during the term of this
Agreement, Seller shall: (i) maintain the Property in good condition and repair,
subject to Tenant's rights under the Lease; (ii) use commercially reasonable
efforts to maintain its relations with the Tenant and otherwise conduct business
with respect to the Property in a commercially reasonable manner; (iii) perform
its obligations under the Lease, the Contracts and the Permitted Exceptions
(and, as applicable, use commercially reasonable efforts to enforce the
obligations of Tenant under the Lease); (iv) insure, or cause to be insured, the
Improvements at 100% of replacement cost, and maintain liability and other
insurance in accordance with generally prevailing industry standards, except to
the extent that such insurance obligations are Tenant's responsibility under the
Lease; (v) not sell or further encumber the Property or any direct or indirect
interest therein or enter into any agreement relating thereto, and (vi) promptly
give Purchaser a reasonably detailed written notice of any of the following
during the term of this Agreement: (1) any fire, flood or other material adverse
change with respect to the Property of which Seller obtains actual knowledge;
(2) any actual or proposed condemnation (or proceeding in lieu thereof) of which
Seller obtains actual knowledge; (3) any written notice received by Seller
during the term of this Agreement claiming that the Property or the use and
operation thereof fails to comply with any Legal Requirements; (4) any written
notice given or received by Seller claiming that Seller or the Tenant is default
under any Lease; and (5) any written notice received by Seller concerning any
pending or threatened litigation or administrative proceeding affecting the
Property. If Seller becomes aware during the term of this Agreement of any
matters that render any of its representations or warranties untrue, Seller
shall promptly disclose such matters to Purchaser in writing.
ARTICLE 7
AS-IS SALE; LIMITED REPRESENTATIONS AND WARRANTIES
SECTION 7.1. AS-IS SALE.
(a) Purchaser acknowledges that it is an experienced and sophisticated
purchaser of commercial real estate projects such as the Property and that,
prior to the Closing, it will have a full and complete opportunity to conduct
such investigations, examinations, inspections and analysis of the Property and
market conditions as Purchaser, in its absolute discretion, may deem
appropriate. Purchaser further acknowledges that, except for Seller
Representations, Purchaser has not relied upon any statements, representations
or warranties by Seller or any agent of Seller.
(b) Except for the Seller Representations, Purchaser agrees that the
Property shall be sold and that Purchaser shall accept possession of the
Property on the Closing Date strictly on an "as is, where is, with all faults"
basis, and that, except for the Seller Representations, such sale shall be
without representation or warranty of any kind by Seller, express or implied,
and at the Closing Purchaser shall be assuming all liabilities or obligations
pertaining to the Property, except as expressly provided under this Agreement or
any document delivered at the Closing.
SECTION 7.2. PURCHASER REPRESENTATIONS. Purchaser hereby represents and
warrants to Seller as follows:
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(a) Purchaser is a limited liability company, duly formed, validly
existing and in good standing under the laws of the State of Delaware. This
Agreement constitutes the valid and legally binding obligation of Purchaser,
enforceable against Purchaser in accordance with its terms.
(b) There are no actions, suits or proceedings pending or, to the
knowledge of Purchaser, threatened, against or affecting Purchaser which, if
determined adversely to Purchaser, would adversely affect its ability to perform
its obligations hereunder. Purchaser has not (a) made a general assignment for
the benefit of creditors, (b) filed any voluntary petition in bankruptcy or
suffered the filing of an involuntary petition of Purchaser's creditors, (c)
suffered the appointment of a receiver to take possession of all, or
substantially all, of Purchaser's assets, (d) suffered the attachment or other
judicial seizure of all, or substantially all, of Purchaser's assets, (e)
admitted in writing it inability to pay its debts as they come due or (f) made
an offer of settlement, extension or composition to its creditors generally.
Purchaser has full right, power and authority and is duly authorized to enter
into this Agreement, to perform each of the covenants on its part to be
performed hereunder and to execute and deliver, and to perform its obligations
under all documents required to be executed and delivered by it pursuant to this
Agreement.
(c) Neither the execution, delivery or performance of this Agreement
nor compliance herewith (i) conflicts or will conflict with or results or will
result in a breach of or constitutes or will constitute a default under (1) the
organizational documents of Purchaser, (2) to the best of Purchaser's knowledge,
any law or any order, writ, injunction or decree of any court or governmental
authority, or (3) any agreement or instrument to which Purchaser is a party or
by which it is bound or (ii) results in the creation or imposition of any lien,
charge or encumbrance upon its property pursuant to any such agreement or
instrument.
(d) No authorization, consent, or approval of any governmental
authority (including courts) is required for the execution and delivery by
Purchaser of this Agreement or the performance of its obligations hereunder.
(e) Purchaser acknowledges and agrees that the Property is subject to
the terms of the Lease and Tenant's right to possession and occupancy of the
Property as described in Section 8.6 below.
SECTION 7.3. SELLER'S REPRESENTATIONS. Seller warrants and represents to
Purchaser as follows:
(a) REPRESENTATIONS CONCERNING SELLER.
(i) Seller is a corporation, duly formed, validly existing and in good
standing under the laws of the State of Michigan. This Agreement constitutes the
valid and legally binding obligation of Seller, enforceable against Seller in
accordance with its terms;
(ii) There are no actions, suits or proceedings pending or, to the
knowledge of Seller, threatened, against or affecting Seller which, if
determined adversely to Seller, would adversely affect its ability to perform
its obligations hereunder. Seller has not (a) made a general assignment for the
benefit of creditors, (b) filed any voluntary petition in bankruptcy or suffered
the filing of an involuntary petition of Seller's creditors, (c) suffered the
appointment of a receiver to take possession of all, or substantially all, of
Seller's assets, (d) suffered the attachment or other judicial seizure of all,
or substantially all, of Seller's assets, (e) admitted in writing it inability
to pay its debts as they come due or (f) made an offer of settlement, extension
or composition to its creditors generally. Seller has full right, power and
authority and is duly authorized to enter into this Agreement, to perform each
of the covenants on its part to be
9
performed hereunder and to execute and deliver, and to perform its obligations
under all documents required to be executed and delivered by it pursuant to this
Agreement;
(iii) Neither the execution, delivery or performance of this Agreement
nor compliance herewith (a) conflicts or will conflict with or results or will
result in a breach of or constitutes or will constitute a default under (1) the
organizational documents of Seller, (2) to the best of Seller's knowledge, any
law or any order, writ, injunction or decree of any court or governmental
authority, or (3) any agreement or instrument to which Seller is a party or by
which it is bound or (b) results in the creation or imposition of any lien,
charge or encumbrance upon the Property pursuant to any such agreement or
instrument;
(iv) No authorization, consent, or approval of any governmental
authority (including courts) is required for the execution and delivery by
Seller of this Agreement or the performance of its obligations hereunder;
(v) Seller is not a "foreign person" or "disregarded" entity" as
defined in Section 1445 of the Code; Seller's taxpayer identification number is
38-1859358;
(b) REPRESENTATIONS CONCERNING THE PROPERTY.
(i) The Lease:
(A) Seller has delivered to purchaser a true, correct and
complete copy of the lease;
(B) The lease is in full force and effect, has not been amended,
modified or supplemented, and constitutes the entire Agreement between the
Seller and the Tenant concerning the property;
(C) There is no default by the Seller or Tenant under the Lease
or, to the best of Seller's knowledge, any condition or event that, with the
passage of time or giving of notice, or both, would constitute such a default.
The Tenant is not currently entitled to any reduction in or refund of, and has
no counterclaim or offset against, and is not otherwise disputing, any rents or
other charges paid, payable or to become payable by the Tenant under the Lease
or any of the Tenant's other obligations under the Lease. There are no options
or rights to renew, extend or terminate the Lease, except as expressly set forth
in the Lease. The Tenant has not notified Seller its intent to terminate or
attempt to renegotiate its Lease prior to expiration of the term of such Lease.
To the knowledge of the Seller, the Tenant has not entered into any assignment
or sublease with respect to the Lease;
(D) Except as disclosed on Exhibit C, Tenant has not provided any
security deposit in connection with the Lease;
(E) There are no free rent, operating expense abatements,
incomplete tenant improvements, rebates, allowances, or other unexpired
concessions or landlord obligations except as expressly set forth in the Lease;
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(F) To Seller's actual knowledge, other than the Lease, there are
no other leases, licenses or other occupancy agreements affecting all or any
portion of the Property, except as set forth in the Title Commitment and there
are no tenants or other occupants of all or any part of the Property other than
the Tenant under the Lease;
(G) At the Closing, the landlord's interest in the Lease will be
assigned to Purchaser;
(H) To the actual knowledge of the Seller, the Tenant is not the
subject of any bankruptcy, reorganization, insolvency or similar proceedings;
(I) (a) The execution date of the Lease was May 2, 2005 the rent
commencement date of the Lease was May 2, 2005 and the expiration date of the
initial term of the Lease is April 30, 2008 (b) There are no options remaining
unexercised on the part of the Tenant to renew the Lease except as expressly set
forth in the Lease; and (c) Monthly basic rent is payable as and when set forth
in the Lease;
(J) (a) Landlord has not received any notice from Tenant of any
defects in the Property or any related improvements or facilities; (b) Tenant
has not delivered any notice alleging any defect or deficiency in the work
relating to the Property or any related improvements or facilities; and (c)
Landlord has satisfied, or shall satisfy before the Closing Date, any and all
commitments made to induce Tenant to enter in to the Lease;
(ii) Lease Brokerage. There are no lease brokerage agreements, leasing
commission agreements or other agreements providing for payments of any amounts
for leasing activities or procuring tenants with respect to the Property,
whether now or in the future. No brokerage or similar fee shall be due or unpaid
by the Seller with respect to the Lease or the Property. No brokerage or similar
fee shall be due or payable by the Purchaser on account of the exercise of any
renewal, extension or expansion options arising under the Lease;
(iii) Contracts. No contracts will be assigned to Purchaser in
connection with Purchaser's acquisition of the Property pursuant to this
Agreement, and Purchaser shall have no obligations under any Contracts;
(iv) Warranties, Permits and Related Matters.
(A) Seller will use commercially reasonable efforts to locate any
warranties with respect to the Improvements on or before the Closing Date (the
"Warranty"). A true and correct copy of any such existing Warranty will be
delivered to Purchaser and shall be duly assigned to Purchaser at Closing at
Seller's sole expense;
(B) To the best of Seller's actual knowledge, the Property is in
compliance in all material respects with all Legal Requirements, and the Seller
has no actual knowledge of any claim of violation of any Legal Requirement;
(C) To the best of Seller's knowledge, Seller has obtained all
licenses, permits, variances, approvals, and authorizations required from all
governmental authorities having jurisdiction over the Property or from private
parties for the intended development, construction, use, operation and occupancy
of the Property and to insure vehicular and pedestrian ingress to and egress
from the Property (collectively, the "Permits"). To the best of Seller's
knowledge, all appeal periods with respect to any existing Permits have expired
and no appeals have been filed;
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(D) Seller has not received any written notice from any insurance
company, insurance rating organization or Board of Fire Underwriters requiring
any alterations, improvements or changes at the Property, or any portion
thereof;
(E) To the best of Seller's actual knowledge and excluding any
obligation or agreement of Tenant, other than real estate taxes and assessments,
Seller has no obligations to any governmental authority, adjacent property owner
or other Person for the payment (or for any donations in lieu of payment) or
performance of any infrastructure, capital improvements or other work in
connection with the development or ownership of the Property;
(v) Litigation and Other Proceedings.
(A) No condemnation or eminent domain proceedings are pending or,
to Seller's knowledge, threatened against the Property or any part thereof, and
the Seller has not made any commitments to or received any written notice of the
desire of any public authority or other entity to take or use the Property or
any part thereof whether temporarily or permanently, for easements,
rights-of-way, or other public or quasi-public purposes;
(B) There are no pending, or to Seller's knowledge, threatened,
judicial or administrative proceedings or investigations affecting or relating
to the development, construction, use, operation or ownership of the Property;
(vi) Taxes. The Seller has delivered true and correct copies of tax
bills issued by any applicable state or local governmental taxing authorities
issued to the Seller with respect to the Property for the most recent past and
current tax years, and any new assessment received with respect to a current or
future tax year. The Real Property's tax parcel ID number is 24-119-22 11 0013
and the Real Property is entirely located within such tax parcel ID number (and
no property other than the Real Property is located therein). Seller is not
aware of any special assessments pertaining to the Property;
(vii) (Reserved);
(viii) Hazardous Materials. To the actual knowledge of Seller: (i)
there is no violation of nor any existing investigation by any governmental
authority under any Environmental Law with respect to the Property, (ii) any
handling, storage, treatment or use of Hazardous Materials that has occurred at
the Property has been in compliance with all applicable Environmental Laws, and
(iii) there are no underground storage tanks located at, on or under the
Property;
(ix) No Preemptive Rights. The Seller has not granted any option or
right of first refusal or first opportunity to any party to acquire any interest
in any of the Property;
(x) Reports and Other Information.
(A) Seller will deliver or make available to Purchaser (without
representation or warranty, express or implied, as to the completeness or
accuracy thereof) true and complete copies of the Reports (as such term is
defined in Schedule 5.1);
(B) The plans and specifications for the Improvements, Lease,
Permits, Warranties, operating statements, income and expense reports, and all
other agreements, books and records relating to the Property will be delivered
or made available by Seller to Purchaser in connection with this Agreement;
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(C) To the Seller's actual knowledge, the Seller has not failed
to deliver to Purchaser a copy of any written report or document in Seller's
possession or control that materially affects the development, ownership,
leasing, value or use of the Property;
(xi) Seller Representative. For the purposes of this Agreement the
"Designated Seller Representatives" are Tammy Ghanem, the Senior Corporate
Counsel of Seller and Thomas Swain the Vice President of Finance of Seller, who
have occupied such positions for, respectively, four (4) years and five years,
and have been actively involved in, and are familiar with, the ownership,
development, construction, leasing and operation of the Property (subject to
Section 7.4 below). _______________ shall be considered a Designated Seller
Representative only with respect to the matters in Sections 7.3(b)(i)(C) and
(J), Sections 7.3(b)(iv)(B), (C) and (D), Section 7.3(b)(viii) and Section
7.3(b)(x).
SECTION 7.4. SELLER'S KNOWLEDGE. The only representations made by Seller
are those contained in this Agreement and no oral or written representations
outside of this Agreement are to be relied on. Whenever a representation is
qualified by the phrase "to the best of Seller's knowledge", or by words of
similar import, the accuracy of such representation shall be based solely on the
actual (as opposed to constructive or imputed) knowledge of the Designated
Seller Representatives. The knowledge of the Designated Seller Representatives
shall be without investigation or inquiry other than:
(a) as to ____________________, a reasonable review of the files regarding
the Property in Seller's possession or control (to the extent such files are
located at the Property or were recently removed from the Property in connection
with Seller's relocation from the Property), and
(b) as to Tammy Ghanem, a reasonable review of Seller's files and
reasonable inquiries of Seller's agents (including property managers and leasing
agents), officers and employees who are familiar with the development, ownership
and leasing of the Property.
ARTICLE 8
CLOSING
SECTION 8.1. CLOSING DATE. The Closing shall take place at 1:00 p.m. on the
Closing Date. Unless the parties otherwise agree in writing, the Closing shall
be conducted through a customary escrow arrangement with the Title Company and,
on or before the Closing Date, the Seller shall deliver to the Title Company or
Purchaser the documents listed in Section 8.2 and the Purchaser shall deliver to
the Title Company the documents and funds described in Section 8.3.
SECTION 8.2. SELLER'S DELIVERIES. At the Closing, Seller shall deliver or
cause to be delivered to Purchaser (or its nominee), at Seller's sole expense,
each of the following items:
(a) (i) A limited warranty deed in the form attached hereto as Exhibit
E, conveying good and marketable fee simple title, subject only to the Permitted
Exceptions, in proper form for recording, (ii) (Reserved), (iii) an Assignment
and Assumption Agreement in the form attached hereto as Exhibit G, in proper
form for recording, (iv) the Representation Update Certificate in the form
attached hereto as Exhibit H, (v) the Closing Statement, and (vi) a non-foreign
person certificate sworn to by Seller as required by Section 1445 of the Code,
all duly executed (and, when required, acknowledged) by Seller;
(b) At least two originals of the Lease;
(c) All keys in Seller's possession or control to all locks on the
Improvements;
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(d) (Reserved);
(e) Such evidence or documents as may be reasonably required by the
Title Company or Purchaser relating to: (i) mechanics' or construction liens;
(ii) parties in possession; or (iii) the status and capacity of Seller and the
authority of the Person or Persons who are executing the various documents on
behalf of Seller in connection with the sale of the Property;
(f) To the extent that any of the following are in Seller's possession
or control, copies or originals of all books, records and other documents in the
possession or control of Seller and material to Purchaser's ownership or
operation of the Property, including Tenant correspondence and credit files, the
Permits, as-built drawings, and the original Plans and Specifications that have
not previously been delivered to Purchaser;
(g) At least two original Tenant estoppel certificates;
(h) At least two original SNDAs;
(i) A notice letter to the Tenant. Such notice shall be prepared by
Purchaser and reasonably approved by Seller, shall notify the Tenant of the sale
and shall contain appropriate instructions relating to the payment of future
rentals, the giving of future notices, the naming of Purchaser (or its nominee)
on insurance policies carried by Tenant, and other matters reasonably required
by Purchaser or required by law. Unless a different procedure is required by
applicable law, in which event such law shall be controlling, Purchaser agrees
to transmit or otherwise deliver such letters to the Tenant promptly after the
Closing;
(J) At least two originals of any applicable reciprocal easement
agreement estoppels;
(K) Any certificate of occupancy and other permits in Seller's
possession;
(l) The Warranty, if applicable, including all related manuals and any
consents necessary in order for the Warranty to be duly assigned to Purchaser as
of the Closing;
(m) Payoff letters or evidence of release and discharge of all
mortgages, mechanics' and construction liens and attachments, and other
encumbrances on the Property; and
(n) Such other documents as are consistent with the terms of this
Agreement and reasonably required to close the transaction contemplated hereby.
SECTION 8.3. PURCHASER'S DELIVERIES. At the Closing, Purchaser shall
deliver into escrow the following items:
(a) Immediately available federal funds sufficient to pay the Purchase
Price (less the Deposit) and Purchaser's share of all escrow costs and closing
expenses;
(b) Duly executed and acknowledged originals of the Assignment and
Assumption Agreement and the Closing Statement;
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(c) Such evidence or documents as may reasonably be required by the
Title Company evidencing the status and capacity of Purchaser and the authority
of the Person or Persons who are executing the various documents on behalf of
Purchaser in connection with the purchase of the Property;
(d) Such other documents as are consistent with the terms of this
Agreement and reasonably required to close the transaction contemplated hereby;
and
(e) The Representation Update Certificate in the form attached hereto
as Exhibit H.
SECTION 8.4. COSTS AND PRORATIONS.
(a) GENERAL. Real estate taxes and installments assessments allocable to
the payment period that includes the the Closing Date, personal property taxes,
if any, rental income and all other items of income and expense with respect to
the Property shall be prorated between Seller and Purchaser as of the Closing
Date in accordance with this Section 8.4. Except as otherwise provided in this
Section 8.4, income and expenses shall be prorated on the basis of a 30-day
month and on the basis of the accrual method of accounting. All such items
attributable to the period prior to the Closing Date shall be credited or
charged to Seller, and all such items attributable to the period commencing on
the Closing Date shall be credited or charged to Purchaser.
(b) RENTS. The fixed and minimum rents and all additional rents, escalation
charges, common area maintenance charges, imposition charges, heating and
cooling charges, insurance charges, charges for utilities, percentage rent, and
all other rents, charges and commissions (collectively, the "Rents") payable by
the Tenant, to the extent collected by Seller on or prior to the Closing Date
and which represent payments of Rents applicable to a period of time subsequent
to the Closing Date, shall be prorated between Seller and Purchaser at Closing.
Purchaser shall be credited at Closing with (i) all security or other deposits
paid by the Tenant with respect to the Property; and (ii) rent prepaid beyond
the Closing Date.
(c) ARREARS. Any of the Rents which are due and payable by the Tenants with
respect to the period prior to the Closing Date, but which have not been
collected by Seller on or prior to the Closing Date, or payment of which has
been deferred until after the Closing Date (the "Arrearage Rents") shall not be
prorated at Closing. Any Arrearage Rents that are paid after the Closing Date
shall be paid to Seller, and if the Arrearage Rents are received by Purchaser,
Purchaser shall pay the Arrearage Rents to Seller promptly after collection by
Purchaser; provided, however, that all Rents collected after the Closing Date
shall be applied first to payment of all amounts due Purchaser and second to all
Arrearage Rents due to Seller. Purchaser shall have no obligation to commence
any action to enforce the obligation of Tenant to pay the Arrearage Rents.
(d) UNKNOWN RENTS. As used herein, the term "Unknown Rents" means any Rents
that have accrued as the Closing but are not due and payable on the Closing
Date: (i) because the lease year or other fiscal period for which such Rents are
to be computed has not yet expired (including, by way of example only,
escalation charges and percentage rents), or (ii) because for any other reason
the amount of such Rents cannot be calculated on the Closing Date. Unknown Rents
shall not be prorated at Closing but shall be apportioned promptly after
expiration of the applicable lease year or other fiscal period and collection of
the Unknown Rents. Purchaser shall make reasonable efforts to ascertain the
amount of the Unknown Rents (but shall not be obligated to commence any action
or proceeding to collect Unknown Rents), and when the amounts of the Unknown
Rents are ascertained and collected by Purchaser, Purchaser shall promptly pay
to Seller a portion (the "Pro Rata Share") of the Unknown Rents determined by
multiplying the Unknown Rents collected by a fraction, the numerator of which is
the number of days
15
in the applicable Lease year or other fiscal period up to but excluding the
Closing Date and the denominator of which is the number of days in the lease
year or other fiscal period, less any monies Seller has previously received on
account of the Unknown Rents and Seller's Pro Rata Share of the third party
expenses incurred by Purchaser in the collection of the Unknown Rents. In the
event it is determined after Closing that the amount of the Unknown Rents
received by Seller exceeds the Seller's Pro Rata Share, Seller shall promptly
pay such excess to Purchaser upon demand.
(e) TAXES. All real estate taxes assessed against the Property shall be
prorated between Seller and Purchaser on an accrual basis based upon the actual
current tax bill. If the most recent tax bill received by Seller before the
Closing Date is not the actual current tax bill, then Seller and Purchaser shall
initially prorate the taxes at the Closing by applying 100% of the tax rate for
the period covered by the most current available tax bill to the latest assessed
valuation, and shall reprorate the taxes retroactively when the actual current
tax bill is then available. All real estate taxes accruing before the Closing
Date shall be the obligation of Seller and all such taxes accruing on and after
the Closing Date shall be the obligation of Purchaser. Notwithstanding the
foregoing, such taxes shall not be prorated between Seller and Purchaser to the
extent that the Tenant is obligated to pay such taxes directly to the applicable
taxing authority pursuant to the Lease (and further provided that Tenant has
paid such taxes when due).
(f) ASSESSMENT INSTALLMENTS. If as of the Closing Date the Property is
encumbered or otherwise affected by any special assessment (whether or not a
lien) which is or may become payable in installments (which the Tenant is not
required to pay under the provisions of the Lease), then for the purposes of
this Agreement, all installments of such assessments that are due and payable
prior to the Closing Date shall either be paid directly by Seller, or Purchaser
shall be entitled to receive a credit against the Purchase Price in an amount
equal to all unpaid installments of such assessments, and in such event
Purchaser shall take title to the Property subject to the unpaid installments
not yet due and payable.
(g) UTILITIES. To the extent not payable directly by the Tenant, the actual
or estimated charges for utilities accrued and payable by Seller shall be
prorated between Seller and Purchaser. Deposits for utilities (the "Utility
Deposits"), plus any interest on the Utility Deposits to which Seller is or will
be entitled that are held by the provider of the utilities shall be paid to
Seller, or it transferable to Purchaser, shall at the election of the Purchaser
be assigned by Seller to Purchaser and Purchaser shall pay Seller the full
amount thereof at Closing. Seller shall retain the right to obtain a refund of
any Utility Deposits which are not required to be assigned to Purchaser, and
Purchaser will cooperate with Seller as reasonably requested in obtaining any
refund. The parties acknowledge that under the Lease, Tenant is responsible for
utility charges.
(h) (Reserved)
(i) CLOSING COSTS. Purchaser and Seller shall each pay their own legal fees
related to the preparation of this Agreement and all documents required to
settle the transaction contemplated hereby. Purchaser shall pay all costs
associated with its due diligence, including the cost of appraisals,
architectural, engineering, credit and environmental reports. Each party shall
pay one-half of the reasonable charges for the escrow services of the Title
Company. Seller shall pay all recording fees in connection with the release of
any encumbrances on the Property, the cost of a current ALTA survey for the
Property (up to the amount of $5,000) and all transfer taxes and documentary
stamp charges. Purchaser shall pay the cost of recording the Deed, the cost
Purchaser's title policy and any survey costs that are not Seller's
responsibility pursuant to the previous sentence. All other customary purchase
and sale closing costs shall be paid by Seller or Purchaser in accordance with
the custom in the jurisdiction where the Property is located.
16
(j) CLOSING STATEMENT. Purchaser and Seller shall cooperate to produce
prior to the Closing Date a schedule of prorations to be made as of the Closing
Date in accordance with the terms of this Agreement (the "Closing Statement").
SECTION 8.5. POSSESSION. Possession of the Property shall be delivered to
Purchaser by Seller at the Closing, subject only to the Lease and the Permitted
Exceptions.
SECTION 8.6. PURCHASE SUBJECT TO LEASE. Purchaser acknowledges and agrees
that Purchaser is purchasing the Property and taking possession of the Property
subject to the rights of Tenant under the Lease, and subject to the terms,
provisions and obligations of Seller as landlord and Tenant as tenant under the
Lease. Purchaser shall assume all obligations of Seller as landlord under the
Lease at the Closing pursuant to this Agreement and any documents delivered at
the Closing. Notwithstanding any representation, warranty, condition, covenant
or agreement to the contrary set forth in this Agreement, Purchaser acknowledges
and agrees that Seller is not in full possession or control of the Property due
to Tenant's rights under the Lease, and that Tenant has the rights and
obligations set forth in the Lease pertaining to the Property with respect to
Permits, the condition of title to the Property, personal property, Tenant's
employees, fixtures and improvements to be constructed at the Property and other
matters as set forth in the Lease. Except as expressly set forth in this
Agreement, Seller makes no representation or warranty pertaining to any
obligations of Tenant under the Lease.
ARTICLE 9
REAL ESTATE COMMISSION
SECTION 9.1. COMMISSIONS.
(a) If and when, but only if and when, the Closing is completed and the
Purchase Price is paid in full, Seller shall be obligated to pay a real estate
commission and/or brokerage fee to Seller's Broker in accordance with a separate
agreement between Seller and Seller's Broker. Such commissions shall be paid in
full at Closing.
(b) Seller represents, warrants and covenants to Purchaser that, except for
Seller's Broker, Seller has not dealt with any real estate agent or broker in
connection with the transaction contemplated hereby. Seller shall indemnify
Purchaser against all claims, costs and liability (including reasonable
attorneys' fees) arising from or relating to any claims by Seller's Broker
and/or any other broker or other Person claiming any commission or similar
compensation by, through or under Seller or Seller's Broker.
(c) Purchaser represents, warrants and covenants with Seller that, except
for Seller's Broker, Purchaser has not dealt with any real estate agent or
broker in connection with the transaction contemplated hereby.
The provisions of this Section 9.1 shall survive the Closing.
ARTICLE 10
TERMINATION AND DEFAULT
SECTION 10.1. TERMINATION WITHOUT DEFAULT. If the sale of the Property is
not consummated because of the failure of any condition precedent to Purchaser's
obligations expressly set forth in this Agreement or for any other reason except
a default by Purchaser in its obligation to purchase the Property in accordance
with the provisions of this Agreement (which shall be governed by Section 10.2)
or any
17
default by Seller of its obligations under this Agreement (which shall be
governed by Section 10.3), the Deposit shall promptly be returned to Purchaser
and neither Party shall have any further obligations hereunder, except for
Purchaser's obligations under Section 5.1(b)(iv), Section 5.2 and Section 5.3.
SECTION 10.2. PURCHASER'S DEFAULT. If the sale contemplated hereby is not
consummated because of a default by Purchaser in its obligation to purchase the
Property in accordance with the terms of this Agreement, and if such default is
not cured within ten (10) days from written notice thereof from Seller to
Purchaser (or any other cure period provided in this Agreement, or if such
default cannot be reasonably cured within such ten (10) day period, such
additional period as may be reasonably necessary to cure such default), then:
(a) this Agreement shall terminate except for Purchaser's obligations under
Section 5.1(b)(iv), Section 5.2 and Section 5.3; (b) the Deposit shall be paid
to and retained by Seller as liquidated damages; and (c) Seller and Purchaser
shall have no further obligations to each other except for Purchaser's
obligations under Section 5.1(b)(iv), Section 5.2 and Section 5.3. PURCHASER AND
SELLER ACKNOWLEDGE THAT THE DAMAGES TO SELLER IN THE EVENT OF A BREACH OF THIS
AGREEMENT BY PURCHASER WOULD BE DIFFICULT OR IMPOSSIBLE TO DETERMINE, THAT THE
AMOUNT OF THE DEPOSIT REPRESENTS THE PARTIES' BEST AND MOST ACCURATE ESTIMATE OF
THE DAMAGES THAT WOULD BE SUFFERED BY SELLER IF THE TRANSACTION SHOULD FAIL TO
CLOSE AND THAT SUCH ESTIMATE IS REASONABLE UNDER THE CIRCUMSTANCES EXISTING AS
OF THE DATE OF THIS AGREEMENT AND UNDER THE CIRCUMSTANCES THAT SELLER AND
PURCHASER REASONABLY ANTICIPATE WOULD EXIST AT THE TIME OF SUCH BREACH.
PURCHASER AND SELLER AGREE THAT SELLER'S RIGHT TO RETAIN THE DEPOSIT SHALL BE
SELLER'S SOLE REMEDY, AT LAW AND IN EQUITY, FOR PURCHASER'S FAILURE TO PURCHASE
THE PROPERTY IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT.
SECTION 10.3. SELLER'S DEFAULT. If Seller defaults in its obligation to
sell the Property to Purchaser in accordance with the terms of this Agreement,
and if such default is not cured within ten (10) days from written notice
thereof from Purchaser to Seller (or any other cure period provided in this
Agreement, or if such default cannot be reasonably cured within such ten (10)
day period, such additional period as may be reasonably necessary to cure such
default), then Purchaser may, as its sole and exclusive remedy at law or in
equity: (a) terminate this Agreement by giving written notice thereof to Seller,
in which event the Deposit will promptly be returned to Purchaser, Seller
promptly shall reimburse Purchaser for the actual, reasonable third party costs
that Purchaser has incurred in connection with this Agreement and the
transaction contemplated hereby (provided, however, that the aggregate amount of
such third party costs will not exceed Forty Thousand Dollars [$40,000]), and
the parties shall have no further obligation to each other except for
Purchaser's obligations under Section 5.1(b)(iv), Section 5.2 and Section 5.3;
(b) waive such default and consummate the transactions contemplated hereby in
accordance with the terms of this Agreement; or (c) specifically enforce this
Agreement. Purchaser hereby irrevocably waives any other right or remedy for
such default; provided, however, that if, in breach of this Agreement, Seller
sells the Property (or any portion thereof) to someone other than Purchaser or
otherwise takes action that renders the remedy of specific performance
impossible or impractical to obtain, Seller shall be liable for any damages
suffered by Purchaser as a result of such breach. If Purchaser brings an action
for specific performance, the Deposit shall be returned to Purchaser pending the
outcome of such action.
SECTION 10.4. BREACH OF REPRESENTATIONS. The representations and warranties
of Seller and Purchaser set forth in this Agreement or in any document or
certificate delivered by Seller or Purchaser in connection herewith shall
survive the Closing for a period of twelve (12) months (the "Claim Period"), and
no action or proceeding thereon shall be valid or enforceable, at law or in
equity, unless within such time, written notice thereof is given to the other
party.
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SECTION 10.5. MUTUAL INDEMNIFICATIONS.
(a) From and after the Closing, Seller shall indemnify Purchaser and
defend and hold Purchaser harmless from and against any and all claims, demands,
liabilities, costs, expenses, penalties, damages and losses, including actual,
reasonable attorneys' fees, resulting from any misrepresentation or breach of
warranty by Seller in this Agreement or in any document, certificate, or exhibit
given or delivered by Seller pursuant to or in connection with this Agreement.
(b) From and after the Closing, Purchaser shall indemnify Seller and
defend and hold Seller harmless from and against any and all claims, demands,
liabilities, costs, expenses, penalties, damages and losses, including actual,
reasonable attorneys' fees, resulting from any misrepresentation or breach of
warranty made by Purchaser in this Agreement or in any document, certificate, or
exhibit given or delivered by Purchaser pursuant to or in connection with this
Agreement.
(c) Seller shall indemnify Purchaser and defend and hold Purchaser
harmless from and against any and all claims, demands, liabilities, costs,
expenses, penalties, damages and losses, including actual, reasonable attorneys'
fees, asserted against, incurred or suffered by Purchaser resulting from any
personal injury or property damage occurring in, on or about the Property or
relating thereto and occurring during any period in which Seller or its
affiliates owned the Property, from any cause whatsoever other than as a
consequence of either (x) the acts or omission of Tenant, its agents, employees
or contractors or (y) the acts or omissions of Purchaser, its agents, employees
or contractors.
(d) Purchaser shall indemnify Seller and defend and hold Seller
harmless from any claims, losses, demands, liabilities, costs, expenses,
penalties, damages and losses, including actual, reasonable attorneys' fees,
asserted against, incurred or suffered by Seller resulting from any personal
injury or property damage occurring in, on or about the Property or relating
thereto and occurring during any period in which Purchaser or its affiliates
owns the Property or as provided in Section 5.1(b), from any cause whatsoever
other than as a consequence of the acts or omissions of Seller, its agents,
employees or contractors.
(e) In the event either party hereto receives notice of a claim or
demand which results or may result in indemnification pursuant to Section 10.5,
such party shall promptly give notice thereof to the other party to this
Agreement. The party receiving such notice shall promptly take such measures as
may be reasonably required to properly and effectively defend such claim, and
may defend same with counsel of its own choosing. In the event the party
receiving such notice fails to properly and effectively defend such claim, and
in the event such party is liable therefor, then the party so giving such notice
may defend such claim at the expense of the party receiving such notice. The
provisions of this Section 10.5 shall survive the Closing for a period of twelve
(12) months.
SECTION 10.6. SECURITY FOR POST CLOSING LIABILITY. To provide security for
any post Closing claims of Purchaser ("Post Closing Claims") made to enforce any
breach of the representations, warranties, and covenants made by Seller in this
Agreement that expressly survive the Closing, GSI Group Inc., a New Brusnwick,
Canada corporation (the "Parent"), the parent of Seller, shall be principally,
jointly and severally liable for Seller's liability for Post Closing Claims
during the Claim Period. In connection with Parent's obligations under this
Section 10.6, Parent agrees to be bound by the provisions of Section 11.2 below.
ARTICLE 11
MISCELLANEOUS
19
SECTION 11.1. ENTIRE AGREEMENT; SUCCESSORS AND ASSIGNS; MISCELLANEOUS
PROVISIONS. This Agreement constitutes the entire agreement between the parties
hereto with respect to the transactions contemplated herein, and it supersedes
all prior discussions, understandings or agreements. All Exhibits and Schedules
attached hereto are a part of this Agreement and are incorporated herein by
reference. This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns. This Agreement may
be executed in any number of counterparts and it shall be sufficient that the
signature of each party appear on one or more such counterparts, and all
counterparts shall collectively constitute a single agreement. No modification
of this Agreement shall be deemed effective unless in writing and signed by both
Seller and Purchaser. In the event the time for performance of any obligation
hereunder expires on a day that is not a Business Day, the time for performance
shall be extended to the next Business Day. The descriptive headings of the
paragraphs of this Agreement are inserted for convenience only and shall not
control or affect the meaning or construction of any provisions of this
Agreement. Words such as "herein", "hereinafter", "hereof" and "hereunder" when
used in reference to this Agreement, refer to this Agreement as a whole and not
merely to a subdivision in which such words appear, unless the context otherwise
requires. The singular shall include the plural and vice versa, unless the
context otherwise requires. The word "including" shall not be restrictive and
shall be interpreted as if followed by the words "without limitation." This
Agreement shall not be construed more strictly against one party than against
the other merely by virtue of the fact that it may have been prepared primarily
by counsel for one of the parties, it being recognized that both Purchaser and
Seller have contributed substantially and materially to the preparation of this
Agreement.
SECTION 11.2. WAIVER; GOVERNING LAW. The excuse or waiver of the
performance by a party of any obligation of the other party under this Agreement
shall only be effective if evidenced by a written statement signed by the party
so excusing or waiving. No delay in exercising any right or remedy shall
constitute a waiver thereof, and no waiver by Seller or Purchaser of the breach
of any covenant of this Agreement shall be construed as a waiver of any
preceding or succeeding breach of the same or any other covenant or condition of
this Agreement. This Agreement shall be construed and the rights and obligations
of Seller and Purchaser hereunder determined in accordance with the internal
laws of the State of Minnesota, without regard to the principles of conflict of
laws. The parties and the Parent agree that all actions or proceedings arising
in connection with this Agreement shall be tried and litigated exclusively in
the State and Federal courts located in the County of Suffolk in the
Commonwealth of Massachusetts. The aforementioned choice of venue is intended by
the parties and the Parent to be mandatory and not permissive in nature, thereby
precluding the possibility of litigation between or among the parties and the
Parent with respect to or arising out of this Agreement in any jurisdiction
other than that specified in this paragraph. Each party and the Parent hereby
waive any right each may have to assert the doctrine of forum non conveniens or
similar doctrine or to object to venue with respect to any proceeding brought in
accordance with this paragraph, and stipulates that the State and Federal courts
located in the County of Suffolk, Commonwealth of Massachusetts shall have in
personam jurisdiction and venue over each of them for the purpose of litigating
any dispute, controversy, or proceeding arising out of or related to this
Agreement. Each party and the Parent hereby authorizes and accepts service of
process sufficient for personal jurisdiction in any action against it as
contemplated by this paragraph by registered or certified mail, return receipt
requested, postage prepaid, to its address for the giving of notices as set
forth in this Agreement. Any final judgement rendered against a party in any
action or proceeding shall be conclusive as to the subject of such final
judgement and may be enforced in other jurisdictions in any manner provided by
law.
SECTION 11.3. NOTICES. All notices or other communications required or
provided to be sent by either party shall be in writing and shall be sent by:
(i) by United States Postal Service, certified mail, return receipt requested,
(ii) by any nationally known overnight delivery service for next day delivery,
(iii) delivered in person or (iv) sent by telecopier or facsimile machine which
automatically generates a transmission report that states the date and time of
the transmission, the length of the document
20
transmitted and the telephone number of the recipient's telecopier or facsimile
machine (with a copy thereof sent in accordance with clause (i), (ii) or (iii)
above). All notices shall be deemed to have been given upon receipt. All notices
shall be addressed to the parties at the addresses below:
To Seller or Parent: GSI Group Corporation or GSI Group Inc.
39 Manning Road
Billerica, Massachusetts 01821
Attention: General Counsel
Fax No. 978-663-9466
With a copy to: Oppenheimer Wolff & Donnelly LLP
Plaza VII, Suite 3300
45 South Seventh Street
Minneapolis, Minnesota 55402-1609
Attention: Lloyd Kepple
Fax No. 612-607-7100
To Purchaser: c/o STAG Capital Partners, LLC
93 Summer Street, 3rd Floor
Boston, Massachusetts 02110
Attention: Mr. Benjamin S. Butcher
Fax No. 617-574-0052
With a copy to: DLA Piper Rudnick Gray Cary US LLP
One International Place, 21st Floor
Boston, Massachusetts 02110-2600
Attention: John L. Sullivan, Esq.
Fax No. 617-406-6100
Any address or name specified above may be changed by notice given to the
addressee by the other party in accordance with this Section 11.3. The inability
to deliver notice because of a changed address of which no notice was given as
provided above, or because of rejection or other refusal to accept any notice,
shall be deemed to be the receipt of the notice as of the date of such inability
to deliver or rejection or refusal to accept. Any notice to be given by any
party hereto may be given by the counsel for such party.
SECTION 11.4. ATTORNEYS' FEES. In the event of a judicial or administrative
proceeding or action by one party against the other party with respect to the
interpretation or enforcement of this Agreement, the prevailing party shall be
entitled to recover actual, reasonable costs and expenses including reasonable
attorneys' fees and expenses, whether at the investigative, pretrial, trial or
appellate level. The prevailing party shall be determined by the court based
upon an assessment of which party's major arguments or position prevailed.
SECTION 11.5. IRS REAL ESTATE SALES REPORTING. Purchaser and Seller hereby
agree that the Title Company shall act as "the person responsible for closing"
the transaction which is the subject of this Agreement pursuant to Section
6045(e) of the Code and shall prepare and file all informational returns,
including IRS Form 1099-S, and shall otherwise comply with the provisions of
Section 6045(e) of the Code.
SECTION 11.6. FURTHER INSTRUMENTS. Each party, promptly upon the request of
the other, shall execute and have acknowledged and delivered to the other or to
Title Company, as may be appropriate,
21
any and all further instruments reasonably requested, necessary and appropriate
to evidence or give effect to the provisions of this Agreement and which are
consistent with the provisions of this Agreement.
SECTION 11.7. SEVERABILITY. The parties hereto intend and believe that each
provision in this Agreement comports with all applicable local, state and
federal laws and judicial decisions. If, however, any provision in this
Agreement is found by a court of law to be in violation of any applicable local,
state, or federal law, statute, ordinance, administrative or judicial decision,
or public policy, or if in any other respect such a court declares any such
provision to be illegal, invalid, unlawful, void or unenforceable as written,
then it is the intent of all parties hereto that, consistent with and with a
view towards preserving the economic and legal arrangements among the parties
hereto as expressed in this Agreement, such provision shall be given force and
effect to the fullest possible extent, and that the remainder of this Agreement
shall be construed as if such illegal, invalid, unlawful, void, or unenforceable
provision were not contained herein, and that the rights, obligations, and
interests of the parties under the remainder of this Agreement shall continue in
full force and effect.
SECTION 11.8. Before the Closing Date, neither party shall assign this
Agreement without the prior written consent of the other. Notwithstanding the
foregoing, at or immediately prior to Closing, Purchaser shall have the right to
assign Purchaser's interest in this Agreement to a single purpose entity owned
or controlled by Purchaser upon seven (7) days prior written notice to Seller so
long as Purchaser remains liable for Purchaser's obligations under this
Agreement.
SECTION 11.9. RECORDING NOTICE. Purchaser shall record no claim of interest
to the Property prior to the Closing Date, unless such recording is reasonably
required in connection with Purchaser's enforcement of this Agreement pursuant
to the terms hereof.
[The remainder of this page is intentionally left blank;
signature page follows.]
22
IN WITNESS WHEREOF, Seller and Purchaser hereto have executed this
Agreement as of the Effective Date.
SELLER:
GSI Group Corporation
By: \s\ THOMAS R. SWAIN
------------------------------------
Name: Thomas R. Swain
Title: VP Finance, CFO
PURCHASER:
SAgE Aggregation, LLC
By: \s\ BENJAMIN S. BUTCHER
------------------------------------
Name: Benjamin S. Butcher
Title: Manager
Parent executes this Agreement solely to acknowledge its obligations under
Section 10.6.
PARENT
GSI Group Inc.
By: \s\ THOMAS R. SWAIN
------------------------------------
Name: Thomas R. Swain
Title: VP Finance, CFO
23
SCHEDULE 1.1
DEFINED TERMS
"Access Date" has the meaning set forth in the Lease.
"Agreement" has the meaning set forth in the first paragraph of this
document.
"Arrearage Rents" has the meaning set forth in Section 8.4(c).
"Business Day" shall mean any day of the week other than (i) Saturday and
Sunday, (ii) a day on which banking institutions in Boston, Massachusetts or
Minneapolis, Minnesota are obligated or authorized by law or executive action to
be closed to the transaction of normal banking business, or (iii) a day on which
governmental or banking functions in Boston, Massachusetts or Minneapolis,
Minnesota area are interrupted because of extraordinary events such as
hurricanes, power outages or acts of terrorism.
"Certificate of Occupancy has the meaning set forth in Section 6.1(i).
"Claim Period" has the meaning set forth in Section 10.4.
"Closing" shall mean the consummation of the purchase and sale of the
Property pursuant to the terms of this Agreement.
"Closing Date" shall mean December 28, 2005.
"Closing Statement" has the meaning set forth in Section 8.4(j).
"Code" shall mean the Internal Revenue Code of 1986, and all amendments
thereto and all regulations issued thereunder.
"Confidential Information" shall mean any information concerning the
Property provided to Purchaser by Seller, excluding information that is
available to the general public or from sources other than Seller and any
information or results of testing or investigation of the Property obtained by
the Purchaser during Purchaser's review of the Property..
"Contracts" shall mean all development, construction, service, management,
leasing, operation, maintenance, repair and other contracts (other than the
Lease) affecting the Land or Improvements and all amendments and modifications
thereto. No Contracts shall be included in the sale of the Property to the
Purchaser.
"Deposit" has the meaning set forth in Section 3.1.
"Designated Seller Representatives" has the meaning set forth in Section
7.4.
"Effective Date" shall mean November 14, 2005.
"Employee Claims" shall have the meaning set forth in Section 5.6.
"Environmental Law" shall have the meaning set forth in the definition of
Hazardous Materials below.
"Hazardous Materials" shall mean (i) any waste, material or substance
(whether in the form of a liquid, a solid, or a gas and whether or not
air-borne), which is or is deemed to be a pollutant or a contaminant, or which
is or is deemed to be hazardous, toxic, ignitable, reactive, corrosive,
dangerous, harmful or injurious, or which presents a risk to public health or to
the environment, or which is or may become regulated by or under the authority
of any applicable local, state or federal laws, judgments, ordinances, orders,
rules, regulations, codes or other governmental restrictions, guidelines or
requirements, any amendments or successor(s) thereto, replacements thereof or
publications promulgated pursuant thereto (collectively "Environmental Laws",
and individually, "Environmental Law"); (ii) petroleum, including crude oil or
any fraction thereof; (iii) ACM; (iv) any polychlorinated biphenyl; (v) any
radioactive material; and (vi) urea formaldehyde. In addition to the foregoing,
the term "Environmental Laws" shall be deemed to include, without limitation,
local, state and federal laws, judgments, ordinances, orders, rules,
regulations, codes and other governmental restrictions, guidelines and
requirements, any amendments and successors thereto, replacements thereof and
publications promulgated pursuant thereto, which deal with or otherwise in any
manner relate to, environmental matters of any kind.
"Improvements" shall mean that certain building containing approximately
______ net rentable square feet and located at 8401 Jefferson Highway, Maple
Grove, Minnesota, and all other buildings, structures and other improvements
situated upon the Land and any fixtures, systems and facilities owned by Seller
and located on the Land.
"Intangible Property" shall mean all of Seller's right, title and interest,
if any, in all intangible assets relating to the Land or Improvements, including
all of Seller's right, title and interest, if any, in all (a) the Warranty, (b)
all licenses, permits and approvals relating to the Land or Improvements, and
(c) all plans and specifications relating to the Land or Improvements, in each
case to the extent that Seller may legally transfer the same.
"Land" shall mean the land described on Exhibit A attached hereto, together
with all privileges, rights, easements and appurtenances belonging to such land
and all right, title and interest (if any) of Seller in and to any streets,
alleys, passages or other rights-of-way or appurtenances included in, adjacent
to or used in connection with such land and all right, title and interest (if
any) of Seller in all mineral rights appurtenant to such land.
"Lease" shall mean the lease dated _______________ between the Seller, as
Landlord and Boston Scientific Corporation, as Tenant, as amended by
______________.
"Lease Transaction" shall mean any of the following: (a) the execution of
any new lease or other occupancy agreement for any portion of the Property; (b)
any modification of the Lease or any other occupancy agreement affecting the
Property; (c) the consent to any assignment of or subletting under the Lease; or
(d) the termination of the Lease.
"Legal Requirements" means all applicable zoning, building, health and
safety, environmental and all other laws, legislation, rules, codes, by-laws,
ordinances, resolutions, regulations, orders and decrees relating in any way to
the Property.
"Material Casualty" has the meaning set forth in Section 6.3.
"Material Taking" has the meaning set forth in Section 6.4.
"Permitted Exceptions" shall mean all matters shown on the Title
Commitment, including the Lease, (other than Voluntary Liens) or the Survey,
except for those matters as to which, in accordance with
Section 4.1, Purchaser makes a written objection on or before the Study Period
Notice Deadline, unless the same are waived by the Purchaser in writing. In no
event shall any Voluntary Lien constitute a Permitted Exception, and all
Voluntary Liens shall be paid in full or discharged or bonded over (such that
the same is not listed as an exception to Purchaser's title insurance policy
issued by the Title Company at the Closing) at or before the Closing or out of
the proceeds otherwise due to Seller.
"Permits" has the meaning set forth in Section 7.3(b)(iv)(C).
"Person" shall mean any individual, estate, trust, partnership, limited
liability company, limited liability partnership, corporation, governmental
agency or other legal entity.
"Post Closing Claims" has the meaning set forth in Section 10.6.
"Property" shall mean, collectively, the Real Property, Seller's interest
in the Leases, and the Intangible Property.
"Purchase Price" shall mean the purchase price for the Property as
specified in Section 2.2.
"Purchaser" means the Person named as the Purchaser in the first paragraph
of this Agreement, together with any assignee of the originally named Purchaser.
"Purchaser Title Objections" has the meaning set forth in Section 4.1.
"Real Property" shall mean the Land and the Improvements.
"Reciprocal Easement Agreements" shall mean any and all reciprocal easement
agreements, declarations of covenants, conditions, restrictions and easements,
party wall agreements, "tie-back" agreements, common area agreements, shared
maintenance agreements, common use agreements or similar agreements or
understandings which burden or benefit the Real Property and other adjacent real
property, and all supplements, amendments, modifications and memoranda thereof,
relating to the development, use, operation, management, maintenance or
occupancy of the Real Property.
"Required Endorsements" shall mean the following ALTA endorsements (to the
extent legally available in the jurisdiction in which the Real Property is
located): (a) Form 9 - Comprehensive (modified as appropriate for an owner's
policy); (b) Form 3.1 Zoning (including parking and loading); (c) survey
endorsement; (d) access endorsement; (e) if the land on which the Property is
located consists of more than one parcel, a contiguity endorsement; and (f) a
tax parcel endorsement. All Required Endorsements shall be paid for by the
Purchaser.
"Restricted Period" shall mean the period commencing five (5) Business Days
before the end of the Study Period and ending on the earlier of the Closing or
the termination of this Agreement.
"Seller" has the meaning set forth in the first paragraph of this
Agreement.
"Seller Representations" shall mean the representations and warranties of
Seller expressly set forth in Section 7.3.
"Seller's Broker" shall mean Colliers International.
"SNDA" has the meaning set forth in Section 6.1(d).
"Study Period" has the meaning set forth in Section 5.2.
"Study Period Notice" has the meaning set forth in Section 5.2.
"Study Period Notice Deadline" has the meaning set forth in Section 5.2.
"Survey" has the meaning set forth in Section 4.1.
"Tenant" shall mean Boston Scientific Corporation., a ____________
corporation.
"Termination Notice" has the meaning set forth in Section 5.2.
"Title Commitment" has the meaning set forth in Section 4.1.
"Title Company" shall mean the Boston, Massachusetts office of Stewart
Title Guaranty Company, attention, Terrance Miklas.
"Unknown Rents" has the meaning set forth in Section 8.4(d).
"Utility Deposits" has the meaning set forth in Section 8.4(g).
"Voluntary Liens" shall mean any of the following encumbrances on the
Property or any portion thereof: (a) any mortgage or deed of trust granted or
assumed in writing by Seller; (b) any mechanic's or construction lien; (c) any
lien for unpaid taxes that are due and payable prior to the Closing Date,
assessments, utility, water, sewer or other governmental charges due and payable
as of the Closing Date; and (d) any other lien or encumbrance granted, assumed
or suffered by Seller and securing the repayment of money or other claims made
against Seller.
SCHEDULE 3.1
DEPOSIT ESCROW PROVISIONS
[ATTACHED TO AND A PART OF REAL ESTATE PURCHASE AND SALE AGREEMENT]
(a) Title Company shall hold the Deposit in a separate, segregated,
interest bearing account approved by Purchaser and Seller. If the Closing
occurs, the Deposit shall be credited against the Purchase Price. Interest
earned on the Deposit shall be considered part of the Deposit. The Deposit shall
be held and disbursed by Title Company in the following manner:
(i) to Seller at the upon consummation of the Closing; or
(ii) to Seller upon receipt of written demand therefor, stating that
Purchaser has defaulted in the performance of Purchaser's obligations under this
Agreement and the facts and circumstances underlying such default; provided,
however, that Title Company shall not honor such demand until at least ten (10)
Business Days after it has sent a copy of such demand to Purchaser, nor
thereafter if Title Company shall have received written notice of good faith
objection from Purchaser in accordance with paragraph (b) below; or
(iii) to Purchaser upon receipt of written demand therefor, stating
that either (x) this Agreement has been terminated pursuant to a provision
hereof and certifying the basis for such termination, or (y) Seller has
defaulted in performance of Seller's obligations under this Agreement and the
facts and circumstances underlying such default or that Purchaser is otherwise
entitled to the Deposit under the provisions of this Agreement; provided,
however, that except for a termination pursuant to Section 5.2, Title Company
shall not honor such demand until at least ten (10) Business Days after it has
sent a copy of such demand to Seller, nor thereafter if Title Company shall have
received written notice of good faith objection from Seller in accordance with
paragraph (b) below. Notwithstanding anything to the contrary herein, if at any
time before the Study Period Notice Deadline, Purchaser provides Title Company
with written demand for the return of the Deposit, Title Company shall
immediately return the Deposit to Purchaser.
(b) Upon receipt of written demand for the Deposit by Purchaser or
Seller pursuant to clause (a)(ii) or (a)(iii) above, Title Company shall
promptly send a copy thereof to the other party. Except for a termination under
Section 5.2 (as to which Seller shall have no right to object), the other party
shall have the right to make a good faith objection to the delivery of the
Deposit by sending written notice of such objection to Title Company within ten
(10) Business Days after Title Company sends a copy of the written demand to the
objecting party. Upon receipt of such notice, Title Company shall promptly send
a copy thereof to the party who made the written demand.
(c) Except for the return of the Deposit to Purchaser as provided in
the last sentence of Section (a)(iii) above, in the event of any dispute between
the parties, Title Company shall disregard all instructions received and may
hold the Deposit until the dispute is mutually resolved and Title Company is
advised of this fact in writing by both Seller and Purchaser, or Title Company
is otherwise instructed by a final judgment of a court of competent
jurisdiction.
(d) In the event Title Company shall be uncertain as to its duties or
rights hereunder or shall receive conflicting instructions, claims or demands
from the parties hereto, or instructions which conflict with any of the
provisions of this Agreement, Title Company shall be entitled to refrain from
taking any action other than to keep safely the Deposit until Title Company
shall be instructed otherwise in writing signed by both Seller and Purchaser, or
by final judgment of a court of competent jurisdiction.
(e) Title Company may rely upon, and shall be protected in acting or
refraining from acting upon, any written notice, instruction or request
furnished to it hereunder and believed by it to be genuine and to have been
signed or presented by the proper party or parties, provided that any
modification of this Schedule 3.1 shall be signed by Title Company, Purchaser
and Seller.
(f) Seller and Purchaser shall jointly and severally hold Title
Company harmless against any loss, damage, liability or expense incurred by
Title Company not caused by its willful misconduct, gross negligence or breach
of these escrow provisions, arising out of or in connection with its entering
into this Agreement and the carrying out of its duties hereunder, including the
reasonable costs and expenses of defending itself against any claim of liability
or participating in any legal proceeding. As between the Seller and the
Purchaser, the party responsible for any such loss, damage, liability or expense
shall be responsible for any liability to the Title Company pursuant to the
foregoing joint and several indemnification.
JOINDER BY THE TITLE COMPANY
By its execution hereof, the Title Company hereby (i) covenants and agrees
to hold the Deposit in accordance with the above provisions, and (ii)
acknowledges receipt of a copy of the Real Estate Purchase and Sale Agreement to
which this Schedule 3.1 is attached.
By: ,
-----------------------------------
Name:
----------------------------------
Title:
---------------------------------
Date:
----------------------------------
SCHEDULE 5.1
(1) the Lease, and all written notices, material correspondence or
other material written communications or agreements between the Seller and the
Tenant relating to the Lease, including any pending or proposed amendments to
the Lease;
(2) any tenant estoppel certificates or subordination, nondisturbance
and attornment agreements previously provided by the Tenant;
(3) copies of any documents relating to any proposed or actual
sublease or assignment of the Tenant's interest under the Lease, to the extent
in Seller's possession or control;
(4) copies of all financial, profile and background information
concerning the Tenant that is in Seller's possession or control;
(5) a summary of all security deposits paid under the Lease;
(6) a copy of the Tenant's current insurance certificate, if any;
(7) copies of Tenant billings and reconciliations for the current
year, if any;
(8) a copy of any management agreements relating to the Property, if
any;
(9) a schedule of any leasing commissions that are due under the Lease
or will become due upon and extension, expansion or renewal of the Lease;
(10) the Warranty;
(11) all Contracts;
(12) as-built plans and specifications for the Improvements in
Seller's possession or control;
(13) the Certificate of Occupancy (as defined in Section 6.1(i)) for
the Improvements and all other Permits in Seller's possession or control;
(14) all engineering, geotechnical, environmental, and other similar
studies or reports in the possession or control of the Seller relating to the
Property (the "Reports"); it being understood and agreed by the parties hereto
that Seller is in no way warranting or representing, express or implied, the
accuracy or completeness of anything contained in the Reports;
(15) copies of all tax bills and statements for the Property for the
three (3) calendar years preceding the Effective Date and for the current year,
and copies of any notices of actual or proposed reassessments of the Property;
(16) copies of all utility bills and statements for the Property for
the 2003 and 2004 calendar years and for the current year;
(17) copies of monthly and annual operating statements for the
Property for the 2003 and 2004 calendar years and year-to-date statements for
the current year;
(18) any information on material maintenance and capital improvements
conducted by Seller at the Property for the three (3) calendar years preceding
the Effective Date and during the current year;
(19) copies of any notices received in connection with any purported
or actual violation at the property of any Legal Requirement;
(20) copies of any Reciprocal Easement Agreements, if any, and
agreements with any governmental agencies relating to the development,
construction, ownership or operation of the Property; and
(21) copies of the existing insurance policies for the Property as
required under the Lease together with recent invoices with respect thereto.
EXHIBIT A
DESCRIPTION OF LAND
EXHIBIT B
FORM OF TENANT ESTOPPEL CERTIFICATE
Re: Lease dated _________________, by and between GSI Lumonics Corporation, as
Landlord, and ____________, as Tenant (the "Lease").
To: Landlord and SAgE Aggregation, LLC and any other purchaser or potential
purchaser ("Purchaser") of the property commonly known as 8401 Jefferson
Highway, Maple Grove, Minnesota
The undersigned Tenant under the Lease certifies as follows (Capitalized terms
used herein and not otherwise defined have the meanings set forth in the Lease):
(1) The Lease has been duly authorized, executed and delivered by Tenant to
Landlord (or its predecessor-in-interest), has not been amended, modified,
superceded or supplemented in any way, and constitutes the entire agreement
between Landlord and Tenant with respect to the demised premises identified
therein (the "Premises") and the building and other property of which the
Premises are a part (the "Property");
(2) The Lease is in full force and effect, and Tenant does not have any defense,
credit, offset, claim or counterclaim by or in favor of Tenant against Landlord
(or its predecessor-in-interest) under the Lease against the obligation to pay
rent or other charges due from Tenant under the Lease or against any other
obligations of Tenant thereunder;
(3) (a) The Commencement Date of the Lease was ___________; the Rent
Commencement Date of the Lease was __________; and the expiration date of the
initial term of the Lease is __________;
(b) There are no options remaining unexercised on the part of the Tenant to
renew the Lease except as set forth in Section ____ of the Lease;
(c) Base Rent under the Lease is currently $________ per month and all
other components of rent are payable as and when set forth in the Lease;
(4) Tenant has unconditionally taken possession of and is occupying all of the
Premises and Tenant has commenced the payment of rents for all space subject to
the Lease. Landlord has completed all work to be performed by Landlord under the
Lease, if any, in a good and workmanlike manner and in accordance with the Lease
and such work has been accepted by Tenant and all reimbursements and allowances
due to Tenant under the Lease in connection with such work have been paid in
full. Tenant has no knowledge of any defects in the Premises or the Property or
any related improvements or facilities; Tenant has not delivered any notice
alleging any defect or deficiency in the work relating to the Premises or the
Property or any related improvements or facilities, and Tenant is not aware of
any currently existing condition or circumstance which would cause Tenant to
give such any such notice. Landlord has satisfied any and all commitments made
to induce Tenant to enter in to the Lease;
(5) Tenant has no right to cancel or terminate the Lease and no option or right
to purchase all or any part of the Premises, the Property;
(6) Tenant has not paid any security deposit under the Lease except as follows:
____________.
(7) All minimum and additional rent and other sums payable by Tenant under the
Lease have been fully paid through ______________, 200_ in accordance with the
provisions of the Lease. No rent has been paid more than one month in advance;
(8) Tenant has not been granted and is not entitled to any free rental or any
concession in or abatement of rent;
(9) Neither Tenant nor Landlord is in default of its obligations under the Lease
and, to the best of Tenant's knowledge, there is no state of facts that with the
giving of notice, the passage of time, or both, could ripen into such a default;
(10) Tenant confirms that its address for purposes of notices under the Lease is
as follows: _____________________________________________.
(11) No leasing commissions or similar fees are outstanding in connection with
the Lease or will be due from the then owner of the landlord's interest under
the Lease in connection with any renewal, extension or expansion of the Lease;
(12) The Premises are adequately served by utilities and Landlord has satisfied
all obligations relating thereto under the Lease;
(13) Tenant has not assigned the Lease or any of its interests therein or sublet
any portion of the Premises; Tenant has no current plans to downsize or
eliminate its operations at the Premises; and
(14) A true and complete copy of the Lease is attached hereto and made a part
hereof.
This certificate shall be binding upon Tenant and its successors and assigns (if
any). Tenant understands and agrees that this certificate may be relied upon by
Purchaser (and/or its assignee and/or successors-in-interest as owners of the
Property) and by each lender of Purchaser that finances all or any portion of
the purchase price of the Property or otherwise provides debt financing to
Purchaser.
Tenant
BOSTON SCIENTIFIC CORPORATION
By: ,
-----------------------------------
Name:
----------------------------------
Title:
---------------------------------
Date:
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EXHIBIT C
LEASE RELATED DISCLOSURES
EXHIBIT D
EXCEPTIONS TO SELLER REPRESENTATIONS
EXHIBIT E
DEED
LIMITED WARRANTY DEED FORM NO. 23-M MINNESOTA UNIFORM
CORPORATION, PARTNERSHIP OR LIMITED CONVEYANCING BLANKS (1/15/97)
LIABILITY COMPANY TO CORPORATION,
PARTNERSHIP OR LIMITED LIABILITY COMPANY (TOP 3 Inches Reserved for Recording
Data)
________________________________________________________________________________
DEED TAX DUE: $_________________________________________________________________
Date: __________________________________________________________________________
FOR VALUABLE CONSIDERATION, ____________________________________________________
________________________________________________________________________________
a ________________________________ under the laws of ___________________________
Grantor, hereby conveys and quitclaims to ______________________________________
________________________________________________________________________________
Grantee, a ___________________________________________________ under the laws of
______________________________________________________________, real property in
________________________________________________ County, Minnesota, described as
follows: _______________________________________________________________________
________________________________________________________________________________
together with all hereditaments and appurtenances.
This Deed conveys after-acquired title. Grantor warrants that Grantor has not
done or suffered anything to encumber the property, EXCEPT: all easements,
covenants and restrictions of record.
Check box if applicable:
[ ] The Seller certifies that the seller does not know of any wells on the
described real property.
[ ] A well disclosure certificate accompanies this document.
[ ] I am familiar with the property described in this instrument and I
certify that the status and number of wells on the described real property
have not changed since the last previously filed well disclosure
certificate.
----------------------------------------
By:
------------------------------------
Its:
-----------------------------------
Affix Deed Tax Stamp Here
By:
------------------------------------
Its:
-----------------------------------
STATE OF MINNESOTA )
) SS.
COUNTY OF _________ )
This instrument was acknowledged before me on (Date)
By _____________________________________ and ___________________________________
the ___________________________________, and ___________________________________
of ____________________________________, and ___________________________________
under the laws of _____________________, on behalf of the ______________________
Notarial Stamp or Seal
----------------------------------------
Signature of Notary Public or other
official
THIS INSTRUMENT WAS DRAFTED BY Check here if part all of the land is
(NAME & ADDRESS) Registered (Torrens)
_____________________________________ [ ]
_____________________________________ Tax Statements for the real property
described in this instrument should be
sent to (include name and address of
Grantee:
________________________________________
________________________________________
EXHIBIT F
(RESERVED)
EXHIBIT G
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Assignment") is executed as
of ________________, 200_ by and between ______________________ ("Assignor"),
and _____________ ("Assignee").
BACKGROUND
Assignor has this day conveyed to the Assignee the property located in
___________________, and more particularly described in Exhibit A hereto (the
"Premises") and, in connection with the conveyance of the Premises, Assignor and
Assignee intend that Assignor's right, title, interests, powers, and privileges
in and under all leases and security deposits affecting the Premises and other
matters stated herein be assigned and transferred to Assignee.
AGREEMENT
In consideration of the mutual covenants contained herein and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. LEASES. Assignor hereby transfers and assigns to Assignee all of
Assignor's right, title and interest as landlord or otherwise in that certain
lease dated __________ between Assignor as landlord and ___________, as tenant
(the "Lease"). By executing this Assignment, Assignee hereby accepts, assumes
and agrees to perform all of the terms, covenants and conditions of the Lease on
the part of the landlord therein required to be performed, including Assignor's
obligations pertaining to the Security Deposits (as such term is defined below),
from and after the date hereof, but not prior thereto. Assignor also hereby
transfers and assigns to Assignee the security deposit held by the Assignor
relative to the Lease (the "Security Deposits").
2. WARRANTY. Assignor hereby transfers and assigns to Assignee all of
Assignor's right, title and interest in that certain _______________________.
3.. MUTUAL INDEMNIFICATION. Assignor shall indemnify and hold Assignee
harmless from and against any and all damages, claims, liabilities, costs
(including reasonable attorney's fees), expenses and causes of action which may
arise and accrue from or under the Lease and that are attributable to periods of
time prior to the date hereof, regardless of when same are discovered or
asserted. Assignee shall indemnify and hold Assignor harmless from and against
any and all damages, claims, liabilities, costs (including reasonable attorney's
fees), expenses and causes of action which may arise and accrue from or under
the Lease or any of them and that are attributable to periods of time on or
after the date hereof, regardless of when same are discovered or asserted.
4. FURTHER ASSURANCES. Assignor and Assignee agree to take all further
actions and execute, acknowledge and deliver all further documents that are
reasonably necessary or useful in carrying out the purposes hereof.
5. SUCCESSORS AND ASSIGNS. This Assignment shall inure to the benefit of,
and be binding upon, the successors, executors, administrators, legal
representatives and assigns of the parties hereto.
IN WITNESS WHEREOF, this Assignment has been duly signed and sealed by the
parties as of the date set forth above.
ASSIGNOR:
--------------------------------------
By: ,
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
Date:
---------------------------------
ASSIGNEE:
---------------------------------------
By: ,
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
Date:
---------------------------------
EXHIBIT A
(to Assignment and Assumption)
Property Description
EXHIBIT B
(to Assignment and Assumption)
EXHIBIT H
UPDATED REPRESENTATION CERTIFICATE FOR SELLER
The undersigned, as Seller under a Real Estate Purchase and Sale Agreement
("Purchase Agreement") dated as of _________________, 200__ between
______________________ ("Seller") and _____________________ ("Purchaser"), does
hereby certify to Purchaser that the representations and warranties set forth in
Section 7.3 of the Purchase Agreement are hereby reaffirmed as of the date
hereof.
Seller's liability hereunder shall be subject to the limitations set forth
in the Purchase Agreement.
Dated as of this ____ day of ____________, 200__.
SELLER
[ ]
--------------------------------------
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
UPDATED REPRESENTATION CERTIFICATE FOR PURCHASER
The undersigned, as Purchaser under a Real Estate Purchase and Sale
Agreement ("Purchase Agreement") dated as of _________________, 200__ between
______________________ ("Seller") and _____________________ ("Purchaser"), does
hereby certify to Seller that the representations and warranties set forth in
Section 7.2 of the Purchase Agreement are hereby reaffirmed as of the date
hereof.
Purchaser's liability hereunder shall be subject to the limitations set
forth in the Purchase Agreement.
Dated as of this ____ day of ____________, 200__.
PURCHASER
[ ]
--------------------------------------
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------