EXHIBIT 10.88
AGREEMENT FOR PURCHASE AND SALE OF PROPERTY FOR
STATE STREET BUILDING
PURCHASE AND SALE AGREEMENT
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THIS PURCHASE AND SALE AGREEMENT (this "Agreement") is made and entered
into as of the 29/th/ day of June, 2001, by and between Crownview LLC, a
Delaware limited liability company having an office at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Seller"), and ▇▇▇▇▇ Capital, Inc., a Georgia
corporation having an office at ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Purchaser").
W I T N E S S E T H
In consideration of the covenants and agreements hereinafter contained, the
parties hereto agree as follows:
1. The Sale.
Upon and subject to the terms and conditions of this Agreement, Seller
agrees to sell and convey to Purchaser, and Purchaser agrees to purchase from
Seller (i) all that certain parcel of land located in Quincy, Norfolk County,
Massachusetts, commonly known as ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, as more particularly
described on Exhibit A attached hereto and made a part hereof (the "Land"), (ii)
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together with all buildings, improvements, structures, equipment and fixtures
thereon, including without limitation the existing building having an aggregate
of approximately 234,668 rentable square feet (the "Building"); (iii) Seller's
right, title and interest in and to the lease by and between Seller, as
landlord, and SSB Realty LLC, a Delaware limited liability company (the
"Tenant"), as tenant, dated November 30, 2000, as amended by First Amendment of
Lease by and between Seller and the Tenant dated December 15, 2000 (the
"Lease"); (iv) all furniture, furnishings, fixtures, equipment and other
tangible personal property owned by Seller, located on the Land or in the
Building and used in connection therewith (the "Tangible Personal Property");
(v) all right, title and interest of Seller under any and all of the
maintenance, service, advertising and other like contracts and agreements with
respect to the ownership and operation of the Premises (the "Service
Contracts"), all to the extent applicable to the period from and after the
Closing (as defined in Section 4 below), except as expressly set forth to the
contrary in this Agreement; and (vi) all the rights and appurtenances pertaining
thereto, and any right, title and interest of Seller in and to adjacent streets,
alleys, and rights-of-way (the Land, the Building, the Lease, the Tangible
Personal Property, the Service Contracts and such other rights and interests
being collectively referred to as the "Premises").
2. Purchase Price; Deposit.
The price for the Premises is Forty Nine Million Eight Hundred Eighty
Seven Thousand Nine Hundred Eighty Eight and 00/100 Dollars ($49,887,988.00),
increased by the amount, if any of the "Allowance" payable to the Tenant under
the Lease which is paid to the tenant between the date of this Agreement and the
Closing Date, as hereinafter defined (the "Purchase Price"). Five Hundred
Thousand Dollars and 00/100 Dollars ($500,000.00) (the "Deposit") shall be paid
by Purchaser to Ticor Title Insurance Company as escrow holder (the "Escrow
Agent") upon execution of this Agreement. The balance of the Purchase Price
shall be
paid to Seller at closing of title (the "Closing") at the option of Seller by
federal funds wire transferred to a bank account of Seller. The Deposit shall be
held by Escrow Agent in an interest bearing account under the terms of an Escrow
Agreement in the form and substance of Exhibit B annexed hereto. The Deposit,
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together with the accrued interest, shall be credited to Purchaser's payment of
the Purchase Price at the Closing.
3. Condition of Title.
As soon as practicable after execution of this Agreement, Purchaser
will obtain, at Purchaser's sole cost and expense, an ALTA Preliminary
Commitment for Title Insurance (hereafter called the "Title Commitment") issued
by a Ticor Title Insurance Company ("Title Company"), showing fee simple title
to the Premises in Seller. Such Title Commitment shall specify all easements,
liens, encumbrances, restrictions, conditions or covenants with respect to the
Premises, and include copies of all documents referred to as exceptions to
title. Promptly after receipt, Purchaser shall furnish Seller a copy of such
Title Commitment and all such documents. If any exceptions appear in the Title
Commitment to which Purchaser objects, Purchaser shall, within twenty (20) days
after the receipt of the Title Commitment, notify Seller in writing of its
objections to title. Seller will then promptly undertake to eliminate or cure
(i) any mortgages or related security documents or similar encumbrances given to
secure indebtedness for money borrowed, including without limitation the release
and discharge of the documents evidencing and securing a loan made to Seller by
KeyBank National Association, (ii) any mechanic's lien, or (iii) involuntary
encumbrances which may be discharged by the payment of money, or bonding in lieu
thereof (collectively, "Voluntary Encumbrances"), and may undertake to eliminate
or cure title objections other than Voluntary Encumbrances ("Non-Voluntary
Encumbrances") to the reasonable satisfaction of Purchaser. If Seller fails to
cure or eliminate Non-Voluntary Encumbrances within thirty (30) days after
receipt of such notice, Purchaser may terminate this Agreement by written notice
to Seller given within ten (10) days after the end of such thirty (30) day
period, whereupon Escrow Agent shall immediately repay the Deposit plus any
accrued interest to Purchaser, and the parties shall thereafter have no further
rights or obligations pursuant to this Agreement except such obligations which
expressly survive such termination. In lieu of such termination, if Seller does
not elect to cure or eliminate any such Non-Voluntary Encumbrance, Purchaser may
elect to cure them at Purchaser's cost and expense, without any adjustment to
the Purchase Price. Upon the elimination or cure of such title objections, the
Title Company shall issue to Purchaser a specimen of the ALTA Standard Form
Owner's Title Insurance Policy to be issued to Purchaser at Closing (the
"Specimen Policy"). Any easements, restrictions, covenants and encroachments to
which Purchaser has not objected, together with (a) such state of facts as are
shown on an accurate survey of the Premises, (b) zoning and other laws and
regulations affecting the Premises, and (c) liens for such taxes and special
assessments as will not be, as of the Closing Date, due and payable, are
hereafter referred to as "Permitted Exceptions."
4. Conditions Precedent to Closing.
4.1 Conditions Precedent to Purchaser's Obligation to Close. Purchaser's
obligation to consummate the Closing is subject to the satisfaction of the
following conditions:
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(a) All of Seller's representations and warranties as contained
herein shall be true and correct in all material respects as of
Closing;
(b) Each item or instrument to be delivered to Purchaser by Seller
described in Section 4.5 below shall be delivered at Closing;
(c) No suit, action or other proceeding shall be pending which seeks
to restrain, enjoin or otherwise prohibit the consummation of the
transaction contemplated by this Agreement, or which involves the
Premises in any way; and
(d) Purchaser shall have received, on or before July 25, 2001, an
appraisal prepared by ▇▇▇▇▇ ▇▇▇▇▇▇, MAI, of Insignia/ESG, an
appraisal of the Premises at a value at least equal to
$52,000,000 (assuming the full investment of the "Allowance"
payable to the Tenant under the Lease). If such appraisal is not
received by such date, either Seller of Purchaser may terminate
this Agreement, whereupon neither party shall have any further
rights or obligations hereunder except those obligations that
expressly survive such termination, and the Escrow Agent shall
return the Deposit plus all accrued interest thereon to
Purchaser.
4.2 Conditions Precedent to Seller's Obligation to Close. Seller's
obligation to consummate the Closing is subject to the satisfaction of the
following conditions:
(a) All of Purchaser's representations and warranties as contained
herein shall be true and correct in all material respects as of
Closing;
(b) Each item or instrument to be delivered to Seller by Purchaser
described in Section 4.6 below is delivered at Closing; and
(c) No suit, action or other proceeding shall be pending which seeks
to restrain, enjoin or otherwise prohibit the consummation of the
transaction contemplated by this Agreement.
4.3 The Closing and Deliveries Thereat. The Closing shall be held at the
offices of the Title Company, ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇, or at
such other place as the parties may direct, on or before 10:00 a.m., on a date
to be mutually agreed upon, provided that, if the parties do not agree on a
date, the Closing shall take place on July 31, 2001 (the "Closing Date"). All
documents to be delivered at the Closing and all payments to be made as
specified in Sections 4.5 and 4.6 shall be delivered to the Escrow Agent on the
Closing Date, in escrow, pending delivery of possession of the Premises in
conformance with this Agreement, and the prompt recording of the deed and such
other instruments as are required to be recorded to effect the transfer and
conveyance of the Premises in conformity with this Agreement, upon which
delivery and recording, and confirmation from the Title Company that it is
prepared to issue a title policy consistent with the Specimen Policy, all
instruments and funds shall then be delivered out of escrow. Purchaser and/or
Purchaser's agents shall be entitled to inspect the Premises prior
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to the delivery of the deed in order to determine whether the condition thereof
complies with the terms of this Agreement.
4.4 At Closing Seller shall deliver full possession of the Premises free
of all tenants and occupants other than the Tenant under the Lease and persons
claiming by, through or under the Tenant.
4.5 The following deliveries shall be made by Seller at Closing
(collectively, "Seller's Deliveries"):
(a) Seller shall execute, acknowledge, and deliver to Purchaser (or to a
nominee designated by Purchaser no less than seven (7) days prior to
the Closing Date) a Massachusetts statutory form of Quitclaim Deed,
substantially in the form attached hereto as Exhibit C, conveying to
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Purchaser title in fee simple to the Premises, subject only to the
Permitted Exceptions.
(b) Seller shall deliver to Purchaser two executed and acknowledged
counterparts of an Assignment and Assumption of Lease substantially in
the form annexed hereto as Exhibit D (the "Lease Assignment")
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assigning to Purchaser Seller's interest as landlord under the Lease,
together with the original signed Lease and all amendments thereto and
guarantees thereof.
(c) Seller shall deliver to Purchaser two executed counterparts of a
General Instrument of Transfer substantially in the form annexed
hereto as Exhibit E (the "General Instrument of Transfer ") assigning
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the matters described therein, including without limitation (i) so
much of the Premises as constitutes personal property (if any)
sufficient to convey marketable title to such personal property to
Purchaser free of all liens and encumbrances, except for the Permitted
Exceptions, and (ii) any and all warranties, guarantees, contracts and
agreements made by any contractor, subcontractor, vendor or supplier,
or the sureties of such persons, in connection with the construction
or maintenance of the improvements on the Premises. Purchaser may, in
its own name, enforce such warranties, guarantees, contracts and
agreements, and collect any liquidated or other damages payable
pursuant thereto, but at Purchaser's sole cost and expense. Seller
agrees to reasonably cooperate with Purchaser in any claim or demand
against any such contractor, subcontractor, vendor or supplier or
their respective sureties, for damages or breach of any contracts, but
at no cost or expense to Seller.
(d) Seller shall deliver to Purchaser originals (or copies thereof if
originals are not available) of all documents and materials assigned
pursuant to the General Instrument of Transfer, including without
limitation any surveys of the Premises, plans, specifications, keys,
lock and safe combinations, training and instruction manuals relating
to the maintenance and operation of the Premises, certificates of
occupancy, and licenses relating to the use, occupancy, and operation
of the Premises, which it may have.
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(e) Seller shall deliver to Purchaser an affidavit sworn to by Seller,
substantially in the form annexed hereto as Exhibit F, stating under
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penalties of perjury that Seller is not a foreign person as defined in
Internal Revenue Code Section 1445 and stating Seller's United States
taxpayer identification number.
(f) Seller shall deliver to Purchaser a certificate certifying all of
Seller's representations and warranties as contained herein are true
and correct in all material respects as of the Closing in the form and
substance annexed hereto as Exhibit G.
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(g) Seller shall deliver to Purchaser such evidence (which may take the
form of a Manager's Certificate) as may be reasonably required by
Purchaser evidencing the status and capacity of Seller and the
authority of persons executing the various documents on behalf of
Seller in connection with this Agreement.
(h) Seller shall deliver such standard form affidavits and indemnities as
the Title Company may reasonably require in order to omit from the
Title Policy exceptions for (i) parties in possession and (ii)
mechanic's liens.
(i) Seller shall deliver to Purchaser an Estoppel Certificate (the "Tenant
Estoppel") from the Tenant, dated no earlier than thirty (30) days
prior to the Closing Date, in substantially the form attached hereto
as Exhibit H containing no information which, in Purchaser's
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reasonable judgment, represents a material and adverse deviation from
the status of the Lease previously disclosed to Purchaser in the
during the Inspection Period. Said Exhibit H contains a form of
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confirmation of guaranty to be signed by State Street Corporation.
Seller shall submit Exhibit H to the Tenant in such form, but the
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Tenant Estoppel shall nevertheless comply with the requirement of such
subparagraph (i) notwithstanding the failure or refusal of State
Street Corporation to execute such confirmation.
(j) Seller shall deliver all other books and records of Seller, including
tenant lease files, pertaining in a material way to the operation and
management of the Premises, to Nordblom Management Company, Inc, as
managing agent for the Purchaser.
(k) Seller shall deliver to Purchaser evidence that all existing
agreements between Seller and Nordic Properties, Inc. and Nordblom
Property Management Company, Inc. have been terminated.
4.6 The following deliveries shall be made by Purchaser at Closing:
(a) Purchaser shall pay to Seller the Purchase Price provided for in
Section 3 above, net of the Deposit, as adjusted for apportionments
provided for in Section 5 below, and Purchaser shall instruct the
Escrow Agent shall pay over at Closing the Deposit to Seller.
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(b) Purchaser shall deliver to Seller two executed and acknowledged
counterparts of the Lease Assignment.
(c) Purchaser shall deliver to Seller two executed counterparts of the
General Instrument of Transfer.
(d) Purchaser shall deliver to Seller a certificate signed by a corporate
officer certifying all of Purchaser's representations and warranties
as contained herein are true and correct in all material respects as
of the Closing substantially in the form annexed hereto as Exhibit I.
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(e) Purchaser shall enter into a Property Management Agreement with
Nordblom Property Management Company, Inc. in the form annexed hereto
as Exhibit J.
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5. Apportionments.
The following are to be apportioned as of the Closing Date in
accordance with local custom, with said date being a day of income and expense
to Purchaser:
5.1 Taxes and sewer rents, if any, on the basis of the fiscal year for
which assessed. If the Closing Date shall occur before the real property tax
rate for such fiscal year is fixed, the apportionment of taxes shall be made on
the basis of the taxes assessed for the preceding fiscal year. After the real
property taxes are finally fixed for the fiscal year in which the Closing Date
occurs, Seller and Purchaser shall make a recalculation of the apportionment of
such taxes, and Seller or Purchaser, as the case may be, shall make an
appropriate payment to the other based on such recalculation. To the extent
Seller has undertaken to obtain any real estate tax abatement, the amount of the
net proceeds of such tax abatement shall be prorated through the Closing Date,
if, as and when such proceeds are paid by the applicable governmental taxing
authority. All expenses, taxes, fees, and charges of every type relating to the
Premises and accruing for any period prior to the Closing shall be paid promptly
by Seller except to the extent that Purchaser received credit therefor at the
Closing.
5.2 Intentionally Omitted
5.3 Final readings on all utilities, including gas, water and electric
meters shall be made as of the Closing, if possible. If final readings are not
possible, gas, water and electricity charges will be prorated based on the most
recent period for which costs are available. Any deposits made by Seller with
utility companies shall be returned to Seller. Purchaser shall be responsible
for making all arrangements for the continuation of utility services.
5.4 Prepaid rent, collected base rent and additional rent in the nature of
operating expense recoveries and tax reimbursements, if any, under the Lease
shall be prorated as of the Closing Date. Rents collected from the Tenant after
the Closing Date shall be deemed to apply first to current rental due at the
time of payment and second to the rentals, if any, which were delinquent on the
Closing Date. Unpaid and delinquent rents, to which Seller is entitled, shall be
turned over to Seller if collected by Purchaser within twelve (12) months of the
Closing, less any
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reasonable collection costs actually incurred by Purchaser. Purchaser agrees to
use good faith efforts to attempt to collect such rents. In the event that any
additional rent or the calculation thereof is subject to adjustment pursuant to
the terms and provisions of the Lease (e.g., year-end adjustments to escalation
charges and the like), Purchaser shall make adjustment with the Tenant, either
by refund to or collection from the Tenant, as the case may be, and shall re-
prorate with Seller based upon such adjustment.
5.5 Seller shall have the right to discharge, from out of the Closing
proceeds, any lien capable of being discharged by the payment of an
ascertainable sum, including without limitation the Voluntary Encumbrances, in
which event Purchaser shall receive a credit at the Closing in an amount equal
to the total sum of money required to discharge said lien or liens, as evidenced
either by a written payoff statement or by other evidence satisfactory to the
Title Company.
5.6 The provisions of this Section 5 shall survive the Closing.
6. Brokerage Commissions.
6.1 Purchaser represents and warrants that Purchaser has not dealt with
any broker in connection with the purchase of the Premises except New England
Realty Resources, Inc. and The First Fidelity Companies (the "Brokers").
Purchaser will indemnify and hold harmless Seller from and against any and all
claims, loss, liability, cost, and expense (including reasonable attorney's
fees) resulting from any claim that may be made against Seller by any broker or
other person claiming a commission, fee, or other compensation by reason of this
transaction other than the Brokers if the same shall arise by or on account of
any act of Purchaser or Purchaser's representatives. Seller represents and
warrants that Seller has not dealt with any broker in connection with the sale
of the Premises to Purchaser except the Brokers, whose compensation in the
amount of $442,000 Seller shall pay under a separate arrangement with the
Brokers. Seller will indemnify and hold harmless Purchaser from and against any
and all claims, loss, liability, cost, and expense (including reasonable
attorney's fees) resulting from any claim that may be made against Purchaser by
any broker claiming a commission, fee, or other compensation by reason of this
transaction, if the same shall arise by or on account of any act of Seller or
Seller's representatives.
6.2 The representations made by Seller and Purchaser in Section 6.1 shall
survive the Closing.
7. Warranties and Representations.
7.1 Seller represents and warrants that:
(a) Seller has no actual knowledge of, and has not received any notice of,
any threatened or pending condemnation or inverse condemnation
proceedings affecting the Premises, or of proceedings to change the
zoning of the Premises;
(b) The reports listed on Exhibit K, full, correct and complete copies of
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all of which have been or will be delivered to Purchaser during the
Inspection Period, are all of
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the reports in Seller's or Seller's property manager's possession
which relate to the investigation of the Premises for the presence of
Hazardous Materials. To the best knowledge of Seller, there are no
hazardous wastes, petroleum products, pollutants, asbestos, asbestos
containing materials, or other hazardous substances located in, upon
or beneath the Premises.
(c) All written materials (including, without limitation, the Leases)
which Seller has delivered or shall deliver to Purchaser pursuant this
Agreement are and shall be complete in all material respects.
(d) On the Closing Date there will be no contracts, agreements or
understandings, oral or written, with any person made by or on behalf
of Seller relating to the operation, maintenance or management of the
Premises except (i) the Leases, (ii) the Service Contracts, a complete
list of which is attached hereto as Exhibit L, (iii) terms and
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conditions of any licenses and permits required by any zoning or
environmental laws, and the applications therefor, (iv) the Permitted
Exceptions, and (v) any other agreements delivered by Seller to
Purchaser during the Inspection Period. All of the Service Contracts
are terminable at will without further liability upon not more than 30
days' prior written notice.
(e) As of the Closing, no lease other than the Leases shall effect the
Premises, and there are no options, purchase contracts or other
agreements, written or oral, whereby any person could claim a right,
title or interest in the Premises or any portion thereof by or through
Seller;
(f) There are no unpaid claims respecting work ordered by Seller which
could give rise to any mechanic's, materialmen's or statutory lien
against the Premises;
(g) Seller has received no written notice or citation from (1) any
federal, state, county or municipal authority alleging any fire,
health, safety, building pollution, environmental, zoning or other
violation of any law, regulation, permit, order or directive in
respect of the Premises or any part thereof, which has not been
entirely corrected, or (2) from any insurance company or bonding
company of any defects or inadequacies in the Premises or any part
thereof, which would adversely affect the insurability of the same or
of any termination or threatened termination of any policy of
insurance or bond;
(h) Seller does not directly employ any employees who work at the
Premises. Neither Seller nor the manager of the Premises employ any
union employees, nor do Seller or manager employ anyone covered by a
collective bargaining or similar agreement.
(i) No person is entitled to any leasing commission in connection with the
Lease or the extension or renewal of any Lease or in connection with
the exercise by the Tenant of any extension option contained in the
Lease. Neither the Seller nor the Premises is subject to any
"protection list" or similar obligation with respect to the
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future leasing of the Premises.
(j) Seller is, and on the Closing Date shall be, a limited liability
company duly and validly organized, existing and in good standing
under, and governed by the laws of the State of Delaware and duly
qualified to do business in the Commonwealth of Massachusetts, and
Seller has all requisite power and authority to own and operate its
properties and to carry on its business as now conducted and to enter
into and perform this Agreement and to carry out the transactions
contemplated hereby.
(k) Performance of this Agreement will not result in a breach of,
constitute a default under, or result in the imposition of a lien or
encumbrance upon the Premises under any agreement instrument,
covenant, or restriction by which Seller or the Premises might be
bound, and Seller is not prohibited from consummating the transactions
contemplated herein by any law or regulation, agreement, instrument,
restriction, order or judgment.
(l) There are no attachments, executions, assignments for the benefit of
creditors, relationships, conservatorships or voluntary or involuntary
proceedings in bankruptcy or pursuant to any other debtor relief law
contemplated or filed by Seller or pending against Seller or the
Premises.
(m) To the best knowledge of Seller, there are no defaults under any
covenants encumbering the Premises or any instrument, restriction,
judgment, law, or regulation affecting the Premises; nor has any event
occurred which with the giving of notice or the passage of time, or
both, could constitute such a default.
(n) There is no outstanding, or, to the best knowledge of Seller,
threatened litigation, claims or proceedings before any court,
commission, agency or other administrative authority which could
affect Seller's title to the Premises or Seller's ability to
consummate the transaction contemplated by this Agreement.
(o) With respect to the Lease: (a) no rent has been paid more than thirty
(30) days in advance, (b) to the Seller's knowledge, neither Seller
nor the Tenant is in default in the performance of any material
covenant, agreement or condition contained in the Lease; (c) Seller
has not received written notice from the Tenant regarding pending or
threatened offsets against rent or for any other monetary or material
claim against Seller which has not been fully resolved; (d) no rent
concessions have been created which are not disclosed in the Lease and
(e) the "Allowance" payable to the Tenant under the Lease which has
not been advanced as of the date of this Agreement is $2,112,012.
7.2 The representations and warranties made by Seller in Section 7.1 are
true and correct as of the date of this Agreement, and shall be true and correct
and deemed repeated as of the Closing. Said representations or warranties shall
survive consummation of the transaction contemplated by this Agreement and shall
continue in full force and effect without limitation and
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shall be binding upon and inure to the benefit of the parties hereto, their
successors in interest and assigns for a period of one (1) year after the
Closing (the "Representation Period"); provided, however, that the
representation made in subparagraph 7.1(i) shall survive indefinitely and the
representation made in subparagraph 7.1(o) with respect to the Lease shall not
survive the Closing if and to the extent the matters covered therein are covered
in the Tenant Estoppel.
7.3 Purchaser represents and warrants that:
(a) Purchaser is a corporation duly organized and existing under the laws
of the State of Georgia and if required will qualify to transact
business in the Commonwealth of Massachusetts on or before Closing,
and Purchaser has all requisite power and authority to own and operate
its properties and to carry on its business as now conducted and to
enter into and perform this Agreement and to carry out the
transactions contemplated hereby.
(b) To Purchaser's knowledge, no consent, approval, order or authorization
of, or registration, qualification, designation, declaration or filing
with, any governmental authority on the part of Purchaser is required
in connection with the execution and delivery of this Agreement or its
purchase of the Premises.
7.4 The representations and warranties made by Purchaser in Section 7.3
are true and correct as of the date of this Agreement, and shall be true and
correct and deemed repeated as of the Closing. Said representations or
warranties shall survive consummation of the transaction contemplated by this
Agreement and shall continue in full force and effect for the Representation
Period.
8. Merger of All Prior Understandings; Premises to be Accepted "AS IS".
It is understood and agreed that all understandings and agreements
heretofore had between Seller and Purchaser with respect to the subject matter
of this Agreement and the transaction contemplated herein, including without
limitation the Letter of Intent dated June 4, 2001, between Purchaser and
Seller, are merged in this Agreement, which alone fully and completely expresses
their agreement, neither party relying upon any statement or representation, not
embodied in this Agreement, made by the other. Except as otherwise expressly
provided in this Agreement, Purchaser agrees (i) to accept the Premises on the
basis of Purchaser's own investigation of the Premises, (ii) that the Premises
will be acquired by the Purchaser "AS IS" on the date of this Agreement; (iii)
that Purchaser assumes the risk that adverse physical conditions may not be or
may not have been revealed by its own investigations or by Seller; (iv) that
Seller has made no express or implied representations or warranties of any kind
in connection with any matter relating to the present or future physical
condition, value, profitability, presence/absence of hazardous materials,
financing status, leasing, operation, use, tax status, income and expenses or
any other matter or thing pertaining to the Premises; and (v) that Seller has
made no express or implied representations or warranties of any kind except as
otherwise expressly set forth in this Agreement. Seller shall not be liable for
or bound by any verbal or written statements, representations, real estate
broker's "setups" or information pertaining to the Premises furnished by any
real estate broker, agent, employee, servant or any other person, including
without
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limitation the Brokers, unless the same are specifically set forth in this
Agreement.
Acceptance of the deed hereunder shall be deemed full performance of
Seller's obligations, except for those matters that expressly survive the
Closing, and for those matters set forth in any of Seller's Deliveries. The
provisions of this Section 8 shall survive the Closing.
9. No Oral Change; Assignment
This Agreement may not be changed or terminated orally. The
stipulations aforesaid are to apply to and bind the legal representatives,
successors, and assigns, of the respective parties. Purchaser shall not have the
right to assign this Agreement without the written consent of Seller.
10. Closing Expenses.
10.1 Seller's Costs. Seller shall pay, in addition to its apportionments,
the cost of its legal counsel as well as all applicable documentary stamps in
connection with the recording of the deed, and other costs and expenses which
are customarily borne by a seller of Premises in Quincy, Massachusetts.
10.2 Purchaser's Costs. Purchaser shall pay, in addition to its
apportionments, the cost of its legal counsel, accountants, engineers,
architects, and advisors and all other cost associated with its investigation of
the Premises during the Inspection Period, plus the cost, if applicable, of the
Title Commitment and the title insurance policy issued pursuant thereto, and
other costs and expenses which are customarily borne by a purchaser of Premises
in Quincy, Massachusetts.
11. Notices.
All notices, demands, consents, requests, or other communications
provided for or permitted to be given hereunder by a party hereto must be in
writing and shall be deemed to have been properly given or served on the day of
delivery, if delivered by hand or courier service or by telecopy, telefax or
other telecommunications device capable of creating a written record (confirmed
by mail), or, if mailed, on the date of receipt or rejection as evidenced by the
green receipt card if deposited in the United States mail addressed to such
party by registered or certified mail, postage prepaid, return receipt
requested, at the following addresses
11.1 If to Seller:
Crownview LLC
c/o Nordic Properties, Inc.
Attn: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, President
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone - (▇▇▇) ▇▇▇-▇▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
11
with a copy to
▇▇▇▇▇ and ▇▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esquire
▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone - (▇▇▇) ▇▇▇-▇▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
11.2 If to Purchaser:
▇▇▇▇▇ Capital, Inc.
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Chief Investment Officer
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone - (▇▇▇) ▇▇▇-▇▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to
▇'▇▇▇▇▇▇▇▇▇ & Stumm LLP
Attn: ▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇▇▇▇, Esq.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone - (▇▇▇) ▇▇▇-▇▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
Any such addresses for the giving of notices may be changed by either party
by giving written notice as provided above to the other party.
12. Governing Law.
This Agreement shall be construed, interpreted, and enforced in
accordance with the laws of the Commonwealth of Massachusetts.
13. Recording.
This Agreement may not be recorded.
14. Default.
14.1 By Seller. In the event of a default by Seller hereunder, the sole
and exclusive remedy of Purchaser shall be to either (i) seek specific
performance of Seller's obligation hereunder in a court of competent
jurisdiction, or (ii) terminate this Agreement and receive back the Deposit plus
any accrued interest and the parties shall thereafter have no further rights or
12
obligations pursuant to this Agreement except for those matters that expressly
survive such termination. The parties agree that Purchaser's actual damages
would be difficult or impossible to determine if Seller defaults and the
ownership of the Premises has a unique value to Purchaser which is not
adequately capable of being compensated through the payment of damages, so that
it is specifically acknowledged and agreed that Purchaser shall be entitled to
the remedy of specific performance in connection with any such default, in the
event Purchaser elect to pursue such remedy. Notwithstanding anything in this
Agreement to the contrary, if Seller is unable to meet the requirements of
Section 4.5(f) or (i), Purchaser's sole remedies shall be either to waive such
requirements and proceed to acquire the Premises without deduction to the
Purchase Price or to terminate the Agreement pursuant to Section 14.1(ii) above.
Notwithstanding the foregoing, (i) Seller shall use commercially reasonable
efforts to satisfy the conditions of this Agreement, and, (ii) the foregoing
shall not limit Seller's obligation to discharge or cure Voluntary Encumbrances,
and Seller shall authorize the Title Company to pay such amounts from proceeds
otherwise due Seller at Closing.
14.2 By Purchaser. In the event of a default by Purchaser hereunder, the
sole and exclusive remedy of Seller shall be to terminate this Agreement, in
which event Seller may retain the Deposit plus any accrued interest as
liquidated damages (and not as a penalty), and the parties shall thereafter have
no further rights or obligations pursuant to this Agreement except for those
matters that expressly survive such termination. The parties agree that it would
be extremely difficult or impossible to ascertain the actual damages which would
be suffered by Seller if Purchaser fails to perform its obligations under this
Agreement, and that the Deposit is the best estimate of the amount of damages
Seller would suffer.
15. Risk of Loss; condemnation.
15.1 (a) The risk of loss or damage to the Premises by fire, accident,
act of God, calamity or otherwise ("Casualty") until the delivery of the deed is
retained by Seller. Seller agrees to furnish Purchaser with notice of any such
occurrence forthwith upon the happening thereof (a "Casualty Notice").
(b) In the event the Premises is "substantially damaged," as defined
in the Lease, as a result of a Casualty, Seller may terminate this Agreement by
written notice given to the Purchaser within thirty (30) days of the date Seller
gives notice to Purchaser of any such Casualty (and the Closing shall be
extended to the extent necessary to provide such thirty (30) day period),
whereupon the Escrow Agent shall immediately repay the Deposit plus any accrued
interest to Purchaser and the parties shall thereafter have no further rights or
obligations pursuant to this Agreement except for those matters that expressly
survive such termination.
(c) Unless terminated by Seller as provided in Section 15.1(b)
above, in the event the Premises is "substantially damaged," as defined in the
Lease, as a result of a Casualty and such damage results in the election of the
Tenant to terminate the Lease, Seller shall give notice to Purchaser of such
election by the Tenant within ten (10) days after receipt by Seller of notice
thereof. Purchaser may terminate this Agreement by notice given to Seller within
ten (10) days of the date of such notice from Seller (and the Closing shall be
extended to the extent necessary to provide for the time periods for the
Tenant's election and the two ten-day periods
13
provided herein).
15.2 If this Agreement is not terminated by Seller or Purchaser as
provided in Section 15.1, it shall remain in full force and effect and the
parties shall proceed to Closing without any reduction in the Purchase Price
except as specifically provided below. At the Closing, Seller shall assign to
Purchaser, without recourse, all insurance proceeds arising from the casualty
(to the extent not applied to any restoration relating thereto), together with a
credit against the Purchase Price equal to the deductible amount under the
applicable insurance policy.
15.3 Seller will notify Purchaser immediately upon obtaining knowledge of
any proceedings for a condemnation that affects the Premises. Purchaser may
participate in such proceedings, and Seller shall from time to time deliver to
Purchaser all instruments reasonably requested by it to permit such
participation. In the event of the institution of any proceedings for
condemnation of the Premises, Purchaser may terminate this Agreement by notice
given to Seller within thirty (30) days of the date Seller gives notice to
Purchaser of such condemnation (and the Closing shall be extended to the extent
necessary to provide such thirty (30) day period), whereupon the Escrow Agent
shall immediately repay the Deposit plus any accrued interest to Purchaser and
the parties shall thereafter have no further rights or obligations pursuant to
this Agreement except for those matters that expressly survive such termination.
If Purchaser does not terminate this Agreement, Seller shall pay over or assign
to Purchaser all awards recovered or recoverable on account of such
condemnation, and Purchaser shall take title to the Premises, subject to such
condemnation and without reduction in the Purchase Price.
16. No Option.
The submission of this Agreement to Purchaser shall not be construed
to vest in Purchaser an option to purchase or any reservation of the Premises.
Purchaser shall have no right or interest hereunder until such time as this
Agreement has been fully executed by Seller and Purchaser.
17. Successors and Assigns.
This Agreement shall inure to the benefit of and be binding upon the
Seller and Purchaser hereto and their respective heirs, personal
representatives, successors, and assigns. Purchaser shall have the right to
assign this Agreement to an affiliate of Purchaser, provided that Purchaser
shall not thereby be relieved from any liability under this Agreement.
18. Further Assurances.
Seller and Purchaser each agree to execute any and all documents and
take such further actions as may be reasonably necessary to effectuate the
purposes of this Agreement.
19. Inspection Period.
19.1 Purchaser may until July 18, 2001 (the "Inspection Period"), at
Purchaser's expense, (i) perform all engineering studies and soil tests and
borings on the Premises to
14
determine the Premises' physical condition, (ii) perform all environmental
auditing, engineering and testing on the Premises as Purchaser shall reasonably
require to satisfy Purchaser that no unacceptable environmental condition exists
on the Premises, (iii) satisfy itself as to the location of utilities and
utility connection fees which may be necessary for Purchaser's intended use of
the Premises, (iv) conduct all other reviews and inspections which Purchaser
deems reasonably necessary to determine the Premises' suitability for
Purchaser's proposed use, including without limitation consultation with
governmental authorities having jurisdiction over the Premises. To facilitate
Purchaser's investigation, Seller agrees to promptly after the execution of this
Agreement to make available to Purchaser all property information in Seller's
possession respecting the Premises, including, but not limited to, contracts,
engineering reports, environmental reports, building plans, documents, permits,
and relevant municipal correspondence. Following any invasive testing or
inspection, Purchaser shall promptly restore the Premises to their same
condition as prior to such testing or inspection.
19.2 Seller hereby gives to Purchaser and its duly authorized agents,
contractors and/or representatives the right of access to the Premises during
the Inspection Period for the purpose of conducting such inspections, tests,
studies and other investigations. Prior to any such entry, Purchaser shall
provide Seller with a certificate of insurance in the amount reasonably
satisfactory to Seller in order to secure the indemnification provided for
hereafter. In addition, Seller shall be named an additional insured with respect
to any such policies of insurance. Any such entry shall be on reasonable notice
to Seller, shall be made in the presence of Seller or Seller's agent, and shall
be made in such a manner as to minimize interference with the Tenant's use and
occupancy of the Premises.
19.3 Purchaser covenants and agrees to defend, indemnify and hold
Seller harmless from and against any and all liens, claims, charges, costs,
suits, damages, injuries or other liabilities whatsoever including, without
limitation, reasonable attorneys fees, which may arise, directly or indirectly
from or as a consequence of the actions by Purchaser, its agents, employees or
contractors on the Premises prior to the Closing. Purchaser agrees to hold in
confidence (except as required by law) any information or data relating to the
Premises obtained by Purchaser, including, but not limited to, information and
data obtained by Purchaser through testing and inspections, and any information
furnished by Seller. Such covenant of confidentiality shall not prohibit
Purchaser from disclosing the existence of this Agreement and the transactions
contemplated hereby, and any information or data relating to the Premises
obtained by Purchaser, to any partners, underwriters, employees, lenders,
accountants or legal counsel of any of the foregoing, or to leasing brokers or
potential tenants of all or any portion of the Premises, or to any governmental
authority as contemplated by Section 19.1 hereof. The provisions of this
Section 19.3 shall survive the termination of this Agreement.
19.4 At any time during the Inspection Period, Purchaser shall have the
right to terminate this Agreement for any reason or for no reason by delivering
written notice thereof to Seller on or before the last day of the Inspection
Period, and upon any such termination, neither party shall have any further
rights or obligations hereunder except those obligations that expressly survive
such termination, and the Escrow Agent shall return the Deposit plus all accrued
interest thereon to Purchaser. The failure of Purchaser to notify Seller in
writing prior to the end of the Inspection Period of Purchaser's desire to
terminate this Agreement shall
15
constitute a waiver of any unsatisfied conditions and of Purchaser's right to
terminate this Agreement, except for Seller's default. In the event that
Purchaser terminates this Agreement pursuant to this provision of this Section,
Purchaser shall return to Seller all information and data relating to the
Premises furnished by Seller to Purchaser.
19.5 If this Agreement is not terminated during the Inspection Period,
Seller agrees that during the interval between the end of the Inspection Period
and the Closing Date, Seller shall:
(a) make no changes in the condition of title to the Premises;
(b) continue to operate, maintain and insure the Premises consistent with
the present business and operations thereof, normal wear and tear and
casualty excepted, it being the intention of the parties hereto that
the general operations of the Premises shall not be changed between
the date hereof and the Closing Date; and
(c) not modify, amend, renew, extend or terminate the Lease.
20. Miscellaneous.
20.1 Captions and Headings. This Section and/or section headings and the
arrangement of this Agreement are for the convenience of the parties hereto and
do not in any way affect, limit, amplify or modify the terms and provisions
hereof.
20.2 Singular, Plural, etc. Wherever herein the singular number is used
the same shall include the plural and the masculine gender shall include the
feminine and neuter genders and vice versa as the context shall require.
20.3 Counterparts. This Agreement may be executed in several counterparts,
which shall constitute one and the same instrument.
20.4 Partial Invalidity. If any provision of this Agreement shall be
declared invalid or illegal for any reason whatsoever, then notwithstanding such
invalidity or illegality, the remaining terms and provisions of this Agreement
shall remain in full force and effect in the same manner as if the invalid or
illegal provisions had not been contained herein.
20.5 Exhibits. Each of the exhibits annexed to this Agreement constitute
an integral part hereof.
20.6 Time. When the last day for the performance of any act permitted or
required hereunder falls on any day which is not a business day in the City of
Boston, Massachusetts, such act may be performed on the next business day in
said city. Time is of the essence of each and every provision of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement the day and
year first above written.
16
SELLER:
CROWNVIEW LLC
By: Nordic Holdings III LLC
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇. Manager
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Manager
PURCHASER:
▇▇▇▇▇ CAPITAL, INC.
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇, III
----------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇, III
Title: President
Hereunto duly authorized
17
List of Exhibits
A Description of the Land
B Form of Escrow Agreement
C Form of Quitclaim Deed
D Lease Assignment
E General Instrument
F Non-Foreign Certificate
G Seller's Bring-Down Certificate
H Form of Tenant Estoppel
I Purchaser's Bring-Down Certificate
J Form of Property Management Agreement
K Environmental Reports
L Service and Maintenance Contracts
18
Exhibit A
---------
Description of the Land
The land with the buildings thereon situated in Quincy, Norfolk County,
Massachusetts and shown as Lot 13 on a plan entitled "Crown Colony Place,
Quincy, MA, Subdivision Plan" dated March 29, 1988 by ▇. ▇. ▇▇▇▇▇ Associates,
Inc., Engineers and Planners, Boston, MA ("Lot 13" and the "Plan" respectively)
recorded with Norfolk County Registry of Deeds ("Deeds") as Plan No. 530 of 1988
in Plan Book 368.
Beginning at a point on the Southwesterly side of Crown Colony Drive, being the
Northerly corner of said Lot 13 and thence running.
Southeasterly and Easterly by Crown Colony Drive by a line curving to the left
having a radius of 645.00 feet, a distance of 647.03 feet; thence turning and
running
South 00 degrees 51' 42" East 19.46 feet; thence continuing
Southeasterly and Easterly by a line turning to the left having a radius of
385.00 feet, a distance of 221.09 feet; thence continuing
South 33 degrees 45' 52" East 324.95 feet; thence turning and running
South 67 degrees 32' 52" West 234.04 feet; thence turning and running
North 75 degrees 21' 07" West 88.44 feet; thence turning and running
North 26 degrees 42' 08" West 93.47 feet; thence turning and running
North 49 degrees 49' 37" West 79.83 feet; thence continuing
North 74 degrees 25' 51" West 135.99 feet; thence continuing
North 74 degrees 12' 41" West 150.68 feet; thence continuing
North 53 degrees 41' 24" West 284.55 feet; thence turning and running
North 86 degrees 03' 17" West 66.86 feet; thence continuing
South 63 degrees 43' 53" West 69.14 feet; thence turning and running
North 45 degrees 00' 00" West 91.92 feet; thence turning and running
North 05 degrees 44' 20" East 229.44 feet; thence turning and running
North 50 degrees 46' 37" East 411.62 feet to the point of beginning, the last
fifteen course being
19
by Lot 1 as shown on the Plan.
Said Lot 13 being a subdivision of Lot 1 as shown on a plan entitled
"Subdivision Plan of Land 'Crown Colony Place' Quincy, MA" dated May 18, 1987 by
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Inc. recorded as Plan No. 53 of 1988 in Plan Book 3654.
Appurtenant Rights
All the rights and easements for the benefit of Owners in Crown Colony Place set
forth in a Declaration of Covenants, Restrictions, Development Standard and
Easements ("Declaration of Covenants") for Crown Colony Place by Crown Colony
Realty Corp., as Trustee of Presidents' Plaza Realty Trust dated October 10,
1986 recorded in Book 7281, Page 352 and filed as Document No. 503941, as
amended by First Amendment to Declaration of Covenants, Restrictions,
Development Standards and Easements dated October 30, 1987 recorded in Book
7864, Page 493 and filed as Document No. 538949, as amended by Second Amendment
to Declaration of Covenants, Restrictions, Development Standards and Easements
dated as of February 4, 1988 recorded in Book 7978, Page 368 and filed as
Document No. 545752, as amended by Succession Developer under Declaration of
Covenants, Restrictions, Development Standards and Easements dated January 21,
1988 and recorded in Book 7864, Page 501 and filed as Document No. 538953 and as
modified by Easement Relocation Instrument dated May 26, 1988, recorded in Book
7978, Page 466 and filed as Document No. 545753 as affected by Design Review
Decision dated May 26, 1988, recorded May 27, 1989 in Book 7978, Page 443, as
affected by Confirmation of Easement Locations dated June 9, 1988 and filed as
Document No. 550330 and recorded in Book 8066, Page 271 as amended by Third
Amendment to Declaration of Covenants, Restrictions, Development Standards and
Easements dated July 11, 1988 filed as Document No. 550331 and recorded in Book
8066, Page 279 as affected by a Certificate of Compliance dated September 21,
1989 recorded October 5, 1989 in Book 8451, Page 543 and as further affected by
an Estoppel Certificate dated as of September 21, 1989 recorded October 5, 1989
in Book 8451, Page 541 as amended by Fourth Amendment to Declaration of
Covenants, Restrictions, Development Standards and Easement dated June 29, 1989,
recorded October 5, 1989 in Book 8451, Page 423 and filed as Document No.
575918, and as amended by Fifth Amendment to Declaration of Covenants
Restrictions Development Standards and Easements dated as of September 21, 1989
recorded October 5, 1989 in Book 8451, Page 430 and filed as Document No.
575919.
The right, in common with Quincy One Associates Limited Partnership, and its
successors and assigns, to lay, construct, reconstruct, repair, replace,
operate, maintain, install and use water and sewer pipes, electric and telephone
utility lines, and other utility lines or pipes, underground within the are
shown on the Plan as "Utility Easement Area = 2,457 S.F. = .056 AC.", as set
forth in a deed from Quincy One Associates Limited Partnership to ▇▇▇▇▇▇ ▇.
Fish, et als, dated May 26, 1988 recorded with said Deeds on May 27, 1988 as
Instrument No. 42521 Book 7978 Page 376.
Rights reserved for the benefit of "Grantor's Other Land" in deed dated March 5,
1985 from Crown Colony Realty Corp. as Trustee of President's Plaza Realty Trust
to ▇. ▇▇▇▇▇▇▇▇ Low, as Trustee of Low Realty Trust, recorded in Book 6633, Page
320 and filed as Document No.
20
464286.
Rights granted in deed from ▇. ▇▇▇▇▇▇▇▇ Low, as Trustee of Low Realty Trust, to
Crown Colony Realty Corp., as Trustee of President's Plaza Realty Trust dated
March 5, 1985 recorded in Book 6633, Page 310.
Easements granted in an Easement Agreement between Quincy One Associates Limited
Partnership and 1200 Crown Colony Limited Partnership, dated June 19, 1991
recorded in Book 8961, Page 515.
All other rights and easements which may be appurtenant to Lot 13.
21
