SALE-PURCHASE AGREEMENT
SALE-PURCHASE AGREEMENT (this "AGREEMENT"), made as of November 5th, 2001
between WELLSFORD CAPITAL PROPERTIES, L.L.C., a Delaware limited liability
company having an address c/o Wellsford Real Properties, Inc., 535 Madison
Avenue, 26th Floor New York, New York 10022 ("SELLER") and THE JUDGE ROTENBERG
EDUCATIONAL CENTER, INC., a Massachusetts non-profit corporation having an
office at 240 Turnpike Street, Canton, Massachusetts 02021 ("PURCHASER").
W I T N E S S E T H:
- - - - - - - - - -
Seller and Purchaser, in consideration of the mutual covenants herein
contained, hereby agree as follows:
ARTICLE 1. CERTAIN DEFINITIONS
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For purposes of this Agreement, the following terms shall have the
following meanings:
1.1. "Affiliate" shall mean any entity which controls, is controlled by, or
is under common control with, Purchaser. For purposes of this definition,
"control" means the ownership, directly or indirectly, of more than fifty
percent (50%) of the beneficial interests in an entity, together with the
possession, directly or indirectly, of the power to direct the management and
policies of an entity, whether through ownership of beneficial interests, by
contract or otherwise.
1.2. "Broker" shall mean, collectively, Trammell Crow Company and Grubb &
Ellis Company.
1.3. "Business Day" shall mean any day other than a Saturday, Sunday or any
day upon which banks in the Commonwealth of Massachusetts or the State of New
York are required or authorized by law to be closed.
1.4. "Effective Date" shall mean the date upon which Purchaser receives a
fully executed counterpart of this Agreement. Promptly following the occurrence
of the Effective Date, Purchaser shall execute and deliver to Seller such
instrument as Seller may submit to it to evidence the occurrence of the
Effective Date.
1.5. "Escrowee" shall mean Old Republic National Title Insurance Company.
1.6. "Existing Service Contracts" shall mean the service contracts,
maintenance agreements, brokerage agreements and other agreements affecting the
Property and set forth in Exhibit C annexed hereto.
1.7. "Invasive Tests" shall mean any physical inspection or testing of the
Premises, other than visual examination, and shall include, without limitation,
sampling of soils and other media.
1.8. "JRC License Agreement" shall mean that certain Parking License
Agreement dated October 19, 2001 between Seller and Purchaser.
1.9. "New Service Contracts" shall mean any service contracts, maintenance
agreements, brokerage agreements or other agreements entered into by Seller in
accordance with the terms of this Agreement.
1.10. "Requirements" shall mean (i) any federal, state or municipal law,
ordinance, order or requirement (including those pertaining to hazardous
substances) and (ii) any provision of any municipal approval or instrument of
record pertaining to the Premises.
1.11. "Service Contracts" shall mean the Existing Service Contracts and the
New Service Contracts in effect on the Closing Date.
1.12. "Title Insurer" shall mean Old Republic National Title Insurance
Company.
ARTICLE 2. SALE-PURCHASE OF PROPERTY
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2.1. Agreement to Sell and Purchase. Seller shall sell to Purchaser, and
Purchaser shall purchase from Seller, at the Purchase Price and upon the terms
and conditions set forth in this Agreement, the following (collectively, the
"PROPERTY"): (a) the parcels of land more particularly described in Exhibit A
annexed hereto and as shown on the survey annexed hereto as Exhibit A-1 (the
"LAND"); (b) the buildings and other structures situated on the Land, inclusive
of all of Seller's right, title and interest in and to the improvements,
fixtures, systems, plant equipment, apparatus and machinery which form a part of
the buildings or such other structures (collectively, the "BUILDING") (the Land
and the Building are herein collectively called the "PREMISES"); (c) all right,
title and interest of Seller, if any, in and to (i) the land lying in the bed of
any street or highway in front of or adjoining the Land to the center line
thereof and (ii) any appurtenances in and to the Premises; (d) all right, title
and interest of Seller in and to any furniture, furnishings, moveable equipment
and other personal property located at, or used in connection with, the Premises
(herein collectively called the "PERSONAL PROPERTY"); (e) to the extent
assignable, Seller's right, title and interest in and to the Service Contracts;
(f) to the extent assignable, Seller's right, title and interest in and to any
licenses and permits in the operation of the Premises
(collectively, the "LICENSES") and (g) to the extent assignable, any warranties
given by any contractor or manufacturer in favor of Seller in connection with
the construction, repair or renovation of the Premises (collectively, the
"WARRANTIES"). The Premises are located at, and are known as, 250 Turnpike
Street, Canton, Massachusetts, 02021, and includes Lots 4 and 8, as more
particularly described in Exhibit A annexed hereto.
2.2. Title to Premises. Seller shall convey, and Purchaser shall accept,
title to and possession of the Premises on the Closing Date, free of all Title
Exceptions other than the Permitted Exceptions (each as hereinafter defined).
2.3. Condition of Property. Purchaser is a sophisticated investor and its
valuation of and decision to purchase the Property is based upon its own
independent expert evaluations of such facts and materials deemed relevant by
Purchaser and its agents. Other than the express representations and warranties
of Seller specifically set forth herein, Purchaser has not relied upon any oral
or written information from Seller or its employees, affiliates, agents,
consultants, advisors or representatives, including, without limitation, any
appraisals, projections or evaluations of credit quality prepared by Seller or
any of its employees, affiliates, agents, consultants, advisors or
representatives. Purchaser further acknowledges that no employee, agent,
consultant, advisor or representative of Seller has been authorized to make, and
that Purchaser has not relied upon, any statements or representations other than
those specifically contained in this Agreement. Without limiting the generality
of the foregoing, Purchaser acknowledges and agrees that, except as expressly
set forth herein, Purchaser is purchasing the Property "as is" and "where is" on
the Closing Date, and, except as expressly set forth herein, Seller is making no
representation or warranty, express or implied, and Purchaser has not relied on
any representation or warranty, express or implied, regarding the Property,
including, without limitation, any representation or warranty with respect to
(a) the physical condition of any Improvement or Personal Property comprising
all or a part of the Property, or its fitness, merchantability or suitability
for any use or purpose, (b) any rents, income or expenses of the Property, (c)
the compliance or non-compliance with any laws, codes, ordinances, rules or
regulations of any governmental authority (including, without limitation, laws
pertaining to hazardous materials) or (d) the current or future use of the
Property, including, but not limited to, any Property's use for commercial,
retail, industrial or other purposes. Seller is not liable or bound in any
manner by any verbal or written statements, repre sentations, offering memoranda
or information pertaining to the Property furnished by any real estate broker,
advisor, consultant, agent, employee, representative or other person.
ARTICLE 3. PURCHASE PRICE
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3.1. Purchase Price. The purchase price (the "PURCHASE PRICE") to be paid
by Purchaser to Seller for the Property is THREE MILLION TWO HUNDRED FIFTY
THOUSAND and 00/00 DOLLARS ($3,250,000.00), net of adjustments made in
accordance with Article 8 below. The Purchase Price shall be paid by Purchaser
as follows:
(a) ONE HUNDRED THOUSAND and 00/100 DOLLARS ($100,000.00), (the "INITIAL
DEPOSIT"), payable on the Effective Date by (i) wire transfer of immediately
available funds to the account of Escrowee or (ii) Purchaser's check, subject to
collection, drawn to the order of Escrowee;
(b) Unless this Agreement is validly terminated in accordance with the
provisions of Article 4 below, ONE HUNDRED THOUSAND and 00/100 ($100,000.00)
(the "SECOND DEPOSIT") (the Initial Deposit and the Second Deposit,
collectively, the "DEPOSIT"), payable on or before 5:00 P.M. on the Business Day
which is two (2) Business Days after the Due Diligence Expiration Date
(hereinafter defined) either by (i) wire transfer of immediately available funds
to the account of Escrowee or (ii) check, subject to collection, drawn to the
order of Escrowee; and
(c) THREE MILLION FIFTY THOUSAND and 00/100 DOLLARS ($3,050,000.00) (the
"CASH BALANCE"), payable on the Closing Date by wire transfer of immediately
available funds to an account or accounts designated by Seller.
3.2. Escrow of Deposit.
The Deposit shall be held, paid over and/or applied by Escrowee in
accordance with the following provisions:
(a) Escrowee shall hold the Deposit until the Closing or sooner termination
of this Agreement. Any interest earned on the Deposit shall be paid to the same
party entitled to be paid the Deposit hereunder (as and when such party is
entitled to the Deposit), except that, at Closing, interest shall be credited
against the Cash Balance. The party receiving such interest (or the benefit of
such interest by virtue of the same having been credited against the Cash
Balance) shall pay any income taxes thereon. For purposes thereof, the tax
identification numbers of the parties are as follows: 13-4027757 (Seller); and
04-2489805 (Purchaser).
(b) If this Agreement is validly terminated in accordance with the
provisions of Article 4 below, Escrowee shall pay the Initial Deposit to
Purchaser.
(c) At the Closing, the Deposit shall be paid by Escrowee to Seller.
(d) If for any reason the Closing does not occur, then, except as otherwise
expressly provided to the contrary in this Section 3.2, Escrowee shall continue
to hold the Deposit until otherwise directed by joint written instructions from
the parties to this Agreement or a final judgment of a court of competent
jurisdiction. Escrowee, however, shall have the right at any time to deposit the
Deposit with the clerk of any federal or state court sitting in the Commonwealth
of Massachusetts. Escrowee shall give written notice of such deposit to Seller
and Purchaser. Upon such deposit, Escrowee shall be relieved and discharged of
all further obligations and responsibilities hereunder first arising or accruing
from and after the date of such deposit.
(e) The parties acknowledge that Escrowee is acting solely as a stakeholder
at their request and for their convenience, that Escrowee shall not be deemed to
be the agent of either of the parties and that Escrowee shall not be liable to
either of the parties for any act or omission on its part unless taken or
suffered in bad faith, in willful disregard of this Agreement or involving gross
negligence. Seller and Purchaser shall jointly and severally indemnify and hold
Escrowee harmless from and against all costs, claims and expenses, including
reasonable attorneys' fees, incurred in connection with the performance of
Escrowee's duties hereunder, except with respect to actions or omissions taken
or suffered by Escrowee in bad faith, in willful disregard of this Agreement or
involving gross negligence on the part of Escrowee.
(f) Escrowee shall cause the Deposit to be maintained at Fleet National
Bank in an interest-bearing money market account or accounts. Escrowee shall not
be liable for any losses suffered in connection with any such investment and
shall have no obligation to obtain the best (or otherwise seek to maximize) the
rate of interest earned on any such investment. Any fees or charges in
connection with such investment shall be paid out of the amounts held in escrow
before any other payments shall be required to be made from such amounts. Seller
and Purchaser acknowledge that the Federal Deposit Insurance Corporation
("FDIC") insures individual depositors up to a maximum amount of $100,000.
Seller and Purchaser hereby release Escrowee from any loss or damage they may
incur by reason of the Deposit exceeding the maximum coverage afforded to
individual depositors by the FDIC.
(g) Upon any delivery of the amount remaining in escrow as provided in
Sections 3.2(b), (c) or (d) above, Escrowee shall be relieved of all liability,
responsibility or obligation with respect to or arising out of the escrow or
under this Agreement. Escrowee shall not be bound by any modification to this
Section 3.2 unless Escrowee shall have agreed to such modification in writing.
(h) Escrowee shall be entitled to rely or act upon any notice, instrument
or document believed by Escrowee in good faith to be genuine and to be executed
and delivered by the proper person, and shall have no obligation to verify any
statements contained in any notice, instrument or document or the accuracy or
due authorization of the execution of any notice, instrument or document.
(i) Escrowee shall be entitled to retain attorneys of its choice in
connection with this escrow.
(j) Escrowee has acknowledged its agreement to the foregoing provisions of
this Section 3.2 by signing in the place indicated on the signature page of this
Agreement.
ARTICLE 4. PURCHASER'S INSPECTIONS
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4.1. Due Diligence Period; Termination Right. During the period commencing
on the Effective Date and ending on the date (the "DUE DILIGENCE EXPIRATION
DATE") which is forty-five (45) days thereafter (unless such date is not a
Business Day, in which event the Due Diligence
Expiration Date shall be the next occurring Business Day), Purchaser shall have
the right to conduct such due diligence investigations of the Property as it
deems necessary, including inspections, studies, examinations and investigations
of the Property, and/or any facts, circumstances and matters relating to the
Property. If Purchaser, in its sole and absolute discretion, determines for any
reason whatsoever that it is unsatisfied with the results of, or the matters
disclosed by, its due diligence investigations of the Property, Purchaser shall
have the unequivocal right to terminate this Agreement by written notice given
to Seller prior to 5:00 p.m. New York time on the Due Diligence Expiration Date
(TIME BEING OF THE ESSENCE). Upon any termination of this Agreement pursuant to
this Section 4.1, (i) the Initial Deposit shall be refunded to Purchaser and
(ii) neither party hereto shall have any further obligation to the other, with
the exception of those obligations which expressly survive the termination of
this Agreement. If Purchaser shall fail to terminate this Agreement in the time
and manner set forth in this Section 4.1, Purchaser shall be deemed to have
irrevocably waived its right to terminate this Agreement pursuant to this
Section 4.1.
4.2. Inspections. Purchaser and its authorized agents, consultants or
representatives shall have the right, upon reasonable prior notice to Seller
(which notice may be telephonic, to William Darrow at the telephone number set
forth in Section 16.1 hereof), to enter upon the Premises from time to time to
conduct such physical and other inspections as Purchaser deems appropriate,
provided that Purchaser shall not perform Invasive Tests without first obtaining
Seller's consent, which consent shall not be unreasonably withheld or delayed.
Prior to any entrance upon the Premises for the performance of Invasive Tests,
Purchaser shall deliver to Seller (or cause the applicable contractor to deliver
to Seller) a certificate of insurance evidencing that Purchaser has procured and
maintains in force and effect commercial general liability insurance covering
Purchaser and Seller against claims for bodily injury or death or property
damage occurring in, upon or about the Premises in an amount of not less than
$2,000,000 (combined single limit), issued by an insurance company with a rating
of "A" or better as established by Best's Rating Guide, which insurance shall
include blanket contractual liability coverage and shall otherwise be in form
reasonably acceptable to Seller.
4.3. Restoration and Indemnity. Following the performance of any Invasive
Tests, Purchaser shall restore the Premises to their condition prior to the
performance thereof. Purchaser shall indemnify and hold harmless Seller and its
officers, directors, members, employees, successors and assigns, from and
against any and all damages, losses, costs, expenses, liabilities and claims
that arise out of or in any way relate to the conduct of Purchaser's due
diligence investigations. The provisions of this Section 4.3 shall survive the
termination of this Agreement for a period of one year.
4.4. Confidentiality. Prior to the Closing, Purchaser shall not disclose to
any other party the contents of any Confidential Materials (hereinafter defined)
without first obtaining Seller's prior written consent. For purposes of this
Agreement, the term "Confidential Materials" shall mean (i) materials delivered
to Purchaser by Seller with respect to the Property or any summaries thereof
prepared by or at the behest of Purchaser (collectively, "DELIVERED MATERIALS")
and/or (ii) any reports summarizing any investigations of the Property prepared
by Purchaser or its representatives or agents. Notwithstanding the foregoing,
Purchaser may, without first
obtaining such prior written consent, disclose Confidential Materials to its
officers, employees, lenders, counsel, lenders' counsel, appraisers,
accountants, insurance advisors, environmental consultants and similar
third-party consultants, provided that such parties are apprised of the
confidential nature of the Confidential Materials, and provided further that
Purchaser may make such disclosures as may be required by law. Upon any
termination of this Agreement, Purchaser shall deliver all copies of all
Delivered Materials to Seller. The provisions of this Section 4.4 shall survive
any termination of this Agreement.
ARTICLE 5. TRANSACTION COSTS
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5.1. Seller's Costs. At the Closing, Seller shall pay (i) all transfer
taxes payable as a result of the conveyance of title to the Property to
Purchaser pursuant to this Agreement, (ii) costs incurred in connection with the
discharge of any Title Exceptions which are not Permitted Exceptions, (iii)
costs incurred in connection with the filing or recording of any certificates or
resolutions required to record the Deed and (iv) inspection and transfer fees,
if any, payable in connection with Warranties assigned to Purchaser. In
addition, Seller shall be responsible for the costs of its legal counsel,
advisors and the other professionals employed by it in connection with the sale
of the Property.
5.2. Purchaser's Costs. At the Closing, Purchaser shall pay the cost of
recording the Deed. In addition, Purchaser shall be responsible for (i) title
insurance premiums and fees payable in connection with any owner's or
mortgagee's policy of title insurance obtained by Purchaser, (ii) costs incurred
in connection with any update of the survey of the Premises, (iii) the cost of
Purchaser's inspections of the Property, (iv) costs and expenses of any
financing obtained by Purchaser and (v) the costs of Purchaser's legal counsel,
advisors and other professionals employed by it in connection with its
acquisition of the Property.
ARTICLE 6. CLOSING DATE; CONDITIONS TO CLOSING
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6.1. Closing Date. The closing of the transactions contemplated by this
Agreement (the "CLOSING") shall take place on December 27, 2001. The date upon
which the Closing occurs, as the same may be adjourned in accordance with the
terms hereof, is herein referred to as the "CLOSING DATE". The Closing shall
occur on the Closing Date at 10:00 a.m. at the offices of Purchaser's counsel,
Eckert Seamans Cherin & Mellott, LLC, One International Place, Boston,
Massachusetts, through an escrow established with Title Insurer upon such terms
and conditions as Seller, Purchaser and Title Insurer shall mutually agree. TIME
SHALL BE OF THE ESSENCE WITH RESPECT TO THE OBLIGATIONS OF PURCHASER AND SELLER
TO BE PERFORMED ON THE CLOSING DATE.
6.2. Conditions to Closing. Purchaser's obligation to purchase the Property
is subject to the satisfaction of the following conditions precedent, any or all
of which may be waived by Purchaser:
(a) this Agreement shall be in full force and effect;
(b) Seller shall have fully satisfied, or shall therewith fully satisfy,
all of its Closing obligations hereunder; and
(c) there shall not otherwise then exist any event which would allow
Purchaser to terminate this Agreement pursuant to the express terms hereof.
6.3. Seller's Conditions. Seller's obligation to sell the Property is
subject to the satisfaction of the following conditions precedent, any or all of
which may be waived by Seller:
(a) this Agreement shall be in full force and effect,
(b) Purchaser shall have fully satisfied, or shall therewith fully satisfy,
all of its Closing obligations hereunder, and
(c) there shall not otherwise then exist any event which would allow Seller
to terminate this Agreement pursuant to the express terms hereof.
ARTICLE 7. CLOSING DOCUMENTS AND DELIVERIES
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7.1. Conveyancing Documents and Deliveries.
At the Closing:
(a) Purchaser shall deliver to Seller the Cash Balance and any other
amounts payable by Purchaser to Seller at the Closing pursuant to this
Agreement;
(b) Seller shall execute, acknowledge and deliver a quitclaim deed
sufficient to convey the Premises to Purchaser in accordance with the terms
hereof, subject only to the Permitted Exceptions (the "DEED");
(c) Seller shall deliver to Purchaser original counterparts (or, if the
same are unavailable, copies thereof) of the assignable Service Contracts;
(d) Seller shall deliver to Purchaser original counterparts (or, if the
same are unavailable, copies thereof) of any permits, approvals or certificates
of occupancy pertaining to the Premises, to the extent the same are in Seller's
possession or control;
(e) Seller shall execute and deliver a general bill of sale in the form of
Exhibit E annexed hereto, conveying to Purchaser all of Seller's right, title
and interest in and to the Personal Property;
(f) Subject to the provisions of Section 7.1(g) hereof, Seller and
Purchaser shall mutually execute and deliver to each other an instrument in the
form of Exhibit G annexed hereto ( the "SERVICE CONTRACT ASSIGNMENT") providing
for the assignment by Seller to Purchaser of all of Seller's right, title and
interest in and to the assignable Service Contracts, Licenses and Warranties
(other than the JRC License Agreement) and Purchaser's assumption of Seller's
obligations under the assignable Service Contracts, Licenses and Warranties
(other than the JRC License Agreement) which first arise or accrue after the
Closing Date;
(g) Seller shall furnish Purchaser with evidence of the termination of the
Property Management Agreement (as defined in Exhibit C annexed hereto). Seller
and Purchaser mutually acknowledge and agree that, effective as of the Closing,
the JRC License Agreement shall terminate, whereupon neither Seller nor
Purchaser shall have any further obligation thereunder, with the exception of
those obligations which expressly survive the termination of the JRC License
Agreement;
(h) Seller and Purchaser shall execute and deliver a letter to each of the
other parties to the assignable Service Contracts notifying each such party of
the sale of the Premises and indicating the new address for notices under the
Service Contracts;
(i) Seller shall execute and deliver a FIRPTA affidavit required pursuant
to the Treasury Department Regulations promulgated under Section 1445 of the
Internal Revenue Code of 1986, as amended, in respect of the Property. Seller
understands that such certification will be retained by Purchaser and will be
made available to the Internal Revenue Service on request;
(j) Seller and Purchaser shall execute and deliver to each other a closing
statement setting forth with specificity the adjustments made in accordance with
Article 8 hereof;
(k) Purchaser shall deliver to Seller evidence reasonably satisfactory to
Seller of the due authorization, execution and delivery of the documents and
instruments to be executed by Purchaser at Closing in accordance with the terms
of this Agreement;
(l) Seller shall deliver to Purchaser evidence reasonably satisfactory to
Purchaser of the due authorization, execution and delivery of the documents and
instruments to be executed by Seller at Closing in accordance with the terms of
this Agreement; and
(m) Seller shall deliver to Purchaser originals of plans or specifications
for the Building in its possession or control, if any.
ARTICLE 8. CLOSING ADJUSTMENTS
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The following are to be adjusted and prorated between Seller and Purchaser
as of 11:59 p.m. on the day preceding the Closing Date, based upon a 365 day
year, with Seller deemed to be the owner of the Property on the day preceding
the Closing Date and Purchaser deemed to be the owner of the Property on the
Closing Date.
8.1. Real Estate Taxes. Real estate taxes shall be adjusted and prorated on
the basis of the fiscal year for which assessed. If the Closing shall occur
before the tax rate or assessed valuation is fixed for the Premises, the
apportionment of real estate taxes for such Premises shall be upon the basis of
the tax rate for the preceding year applied to the most recently applicable
assessed valuation of such Premises, subject to further and final adjustment
when the tax rate and/or assessed valuation for such Premises is fixed for the
year in which the Closing occurs. In addition, there shall be a further and
final adjustment of real estate taxes for the fiscal year in which the Closing
occurs if after Closing all or any portion of the Premises is reclassified or
reassessed for real estate tax purposes pursuant to Chapter 59, Section 76 of
the General Laws of Massachusetts. In the event that the Premises or any part
thereof shall be or shall have been affected by an assessment or assessments,
Seller shall, at the Closing, be responsible for any installments due prior to
the Closing and Purchaser shall be responsible for any installments due on or
after the Closing.
8.2. Utility Charges. Seller shall use reasonable efforts to obtain
readings of meters measuring utility consumption at the Property for all periods
through (and including) the date preceding the Closing Date. Seller shall pay,
and be responsible, for all bills rendered on the basis of such readings. If
such readings are not obtained for any metered utility, then, at the Closing,
apportionment shall be made on the basis of the most recent period for which
such readings are available. Upon the taking of subsequent actual readings,
there shall be a recalculation of the applicable utility charges, and Seller or
Purchaser, as the case may be, shall promptly remit to the other party hereto
any amounts to which such party shall be entitled by reason of such
recalculation. Unmetered water charges or sewer rents shall be adjusted and
prorated as of the Closing Date.
8.3. Other Adjustments. The following items shall also be adjusted as of
11:59 P.M. on the date preceding the Closing Date: (i) charges and payments
under Service Contracts assigned to Purchaser; (ii) charges and payments under
the JRC License Agreement; and (iii) fees and payments, if any, under Licenses
assigned to Purchaser.
Any errors or omissions in computing adjustments at the Closing shall be
promptly corrected, provided that the party seeking to correct such error or
omission shall have notified the other party of such error or omission on or
prior to the date that is one (1) year following the Closing Date. The
provisions of this Article 8 shall survive Closing.
ARTICLE 9. REPRESENTATIONS AND WARRANTIES
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9.1. Basic Representations of Purchaser.
Purchaser, as of the date hereof, represents and warrants to Seller as
follows:
(a) Purchaser is a non-profit corporation, duly organized, validly existing
and in good standing under the laws of the Commonwealth of Massachusetts.
(b) Purchaser has full power and authority to enter into and perform this
Agreement, the documents to be executed and delivered pursuant hereto, and each
and all of the transactions contemplated hereby and thereby in accordance with
the terms hereof and thereof.
(c) The individual executing this Agreement on behalf of Purchaser and the
individual executing each of the documents to be executed and delivered in
connection herewith on behalf of Purchaser have full power and authority to do
so. This Agreement and each of the documents and instruments to be executed by
Purchaser in connection herewith are, or will be when executed and delivered,
the legal valid and binding obligations of Purchaser, enforceable against
Purchaser in accordance with the terms hereof and thereof. Purchaser's
performance of its obligations under this Agreement shall not contravene, or
cause a default under, any agreement, judgment, order, writ or decree under
which Purchaser or any of its assets is bound.
(d) Purchaser has not filed any petition seeking or acquiescing in any
reorganization, arrangement, composition, readjustment, liquidation, dissolution
or similar relief under any law relating to bankruptcy or insolvency, nor has
any such petition been filed against Purchaser. Purchaser is not insolvent and
the consummation of the transactions contemplated by this Agreement shall not
render Purchaser insolvent. No general assignment of Purchaser's property has
been made for the benefit of creditors, and no receiver, master, liquidator or
trustee has been appointed for Purchaser or any of its property.
(e) There are no actions or proceedings pending or, to Purchaser's actual
knowledge, threatened, against Purchaser which, in Purchaser's reasonable
judgment, could have a material adverse affect on Purchaser's ability to perform
its obligations hereunder.
9.2. Basic Representations of Seller.
Seller, as of the date hereof, represents and warrants to Purchaser as
follows:
(a) Seller is a limited liability company, duly organized and validly
existing and in good standing under the laws of the State of Delaware and
authorized to do business in the Commonwealth of Massachusetts.
(b) Seller has full power and authority to enter into and perform this
Agreement and to enter into the documents to be executed and delivered pursuant
hereto, and each
and all of the transactions contemplated hereby and thereby in accordance with
the terms hereof and thereof.
(c) The individual executing this Agreement on behalf of Seller and the
individuals executing each of the documents to be executed and delivered in
connection herewith on behalf of Seller have full power and authority to do so.
This Agreement and each of the documents to be executed and delivered by Seller
in connection herewith are, or will be when executed and delivered, the legal
valid and binding obligations of Seller, enforceable against Seller in
accordance with the terms hereof and thereof. Seller's performance of its
obligations under this Agreement shall not contravene, or cause a default under,
any agreement, judgment, order, writ or decree under which Seller or any of its
assets is bound.
(d) Seller has not filed any petition seeking or acquiescing in any
reorganization, arrangement, composition, readjustment, liquidation, dissolution
or similar relief under any law relating to bankruptcy or insolvency, nor has
any such petition been filed against Seller. Seller is not insolvent and the
consummation of the transactions contemplated by this Agreement shall not render
Seller insolvent. No general assignment of Seller's property has been made for
the benefit of creditors, and no receiver, master, liquidator or trustee has
been appointed for Seller or any of its property.
(e) There are no actions or proceedings pending or, to Seller's actual
knowledge, threatened, against Seller which, in Seller's reasonable judgment,
could have a material adverse affect on Seller's ability to perform its
obligations hereunder.
9.3. Representations of Seller Regarding the Property.
Seller, as of the date hereof, represents and warrants to Purchaser as
follows:
(a) There are no leases, licenses or occupancy agreements affecting the
Premises, other than the JRC License Agreement.
(b) There are no service contracts, maintenance agreements or other
agreements affecting the Premises, other than the Existing Service Contracts.
(c) There are no actions or proceedings pending or, to Seller's actual
knowledge, threatened, with respect to the Property.
(d) There are no pending or, to Seller's knowledge, threatened, eminent
domain or condemnation proceedings with respect to the Property.
(e) The Personal Property is free of any lien or encumbrance.
(f) Seller has not received written notice that the Premises are in
violation of Requirements, nor, to Seller's knowledge, has any governmental
authority having jurisdiction over the Premises threatened to issue any such
violation.
(g) The insurance coverages with respect to the Premises described in
Exhibit J annexed hereto are in full force and effect.
The representations of Seller contained in Sections 9.3(a) through (e)
hereof shall survive Closing for twelve (12) months (the "Representation
Survival Period").
9.4. Closing Certificates of Purchaser and Seller.
(a) Purchaser, on the Closing Date, shall execute and deliver to Seller an
instrument by which Purchaser shall remake the representations made pursuant to
Section 9.1 above as of the Closing, provided that Purchaser, in such
instrument, shall (i) update such representations to reflect events occurring
between the date hereof and the Closing and (ii) correct such representations to
reflect any discovered inaccuracy therein, such instrument being herein called
"PURCHASER'S REPRESENTATION CERTIFICATE".
(b) Seller, on the Closing Date, shall execute and deliver to Purchaser an
instrument by which Seller shall remake the representations made pursuant to
Sections 9.2 and 9.3 above as of the Closing, provided that Seller, in such
instrument, shall (i) update such representations to reflect events occurring
between the date hereof and the Closing and (ii) correct such representations to
reflect any discovered inaccuracy therein, such instrument being herein called
"SELLER'S REPRESENTATION CERTIFICATE". Notwithstanding the foregoing, (i)
Seller's Representation Certificate shall remake the representations contained
in Sections 9.3(b) hereof as to the Service Contracts and (ii) Seller shall not
remake the representation contained in Sections 9.3(f)-(g) hereof.
9.5. Remedies for Inaccuracies and Other Changes.
(a) The remedies of Seller and Purchaser for an inaccuracy in any
representation or for any update or correction set forth in any Seller's or
Purchaser's Representation Certificate shall be solely as set forth in the
following provisions of this Section 9.5. Each of Seller and Purchaser hereby
waives any inaccuracy in, or any update made to, any representation made to it
pursuant to this Article 9, unless the same is Materially Adverse. For purposes
of this Section 9.5, the term "MATERIALLY ADVERSE" shall have the following
meanings in the following contexts:
(1) An inaccuracy in any representation by Seller shall be deemed to be
"MATERIALLY ADVERSE" to Purchaser if, and only if (i) there is an inaccuracy in
such representation as of the date made and (ii) Purchaser may reasonably
demonstrate that such inaccuracy may reasonably be expected to result in a
diminution in the value of the Property or the imposition of liability upon
Purchaser which exceeds $25,000;
(2) Facts giving rise to an update or correction set forth in a Seller's
Representation Certificate shall be deemed to be "MATERIALLY ADVERSE" to
Purchaser if, and only if (i) such update or correction is not contemplated or
permitted by the terms of this Agreement and (ii) Purchaser may reasonably
demonstrate that such update or correction results in a
diminution in the value of the Property or the imposition of liability upon
Purchaser which exceeds $25,000; and
(3) An inaccuracy in any representation by Purchaser or facts giving rise
to an update or correction set forth in a Purchaser's Representation Certificate
shall be deemed to be "MATERIALLY ADVERSE" to Seller if, and only if, Seller
reasonably demonstrates that the same renders Purchaser incapable of proceeding
to Closing in accordance with the terms of this Agreement.
(b) If, prior to Closing, (i) Seller shall learn of an inaccuracy in any
representation of Purchaser set forth in Section 9.1 hereof (as made as of the
date hereof) which is Materially Adverse to Seller, which inaccuracy is not
cured within ten days after notice from Seller, (ii) Seller shall know of an
inaccuracy in any representation of Purchaser made pursuant to Purchaser's
Representation Certificate (as made as of the Closing) which is Materially
Adverse to Seller or (iii) Purchaser's Representation Certificate shall set
forth any update or correction which is Materially Adverse to Seller, then
Seller, as its sole remedy therefor in each case, shall have the right to
terminate this Agreement upon notice to Purchaser at any time prior to the
Closing, whereupon the Deposit shall be paid to Seller as liquidated damages on
account thereof and thereafter neither party hereto shall have any further
rights or obligations hereunder other than those which expressly survive the
termination of this Agreement. Seller and Purchaser agree that the aforesaid
liquidated damages are a fair and reasonable amount to be retained by Seller as
agreed and liquidated damages in light of Seller's removal of the Premises from
the market and the costs incurred by Seller and shall not constitute a penalty
or a forfeiture. If, however, Seller proceeds to Closing in accordance with the
terms hereof, Seller shall be deemed to have waived the same and shall have no
claim on account thereof. Notwithstanding the foregoing, if Seller terminates
this Agreement pursuant to this Section 9.5(b) at any time on or before the Due
Diligence Expiration Date, the Initial Deposit shall be refunded to Purchaser.
(c) If, prior to Closing, (i) Purchaser shall learn of an inaccuracy in any
representation of Seller set forth in Sections 9.2 or 9.3 hereof (as made as of
the date hereof) which is Materially Adverse to Purchaser, which inaccuracy is
not cured within ten days after notice from Purchaser, (ii) Purchaser shall know
of an inaccuracy in any representation of Seller made pursuant to Seller's
Representation Certificate (as made as of the Closing Date) which is Materially
Adverse to Purchaser or (iii) Seller's Representation Certificate shall set
forth any update or correction which is Materially Adverse to Purchaser, then
Purchaser, as its sole remedy therefor in each case, shall have the right to
terminate this Agreement upon notice to Seller at any time prior to Closing,
whereupon the Deposit shall be refunded to Purchaser and thereafter neither
party shall have any further rights or obligations hereunder other than those
which expressly survive the termination of this Agreement. If, however,
Purchaser, with actual knowledge of any such inaccuracy, update or correction,
elects to proceed to Closing, then Purchaser shall be deemed to have waived the
same and shall have no claim on account thereof. Notwithstanding the foregoing,
if Purchaser shall elect to terminate this Agreement pursuant to this Section
9.5(c) because Seller has (i) knowingly and intentionally (and with knowledge of
the falsity thereof) made a misrepresentation or false warranty or (ii)
knowingly and intentionally caused a breach of representation or warranty, which
in either case is Materially Adverse to Purchaser, Purchaser
shall have a claim for damages on account thereof in the amount of actual,
out-of-pocket title examination and survey costs, third-party professional costs
(including reasonable attorneys' fees and disbursements) and forfeited loan
application or commitment fees incurred in connection with this Agreement, not
to exceed $100,000 in the aggregate.
(d) If, after Closing, Purchaser shall first learn of an inaccuracy in any
representation made by Seller pursuant to Seller's Representation Certificate
(as made as of the Closing Date), then Purchaser shall have a claim for damages
on account thereof, provided that (i) any claim not brought within the
Representation Survival Period shall be deemed waived, (ii) Purchaser hereby
waives the right to collect or seek to collect consequential or punitive damages
and (iii) the inaccuracy is Materially Adverse to Purchaser.
ARTICLE 10. TITLE
-----------------
10.1. Acceptable Title. Seller shall convey, or cause to be conveyed, and
Purchaser shall accept, title to the Premises, as of the Closing Date, subject
to the Permitted Exceptions, and otherwise free of all tenancies and rights to
possession and in broom clean condition. The term "PERMITTED EXCEPTIONS" shall
mean, collectively, (i) the matters set forth in Exhibit K annexed hereto, (ii)
Title Exceptions that Title Insurer shall be willing to omit as exceptions to
coverage in any owner's or mortgagee's policy of title insurance obtained by or
on behalf of Purchaser and (iii) any exceptions and matters that are approved,
waived or deemed to have been approved or waived by Purchaser.
10.2. Inability to Convey Acceptable Title. Purchaser agrees to obtain from
Title Insurer, at Purchaser's expense, a title report with respect to the
Premises (the "TITLE REPORT"). Purchaser shall furnish Seller with a copy of the
Title Report promptly after its receipt thereof, but in no event later than
twenty-five days after the Effective Date. On or before the date which is thirty
(30) days after the Effective Date (TIME BEING OF THE ESSENCE), Purchaser may
furnish Seller with written notice (a "TITLE OBJECTION NOTICE") of those Title
Exceptions (hereinafter defined) noted in the Title Report which are not
Permitted Exceptions and as to which Purchaser objects. In addition, within five
days of Purchaser's receipt of any continuation of the Title Report, Purchaser
may furnish Seller with written notice of Title Exceptions noted therein which
are not Permitted Exceptions and as to which Purchaser objects, provided such
Title Exceptions were not noted in the Title Report (or any prior continuation
thereof). Any such notice shall also constitute a Title Objection Notice.
Purchaser shall be deemed to have waived objection to Title Exceptions set forth
in the Title Report (or any continuation thereof) to which timely objection is
not made in a Title Objection Notice. For purposes of this Agreement, the term
"TITLE EXCEPTIONS" shall mean any lien, encumbrance, security interest, charge,
reservation, lease, tenancy, easement, right-of-way, encroachment, restrictive
covenant, condition or limitation or other matter adversely affecting title to
the Property.
10.3. Seller's Rights. Seller shall have the right, in its sole discretion,
upon notice to Purchaser (the "TITLE RESPONSE NOTICE") given within ten (10)
days after Seller's receipt of any Title Objection Notice (TIME BEING OF THE
ESSENCE), to elect to either (i) take such action
as Seller deems advisable to discharge those Title Exceptions which are not
Permitted Exceptions and are set forth in the Title Objection Notice (the "TITLE
DEFECTS") or (ii) subject to the provisions of Section 10.4 hereof, terminate
this Agreement, whereupon the Deposit shall be refunded to Purchaser and
thereafter neither party hereto shall have any further obligation to the other
party hereto, with the exception of those obligations which expressly survive
the termination of this Agreement. If Seller fails timely to deliver the Title
Response Notice, then Seller shall be deemed to have elected to terminate this
Agreement pursuant to clause (ii) above. If Seller, in its Title Response
Notice, elects to take action to remove, remedy or comply with the Title
Defects, Seller shall be entitled to one or more adjournment(s) of the Closing
for up to thirty days in the aggregate to discharge the Title Defects, provided
that such adjournment shall not result in the forfeiture of any commitment
obtained by Purchaser to finance its acquisition of the Property, unless
Purchaser may extend the time in which to close the loan contemplated by the
commitment at no cost to Purchaser (it being agreed that the foregoing shall not
be deemed to constitute a financing contingency). If Seller elects to adjourn
the Closing as aforesaid, Seller shall thereafter use commercially reasonable
efforts to remove, remedy or comply with the Title Defects. If Seller is unable
to remove, remedy or comply with such Title Defects at the expiration of such
adjournment(s), then this Agreement shall be deemed to be terminated as of the
last adjourned date of Closing. Upon such termination, the Deposit shall be
refunded to Purchaser and neither party hereto shall have any further obligation
to the other party, with the exception of those obligations which expressly
survive the termination of this Agreement. Except as set forth in Section 10.5
hereof, nothing in this Agreement shall be deemed to require Seller to take or
bring any action or proceeding or any other steps to remove any defect in or
objection to title or to expend any moneys therefor, nor shall Purchaser have
any right of action against Seller, at law or in equity, therefor.
10.4. Purchaser's Right to Accept Title. Purchaser may, upon written notice
to Seller at any time on or before the Closing Date (as the same may have been
adjourned by Seller in accordance with the provisions of Section 10.3 hereof),
elect to accept such title as Seller can convey, notwithstanding the existence
of any Title Defects. In such event, (i) this Agreement shall remain in force
and effect, (ii) the parties shall proceed to Closing and (iii) Purchaser shall
not be entitled to any abatement of the Purchase Price, any credit or allowance
of any kind or any claim or right of action against Seller for damages or
otherwise by reason of the Title Defects.
10.5. Seller's Obligation. Notwithstanding anything contained in this
Article 10 the contrary, Seller shall at or prior to Closing discharge (i) any
mortgage affecting the Property, (ii) any Title Defects which are knowingly and
intentionally created by Seller subsequent to the date hereof and (iii) any
Title Defects which may be discharged solely by the payment of a sum of money,
not to exceed $200,000 in the aggregate.
10.6. Wentworth Deed. Seller has furnished Purchaser with a copy of a
mortgagee policy of title insurance for the Premises, issued by Fidelity
National Title, dated October 22, 1998. Such policy raises an exception from
coverage for a reservation of right of way contained in a deed dated July 11,
1927 by E. Francis Wentworth, et al, to Samuel R. Wentworth, recorded in Deed
Book 1956, Page 301, Norfolk County Records (the "WENTWORTH DEED"). Purchaser
reserves the right to raise objection to the Wentworth Deed in accordance with
the provisions of
Section 10.2 hereof, whereupon Seller and Purchaser shall have the rights and
remedies accorded to them by this Article 10 with respect to Title Exceptions to
which Purchaser has raised objection in a Title Objection Notice. If Purchaser
fails to raise object to the Wentworth Deed in the time and in the manner
specified in Section 10.2 hereof, Purchaser shall be deemed to have waived
objection thereto, in which event Purchaser shall close title to the Premises
subject thereto without abatement of the Purchase Price, credit or allowance of
any kind or claim or right of action against Seller for damages or otherwise by
reason of the Wentworth Deed. Nothing in this Agreement shall be deemed to
require Seller to take or bring any action or proceeding or any other steps to
obtain the discharge of the Wentworth Deed.
10.7. Title Insurance. Purchaser and Seller shall cooperate with Title
Insurer and each other in connection with obtaining title insurance insuring
title to the Premises subject to the Permitted Exceptions. In furtherance and
not in limitation of the foregoing, Seller shall deliver to Title Insurer such
certificates or resolutions as may be required to obtain the recordation of the
Deed or any instrument required to discharge any Title Exception which is not a
Permitted Exception. In addition, Seller shall execute and deliver to Title
Insurer an Indemnity Agreement in the form annexed hereto as Exhibit L.
10.8. Violations. Seller shall have no responsibility to cure, or cause to
be cured, any violations of Requirements noted against the Premises, whether the
same have been noted or issued as of the date hereof or are first noted or
issued after the date hereof, and Purchaser agrees to close title to the
Premises subject thereto.
ARTICLE 11. CASUALTY AND CONDEMNATION
-------------------------------------
11.1. Casualty.
(a) For purposes of this Article 11, the following terms shall have the
meanings indicated:
"MAJOR CASUALTY" means a fire in or other casualty to the Premises which
causes damage or injury to the Premises and results in Restoration Costs in
excess of an amount equal to ten percent (10%) of the Purchase Price.
"RESTORATION COSTS" means the cost to repair or restore (as reasonably
determined by an architect or engineer selected by Seller and approved by
Purchaser, which approval shall not be unreasonably withheld, conditioned or
delayed) the damage to the Premises caused by a fire or other casualty.
(b) If, between the date hereof and the Closing, there shall occur a fire
or other casualty affecting the Premises which is not a Major Casualty, then
Purchaser shall have no right to terminate this Agreement and shall purchase the
Premises in its damaged condition without reduction of or offset against the
Purchase Price or any other claim against Seller. Seller shall assign to
Purchaser the right to receive any insurance proceeds payable to Seller as a
result of
such fire or other casualty; provided, however, that Seller shall be entitled to
retain (to the extent theretofore paid to Seller), and shall not be obligated to
assign the right to receive (to the extent not theretofore paid to Seller) an
amount of such insurance proceeds equal to Seller's reasonable expenses, if any,
incurred in collecting such proceeds and repairing the damage caused by fire or
other casualty and provided further that Purchaser shall be entitled to a credit
against the Cash Balance in an amount equal to any portion of the insurance
claim not payable by reason of the existence of a deductible in Seller's policy
of casualty insurance.
(c) If, between the date hereof and the Closing, there shall occur a fire
or other casualty affecting the Premises which is a Major Casualty, then
Purchaser shall have the option, to be exercised upon notice to Seller within
fifteen (15) days after receiving notice of such casualty, to terminate this
Agreement. If Purchaser shall so elect to terminate this Agreement, the Deposit
shall be refunded to Purchaser, whereupon neither party hereto shall have any
further obligation to the other hereunder, except for those obligations which
expressly survive the termination of this Agreement. If Purchaser shall not
elect to terminate this Agreement as provided in this subclause (c), then this
Agreement shall remain in full force and effect and the provisions of Section
11.1(b) above shall apply to such damage and any insurance proceeds payable in
connection therewith.
(d) In no event shall Seller have any obligation to repair any damage or
destruction to the Premises, but Seller shall have the right to do so and
utilize insurance proceeds for such purpose.
(e) Seller and Purchaser expressly intend that the provisions of this
Section 11.1 shall govern in the event of a fire or other casualty.
11.2. Condemnation.
(a) If, between the date hereof and the Closing, any condemnation or
eminent domain proceedings are initiated which would result in a material
taking, then either Seller or Purchaser may elect to terminate this Agreement by
giving written notice of its election to the other party within fifteen (15)
days after receiving notice of such prospective taking. If Seller or Purchaser
shall so elect to terminate this Agreement, the Deposit shall be refunded to
Purchaser, whereupon neither party hereto shall have any further obligation to
the other hereunder, except for those obligations which expressly survive the
termination of this Agreement. If neither party so elects to terminate this
Agreement, then the parties hereto shall proceed to the Closing without
reduction of or offset against the Purchase Price and Purchaser shall have no
other claim against Seller. In such event, all of Seller's right, title and
interest in and to any condemnation proceeds paid or payable in connection
therewith shall be assigned to Purchaser.
(b) If, between the date hereof and the Closing, any condemnation or
eminent domain proceedings are initiated which would not result in a material
taking, then neither Seller nor Purchaser may terminate this Agreement and the
parties shall proceed to the Closing without reduction of or offset against the
Purchase Price and Purchaser shall have no other claim against Seller. In such
event, all of Seller's right, title and interest in and to any condemnation
proceeds paid or payable in connection therewith shall be assigned to Purchaser.
(c) For purposes of this Section 11.2, a taking shall be deemed to be a
material taking if it would result in the taking of in excess of (i) percent
(10%) of the rentable square footage of the Building or (ii) five percent (5%)
of the parking spaces located on the Land. In no event shall Seller have any
obligation to repair or restore the Premises or any portion thereof by reason of
any condemnation, whether material or otherwise.
ARTICLE 12. DEFAULT AND REMEDIES
--------------------------------
12.1. Default By Purchaser. If Purchaser (i) defaults in its Closing
obligations (i.e., defaults in the payment of the Purchase Price or otherwise in
the performance of any of its obligations hereunder which are to be performed
on, or as of, the Closing Date) or (ii) otherwise materially defaults hereunder
and such other material default is not cured within ten (10) days after notice
thereof from Seller to Purchaser, then, and in any of such events, Seller, as
its sole remedy therefor, may terminate this Agreement by written notice to
Purchaser, whereupon the Deposit shall be paid to Seller as liquidated damages
on account of such default, and, thereafter, neither party shall have any
further rights or obligations hereunder other than those which expressly survive
the termination of this Agreement. Seller and Purchaser agree that the aforesaid
liquidated damages are a fair and reasonable amount to be retained by Seller as
agreed and liquidated damages in light of Seller's removal of the Premises from
the market and the costs incurred by Seller and shall not constitute a penalty
or a forfeiture. Except as expressly provided to the contrary in this Section
12.1, Seller waives any other right or remedy which Seller may have, at law or
in equity, by reason of a default by Purchaser hereunder.
12.2. Default By Seller. If Seller (i) defaults in its Closing obligations
(i.e., defaults in the performance of any of its obligations hereunder which are
to be performed on, or as of, the Closing Date) or (ii) otherwise materially
defaults hereunder and such material default is not cured within ten (10) days
after notice thereof from Purchaser to Seller, then, and in either such event,
Purchaser may, as its sole remedy therefor, either (x) pursue an action for
specific performance of this Agreement by Seller hereunder, without abatement,
credit against or reduction of the Purchase Price or (y) terminate this
Agreement by written notice to Seller, whereupon the Deposit shall be refunded
to Purchaser; it being understood and agreed that in no event shall Purchaser be
entitled to money damages. If Purchaser shall elect to so terminate this
Agreement, then, except as set forth in Section 12.3 below, neither party shall
have any further rights or obligations hereunder other than those which
expressly survive the termination of this Agreement. Except as expressly
provided in this Section 12.2, Purchaser waives any other right or remedy, at
law or in equity, which Purchaser may have or be entitled to as a result of any
default by Seller.
12.3. Reimbursement of Purchaser. Notwithstanding the provisions of Section
12.2 hereof, if Purchaser terminates this Agreement pursuant to Section 12.2
hereof because Seller knowingly and intentionally defaulted, beyond any
applicable notice and cure period, in the performance of any material covenant
of Seller hereunder, Purchaser shall have a claim for damages on account thereof
in the amount of actual, out-of-pocket title examination and survey costs,
third-party professional costs (including reasonable attorneys' fees and
disbursements) and
forfeited loan application or commitment fees incurred in connection with this
Agreement, not to exceed $100,000 in the aggregate.
ARTICLE 13. BROKER
------------------
13.1. Broker. Seller and Purchaser each represent and warrant to the other
that each has had no conversations or dealings with any broker or finder in
connection with the transactions contemplated hereby, other than Broker.
Purchaser and Seller (each, an "INDEMNIFYING PARTY") shall indemnify, defend and
hold the other harmless from and against any and all loss, cost or expense
(including, without limitation, reasonable attorneys' fees) arising by reason of
a claim for a commission or other compensation made by a broker or finder (other
than Broker) claiming to have dealt with the Indemnifying Party. Seller shall
pay any commission due to Broker pursuant to separate written agreements. The
provisions of this Article 13 shall survive Closing or any termination of this
Agreement.
ARTICLE 14. ASSIGNMENT
----------------------
14.1. No Assignment by Purchaser. Neither this Agreement nor any of the
rights of Purchaser hereunder (nor the benefits of such rights) may be assigned,
transferred or encumbered without Seller's prior written consent (which consent
may be withheld in Seller's sole and absolute discretion) and any purported
assignment, transfer or encumbrance without Seller's prior written consent shall
be void. Purchaser expressly covenants and agrees that (a) if Purchaser is a
corporation, a sale or transfer of more than fifty (50%) percent (at any one
time or in the aggregate from time to time) of the shares of any class of the
issued and outstanding stock of Purchaser, its successors or assigns, or the
issuance of additional shares of any class of its stock to the extent of more
than fifty (50%) percent (at any one time or, in the aggregate from time to
time) of the number of shares of said class of stock issued and outstanding on
the date hereof, (b) if Purchaser is a partnership, joint venture or limited
liability company, a sale or transfer of more than fifty (50%) percent (at any
one time or in the aggregate from time to time) of the partnership, joint
venture or membership interests of Purchaser, its successors or assigns, or the
issuance of additional partnership, joint venture or membership interests of any
class to the extent of more than fifty (50%) percent (at any one time or in the
aggregate from time to time) of the amount of partnership, joint venture or
membership interests issued on the date hereof shall, in any such case,
constitute an assignment of this Agreement. Unless, in each instance, the prior
written consent of Seller has been obtained, any such assignment shall
constitute a material default under this Agreement and shall entitle Seller to
exercise all rights and remedies under this Agreement, at law or equity, in the
case of such a default.
14.2. Permitted Assignment to Affiliate. Notwithstanding the provisions of
Section 14.1 above to the contrary, the named Purchaser in this Agreement shall
have the one-time right to assign its rights and obligations under this
Agreement to either (i) an Affiliate of such named Purchaser (including a
Massachusetts nominee trust constituting an Affiliate of Purchaser) or (ii)
Matthew Israel, Purchaser's executive director, in each case effective on or
prior to the Closing,
provided that, on or prior to the effective date of such assignment, (i) in the
case of an assignment to an Affiliate, Purchaser delivers to Seller evidence of
the ownership of Purchaser and the proposed assignee so as to permit Seller to
verify that such proposed assignee is an Affiliate of Purchaser and (ii)
Purchaser delivers to Seller a written assumption, in form reasonably
satisfactory to Seller and duly executed and acknowledged by the assignee, in
which the assignee agrees to assume all of Purchaser's covenants, agreements and
obligations under this Agreement. As of the date of the assignment of this
Agreement to an Affiliate or to Mr. Israel in accordance with the foregoing
provisions of this Section 14.2, the representations of Purchaser named herein
set forth in Section 9.1 hereof shall be remade as to the Affiliate or Mr.
Israel, as the case may be, except that the representations and warranties set
forth in Section 9.1(a) hereof shall be modified accordingly. Purchaser named
herein shall remain fully liable for all of Purchaser's covenants, agreements
and obligations under this Agreement notwithstanding any such permitted
assignment pursuant to this Section 14.2. Upon any assignment of this Agreement
in accordance with the provisions of this Article 14, Purchaser shall promptly
pay to Seller any consideration paid or payable to Purchaser by reason of the
assignment.
ARTICLE 15. COVENANTS
---------------------
15.1. Operation of Premises. Between the date hereof and the Closing Date,
Seller shall continue to maintain the Premises in the ordinary course and
substantially in accordance with the practices and procedures customarily
followed by Seller in the maintenance of the Premises prior to the date hereof;
provided, however, that Seller shall have no obligation to make any repairs or
expenditures that are capital in nature.
15.2. Capital Repairs.
(a) Between the date hereof and the Closing Date, Seller shall not make any
material capital repairs or replacements to the Premises without the prior
written consent of Purchaser, which consent shall not be unreasonably withheld
or delayed, provided, however, that Seller may undertake such repairs or
replacements without Purchaser's consent if (i) the performance of such repairs
or replacements is required to avoid an unsafe or hazardous condition, (ii) the
performance of such repairs or replacements is required pursuant to any
Requirements or (iii) Seller's failure to perform such repairs or replacements
would, in Seller's reasonable judgment, subject Seller to criminal or civil
liability or result in a forfeiture of the Property or the imposition of a lien
or encumbrance thereon. Whenever required pursuant to this Section 15.2,
Purchaser's consent shall be deemed granted if not denied by notice (stating the
grounds for denial with reasonable specificity) given to Seller within five (5)
Business Days of Purchaser's receipt from Seller of request for such consent.
Whenever Purchaser's consent to a capital repair or replacement is not required
pursuant to this Section 15.2, Seller shall furnish Purchaser with reasonable
prior notice of the repair or replacement, except in the case of an emergency,
in which case Seller shall furnish Purchaser with such notice as is practicable
under the circumstances.
(b) Seller and Purchaser acknowledge that Seller anticipates engaging a
contractor or contractors to perform repair work upon an approximately 1,080
square foot portion
of the facade (the "FACADE WORK"). Purchaser hereby consents to the performance
of the Facade Work and to Seller's entrance into such contract as Seller deems
appropriate for the performance of the Facade Work (collectively, the "FACADE
WORK CONTRACT"). If the Facade Work is not completed on or before the Closing
Date, then, at Closing, (i) Seller shall assign to Purchaser all of Seller's
right, title and interest in and to the Facade Work Contract and Purchaser shall
assume all of Seller's obligations thereunder in accordance with the provisions
of the Service Contract Assignment and (ii) Purchaser shall be entitled to a
credit against the Cash Balance in an amount equal to the remaining balance
under the Facade Work Contracts. If the Facade Work is completed before Closing,
Seller shall at Closing assign to Purchaser any warranties by the contractor
under the Facade Work Contract.
15.3. Insurance. Between the date hereof and the Closing Date, Seller shall
either (i) maintain in full force and effect the fire and other casualty
insurance coverages described in Exhibit J annexed hereto or (ii) replace such
insurance policies with other policies providing coverage equivalent thereto.
15.4. Leases. Between the date hereof and the Closing Date, Seller shall
not enter into any lease, license or occupancy agreement with respect to the
Premises.
15.5. Service Contracts. Between the date hereof and the Closing Date,
Seller shall not enter into any New Service Contracts or modify, renew or extend
the term of any of the Existing Service Contracts or New Service Contracts
without Purchaser's prior written consent in each instance, which consent shall
not be unreasonably withheld, conditioned or delayed. If required, Purchaser's
consent shall be deemed granted if not denied by notice (stating the grounds for
denial with reasonable specificity) given to Seller within five (5) Business
Days of Purchaser's receipt from Seller of request for such consent.
Notwithstanding anything contained in this Section 15.4 to the contrary, Seller
shall have the right, without Purchaser's consent, to terminate any one or more
of the Existing Service Contracts and the New Service Contracts at any time on
or prior to the Closing Date.
15.6. Notices. Seller shall promptly furnish Purchaser with copies of any
written notices Seller receives from governmental authorities which pertain to
the Premises.
ARTICLE 16. MISCELLANEOUS
-------------------------
16.1. Notices. (a) All notices, demands, requests and other communications
required hereunder shall be in writing and shall be deemed to have been given:
(i) upon delivery, if personally delivered; (ii) three (3) days after deposit in
the United States Mail when delivered, postage prepaid, by certified or
registered mail; or (iii) one (1) Business Day after deposit with a nationally
recognized overnight delivery service marked for delivery on the next Business
Day. Notice may also be given by telecopy, provided that telecopy notice shall
not be effective unless the sender (x) furnishes the recipient with the
telephonic notice of the telecopy delivery (which may occur by voice mail) and
(y) retains the telecopy machine confirmation of the telecopy delivery. Telecopy
notice shall be deemed to have been given on the later to occur of (A) the date
of receipt of telephonic notice of the telecopy delivery and (B) the confirmed
date of telecopy
transmission. Each notice shall be addressed to the party for whom it is
intended at its address hereinafter set forth:
If to Seller:
Wellsford Capital Properties, LLC
c/o Wellsford Real Properties, Inc.
535 Madison Avenue
26th Floor
New York, NY 10022
Attention: William H. Darrow
Telecopy No. (212) 421-7244
Telephone No. (212) 819-4903
with a mandatory copy to:
Robinson Silverman Pearce Aronsohn & Berman LLP
1290 Avenue of the Americas
New York, New York 10104
Attention: Dennis M. Sughrue, Esq.
Telecopy No. (212) 541-4630
Telephone No. (212) 541-2009
If to Purchaser:
The Judge Rotenberg Educational Center, Inc.
240 Turnpike Street
Canton, Massachusetts 02021
Attention: Matthew Israel
Telecopy No. (781) 828-2804
Telephone No. (781) 828-2202
with a mandatory copy to:
Eckert Seamans Cherin & Melott LLC
One International Place, 18th Floor
Boston, Massachusetts 02110
Attention: Arthur Gold, Esq.
Telecopy No.: (617) 342-6899
Telephone No.: (617) 342-6834
and a mandatory copy to:
Jeffer, Mangels, Butler & Marmaro LLP
2121 Avenue of the Stars, 10th Floor
Los Angeles, California 90067-5010
Attention: Timothy Lappen, Esq.
Telecopy No. (310) 201-3539
Telephone No. (310) 201-3536
If to Escrowee:
Old Republic National Title Insurance Company
Three Center Plaza
Suite 440
Boston, Massachusetts 02018
Attention: Sophie Stein
Telecopy No. (617) 742-5000
Telephone No. (617) 742-4000
(b) Any party may designate a change of address by written notice to the
others given in accordance with the provisions of this Section 16.1.
(c) The attorney for any party may send notices on that party's behalf.
16.2. Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the Commonwealth of Massachusetts.
16.3. Successors. All of the provisions of this Agreement and of any of the
documents and instruments executed in connection herewith shall apply to and be
binding upon, and inure to the benefit of Seller and Purchaser, their successors
and their permitted assigns.
16.4. No Third Party Beneficiary. This Agreement and each of the provisions
hereof are solely for the benefit of Purchaser and Seller and their permitted
assigns. No provisions of this Agreement or of any of the documents and
instruments executed in connection herewith shall be construed as creating in
any person or entity other than Purchaser and Seller and their permitted assigns
any rights of any nature whatsoever.
16.5. No Personal Liability. Purchaser shall look only to Seller's estate
and interest in the Property for the collection of a judgement (or other
judicial process) requiring the payment of money by Seller in the event that
Purchaser is expressly entitled to a damage claim against Seller pursuant to the
terms of this Agreement, and no other property or assets of Seller or its
partners, members, officers, managers, shareholders or principals, disclosed or
undisclosed, shall be subject to levy, execution, attachment or other
enforcement procedure for the satisfaction of any such damage claim against
Seller under or with respect to this Agreement. The foregoing provisions of this
Section are not intended to, and shall not, limit any express right that
Purchaser might
otherwise have to obtain equitable relief (including the remedy of specific
performance where applicable and appropriate) against Seller. The terms and
provisions of this subsection shall survive the Closing or the earlier
termination of this Agreement.
16.6. Entire Agreement. This Agreement, together with the documents and
instruments executed and delivered in connection herewith, set forth the entire
agreement between Purchaser and Seller relating to the transactions contemplated
hereby and all other prior or contemporaneous agreements, understandings,
representations or statements, oral or written, relating directly to the
Property are superseded hereby.
16.7. Severability. If any provision in this Agreement is found by a court
of competent jurisdiction to be in violation of any applicable law, and if such
court should declare such provision of this Agreement to be unlawful, void,
illegal or unenforceable in any respect, the remainder of this Agreement shall
be construed as if such unlawful, void, illegal or unenforceable provision were
not contained therein, and the rights, obligations and interests of the parties
hereto under the remainder of this Agreement shall continue in full force and
effect undisturbed and unmodified in any way.
16.8. Modification. This Agreement and the terms hereof may not be changed,
waived, modified, supplemented, canceled, discharged or terminated orally, but
only by an instrument or instruments in writing executed and delivered by Seller
and Purchaser.
16.9. Waiver of Trial by Jury. EACH PARTY HEREBY WAIVES, IRREVOCABLY AND
UNCONDITIONALLY, TRIAL BY JURY IN ANY ACTION BROUGHT ON, UNDER OR BY VIRTUE OF
OR RELATING IN ANY WAY TO THIS AGREEMENT OR ANY OF THE DOCUMENTS OR CERTIFICATES
EXECUTED IN CONNECTION HEREWITH, THE PROPERTY, OR ANY CLAIMS, DEFENSES, RIGHTS
OF SET-OFF OR OTHER ACTIONS PERTAINING HERETO OR TO ANY OF THE FOREGOING.
16.10. Venue. Purchaser and Seller each hereby irrevocably waives any
objection that it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of this Agreement or the transactions
contemplated hereby brought in any federal or state court sitting in the
Commonwealth of Massachusetts and hereby further irrevocably waives and claim
that any such suit, action or proceeding brought in any such court has been
brought in an inconvenient forum. Seller and Purchaser further hereby expressly
submits to the jurisdiction of all federal and state courts sitting in the
Commonwealth of Massachusetts.
16.11. No Recording. Neither this Agreement nor any memorandum hereof shall
be recorded. Each party hereby agrees to indemnify and hold harmless the others
for all liabilities, losses, damages, liens, suits, claims, costs and expenses
(including reasonable attorneys' fees) incurred by the others by reason of a
breach of the foregoing covenant.
16.12. Captions. The captions and table of contents in this Agreement are
inserted for convenience of reference only and in no way define, describe or
limit the scope or intent of this Agreement or any of the provisions hereof.
16.13. Counterparts; Effectiveness of Agreement. This Agreement may be
executed in any number of counterparts, each of which shall constitute an
original but all of which together will constitute one instrument. This
Agreement shall not be effective unless and until the same has been executed and
delivered by all parties hereto whether in one or more counterparts.
16.14. Merger. The delivery of the Deed to Purchaser and the closing of
title to the Property shall be deemed to constitute full performance and
discharge by Seller of every agreement and obligation on the part of Seller to
be performed hereunder, and no agreement, promise, representation or warranty,
express or implied, on the part of Seller shall survive Closing unless expressly
set forth to the contrary herein.
16.15. Fair Interests. The parties acknowledge that each party and its
counsel have reviewed this Agreement and the rule of construction to the effect
that any ambiguities are to be resolved against the drafting party shall not be
employed in the interpretation of this Agreement.
16.16. Legal Fees. If either party brings any action or suit against the
other by reason of any default under this Agreement, the prevailing party, as
finally determined in such action or suit, shall be entitled to recover from the
other party all costs and expenses of such action or suit (including appellate
proceedings), including, without limitation, reasonable attorneys' fees and
disbursements, it being agreed that the determination of which party is the
prevailing party shall be included in the matters which are the subject of such
action or suit.
16.17. Time is of the Essence. Time shall be of the essence with respect to
the obligations of Seller and Purchaser hereunder.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
Seller:
------
WELLSFORD CAPITAL PROPERTIES, L.L.C.
By: Wellsford Capital, its sole member
By: /s/ William H. Darrow
------------------------
William H. Darrow
Vice President
Purchaser:
---------
THE JUDGE ROTENBERG EDUCATIONAL CENTER, INC.
By: /s/ Matthew L. Israel
-------------------------
Name: Matthew L. Israel
Title: President and Treasurer
Agreed as to Section 3.2 only:
Escrowee:
- --------
OLD REPUBLIC NATIONAL TITLE INSURANCE COMPANY
By: /s/ Sophie Stein
--------------------
Name: Sophie Stein
Partner Title Counsel
Exhibit A
(the Land)
Exhibit A-1
(Survey)
Exhibit B
Intentionally Omitted
EXHIBIT C
(Existing Service Contracts)
1. Termite Control Contract, dated as of October 18, 2000, by and between
Waltham Chemical and Wellsford Capital Properties.
2. Interior Plant Maintenance Contract, dated as of April 6, 2000, by and
between Rentokil- Tropical Plant Services and Wellsford Capital Properties.
3. Fire Alarm Monitoring and Testing Contract, dated as of May 2, 2001, by and
between American Alarm and Communications and Wellsford Capital Properties.
4. Property Management Agreement, dated as of April 1, 1998, by and between
Wellsford Capital and Trammell Crow Operations (the "Property Management
Agreement")
5. Exterior Landscaping Contract, dated as of April 12, 2001, by and between
Vanaria & Sons Landscaping and Wellsford Capital Properties.
6. Agreement dated as of September 12, 2001 between Seller and Sea & Shore
Construction Company, Inc.
7. Parking License Agreement dated October 19, 2001 between Seller and
Purchaser.
Exhibit D
Intentionally Omitted
Exhibit E
(Form of Bill of Sale)
BILL OF SALE
------------
KNOW ALL MEN BY THESE PRESENTS,
That WELLSFORD CAPITAL PROPERTIES, L.L.C., having an office at 535 Madison
Avenue, 26th Floor, New York, New York 10022 ("GRANTOR"), for and in
consideration of the sum of Ten Dollars ($10.00), lawful money of the United
States, to it in hand paid, at or before delivery of these presents by THE JUDGE
ROTENBERG EDUCATIONAL CENTER, INC., a Massachusetts non-profit corporation
having an office at 240 Turnpike Street, Canton, Massachusetts 02021
("GRANTEE"), the receipt of which is hereby acknowledged, by these presents does
hereby convey unto Grantee, its successors and assigns, all right, title and
interest of Grantor in and to all personal property affixed to, located upon or
used in connection with the real property described in Schedule 1 annexed hereto
and made a part hereof. The foregoing conveyance is made without recourse,
representation or warranty of any kind, except as may be set forth in that
certain Sale-Purchase Agreement dated as of November ___, 2001 between Grantor
and Grantee, and subject to the limitations set forth therein.
TO HAVE AND TO HOLD the same unto Grantee, its successors and assigns
forever.
This Bill of Sale shall be governed by and construed in accordance with the
laws of the Commonwealth of Massachusetts.
IN WITNESS WHEREOF, Grantor has caused this instrument to be duly executed
as of this ___ day of ______, 2001
WELLSFORD CAPITAL PROPERTIES, L.L.C.
By: Wellsford Capital, a Maryland real estate investment trust, its
Manager
By: _______________________________
William H. Darrow
Vice President
Schedule 1
Exhibit F
Intentionally Omitted
Exhibit G
(Form of Assignment and Assumption
of Service Contracts, Licenses and Warranties
ASSIGNMENT AND ASSUMPTION OF
----------------------------
SERVICE CONTRACTS, LICENSES AND WARRANTIES
------------------------------------------
THIS ASSIGNMENT AND ASSUMPTION OF SERVICE CONTRACTS, LICENSES AND
WARRANTIES (this "ASSIGNMENT"), made as of the ___ day of _______, ____, by and
between WELLSFORD CAPITAL PROPERTIES, L.L.C., having an office at 535 Madison
Avenue, 26th Floor, New York, New York 10022 ("ASSIGNOR"), and THE JUDGE
ROTENBERG EDUCATIONAL CENTER, INC. a Massachusetts non-profit corporation having
an office at 240 Turnpike Street, Canton, Massachusetts 02021 ("ASSIGNEE"), for
and in consideration of the sum of Ten Dollars ($10.00) lawful money of the
United States to it in hand paid, at or before delivery of these presents by
Assignee with reference to the following:
R E C I T A L S
---------------
Pursuant to a Sale-Purchase Agreement dated as of November ___, 2001
between Assignor and Assignee (the "PURCHASE AGREEMENT"), Assignor is conveying
to Assignee the Property (as defined in the Purchase Agreement). Capitalized
terms used herein and not otherwise defined shall have the meanings ascribed
thereto in the Purchase Agreement.
NOW THEREFORE, in consideration of the sum of Ten Dollars ($10.00), the
foregoing promises, covenants and undertakings contained in this Assignment, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
ASSIGNMENT AND ASSUMPTION
-------------------------
1. (a) Assignor hereby assigns to Assignee, without recourse representation
or warranty of any kind, all of its right, title and interest in and to the
Service Contracts identified on Schedule 1 annexed hereto (collectively, the
"ASSIGNED SERVICE CONTRACTS") and the assignable Licenses and Warranties.
(b) Assignee hereby accepts the foregoing assignment and agrees to assume,
keep, perform and fulfill all of the terms, conditions and obligations which are
required to be kept, performed and fulfilled by Assignor in connection with or
arising out of the Assigned
Service Contracts and the assignable Licenses and Warranties from and after the
date hereof.
2. This Assignment shall be binding upon, enforceable by and shall inure to
the benefit of the parties hereto and their respective successors and assigns.
3. This Assignment may be signed in multiple counterparts which, when taken
together and signed by all parties and delivered to any other party hereto,
shall constitute a binding Assignment between the parties.
4. This Assignment shall be governed by and construed in accordance with
the laws of the Commonwealth of Massachusetts.
IN WITNESS WHEREOF, Assignor and Assignee have duly executed this
instrument as of the date first set forth above.
ASSIGNOR:
WELLSFORD CAPITAL PROPERTIES, L.L.C.
By: Wellsford Capital, a Maryland real estate investment trust, its
Manager
By:
-------------------------
William H. Darrow
Vice President
ASSIGNEE:
THE JUDGE ROTENBERG EDUCATIONAL CENTER, INC.
By:
-------------------------
Name:
Title:
Exhibit H
Intentionally Omitted
Exhibit I
Intentionally Omitted
Exhibit J
(Insurance Coverages)
Exhibit K
(Permitted Exceptions)
1. Zoning and building regulations, ordinances, and requirements adopted by
any governmental or municipal authority having jurisdiction thereof, and
amendments and additions thereto now in force and effect, which relate to
the Premises.
2. Subject to adjustment as herein provided, assessments due and payable after
Closing and real estate taxes.
3. Sewer Easement taken by the Board of Selectman of the Town of Canton dated
August 21, 1973 and recorded in Book 4975, Page 27 and filed as Document
337255.
4. Rights of Way as set forth in Documents Nos. 101763, 232129 and 233197.
5. Twenty Foot-Wide Way along southwesterly portion of Lot 8 as shown on Land
Court Plan No. 1888F.
6. Decision by Town of Canton, Board of Appeals Zoning Board, dated October
13, 1996, filed with Land Court as Document No. 752070.
7. Conditions disclosed by a survey of the Premises, prepared by Selwyn &
Kirwin Associates, last redated October 16, 1998.
EXHIBIT L
Indemnity Agreement