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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES
EXCHANGE ACT OF 1934
April 27, 2001
(Date of Report)
April 19, 2001
(Date of earliest event reported)
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Commission File Number 0-26816
IDX SYSTEMS CORPORATION
(Exact name of registrant as specified in its charter)
Vermont 03-0222230
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1400 Shelburne Road
South Burlington, VT 05403
(Address of principal executive offices)
Registrant's telephone number, including area code: (802-862-1022)
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Exhibit Index on Page 2
ITEM 5. OTHER EVENTS
On April 19, 2001, the Company completed the purchase of the land and buildings
located at the Company's headquarters in South Burlington, Vermont, consisting
of approximately 112,000 square feet of office space, for a purchase price of
$15 million from BDP Realty Associates, a related entity that is included in the
Company's consolidated financial statements. The Company previously leased this
office space from BDP Realty Associates.
The sale price was determined by an independent appraisal of the real estate,
and the transaction was considered and approved by a committee of the Company's
Board of Directors composed solely of persons without any interest in the
transaction.
The Company's relationship to BDP Realty Associates and the Company's proposed
intention to purchase this real estate is disclosed in the Company's Annual
Report on Form 10-K for each of the fiscal years ended December 31, 1999 and
2000, and in the Company's proxy statements relating to the 2000 annual meeting
of stockholders and 2001 annual meeting of stockholders, each as filed with the
Securities and Exchange Commission. The purchase was delayed until the
divestiture of the Company's subsidiary, Channelhealth Incorporated, which was
completed in January 2001.
Copies of two purchase and sale agreements relating to the purchase described in
this Item 5 are filed herewith as Exhibits 99A and 99B, respectively, and are
incorporated herein by reference in their entirety. The foregoing description of
the terms of these agreements does not purport to be complete and is qualified
in its entirety by reference to the full text of such agreements.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(c) Exhibits.
EXHIBIT NO. DESCRIPTION PAGE
- ----------- ----------- ----
99A Purchase and Sale Agreement by 4
and between BDP Realty Associates
and IDX Systems Corporation dated as
of April 19, 2001 for 1400 and 1500
Shelburne Road property
99B Purchase and Sale Agreement by 27
and between BDP Realty Associates
and IDX Systems Corporation dated
as of April 19, 2001 for 50 Green
Mountain Drive property
Page 2
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
IDX SYSTEMS CORPORATION
(Registrant)
Date: April 27, 2001 By: /S/ JOHN A. KANE
___________________________________
John A. Kane
Vice President, Finance and Administration
Chief Financial Officer, and Treasurer
Page 3
EXHIBIT 99A
PURCHASE AND SALE AGREEMENT
THIS IS A LEGALLY BINDING CONTRACT
THIS AGREEMENT is made and entered into as of this 19th of April 2001
between BDP Realty Associates, a Vermont general partnership with a place of
business in the City of South Burlington, hereinafter called SELLER, and IDX
Systems Corporation, a Vermont corporation with a place of business in the City
of South Burlington, Vermont, hereinafter called BUYER.
WITNESSETH
In consideration of the mutual agreements of the parties herein
contained, it is agreed as follows:
1. PREMISES: SELLER agrees to sell and BUYER agrees to buy certain lands
and premises (hereinafter "Premises") located in the City of South Burlington,
in the County of Chittenden and State of Vermont. The Premises are further
described as being located at 1400 & 1500 Shelburne Road, in the City of South
Burlington, Vermont, containing 14.4 acres, more or less, together with
improvements thereon. The Premises are more particularly described in the
attached Schedule A.
2. PURCHASE PRICE. The total purchase price to be paid by BUYER to
SELLER for the Premises shall be Fourteen Million Four Hundred Twenty-Six
Thousand and No/100ths Dollars ($14,426,000.00). The purchase price shall be
payable as follows:
Ninety-Six Thousand and No/100ths Dollars ($96,000.00) herewith as
a deposit, the receipt of which is acknowledged by SELLER. The deposit shall be
held in an interest bearing
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escrow account by The Howard Bank. The deposit and accrued interest shall be
disbursed and applied against the Purchase Price at closing, or shall otherwise
be disbursed according to the terms of this Agreement. The balance of the
purchase price is to be paid by cash, certified check, or cashier's check at
closing.
3. CLOSING DATE: The closing shall take place on or before April 19,
2001 at a mutually agreed upon time and location. Closing may take place earlier
if the parties agree. At BUYER's option, BUYER may extend the closing date for
sixty (60) days upon the payment of an additional deposit of One Hundred
Ninety-Two Thousand and No/100ths Dollars ($192,000.00) which shall be held in
the deposit escrow account described in Paragraph 2 above.
4. CLOSING DOCUMENTS; BUILDING EXPANSION PROJECT:
A. SELLER agrees that upon tender of the balance of the purchase price
as hereinabove provided at the time of closing, SELLER will execute and deliver
to BUYER a good and sufficient Warranty Deed for the Premises, free and clear of
all liens and encumbrances (other than mechanic's and materialmen's liens
relating to the Building Expansion Project, as defined below), furnished and
paid for by SELLER, conveying marketable fee simple title as defined by Vermont
law. At no additional cost, SELLER shall also convey, by appropriate assignment,
with all necessary consents obtained, all plans and municipal and state
approvals and permits necessary for commencement of the Building Expansion
Project.
SELLER shall also deliver the following at closing:
o a Vermont Real Property Transfer Tax Return;
o a Vermont Land Gains LG-2 Return (if necessary);
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o a Commissioner's Certificate of Reduced Withholding in the event
SELLER requests that BUYER withhold a reduced Vermont income tax
amount;
o an affidavit to the effect that SELLER is not a foreign
person as that term is used in Section 1445 of the Internal Revenue
Code;
o reasonable evidence that SELLER has duly authorized the
execution, delivery and performance of this agreement and the
incumbency and authority of the representatives of SELLER signing this
agreement and the other closing documents to be executed by SELLER;
o a certificate confirming that the representations and warranties made
by SELLER in Paragraph 14 are true and correct in all material
respects, or disclosing any facts discovered subsequent to the date
hereof which are contrary to any such representations and warranties;
o copies or originals, as the case may be, of the maps, files, books
and records in SELLER's possession relating solely to the Premises to
be conveyed in accordance with this agreement; and
o an owner's affidavit as required by the title insurance company
issuing the owner's policy, if any, to be purchased by BUYER.
At closing, BUYER shall deliver to SELLER the following:
o the balance of the Purchase Price;
o a Vermont Real Property Transfer Tax Return;
o a Vermont Land Gains LG-1 Return (if necessary); and
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o evidence satisfactory to SELLER that BUYER has duly authorized the
execution, delivery and performance of this agreement and the incumbency
and authority of the officers of BUYER signing this agreement and the
other closing documents to be executed by BUYER.
B. The Building Expansion Project is defined as the first phase
of the improvements described in Land Use Permit #4C0391-09 issued to SELLER and
recorded in Volume 459, Page 352 of the City of South Burlington land records,
and in the following permits which are incorporated in Land Use Permit
#4C0391-09: (i) Water Supply and Wastewater Disposal Permit #WW-4-0442-1 issued
on June 17, 1999, (ii) Final Discharge Permit #1-0512 [sic; the permit is
entitled Amended Discharge Permit #1-0512] issued on June 8, 1999 [sic; the
permit was issued on July 8, 1999]; and (iii) Public Water System Permit to
Construct #5091 issued on May 6, 1999 (such permits, together with Land Use
Permit #4C0391-09, are collectively referred to as the "Act 250 Permit"). The
Act 250 Permit covers all improvements in a phased development to take place at
the Premises and additional premises located at 50 Green Mountain Drive, South
Burlington, Vermont (which property is covered by a Purchase and Sale Agreement
of even date herewith by and between BUYER and SELLER and is hereinafter
referred to as the "Allson Parcel"), over approximately six years. The first
phase of the development described in the Act 250 permit constitutes the
Building Expansion Project and consists of (i) an approximately 90,000 square
foot, three story office building at 1500 Shelburne Road (which is the first
phase of the 239,708 square foot, six story office and storage building
referenced in the Act
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250 Permit), (ii) an approximately 20,500 square foot, two story facility
containing a new reception area, multi-media center, kitchen and employee dining
hall linking the existing 124,200 square foot office building at 1400 Shelburne
Road to the new 90,000 square foot office building at 1500 Shelburne Road, (iii)
the extension of Green Mountain and IDX Drives and off-site traffic improvements
to Route 7 (Shelburne Road), and (iv) all related infrastructure and site
improvements to be built in connection with such buildings and road and traffic
improvements, including any such infrastructure and site improvements located on
the Allson Parcel.
5. EXISTING LEASE: Effective upon closing, the Amended and
Restated Lease Agreement, dated as of November 1, 1997 (together with all
predecessor lease agreements and all amendments thereto, the "Lease Agreement")
between the parties hereto shall become null and void, subject, however, that
the Minimum Rent and Additional Rent, as defined in the Lease Agreement, shall
be pro-rated (or refunded as appropriate) through the time of closing.
6. CONDITIONS TO PURCHASE: BUYER's obligation to purchase is
conditioned upon (i) the results of such tests and inspections as BUYER may
require, including, but not limited to, a Phase 1 environmental site assessment,
asbestos and radon tests, and mechanical, structural, and termite and other
wood-boring insect inspections, such tests and inspections to be conducted by
professionals of BUYER'S choice, to be completed at BUYER's sole expense prior
to the closing date, (ii) delivery by SELLER of all approvals, permits, consents
and licenses, including those of all governmental authorities having
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jurisdiction over the Premises, necessary in connection with the operation of
the Premises (exclusive of the Building Expansion Project) and necessary for the
commencement of the construction of the Building Expansion Project, and the
expiration of applicable appeal periods without appeal by any party, and (iii)
closing on the sale of the Allson Parcel. SELLER agrees to advise BUYER in
writing of all environmental hazards known to it on the Premises being conveyed
under this agreement and to deliver evidence of such permits, consents and
licenses prior to the closing. Results of all inspections and tests must be
satisfactory to BUYER, in BUYER's sole discretion. In the event the result of
any inspections or tests are not satisfactory to BUYER or evidence of any of the
required permits, consents and licenses are not delivered, SELLER, at SELLER's
sole expense, may correct any deficiencies revealed by those inspections or
tests and obtain the required permits, consents and licenses prior to the
closing date or within fifteen (15) days from the date of this agreement,
whichever is later. In the event the result of any inspections or tests are not
satisfactory to BUYER or evidence of any of the required permits, consents and
licenses is not delivered, and SELLER elects not to correct those deficiencies
or obtain such permits, consents and licenses as provided above, and BUYER
elects not to complete the purchase, then BUYER may rescind this agreement and
be entitled to the BUYER's Default Award, defined in Paragraph 9(b) below. Upon
request, BUYER shall provide SELLER with copies of all tests and inspection
reports and any permits, consents and licenses BUYER obtains prior to the
closing. BUYER shall notify SELLER of BUYER's decision not to complete the
purchase based upon the results of such inspections and tests
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or absence of such permits, consents and licenses at the expiration of SELLER's
cure period, as provided above.
By failing to terminate this agreement as provided above, BUYER
acknowledges that it has been provided an adequate opportunity to conduct its
due diligence on the Premises with respect to matters covered by such tests and
inspections, and, except with respect to SELLER's representations in Section 14
of this agreement, it is acquiring the Premises in its current "as is" condition
based solely on its own due diligence. BUYER further acknowledges and agrees
that, except for SELLER's representations in Section 14 of this Agreement and
SELLER's delivery of evidence of all required permits, approvals and licenses
pursuant to this Section 6, neither SELLER nor SELLER's employees, agents or
representatives have made any representation or warranty as to the condition of
the Premises, the absence of any necessary permits, approvals or licenses, or
the presence or absence of any hazardous materials on, in, under or within the
Premises; that the Premises shall be conveyed by SELLER to BUYER "as is" and
"with all faults;" and that neither SELLER nor its agents, employees or other
representatives have made any guarantee, representation or warranty, express or
implied, (and SELLER shall not have any liability whatsoever) as to the value,
uses, habitability, condition, design, operation, financial condition or
prospects, or fitness for a particular purpose or use of the Premises or any
part thereof, or information supplied to BUYER with respect thereto. Further,
except with respect to any breach of its representations in Section 14 or
failure to deliver evidence of all required permits, approvals or licenses in
accordance with this Section 6, SELLER shall
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have no liability for any latent, hidden or patent defect as to the Premises, or
the failure of the Premises, or any part thereof, to comply with any applicable
laws and regulations, including building codes, zoning, land use, subdivision,
water supply and wastewater, or Act 250. The provisions of this Section 6 shall
survive the closing.
7. RISK OF LOSS AND INSURANCE. SELLER covenants and agrees to
maintain fire insurance and extended coverage on all buildings on the Premises
for the full replacement value until the date of closing. BUYER shall carry or
cause Kessel/Duff Corporation to carry the builder's risk insurance for the
Building Expansion Project. In the event that the Premises are substantially
damaged or destroyed by fire or other casualty prior to the date of closing,
then the BUYER shall have the option to either:
A. Receive from SELLER any and all insurance proceeds received by
SELLER by reason of the damage or destruction, in which event this agreement
shall continue in full force and effect; or
B. Rescind this agreement and be entitled to have and receive from
SELLER BUYER's Default Award.
8. LICENSE TO CONSTRUCT BUILDING EXPANSION PROJECT: So long as BUYER is
not in default of this Agreement, BUYER shall have a license and all necessary
easements to pursue construction of the Building Expansion Project at its sole
cost, expense and risk. Construction shall be in accordance with applicable law
and the plans, permits and approvals obtained by SELLER for the Building
Expansion Project, with reasonable amendment or modification as deemed necessary
by BUYER. SELLER represents and
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warrants that it has incurred all costs to the date of this agreement in
connection with the procurement of the permits and approvals listed on Schedule
B; and BUYER represents and warrants that it has incurred all other costs to the
date of this agreement in connection with the Building Expansion Project (with
the exception of certain building risk premiums which have been paid for by
Kessel/Duff Corporation). All costs associated with the Building Expansion
Project from the date of this agreement, including permit application fees,
impact fees and utility hook-on or connection fees, shall be borne by BUYER. In
the event the closing does not occur, BUYER shall restore any damage to SELLER's
existing buildings or improvements resulting from such construction. BUYER shall
indemnify, defend and hold SELLER and its successors and assigns harmless from
any claim, damage, cost or expense, including reasonable attorneys' fees, for
any damage to SELLER's existing buildings or improvements or the property of
third persons and/or adjacent property of third parties or for any personal
injuries arising in whole or in part from any construction activities performed
by BUYER or BUYER's agents, employees or invitees on the Premises. BUYER's
obligations under this Section 8 shall survive the termination of this agreement
for any reason. Ownership of the improvements constructed by BUYER under this
license shall accrue to SELLER in the event that closing does not occur.
9. DEFAULT.
A. If SELLER has satisfied all of its obligations under this agreement
within the time periods required therefor, and BUYER, without just cause, shall
fail or neglect to pay the balance of the purchase price at the time of closing
as herein provided, then at the election of SELLER,
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this agreement shall terminate and SELLER may retain the deposit and all
interest earned thereon as agreed and satisfactory liquidated damages or pursue
all legal and equitable remedies provided by law, including without limitation,
damages and/or specific performance.
B. In the event that SELLER shall be unable or shall fail, upon tender
by the BUYER of the balance of the purchase price as hereinabove provided at the
time of closing, to comply with the terms of this agreement and deliver to the
BUYER a good and sufficient conveyance together with all documents as
hereinabove provided, then at the election of BUYER, this agreement may be
rescinded and BUYER shall be entitled to have and receive back from SELLER (i)
the deposit and all interest earned thereon, and (ii) the Building Expansion
Costs (said deposit and accrued interest together with the Building Expansion
Costs are hereinafter collectively called the "BUYER's Default Award") as agreed
and satisfactory liquidated damages or BUYER may pursue all legal and equitable
remedies provided by law, including, without limitation, damages and/or specific
performance. The Building Expansion Costs are defined as all costs expended by
BUYER, including builder's risk insurance premiums incurred by BUYER in
connection with the Building Expansion Project, together with 10% interest per
annum from date of BUYER's expenditure until reimbursed. BUYER and SELLER hereby
agree that BUYER's if BUYER elects to receive the reimbursement for the Building
Expansion Costs described in the previous sentence pursuant to this or any other
provision of this agreement (including any provision for payment of BUYER's
Default Award), then BUYER and SELLER shall enter into a commercial triple-net
lease for the improvements constituting the Building Expansion Project, which
lease shall commence upon substantial completion of the
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Building Expansion Project, subject only to minor punch-list items, and shall be
on the same terms and conditions as then in effect under the Lease Agreement
referred to in Section 5 (including the termination date thereof), with the
exception of the amount of minimum rent. Minimum rent under such lease shall be
a calculated rent based upon the sum of (i) the Building Expansion Costs, (ii)
the costs incurred by SELLER prior to the date of this Agreement for the
Building Expansion Project, and (iii) the costs to complete the Building
Expansion Project, amortized over a period of ten (10) years, plus a fair annual
rate of return to SELLER taking into account such costs and amortization period
and the credit worthiness of BUYER as a tenant.
10. TITLE EXAMINATION: BUYER, at BUYER's sole cost and expense, shall
cause title to the Premises to be examined and prior to the closing, shall
notify SELLER's attorney of the existence of encumbrances or defects which
render title unmarketable as defined by Vermont law. Promptly following receipt
of such notice, SELLER shall endeavor to remove the specified encumbrances or
defects. If, after the expiration of thirty (30) days following the receipt of
such notice or on the date set forth for closing, whichever is later, SELLER is
unable to convey marketable title free and clear of such encumbrances and
defects, BUYER may either (i) terminate this agreement and, if so, shall be
entitled to receive the BUYER's Default Award; or (ii) elect to close the
transaction taking title subject to the enumerated defects and encumbrances.
However, if the defect or encumbrance on the Premises is one which may be cured
by the payment of money, such as mortgages, taxes or attachment liens or by
obtaining a license, corrective deed, permit or a certificate of occupancy,
SELLER shall have an affirmative obligation to cure such defect or encumbrance,
and if SELLER fails to do so, BUYER shall have
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the additional option of either (a) curing such defect or encumbrance and
deducting the cost of doing so (including attorneys' fees) from the purchase
price (in which event BUYER may, at its election, either (x) extend the date for
closing as reasonably necessary to complete such cure, or (y) require that
sufficient funds be escrowed at closing to cover twice the anticipated cost to
reimburse BUYER for its costs in effecting such cure), or (b) demanding specific
performance of this agreement, compensatory damages and attorneys' fees.
11. TRANSFER TAX AND LAND GAIN TAX: BUYER shall be responsible for and
shall pay the Vermont property transfer tax due on the sale covered by this
agreement. Any land gains tax due on this sale shall be the responsibility of
SELLER. At or prior to closing, SELLER shall provide BUYER with satisfactory
proof either that there is no such tax due or that the tax has been paid in
full.
12. SUCCESSORS: This agreement shall be binding upon and extend to the
respective successors and assigns of the parties hereto. This agreement contains
the entire agreement by and between SELLER and BUYER and supersedes any and all
prior agreements, written or oral. No modification, amendments or deletion
affecting this agreement shall be effective unless in writing and signed by
SELLER and BUYER. The law of Vermont shall govern the validity and
interpretation of the provisions of this agreement.
13. SELLER'S COVENANTS: After the execution of this agreement, and
until the expiration or sooner termination of this agreement or the closing,
SELLER shall not: (i) grant or consent to any new easements, leases, licenses,
grants or any other interest or estate affecting the Premises or any part
thereof without the prior written consent of BUYER; (ii) enter into or agree
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to any modification or amendment of any existing easements, leases, licenses,
grants or any other interest or estate affecting the Premises or any part
thereof without the prior written consent of BUYER; or (iii) further encumber or
permit any liens against the Premises. In the event any easement or other estate
is granted with the consent of BUYER, and consideration is paid for it, the
parties agree that the proceeds (less any expenses incurred in connection with
the granting of such easement or estate) shall be credited to BUYER at the
closing.
14. SELLER'S REPRESENTATIONS AND WARRANTIES
A. To the best of SELLER's knowledge, none of the Premises has ever
been used to generate, manufacture, refine, treat, store, handle or dispose of
any toxic and/or hazardous wastes, substances, materials and the like; to the
best of SELLER's knowledge, SELLER has not caused or permitted to exist any
above ground or underground tanks for the storage of, nor has SELLER caused or
permitted to exist any release, spill, leak, pumping, emitting, pouring,
emptying, dumping, storage or disposal or any petroleum or petroleum products,
toxic and/or hazardous waste, substance, materials or the like on or at the
Premises, including without limitation, the presence of asbestos or
polychlorinated biphenyl fluids ("PCBs"); SELLER has no knowledge of the
existence of any toxic or hazardous waste or substance or any environmental
pollution or contamination at or in the Property, including without limitation,
the presence of asbestos, formaldehyde or formaldehyde based insulation, or
PCBs; no federal, state, or local agency or authority has issued any claim,
notification, order or violation or instituted any action, suit, or proceeding
concerning oil or hazardous materials, hazardous substances or hazardous wastes
or any other contaminate or pollutant with respect to the Premises or with
respect to the
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release of such oil or hazardous materials, hazardous substances or hazardous
wastes or any other contaminant or pollutant on any adjoining property; SELLER
is not aware of any condition or occurrence which could give rise to any such
claim, notification, order, violation, action, suit or proceeding, and SELLER
has, to the best of its knowledge, complied with all laws, ordinances, rules and
regulations of all federal, state, and local agencies and authorities.
B. SELLER has obtained a final City of South Burlington final plat
approval dated February 9, 1999, State of Vermont Wastewater and Water Supply
Permit No. WW-4-0442-1 dated June 17, 1999, State of Vermont Land Use Permit No.
4C0391-9 issued July 30, 1999, State of Vermont Amended Discharge Permit No.
1-0512 dated July 8, 1999, State of Vermont Public Water System Permit to
Construct No. 5091 dated May 6, 1999 and State of Vermont Air Pollution Control
Permit No. AP-9-001 dated June 29, 1999 for the construction of the Building
Expansion Project, and the applicable appeal periods with respect to such
permits and approvals have run without the filing of an appeal by any party.
BUYER shall be responsible for and SELLER shall not interfere with (including
using reasonable efforts to cooperate with BUYER, at BUYER'S expense) BUYER'S
complying and/or satisfying the terms and conditions of the above-referenced
permits and approvals in connection with its construction of the Building
Expansion Project and shall be responsible for obtaining any other permits which
may be required for the construction and/or occupancy of the Building Expansion
Project.
C. No consent or approval is needed from any governmental agency for
the transfer of the Premises under any law, code, ordinance, rule or regulation.
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D. At closing, no person, firm, corporation or entity other than BUYER
will have any right or option to acquire or to lease or occupy the Premises or
any portion thereof or any interest therein.
E. At closing, no default or breach will exist under any of the
covenant, conditions, restrictions, rights-of-way or easements affecting the
Premises or any portion thereof which are to be performed or complied with by
SELLER.
F. At closing, there shall be no law suits or litigation pending
against the Premises caused by acts of SELLER, and there shall be no claims or
offsets of any kind or nature which affect title to the Premises.
The representations and warranties contained in this Paragraph 14 shall
survive the Closing.
15. BUYER'S REPRESENTATIONS AND WARRANTIES
A. To the best of BUYER's knowledge, none of the Premises has ever been
used to generate, manufacture, refine, treat, store, handle or dispose of any
toxic and/or hazardous wastes, substances, materials and the like; to the best
of BUYER's knowledge, BUYER has not caused or permitted to exist any above
ground or underground tanks for the storage of, nor has BUYER caused or
permitted to exist any release, spill, leak, pumping, emitting, pouring,
emptying, dumping, storage or disposal or any petroleum or petroleum products,
toxic and/or hazardous waste, substance, materials or the like on or at the
Premises, including without limitation, the presence of asbestos or
polychlorinated biphenyl fluids ("PCBs"); BUYER has no knowledge of the
existence of any toxic or hazardous waste or substance or any environmental
15
pollution or contamination at or in the Property, including without limitation,
the presence of asbestos, formaldehyde or formaldehyde based insulation, or
PCBs; no federal, state, or local agency or authority has issued any claim,
notification, order or violation or instituted any action, suit, or proceeding
concerning oil or hazardous materials, hazardous substances or hazardous wastes
or any other contaminate or pollutant with respect to the Premises or with
respect to the release of such oil or hazardous materials, hazardous substances
or hazardous wastes or any other contaminant or pollutant on any adjoining
property; BUYER is not aware of any condition or occurrence which could give
rise to any such claim, notification, order, violation, action, suit or
proceeding, and BUYER has, to the best of its knowledge, complied with all laws,
ordinances, rules and regulations of all federal, state, and local agencies and
authorities. All representations and warranties of BUYER contained in this
Section 15(A) shall specifically exclude any knowledge or awareness of BUYER
attributable to Richard Tarrant or Robert Hoehl.
B. At closing, there shall be no law suits or litigation pending
against the Premises caused by acts of BUYER, and there shall be no claims or
offsets of any kind or nature which affect title to the Premises.
16. COMMISSIONS AND FEES. The parties warrant and represent to each
other that they have no knowledge of any real estate broker or agent to whom a
commission may be payable as a result of this transaction or any such knowledge
of any other finder's fees or commissions related thereto. Each party agrees to
indemnify and hold harmless the other for all claims or demands of any real
estate agent or broker claiming by, through or under such party. This
indemnification
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shall also include payment of costs and attorneys' fees incurred by a party in
defense of a claim for such real estate commissions or fees.
17. Apportionments. All property taxes and other municipal charges
assessed against the Premises shall be apportioned at closing in accordance with
the terms of the Lease Agreement.
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IN WITNESS WHEREOF, we hereunto set our hands and seals as of the day
and year first above written.
In Presence of:
BDP Realty Associates
/S/ MOLLY LEBOWITZ By:/S/ RONALD L. ROBERTS
- ----------------------------- ----------------------------------
Witness Its duly authorized partner
IDX Systems Corporation
/S/ DIANE L. BROWN By:/S/ JOHN A. KANE
- ----------------------------- ----------------------------------
Witness Its duly authorized partner
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SCHEDULE A
Property Description
--------------------
Being two parcels of land with all improvements thereon or to be constructed
thereon and all appurtenances thereto located easterly of Shelburne Road, in the
City of South Burlington, Vermont, known and designated as Lot A (1500 Shelburne
Road), containing 4.837 acres, more or less, and Lot B (1400 Shelburne Road),
containing 9.606 acres, more or less, as depicted on a plat entitled: "Boundary
Survey, BDP Realty Associates, Shelburne Road, South Burlington, Vermont,"
prepared by Krebs & Lansing Consulting Engineers, Inc., dated July 30, 1998 and
recorded in Map Volume 430 at Page 32 of the City of South Burlington Land
Records (the "Plat"). The Property is more particularly described, with
reference to the Plat, as follows:
Commencing at a concrete monument located in the easterly
boundary of Shelburne Road at a point which forms the
intersection with the southerly boundary of Holmes Road
Extension; thence proceeding in a southerly direction in and
along the easterly boundary of Shelburne Road
S18(degree)02'47"W a distance of 525.43 feet to a concrete
monument; thence continuing in and along the easterly boundary
of Shelburne Road S18(degree)02'47"W a distance of 370.09 feet
to a concrete monument set in the northerly boundary of lands
now or formerly of the Allson Partnership; thence turning to
the left and proceeding in an easterly direction in and along
the northerly boundary of lands now or formerly of the Allson
Partnership S74(degree)39'23"E a distance of 570.11 feet to a
concrete monument; thence turning to the left and proceeding
N18(degree) 00'50"E a distance of 70.08 feet to an iron pipe;
thence continuing along N18(degree)00'50"E a distance of
300.00 feet to a concrete monument; thence turning to the
right and proceeding S74(degree)39'23"E a distance of 290.96
feet to a point located in the westerly boundary of Green
Mountain Drive; thence turning to the left and proceeding in a
northerly direction in and along the westerly boundary of
Green Mountain Drive N18(degree)00'50"E a distance of 447.89
feet to a concrete monument, which monument forms the
intersection of the westerly boundary of Green Mountain Drive
and the southerly boundary of Holmes Road Extension; thence
turning to the left and proceeding in a westerly direction in
and along the southerly boundary of Holmes Road Extension
N69(degree)29'34"W a distance of 860.45 feet to the point or
place of beginning. All courses and distances are more or
less.
Lot A is all and the same lands and premises conveyed to BDP Realty Associates
by Warranty Deed from National Life Insurance Company dated January 18, 1979 and
recorded in Volume 146 at Pages 459-463 of the City of South Burlington Land
Records. Also included is a portion of the lands and premises conveyed by the
Deed to BDP Realty Associates from the City of South Burlington dated September
9, 1991 and recorded in Volume 317 at Pages 210-211 at the City of South
Burlington Land Records.
Lot B is all and the same lands and premises conveyed to Hatco Associates by
Warranty Deed of the National Life Insurance Company dated January 18, 1979 and
recorded in Warranty Volume 146 at Pages 454-458 of the City of South Burlington
Land Records and subsequently conveyed by Hatco Associates to BDP Realty
Associates by Quit Claim Deed dated July 5, 1979 and recorded in Quitclaim
Volume 141 at Pages 233-235 of the City of South Burlington Land Records,
excepting therefrom the lands and premises conveyed to the City of South
Burlington by Irrevocable Offer of Dedication (for Holmes Road Extension) dated
April 26, 1988 and recorded in Volume 261 at Page 125 of the City of South
Burlington Land Records, as amended by Amended Irrevocable Offer of Dedication
dated June 15, 2000 and recorded in Volume 477 at Page 387 of the City of South
Burlington Land Records. Also included is a portion of the lands and premises
conveyed by the Deed to BDP Realty Associates from the City of South Burlington
dated September 9, 1991 and recorded in Volume 317 at Pages 210-211 at the City
of South Burlington Land Records. Also excepted are the lands and premises
conveyed by BDP Realty Associates to the City of South Burlington by Replacement
Warranty Deed dated June 15, 2000 and recorded in Volume 477 at Page 398 of the
City of South Burlington Land Records.
The Property is conveyed subject to and with the benefit of the following: (a)
taxes assessed on the Grand List of April 1, 2000 not delinquent on the date of
this Deed, which the Grantee herein assumes and agrees to pay as part of the
consideration for this Deed, subject to such taxes being prorated between
Grantor and Grantee on the date this Deed is delivered; and (b) the provi-sions
of municipal ordinances, public laws, and special acts; and (c) all easements,
rights-of-way, covenants, permits and restrictions depicted on the Plat,
including, but not by way of limitation:
1. Easement Deed of National Life Insurance Company to Green Mountain
Power Corporation dated September 21, 1961 and recorded in Volume 63
at Page 90 of the City of South Burlington Land Records.
2. Easement Deed of National Life Insurance Company to the University
of Vermont and Agricultural College dated November 27, 1968 and recorded
in Volume 89 at Page 123 of the City of South Burlington Land Records.
3. Easements for roads described the Deed from National Life Insurance
Company to the City of South Burlington dated January 6, 1976 and
recorded in Volume 126 at Page 289 of the City of South Burlington Land
Records.
4. Easement conveyed to Green Mountain Power Corporation by instrument
dated April 8, 1974 and recorded in Volume 109 at Page 518 of the City
of South Burlington Land Records.
5. Spring rights described in the Deed of Fortis H. Abbot and Sadie M.
Abbot to Vermont Agricultural College dated January 30, 1952 and
recorded in Volume 30 at Page 286 of the City of South Burlington Land
Records, as modified by an agreement recorded in Volume 22 at Page 393
of the City of South Burlington Land Records.
6. Protective Covenants set forth in the Warranty Deed from National
Life Insurance Company to Hatco Associates dated January 18, 1979 and
recorded in Volume 146 at Pages 454-458 of the City of South Burlington
Land Records and in the Warranty Deed from National Life Insurance
Company to BDP Realty Associates dated January 18, 1979 and recorded in
Volume 146 at Pages 459-463 of the City of South Burlington Land
Records, but only to the extent said Protective Covenants, which appear
to have expired under their own terms without recordable evidence of
their continuation, have been continued.
7. Utility easement conveyed to Vermont Gas Systems, Inc. by instrument
dated August 28, 1987 and recorded in Volume 251 at Page 64 of the City
of South Burlington Land Records.
8. Terms and conditions of an Agreement between Dennis L. Blodgett,
Gerald C. Milot and BDP Realty Associates dated November 15, 1988 and
recorded in Volume 272 at Page 194 of the City of South Burlington Land
Records.
9. Irrevocable Offer of Dedication for Holmes Road Extension by BDP
Realty to City of South Burlington dated April 26, 1988 of record in
Volume 261 at Page 125 of the City of South Burlington Land Records, as
amended by Amended Irrevocable Offer of Dedication dated June 15, 2000
and recorded in Volume 477 at Page 387 of the City of South Burlington
Land Records.
10. Utility easement and right of way conveyed to Dennis L. Blodgett
and Plaza Investments by Easement Deed dated February 16, 1989 and
recorded in Volume 275 at Page 583 of the City of South Burlington Land
Records.
11. Easement and right of way for motor vehicles and pedestrian travel
conveyed to Dennis L. Blodgett and Plaza Investments conveyed by
Easement Deed dated February 16, 1989 and recorded in Volume 275 at Page
580 of the City of South Burlington Land Records.
12. The Property has the benefit of an easement and right of way for
motor vehicles and pedestrian travel conveyed by Easement Deed of Dennis
L. Blodgett and Plaza Investments dated February 6, 1989 and recorded in
Volume 276 at Page 221 of the City of South Burlington Land Records.
13. Utility easement conveyed by I.D.X. Corporation [sic] to Green
Mountain Power Corporation and New England Telephone and Telegraph
Company by instrument dated June 24, 1988 and recorded in Volume 270 at
Page 348 of the City of South Burlington Land Records.
14. Utility easement conveyed by BDP Realty Associates to Vermont Gas
Systems, Inc. dated February 21, 1997 and recorded in Volume 405 at
Page 607 of the City of South Burlington Land Records.
15. Utility easement by I.D.X. Corporation [sic] to Green Mountain
Power Corporation dated November 18, 1993 and recorded in Volume 356 at
Page 645 of the City of South Burlington Land Records.
16. Terms and conditions of State of Vermont Land Use Permit No. 4C0094
dated March 30, 1973, as amended from time to time, including, without
limitation, Land Use Permit Amendment No. 4C0094-1 dated October 30,
1978; and Land Use Permit Amendment No.4C0094-4 dated March 16, 1999 and
recorded in Volume 449 at Page 330 of the City of South Burlington Land
Records.
17. Terms and conditions of State of Vermont Land Use Permit No. 4C0391
dated April 23, 1979 and recorded in Volume 150 at Pages 119-120 of the
City of South Burlington Land Records, as amended from time to time,
including, without limitation, Land Use Permit Amendment No. 4C0391-7
dated November 12, 1991 and recorded in Volume 312 at Pages 640-644 of
the City of South Burlington Land Records; Land Use Permit Amendment No.
4C0391-8 dated November 19, 1998 and recorded in Volume 441 at Pages
436-437 of the City of South Burlington Land Records; and Land Use
Permit Amendment No. 4C0391-9 dated July 30, 1999 and recorded in Volume
459 at Pages 352-257 of the City of South Burlington Land Records.
18. Terms and conditions of State Subdivision Permit No. EC-4-2136-2 dated
September 25, 1998 and recorded in Volume 438 at Pages 530-532 of the
City of South Burlington Land Records, and permits referenced therein
including Certificates of Compliance Nos. 4C0931 through 4C0391-5,
Public Building Permit No. PB-4-1255 and Water Supply and Wastewater
Disposal Permit No. WW-4-0442.
19. Terms and conditions of the municipal permits and approvals for the
Property including, without limitation, planning commission approvals
dated February 9, 1999; September 22, 1998; April 14, 1998; December
15, 1987; March 12, 1985; and January 23, 1973.
20. Sewer Main Easement from BDP Realty Associates to the City of South
Burlington dated March 8, 2000 and recorded in Volume 485 at Pages
251-253 of the City of South Burlington Land Records.
Reference is also made to the plan entitled: "BDP Realty Associates, Shelburne
Road, So. Burlington, Vt., Boundary Plat," prepared by Trudell Consulting
Engineers, Inc., dated December 18, 1998, last revised January 18, 1999 and
recorded in Map Volume 430 at Page 82 of the City of South Burlington Land
Records (the "Trudell Plan"). To the extent that the Trudell Plan depicts
additional lands which are not depicted on the Plat, Grantor hereby conveys, by
quitclaim only, all of its right, title and interest in and to such additional
lands.
Also included herewith and conveyed hereby, by quitclaim only, is all of
Grantor's right, title and interest, if any, in the underlying fee title to any
unaccepted portion or portions of Holmes Road Extension, as depicted on the
Plat, which have been dedicated to the City of South Burlington by Irrevocable
Offers of Dedication described above in Paragraph 9.
Grantor, by the execution of this Deed, and Grantee, by its acceptance of this
Deed, hereby terminate and discharge a certain lease between BDP Realty
Associates and IDX Corporation (now known as IDX Systems Corporation) dated
March 1, 1989, as amended by Amendment dated December 19, 1989 and recorded in
Volume 290 at Page 542 of the City of South Burlington Land Records, as further
amended by Amendment to Lease, Lease Assignment and Estoppel Agreement dated
January 25, 1993 and recorded in Volume 338 at Page 440 of the City of South
Burlington Land Records, and by Amended and Restated Lease Agreement dated
November 1, 1997, as evidenced by Short Form of Lease dated January 22, 1998 and
recorded in Volume 421 at Pages 700-707 of the City of South Burlington Land
Records.
Grantor and Grantee covenant and agree that in accordance with the February 9,
1999 approval by the South Burlington Planning Commission, the Property conveyed
hereby shall merge with the title to Grantor's adjacent lands and premises,
located at 50 Green Mountain Drive, which are being conveyed by Grantor to
Grantee by deed of even date herewith.
Reference is hereby made to the above-mentioned instruments, the records thereof
and the references therein contained in further aid of this description.
SCHEDULE B
1. City of South Burlington final plat approval dated February 9, 1999 of
planned unit development as depicted on a 19 page set of plans, page (3)
entitled "IDX, South Burlington, Vermont, Master Site Plan," prepared by
Trudell Consulting Engineers, Inc., et al., dated November 12, 1998,
last revised January 18, 1999.
2. State of Vermont Wastewater and Water Supply Permit No. WW-4-0442-1
dated June 17, 1999.
3. State of Vermont Land Use Permit No. 4C0391-9 dated July 30, 1999.
4. State of Vermont Amended Discharge Permit No. 1-0512 dated July 8, 1999.
5. State of Vermont Public Water System Permit to Construct No. 5091 dated
May 6, 1999.
6. State of Vermont Air Pollution Control Permit No. AP-9-001 dated
June 29, 1999.
EXHIBIT 99B
PURCHASE AND SALE AGREEMENT
THIS IS A LEGALLY BINDING CONTRACT
THIS AGREEMENT is made and entered into as of this 19th of April 2001
between BDP Realty Associates, a Vermont general partnership with a place of
business in the City of South Burlington, hereinafter called SELLER, and IDX
Systems Corporation, a Vermont corporation with a place of business in the City
of South Burlington, Vermont, hereinafter called BUYER.
WITNESSETH
In consideration of the mutual agreements of the parties herein
contained, it is agreed as follows:
1. PREMISES: SELLER agrees to sell and BUYER agrees to buy certain
lands and premises (hereinafter "Premises") located in the City of South
Burlington, in the County of Chittenden and State of Vermont. The Premises are
further described as being located at 50 Green Mountain Drive, in the City of
South Burlington, Vermont, containing 2.24 acres, more or less, together with
improvements thereon. The Premises are more particularly described in the
attached Schedule A.
2. PURCHASE PRICE. The total purchase price to be paid by BUYER to
SELLER for the Premises shall be Six Hundred Twenty-Four Thousand and No/100ths
Dollars ($624,000.00). The purchase price shall be payable as follows:
Four Thousand and No/100ths Dollars ($4,000.00) herewith as a deposit,
the receipt of which is acknowledged by SELLER. The deposit shall be held in an
interest bearing escrow
1
account by The Howard Bank. The deposit and accrued interest shall be disbursed
and applied against the Purchase Price at closing, or shall otherwise be
disbursed according to the terms of this Agreement. The balance of the purchase
price is to be paid by cash, certified check, or cashier's check at closing.
3. CLOSING DATE: The closing shall take place on or before April 19,
2001 at a mutually agreed upon time and location. Closing may take place earlier
if the parties agree. At BUYER's option, BUYER may extend the closing date for
sixty (60) days upon the payment of an additional deposit of Eight Thousand and
No/100ths Dollars ($8,000.00) which shall be held in the deposit escrow account
described in Paragraph 2 above.
4. CLOSING DOCUMENTS; BUILDING EXPANSION PROJECT:
A. SELLER agrees that upon tender of the balance of the purchase price
as hereinabove provided at the time of closing, SELLER will execute and deliver
to BUYER a good and sufficient Warranty Deed for the Premises, free and clear of
all liens and encumbrances (other than mechanic's and materialmen's liens
relating to the Building Expansion Project, as defined below), furnished and
paid for by SELLER, conveying marketable fee simple title as defined by Vermont
law. At no additional cost, SELLER shall also convey, by appropriate assignment,
with all necessary consents obtained, all plans and municipal and state
approvals and permits necessary for commencement of the Building Expansion
Project.
SELLER shall also deliver the following at closing:
o a Vermont Real Property Transfer Tax Return;
o a Vermont Land Gains LG-2 Return (if necessary);
2
o a Commissioner's Certificate of Reduced Withholding in the event
SELLER requests that BUYER withhold a reduced Vermont income tax amount;
o an affidavit to the effect that SELLER is not a foreign person as
that term is used in Section 1445 of the Internal Revenue Code;
o reasonable evidence that SELLER has duly authorized the execution,
delivery and performance of this agreement and the incumbency and
authority of the representatives of SELLER signing this agreement
and the other closing documents to be executed by SELLER;
o a certificate confirming that the representations and warranties made
by SELLER in Paragraph 14 are true and correct in all material
respects, or disclosing any facts discovered subsequent to the date
hereof which are contrary to any such representations and warranties;
o copies or originals, as the case may be, of the maps, files, books
and records in SELLER's possession relating solely to the Premises to
be conveyed in accordance with this agreement; and
o an owner's affidavit as required by the title insurance company
issuing the owner's policy, if any, to be purchased by BUYER.
At closing, BUYER shall deliver to SELLER the following:
o the balance of the Purchase Price;
o a Vermont Real Property Transfer Tax Return;
o a Vermont Land Gains LG-1 Return (if necessary); and
o evidence satisfactory to SELLER that BUYER has duly authorized the
execution, delivery and performance of this agreement and the incumbency
and authority of the officers of BUYER signing this agreement and the
other closing documents to be executed by BUYER.
B. The Building Expansion Project is defined as the first phase of the
improvements described in Land Use Permit #4C0391-09 issued to SELLER and
recorded in Volume
3
459, Page 352 of the City of South Burlington land records, and in the following
permits which are incorporated in Land Use Permit #4C0391-09: (i) Water Supply
and Wastewater Disposal Permit #WW-4-0442-1 issued on June 17, 1999, (ii) Final
Discharge Permit #1-0512 [sic; the permit is entitled Amended Discharge Permit
#1-0512] issued on June 8, 1999 [sic; the permit was issued on July 8, 1999];
and (iii) Public Water System Permit to Construct #5091 issued on May 6, 1999
(such permits, together with Land Use Permit #4C0391-09, are collectively
referred to as the "Act 250 Permit"). The Act 250 Permit covers all improvements
in a phased development to take place at the Premises and additional premises
located at 1400/1500 Green Mountain Drive, South Burlington, Vermont (which
property is covered by a Purchase and Sale Agreement of even date herewith by
and between BUYER and SELLER and is hereinafter referred to as the "1400/1500
Parcel"), over approximately six years. The first phase of the development
described in the Act 250 permit constitutes the Building Expansion Project and
consists of (i) an approximately 90,000 square foot, three story office building
at 1500 Shelburne Road (which is the first phase of the 239,708 square foot, six
story office and storage building referenced in the Act 250 Permit), (ii) an
approximately 20,500 square foot, two story facility containing a new reception
area, multi-media center, kitchen and employee dining hall linking the existing
124,200 square foot office building at 1400 Shelburne Road to the new 90,000
square foot office building at 1500 Shelburne Road, (iii) the extension of Green
Mountain and IDX Drives and off-site traffic improvements to Route 7 (Shelburne
Road), and (iv) all related infrastructure and site improvements to be built in
connection
4
with such buildings and road and traffic improvements, including any such
infrastructure and site improvements located on the Premises.
5. EXISTING LEASE: Effective upon closing, the Amended and Restated
Lease Agreement, dated as of November 1, 1997 (together with all predecessor
lease agreements and all amendments thereto, the "Lease Agreement") between the
parties hereto shall become null and void, subject, however, that the Minimum
Rent and Additional Rent, as defined in the Lease Agreement, shall be pro-rated
(or refunded as appropriate) through the time of closing.
6. CONDITIONS TO PURCHASE: BUYER's obligation to purchase is
conditioned upon (i) the results of such tests and inspections as BUYER may
require, including, but not limited to, a Phase 1 environmental site assessment,
asbestos and radon tests, and mechanical, structural, and termite and other
wood-boring insect inspections, such tests and inspections to be conducted by
professionals of BUYER'S choice, to be completed at BUYER's sole expense prior
to the closing date, (ii) delivery by SELLER of all approvals, permits, consents
and licenses, including those of all governmental authorities having
jurisdiction over the Premises, necessary in connection with the operation of
the Premises (exclusive of the Building Expansion Project) and necessary for the
commencement of the construction of the Building Expansion Project, and the
expiration of applicable appeal periods without appeal by any party, and (iii)
closing on the sale of the 1400/1500 Parcel. SELLER agrees to advise BUYER in
writing of all environmental hazards known to it on the Premises being conveyed
under this agreement and to deliver evidence of such permits,
5
consents and licenses prior to the closing. Results of all inspections and tests
must be satisfactory to BUYER, in BUYER's sole discretion. In the event the
result of any inspections or tests are not satisfactory to BUYER or evidence of
any of the required permits, consents and licenses are not delivered, SELLER, at
SELLER's sole expense, may correct any deficiencies revealed by those
inspections or tests and obtain the required permits, consents and licenses
prior to the closing date or within fifteen (15) days from the date of this
agreement, whichever is later. In the event the result of any inspections or
tests are not satisfactory to BUYER or evidence of any of the required permits,
consents and licenses is not delivered, and SELLER elects not to correct those
deficiencies or obtain such permits, consents and licenses as provided above,
and BUYER elects not to complete the purchase, then BUYER may rescind this
agreement and be entitled to the BUYER's Default Award, defined in Paragraph
9(b) below. Upon request, BUYER shall provide SELLER with copies of all tests
and inspection reports and any permits, consents and licenses BUYER obtains
prior to the closing. BUYER shall notify SELLER of BUYER's decision not to
complete the purchase based upon the results of such inspections and tests or
absence of such permits, consents and licenses at the expiration of SELLER's
cure period, as provided above.
By failing to terminate this agreement as provided above, BUYER
acknowledges that it has been provided an adequate opportunity to conduct its
due diligence on the Premises with respect to matters covered by such tests and
inspections, and, except with respect to SELLER's representations in Section 14
of this agreement, it is acquiring the
6
Premises in its current "as is" condition based solely on its own due diligence.
BUYER further acknowledges and agrees that, except for SELLER's representations
in Section 14 of this Agreement and SELLER's delivery of evidence of all
required permits, approvals and licenses pursuant to this Section 6, neither
SELLER nor SELLER's employees, agents or representatives have made any
representation or warranty as to the condition of the Premises, the absence of
any necessary permits, approvals or licenses, or the presence or absence of any
hazardous materials on, in, under or within the Premises; that the Premises
shall be conveyed by SELLER to BUYER "as is" and "with all faults;" and that
neither SELLER nor its agents, employees or other representatives have made any
guarantee, representation or warranty, express or implied, (and SELLER shall not
have any liability whatsoever) as to the value, uses, habitability, condition,
design, operation, financial condition or prospects, or fitness for a particular
purpose or use of the Premises or any part thereof, or information supplied to
BUYER with respect thereto. Further, except with respect to any breach of its
representations in Section 14 or failure to deliver evidence of all required
permits, approvals or licenses in accordance with this Section 6, SELLER shall
have no liability for any latent, hidden or patent defect as to the Premises, or
the failure of the Premises, or any part thereof, to comply with any applicable
laws and regulations, including building codes, zoning, land use, subdivision,
water supply and wastewater, or Act 250. The provisions of this Section 6 shall
survive the closing.
7. RISK OF LOSS AND INSURANCE. SELLER covenants and agrees
to maintain fire insurance and extended coverage on all buildings on the
Premises for the full replacement
7
value until the date of closing. BUYER shall carry or cause Kessel/Duff
Corporation to carry the builder's risk insurance for the Building Expansion
Project. In the event that the Premises are substantially damaged or destroyed
by fire or other casualty prior to the date of closing, then the BUYER shall
have the option to either: A. Receive from SELLER any and all insurance proceeds
received by SELLER by reason of the damage or destruction, in which event this
agreement shall continue in full force and effect; or B. Rescind this agreement
and be entitled to have and receive from SELLER BUYER's Default Award.
8. License to Construct Building Expansion Project: So long as BUYER
is not in default of this Agreement, BUYER shall have a license and all
necessary easements to pursue construction of the Building Expansion Project at
its sole cost, expense and risk. Construction shall be in accordance with
applicable law and the plans, permits and approvals obtained by SELLER for the
Building Expansion Project, with reasonable amendment or modification as deemed
necessary by BUYER. SELLER represents and warrants that it has incurred all
costs to the date of this agreement in connection with the procurement of the
permits and approvals listed on Schedule B; and BUYER represents and warrants
that it has incurred all other costs to the date of this agreement in connection
with the Building Expansion Project (with the exception of certain building risk
premiums which have been paid for by Kessel/Duff Corporation). All costs
associated with the Building Expansion Project from the date of this agreement,
including permit application
8
fees, impact fees and utility hook-on or connection fees, shall be borne by
BUYER. In the event the closing does not occur, BUYER shall restore any damage
to SELLER's existing buildings or improvements resulting from such construction.
BUYER shall indemnify, defend and hold SELLER and its successors and assigns
harmless from any claim, damage, cost or expense, including reasonable
attorneys' fees, for any damage to SELLER's existing buildings or improvements
or the property of third persons and/or adjacent property of third parties or
for any personal injuries arising in whole or in part from any construction
activities performed by BUYER or BUYER's agents, employees or invitees on the
Premises. BUYER's obligations under this Section 8 shall survive the termination
of this agreement for any reason. Ownership of the improvements constructed by
BUYER under this license shall accrue to SELLER in the event that closing does
not occur.
9. DEFAULT.
A. If SELLER has satisfied all of its obligations under this agreement
within the time periods required therefor, and BUYER, without just cause, shall
fail or neglect to pay the balance of the purchase price at the time of closing
as herein provided, then at the election of SELLER, this agreement shall
terminate and SELLER may retain the deposit and all interest earned thereon as
agreed and satisfactory liquidated damages or pursue all legal and equitable
remedies provided by law, including without limitation, damages and/or specific
performance.
B. In the event that SELLER shall be unable or shall fail, upon tender
by the BUYER of the balance of the purchase price as hereinabove provided at the
time of closing, to comply with the terms of this agreement and deliver to the
BUYER a good and sufficient
9
conveyance together with all documents as hereinabove provided, then at the
election of BUYER, this agreement may be rescinded and BUYER shall be entitled
to have and receive back from SELLER (i) the deposit and all interest earned
thereon, and (ii) the Building Expansion Costs (said deposit and accrued
interest together with the Building Expansion Costs are hereinafter collectively
called the "BUYER's Default Award") as agreed and satisfactory liquidated
damages or BUYER may pursue all legal and equitable remedies provided by law,
including, without limitation, damages and/or specific performance. The Building
Expansion Costs are defined as all costs expended by BUYER, including builder's
risk insurance premiums incurred by BUYER in connection with the Building
Expansion Project, together with 10% interest per annum from date of BUYER's
expenditure until reimbursed. BUYER and SELLER hereby agree that BUYER's if
BUYER elects to receive the reimbursement for the Building Expansion Costs
described in the previous sentence pursuant to this or any other provision of
this agreement (including any provision for payment of BUYER's Default Award),
then BUYER and SELLER shall enter into a commercial triple-net lease for the
improvements constituting the Building Expansion Project, which lease shall
commence upon substantial completion of the Building Expansion Project, subject
only to minor punch-list items, and shall be on the same terms and conditions as
then in effect under the Lease Agreement referred to in Section 5 (including the
termination date thereof), with the exception of the amount of minimum rent.
Minimum rent under such lease shall be a calculated rent based upon the sum of
(i) the Building Expansion Costs, (ii) the costs incurred by SELLER prior to the
date of this Agreement for the Building Expansion Project, and (iii) the costs
to complete the Building Expansion Project,
10
amortized over a period of ten (10) years, plus a fair annual rate of return to
SELLER taking into account such costs and amortization period and the credit
worthiness of BUYER as a tenant.
10. TITLE EXAMINATION: BUYER, at BUYER's sole cost and expense, shall
cause title to the Premises to be examined and prior to the closing, shall
notify SELLER's attorney of the existence of encumbrances or defects which
render title unmarketable as defined by Vermont law. Promptly following receipt
of such notice, SELLER shall endeavor to remove the specified encumbrances or
defects. If, after the expiration of thirty (30) days following the receipt of
such notice or on the date set forth for closing, whichever is later, SELLER is
unable to convey marketable title free and clear of such encumbrances and
defects, BUYER may either (i) terminate this agreement and, if so, shall be
entitled to receive the BUYER's Default Award; or (ii)elect to close the
transaction taking title subject to the enumerated defects and encumbrances.
However, if the defect or encumbrance on the Premises is one which may be cured
by the payment of money, such as mortgages, taxes or attachment liens or by
obtaining a license, corrective deed, permit or a certificate of occupancy,
SELLER shall have an affirmative obligation to cure such defect or encumbrance,
and if SELLER fails to do so, BUYER shall have the additional option of either
(a) curing such defect or encumbrance and deducting the cost of doing so
(including attorneys' fees) from the purchase price (in which event BUYER may,
at its election, either (x) extend the date for closing as reasonably necessary
to complete such cure, or (y) require that sufficient funds be escrowed at
closing to cover twice the anticipated cost to reimburse BUYER for its costs in
effecting such cure), or (b) demanding specific performance of this agreement,
compensatory damages and attorneys' fees.
11
11. TRANSFER TAX AND LAND GAIN TAX: BUYER shall be responsible for and
shall pay the Vermont property transfer tax due on the sale covered by this
agreement. Any land gains tax due on this sale shall be the responsibility of
SELLER. At or prior to closing, SELLER shall provide BUYER with satisfactory
proof either that there is no such tax due or that the tax has been paid in
full.
12. SUCCESSORS: This agreement shall be binding upon and extend to the
respective successors and assigns of the parties hereto. This agreement contains
the entire agreement by and between SELLER and BUYER and supersedes any and all
prior agreements, written or oral. No modification, amendments or deletion
affecting this agreement shall be effective unless in writing and signed by
SELLER and BUYER. The law of Vermont shall govern the validity and
interpretation of the provisions of this agreement.
13. SELLER'S COVENANTS: After the execution of this agreement, and
until the expiration or sooner termination of this agreement or the closing,
SELLER shall not: (i) grant or consent to any new easements, leases, licenses,
grants or any other interest or estate affecting the Premises or any part
thereof without the prior written consent of BUYER; (ii) enter into or agree to
any modification or amendment of any existing easements, leases, licenses,
grants or any other interest or estate affecting the Premises or any part
thereof without the prior written consent of BUYER; or (iii) further encumber or
permit any liens against the Premises. In the event any easement or other estate
is granted with the consent of BUYER, and consideration is paid for it, the
parties agree that the proceeds (less any expenses incurred in connection with
the granting of such easement or estate) shall be credited to BUYER at the
closing.
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14. SELLER'S REPRESENTATIONS AND WARRANTIES
A. To the best of SELLER's knowledge, none of the Premises has ever
been used to generate, manufacture, refine, treat, store, handle or dispose of
any toxic and/or hazardous wastes, substances, materials and the like; to the
best of SELLER's knowledge, SELLER has not caused or permitted to exist any
above ground or underground tanks for the storage of, nor has SELLER caused or
permitted to exist any release, spill, leak, pumping, emitting, pouring,
emptying, dumping, storage or disposal or any petroleum or petroleum products,
toxic and/or hazardous waste, substance, materials or the like on or at the
Premises, including without limitation, the presence of asbestos or
polychlorinated biphenyl fluids ("PCBs"); SELLER has no knowledge of the
existence of any toxic or hazardous waste or substance or any environmental
pollution or contamination at or in the Property, including without limitation,
the presence of asbestos, formaldehyde or formaldehyde based insulation, or
PCBs; no federal, state, or local agency or authority has issued any claim,
notification, order or violation or instituted any action, suit, or proceeding
concerning oil or hazardous materials, hazardous substances or hazardous wastes
or any other contaminate or pollutant with respect to the Premises or with
respect to the release of such oil or hazardous materials, hazardous substances
or hazardous wastes or any other contaminant or pollutant on any adjoining
property; SELLER is not aware of any condition or occurrence which could give
rise to any such claim, notification, order, violation, action, suit or
proceeding, and SELLER has, to the best of its knowledge, complied with all
laws, ordinances, rules and regulations of all federal, state, and local
agencies and authorities.
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B. SELLER has obtained a final City of South Burlington final plat
approval dated February 9, 1999, State of Vermont Wastewater and Water Supply
Permit No. WW-4-0442-1 dated June 17, 1999, State of Vermont Land Use Permit No.
4C0391-9 issued July 30, 1999, State of Vermont Amended Discharge Permit No.
1-0512 dated July 8, 1999, State of Vermont Public Water System Permit to
Construct No. 5091 dated May 6, 1999 and State of Vermont Air Pollution Control
Permit No. AP-9-001 dated June 29, 1999 for the construction of the Building
Expansion Project, and the applicable appeal periods with respect to such
permits and approvals have run without the filing of an appeal by any party.
BUYER shall be responsible for and SELLER shall not interfere with (including
using reasonable efforts to cooperate with BUYER, at BUYER'S expense) BUYER'S
complying and/or satisfying the terms and conditions of the above-referenced
permits and approvals in connection with its construction of the Building
Expansion Project and shall be responsible for obtaining any other permits which
may be required for the construction and/or occupancy of the Building Expansion
Project.
C. No consent or approval is needed from any governmental agency for
the transfer of the Premises under any law, code, ordinance, rule or regulation.
D. At closing, no person, firm, corporation or entity other than BUYER
will have any right or option to acquire or to lease or occupy the Premises or
any portion thereof or any interest therein.
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E. At closing, no default or breach will exist under any of the
covenant, conditions, restrictions, rights-of-way or easements affecting the
Premises or any portion thereof which are to be performed or complied with by
SELLER.
F. At closing, there shall be no law suits or litigation pending
against the Premises caused by acts of SELLER, and there shall be no claims or
offsets of any kind or nature which affect title to the Premises.
The representations and warranties contained in this Paragraph 14 shall
survive the Closing.
15. BUYER'S Representations and Warranties
A. To the best of BUYER's knowledge, none of the Premises has ever been
used to generate, manufacture, refine, treat, store, handle or dispose of any
toxic and/or hazardous wastes, substances, materials and the like; to the best
of BUYER's knowledge, BUYER has not caused or permitted to exist any above
ground or underground tanks for the storage of, nor has BUYER caused or
permitted to exist any release, spill, leak, pumping, emitting, pouring,
emptying, dumping, storage or disposal or any petroleum or petroleum products,
toxic and/or hazardous waste, substance, materials or the like on or at the
Premises, including without limitation, the presence of asbestos or
polychlorinated biphenyl fluids ("PCBs"); BUYER has no knowledge of the
existence of any toxic or hazardous waste or substance or any environmental
pollution or contamination at or in the Property, including without limitation,
the presence of asbestos, formaldehyde or formaldehyde based insulation, or
PCBs; no federal, state, or local agency or authority has issued any claim,
notification, order or violation or instituted any action,
15
suit, or proceeding concerning oil or hazardous materials, hazardous substances
or hazardous wastes or any other contaminate or pollutant with respect to the
Premises or with respect to the release of such oil or hazardous materials,
hazardous substances or hazardous wastes or any other contaminant or pollutant
on any adjoining property; BUYER is not aware of any condition or occurrence
which could give rise to any such claim, notification, order, violation, action,
suit or proceeding, and BUYER has, to the best of its knowledge, complied with
all laws, ordinances, rules and regulations of all federal, state, and local
agencies and authorities. All representations and warranties of BUYER contained
in this Section 15(A) shall specifically exclude any knowledge or awareness of
BUYER attributable to Richard Tarrant or Robert Hoehl.
B. At closing, there shall be no law suits or litigation pending
against the Premises caused by acts of BUYER, and there shall be no claims or
offsets of any kind or nature which affect title to the Premises.
16. COMMISSIONS AND FEES. The parties warrant and represent to each
other that they have no knowledge of any real estate broker or agent to whom a
commission may be payable as a result of this transaction or any such knowledge
of any other finder's fees or commissions related thereto. Each party agrees to
indemnify and hold harmless the other for all claims or demands of any real
estate agent or broker claiming by, through or under such party. This
indemnification shall also include payment of costs and attorneys' fees incurred
by a party in defense of a claim for such real estate commissions or fees.
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17. Apportionments. All property taxes and other municipal charges
assessed against the Premises shall be apportioned at closing in accordance with
the terms of the Lease Agreement.
IN WITNESS WHEREOF, we hereunto set our hands and seals as of the day
and year first above written.
In Presence of:
BDP Realty Associates
/S/ MOLLY LEBOWITZ By:/S/ RONALD L. ROBERTS
- ----------------------------- ----------------------------------
Witness Its duly authorized partner
IDX Systems Corporation
/S/ DIANE L. BROWN By:/S/ JOHN A. KANE
- ----------------------------- ----------------------------------
Witness Its duly authorized partner
SCHEDULE A
Being a parcel of land with all improvements thereon or to be constructed
thereon and all appurtenances thereto located easterly of Shelburne Road, in the
City of South Burlington, Vermont, known and designated as Lot 11 (50 Green
Mountain Drive), containing 2.24 acres, more or less, as depicted on a plat
entitled: "Composite Parcel Plan, Heritage Group, Shelburne Road, South
Burlington, Vermont," prepared by Pinkham Engineering Associates, Inc., dated
August 26, 1998, last revised September 17, 1998, and recorded in Map Volume 430
at Page 28 of the City of South Burlington Land Records (the "Plat"). The
Property is more particularly described, with reference to the Plat, as follows:
Commencing at a concrete monument located in the southeasterly
corner of lands and premises owned by Grantor and known as Lot
A (1500 Shelburne Road); thence proceeding in a northerly
direction in and along the easterly boundary of Lot A
N17(degree)52'46"E a distance of 35.13 to an iron pipe, which
pipe forms the point or place of beginning; thence continuing
in a northerly direction in and along the easterly boundary of
Lot A N19(degree)01'02"E a distance of 335.64 feet to a
concrete monument set in the southerly boundary of lands and
premises owned by Grantor and known as Lot B (1400 Shelburne
Road); thence turning to the right and proceeding in an
easterly direction in and along the southerly boundary of Lot
B S73(degree)29'22"E a distance of 291.43 feet to an iron pipe
located in the westerly boundary of Green Mountain Drive;
thence turning to the right and proceeding in a southerly
direction in and along the westerly boundary of Green Mountain
Drive S19(degree)03'41"W a distance of 334.56 feet to a point;
thence turning to the right and proceeding in a westerly
direction N73(degree)42'17"W a distance of 291.22 feet to the
point or place of beginning. All courses and distances are
more or less.
Being all and the same lands and premises conveyed to BDP Realty Associates by
Warranty Deed of Allson Partnership dated October 13, 1998 and recorded in
Volume 439 at Pages 103-104 of the City of South Burlington Land Records.
The Property is conveyed subject to and with the benefit of the following: (a)
taxes assessed on the Grand List of April 1, 2000 not delinquent on the date of
this Deed, which the Grantee herein assumes and agrees to pay as part of the
consideration for this Deed, subject to such taxes being prorated between
Grantor and Grantee on the date this Deed is delivered; and (b) the provi-sions
of municipal ordinances, public laws, and special acts; and (c) all easements,
rights-of-way, covenants, permits and restrictions depicted on the Plat,
including, but not by way of limitation:
1. Easement Deed from National Life Insurance Company to Green Mountain
Power Corporation dated September 21, 1961 and recorded in Volume 63 at
Page 90 of the City of South Burlington Land Records.
2. Utility Easement from Allson Partnership to Vermont Gas Systems, Inc.
dated July 16, 1987 and recorded in Volume 260 at Page 44 of the City
of South Burlington Land Records.
3. Utility Easements from Allson Partnership to Green Mountain Power
Corporation and New England Telephone and Telegraph Company dated
June 12, 1987 and recorded in Volume 249 at Page 286 of the City of
South Burlington Land Records, and dated
December 15, 1992 and recorded in Volume 338 at Page 165 of the City of
South Burlington Land Records.
4. Spring rights described in a deed of Fortis H. Abbot and Sadie M. Abbot
to Vermont Agricultural College dated January 30, 1952 and recorded in
Volume 30 at Page 286 of the City of South Burlington Land Records, as
modified by an agreement recorded in Volume 22 at Page 393 of the City
of South Burlington Land Records.
5. Protective Covenants set forth in the Warranty Deed from National Life
Insurance Company to Charles Zachary dated May 18, 1979 and recorded in
Volume 148 at Page 278 of the City of South Burlington Land Records and
in the Warranty Deed from National Life Insurance Company to Theodore
Zachary dated November 16, 1973 and recorded in Volume 115 at Page 212
of the City of South Burlington Land Records, but only to the extent
said Protective Covenants, which appear to have expired under their own
terms without recordable evidence of their continuation, have been
continued.
6. Terms and conditions of State of Vermont Land Use Permit No. 4C0094
dated March 30, 1973, as amended from time to time, including, without
limitation, Land Use Permit Amendment No. 4C0094-1 dated October 30,
1978; Land Use Permit Amendment No. 4C0094-4 dated March 16, 1999 and
recorded in Volume 449 at Page 330 of the City of South Burlington Land
Records; and Land Use Permit Amendment No. 4C0391-9 dated July 30, 1999
and recorded in Volume 459 at Pages 352-257 of the City of South
Burlington Land Records.
6. Terms and conditions of Deferral of Permit No. DE-4-2374 dated
January 29, 1999 and recorded in Volume 448 at Pages 213-214 of the
City of South Burlington Land Records, and the following waiver of
development rights contained therein:
In order to comply with State of Vermont Environmental
Protection Rules on the subdivision of lands and disposal of
waste including sewage, the Grantee shall not construct or
erect a structure or building on the parcel of land conveyed
herein, the useful occupancy of which will require the
installation of plumbing and sewage treatment facilities, or
convey this land without complying with said State
Regulations. The Grantee, by acceptance of this Deed,
acknowledges that this lot may not qualify for approval for
development under the appropriate Environmental Protection or
Health Regulations and that the State may deny and application
to develop the lot.
8. Terms and conditions of the municipal permits and approvals for the
Property including, without limitation, planning commission approvals
dated February 9, 1999; September 22, 1998; April 14, 1998; January 27,
1987 and January 23, 1973.
9. Sewer Main Easement from BDP Realty Associates to the City of South
Burlington dated March 8, 2000 and recorded in Volume 485 at Pages
251-253 of the City of South Burlington Land Records.
Reference is also made to the plan entitled: "BDP Realty Associates, Shelburne
Road, So. Burlington, Vt., Boundary Plat," prepared by Trudell Consulting
Engineers, Inc., dated December 18, 1998, last revised January 18, 1999 and
recorded in Map Volume 430 at Page 82 of the City of South Burlington Land
Records (the "Trudell Plan"). To the extent that the Trudell Plan depicts
additional lands which
are not depicted on the Plat, Grantor hereby conveys, by quitclaim only, all of
its right, title and interest in and to such additional lands.
Grantor and Grantee covenant and agree that in accordance with the February 9,
1999 approval by the South Burlington Planning Commission, the Property conveyed
hereby shall merge with the title to Grantor's adjacent lands and premises,
located at 1400-1500 Shelburne Road, which are being conveyed by Grantor to
Grantee by deed of even date herewith.
Reference is hereby made to the above-mentioned instruments, the records thereof
and the references therein contained in further aid of this description.
SCHEDULE B
1. City of South Burlington final plat approval dated February 9, 1999 of
planned unit development as depicted on a 19 page set of plans, page (3)
entitled "IDX, South Burlington, Vermont, Master Site Plan," prepared by
Trudell Consulting Engineers, Inc., et al., dated November 12, 1998,
last revised January 18, 1999.
2. State of Vermont Wastewater and Water Supply Permit No. WW-4-0442-1
dated June 17, 1999.
3. State of Vermont Land Use Permit No. 4C0391-9 dated July 30, 1999.
4. State of Vermont Amended Discharge Permit No. 1-0512 dated July 8, 1999.
5. State of Vermont Public Water System Permit to Construct No. 5091 dated
May 6, 1999.
6. State of Vermont Air Pollution Control Permit No. AP-9-001 dated
June 29, 1999.