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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
Current Report
Pursuant to Section 13 or 15(d) of
Securities Exchange Act of 1934
Date of Report: (Date of Earliest Event Reported):
June 23, 1995
GROSSMAN'S INC.
(Exact Name of Registrant as Specified in its Charter)
DELAWARE
(State of Other Jurisdiction of Incorporation)
1-542 38-0524830
(Commission File No.) (I.R.S. Employer)
Identification No.)
200 Union Street
Braintree, Massachusetts 02814
(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code:
(671) 848-0100
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Item 2. Acquisition or Disposition of Assets
If the registrant or any of its majority-owned
subsidiaries has acquired or disposed of a significant
amount of assets, otherwise than in the ordinary course
of business, furnish the following information:
(a) The date and manner of the acquisition or
disposition and a brief description of the
assets involved, the nature and amount of
consideration given or received therefor, the
principle followed in determining the amount
of such consideration, the identity of the
person(s) from whom the assets were acquired
or to whom they were sold and the nature of
any material relationship between such
person(s) and the registrant or any of its
affiliates, any director or officer of the
registrant, or any associate of any director
or officer.
On June 20 and 22, 1995, the Registrant and a Buyer
entered into amendments to their agreement for the sale
of the Registrant's 35 acre headquarters site, which
amendments eliminated major contingencies to the
transaction. The purchase price for the property is
$32.0 million, of which $2.2 million in cash was paid
to the Registrant as of June 23, 1995. The remaining
consideration will be paid upon, inter alia, vacation
of the property and satisfaction of title
contingencies, as follows: $14.0 million will be paid
in cash within 15 business days of the Company's
vacating the property (within a required 120 day
period) and the remaining $15.8 million will be in the
form of a note, payable to the Registrant over a two
year period.
Item 7. Financial Statements and Exhibits
Exhibits
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10(p) Agreement for Purchase of Real Estate By
and Between Grossman's Inc. and [Buyer],
dated May 14, 1993, First Amendment to
Agreement for Purchase of Real Estate,
dated September 2, 1993, Second Amendment
to Agreement for Purchase of Real Estate,
dated September 29, 1993, Third Amendment
to Agreement for Purchase of Real Estate,
dated June 20, 1995 and Fourth Amendment
to Agreement for Purchase of Real Estate
dated June 22, 1995. Exhibits have been
redacted to omit the name of the Buyer.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange
Act of 1934, the registrant has duly caused this report to be
signed on its behalf by the undersigned thereunto duly
authorized.
GROSSMAN'S INC.
By: /s/ Richard E. Kent
-------------------------
Richard E. Kent
Vice President, Secretary
and General Counsel
Dated: June 23, 1995
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AGREEMENT FOR PURCHASE OF REAL ESTATE
THIS AGREEMENT FOR PURCHASE OF REAL ESTATE (the "Agreement") made and
entered into as of the Date of Execution, between GROSSMAN'S INC., a Delaware
corporation (hereinafter referred to as "Grossman"), having an address at 200
Union Street, Braintree, MA 02184, and ____________, a _________ corporation
(hereinafter referred to as "____________"), having its principal offices at
______________________. Grossman and ____________ may be referred to
individually as a "Party" and collectively as the "Parties".
RECITALS:
A. Grossman is the owner of a certain 34.5 acre parcel of real
property located in the City of Braintree, County of Norfolk, Commonwealth of
Massachusetts, which real property is more particularly described on Exhibit A
attached hereto (the "Land");
B. ____________ desires to purchase from Grossman and Grossman
desires to sell and convey to ____________ the Land, together with all
buildings, structures, improvements (collectively, the "Improvements"), rights,
easements and appurtenances located thereon and appertaining thereto
(collectively, the "Appurtenant Rights") (unless otherwise noted, the Land,
Improvements and Appurtenant Rights shall hereinafter be referred to
collectively as the "Property"), in consideration of the Purchase Price and
other covenants herein contained, all as herein set forth; and
C. ____________ intends to develop the Property as an integrated
shopping center (the "Shopping Center");
NOW, THEREFORE, in consideration of and in reliance on the mutual
representations, warranties, covenants, and agreements made herein and the
mutual benefits to be derived therefrom, the Parties hereto represent, covenant
and agree as follows:
ARTICLE 1
DEFINITIONS/PURCHASE AND SALE
1.1 RECITALS. The facts and statements set forth in the Recitals are
true and correct and by reference are herein incorporated and made a part of
this Agreement.
1.2 DEFINITIONS. The capitalized terms in this Agreement shall have the
meaning set forth in Article 14, unless the context otherwise requires.
1.3 PURCHASE AND SALE OF PROPERTY. Subject to the terms and conditions
of this Agreement and in reliance upon the covenants, representations,
warranties and agreements of Grossman only as set forth in this Agreement,
____________ shall purchase and acquire from Grossman and Grossman shall sell
and convey to ____________ the Property. The sale and conveyance of the Property
includes all right, title and interest, if any, of Grossman in and to any land
lying in the bed of any street or highway opened or proposed, in front of or
adjoining the Property, to the center line thereof, and all right, title and
interest of Grossman in and to any award made in lieu thereof and in and to any
unpaid award for damage to the Property by reason of the change of grade of any
street.
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ARTICLE 2
PURCHASE PRICE
2.1 DETERMINATION OF PURCHASE PRICE. At Closing, in consideration for
the tender and delivery by Grossman of the Deed to the Property, ____________
shall deliver an amount equal to such sum as computed and determined pursuant to
the provisions hereof in immediately available funds in Boston, Massachusetts
(the "Purchase Price"), as adjusted by all adjustments, offsets, and prorations,
if any, provided for herein. The Purchase Price for the Property shall be
Ninety-Five and No/100 Dollars ($95.00) per square foot of Approved Floor Area,
subject to the terms and conditions herein. For purposes of this Agreement the
term (i) "Floor Area" shall mean and include the area measured from the exterior
surface of exterior walls and from the center of common walls on interior
demising partitions, but excluding Floor Area associated with the mezzanines not
used as selling or display areas, if any, up to a maximum of 10% of the ground
Floor Area within the same building (any such mezzanine Floor Area used as
selling or display areas or any such mezzanine area not used as selling or
display areas and in excess of 10% of the ground Floor Area within the same
building, shall be included in the calculation of Floor Area); and (ii)
"Approved Floor Area" shall mean and include the square footage of Floor Area
within the Shopping Center which has Final Approval by applicable governmental
authorities having jurisdiction over the site plan in connection with the
approval process associated with the construction of the Shopping Center,
provided, however, that such Approved Floor Area shall in no event be deemed to
be less than 284,211 square feet. ____________ agrees, during the Permitting
Period, to submit and with reasonable due diligence seek Final Approval of the
site plan in substantially similar form to that attached hereto as Exhibit B
containing 345,000 square feet (within + 5,000 square feet) of Floor Area (the
"Site Plan"), provided that (x) ____________ may, at its sole discretion, seek
to increase the Floor Area set forth on the Site Plan, and (y) the Floor Area
set forth in the Site Plan may be reduced below 345,000 in order that the Site
Plan comply with applicable zoning, parking and other land use regulations
imposed by governmental authorities or regulations. Further, ____________ may,
at its sole discretion, without reducing the Floor Area set forth on the Site
Plan, modify the Site Plan by altering the location of buildings and other
improvements thereon.
(a) Approved Floor Area Less Than 284,211 Square Feet. In the
event that the Approved Floor Area equals less than 284,211 square feet,
Grossman may, in or within thirty (30) days following Final Approval, elect to
terminate this Agreement by providing written notice to ____________
("Grossman's Termination Notice") of such election, subject, however, to the
right of ____________, by written notice to Grossman in or within thirty (30)
days following Grossman's Termination Notice, to elect to proceed with the
purchase of the Property from Grossman for a Purchase Price of Twenty-Seven
Million and No/100 Dollars ($27,000,000).
(b) Approved Floor Area Between 284,211 and 299,999 Square Feet.
In the event that the Approved Floor Area equals between 284,211 and 299,999
square feet, ____________ may, by written notice to Grossman within thirty (30)
days following Final Approval, elect either to (i) terminate this Agreement, or
(ii) purchase the Property for a Purchase Price equal to the product of
Ninety-Five and No/100 Dollars ($95.00) multiplied by the number of square feet
of Approved Floor Area.
(c) Approved Floor Area Equals or Exceeds 300,000 Square Feet. In
the event that the Approved Floor Area equals or exceeds 300,000 square feet,
____________ shall, subject to the terms and conditions of this Agreement, be
bound and agrees to
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proceed with the purchase of the Property for a Purchase Price equal to the
product of Ninety-Five and No/100 Dollars ($95.00) multiplied by the number of
square feet of Approved Floor Area.
2.2 PAYMENT OF PURCHASE PRICE. The Purchase Price shall be payable as
follows:
(a) $200,000 DEPOSIT. In the event ____________ shall not have
terminated this Agreement upon the expiration of the "Confidential Investigation
Period" (being the period beginning with the Date of Execution and ending one
hundred twenty (120) days thereafter, or as such period may be extended pursuant
to paragraph 3.3), ____________ shall deliver to Grossman, in immediately
available funds in Boston, Massachusetts, the amount of Two Hundred Thousand and
No/100 Dollars ($200,000) as a deposit hereunder.
(b) BALANCE OF PURCHASE PRICE. On or before the Closing Date,
____________ shall deposit into escrow with Escrow Agent an additional sum so
that ____________'s total deposit in escrow, plus the Two Hundred Thousand and
No/100 Dollars ($200,000) deposit paid by ____________ to Grossman pursuant to
paragraph 2.2(a), equals the Purchase Price, as adjusted by any costs or
prorations which are ____________'s responsibility under paragraph 8.4.
ARTICLE 3
CONDITIONS PRECEDENT TO ____________'S PERFORMANCE
CONFIDENTIAL INVESTIGATION PERIOD AND PERMITTING PERIOD
3.1 CONFIDENTIAL INVESTIGATION PERIOD. Upon the Date of Execution and
throughout the Confidential Investigation Period, ____________ shall in
compliance with the provisions of paragraph 11.1, undertake with all reasonable
due diligence, at ____________'s sole cost and expense, the inspections,
analysis and securing with regard to the Property of the following:
(a) TITLE COMMITMENT. A title commitment from a recognized title
insurance company committed to issue to ____________ on the Closing of an
owner's policy of title insurance, subject only to those exceptions, if any,
acceptable to ____________, and on terms and conditions satisfactory to
____________ (the "Title Commitment"). Upon issuance of the Title Commitment (a
copy of which shall be delivered by ____________ to Grossman), but not prior to
the expiration of the Confidential Investigation Period, Grossman's title in and
to the Property shall thereafter be deemed satisfactory by ____________ for all
purposes, provided, however that on the Closing Date, Grossman's title to the
Property shall be in conformity with the Title Commitment and the title company
shall issue an owner's policy of title insurance to ____________, at
____________'s sole cost and expense, in conformity with the Title Commitment.
(b) ENVIRONMENTAL CONDITIONS. A Hazardous Substance site
assessment satisfactory to ____________ (the "Environmental Assessment") with
respect to the presence of Hazardous Substances, if any, in, on, under or about
the Property (the "Environmental Conditions"). Upon issuance of the
Environmental Assessment (a copy of which shall be delivered by ____________ to
Grossman), but not prior to the expiration of the Confidential Investigation
Period, the Property shall thereafter be deemed satisfactory by ____________
with respect to the Environmental Conditions, other than Hazardous Substances
which are placed or disposed of in, on, under or about the Property following
the date of the commencement of the Permitting Period.
(c) ALTA SURVEY. An ALTA survey of the Property satisfactory to
____________ certifying that the Improvements on the Property do not encroach
onto adjoining lands or onto any
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easement or right of way and that no improvements on adjoining lands encroach
onto the Property and that the Property has access to a public way, and that the
Property does not lie within a federally designated flood plain (the "Survey
Conditions"). Upon issuance of the survey (a copy of which shall be delivered by
____________ to Grossman), but not prior to the expiration of the Confidential
Investigation Period, the Property shall thereafter be deemed satisfactory to
____________ with respect to the Survey Conditions, provided, however, that on
the Closing the Property shall be in conformity with the Survey Conditions,
other than with respect to the possible construction of a canopy storage
facility to be erected by Grossman prior to the Closing in the size and at the
location depicted on Exhibit C attached hereto, and constructed of materials
described in Exhibit C.
(d) ENGINEERING CONDITIONS. An inspection report of the Property
including, without limitation, soils tests, drainage tests, borings, etc.
certifying that the improvements to be constructed by ____________ on the
Property comprising the Intended Use may be constructed and maintained at normal
and customary costs acceptable to ____________ (the "Engineering Conditions").
Upon issuance of the inspection report (a copy of which shall be delivered by
____________ to Grossman), but not prior to the expiration of the Confidential
Investigation Period, the Property shall thereafter be deemed satisfactory to
____________ with respect to the Engineering Conditions.
(e) UTILITY AVAILABILITY. Satisfactory evidence that all necessary
utility services (including storm drains, sanitary sewer, electricity, gas and
water) are available in sufficient quantity for the Intended Use and that the
provision of said services is in conformity with applicable zoning requirements
and has been approved by the appropriate municipal officials and utility
companies (the "Utility Availability"). Upon determination by ____________ as to
Utility Availability, but not prior to the expiration of the Confidential
Investigation Period, the Property shall thereafter be deemed satisfactory to
____________ with respect to Utility Availability.
(f) ANALYSIS OF NECESSARY APPROVALS. A written analysis by
____________ (the "____________ Analysis") setting forth to the best of its
knowledge and belief as of the expiration of the Confidential Investigation
Period with respect to the Necessary Approvals. A copy of the ____________
Analysis shall be delivered to Grossman on or before the expiration of the
Confidential Investigation Period. The Parties shall confer with respect to the
most advantageous strategy to secure the Necessary Approvals, and ____________
shall continuously inform Grossman from time to time as to ____________'s
progress regarding securing such Necessary Approvals in sufficient time to
permit Grossman to comment and/or attend and participate in hearings and
proceedings instituted to secure Necessary Approvals.
3.2 EXTENSION OF CONFIDENTIAL INVESTIGATION PERIOD. In the event that
____________, in the exercise of reasonable due diligence, shall have been
unable to complete the Environmental Assessment during the Confidential
Investigation Period (i.e. the period extending one hundred twenty (120) days
from the Date of Execution), ____________ may, upon notice given to Grossman
(the "____________ Extension Notice") at least ten (10) days prior to the
expiration of the Confidential Investigation Period, extend the Confidential
Investigation Period for an additional period of up to sixty (60) days (the
"Confidential Investigation Period As Extended") solely to complete the
Environmental Assessment, and upon delivery of the ____________ Extension
Notice, ____________ shall be deemed satisfied and will be conclusively deemed
to have waived its rights to object as to any defect as regards the Property as
of the date of the ____________ Extension Notice with respect to the Title
Commitment, the Survey Conditions, the Engineering Conditions and the Utility
Availability.
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3.3 TERMINATION OF AGREEMENT BY ____________ DURING CONFIDENTIAL
INVESTIGATION PERIOD. ____________ may, by written notice to Grossman delivered
on or before the expiration of the Confidential Investigation Period (or the
Confidential Investigation Period As Extended solely with respect to the
Environmental Conditions), terminate this Agreement specifying in what manner
the Title Commitment, Environmental Conditions, Survey Conditions, Engineering
Conditions, Utility Availability and/or Necessary Approvals are unsatisfactory
to ____________, in ____________'s sole discretion, whereupon this Agreement
shall be deemed null and void and of no further recourse to the Parties hereto.
In the event that ____________ shall not terminate this Agreement prior to the
expiration of the Confidential Investigation Period, ____________ shall be
deemed satisfied and will be conclusively deemed to have waived its rights to
object as to any defect as regards the Property as of the date of expiration of
the Confidential Investigation Period with respect to the Title Commitment,
Survey Conditions, Engineering Conditions, Utility Availability and
Environmental Conditions (other than with respect to (x) the Confidential
Investigation Period As Extended solely as regards the Environmental Conditions,
and (y) Hazardous Substances pursuant to paragraph 5.1(e)).
3.4 PERMITTING PERIOD - NECESSARY APPROVALS. Upon expiration of the
Confidential Investigation Period or the Confidential Investigation Period As
Extended, and provided that the Agreement has not been terminated by
____________ pursuant to the provisions of paragraph 3.3, ____________ shall on
the Closing Date close the transactions provided for in this Agreement and
tender the Purchase Price to Grossman, provided, however, that (i) the
representations and warranties made by Grossman set forth herein are true on the
Closing Date with the same effect as though such representations and warranties
had been made on and as of the Closing Date, (ii) the conditions precedent to
____________'s obligations to close set forth in paragraphs 3.1(a), (b), (c),
(d), (e) and (f), deemed satisfactory to ____________ at the commencement of the
Permitting Period, have not changed, and (iii) ____________ shall, in the
exercise of reasonable due diligence (including the expenditure of the Necessary
Approval Costs), have been able to secure or obtain Final Approval in or within
seven hundred thirty (730) days following the expiration of the Confidential
Investigation Period or the Confidential Investigation Period As Extended (the
"Permitting Period") of the following approvals (collectively, the "Necessary
Approvals"):
(a) ZONING APPROVALS. ____________ shall have either (i) obtained
Final Approval of all zoning approvals including, without limitation, all
permits, changes in zoning, variances in zoning, special use permits or other
orders appropriate under applicable zoning laws and land use regulations, as are
required for ____________'s Intended Use of the Property (excluding building
permits), which shall consist of the construction, operation and leasing of a
single-story retail shopping center substantially as depicted on the Site Plan
attached hereto as Exhibit B or as revised in accordance with paragraph 2.1,
which may have adjoining garden shop areas, tire changing areas, and tire
battery accessory areas, and related improvements (hereinafter referred to as
the "Intended Use"), or (ii) be satisfied that the present zoning of the
Property is in all respects satisfactory for the Intended Use and for the
construction, operation and leasing of the Shopping Center.
(b) ACCESS TO GROSSMAN DRIVE. ____________ shall have received
satisfactory evidence of access to and from the Shopping Center and to and from
Grossman Drive, including all necessary curb cuts as set forth in the
____________ Analysis.
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(c) SITE PLAN APPROVAL. ____________ shall have received Final
Approval of its site plan for the Shopping Center consisting of a minimum of
300,000 square feet of Floor Area from all governmental authorities having
jurisdiction over such Final Approvals.
(d) SUBDIVISION COMPLIANCE. ____________ shall have received Final
Approval of any subdivision of the Property or establishment of a commercial
condominium including, without limitation, the preparation, Final Approval, and
filing of any required subdivision plat, parcel map, or required commercial
condominium approvals.
(e) ENVIRONMENTAL AND MISCELLANEOUS APPROVALS. ____________ shall
have received satisfactory evidence that it shall be able to secure all
environmental licenses, building permits and Final Approvals from any other
applicable governmental authorities which are required for the improvement and
operation of the Property for the Intended Use including, but not limited to,
any and all required permits and approvals from the Massachusetts Department of
Environmental Protection.
3.5 TERMINATION BY ____________ DURING PERMITTING PERIOD. In the event
that any Necessary Approval set forth in paragraph 3.4(a), (b), (c), (d) or (e)
has not been either secured, satisfied or waived by ____________ on or before
the Closing Date, this Agreement may, on or before the expiration of the Closing
Date (as the same may be extended pursuant to paragraph 3.6), be terminated by
____________ by written notice to Grossman specifying in what manner the
Necessary Approvals have not been obtained, whereupon this Agreement shall be
deemed terminated, null and void and without further recourse to either Party,
provided, however, that the deposit made by ____________ in the amount of Two
Hundred Thousand and No/100 Dollars ($200,000) shall be deemed to be the sole
property of Grossman.
3.6 EXTENSION OF PERMITTING PERIOD. In the event that all Necessary
Approvals have not been obtained by ____________ five (5) days prior to the
Closing Date, ____________ shall have the right, by written notice to Grossman
(specifying in what manner the Necessary Approvals have not been obtained) given
five (5) days prior to the Closing Date, to extend the Permitting Period and the
Closing Date (i) for an additional term not in excess of six (6) months, or (ii)
such further term as ____________ may elect with Grossman's consent, such
consent not to be unreasonably withheld, provided, however, that it shall not be
unreasonable for Grossman to withhold consent to such extension in the event
that Grossman reasonably determines that such Necessary Approvals are not likely
to be obtained within the extension period.
3.7 ____________'S ACCESS TO PROPERTY. During the Confidential
Investigation Period and the Permitting Period, Grossman agrees that
____________, its employees and agents shall have a license, and Grossman hereby
grants ____________ such license, for access over and through the Property for
the proposes of conducting any of the foregoing tests, inspections, evaluations,
and surveys and for securing the Necessary Approvals. ____________ shall
indemnify, protect and save Grossman, and its respective directors, officers,
shareholders, employees, affiliates, attorneys, agents, successors and assigns
(individually and collectively, the "Grossman Parties"), and hold the Grossman
Parties forever harmless, from and against, and reimburse the Grossman Parties
for, any and all obligations, claims, demands, causes of action, liabilities,
losses, damages, judgments, penalties and costs and expenses (including, without
limitation, court costs and attorneys' fees and expenses) which may be imposed
upon, asserted against or incurred or paid by the Grossman Parties, or for which
the Grossman Parties may become obligated or liable, by reason of, on account of
or in connection
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with ____________'s, and its employees', agents' and independent contractors'
access to, entry upon or use of the Property, including, without limitation, any
such liabilities, obligations, claims, damages, penalties, causes of action,
costs and expenses by reason of (i) any injury to or death of persons or loss of
or damage to property, or (ii) the performance of any labor or services for the
account or benefit of ____________ with respect to Property, or (iii) the
release, escape, discharge, emission, spillage, seepage or leakage in, on, under
or about the Property of any Hazardous Substances which result directly from
____________'s and/or ____________'s employee's, agent's or contractor's access
to, entry upon or use of the Property or ____________'s or its employees',
agents' or contractors' negligent or intentional mishandling or misuse of
Hazardous Substances existing on the Property or brought upon the Property by
Grossman or third parties, other than with respect to Grossman's obligations
pursuant to paragraph 5.1(e) hereof during the Permitting Period. The foregoing
notwithstanding, ____________ shall not be responsible during its due diligence
for the discovery or disburbance of Hazardous Substances existing upon the
Property as a result of the actions of Grossman or third parties. In exercising
its rights under this paragraph 3.7, ____________ shall not unreasonably
interfere with the operation of the Property or with any business being
conducted thereon. Promptly after completion of such test, inspection,
evaluation and/or survey, ____________ shall restore the Property to the
condition that it was in immediately prior to the commencement thereof. The
obligations and indemnity of ____________ set forth in this paragraph 3.7 shall
survive the Closing and the delivery of the Deed or any expiration or
termination of this Agreement.
3.8 MEMORANDUM OF AGREEMENT OF PURCHASE. As of the commencement of the
Permitting Period (i) Grossman shall execute and deliver to ____________ the
"Memorandum Notice of Purchase and Sale Agreement", in the form attached hereto
as Exhibit E, which ____________ may cause to be recorded in the Registry of
Deeds for Norfolk County, and (ii) ____________ shall execute and deliver to
Escrow Agent a termination of such Memorandum Notice of Purchase and Sale
Agreement, which Escrow Agent shall, upon termination of this Agreement, deliver
to Grossman for recording with the Registry of Deeds for Norfolk County.
ARTICLE 4
NECESSARY APPROVAL COSTS
4.1 NECESSARY APPROVAL COSTS. During, but not prior to the commencement
of the Permitting Period, ____________ shall expeditiously and with reasonable
due diligence, seek and prosecute any and all applications for Necessary
Approvals, including the taking of any appeals from the denial of any such
Necessary Approvals. Grossman shall, at no cost or expense to Grossman, assist
____________ in its efforts to obtain all such Necessary Approvals, and Grossman
shall furnish, execute, acknowledge and deliver such instruments and take such
actions as ____________ may reasonably request from time to time in order to
obtain such Necessary Approvals or to otherwise facilitate the terms of this
Agreement. ____________ shall be responsible for the payment of all costs
incurred in pursuing such Necessary Approvals and shall expend in the exercise
of due diligence up to One Million and No/100 Dollars ($1,000,000) for costs
which shall include, but not be limited to, traffic studies, environmental
impact reports, ecological or biological studies, surveys, engineering drawings,
travel and related costs, document preparation and review, fees and costs of
attorneys and consultants, but not including any in-house administrative or
overhead costs of ____________ (collectively the "Necessary Approval Costs").
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4.2 NECESSARY APPROVAL COSTS IN EXCESS OF ONE MILLION AND NO/100 DOLLARS
($1,000,000). In the event that the Necessary Approval Costs incurred by
____________ in seeking such Necessary Approvals shall equal or exceed One
Million and No/100 Dollars ($1,000,000), ____________ shall notify Grossman in
writing specifying in detail the expenditure of the Necessary Approval Costs
("____________'s Notice") and Grossman shall have the option (in order to
preserve Grossman's right of specific performance provided pursuant to the terms
of paragraph 8.1 hereunder) by written notice to ____________ given within
thirty (30) days following ____________'s Notice ("Grossman's Notice"), to
decline or to make payment of such additional Necessary Approval Costs in excess
of One Million and No/100 Dollars ($1,000,000). In the event that Grossman does
not elect to fund such additional Necessary Approval Costs in excess of One
Million and No/100 Dollars ($1,000,000), ____________ shall have the right, in
or within thirty (30) days following Grossman's Notice, to either (i) terminate
this Agreement by written notice to Grossman, whereupon this Agreement shall be
deemed terminated, null and void and without further recourse to either Party,
provided, however, that the deposit made by ____________ in the amount of
$200,000 shall be deemed to be the sole property of Grossman, or (ii) pay such
additional Necessary Approval Costs required to obtain all such Necessary
Approvals.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF GROSSMAN
5.1 REPRESENTATIONS AND WARRANTIES OF GROSSMAN. Grossman hereby
represents and warrants to and agrees with ____________ as of the date hereof
and as of the Closing as follows:
(a) GOOD STANDING. Grossman is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware;
and Grossman has the power to own its property and assets and carry on its
business in the Commonwealth of Massachusetts.
(b) DUE AUTHORITY. The execution of this Agreement and the
consummation of the transactions contemplated herein have been duly authorized
by its board of directors and constitutes the binding obligation of Grossman and
in conformance with its articles of incorporation and corporate by-laws. All
documents that are to be executed by Grossman and delivered to ____________ on
the Closing have been, or on the Closing Date, will be duly executed, authorized
and delivered by Grossman. The transfer and delivery by Grossman of the Property
to ____________ as provided hereunder and the execution of the other agreements
contemplated herein will not conflict with or result in the breach (which breach
will affect Grossman's ability to perform hereunder) of any of the terms of any
agreement or instrument to which Grossman is a party or by which it is or may be
bound or constitute a default thereunder, or violate any state or federal
governmental law, statute, ordinance or regulation. No consent of any third
party is required in order for Grossman to enter into or be bound by this
Agreement.
(c) LITIGATION. Grossman is not involved in, nor aware of, any
pending or threatened litigation which does or may affect the Property and there
are no actions or proceedings pending or threatened against Grossman before any
court or administrative agency in any way connected with the Property.
(d) FOREIGN CORPORATION - WITHHOLDING. Grossman is not a foreign
corporation, foreign partnership, foreign trust or foreign estate (as defined in
the Internal Revenue Code) and consequently ____________ need not withhold any
portion of the Purchase Price as provided in Section 1445 of the Internal
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Revenue Code and Grossman will so certify upon the Close of Escrow.
(e) PERMITTING PERIOD - HAZARDOUS SUBSTANCES CONTAMINATION.
Grossman shall, from and after the commencement of the Permitting Period through
the date of Closing comply with the terms of the Business Operations Plan to be
attached hereto as Exhibit D following the Date of Execution. The Parties shall,
following the Date of Execution, use best efforts to negotiate and enter into
the Business Operations Plan within thirty (30) days of the Date of Execution,
failing which either Party may, by written notice to the other, terminate this
Agreement, whereupon this Agreement shall be deemed null and void and without
recourse to either Party hereto. In the event that during the Permitting Period
through the Closing Date, Hazardous Substances shall be released or discharged,
in, on, under or about the Property in violation of Environmental Law (except
such release or discharge of Hazardous Substances on the Property as provided in
paragraph 3.7(iii), which shall be the sole responsibility of ____________),
Grossman shall (i) notify ____________ with respect to such Hazardous Substances
contamination of the Property, (ii) undertake, in the exercise of reasonable
diligence, to remediate such Hazardous Substances in compliance with
Environmental Law and with the Plan and Timetable, (iii) advise ____________
from time to time as necessary in order that ____________ may be fully informed
as to the status of such Hazardous Substances contamination of the Property, and
(iv) notify ____________ in advance of any meeting with governmental officials
with respect to such Hazardous Substances in sufficient time in order to permit
____________ to attend and participate in such meeting and in the development
and final approval of any plan and timetable (the "Plan and Timetable")
providing for remediation of such Hazardous Substances in compliance with
Environmental Law (collectively the "Hazardous Clean Up"), provided, however,
that Grossman shall not be obligated to expend for such Hazardous Clean Up an
amount in excess of Two Million and No/100 Dollars ($2,000,000). In the event
that the Hazardous Clean Up shall not be completed by the Closing Date, the
Closing Date may be extended for a period of one hundred twenty (120) days, or
such lesser or reasonable further period of time as determined by ____________
in its sole discretion for Grossman to expeditiously and with all reasonable
diligence to complete the Hazardous Clean Up in compliance with the Plan and
Timetable. If at the end of such extension of the Closing Date (as determined by
____________) the Hazardous Clean Up shall not have been completed in compliance
with Environmental Law, ____________, by notice to Grossman on the Closing Date
as extended, shall elect either to (x) terminate this Agreement, whereupon this
Agreement shall be deemed terminated, null and void and without further recourse
to either Party, provided, however, the deposit made by ____________ in the
amount of Two Hundred Thousand and No/100 Dollars ($200,000) shall be deemed the
sole property of Grossman, or (y) proceed with the Closing on the Closing Date
as extended, provided, however, that ____________ may withhold from the Purchase
Price and pay over to Escrow Agent, such sum, not to exceed Five Million and
No/100 Dollars ($5,000,000), as ____________, in consultation with Grossman,
shall reasonably determine necessary to complete the Hazardous Clean Up in
compliance with Environmental Law (the "Hazardous Clean Up Escrow Fund").
Grossman shall, expeditiously and using all reasonable diligence, complete the
Hazardous Clean Up and shall inform ____________ in writing on a regular and
continuing basis as to Grossman's progress in completing the Hazardous Clean Up
in accordance with all Environmental Law. Upon completion of the Hazardous Clean
Up, Grossman, upon notice to ____________ and Escrow Agent, shall be entitled to
a release of the Hazardous Clean Up Escrow Funds, together with interest
accumulated thereon. In the event that Grossman, following the Closing Date,
shall fail to use reasonable and continuing efforts to complete the Hazardous
Clean Up, ____________ may, following fifteen (15)
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days notice to Grossman, undertake to complete the Hazardous Clean Up, and in
such event, ____________ may, upon notice to Grossman and Escrow Agent, use such
or all of the Hazardous Clean Up Escrow Funds as necessary to complete the
Hazardous Clean Up with reasonable diligence and in compliance with
Environmental Law, and upon completion of the Hazardous Clean Up by
____________, Escrow Agent shall deliver the balance of the Hazardous Clean Up
Escrow Funds, if any, together with interest thereon, to Grossman.
With respect to such release or discharge of Hazardous Substances in, on,
under or about the Property in violation of Environmental Law occurring during
the Permitting Period through the Closing Date, whether or not caused by, or
within the control of, Grossman (except such release or discharge of Hazardous
Substances on the Property as provided in paragraph 3.7(iii), which shall be the
sole responsibility of ____________), Grossman shall indemnify, defend and hold
____________ harmless from and against any and all losses, liabilities, damages,
injuries, penalties, fines, costs, expenses (except for such investigation,
permitting and due diligence expenses previously incurred by ____________ with
respect to its due diligence examination of the Property) and claims of any and
every kind whatsoever (including attorney's fees and costs) paid, incurred or
suffered by, or asserted against ____________ as a result of any claim, demand
or judicial or administrative action by any person or entity, including costs,
expenses or claims asserted or arising under Environmental Law, or any other
federal, state or local statute, law, ordinance, code, rule, regulation, order
or decree regulating, relating to or imposing liability or standards on conduct
concerning any Hazardous Substances. The representations, warranties and
indemnities contained in this paragraph 5.1(e) shall survive the Close of Escrow
and the delivery of the Deed or any expiration or termination of this Agreement.
Grossman hereby grants ____________, its employees, agents, and consultants a
license for access over and through the Property for purposes of insuring
compliance with the terms of this paragraph 5.1(e).
5.2 INDEMNIFICATION FOR THIRD PARTY CLAIMS ARISING OUT OF GROSSMAN'S
OWNERSHIP OF THE PROPERTY. Grossman agrees to indemnify, protect and save
____________, and its respective directors, officers, shareholders, employees,
affiliates, attorneys, agents, successors and assigns (individually and
collectively, the "____________ Parties") and hold the ____________ Parties
forever harmless, from and against, and reimburse the ____________ Parties for,
any and all obligations, claims, demands, causes of actions, liabilities,
losses, damages, judgments, penalties and costs and expenses (including, without
limitation, court costs and attorneys' fees and expenses) which may be imposed
upon, asserted against or incurred or paid by the ____________ Parties, or for
which the ____________ Parties may become obligated or liable to any third
party, by reason of, on account of or in connection with Grossman's ownership of
the Property prior to the Closing Date other than with respect to ____________'s
obligations pursuant to paragraphs 3.7, 5.3, 8.4 and 10.1. The provisions of
this paragraph 5.2 shall survive the Closing and the delivery of the Deed or any
expiration or termination of this Agreement.
5.3 NEGATIVE COVENANTS - GROSSMAN. Grossman has, or may prior to the
Closing Date, provide and deliver to ____________ various documents, records,
inspection reports, surveys, title commitments, boring studies, etc. which may
pertain to the Property (collectively "Grossman Records"). All Grossman Records
delivered to ____________ are for ____________'s convenience only and
____________ acknowledges that the Grossman Records are delivered to
____________ without representation, warranty, covenant or agreement of any kind
or nature by Grossman including, without limitation, the accuracy or degree of
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completion of such Grossman Records, and ____________ specifically acknowledges
that ____________'s use and reliance in any manner upon such Grossman's Records
is at ____________'s sole risk and undertaking. The provisions of this paragraph
5.3 shall survive the Closing and the delivery of the Deed or any expiration or
termination of this Agreement.
5.4 GROSSMAN'S RELIANCE. Grossman acknowledges that Grossman's
representations and warranties are a material inducement to ____________ in
executing and delivering this Agreement.
5.5 PERFORM NECESSARY ACTS. Grossman shall use all reasonable efforts to
complete the transactions herein contemplated and Grossman shall, from time to
time, either prior to or following the Closing Date, execute, acknowledge and
deliver such documents and perform such acts as may be reasonably necessary to
carry out the purposes and intent of this Agreement.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF ____________
6.1 REPRESENTATIONS AND WARRANTIES OF ____________. ____________ hereby
represents and warrants to and agrees with Grossman as of the date hereof and as
of the Closing as follows:
(a) GOOD STANDING. ____________ is a corporation duly organized,
validly existing and in good standing under the laws of the State of Michigan;
and ____________ has the power to own its property and assets and is licensed as
a foreign corporation to carry on its business in the Commonwealth of
Massachusetts.
(b) DUE AUTHORITY. The execution of this Agreement and the
consummation of the transactions contemplated herein, including the payment of
the Purchase Price by ____________ in consideration for delivery of the Deed of
the Property by Grossman, have been duly authorized by its board of directors
and constitutes the binding obligation of ____________ and in conformance with
its articles of incorporation and corporate by-laws. All documents that are to
be executed by ____________ and delivered to Grossman on the Closing have been,
or on the Closing Date, will be duly executed, authorized and delivered by
____________. The transfer and delivery by Grossman of the Property to
____________ as provided hereunder and the execution of the other agreements
contemplated herein will not conflict with or result in the breach (which breach
will affect ____________'s ability to perform hereunder) of any of the terms of
any agreement or instrument to which ____________ is a party or by which it is
or may be bound or constitute a default thereunder, or violate any state or
federal governmental law, statute, ordinance or regulation. No consent of any
third party is required in order for ____________ to enter into or be bound by
this Agreement.
(c) LITIGATION. ____________ is not involved in, nor aware of, any
pending or threatened litigation which does or may affect the Property and there
are no actions or proceedings pending or threatened against ____________ before
any court or administrative agency in any way connected with the Property.
6.2 CONVEYANCE OF PROPERTY "AS IS". ____________ hereby agrees,
acknowledges and represents that neither Grossman nor any person or party on
behalf of Grossman has made any representation, warranty or covenant, express,
implied or statutory, of any kind whatsoever upon which ____________ has relied
in entering into this Agreement or upon which ____________ shall rely in
consummating the transaction contemplated by this Agreement (except as set forth
in this Agreement). ____________ further agrees, acknowledges and represents to
Grossman that,
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subject to the terms and conditions of this Agreement, (i) ____________ during
the Confidential Investigation Period, shall examine the Property and fully
satisfy itself with respect to the Property and the condition and all other
aspects and attributes of the Property; and (ii) ____________ is purchasing and
shall, on the Closing Date, accept the Property in "as is", "where is" and "with
all defects" condition, without any representation, warranty or covenant,
express, implied or statutory, of any kind whatsoever, other than with respect
to Grossman's obligations set forth in paragraphs 5.1(e), 5.2, 6.6, 8.4 and
10.1. The provisions of this paragraph 6.2 shall survive the Closing and the
delivery of the Deed or any expiration or termination of this Agreement.
6.3 ____________'S CLAIMS REGARDING THE PROPERTY. ____________ further
agrees, acknowledges and represents that ____________ is entering into this
Agreement and shall perform all of its obligations hereunder and consummate the
transaction contemplated by this Agreement solely in reliance on and as a result
of ____________'s own investigations and efforts (including ____________'s
inspection of the Property and such other investigations, examinations and
inspections as ____________ has chosen to make or has made) and at
____________'s sole risk, cost and expense, including, without limitation, the
risk that ____________'s inspection of the Property and such other
investigations, examinations and inspections may not reveal any or all adverse
or existing conditions, aspects or attributes of the Property. ____________
acknowledges that Grossman has afforded, and, during the Confidential
Investigation Period and the Permitting Period, shall afford ____________ the
opportunity for full and complete investigation, examination and inspection of
the Property. ____________ acknowledges that this paragraph 6.3 was a negotiated
part of this Agreement and serves as an essential component of consideration for
the same. Without limiting the generality of the foregoing, the Parties
specifically acknowledge that ____________ has had, and during the Confidential
Investigation Period and the Permitting Period shall have an opportunity to
fully inspect the Property, including, but not limited to, the physical
condition of the Property (including all environmental concerns and compliance
with all Environmental Law), and the Purchase Price has been negotiated to
eliminate all claims, whether known or unknown, relating to the condition of the
Property and all aspects and attributes thereof, including, without limitation,
all environmental matters, except with respect to Grossman's obligations
pursuant to paragraph 5.1(e) hereof. Consequently, this paragraph 6.3 bars all
claims, whether or not presently known, brought by ____________ following the
Closing Date concerning the condition of the Property and all aspects and
attributes thereof, specifically including, without limitation, all claims
pursuant to Environmental Law, any other federal, state or local environmental
law, rule or regulation or otherwise, except with respect to Grossman's
obligations pursuant to paragraph 5.1(e). Notwithstanding the Parties' intent
that all such claims be barred, should a court of competent jurisdiction deem
otherwise, the presence of this paragraph 6.3 is intended by the Parties to
serve, and shall serve, as the primary factor in any equitable apportionment of
damages in claims between ____________ and Grossman under Environmental Law or
any other federal, state or local environmental law, rule or regulation or
otherwise, and provided further that notwithstanding the provisions of this
paragraph 6.3, it is not intended that ____________ indemnify, protect and save
the Grossman Parties harmless from and against obligations, claims, demands,
causes of actions, liabilities, losses, damages, judgments, penalties and costs
and expenses imposed upon or asserted against the Grossman Parties by any third
party. The provisions of this paragraph 6.3 shall survive the Closing and the
delivery of the Deed or any expiration or termination of this Agreement.
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6.4 INDEMNIFICATION FOR THIRD PARTY CLAIMS ARISING OUT OF ____________'S
OWNERSHIP OF THE PROPERTY. ____________ agrees to indemnify, protect and save
the Grossman Parties, and hold the Grossman Parties forever harmless, from and
against, and reimburse the Grossman Parties for, any and all obligations,
claims, demands, causes of actions, liabilities, losses, damages, judgments,
penalties and costs and expenses (including, without limitation, court costs and
attorneys' fees and expenses) which may be imposed upon, asserted against or
incurred or paid by the Grossman Parties, or for which the Grossman Parties may
become obligated or liable to any third party, by reason of, on account of or in
connection with ____________'s (or its successor's) ownership of the Property
from and after the Closing Date, other than with respect to Grossman's
obligations pursuant to paragraphs 5.1(e), 6.6, 8.4 and 10.1. The provisions of
this paragraph 6.4 shall survive the Closing and the delivery of the Deed or any
expiration or termination of this Agreement.
6.5 RELEASE - HAZARDOUS SUBSTANCES. Other than with respect to such
Hazardous Substances released or discharged in, on, under or about the Property
in violation of Environmental Law as referred to in paragraph 5.1(e) hereof,
____________ shall and does hereby release the Grossman Parties from any and all
obligations, claims, demands, causes of action, liabilities, losses, damages,
judgments, penalties and costs and expenses (including, without limitation,
court costs and attorneys' fees and expenses) sought by ____________ against
Grossman by reason of, on account of, or in connection with (i) any violation or
alleged violation of any Environmental Law or any proceedings related thereto,
(ii) the presence of any Hazardous Substances, in, on, under or about all or any
part of the Property, (iii) any actual or threatened release, discharge,
spillage, seepage or filtration of any Hazardous Substances in, on, under, about
or from the Property, (iv) the generation, manufacture, refining, production,
processing, treatment, storage, handling, transportation, transfer, use or
disposal of any Hazardous Substances in, on, under, about or from all or any
part of the Property, and (v) any threatened, proposed or actual cleanup or
other protective, removal or remedial action relating to any Hazardous
Substances, whether pursuant to any Environmental Law or otherwise. The
provisions of this paragraph 6.5 shall survive the Closing and the delivery of
the Deed or any expiration or termination of this Agreement.
6.6 NEGATIVE COVENANTS - ____________. ____________ has, or may prior to
the Closing Date, provide and deliver to Grossman various documents, records,
inspection reports, surveys, title commitment, boring studies, etc. which may
pertain to the Property (collectively "____________ Records"). All ____________
Records delivered to Grossman are for Grossman's convenience only and Grossman
acknowledges that the ____________ Records are delivered to Grossman without
representation, warranty, covenant or agreement of any kind or nature by
____________ including, without limitation, the accuracy or degree of completion
of such ____________ Records, and Grossman specifically acknowledges that
Grossman's use and reliance in any manner upon such ____________'s Records is at
Grossman's sole risk and undertaking. The provisions of this paragraph 6.6 shall
survive the Closing and the delivery of the Deed or any expiration or
termination of this Agreement.
6.7 ____________'S RELIANCE. ____________ acknowledges that
____________'s representations and warranties are a material inducement to
Grossman in executing and delivering this Agreement.
6.8 PERFORM NECESSARY ACTS. ____________ shall use all reasonable
efforts to complete the transactions herein contemplated and ____________ shall,
from time to time, either prior to or following the Closing Date, execute,
acknowledge and
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deliver such documents and perform such acts as may be reasonably necessary to
carry out the purposes and intent of this Agreement.
ARTICLE 7
CASUALTY
7.1 CASUALTY - DAMAGE TO IMPROVEMENTS. If, prior to the Closing Date,
all or any portion of the Improvements is damaged or destroyed by fire or other
casualty, Grossman may, in Grossman's sole discretion, undertake to repair such
damage or replace such Improvements, all in compliance with applicable law,
including zoning and building codes then in effect. If Grossman shall determine,
in Grossman's sole discretion, not to restore, or partially restore, any such
Improvement damaged by fire or casualty, Grossman shall, at Grossman's sole cost
and expense, prior to Closing, remove and demolish such damaged or destroyed
Improvement, other than portions of such Improvements restored or partially
restored. All proceeds of fire or casualty insurance paid or payable by reason
of damage or destruction to any such Improvement shall be the sole property of
Grossman. ____________ shall have no right to terminate this Agreement or
postpone or extend the Closing Date, nor shall the Purchase Price be reduced as
a result of any damage, destruction or subsequent demolition or removal of any
Improvement.
ARTICLE 8
ESTABLISHMENT OF ESCROW/CLOSING DATE/PRORATIONS/EXTENSION
8.1 ESCROW AND CLOSING DATE. Upon execution of this Agreement by both
Parties, the Parties shall open an escrow with Lawyers Title Insurance
Corporation (225 Franklin Street, Boston, MA 02110 ATTN: Kevin T. Creedon)
("Escrow Agent") in order to consummate the purchase in accordance with the
terms and provisions hereof. The provisions hereof shall constitute joint
instructions to the Escrow Agent; provided, however, that the Parties shall
execute such additional instructions as requested by the Escrow Agent not
inconsistent with the provisions hereof. Said escrow instructions shall provide
for closing by recordation of a Deed from Grossman to ____________, and delivery
of other documents and performance of other conditions required by this
Agreement, on or before the date seven hundred thirty (730) days after the
expiration of the Confidential Investigation Period, or such extended period or
adjustment as this Agreement may, pursuant to its terms, be extended or adjusted
pursuant to paragraphs 3.2, 5.1(e) and 8.2, said date being the day of the
"Close of Escrow" or "the Closing Date". Upon the Close of Escrow, the Two
Hundred Thousand and No/100 Dollars ($200,000) deposit paid by ____________ to
Grossman hereunder, together with any deposit(s) held by Escrow Agent, and
interest thereon, shall be credited against the balance of the Purchase Price
and shall be paid to Grossman. If the Closing Date falls on a Saturday, Sunday
or legal holiday, then, in such event, the Closing Date shall be automatically
extended to the next following business day.
8.2 ADJUSTMENT OF CLOSING DATE/VACATION PERIOD. Notwithstanding the
provisions of paragraph 8.1, the Closing Date may be adjusted in accordance with
the following: Upon ____________'s receipt of the Necessary Approvals pursuant
to paragraph 3.4, ____________ shall deposit in escrow that amount which,
together with the Two Hundred Thousand and No/100 Dollars ($200,000) deposit
paid by ____________ to Grossman pursuant to paragraph 2.3(a) hereof, equals ten
percent (10%) of the Purchase Price (the "Closing Deposit"). Grossman shall,
subsequent to ____________'s delivery in escrow of the Closing Deposit, have a
period of time not to exceed one hundred eighty (180) days to vacate the
Property (the "Vacation Period"). The Closing Date shall occur upon expiration
of the Vacation Period, unless
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Grossman shall have vacated the Property prior to the expiration of the Vacation
Period, in which event the Closing Date shall occur fifteen (15) business days
following such vacation of the Property. Grossman agrees to use its reasonable
efforts vacate the Property as early as possible during the Vacation Period in
order to facilitate an early Closing.
8.3 DEED - POSSESSION. On the Closing Date, Grossman shall convey fee
title to the Property to ____________ by Deed, whereupon Grossman shall deliver
and ____________ shall accept quiet and peaceable possession of the Property.
8.4 PRORATIONS AND EXPENSES. The following items shall be prorated as of
the Closing Date:
(a) TAXES/BETTERMENTS. Taxes, including Betterment Assessments
payable in installments, on the basis of the tax year for which assessed. If the
Closing Date shall occur before a tax rate and assessment for the Property is
established for the tax year in which the Closing occurs, the apportionment of
taxes shall be upon the basis of the then known assessment or rate, with the
unknown factor based upon the item from the immediately preceding tax year,
except that at such time as the tax rate and applicable assessed valuation are
determined, the Parties shall make a further apportionment, if and to the extent
so required. If, on the Closing Date, the Property, or any part thereof, shall
be or shall have been affected by a Betterment Assessment or Betterment
Assessments, which are or may become payable in installments, then for the
purpose of this Agreement all the unpaid installments of any such Betterment
Assessment, which are to become due and payable after the Closing Date shall be
assumed by ____________ without abatement of the Purchase Price, but shall be
subject to adjustment in the same manner as real estate taxes for the tax period
in which the Closing occurs. If any Betterment Assessments for public
improvements shall arise subsequent to the execution hereof, and prior to the
Closing Date, Grossman will elect to cause the same to be paid over the longest
period allowed by law, subject to the proration set forth herein, if such
election must be made before the Closing Date.
(b) WATER/SEWER/GOVERNMENTAL CLAIMS. Water meter, sewer charges,
and other governmental charges which constitute liens upon the Property, in
accordance with the amounts fixed with respect thereto in an official reading
made as of the Closing Date.
(c) ELECTRIC, GAS. Electric current and gas and subject to
paragraph 8.5, any deposits made in connection therewith, except that Grossman
will cause utility readings to be made, if possible, as of the Closing Date, to
avoid the necessity of re-apportioning the same when the bills are finally
received;
(d) DOCUMENTARY STAMPS AND RECORDING FEES. Grossman shall pay the
cost of any documentary transfer tax including, but not limited to, excise tax
stamps levied in accordance with requirements of lawful authority. ____________
and Grossman shall each pay one-half of the escrow fee. ____________ shall pay
for the recording of the Deed and the Grossman Mortgage. ____________ shall
receive credit against the Purchase Price for the deposit and any interest
accumulated upon funds in escrow prior to the Close of Escrow.
The provisions of this paragraph 8.4 shall survive the Closing and delivery of
the Deed.
8.5 UTILITY DEPOSITS. ____________ shall make ____________'s own utility
company deposits and Grossman shall be entitled to reclaim any utility deposits,
with interest, if any, made or assumed by Grossman. In the event any such
deposits and interests cannot be refunded to Grossman and can be credited to
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or assumed by ____________, Grossman shall assign all rights thereto to
____________, at the Closing, and ____________ shall pay Grossman the full
amount of such deposit with interest, if any, owed by the utility company, to
the Closing Date.
ARTICLE 9
DEFAULT
9.1 DEFAULT. In the event of any default by Grossman hereunder,
____________ may, at its option, elect to seek specific performance to enforce
the terms of this Agreement, or demand, and be entitled to, an immediate refund
in full of the $200,000 paid by ____________ to Grossman, together with any
deposit held by Escrow Agent and interest thereon, in full termination of this
Agreement. In the event of any default by ____________ hereunder during the
Confidential Investigation Period of the confidentiality provisions of paragraph
11.1, ____________ and Grossman agree that the actual damages, including any
attorney's fees and any damage for withdrawing the Property from the market for
____________'s default, as aforesaid, would be extremely difficult to measure,
and that the amount of Two Hundred Thousand and No/100 Dollars ($200,000) is a
reasonable estimate of such damages, and Grossman shall be paid that amount as
its sole right to damages or other relief. In the event of any default by
____________ hereunder subsequent to the expiration of the Confidential
Investigation Period, Grossman may, at its option, elect to seek specific
performance to enforce the terms of this Agreement, or demand, and be entitled
to, an immediate payment in full of all deposits hereunder, together with
interest thereon, in full termination of this Agreement.
ARTICLE 10
BROKERS - SURVIVAL AND WAIVER
10.1 BROKERS. Other than with respect to brokerage services and fees due
to present or prior employees of The Woodmont Companies which shall be the sole
responsibility and obligation of ____________ and not of Grossman, each Party
mutually represents and warrants to the other that it has not dealt with and is
not obligated to pay any fees or commissions to any broker in connection with
the consummation of the transactions contemplated by this Agreement, and each
Party shall indemnify and hold the other harmless against any and all
commissions, fees, costs or expenses, including reasonable attorney's fees,
arising out of the breach of the representations and warranties contained in
this paragraph 10.1. The provisions of this paragraph 10.1 shall survive the
Closing and delivery of the Deed. Unless otherwise specified herein, all other
covenants, representations, warranties and agreements of the Parties hereto
shall terminate and not survive the Close of Escrow.
10.2 SURVIVAL AND WAIVER. The acceptance by ____________ of the Deed on
the Closing Date shall be deemed full performance and discharge of each and
every agreement and obligation on the part of Grossman hereunder to be
performed, and any and all agreements, representations and warranties of
Grossman contained in this Agreement shall not survive the Closing Date, unless
otherwise expressly provided in this Agreement, or by the terms hereof are to be
thereafter completed or performed. If a provision is specified as surviving the
Closing Date, such survival shall expire only as therein specified, or by
operation of law, if no other expiration date is given.
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ARTICLE 11
CONFIDENTIALITY
11.1 CONFIDENTIALITY. ____________ acknowledges and agrees that this
Agreement and any publicity during the Confidential Investigation Period with
respect to the consummation of the transactions contemplated hereby will result
in serious and irreparable damage to Grossman. Accordingly, ____________ agrees
(i) that it will not formally announce that it has entered into a written
agreement to purchase the Property, and (ii) that it will use commercially
reasonable efforts to ensure that ____________, its affiliates, agents,
advisors, employees and representatives shall preserve the confidentiality of
the terms of this Agreement. The foregoing notwithstanding, (x) during the
Confidential Investigation Period, ____________ and its affiliates, agents,
advisors, employees and representatives may disclose to third parties only such
information regarding this Agreement as shall be required in order to secure the
items described in paragraph 3.1 above, and (y) during the Permitting Period,
____________ and its affiliates, agents, advisors, employees and representatives
may disclose to third parties only such information regarding this Agreement as
shall be required in order to secure the Necessary Approvals. In no event shall
there be a disclosure prior to the Closing Date of the Purchase Price.
ARTICLE 12
NOTICES
12.1 NOTICES. All notices, consents, requests, approvals, demands and
other communications hereunder shall be in writing and shall be deemed to have
been duly given if mailed by registered or certified mail with postage prepaid,
or deposited, prepaid, with an overnight receipted delivery service, in each
case, addressed as follows:
(a) If to Grossman, to: Grossman's Inc.
200 Union Street
Braintree, MA 02184
Attention: Executive Vice
President - Real Estate
With a copy to: Andrew C. Culbert, Esquire
Masterman, Culbert & Tully
One Lewis Wharf
Boston, MA 02110
(b) If to ____________, to: ____________ Corporation
With a copy to: Dickinson, Wright, Moon,
Van Dusen & Freeman
525 North Woodward Avenue
Bloomfield, MI 48013
Attention: Margaret Van Meter,
Esquire
or to such other addresses as shall be furnished in writing by either Party to
the other. All such communications shall be deemed delivered as of the date of
receipt by the recipient.
ARTICLE 13
MISCELLANEOUS
13.1 COUNTERPARTS. This Agreement may be executed in one or more
counterparts and shall become effective when one or more counterparts have been
signed by all of the Parties; each
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counterpart shall be deemed an original but all counterparts shall constitute a
single instrument.
13.2 ASSIGNMENT. This Agreement shall not be assigned by either Party
without the prior written consent of the other Party hereto which consent may be
withheld by such other Party at its sole discretion, and no assignment of this
Agreement by any Party hereto shall relieve it of its obligations hereunder.
Subject to the foregoing, this Agreement shall be binding upon the successors
and assigns of the Parties hereto.
13.3 TIME OF THE ESSENCE/DEADLINES. Time is of the essence in the
performance of the respective obligations of the Parties contained in this
Agreement. If the last day of the time period for giving any notice or taking
any action required under this Agreement falls on a Saturday, Sunday or legal
holiday, the time period for giving such notice or taking such action shall be
extended through the next business day following the original expiration date of
such period.
13.4 ENTIRE AGREEMENT/WRITTEN MODIFICATION. This Agreement, together with
all exhibits or schedules attached hereto, represents the entire agreement
between the Parties covering everything agreed upon or understood in this
transaction and supersedes all other agreements and understandings between the
Parties and their respective officers, directors, employees and/or
representatives. There are no oral promises, conditions, representations,
understandings, interpretations or terms of any kind as conditions or
inducements to the execution hereof or in effect between the parties. No change
or addition can be made to this Agreement except by a written agreement executed
by the Parties.
13.5 GOVERNING LAW. This Agreement and the rights and obligations of the
Parties shall be governed by and construed in accordance with the internal laws
of the Commonwealth of Massachusetts without application of conflict of law
principles.
13.6 CONSENT TO JURISDICTION, ETC. The Parties agree that any legal
action or proceeding with respect to this Agreement shall be brought in the
courts of the Commonwealth of Massachusetts or the United States District Court
for the Eastern District of Massachusetts, sitting in Boston, Massachusetts, and
by execution and delivery of this Agreement, the Parties accept for themselves
and in respect of their property, generally and unconditionally, the
jurisdiction of the aforesaid courts. The Parties irrevocably consent to the
service of process out of any of the aforementioned courts in any such action or
proceeding by the mailing or delivery of copies thereof as provided in paragraph
12.1 (Notice), such service to become effective thirty (30) days after such
mailing. Nothing herein shall affect the right to serve process in any other
manner permitted by law. Except to the extent prohibited by law which cannot be
waived, each Party hereto waives trial by jury in connection with any action or
proceeding of any nature whatsoever arising under, out of, or in connection with
this Agreement and in connection with any claim, counterclaim, offset or defense
arising in connection with such action or proceeding, whether arising under
statute (including any federal or state constitution) or under the law of
contract, tort or otherwise and including, without limitation, any challenge to
the legality, validity, binding effect or enforceability of this paragraph 13.6,
or this Agreement.
13.7 DUE AUTHORITY. The individuals signing below represent that they
have the requisite authority to bind the entities on whose behalf they are
signing, as indicated by the corporate vote or certificate of corporate
secretary attached hereto.
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<PAGE> 19
13.8 HEADINGS. The descriptive headings of the Articles and paragraphs of
this Agreement are inserted for convenience only and shall not control or affect
the meaning or construction of any of the provisions hereof.
13.9 DRAFTS. This Agreement shall not be binding or effective until
properly executed and delivered by the Parties.
13.10 CONSTRUCTION. The Parties acknowledge that each Party and its
counsel have reviewed and revised this Agreement and that the normal rule of
construction to the effect that any ambiguities are to be resolved against the
drafting Party shall not be employed in the interpretation of this Agreement or
any amendments or exhibits hereto.
13.11 EXPENSES. Except as otherwise provided with respect to the
Necessary Approval Costs in excess of $1,000,000, all expenses incurred by the
Parties in connection with the preparation of this Agreement and the
consummation of the transactions contemplated hereby, including, without
limitation, fees and disbursements of attorneys, engineers, agents and experts,
shall be for the account of the Party incurring the same, except as specifically
provided for herein.
13.12 NUMBER AND GENDER. As used in this Agreement, the masculine shall
include the feminine and neuter, the singular shall include the plural and the
plural shall include the singular, as the context may require.
13.13 EXHIBITS/SCHEDULES. All the exhibits and schedules attached hereto
are made a part of this Agreement and the terms thereof are incorporated into
this Agreement by reference.
ARTICLE 14
DEFINITIONS
14.1 AGREEMENT means this Agreement for Purchase of Real Estate made and
entered into as of the Date of Execution by and between Grossman and
____________.
14.2 APPROVED FLOOR AREA has the meaning given in paragraph 2.1.
14.3 APPURTENANT RIGHTS has the meaning given in the Recitals, paragraph
B.
14.4 BETTERMENT ASSESSMENT means collectively any tax or assessment
levied by any governmental agency or authority against the Property or any use
being conducted thereon with respect to the construction and maintenance of
improvements by such governmental agency or authority.
14.5 BUSINESS OPERATIONS PLAN has the meaning given in paragraph 5.1(e).
14.6 CLOSE OF ESCROW/CLOSING DATE have the meaning given in paragraph
8.1.
14.7 CLOSING has the meaning given in paragraph 8.1.
14.8 CLOSING DEPOSIT has the meaning given in paragraph 8.2.
14.9 CONFIDENTIAL INVESTIGATION PERIOD has the meaning given in paragraph
2.2(a).
14.10 CONFIDENTIAL INVESTIGATION PERIOD AS EXTENDED has the meaning given
in paragraph 3.2.
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<PAGE> 20
14.11 DATE OF EXECUTION means the latest date of execution hereof by
Grossman and ____________ as set forth on the signature page hereof.
14.12 DEED means a Quitclaim Deed of Grossman conveying title to the
Property in compliance with the Title Commitment.
14.13 ENGINEERING CONDITIONS has the meaning given in paragraph 3.1(d).
14.14 ENVIRONMENTAL ASSESSMENT has the meaning given in paragraph 3.1(b).
14.15 ENVIRONMENTAL CONDITIONS has the meaning given in paragraph 3.1(b).
14.16 ENVIRONMENTAL LAW means, collectively, all applicable statutes,
regulations, rules, ordinances, codes, licenses, permits, orders, approvals,
authorizations and similar items of all governmental agencies, departments,
commissions, boards or instrumentalities of any governmental body exercising
jurisdiction over the existence, use, ownership, occupancy, operation and/or
maintenance of the Property or any business being conducted thereon, and all
applicable judicial and administrative and regulatory decrees, judgments or
orders and all covenants running with the Land that relate to the protection of
health or the environment, including, without limitation:
The Hazardous Materials Transportation Act;
The Resource Conservation and Recovery Act of 1976;
The Clean Air Act;
The Federal Water Pollution Control Act;
The Comprehensive Environmental Response Compensation and Liability Act
of 1980;
The Toxics Substances Control Act;
The Clean Water Act;
The Safe Drinking Water Act;
The Emergency Planning and Community Right to Know Act of 1986;
The National Environmental Policy Act;
The Federal Insecticide, Fungicide and Rodenticide Act;
The Occupational Safety and Health Act;
The Federal Coastal Zone Management Act;
The Massachusetts Environmental Policy Act;
The Massachusetts Clean Air Act;
The Massachusetts Clean Water Act;
The Massachusetts Wetlands Protection Act;
The Massachusetts Hazardous Waste Management Act;
Board of Fire Regulations;
The Massachusetts Oil and Hazardous Materials Release Prevention and
Response Act;
The Massachusetts Right to Know Act;
The Massachusetts Toxic Use Reduction Act;
and all other applicable environmental laws.
14.17 ESCROW AGENT means Lawyers Title Insurance Corporation, 225 Franklin
Street, Boston, MA 02110.
14.18 FINAL APPROVAL shall mean (i) approval by the applicable
governmental agency authorized to grant such Final Approval and expiration of
any and all appeal periods with respect to any such Final Approval without any
appeal being taken or judicial challenge to such Final Approval being filed and
(ii) such Final Approval being subject to only such reasonable conditions as are
reasonably acceptable to ____________.
14.19 FLOOR AREA has the meaning given in paragraph 2.1.
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<PAGE> 21
14.20 GROSSMAN means Grossman's Inc., a Delaware corporation.
14.21 GROSSMAN PARTIES has the meaning given in paragraph 3.7.
14.22 GROSSMAN'S NOTICE has the meaning given in paragraph 4.2.
14.23 GROSSMAN RECORDS has the meaning given in paragraph 5.3.
14.24 GROSSMAN'S TERMINATION NOTICE has the meaning given in paragraph
2.1(a).
14.25 HAZARDOUS CLEAN UP has the meaning given in paragraph 5.1.
14.26 HAZARDOUS CLEAN UP ESCROW FUND has the meaning given in paragraph
5.1(e).
14.27 HAZARDOUS SUBSTANCES means, collectively, any substance (i) the
presence of which requires investigation or remediation under any Environmental
Law, (ii) that is defined as "hazardous waste", "hazardous substance",
"hazardous constituent", "solid waste", or "toxic substance" or "toxic
substance" or language of similar import under any domestic or foreign, federal,
state or local statute, regulation, or ordinance, including, without limitation,
the Environmental Law, (iii) that is toxic, explosive, corrosive, flammable,
infectious, radioactive, carcinogenic, mutagenic or otherwise hazardous and is
regulated by any domestic or foreign governmental authority, agency, department,
commission, board, or instrumentality; (iv) the presence of which in, on, under
or about the Property causes or threatens to cause a nuisance thereon, or to
adjacent properties, or poses, or threatens to pose a hazard to the health or
safety to persons on or about the Property, and (v) the presence of which on
adjacent properties could constitute a trespass by Grossman, (vi) that contains
gasoline, diesel fuel or other petroleum hydrocarbons, or (vii) contains PCBs,
asbestos or urea formaldehyde.
14.28 IMPROVEMENTS has the meaning given in the Recitals.
14.29 INTENDED USE has the meaning given in paragraph 3.4.
14.30 ____________ means ____________ Corporation, a Michigan corporation.
14.31 ____________ ANALYSIS has the meaning given in paragraph 3.1(f).
14.32 ____________ EXTENSION NOTICE has the meaning given in paragraph
3.2.
14.33 ____________'S NOTICE has the meaning given in paragraph 4.2.
14.34 ____________ PARTIES has the meaning given in paragraph 5.2.
14.35 ____________ RECORDS has the meaning given in paragraph 6.6.
14.36 LAND has the meaning given in the Recitals.
14.37 MEMORANDUM NOTICE OF PURCHASE AND SALE AGREEMENT has the meaning
given in paragraph 3.8.
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<PAGE> 22
14.38 NECESSARY APPROVAL COSTS has the meaning given in paragraph 4.1.
14.39 NECESSARY APPROVALS has the meaning given in paragraph 3.4.
14.40 PARTY OR PARTIES has the meaning given in the first paragraph.
14.41 PERMITTING PERIOD has the meaning given in paragraph 3.4.
14.42 PLAN AND TIMETABLE has the meaning given in 5.1(e).
14.43 PROPERTY has the meaning given in the Recitals.
14.44 PURCHASE PRICE has the meaning given in paragraph 2.1.
14.45 SHOPPING CENTER has the meaning given in the Recitals.
14.46 SITE PLAN has the meaning given in paragraph 2.1.
14.47 SURVEY CONDITIONS has the meaning given in paragraph 3.1(c).
14.48 TITLE COMMITMENT has the meaning given in paragraph 3.1(a).
14.49 UTILITY AVAILABILITY has the meaning given in paragraph 3.1(e).
14.50 VACATION PERIOD has the meaning given in paragraph 8.2.
IN WITNESS WHEREOF, each Party hereto has caused this Agreement to be
executed on its behalf by an officer thereunto duly authorized as of the Date of
Execution, which shall be the latest date of execution of this Agreement by
Grossman and ____________.
Date: May ____, 1993 GROSSMAN INC., a Delaware
corporation
a_________________________
By:_______________________
Its:______________________
Date: May _____, 1993 _________________, a ________
corporation
By:_______________________
Its: Vice President
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<PAGE> 23
FIRST AMENDMENT TO AGREEMENT FOR PURCHASE OF REAL ESTATE
First Amendment to Agreement for Purchase of Real Estate ("First
Amendment") made and entered into as of September 2, 1993, by and between
GROSSMAN'S INC., a Delaware corporation (hereinafter referred to as
"Grossman"), having an address at 200 Union Street, Braintree, MA 02184, and
______________, a ___________ corporation (hereinafter referred to as
"______________"), having its principal offices at
_______________________________. Grossman and ______________ may be referred
to individually as a "Party" and collectively as the "Parties".
RECITALS:
The Parties entered into an Agreement for Purchase of Real
Estate dated as of May 14, 1993 (the "Agreement").
The Parties desire to amend and otherwise ratify and confirm
the remaining provisions of the Agreement as set forth in this First Amendment.
NOW, THEREFORE, in consideration of and in reliance on the
mutual representations, warranties, covenants, and agreements made herein and
the mutual benefits to be derived therefrom, the Parties hereto represent,
covenant and agree as follows:
1. Paragraph 2.2(a) of the Agreement is hereby stricken in its
entirety and the following substituted therefor:
"2.2(a) $200,000 DEPOSIT. In the event ______________ shall
not have terminated this Agreement upon the expiration of the
"Confidential Investigation Period" (being the period
beginning with the Date of Execution and ending September 27,
1993, or as such period may be extended pursuant to paragraph
3.2), ______________ shall deliver to Grossman, in immediately
available funds in Boston, Massachusetts, the amount of Two
Hundred Thousand and No/100 Dollars ($200,000) as a deposit
hereunder."
2. Paragraph 3.1(e) of the Agreement is hereby stricken in its
entirety and the following substituted therefor:
"3.1(e) UTILITY AVAILABILITY. Satisfactory evidence that all
necessary utility services (including storm drains and
electricity) are available in sufficient quantity for the
Intended Use of the Property and that the provision of said
services is in conformity with applicable zoning requirements
and has been approved by the appropriate municipal officials
and utility companies (the "Utility Availability"). Upon
determination by ______________ as to Utility Availability,
but not prior to the expiration of the Confidential
Investigation Period, the Property shall thereafter be deemed
satisfactory to ______________ with respect to Utility
Availability. The Parties recognize that during the
Confidential Investigation Period, ______________ will be
unable to determine the availability and sufficiency of
sanitary sewer, gas and water service for the Intended Use of
the Property, and that the securing of such for the Intended
Use of the Property will be deemed
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<PAGE> 24
to be a Necessary Approval to be secured during the Permitting
Period."
3. Paragraph 3.2 of the Agreement is hereby stricken in its
entirety, and the following substituted therefor:
"3.2 EXTENSION OF CONFIDENTIAL INVESTIGATION PERIOD. In the
event that ______________, in the exercise of reasonable due
diligence, shall have been unable to complete the
Environmental Assessment during the Confidential Investigation
Period ending September 27, 1993, ______________ may, upon
notice given to Grossman (the "______________ Extension
Notice") on or before September 27, 1993, extend the
Confidential Investigation Period to and including November
10, 1993, (the "Confidential Investigation Period As
Extended") solely to complete the Environmental Assessment,
and upon delivery of the ______________ Extension Notice,
______________ shall be deemed satisfied and will be
conclusively deemed to have waived its rights to object as to
any defect as regards the Property as of the date of the
______________ Extension Notice with respect to the Title
Commitment, the Survey Conditions, the Engineering Conditions
and the Utility Availability."
4. Paragraph 3.4 of the Agreement (other than Paragraph 3.4(a),
(b), (c), (d) and (e)) is hereby stricken in its entirety, and the following
substituted therefor:
"3.4 PERMITTING PERIOD - NECESSARY APPROVALS. Upon
expiration of the Confidential Investigation Period or the
Confidential Investigation Period As Extended, and provided
that the Agreement has not been terminated by ______________
pursuant to the provisions of paragraph 3.3, ______________
shall on the Closing Date close the transactions provided for
in this Agreement and tender the Purchase Price to Grossman,
provided, however, that (i) the representations and warranties
made by Grossman set forth herein are true on the Closing Date
with the same effect as though such representations and
warranties had been made on and as of the Closing Date, (ii)
the conditions precedent to ______________'s obligations to
close set forth in paragraphs 3.1(a), (b), (c), (d), (e) and
(f), deemed satisfactory to ______________ at the commencement
of the Permitting Period, have not changed, and (iii)
______________ shall, in the exercise of reasonable due
diligence (including the expenditure of the Necessary Approval
Costs as provided herein), have been able to secure or obtain
Final Approval in or within seven hundred thirty (730) days
following the expiration of the Confidential Investigation
Period or the Confidential Investigation Period As Extended
(the "Permitting Period") of the following approvals
(collectively, the "Necessary Approvals"):"
5. Paragraph 3.4(e) of the Agreement is hereby stricken in its
entirety, and the following substituted therefor:
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<PAGE> 25
"3.4(e) ENVIRONMENTAL AND MISCELLANEOUS APPROVALS.
______________ shall have received satisfactory evidence that
it shall be able to secure all environmental licenses,
building permits and Final Approvals from any other applicable
governmental authorities which are required for the
improvement and operation of the Property for the Intended Use
including, but not limited to, any and all required permits
and approvals from the Massachusetts Department of
Environmental Protection and the availability (at normal and
customary rates and charges) of sufficient quantities of
sanitary sewer, gas and water for the Intended Use of the
Property."
6. Paragraph 4.1 of the Agreement is hereby stricken in its
entirety, and the following substituted therefor:
"4.1 NECESSARY APPROVAL COSTS. During, but not prior to
the commencement of the Permitting Period, ______________
shall expeditiously and with reasonable due diligence, seek
and prosecute any and all applications for Necessary
Approvals, including the taking of any appeals from the denial
of any such Necessary Approvals. Grossman shall, at no cost
or expense to Grossman, assist ______________ in its efforts
to obtain all such Necessary Approvals, and Grossman shall
furnish, execute, acknowledge and deliver such instruments and
take such actions as ______________ may reasonably request
from time to time in order to obtain such Necessary Approvals
or to otherwise facilitate the terms of this Agreement.
______________ shall be responsible for the payment of all
costs incurred in pursuing such Necessary Approvals and shall
expend in the exercise of due diligence up to One Million and
No/100 Dollars ($1,000,000) for costs which shall include, but
not be limited to, traffic studies, environmental impact
reports, ecological or biological studies, surveys,
engineering drawings, travel and related costs, document
preparation and review, fees and costs of attorneys and
consultants, but not including any in-house administrative or
overhead costs of ______________ (collectively the "Necessary
Approval Costs"), provided, however, that ______________ shall
be obligated to expend only such portion of the Necessary
Approval Costs as shall be required for the prosecution
through final appeal of the denial of any Necessary Approval."
7. The following paragraph 5.6 shall be added to the Agreement:
"5.6 RECORDING/PERFECTION OF NECESSARY APPROVALS. Grossman
recognizes and consents to the recording or filing by
______________, upon prior advance notice to Grossman, with
the Registry of Deeds for Norfolk County (or other appropriate
governmental office) of any Necessary Approval, or abstract
thereof, required to be so recorded or filed prior to
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<PAGE> 26
the Closing Date in order to maintain and preserve the
validity of such Necessary Approval."
8. Exhibit D to the Agreement, being the Business Operations Plan
is attached to this First Amendment.
9. In all other respects, the Parties do hereby ratify and
confirm the remaining terms and provisions of the Agreement.
IN WITNESS WHEREOF, each Party hereto has caused this First
Amendment to be executed on its behalf by an officer thereunto duly authorized
as of September 2, 1993.
GROSSMAN INC., a Delaware
corporation
By:________________________
Its:_______________________
______________, a _________
corporation
By:________________________
Its: Vice President
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<PAGE> 27
SECOND AMENDMENT TO AGREEMENT FOR PURCHASE OF REAL ESTATE
Second Amendment to Agreement for Purchase of Real Estate ("Second
Amendment") made and entered into as of September 29, 1993, by and between
GROSSMAN'S INC., a Delaware corporation (hereinafter referred to as
"Grossman"), having an address at 200 Union Street, Braintree, MA 02184, and
______________, a _____________ corporation (hereinafter referred to as
"______________"), having its principal offices at ___________________.
Grossman and ______________ may be referred to individually as a "Party" and
collectively as the "Parties".
RECITALS:
The Parties entered into an Agreement for Purchase of Real
Estate dated as of May 14, 1993 (the "Agreement").
The Parties entered into a First Amendment to Agreement for
Purchase of Real Estate dated as of September 2, 1993 (the "First Amendment").
The Parties acknowledge that the Confidential Investigation
Period has concluded, and the Permitting Period has commenced.
The Parties desire to amend and otherwise ratify and confirm
the remaining provisions of the Agreement and First Amendment as set forth in
this Second Amendment.
Capitalized terms not otherwise identified in this Second
Amendment shall have the meaning given in the Agreement.
NOW, THEREFORE, in consideration of and in reliance on the
mutual representations, warranties, covenants, and agreements made herein and
the mutual benefits to be derived therefrom, the Parties hereto represent,
covenant and agree as follows:
1. COMMENCEMENT OF PERMITTING PERIOD. The Parties agree and
acknowledge that the Confidential Investigation Period has concluded, and the
Permitting Period has commenced as of the date hereof.
2. OIL SEPARATOR SYSTEM. The Parties have jointly identified an
area of the Property proximate to the "Co-Op Services Building" (the
"Building"), as indicated on the plan attached hereto as Exhibit A, prepared by
GZA GeoEnvironmental, Inc., which area contains an underground oil separator
system and entrance and exit piping, which, together with adjacent soils
contains undefined quantities of Hazardous Substances, as well as unknown
quantities of Hazardous Substances released from or contained within the oil
separator system and piping thereto (collectively the "Oil Separator System").
It is agreed that the Hazardous Substances contained in the Oil Separator
System shall be deemed for purposes of paragraph 5.1(e) of the Agreement, to
have been released on, under or about the Property following the commencement
of the Permitting Period and shall, pursuant to paragraph 5.1(e), be deemed the
responsibility of Grossman. The Parties further agree that unless required by
the Massachusetts DEP (or as its authority may be delegated pursuant to
applicable law) as part of any remediation of the Oil Separator System (it
being agreed that Massachusetts DEP shall be notified of the intent to demolish
the Building), no excavation or removal of the floor comprising the Building
shall be undertaken by Grossman prior to the Close of Escrow of the Agreement.
If excavation or removal of the floor comprising the Building shall be required
by the Massachusetts DEP (or as its authority may be delegated
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<PAGE> 28
pursuant to applicable law) as part of remediation of the Oil Separator System,
but may be delayed pending demolition of the Building until after Close of
Escrow, Grossman shall proceed upon the Close of Escrow to cause such
excavation or removal and remediation under the floor of the Building to be
undertaken pursuant to paragraph 5.1(e) of the Agreement in which event the
Parties shall proceed pursuant to paragraph 5.1(e)(y) of the Agreement.
3. ENVIRONMENTAL CONDITIONS. Pursuant to paragraph 3.1(b) of the
Agreement ("Environmental Conditions"), ______________ agrees that as of the
date hereof, being the commencement of the Permitting Period (as defined in
paragraph 3.4 of the Agreement), the Property is deemed satisfactory by
______________ with respect to the Environmental Conditions other than (i) the
Oil Separator System, (ii) the current ongoing remediation of Hazardous
Substances by Bay Colony Railroad Corporation on a railroad siding on the
northerly end of the Property as defined as "Spill Area Number 1" on a Plan of
the Property prepared by ERM- New England, Inc. dated February 23, 1993, (iii)
the current ongoing remediation of Hazardous Substances in the immediate
vicinity of soil boring ERM-3 located in the central portion of the Property
and as more specifically designated in the current draft of the Limited Phase
II Environmental Assessment being prepared by ERM-New England, Inc., and (iv)
Hazardous Substances which are placed or disposed of in, on or under the
Property following the date hereof pursuant to paragraph 5.1(e) of the
Agreement.
4. COVENANT. Reference is made to a "Covenant" dated as of
January 2, 1980 by Grossman Industrial Properties, Inc. et al with the Town of
Braintree, Massachusetts, recorded at the Registry of Deeds for Norfolk County
at Book 5705, Page 322 (the "Covenant"). With respect to paragraph 9 of said
Covenant, Grossman agrees to undertake, at Grossman's sole cost and expense and
in the exercise of reasonable efforts, to secure and record a "Certificate of
Release of Lots" issued by the Planning Board of the Town of Braintree (the
"Release"). Grossman shall, in the exercise of reasonable efforts as
aforesaid, appeal any denial or prosecute a refusal to issue such Release by
the Town of Braintree, and Grossman shall indemnify and hold ______________
harmless from any cost or expense required to otherwise comply with such
Covenant in order to secure such Release. The pendency of any request or
action brought by Grossman to secure such Release shall not delay the Close of
Escrow, but following Close of Escrow, Grossman shall continue to utilize
reasonable efforts to secure the Release, and Grossman's indemnification of
______________ as contained in this paragraph 4 of the Second Amendment shall
survive the Close of Escrow.
5. TITLE COMMITMENT. Pursuant to paragraph 3.1(a) of the
Agreement ("Title Commitment"), ______________ agrees that as of the date
hereof, being the commencement of the Permitting Period (as defined in
paragraph 3.4 of the Agreement), the Property is deemed satisfactory by
______________ with respect to the Title Commitment issued by Lawyers Title
Insurance Company (Title Commitment Instrument No. 123279) for ALTA Owner's
Policy Number 85-00-980854, other than the Schedule B Part I Exceptions
contained in such Title Commitment and the Release of the Covenant as contained
in paragraph 4 of this Second Amendment.
6. SURVEY, ENGINEERING AND UTILITIES. With respect to the
commencement of the Permitting Period, ______________ agrees that the Property
is deemed satisfactory to ______________ with respect to the Survey Conditions,
Engineering Conditions and Utility Availability, all as set forth at paragraphs
3.1(c),(d) and (e) of the Agreement respectively (as amended by the First
Amendment and Second Amendment).
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<PAGE> 29
7. AFFIRMATION. In all other respects, the Parties do hereby
ratify and confirm the remaining terms and provisions of the Agreement and
First Amendment.
IN WITNESS WHEREOF, each Party hereto has caused this Second
Amendment to be executed under seal on its behalf by an officer thereunto duly
authorized as of September 29, 1993.
GROSSMAN INC., a Delaware
corporation
By:________________________
Robert L. Flowers, its
Executive Vice President
hereunto duly authorized
__________, a _____________
corporation
By:________________________
Its: Vice President
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<PAGE> 30
THIRD AMENDMENT TO AGREEMENT FOR PURCHASE OF REAL ESTATE
Third Amendment to Agreement for Purchase of Real Estate ("Third
Amendment") made and entered into as of June ___, 1995, by and between
GROSSMAN'S INC., a Delaware corporation (hereinafter referred to as "Grossman"),
having an address at 200 Union Street, Braintree, MA 02184, and ______________,
a ___________ corporation (hereinafter referred to as "______________"), having
its principal offices at _____________. Grossman and ______________ may be
referred to individually as a "Party" and collectively as the "Parties".
RECITALS:
The Parties entered into an Agreement for Purchase of Real
Estate dated as of May 14, 1993 (the "Agreement").
The Parties entered into a First Amendment to Agreement for
Purchase of Real Estate dated as of September 2, 1993 (the "First Amendment").
The Parties entered into a Second Amendment to Agreement for
Purchase of Real Estate dated as of September 29, 1993 (the "Second
Amendment").
The Parties desire to further amend and otherwise ratify and
confirm the remaining provisions of the Agreement as set forth in this Third
Amendment.
Capitalized terms not otherwise identified in this Third
Amendment shall have the meaning given in the Agreement, as amended to date.
NOW, THEREFORE, in consideration of and in reliance on the
mutual representations, warranties, covenants, and agreements made herein and
the mutual benefits to be derived therefrom, the Parties hereto represent,
covenant and agree as follows:
1. PURCHASE PRICE/DEPOSIT. Paragraphs 2.1 and 2.2 of the
Agreement are hereby stricken in their entirety and the following substituted
therefor:
"2.1 PURCHASE PRICE. The Parties agree and acknowledge that
the Purchase Price of the Property is Thirty-two Million and
No/100 Dollars ($32,000,000), which shall be paid to Grossman
as follows:
(a) $200,000 DEPOSIT. Grossman acknowledges
receipt of Two Hundred Thousand and No/100 Dollars ($200,000)
paid as a deposit by ______________ at the expiration of the
Confidential Investigation; and
(b) $2,000,000 ADDITIONAL DEPOSIT. Two
Million Dollars ($2,000,000) (the "ADDITIONAL DEPOSIT") shall
be paid to Grossman within ten (10) days of the date of the
waiver or satisfaction of the "______________ Determination"
(as defined in Paragraph 3 of the Third Amendment); and
(c) $14,000,000 PAYMENT. On the Closing
Date ______________ shall deliver to Grossman, in immediately
available funds in
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<PAGE> 31
Boston, Massachusetts the sum of Fourteen Million and No/100
Dollars ($14,000,000); and
(d) $15,800,000 BALANCE OF PURCHASE PRICE.
The balance of the Purchase Price in the amount of Fifteen
Million Eight Hundred Thousand and No/100 Dollars
($15,800,000) shall be paid to Grossman on Closing by delivery
to Grossman of ______________'s promissory note in the amount
of Fifteen Million Eight Hundred Thousand and No/100 Dollars
($15,800,000) (the "______________ NOTE") in the form attached
hereto as Exhibit X. The ______________ Note shall provide
for payment of (i) Eight Million and No/100 Dollars
($8,000,000) of the principal balance, without interest, on
the earlier of (x) the date of transfer by deed of all or such
portion of the Land or space within any building(s)
constructed on the Property following the Closing Date as part
of the Shopping Center, in which event ______________ shall
pay such portion of the $8,000,000 as relates prorata to the
total Land comprising the Property or the total square footage
of building space set forth on the approved site plan, as the
case may be, or (y) 480 days following the Closing Date
(alternatively the "INITIAL PAYMENT DATE"), and (ii) Seven
Million Eight Hundred Thousand and No/100 Dollars ($7,800,000)
or such amount of the ______________ Note remaining
outstanding, on the date which is 720 days following the
Closing Date (the "FINAL PAYMENT DATE"), together with
interest thereon at an "Annual Rate" (as hereinafter defined)
computed from the date which is 480 days following the Closing
Date to the Final Payment Date. The "ANNUAL RATE" shall be an
annual rate of interest equal to the Prime Rate charged by the
Bank of Boston from time to time, plus one percent (1%). Any
payment of the ______________ Note not paid when due shall
bear interest at twelve percent (12%) per annum commencing on
the fifth business day following notice from Grossman to
______________."
2. WAIVER OF CONDITIONS PRECEDENT - NECESSARY APPROVALS. Other
than with respect to Paragraph 3 of this Third Amendment, ______________
acknowledges satisfactory completion or waiver of:
(a) CONDITIONS PRECEDENT. Any and all
conditions precedent to ______________'s obligations to close
the transactions contemplated by this Agreement, including
without limitation, as set forth at Section
3.1(a),(b),(c),(d),(e) and (f) of the Agreement, provided,
however, that title to the Property shall conform to the Title
Commitment and no Hazardous Substances are placed on or about
the Property, all as set forth in Sections 3.1(a) and 3.1(b)
of the Agreement; and
(b) NECESSARY APPROVALS. All Necessary
Approvals set forth at Section 3.4(a),(b),(c),(d) and (e) of
the Agreement. Further, ______________ waives
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<PAGE> 32
its right to terminate the Agreement pursuant to the provisions
of Section 3.5 of the Agreement.
3. MBTA/CONRAIL EASEMENT. The Parties acknowledge discussions
with the Massachusetts Bay Transportation Authority ("MBTA") regarding a
possible taking by eminent domain (or deed in lieu thereof) of an access
easement across the Property from Grossman Drive to the MBTA/Conrail railroad
yards (the "RAILROAD LAND") situated westerly of the Property; said access
easement being for ingress and egress by motor vehicle(s) in connection with a
proposed Conrail facility known as the "Braintree Public Delivery Freight Yard"
(the "ACCESS EASEMENT TAKING"). Grossman acknowledges that ______________'s
obligation to purchase the Property on the Closing Date is contingent solely
upon ______________'s determination in the exercise of reasonable judgment that
the Access Easement Taking will not occur (the "______________ DETERMINATION"),
______________ acknowledging that the ______________ Determination will be
satisfied by MBTA's confirmation, without material modification, of the state
of facts and conclusions set forth in the letter dated May 24, 1995 from
Kenneth B. Hoffman, Esquire to the MBTA, attached hereto as Exhibit Y.
4. EMINENT DOMAIN TAKINGS AFFECTING THE PROPERTY.
Notwithstanding the provisions of Paragraph 3 of this Third Amendment or the
Title Commitment as provided in Section 3.1(a) of the Agreement, ______________
acknowledges that it has no objection to and will purchase the Property in
conformance with the Agreement, without reduction in the Purchase Price payable
to Grossman in the event of a taking(s) by eminent domain (or deed(s) in lieu
thereof) of easements as follows (collectively the "EMINENT DOMAIN TAKING(S)"):
(a) RADIUS TAKING. A possible taking by MBTA of a portion
of the Property adjacent to the Railroad Land to permit the installation and
maintenance of cul-de-sac turnaround on the Railroad Land and that portion of
the Property taken by eminent domain, said cul-de-sac turnaround being part of
the Braintree Public Delivery Freight Yard to be located on the Railroad Land,
ingress and egress to and from which is via the existing roadway at the
southerly end of Grossman Drive, all as shown in concept on a plan prepared by
Sverdrup Corporation; and
(b) PARCEL ML-50. A possible taking by MBTA of some 947+S.F.
of land shown on a plan entitled "Land Acquisition Plan, Town of Braintree,
Norfolk County, Massachusetts, Plan No. 105644, as prepared by Bryant
Associates, Inc., for the Massachusetts Bay Transportation Authority dated
February 14, 1991, Revised May 22, 1995"; and
(c) PARCEL ML-50A. A possible taking by MBTA of some
886+S.F. of land shown on a plan entitled "Land Acquisition Plan, Town of
Braintree, Norfolk County, Massachusetts, Plan Nos. 105644, 105645, 105646, as
prepared by Bryant Associates, Inc., for the Massachusetts Bay Transportation
Authority dated February 14, 1991, Revised May 22, 1995"; and
(d) PARCEL ML-51. A possible taking by MBTA of some
4,810+S.F. of land shown on a plan entitled "Land Acquisition Plan, Town of
Braintree, Norfolk County, Massachusetts, Plan Nos. 105644, 105645, 105646, as
prepared by Bryant Associates, Inc., for the Massachusetts Bay Transportation
Authority dated February 14, 1991, Revised May 22, 1995"; and
(e) MBTA SLOPE EASEMENT. Some 9,800+ S.F. of land shown on a
Plan consisting of two (2) sheets entitled "Braintree Yard R.O.W./Easement
Plan-Sheet 3" and "Braintree Yard R.O.W./Easement Plan-Sheet 4", both dated
March 31, 1995, prepared by Sverdrup Corporation for the M.B.T.A., as shown on
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<PAGE> 33
said Plan. The area subject to the slope easement would include Parcel ML-50A
and Parcel ML-51 and would together total some 14,776+ S.F.
______________ further agrees, without waiving or prejudicing its statutory
rights to seek and claim damages occasioned by any Eminent Domain Taking(s),
not to assert such damage claim prior to Closing.
5. TRAFFIC REMEDIATION SURETY. The Parties acknowledge Condition
132 of the site plan conditions approved by the Town of Braintree Planning
Board (a copy of which is attached hereto as Exhibit 1) requires
______________, as "Applicant" to post with the Planning Board surety in the
amount of $425,000 (the "BOND") " . . . to guarantee any additional traffic
improvements and/or mitigation that may be required under Conditions 128 and
129 above." (the "TRAFFIC REMEDIATION"). The Parties agree that on or before
the Closing Date (i) ______________ shall post the first $250,000 of surety of
such Bond, and if required, fund the first $250,000 of such Traffic
Remediation, and (ii) Grossman shall post the last $175,000 of surety of such
Bond, and if required, fund the last $175,000 of such Traffic Remediation.
6. CLOSING DATE. Sections 8.1 and 8.2 of the Agreement are
hereby stricken in their entirety and the following substituted therefor:
"8.1. CLOSING DATE - ______________ DETERMINATION.
______________ shall, within thirty (30) days after execution
of this Third Amendment, notify Grossman in writing (the
"STATUS NOTICE") as to (i) the status of the Access Easement
Taking, and (ii) whether the ______________ Determination has
been satisfied or waived.
(a) EFFORTS TO SATISFY ______________
DETERMINATION. If the Status Notice indicates that
the ______________ Determination has not been
satisfied or waived, the Parties shall within thirty
(30) days of the Status Notice confer and jointly
undertake all reasonable efforts to satisfy the
______________ Determination. If the ______________
Determination has not been satisfied or waived within
forty (40) days of the Status Notice, either Party
may by written notice to the other terminate this
Third Amendment, whereupon this Third Amendment shall
be deemed terminated, null and void and without
further recourse to either Party, provided, however,
that the Agreement as amended, exclusive of this
Third Amendment, shall remain in full force and
effect.
(b) ______________ DETERMINATION - CLOSING DATE.
If the Status Notice indicates (or if within forty
(40) days of the Status Notice ______________
indicates) that the ______________ Determination has
been satisfied or waived, Grossman shall commence
(the "COMMENCEMENT DATE") reasonable efforts to
vacate
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<PAGE> 34
the Property in not less than ninety (90) days, but in
no event in more than one hundred twenty (120) days
(the "VACATION PERIOD") of the date of satisfaction
(or waiver) of the ______________ Determination as
indicated by (i) the date of the Status Notice, or
(ii) the date of the notice from ______________ within
forty (40) days of the Status Notice, provided,
however, that if, on or before the Commencement Date,
the MBTA Board of Directors votes to (or
______________ is otherwise informed that the MBTA
intends to) take by eminent domain (or deed in lieu
thereof) the Access Easement Taking or take by eminent
domain (or deed in lieu thereof) by easement or
otherwise, any portion of the Property other than the
Eminent Domain Takings, ______________ may, by written
notice to Grossman, terminate this Third Amendment,
whereupon Grossman shall, within five (5) days of
receipt of such notice of termination by
______________, return the Additional Deposit, and
this Third Amendment shall be deemed terminated, null
and void and without further recourse to either Party,
provided, however, that the Agreement as amended,
exclusive of this Third Amendment, shall remain in
full force and effect. The Closing Date shall occur on
a date mutually agreed upon by the Parties within
fifteen (15) business days following notice by
Grossman to ______________ that Grossman has vacated
the Property."
7. AFFIRMATION. In all other respects, the Parties do hereby
ratify and confirm the remaining terms and provisions of the Agreement.
IN WITNESS WHEREOF, each Party hereto has caused this Third
Amendment to be executed under seal on its behalf by an officer thereunto duly
authorized as of June ____, 1995.
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<PAGE> 35
GROSSMAN'S INC., a Delaware
corporation
By:________________________
, its
hereunto duly authorized
______________, a _________
corporation
By:________________________
, its
hereunto duly authorized
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<PAGE> 36
EXHIBIT X
TO
THIRD AMENDMENT TO AGREEMENT FOR PURCHASE OF REAL ESTATE
BY AND BETWEEN
GROSSMAN'S INC.
AND
---------------
PROMISSORY NOTE
$15,800,000 __________, 1995
Boston, Massachusetts
FOR VALUE RECEIVED, the undersigned ______________, a corporation duly
organized and existing under the laws of the State of Michigan
("______________") does hereby promise to pay to the order of GROSSMAN'S INC.,
a corporation duly organized and existing under the laws of the State of
Delaware ("GROSSMAN"), at 200 Union Street, Braintree, MA 02184, or such other
place as Grossman may designate in writing pursuant to the terms hereof, in
lawful money of the United States of America, the principal amount of FIFTEEN
MILLION EIGHT HUNDRED THOUSAND DOLLARS ($15,800,000) (the "PRINCIPAL AMOUNT")
in accordance with the terms hereof.
It is understood and agreed that this Promissory Note (the "NOTE") has
been executed and delivered to Grossman pursuant to that certain Agreement for
Purchase of Real Estate by and between Grossman and ______________, dated as of
May 14, 1993, and as subsequently amended (the "PURCHASE AGREEMENT"). This
Note is in all respects subject to the provisions of the Purchase Agreement
which is deemed incorporated herein by reference. All initially capitalized
terms not otherwise defined in this Note shall have the meaning given in the
Purchase Agreement.
Pursuant to the Purchase Agreement and specifically Section 2.1
thereof, the Principal Amount shall be due and payable to Grossman as follows:
(a) Eight Million Dollars ($8,000,000) of the Principal Amount
shall be due and payable to Grossman, without interest, on the
earlier of (i) the date of transfer by deed of all or such
portion of the Land or space within any building(s)
constructed on the Property following the Closing Date as part
of the Shopping Center, in which event, ______________ shall
pay such portion of the $8,000,000 as relates prorata to the
total Land comprising the Property, or the total square
footage of building space set forth on the approved site plan,
as the case may be, or (ii) four hundred eighty (480) days
following the Closing Date, and
(b) Seven Million Eight Hundred Thousand Dollars ($7,800,000), or
such amount of this Note remaining outstanding, shall be due
and payable to Grossman, on the date which is seven hundred
twenty (720) days following the Closing Date (the "FINAL
PAYMENT DATE"), together with interest thereon at an "Annual
Rate" (as hereinafter defined) computed from the date which is
four hundred eighty (480) days following the Closing Date to
the Final Payment Date. The "ANNUAL RATE" shall be an annual
rate of interest equal to the Prime Rate charged by the Bank
of Boston from time to time, plus one percent (1%).
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<PAGE> 37
Any payment of this Note not paid when due shall bear interest at the highest
annual rate of interest permitted by law commencing on the fifth business day
following notice from Grossman to ______________.
At the option of Grossman, the entire outstanding balance of this Note
and all accrued interest thereon shall become immediately due and payable,
without notice or demand, upon the occurrence and at any time thereafter of any
of the following events:
(a) The failure of ______________ to pay in full any payment
within five (5) business days after written notice of such
failure delivered to ______________ in accordance with Section
12.1 of the Purchase Agreement; and
(b) ______________ shall fail to maintain its existence as a
Michigan corporation in good standing.
All notices, consents, approvals and other communications provided for
herein or given in connection herewith shall be validly given, made, delivered
or served as provided in the Purchase Agreement.
______________ waives presentment, protest and demand, notice of
protest, demand and of dishonor and non-payment of this Note and expressly
agrees that this Note or any payment hereunder may be extended with or without
consideration therefor, without in any way affecting the liability of
______________.
This Note may be prepaid in whole or in part, at any time and from
time to time hereof, without premium or penalty, provided that any such
prepayment is accompanied by payment of all accrued and unpaid interest to the
date of such prepayment.
This Note shall be construed as a Massachusetts contract for all
purposes, without exception.
It is not intended under this Note to charge interest at a rate
exceeding the maximum rate of interest permitted to be charged under applicable
law, but if, notwithstanding, interest exceeding said maximum rate shall be
paid hereunder, the excess shall, at Grossman's option, be either (i) deemed a
voluntary prepayment of the Principal Amount, or (ii) refunded to
______________.
All of Grossman's rights and remedies, whether evidenced hereby or by
the Purchase Agreement shall be cumulative and may be exercised singularly or
concurrently.
No delay or omission on the part of Grossman in exercising any right
hereunder shall operate as a waiver of such right or any other right under this
Note. A waiver on any one occasion shall not be construed as a bar to or
waiver of any such right and/or remedy on any future occasion.
______________ and Grossman waive the right to a trial by jury in any
action or proceeding based upon, or related to, the subject matter of this
Note. This waiver is knowingly, intentionally and voluntarily made by Grossman
and ______________.
This Note shall be binding upon ______________ and its successors and
assigns.
The terms and conditions of this Note may not be modified or amended
except in writing and signed by ______________ and Grossman.
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<PAGE> 38
IN WITNESS WHEREOF, ______________ has caused this Note to be executed
on its behalf under seal by an officer thereunto duly authorized as of the date
and year first above written.
______________, a ___________
corporation
(SEAL)
By:_____________________________
Its:
hereunto duly authorized
EXHIBIT Y
TO
THIRD AMENDMENT TO AGREEMENT FOR PURCHASE OF REAL ESTATE
BY AND BETWEEN
GROSSMAN'S INC.
AND
---------------
LETTER DATED MAY 24, 1995 FROM KENNETH B. HOFFMAN, ESQUIRE
TO MBTA
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<PAGE> 39
FOURTH AMENDMENT TO AGREEMENT FOR PURCHASE OF REAL ESTATE
Fourth Amendment to Agreement for Purchase of Real Estate ("FOURTH
AMENDMENT") made and entered into as of June 22, 1995, by and between
GROSSMAN'S INC., a Delaware corporation (hereinafter referred to as
"GROSSMAN"), having an address at 200 Union Street, Braintree, MA 02184, and
_______________, a ______________ corporation (hereinafter referred to as
"_______________"), having its principal offices at ______________. Grossman
and _______________ may be referred to individually as a "PARTY" and
collectively as the "PARTIES".
RECITALS:
The Parties entered into an Agreement for Purchase of Real
Estate dated as of May 14, 1993 (the "AGREEMENT").
The Parties entered into a First Amendment to Agreement for
Purchase of Real Estate dated as of September 2, 1993 (the "FIRST AMENDMENT").
The Parties entered into a Second Amendment to Agreement for
Purchase of Real Estate dated as of September 29, 1993 (the "SECOND
AMENDMENT").
The Parties entered into a Third Amendment to Agreement for
Purchase of Real Estate dated as of June 16, 1995 (the "THIRD AMENDMENT").
The Parties desire to further amend and otherwise ratify and
confirm the remaining provisions of the Agreement as set forth in this Fourth
Amendment.
Capitalized terms not otherwise identified in this Fourth
Amendment shall have the meaning given in the Agreement, as amended to date.
NOW, THEREFORE, in consideration of and in reliance on the
mutual representations, warranties, covenants, and agreements made herein and
the mutual benefits to be derived therefrom, the Parties hereto represent,
covenant and agree as follows:
1. DEED - ESCROW. Paragraph 8.3 of the Agreement is hereby
stricken in its entirety and the following substituted therefor:
"8.3. DEED - ESCROW. The Parties have opened an escrow with Lawyers
Title Insurance Corporation, 225 Franklin Street, Boston, MA 02110,
Attention: Kevin T. Creedon ("ESCROW AGENT") in order to consummate
the purchase and sale of the Property on or before 2:00 p.m. on the
Closing Date (the "CLOSING") in accordance with the terms and
provisions hereof. The provisions hereof shall constitute joint
instructions to the Escrow Agent, provided, however, that the Parties
shall execute such additional instructions as requested by the Escrow
Agent which are not inconsistent with the provisions hereof.
(a) ADDITIONAL DEPOSIT/DEED. _______________ shall, on
or before 12:00 Noon, June 23, 1995, wire transfer to
Escrow Agent in immediately available federal funds
the Additional Deposit in the amount of Two Million
Dollars ($2,000,000). Grossman shall deliver to
Escrow Agent on or before 12:00 Noon,
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<PAGE> 40
June 23, 1995 the Deed, in the form of Exhibit A
hereto, duly executed and acknowledged, together with
any required corporate authorization. Upon receipt
of the Additional Deposit and the Deed, Escrow Agent
shall (i) release from escrow and transfer and
deliver to Grossman the Additional Deposit, and (ii)
continue to hold the Deed in escrow until the Closing
Date.
(b) CLOSING DATE DELIVERIES. On or before 12:00 Noon on
the Closing Date (A) _______________ shall deliver to
Escrow Agent (i) the _______________ Note, duly
executed and acknowledged, and (ii) the sum of
Fourteen Million Dollars ($14,000,000) in immediately
available federal funds (the "CLOSING FUNDS"), and
(B) Grossman shall deliver to Escrow Agent a duly
authorized Tax Lien Waiver issued by the Department
of Revenue of the Commonwealth of Massachusetts dated
within thirty (30) days of the Closing Date. At
Closing, provided all of the foregoing deliveries
have been made to Escrow Agent, the remaining
provisions of the Agreement, as amended, have been
satisfied or waived, and Escrow Agent is committed to
issue an owner's policy of title insurance to
_______________ in conformity with the Title
Commitment (No. 85-00-980854, dated September 27,
1993) excepting, however, that the Property may be
subject to the Eminent Domain Takings (the "OWNER'S
POLICY"), Escrow Agent shall (x) record the Deed in
the appropriate records for Norfolk County, (y) issue
the Owner's Policy, and (z) tender and deliver to
Grossman the Closing Funds and the _______________
Note.
The Parties agree that all Closing adjustments shall be
determined pursuant to the provisions of Section 8.4 of this Agreement
and shall be made, to the extent possible, out of the Closing Funds
and, otherwise, outside of Closing."
2. AFFIRMATION. In all other respects, the Parties do hereby
ratify and confirm the remaining terms and provisions of the Agreement.
IN WITNESS WHEREOF, each Party hereto has caused this Fourth
Amendment to be executed in counterparts under seal on its behalf by an officer
thereunto duly authorized as of June 22, 1995.
GROSSMAN'S INC., a Delaware
corporation
By:___________________________
Richard E. Kent,
Its Vice President
hereunto duly authorized
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<PAGE> 41
_______________, a ___________
corporation
By:___________________________
Its
hereunto duly authorized
ACKNOWLEDGMENT
The undersigned hereby acknowledges and confirms that the undersigned will
comply with the terms and provisions of the Escrow.
LAWYERS TITLE INSURANCE
CORPORATION
By:___________________________
Dated: June ___, 1995
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