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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 THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported)
MARCH 27, 1998
INSTRON CORPORATION
(Exact name of registrant as specified in charter)
MASSACHUSETTS 1-5641 04-2057203
(State or other jurisdiction (Commission file number) (IRS employer
of incorporation) identification no.)
100 ROYALL STREET, CANTON, MASSACHUSETTS 02021
(Address of principal executive offices) (Zip code)
Registrant's telephone number, including area code: (781) 828-2500
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Item 2 - Acquisition or Disposition of Assets
On March 27, 1998, Instron Corporation (the "Company") completed the
sale of 42 acres of excess land located in Canton, Massachusetts for $13.5
million in cash. This land will be used by Reebok International Ltd. ("Reebok")
for its new corporate headquarters. The proceeds from the sale will initially be
utilized to reduce outstanding debt, pay closing costs, related transaction fees
and associated expenses, as well as pay taxes on the gain of the sale. The sale
was made pursuant to a Purchase and Sale Agreement (the "Agreement"), dated as
of August 20, 1996 and amended as of March 27, 1998 (the "Amendment"), between
Instron Realty Trust, a Massachusetts business trust of which the Company is the
sole beneficiary, and Reebok. No material relationship existed between Reebok
and the Company or any of its affiliates, any director or officer of the Company
or any associate of any such director or officer. The Agreement and the
Amendment are attached hereto as Exhibits 2.1 and 2.2, respectively, and are
incorporated herein by reference.
Item 7 - Financial Statements, Pro Forma Financial Information and Exhibits
(c) Exhibits
Exhibit 2.1 - Purchase and Sale Agreement, dated as of
August 20, 1996, between Instron Realty Trust, a
Massachusetts business trust, and Reebok
International Ltd.*
Exhibit 2.2 - Amendment to Purchase and Sale Agreement,
dated as of March 27, 1998, between Instron Realty
Trust, a Massachusetts business trust, and Reebok
International Ltd.*
* The Company will supply the Commission upon request with a copy of
any exhibit or schedule to Exhibits 2.1 or 2.2 which is not included
herein.
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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.
INSTRON CORPORATION
Date: April 3, 1998 By: /s/ Linton A. Moulding
----------------------------------------
Name: Linton A. Moulding
Title: Chief Financial Officer
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EXHIBIT INDEX
Exhibit No. Description
Exhibit 2.1 - Purchase and Sale Agreement, dated as of
August 20, 1996, between Instron Realty Trust, a
Massachusetts business trust, and Reebok
International Ltd.*
Exhibit 2.2 - Amendment to Purchase and Sale Agreement,
dated as of March 27, 1998, between Instron Realty
Trust, a Massachusetts business trust, and Reebok
International Ltd.*
* The Company will supply the Commission upon request with a copy of any exhibit
or schedule to Exhibits 2.1 and 2.2 which is not included herein.
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EXHIBIT 2.1
PURCHASE AND SALE AGREEMENT
between
INSTRON REALTY TRUST
Seller
and
REEBOK INTERNATIONAL, LTD.
Buyer
Dated as of: August 20, 1996
Property:
Royall Street
Route 128/Route 138 Interchange
Canton, Massachusetts
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TABLE OF CONTENTS
Page
1. Purchase and Sale.........................................1
2. Conveyance; Title.........................................2
3. Plans.....................................................5
4. Purchase Price............................................5
5. Closing...................................................6
6. Condition of Property.....................................7
7. Extension to Perfect Title or Make Property Conform.......7
8. Acceptance of the Deed...................................11
9. Representations and Warranties...........................11
10. Operation of the Property................................14
11. Use of Money to Clear Title..............................14
12. IRS Form 1099-S Designation..............................14
13. Eminent Domain...........................................14
14. Adjustments..............................................15
15. Broker; Indemnity........................................15
16. Deposit..................................................15
17. Remedies.................................................16
18. Due Diligence Inspections; Access........................17
19. Right of First Offer.....................................18
20. Seller's Development Cooperation and Approval Rights.....20
(i)
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21. Closing Costs............................................20
22. Escrow Agent's Joinder...................................21
23. Indemnifications.........................................21
24. "Structured" Transaction.................................21
25. Notices..................................................21
26. Further Assurances.......................................22
27. Choice of Law; Partial Invalidity........................22
28. Interpretation...........................................22
29. Integration; Amendment...................................23
30. Successors and Assigns...................................23
31. Not an Offer; Binding Effect.............................23
32. Counterparts.............................................23
33. Limitation of Liability..................................23
34. No Third Party Rights....................................23
35. Time of Essence..........................................24
EXHIBIT A.........................................................27
Description of Entire Instron Site.......................27
EXHIBIT B.........................................................28
Description of Property to be Conveyed...................28
EXHIBIT C.........................................................29
Declaration of Restrictions, Covenants and Easements.....29
EXHIBIT D.........................................................30
Intentionally Omitted....................................30
EXHIBIT E.........................................................31
Boston Mutual Life Insurance Company Lease...............31
(ii)
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EXHIBIT F.........................................................32
Installment Note.........................................32
EXHIBIT G.........................................................33
Form of Tax Proration Agreement..........................33
EXHIBIT H.........................................................34
Form of Notice of Contract...............................34
EXHIBIT I.........................................................35
Form of Mortgage.........................................35
(iii)
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PURCHASE AND SALE AGREEMENT
This Purchase and Sale Agreement (this "Agreement"), is entered into as
of August 20, 1996, by and between INSTRON REALTY TRUST under a declaration of
trust (the "Declaration of Trust") dated April 23, 1957, recorded with Norfolk
Registry of Deeds in Book 3557, Page 219, as amended, with an address of 100
Royall Street, Canton, Massachusetts 02021 (together with any successors or
assigns as Seller may be permitted to designate hereunder, "Seller"), and REEBOK
INTERNATIONAL, LTD., a Massachusetts corporation, with an address of 100
Technology Center Drive, Stoughton, Massachusetts 02072, (together with such
successor, assign or nominee as Buyer may be permitted to designate hereunder
"Buyer").
W I T N E S S E T H:
WHEREAS, Seller is the fee simple owner of that certain parcel of land
and the improvements located thereon in the Town of Canton, Massachusetts, which
consists of approximately 63 acres of land in the northwest quadrant of the
Route 128/Route 138 interchange, the location, boundaries and configuration of
which are shown on Exhibit A attached hereto, (the "Instron Site").
WHEREAS, Buyer desires to purchase a portion of the Instron Site from
Seller and obtain certain rights with respect to the disposition of the
remainder of the Instron Site, and Seller desires to sell a portion of the
Instron Site to Buyer and grant Buyer certain rights with respect to the
disposition of the remainder of the Instron Site, all upon the terms, provisions
and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Buyer and Seller agree as follows:
1. Purchase and Sale. Seller hereby agrees to sell, assign, transfer
and convey to Buyer, and Buyer hereby agrees to purchase from Seller, upon the
terms and conditions hereinafter set forth in this Agreement, a portion of the
Instron Site consisting of (i) approximately 41.365 acres, which shall include
the parcel commonly referred to as the "Farmer's House" (the "Farmer's House"),
all of which is described in Exhibit B attached hereto (the "Land"), together
with all of Seller's right, title and interest in and to (ii) any streets, ways
or alleys abutting or adjoining thereon, and any strips, gores, trees, shrubs,
plants, easements, hereditaments and appurtenances in or affecting the Land,
(iii) all improvements located thereon, including, without limitation, the
Farmer's House and the building known as the "Chase Mansion" (the "Chase
Mansion"), (iv) the lease by and between Seller and Boston Mutual Life Insurance
Company ("Boston Mutual") encumbering a portion of the Property (as hereinafter
defined) identified on Exhibit A as the "LEASE PARCEL" (the "Boston Mutual
Parcel"), a copy of which lease is attached hereto as Exhibit E (the "Boston
Mutual Lease"), and (v) all development rights associated with or appurtenant to
the Land, including all permits and approvals relating to the Land
(collectively, the "Development
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Rights") (all of the foregoing set forth in items (i), (ii), (iii), (iv) and (v)
above, collectively, the "Property").
1.1 Boston Mutual Lease. Seller hereby authorizes Buyer, and
Buyer covenants and agrees, to exercise reasonable efforts from and
after the date hereof until October 1, 1996 to negotiate an extension
of the Boston Mutual Lease for an additional ten (10) year term for an
annual rental of not less than $85,000, with annual increases thereof
based upon the Consumer Price Index, and otherwise on substantially the
same terms and conditions as the Boston Mutual Lease. In the event that
Buyer is unable to negotiate such an extension of the Boston Mutual
Lease prior to October 1, 1996, Buyer shall have no further right to
negotiate any such extension of the Boston Mutual Lease, and Seller
shall be free to negotiate an extension of the Boston Mutual Lease on
such terms and conditions as Seller may agree to in its sole
discretion.
2. Conveyance; Title. Fee simple title to the Land and improvements
thereon is to be conveyed by a good and sufficient Massachusetts quitclaim deed
(the "Deed") running to Buyer, or to the nominee designated by Buyer by at least
seven (7) days' prior written notice to Seller, which shall convey good and
clear record and marketable title to the Land and improvements, subject to the
Permitted Encumbrances, as defined below. The Buyer shall accept title to the
Land and improvements subject to the following (collectively, the "Permitted
Encumbrances"):
(a) Provisions of applicable building and zoning laws;
(b) Such real and personal property taxes for the then current
tax period as are not yet due and payable on the Closing Date (as hereinafter
defined);
(c) Any liens for municipal betterments assessed against the
Property after the date of this Agreement;
(d) Easements, liens, restrictions, encumbrances,
encroachments, agreements and other matters of record, if any, affecting the
Property or any part thereof, approved or deemed approved by Buyer as of the
effective date of Buyer's title insurance commitment (as such term is
hereinafter defined) pursuant to the terms of this Agreement, including, without
limitation, a Declaration of Restrictions, Covenants and Easements in the form
attached hereto as Exhibit C, and such other reciprocal access easements and
utility easements as may be required and mutually agreed to by Seller and Buyer
after the date of this Agreement for access to and egress from the Property and
the Remaining Property (as such term is hereinafter defined) and utility service
to the Remaining Property, which access and utility easements shall permit the
owner of the burdened land to relocate such easements at such burdened land
owner's expense, and such additional utility easements as Seller may grant
during the term of this Agreement, subject to Buyer's approval which shall not
be unreasonably withheld or delayed;
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(e) the Boston Mutual Lease, as amended in accordance with the
terms of this Agreement;
(f) The state of facts (including encroachments and
projections onto adjoining streets) which a current accurate survey of the
Property would show, as of the Due Diligence Expiration Date;
(g) Any state of facts that a personal inspection of the
Property might disclose as of the Due Diligence Expiration Date; and
(h) Any lien or encumbrance encumbering the Property as to
which Seller shall deliver to Buyer, or to Buyer's title company at or prior to
the Closing (as hereinafter defined), payment sufficient to satisfy the
obligations secured by such lien or encumbrance (in the case of liens or
encumbrances, if any, which secure the payment of money) or proper instruments,
in recordable form, which upon recordation will cancel such lien or encumbrance,
together with any other instruments necessary thereto and the cost of recording
and canceling the same.
2.1 Seller's Closing Deliveries. At Closing, Seller shall
deliver to Buyer in form and substance reasonably satisfactory to
Seller and Buyer:
2.1.1 the Deed of the Land and improvements;
2.1.2 Declaration of Restrictions, Covenants and
Easements, in the form attached hereto as
Exhibit C.
2.1.3 Bill of Sale of fixtures at the Property;
2.1.4 Assignment and Assumption of Contracts,
Licenses, Permits and Approvals;
2.1.5 Assignment and Assumption of the Boston
Mutual Lease, as amended in accordance with
the terms of this Agreement;
2.1.6 evidence reasonably satisfactory to Buyer
and Buyer's title insurer of the authority
of the person or persons executing the Deed
and the other documentation to be executed
and delivered by Seller hereunder;
2.1.7 a so-called "Non-Foreign Certificate" or
"FIRPTA Affidavit" sufficient to qualify for
an exemption pursuant to Section 1445(b)(2)
of the Internal Revenue Code of 1986, as
amended, and the regulations promulgated
thereunder;
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2.1.8 such customary parties in possession and
mechanics' and materialmen's lien affidavits
and indemnities as Buyer's title insurance
company may reasonably require in order to
issue so-called owner's and lender's title
insurance policies insuring Buyer's title to
the Property without any exception for
mechanics' or materialman's liens or parties
in possession except for Boston Mutual;
2.1.9 an estoppel certificate from Boston Mutual;
2.1.10 an IRS 1099-S Designation Agreement; and
2.1.11 Such other documents and instruments as are
reasonably requested by Buyer in connection
with the transaction that is the subject of
this Agreement, including, without
limitation, a closing statement.
2.2 Buyer's Closing Deliveries. At Closing, Buyer shall
deliver to Seller in form and substance reasonably satisfactory to Seller and
Buyer:
2.2.1 The balance of the Purchase Price due under
Section 4 of this Agreement;
2.2.2 Declaration of Restrictions, Covenants and
Easements, in the form attached hereto as
Exhibit C (See Section 2.1.2);
2.2.3 Assignment and Assumption of Contracts,
Licenses, Permits and Approvals;
2.2.4 Assignment and Assumption of the Boston
Mutual Lease, as amended in accordance with
the terms of this Agreement;
2.2.5 evidence reasonably satisfactory to Seller
of the authority of the person or persons
accepting and recording the Deed on behalf
of Buyer and executing the documentation to
be executed and delivered by Buyer
hereunder;
2.2.6 an IRS 1099-S Designation Agreement; and
2.2.7 Such other documents and instruments as are
reasonably requested by Seller in connection
with the transaction that is the subject of
this Agreement, including, without
limitation, a closing statement.
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3. Plans. If the Deed refers to a plan necessary to be recorded or
filed therewith, Buyer shall prepare and deliver such plan at the Closing in
form adequate for such recording or filing, as the case may be. Seller shall
reimburse Buyer for the cost of such plan, but only up to a maximum of Five
Thousand Dollars ($5,000.00).
4. Purchase Price. The Purchase Price to be paid by the Buyer for the
Property is Thirteen Million Five Hundred Thousand ($13,500,000.00) Dollars (the
"Purchase Price"), subject to adjustment as provided in Section 14 below and
payable as set forth in this Section 4 below. Simultaneously with the execution
and delivery hereof, Buyer shall deliver to Old Republic National Title
Insurance Company (the "Escrow Agent") by wire transfer of immediately available
federal funds, a portion of the Purchase Price equal to $600,000 (the "Initial
Deposit") which shall be held in accordance with the terms of this Agreement.
Subject to the terms of this Agreement, on or before August 20, 1997, Buyer
shall deliver to the Escrow Agent by wire transfer of immediately available
federal funds, an additional portion of the Purchase Price equal to $600,000
(the "Additional Deposit"), which shall be held in accordance with the terms of
this Agreement. The Initial Deposit, the Additional Deposit, and the Second
Additional Deposit (as hereinafter defined) are referred to herein collectively
as the "Deposit." The Initial Deposit shall become nonrefundable and earned by
the Seller in consecutive monthly increments of $100,000 commencing on February
20, 1997 and upon the expiration of each thirty day period thereafter (with a
pro rata amount becoming nonrefundable for any period less than the full thirty
days), until August 20, 1997. The Additional Deposit shall become nonrefundable
and earned by the Seller in consecutive monthly increments of $100,000
commencing on August 20, 1997 and upon the expiration of each thirty day period
thereafter (with a pro rata amount becoming nonrefundable for any period less
than the full thirty days). Without limiting any other term of this Agreement,
at Closing, Escrow Agent shall deliver to Seller, in accordance with the terms
of this Agreement, the Deposit, together with all interest earned thereon (each
to be credited against the Purchase Price), and Buyer shall deliver to Escrow
Agent by wire transfer of immediately available federal funds for delivery to
Seller in accordance with the terms of this Agreement the remainder of the
Purchaser Price, plus or minus any prorations or adjustments required by the
terms of Section 14, and all other amounts required under this Agreement.
Notwithstanding the foregoing, Seller reserves the right, by notice to
the Buyer, at least thirty (30) days prior to the Closing Date, to receive all
or a portion of the Purchase Price via an installment note in the form attached
hereto as Exhibit F, secured by a letter of credit issued by a bank satisfactory
to Seller, provided that there is no additional cost to Buyer for the letter of
credit. The installment note shall have a maturity date of June 30, 1999,
subject, at Seller's option, to a one (1) month extension for each additional
month that the Closing Date is extended beyond the date which is five hundred
forty-five (545) days from the date hereof. Principal shall by payable
commencing on the date that is the first anniversary of the Closing Date in
equal monthly installments. Interest charged under the note shall be equal to
the U. S. Treasury rate for obligations of the same duration as the term of such
installment note, based on the average life of such installment note, plus
one-half percent (1/2%).
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5. Closing. Delivery of the Deed and the Purchase Price, and
performance of all other obligations to be performed by the parties pursuant to
this Agreement simultaneously therewith (such delivery and performance, the
"Closing") shall be made on the Closing Date (as hereinafter defined). The
Closing shall occur on the earlier of: (i) a date selected by Buyer by at least
thirty (30) days prior written notice to Seller, or (ii) the date which is
thirty (30) days after the occurrence of the Final Permitting Date (as
hereinafter defined); provided, however, if such date is a date on which the
Norfolk County Registry of Deeds is not open for business, then the Closing
shall occur on the next date on which said Registry is open for business (the
earlier of the foregoing dates, as such date may be extended pursuant to the
terms of this Agreement, the "Closing Date"). The Final Permitting Date is the
next business day following the last to expire of (i) any appeal period (without
any appeal having been perfected) or (ii) if an appeal has been perfected, on
the next business day after the final resolution of any appeal, from the
issuance of all Required Permits (as such term is defined below). Either Buyer
or Seller shall have the right by notice given to the other party not later than
two (2) business days prior to the Closing Date to extend said Closing Date from
time to time for up to a total period of thirty (30) days, provided, however, if
such extended date is a date on which the Norfolk County Registry of Deeds is
not open for business, then the Closing shall occur on the next date on which
said Registry is open for business. Notwithstanding any provision hereof to the
contrary, if this Agreement has not been earlier terminated, and if the Closing
Date has not occurred by the date which is five hundred forty-five (545) days
from the date hereof, the Escrow Agent shall deliver the Deposit, together with
all interest earned thereon, to Seller, and this Agreement shall automatically
terminate, except for those provisions which by the express terms of this
Agreement are to survive termination of this Agreement (collectively, the
"Termination Surviving Obligations"), without recourse to either party at law or
in equity; provided, however, that if there is an appeal filed, or provided all
Required Permits have been obtained, if an appeal period has not expired, with
respect to any of the Required Permits and, as a result, the Closing Date does
not occur on or before the date which is five hundred forty five (545) days from
the date hereof, provided that Buyer is diligently prosecuting all such appeals
of the Required Permits, Buyer may elect upon notice to Seller and delivery of
an additional deposit (which shall be fully nonrefundable as of the date it is
delivered, and which shall be applicable to the Purchase Price) in the amount of
Six Hundred Thousand Dollars ($600,000) (the "Second Additional Deposit") to the
Escrow Agent on or before the date which is two (2) business days prior to the
expiration of such five hundred forty five (545) day period, to extend the term
of this Agreement for a period of up to one hundred eighty (180) days, provided,
however, if such extended date is a date on which the Norfolk County Registry of
Deeds is not open for business, then the Closing shall occur on the next date on
which said Registry is open for business. If Buyer exercises its option to
extend the term of this Agreement pursuant to the foregoing sentence, such
extension shall be automatic and self-operative upon the delivery of notice to
Seller, and the Second Additional Deposit to the Escrow Agent. As used herein
the term "Required Permits" shall mean, collectively, all variances, permits,
approvals, certificates, subdivisions, rezonings, consents, licenses and other
authorizations or approvals required for the development and construction of a
campus-like world headquarters facility for Buyer, including structured parking
facilities (the "Project"), from any governmental authorities with jurisdiction
over the Property. The Closing shall occur at the offices of Goodwin, Procter &
Hoar, Exchange Place, Boston,
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Massachusetts 02109 at 10:00 a.m. on the Closing Date or any other location
mutually agreed upon in writing by the parties.
6. Condition of Property. Full possession of the Property, free of all
tenants and occupants, except for Boston Mutual, is to be delivered on the
Closing Date, the Property to be then in the same condition as it now is, free
of all violations of any conditions or restrictions, if any, imposed on the
Chase Mansion as a result of its status as an "historic" structure, reasonable
wear and tear and damage due to removal of improvements, including, without
limitation, fixtures and equipment within the Chase Mansion located on the
Property (collectively, the "Improvements") excepted, it being expressly
acknowledged and agreed that Seller, while having the absolute right, shall have
no duty to remove any Improvements, other than free-standing, detachable
equipment, or to restore or repair any damage to the Property caused by the
removal of any Improvements from the Property by Seller prior to the Closing
Date, other than to a reasonably safe, structurally sound and reasonably
weather-tight condition, and, provided that submeters or check meters are
installed for the Chase Mansion and the stables located on the Land, at Buyer's
expense (to enable the parties to allocate the cost of all electricity billed to
Seller amongst Seller and Buyer as appropriate), as necessary to deliver the
Chase Mansion with electrical capacity sufficient for residential use; and
without representation or warranty as to compliance of the Property with
applicable laws or regulations, notwithstanding the provisions of Section 7
below.
7. Extension to Perfect Title or Make Property Conform.
7.1 If, on the Closing Date, Seller shall be unable to give
title (other than for voluntary encumbrances which secure the payment
of money, such as mortgages, which Seller shall pay off at Closing) or
to make conveyance, or to deliver possession of the Property all as
herein stipulated, then Seller shall, subject to the limitations set
forth below, use reasonable efforts to remove or remedy all defects in
title, including, without limitation, any lien or encumbrance, or
violations of applicable laws or regulations and to deliver possession
as provided herein, and the Closing Date shall be extended for a period
of up to six (6) months to enable Seller to perform. If on such
extended Closing Date, Seller shall be unable to perform as set forth
in the preceding sentence, at Buyer's option, exercisable by delivery
of notice to Seller, the Closing Date shall be extended for an
additional six (6) month period to enable Seller to continue, subject
to the limitations set forth below, to use reasonable efforts to remove
or remedy all defects in title, including, without limitation, any lien
or encumbrance, or violations of applicable laws or regulations and to
deliver possession as provided herein. Notwithstanding the foregoing,
Seller, at its option in lieu of satisfying such voluntary liens or
encumbrances which secure the payment of money, such as mortgages, may
deposit with Buyer's title insurer such amount of money as may be
determined by the title insurer as being sufficient to induce it to
insure Buyer against collection of such liens and/or encumbrances,
including interest and penalties, out of or against the Property (and
to omit or insure over such exceptions in any mortgagee policy in favor
of Buyer's lender), in which event such liens and encumbrances shall
not be objections to title.
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7.2 In exercising such reasonable efforts to remove or remedy
all defects in title, violations of applicable laws or regulations, and
to deliver possession as provided herein, Seller's obligations with
respect to such reasonable efforts shall be limited as follows:
7.2.1 Title Defects. If any title defects exist ("Existing
Title Defects") during the due diligence period (the "Due Diligence
Period") commencing as of the date hereof and ending on the effective
date of Buyer's written commitment for title insurance, (which Buyer
shall furnish Seller with a copy of prior to the expiration of the Due
Diligence Period), Seller shall have no obligation to cure any Existing
Title Defects which are not objected to by Buyer during the Due
Diligence Period. At Closing, Buyer shall be obligated to accept title
to the Property subject to Existing Title Defects not so objected to.
With respect to any Existing Title Defects which are objected to by
Buyer during the Due Diligence Period, and which are Curable Title
Defects (as hereinafter defined), and for which Buyer is unable to
obtain affirmative coverage from its title insurance company,
reasonably satisfactory to Buyer and its lender, Seller shall be
obligated to expend money and/or incur expenses, but only up to a total
of Two Hundred Fifty Thousand Dollars ($250,000)(the "Title Dollar
Limit") to cure, in the aggregate, the Existing Title Defects and
Curable Title Defects arising after the expiration of the Due Diligence
Period and objected to by Buyer by prompt notice to Seller (the
"Subsequent Title Defects"), except as hereinafter provided. For
purposes of this Agreement, "Curable Title Defects" are those Existing
Title Defects and Subsequent Title Defects which, in the aggregate, can
be cured by an expenditure of money and/or the incurring of expenses in
an amount equal to or less than the Title Dollar Limit, and which can
be cured within the time frames provided for in this Agreement for the
Closing to occur. If it is reasonably apparent to Seller that the
Existing Title Defects and/or the Subsequent Title Defects are not
Curable Title Defects, Seller need expend no money or any further
money, as the case may be, nor incur any expense or any further
expense, as the case may be, to cure any such Defects.
Notwithstanding the foregoing, if any Subsequent Title Defects
are caused by the voluntary act of Seller, and for which Buyer is
unable to obtain affirmative coverage from its title insurance company,
reasonably satisfactory to Buyer and its lender, there shall be no
monetary limit on Seller's obligations to cure such Subsequent Title
Defects voluntarily imposed on the Property by Seller. The filing of a
voluntary bankruptcy, or making a voluntary assignment for the benefit
of creditors, shall not be deemed to be a voluntary Subsequent Title
Defect. Provided further, and notwithstanding the foregoing, if there
are any involuntary Subsequent Title Defects which are Curable Title
Defects, and which secure the payment of money, such as an attachment,
Seller's obligations hereunder shall be limited to the expenditure, in
the aggregate, of up to Nine Million Dollars ($9,000,000) to bond off
such involuntary Subsequent Title Defects, which amount shall include
all costs of obtaining such bonds, including three (3) years of premium
payments. If there are any involuntary Subsequent Title Defects which
secure the payment of money, and which would require
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expenditures, in the aggregate, in excess of Nine Million Dollars
($9,000,000) to bond off the same, Seller shall use reasonable efforts,
subject to the Title Dollar Limit, to attempt to lower such involuntary
Subsequent Title Defects to Nine Million Dollars ($9,000,000) or less,
in the aggregate, which shall include all costs of obtaining such
bonds, including three (3) years of premium payments.
7.2.2 Hazardous Waste. If Buyer objects to the condition of
the Property due to the existence of Hazardous Substances or Hazardous
Waste, both as hereinafter defined (collectively "Hazardous Waste
Defects"), and if the Hazardous Waste Defects are Curable Hazardous
Waste Defects (as hereinafter defined), Seller shall only be obligated
to expend moneys and/or incur expenses up to a total of Five Hundred
Thousand Dollars ($500,000), plus the amount of any insurance proceeds
actually received by Seller (the "Hazardous Waste Dollar Limit"). For
purposes of this Agreement, Curable Hazardous Waste Defects are those
which, in the aggregate, can be cured by an expenditure of money and/or
the incurring of expenses in an amount equal to or less than the
Hazardous Waste Dollar Limit, and which can be cured within the time
frames provided for in this Agreement for the Closing to occur. If it
is reasonably apparent to Seller that the Hazardous Waste Defects are
not Curable Hazardous Waste Defects, Seller need expend no money or any
further money, as the case may be, nor incur any expense or any further
expense, as the case may be, to cure any such Defects.
7.2.3 Miscellaneous Other. If any other defects exist
("Existing Other Defects") during the Due Diligence Period, Seller
shall have no obligation to cure any Existing Other Defects which are
not objected to by Buyer during the Due Diligence Period. At Closing,
Buyer shall be obligated to accept title to the Property subject to
Existing Other Defects not so objected to. With respect to any Existing
Other Defects which are objected to by Buyer during the Due Diligence
Period, and which are Curable Other Defects (as hereinafter defined),
Seller shall be obligated to expend money and/or incur expenses, but
only up to a total of One Hundred Thousand Dollars ($100,000)(the
"Other Dollar Limit") to cure, in the aggregate, the Existing Other
Defects and Curable Other Defects arising after the expiration of the
Due Diligence Period and objected to by Buyer by prompt notice to
Seller (the "Subsequent Other Defects"). For purposes of this
Agreement, "Curable Other Defects" are those Existing Other Defects and
Subsequent Other Defects which, in the aggregate, can be cured by an
expenditure of money and/or the incurring of expenses in an amount
equal to or less than the Other Dollar Limit, and which can be cured
within the time frames provided for in this Agreement for the Closing
to occur. If it is reasonably apparent to Seller that the Existing
Other Defects and the Subsequent Other Defects are not Curable Other
Defects, Seller need expend no money or any further money, as the case
may be, or incur any expense or further expense, as the case may be, to
cure any such Defects.
7.2.4 Overall Dollar Limit. Notwithstanding anything to the
contrary contained in Sections 7.2.1, 7.2.2 and 7.2.3, if it is
reasonably apparent to Seller that (i) the Existing Title Defects and
Subsequent Title Defects, (ii) the Hazardous Waste Defects,
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and/or (iii) the Existing Other Defects and the Subsequent Other
Defects, are not Curable Title Defects, Curable Hazardous Waste
Defects, and/or Curable Other Defects, as the case may be, Seller need
not expend any money or any further money, or incur any expense or any
further expense to cure any Defects under Sections 7.2.1, 7.2.2 or
7.2.3, respectively, unless a written agreement, reasonably
satisfactory to Seller is entered into by Buyer and Seller, whereby
Buyer will fund all monies in excess of the applicable Dollar Limits to
cure all applicable Defects under Sections 7.2.1, 7.2.2 and 7.2.3. Such
monies funded by Buyer shall not be applicable to the Purchase Price
nor will they reduce the Purchase Price.
7.3 If Seller shall so request, Buyer will allow Seller to pay
from the balance of the Purchase Price as much thereof as may be
necessary to satisfy any lien or encumbrance which Seller is obligated
or elects to pay or to cure hereunder and will provide Seller at the
Closing with separate certified and/or official bank checks or effect
such additional wire transfers, payable as directed by Seller for such
purpose.
7.4 If, on the Closing Date, Seller shall have failed so to
remove or remedy any defects in title or violations of applicable laws
or regulations or deliver possession of the Property as the case may
be, all as herein agreed, or at such earlier time as Seller shall
notify Buyer that it is unable or not obligated to cure any Existing
Title Defects, Subsequent Title Defects, Hazardous Waste Defects,
Existing Other Defects or Subsequent Other Defects, as the case may be,
all as herein agreed, then Buyer may elect, by delivery of notice to
Seller (a) to accept at Closing such title as the Seller can deliver to
the Property in its then condition and to pay therefor the Purchase
Price without deduction, in which case at Closing Seller shall convey
and Buyer shall accept such title to the Property as the Seller can
deliver in its then condition, or (b) to terminate this Agreement by
notice to Seller, in which event (i) the Deposit plus interest shall be
returned to the Buyer, (ii) Seller shall pay to Buyer an amount equal
to Twenty Thousand Dollars ($20,000) per month commencing on the day
after the Due Diligence Expiration Date through the date Seller informs
Buyer that it is unable or not obligated to cure or remedy any Existing
Title Defects, Subsequent Title Defects, Hazardous Waste Defects,
Existing Other Defects or Subsequent Other Defects, as the case may be,
all as herein agreed, to reimburse Buyer for a portion of Buyer's
Development Expenses (as such term is hereinafter defined), pro rated
for any partial month occurring within such period, and this Agreement,
other than the Termination Surviving Obligations, shall terminate
without recourse to either party at law or in equity. As used in this
Agreement, the term "Buyer's Development Expenses" shall mean,
collectively, direct out-of-pocket, third-party costs and expenses
incurred by Buyer and related solely to the development of the Property
for Buyer's intended use thereof, which costs and expenses shall not,
in any event include, inter alia, costs and expenses expended by Buyer
pursuant to Section 17 and Section 18 hereof, nor the costs associated
with its existing overhead, and shall be limited solely to
architectural and design, engineering and legal fees and expenses, as
well as permitting fees, all of which shall be evidenced by paid
invoices or other evidence reasonably satisfactory to Seller.
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8. Acceptance of the Deed. The delivery of the Deed by Seller together
with the other closing documents required to be delivered hereunder, and the
acceptance thereof by Buyer or the nominee designated by Buyer, as the case may
be, shall be deemed to be a full performance and discharge of every agreement
and obligation herein contained or expressed, except for those provisions which
by the express terms of this Agreement are intended to survive the Closing.
9. Representations and Warranties. (a) Seller and Instron Corporation
represents, covenants and warrants to Buyer, as of the date of this Agreement
and as of the Closing, as follows:
(i) Seller is a Massachusetts business trust that has
been duly organized and is validly existing under the laws of
the Commonwealth of Massachusetts, the sole beneficiary of
which is Instron Corporation, a Massachusetts corporation
("Instron Corporation"), and the sole purpose of Seller is to
acquire and hold certain real and personal property located in
the Town of Canton, Massachusetts;
(ii) a true and accurate copy of the Seller's
Declaration of Trust, including all amendments thereto, has
been delivered to Buyer prior to the date hereof.
(iii) From the date of this Agreement until the
Closing Date, Seller shall continue to have the right to own
and operate the Property and the Remaining Property, and
Seller shall engage in no other business or venture, provided
that it is expressly acknowledged and agreed that Seller may
continue to acquire and hold additional real estate and
personal property located in the Town of Canton,
Massachusetts, in the vicinity of the Instron Site.
(iv) Except for the Boston Mutual lease, there are no
agreements or contracts affecting all or any part of the
Property or the use thereof to which Seller is a party which
would be binding upon or otherwise affect the Buyer that would
not be terminable upon thirty (30) days notice by Buyer from
and after the Closing Date;
(v) Seller has the legal right, power and authority
to enter into this Agreement and to perform all of its
obligations hereunder and the execution and delivery of this
Agreement and the performance by Seller of its obligations
hereunder (1) have been duly authorized by all requisite
action of the beneficiaries of Seller and (2) will not
conflict with, or result in a breach of, any of the terms,
covenants and provisions of the Declaration of Trust or of any
judgment, writ, injunction or decree of any court or
governmental authority, or any agreement or instrument to
which Seller is a party or by which Seller is otherwise bound;
and Seller has delivered true, correct and complete copies of
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the direction of its beneficiary authorizing the execution and
delivery of this Agreement and the consummation of the
transactions contemplated hereby;
(vi) To Seller's actual knowledge, the Property is
not in material violation of any zoning, subdivision,
building, health, traffic, environmental, flood control or
other applicable rules, regulations, ordinances or statutes of
any local, state or federal authorities or any other
governmental entity having jurisdiction over the Property;
(vii) Except as Seller will advise Buyer in writing
within twenty-one (21) days of the date hereof, to Seller's
actual knowledge, Seller has not generated, stored, released,
discharged, or disposed of hazardous substances or wastes from
or on the Property during the period of Seller's ownership in
violation of law, and no hazardous substances or wastes have
been generated, stored, released, discharged or disposed of
from or on the Property in violation of law. As used in this
Agreement, the terms "Hazardous Substances" and "Hazardous
Waste" shall have the meaning set forth in the Comprehensive
Environmental Response, Compensation Liability Act, as
amended, and the regulations thereunder, the Resource
Conservation and Recovery Act, as amended, and the regulations
thereunder, and the Federal Clean Water Act, as amended, and
the regulations thereunder, and such terms shall also include
asbestos and petroleum products; and
(viii) Seller has not received written notice of any
condemnation proceeding pending or threatened against all or
any part of the Property.
It shall be a condition of Buyer's obligation to close under this
Agreement that all warranties and representations made hereunder shall be
materially true (subject to exceptions thereto approved by Buyer in writing as
of the Closing), and Seller shall deliver to Buyer at the Closing a certificate
to that effect reasonably satisfactory in form and substance to Buyer. In the
event any warranty or representation made herein shall not be materially true at
the Closing, then, at Buyer's option the Deposit shall forthwith be refunded to
Buyer, with the interest earned thereon, and except for the Termination
Surviving Obligations, this Agreement shall be void without recourse to either
party at law or in equity.
The representations and warranties set forth in this Section 9(a) above
are subject to the following express limitations:
(i) all of the representations and warranties
contained in this Agreement are made to the best of Seller's
and Instron Corporation's actual knowledge, and without any
obligation either to make any inquiry or investigation beyond
such actual knowledge; and
(ii) whenever reference is made to the actual
knowledge of Seller hereunder, the parties intend that such
knowledge will be limited solely to the
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actual knowledge of the officers of Instron Corporation, who
have not made and are not under any duty to make any
independent inquiry or investigation with respect to the
subject of any representation or warranty.
(b) Buyer represents, covenants and warrants to Seller, as of
the date hereof, and as of the Closing, as follows:
(i) Buyer is a corporation, duly organized, validly
existing and in good standing under the laws of the
Commonwealth of Massachusetts;
(ii) Buyer has the legal right, power and authority
to enter into this Agreement and to perform all of its
obligations hereunder and the execution and delivery of this
Agreement and the performance by Buyer of its obligations
hereunder (i) have been duly authorized by all necessary
corporate acts of Buyer and (ii) will not conflict with, or
result in a breach of, any of the terms, covenants or
provisions of the Articles of Organization or By-laws of
Buyer, or, of any judgment, writ, injunction or decree of any
court or governmental authority, or any agreement or
instrument to which Buyer is a party or by which it is bound;
and Buyer has delivered true, correct and complete copies of
the resolutions of its board of directors authorizing the
execution and delivery of this Agreement and the consummation
of the transactions contemplated hereby;
(iii) neither Seller nor any of the employees, agents
or attorneys of Seller have made any verbal or written
representations, warranties, promises or guaranties whatsoever
to Buyer, whether express or implied, and, in particular, that
no such representations, warranties, promises or guaranties
have been made with respect to the physical condition or
operation of Property, the actual or projected revenue and
expenses of the Property, the zoning and other laws,
regulations and rules applicable to the Property or the
compliance of the Property therewith, the amount of building
space available on the Property, whether the physical
conditions of the Property will support any particular
development, whether any particular development is permitted
pursuant to any applicable laws, ordinances, rules or
regulations of any governmental authority having jurisdiction
over the Property, or whether any particular development is or
is not possible for any other reason, the use or occupancy of
the Property or any part thereof or any other matter or thing
affecting or related to the Property or the transactions
contemplated hereby, except as, and solely to the extent,
herein specifically set forth; and
(iv) Buyer has not relied upon any such
representations, warranties, promises or guaranties or upon
any statements made in any informational brochure with respect
to the Property and has entered into this Agreement after
having made and relied solely on its own independent
investigation, inspection, analysis, appraisal, examination
and evaluation of the facts and circumstances.
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10. Operation of the Property. Seller shall not, without the prior
written consent of Buyer, enter into any lease or other agreement concerning
occupancy or use of any of the Property or any service or other agreement
concerning the operation, maintenance or ownership of the Property or any
portion thereof which is not terminable upon thirty days' prior written notice
without penalty, from and after the Closing. Seller agrees to inform Buyer of
any real estate tax abatements or appeals filed with the Town of Canton during
the term of this Agreement. In the event that Seller grants a mortgage on the
Property, Seller shall obtain a recognition agreement from any such mortgagee
pursuant to which such mortgagee shall recognize this Agreement and acknowledge
that such mortgage is and shall be subordinate to this Agreement.
11. Use of Money to Clear Title. To enable Seller to make conveyance as
herein provided, Seller may, at the Closing, use the Purchase Price or any
portion thereof to clear the title of any or all encumbrances or interests,
provided that provision is made at the Closing for recording of all instruments
so procured as is customary for commercial real estate transactions in
Massachusetts.
12. IRS Form 1099-S Designation. In order to comply with information
reporting requirements of Section 6045(e) of the Internal Revenue Code of 1986,
as amended, and the Treasury Regulations thereunder, the parties agree (1) to
execute an IRS Form 1099-S Designation Agreement at or prior to the Closing to
designate Buyer's attorney (the "Designee") as the party who shall be
responsible for reporting the contemplated sale of the Property to the Internal
Revenue Service (the "IRS") on IRS Form 1099-S; (2) to provide the Designee with
the information necessary to complete Form 1099-S; (3) that the Designee shall
not be liable for the actions taken under this Agreement, or for the
consequences of those actions, except as they may be the result of negligence or
willful misconduct on the part of the Designee; and (4) that the Designee shall
be indemnified by the parties for any costs or expenses incurred as a result of
the actions taken hereunder, except as they may be the result of negligence or
willful misconduct on the part of the Designee. The Designee shall provide all
parties to this transaction with copies of the IRS Forms 1099-S filed with the
IRS and with any other documents used to complete IRS Form 1099-S.
13. Eminent Domain. If, prior to the Closing, all or any material
portion of the Property is condemned or condemnation proceedings are threatened
or commenced against all or any portion of the Property, Seller agrees to give
Buyer written notice of such occurrence and the nature and extent of such
condemnation, and Buyer, by notice to Seller, to be received within thirty (30)
calendar days of Buyer's receipt of Seller's notice of such condemnation matter,
or the Closing Date, whichever is earlier, may elect to terminate this
Agreement. In the event Buyer terminates this Agreement pursuant to the
foregoing sentence, Escrow Agent shall deliver the Deposit plus interest to
Buyer, and except for the Termination Surviving Obligations, this Agreement
shall terminate without recourse to either party at law or in equity. If Buyer
does not elect to terminate this Agreement following receipt of such notice from
Seller, as provided above, this Agreement shall remain in full force and effect
and the conveyance of the Property contemplated herein, less any interest taken
by eminent domain or condemnation, or sale in lieu thereof, shall be effected
with no further adjustments on account
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of such taking. At the Closing, Seller shall assign, transfer and set over to
Buyer all of Seller's right, title and interest in and to any awards or payments
for the actual value of the portion of the Property taken, that have been or may
thereafter be made for any such taking or sale in lieu thereof, to the extent
such award or payments shall not have theretofore been used for restoration of
the Property pursuant to a plan of restoration approved in writing by Buyer.
14. Adjustments. Real estate taxes, water and sewer charges and other
utility charges shall be apportioned as of the Closing and the net amount
thereof shall be added to or deducted from, as the case may be, the Purchase
Price. At Closing, Seller and Buyer shall enter into a tax proration agreement
in the form attached hereto as Exhibit G allocating to the Property the portion
of the real estate taxes and assessments for the Instron Site which corresponds
to the assessed value of the Land and the improvements located thereon and
providing for the timely payment of such taxes and assessments by Seller and
timely reimbursement of Seller by Buyer for the portion of such taxes and
assessments allocable to the Property until such time as the Property and the
Remaining Property are separately assessed by the Town of Canton. If, at the
Closing, real property taxes for the then fiscal tax period are not known, the
apportionment of real property taxes called for herein shall be made on the
basis of the real property taxes for the preceding fiscal tax period, and an
appropriate adjustment shall be made when such real property taxes are known. If
the taxes which are to be apportioned shall thereafter be reduced by abatement,
the amount of such abatement, less the reasonable cost of obtaining the same,
shall be apportioned between the parties, provided that neither party shall be
obligated to institute or prosecute proceedings for an abatement.
The provisions of this Section 14 shall survive the Closing.
15. Broker; Indemnity. Seller and Buyer each represents and warrants to
the other that it has dealt with no real estate broker or other person who would
be entitled to be paid a commission by reason of the procurement of this
Agreement or the transaction which is the subject matter hereof, except
Spaulding & Slye, and each agrees to indemnify and hold the other harmless from
and against any loss, cost, damage or expense arising out of any breach by the
indemnifying party of the foregoing representation and warranty. Seller shall be
responsible for the payment of all amounts due to Spaulding & Slye. Without
limiting the foregoing, Buyer acknowledges and agrees that Buyer shall be solely
responsible for the payment of any fees or other payments due to Moe Tarkinow
(who was engaged by Buyer), if any, in connection with the transactions
contemplated by this Agreement. The indemnities in this Section 15 shall survive
the Closing or earlier termination of this Agreement.
16. Deposit. The Deposit shall be held by the Escrow Agent and
deposited forthwith in an interest-bearing account at a national banking
association reasonably satisfactory to Seller and Buyer, or such other
depository or investment, insured or guaranteed by the United States Government
designated by Buyer and reasonably satisfactory to Seller, as earnest money for
the proper performance of this Agreement on the part of Buyer, subject to the
terms of this Agreement, and shall be duly accounted for at the Closing. All
interest on the Deposit accruing prior to the Closing Date shall be applied to
the payment of the Purchase Price, except that: (x) if Seller shall fail to
perform Seller's agreements hereunder and the Closing does not occur on that
account, the entirety of such interest shall be earned by and paid
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<PAGE> 20
to Buyer; or (y) if Buyer shall fail to fulfill the Buyer's agreements hereunder
and the Closing does not occur on that account, the entirety of such interest
earned on the Deposit during the period that each portion of the Deposit is
nonrefundable shall be earned by and paid to Seller. In addition if the Closing
does not occur, for any reason other than Seller's default, on or before the
date which is five hundred forty-five (545) days from the date hereof, subject
to Buyer's right to extend the Closing Date for a period of up to one hundred
eighty (180) days in the event of an appeal of a Required Permit or, provided
all Required Permits have been obtained, if an appeal period for a Required
Permit has not expired, as set forth in Section 5 hereof, then all interest
earned on the Deposit during the period that each portion of the Deposit is
nonrefundable shall be earned by and paid to Seller. The Escrow Agent shall not
be liable for any action or non-action taken in good faith in connection with
the performance of its duties hereunder, but shall be liable only for its own
gross negligence or willful default or misconduct. Notwithstanding anything
contained in this Agreement to the contrary with respect to the obligations of
the Escrow Agent, should any dispute arise with respect to the delivery and/or
ownership or right to possession of the Deposit or any interest earned thereon,
the Escrow Agent shall have no liability to any party hereto for retaining
dominion and control over such amount until such dispute shall have been
settled: (x) by mutual agreement between the parties, or (y) by final order,
decree or judgment by a court of competent jurisdiction in the United States of
America (and no such order, decree or judgment shall be deemed to be "final"
unless and until the time of appeal has expired and no appeal has been
perfected); and the Escrow Agent shall make payment of such amount as the
parties may have mutually agreed or in accordance with such final order, decree
or judgment. In no event shall the Escrow Agent be under any duty whatsoever to
institute or defend any such proceeding, and the parties agree to reimburse in
equal shares, Escrow Agent for its cost incurred in connection with any such
dispute.
17. Remedies.
(a) If Buyer shall fail to fulfill Buyer's obligations
hereunder, the Deposit, together with all interest accrued on the
Deposit during the period that each portion of the Deposit is
nonrefundable shall be paid to Seller as full and complete liquidated
damages and not as a penalty, and that shall be Seller's sole remedy at
law or in equity; and, except for the Termination Surviving
Obligations, all obligations of Seller and Buyer hereunder shall
terminate without recourse to either party.
(b) Subject to the immediately succeeding sentence, if Seller
defaults in its obligations under any provision of this Agreement
applicable to it, Buyer shall, as its sole and exclusive remedy at law
and in equity have the right either (i) to have the Deposit plus
interest returned forthwith to Buyer in accordance with the terms of
this Agreement, in which event this Agreement, other than the
Termination Surviving Obligations, shall terminate without recourse to
either party at law or in equity, or (ii) to institute proceeding to
specifically enforce Seller's obligations. In the event that Seller,
through the commission of a willful, knowing and intentional
affirmative action, taken with the express intention of breaching the
terms of this Agreement, fails to perform its obligation to close the
transaction contemplated by this Agreement, Buyer
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<PAGE> 21
shall, as its sole exclusive remedy at law and in equity have the right
either (i) to have the Deposit plus interest returned forthwith to
Buyer in accordance with the terms of this Agreement, in which event
this Agreement, other than Termination Surviving Obligations, shall
terminate without recourse to either party at law or in equity, (ii) to
institute proceedings to specifically enforce Seller's obligations, or
(iii) to bring suit to collect all of Buyer's Development Expenses
through the date of such breach, in which event this Agreement, other
than the Termination Surviving Obligations, shall terminate without
recourse to either party at law or in equity; provided however that in
no event shall Seller ever be liable for any other direct, nor any
consequential damages whatsoever. The immediately preceding sentence
shall not apply to a voluntary bankruptcy or a voluntary assignment for
the benefit of creditors.
18. Due Diligence Inspections; Access.
18.1 After the execution of this Agreement, Buyer shall
promptly commence and thereafter diligently perform its due diligence
investigation of the Property. Buyer shall have until February 20, 1997
(the "Due Diligence Expiration Date") to complete its due diligence
review of the condition of the Property. Buyer shall, by the Due
Diligence Expiration Date, have performed all such other due diligence
and reviewed all such information, reports and materials with respect
to the Property, except for matters relating to the Required Permits
for the Project. At any time prior to the Due Diligence Expiration Date
Buyer shall have the right to terminate this Agreement for any reason
by delivery of written notice thereof to Seller on or before such Due
Diligence Expiration Date. If Buyer shall terminate this Agreement
pursuant to this Section 18, then Seller shall cause Escrow Agent to
refund to Buyer the Deposit, together with all interest earned thereon,
and except for Termination Surviving Obligations this Agreement shall
be void without recourse to either party at law or in equity. If Buyer
does not terminate this Agreement in accordance with the provisions of
this Section 18, Buyer shall have no right hereunder to terminate this
Agreement on account of the title or condition of the Property, or for
any other matter existing as of the Due Diligence Expiration Date
relating to the Property.
18.2 From and after the date of this Agreement and upon
reasonable notice and at reasonable times, Seller shall afford to the
officers, employees, attorneys, accountants and other authorized
representatives of Buyer reasonable access to the Instron Site in order
that Buyer may have full opportunity to inspect, take measurements,
conduct surveys, perform tests, show the Instron Site to contractors,
architects, surveyors, engineers, insurers, banks and other lenders or
investors, and to make legal, financial, engineering, accounting and
other reviews or investigations of the Instron Site, provided that
Buyer's access to the Instron Site shall be limited as reasonably
necessary to avoid disruption of Seller's operations on the Instron
Site, including the Land and the Remaining Property, and, in no event
shall the access to the Remaining Property granted to Buyer hereunder
permit the Buyer to perform any environmental tests or investigations
of any kind on the Remaining Property. Buyer will indemnify and hold
harmless Seller from all claims, liabilities, loss, costs,
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penalties, expenses and damages, including reasonable attorneys' fees
and expenses, of any kind or nature whatsoever (whether or not arising
out of third-party claims and including all amounts paid in
investigation, defense and/or settlement of the foregoing) arising out
of such tests, surveys, inspections and studies of the Instron Site.
Buyer will promptly repair any damage resulting to the Instron Site due
to such tests, surveys, inspections and studies or, if requested by
Seller, reimburse Seller for all expenses incurred by Seller in
repairing such damages if Buyer does not promptly repair such damage.
The foregoing agreement of indemnity, repair and reimbursement shall
survive the Closing or any termination of this Agreement. Buyer agrees
that during the term of this Agreement, Buyer or Buyer's agents shall
carry not less than One Million Dollars ($1,000,000) per occurrence and
Two Million Dollars ($2,000,000) in the aggregate, or such other
amounts as Seller and Buyer may agree to, commercial general liability
insurance, including contractual liability, which insures Buyer's
indemnity, repair and reimbursement obligations hereunder, and which
policy shall name Seller as an additional insured. Prior to accessing
the Instron Site, Buyer shall provide Seller with written evidence of
such insurance.
18.3 Seller shall make available to Buyer for its review and
copying, to the extent in the possession of Seller, all "as built"
plans and specifications of the Property, surveys, site plans, building
plans and other materials it has regarding the Instron Site, for review
by Buyer and/or its engineers and other agents, at the Instron Site.
All materials and information provided to Buyer with respect to the
Instron Site are provided for informational purposes only and do not
constitute representations or warranties of any kind.
18.4 Promptly upon request from Seller while this Agreement is
in effect, and upon the termination of this Agreement, Buyer shall
deliver, at Buyer's expense, copies of all plans, surveys, test results
and any other reports, summaries and memoranda resulting from, or
issued or prepared in connection with, the performance of its due
diligence investigation of the Property. This provision shall survive
the termination of this Agreement.
19. Right of First Offer. If the Closing occurs, Buyer shall have a
right of first offer with respect to the Remaining Property on the terms and
conditions set forth in this Section 19 (the "Right of First Offer"). If at any
time during the fifteen (15) year period immediately following the Closing,
Seller, or any party who acquires all of the assets or stock of the beneficiary
of Seller, decides to sell the Remaining Property, Seller, or any such successor
beneficiary of Seller shall give Buyer notice (the "Seller's Notice") of the
sale price and payment terms on which Seller or any such successor beneficiary
will be willing to sell the Remaining Property. If Buyer, within sixty (60) days
after the receipt of Seller's Notice, agrees in writing to purchase the
Remaining Property for the price and on the payment terms stated in the Seller's
Notice, Seller and Buyer shall enter into a purchase and sale agreement not
later than sixty (60) days after Buyer's notice to Seller on terms and
conditions mutually acceptable to each of Buyer and Seller in their respective
reasonable discretion, provided however that such terms shall in any event
provide for (i) a deposit of seven and one-half
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percent (7 1/2%) of the purchase price due upon the execution of the purchase
and sale agreement, which shall become nonrefundable and earned by Seller in
consecutive monthly increments of $100,000 following the expiration of a ninety
(90) day due diligence period (during which Buyer shall have the right to
terminate the purchase and sale agreement and receive a refund of the deposit),
and shall be Seller's sole remedy at law and in equity in the event that Buyer
defaults on its obligations thereunder, and (ii) a closing on the sale of the
Remaining Property to occur not later than twelve (12) months from the date of
execution of such purchase and sale agreement, provided, however, that Buyer may
elect upon delivery of an additional deposit of five percent 5% of the purchase
price (which shall be fully nonrefundable on the date that it is delivered) to
extend the date for closing for an additional six (6) months. If Buyer fails to
close the purchase within such twelve (12) month period, or if the foregoing
extension option is duly exercised, within such eighteen (18) month period, for
any reason other than Seller's default, the Right of First Offer shall
automatically terminate and be of no further force or effect.
If Buyer, within sixty (60) days after the receipt of Seller's Notice,
does not so agree in writing to purchase the Remaining Property, or if Buyer
does so agree, but the parties do not execute a mutually acceptable purchase and
sale agreement within the sixty (60) day period set forth in the preceding
paragraph, Seller may thereafter sell the Remaining Property to any other party
for a price at least equal to the price offered to Buyer, provided that a
purchase and sale agreement is entered into within the later of (i) six (6)
months from the date Seller receives written notice that Buyer does not wish to
purchase the Remaining Property or if no such notice is received, within six (6)
months from the expiration of the sixty (60) day period following receipt of
Seller's Notice, or (ii) if Buyer elects to purchase the Remaining Property
within sixty (60) days of receipt of Seller's Notice, but a mutually
satisfactory purchase and sale agreement is not executed within the required
sixty (60) day period, within six (6) months from the expiration of such sixty
(60) day period, or such later date as such sixty (60) day period may be
extended to by written agreement between Buyer and Seller. Upon the closing of
the sale to another party, at a price at least equal to the price offered to
Buyer, within eighteen (18) months from the date of the execution of such
purchase and sale agreement, Buyer's Right of First Offer shall automatically
terminate and be of no further force or effect. If Seller shall fail to sell the
Remaining Property to another party for at least the price offered to Buyer
within eighteen (18) months from the date of Seller's Notice, or enter into a
purchase and sale agreement within the applicable time frame set forth above,
Buyer's Right of First Offer shall be deemed reinstated and in full force and
effect. This reinstatement provision shall not be applicable in the event that
Buyer's Right of First Offer is automatically terminated in accordance with the
terms and provisions set forth in the paragraph immediately above.
Buyer's Right of First Offer shall not apply to any mortgage, deed of
trust, ground lease or other financing of the Remaining Property, to any
transfer by foreclosure sale or deed in lieu of foreclosure, to any transfer for
nominal or no consideration, or to any transfer to a legal entity controlling,
controlled by or under common control with Seller, provided, however, that the
Remaining Property shall remain subject to the Right of First Offer
notwithstanding any of the foregoing transfers, grants, or conveyances
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<PAGE> 24
The terms of the Buyer's Right of First Offer shall be set forth in the
Deed to be delivered and recorded at Closing.
20. Seller's Development Cooperation and Approval Rights. Seller shall
cooperate with Buyer in connection with Buyer's efforts to obtain the Required
Permits. Such cooperation shall include the execution by Seller of such
instruments and applications as Buyer shall reasonably require in connection
with Buyer's efforts to obtain the Required Permits. Seller shall not be
required to incur any out-of-pocket costs, or spend more than a minimal amount
of time, in connection with such cooperation.
Buyer shall endeavor, using best efforts, to in a timely manner, keep
Seller, through its representatives, Spaulding & Slye and Goodwin, Procter &
Hoar (the "Seller's Representatives") informed in all material respects of the
proposed plans for the Project, and the status of all applications to the
various federal, state and local governmental agencies having jurisdiction over
the Project for the issuance of Required Permits, and of the time and place of
all such public meetings and hearings with governmental and other agencies
and/or their representatives, at least five (5) days in advance thereof, which
information shall be transmitted from Buyer to Seller by, inter alia, without
limitation, regular monthly meetings at which, one of the agenda items shall
always be upcoming public meetings and hearings. The parties acknowledge that
Seller has a vested interest in the Buyer's pursuit of the Required Permits, to
protect the use, value, marketability, and development potential of the Property
and the Remaining Land. Therefore, prior to filing any application for a
Required Permit or making any other submission in connection therewith which
involves any material change in any architectural, engineering or other
development plans previously delivered to Seller, and as Buyer begins to develop
architectural, engineering and other development plans for the Property, Seller
shall have the right to review all of the same, including, without limitation,
any Environmental Notification Form ("ENF"), and all reports, plans and other
materials to be submitted with the ENF. Buyer further agrees, without limiting
any other term of this Agreement, that in the course of the Buyer's dealings
with the Town of Canton and other governmental authorities having jurisdiction
over the Property, Buyer covenants and agrees that it shall not enter into any
agreements or otherwise engage in any negotiations that will have an obvious and
material detrimental effect on the Remaining Land. The provisions of the
immediately preceding sentence shall survive the Closing, or termination of this
Agreement.
Seller agrees to cooperate and support Buyer in its efforts to obtain
the Required Permits and shall not oppose any requests, applications or filings
for any Required Permit.
21. Closing Costs. Seller shall pay the cost of such deed excise taxes
as are required for recordation of the Deed. Buyer shall pay all recording fees
for the Deed, municipal lien certificates and other documents to be recorded in
connection with the transaction contemplated herein (other than documents
recorded to clear title defects), all costs of its title insurance, and all
escrow and other similar fees charged by Escrow Agent. Buyer and Seller shall
each pay for the cost of their own attorneys, accountants, engineers,
consultants and other parties retained by them, and Buyer shall pay for all of
its costs associated with its due diligence investigations pertaining to the
Instron Site and the costs of
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<PAGE> 25
obtaining permits, licenses and approvals associated with the Project,
including, without limitation, the Required Permits. Other closing costs not
herein provided for shall be allocated in accordance with customary practices in
eastern Massachusetts.
22. Escrow Agent's Joinder. Escrow Agent joins in this Agreement for
the sole purpose of agreeing to hold and deliver the Deposit as required under
this Agreement, subject to all terms of the Escrow Agreement of even date
herewith by and among Buyer, Seller and Escrow Agent (the "Escrow Agreement").
Escrow Agent's liability under this Agreement shall be subject to all provisions
of the Escrow Agreement.
23. Indemnifications. Buyer agrees that Buyer will indemnify Seller for
any and all claims, losses, liabilities, costs, damages and expenses, including,
without limitation, reasonable attorneys' fees and disbursements, based upon or
arising out of any event occurring in or about the Instron Site prior to the
Closing Date or in connection with any act or omission of Buyer or any of its
agents, employees or contractors prior to the Closing Date, including, without
limitation, in connection with any due diligence or review performed by Buyer
(except to the extent resulting from any act or omission of Seller, its agents,
employees or contractors). Seller agrees that Seller will indemnify Buyer for
any claims, losses, liabilities, costs, damages and expenses, including, without
limitation, reasonable attorneys' fees and disbursements, arising out of any
event occurring in, on or about the Instron Site from the date of this Agreement
through the Closing Date (except those resulting from any act or omission of the
Buyer, its agents, employees or contractors). The above indemnities shall
survive the Closing or any termination of this Agreement and apply to any
written claim brought within a period of one (1) year thereafter, provided that
if a party against whom such a claim is raised does not respond to the
complaining party's satisfaction within sixty (60) days after such claim is
made, the above indemnification obligation shall terminate unless a suit is
filed in a court of competent jurisdiction within ten (10) days after the
expiration of such sixty (60) day period. Nothing contained in this Section
shall be deemed to modify or expand any limitations on obligations or
liabilities of Buyer or Seller contained elsewhere in this Agreement.
24. "Structured" Transaction. Buyer, by notice given to Seller at least
sixty (60) days prior to the Closing Date, can require that the structure of the
transaction will be structured so as to achieve certain accounting and reporting
objectives of Buyer, however, that Seller receives the full Purchase Price,
subject to adjustment, as provided herein, and that Seller assumes no actual or
potential additional costs or liabilities in connection with such structure.
25. Notices. All notices required or permitted hereunder shall be in
writing and shall be deemed to be delivered (i) when actually received if
personally delivered or sent by facsimile transmission, or (ii) on the next
business day after delivery to a recognized overnight delivery service, such as
Federal Express, or (iii) three days after deposit in the United States Mail,
postage prepaid, registered or certified mail, return receipt requested, in any
case addressed to Seller or Buyer, as the case may be, as follows:
21
<PAGE> 26
If to Buyer: Reebok International, Ltd.
100 Technology Center Drive
Stoughton, Massachusetts
Fax: (617) 341-1532
Attention: John B. Douglas III, Esq.
With a copy to: Ropes & Gray
One International Place
Boston, Massachusetts 02110
Fax: (617) 951-7050
Attention: Francis X. Hanlon, Esq.
If to Seller: Instron Realty Trust
c/o Instron Corporation
100 Royall Street
Canton, Massachusetts 02021
Fax: (617) 575-5726
Attention: Linton A. Moulding
With a copy to: Goodwin, Procter & Hoar LLP
Exchange Place
Boston MA 02109
Fax: (617) 227-8591
Attention: Lawrence E. Kaplan, P.C.
26. Further Assurances. The parties agree to execute any and all
additional instruments and documents as may be reasonably required in order
fully to effectuate the terms of this Agreement.
27. Choice of Law; Partial Invalidity. The Property is located in The
Commonwealth of Massachusetts, and this Agreement shall be governed by and
enforced in accordance with the laws of The Commonwealth of Massachusetts. Any
provision of this Agreement or portion thereof which is unenforceable or invalid
or the inclusion of which would affect the validity, legality or enforcement of
this Agreement shall be of no effect, but all the remaining provisions of this
Agreement or the remaining portion thereof, as the case may be, shall remain in
full force and effect.
28. Interpretation. The captions and headings throughout this Agreement
are for convenience and reference only, and they shall in no way be held or
deemed to define, modify or alter the meaning, scope or intent of any provision
of this Agreement. Words such as "herein," "hereinafter," "hereof," and
"hereunder" refer to this Agreement as a whole and not merely to the paragraph,
Section or other subdivision in which such words appear, unless the context
otherwise requires. The singular shall include the plural, and the masculine
shall include the feminine and the neuter, and vice versa, unless the context
otherwise requires.
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<PAGE> 27
29. Integration; Amendment. This instrument contains the entire
agreement of the parties, and no representations, warranties or agreements have
been made by either of the parties except as set specifically forth in this
Agreement. All prior or contemporaneous agreements, offers, understandings,
representations and statements, whether oral or written, made by Buyer, Seller
or their respective employees or agents respecting any aspects of the
transactions contemplated in this Agreement, including without limitation, all
offering materials, letters, responses to inquiries, proposals or offers or
other materials or communications are merged into this Agreement. No
modification, waiver or amendment of the provisions of this Agreement shall be
effective unless made in writing and signed by the parties hereto.
30. Successors and Assigns. The parties hereto shall not have the
right, without the other party's prior written consent, which consent may be
withheld in such party's sole discretion, to assign or transfer any of their
respective rights, obligations and interests under this Agreement prior to the
Closing, except that (x) either party may assign its interests under this
Agreement to any entity controlling, controlled by or under common control with
such party, without the other party's consent, and (y) Buyer may assign its
interest under this Agreement to an entity reasonably acceptable to Seller as
necessary to structure the transaction so as to achieve certain accounting and
reporting objectives of Buyer. Subject to and without limiting the preceding
sentence, this Agreement is binding upon and inures to the benefit of the
parties hereto and their respective heirs, devisees, executors, administrators,
successors and assigns.
31. Not an Offer; Binding Effect. The submission of an unsigned copy of
this document to Buyer for Buyer's consideration, negotiation or examination
does not constitute an offer to sell the Property, nor an option to or for the
Property. This Agreement shall not be binding or effective until properly
executed and delivered by Seller and Buyer.
32. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
33. Limitation of Liability. None of the Buyer, Seller any advisor to
or entity in any way related to any of them or any officer, director,
shareholder, parent, subsidiary, official, partner, trustee, agent, principal,
heir, estate, successor or assign of any of the foregoing shall have any
personal liability under this Agreement or any document executed in connection
with the transactions contemplated by this Agreement.
34. No Third Party Rights. Nothing in this Agreement, express or
implied, is intended to confer upon any person, other than the parties hereto,
and their respective permitted successors and assigns, any rights or remedies
under or by reason of this Agreement.
35. Time of Essence. Time is of the essence of each and every provision
of this Agreement, whether or not so stated therein.
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<PAGE> 28
36. Recording. Seller agrees that after the execution of this
Agreement, Buyer and Seller shall execute a notice of this Agreement in the form
of the notice of contract attached hereto as Exhibit H which may be recorded
with the Norfolk County Registry of Deeds, and Seller shall execute a mortgage
in favor of Buyer securing Seller's obligations to Buyer hereunder, in the form
attached hereto as Exhibit I, which mortgage may also be recorded with the
Norfolk County Registry of Deeds. A termination of such notice and a discharge
of such mortgage shall be executed at Closing and held in escrow by Seller's
attorney for recording when appropriate.
37. Guaranty of Seller's Obligations. Instron Corporation joins in this
Agreement for the purposes of (i) making the representations and warranties
contained in Section 9(a), and (ii) guaranteeing the obligations of Seller
hereunder, and hereby agrees to guaranty the fulfillment by Seller of its
obligations under this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written and it is to take effect as a sealed
instrument
SELLER:
/s/ James M. McConnell
-------------------------------------------------
James M. McConnell
/s/ Linton A. Moulding
-------------------------------------------------
Linton A. Moulding
Trustees of Instron Realty Trust, but not
individually, nor shall their signatures bind the
beneficiaries individually
INSTRON CORPORATION
By: /s/ Linton Moulding
- ------------------------------
Name: Linton Moulding
Title: Chief Financial Officer
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<PAGE> 29
BUYER:
REEBOK INTERNATIONAL, LTD.
By: /s/ John B. Douglas III
Name: John B. Douglas III
Title: Executive Vice President
ESCROW AGENT:
OLD REPUBLIC NATIONAL TITLE
INSURANCE COMPANY
By: /s/ Jane L. Greenhood
Name: Jane L. Greenhood
Title: Counsel
25
<PAGE> 1
EXHIBIT 2.2
AMENDMENT TO PURCHASE AND SALE AGREEMENT
THIS AMENDMENT TO PURCHASE AND SALE AGREEMENT (this "Amendment") is
entered into as of March 27, 1998 , by and between INSTRON REALTY TRUST under a
declaration of trust (the "Declaration of Trust") dated April 23, 1957, recorded
with Norfolk Registry of Deeds in Book 3557, Page 219, as amended, with an
address of 100 Royall Street, Canton, Massachusetts 02021 ("Seller") and REEBOK
INTERNATIONAL LTD., a Massachusetts corporation, with an address of 100
Technology Center Drive, Stoughton, Massachusetts 02072 ("Buyer").
RECITALS
A. Reference is made to a certain Purchase and Sale Agreement by and
between Seller and Buyer dated as of August 20, 1996 (the "Purchase Agreement").
B. Attached to the Agreement as Exhibit C is a form of Declaration of
Restrictions, Covenants and Easements (the "Declaration"), which, pursuant to
the terms of the Purchase Agreement, Seller and Buyer are to execute, record
with the Norfolk County Registry of Deeds and file with the Norfolk County
Registry District of the Land Court at Closing.
C. The Declaration, provides, inter alia, for a perpetual,
non-exclusive easement, appurtenant to the Property (referred to in the
Declaration as the Reebok Property) and burdening the Remaining Property
(referred to in the Declaration as the Remaining Instron Property), for the use
of a driveway located on the Remaining Property, which, as of the date hereof,
currently exits onto Washington Street, as such driveway may be relocated from
time to time in accordance with the terms of the Declaration.
D. The Declaration further provides that the owner of the Property
(which shall initially be Buyer) has the right, subject to the terms of the
Declaration, to construct a new driveway as more particularly set forth in
Section 2 of the Declaration. The Declaration further provides that the owner of
the Property shall perform such permitted relocation and improvement of the
driveway at its cost and expense.
E. In order to obtain certain permits and approvals needed for its
intended development and use of the Property, Buyer needs to relocate and
improve the existing driveway in a manner that is substantially different than
contemplated by the Declaration. In order to induce Seller to agree to such
reconfiguration, Buyer has agreed to pay for the entire cost of constructing the
new, relocated driveway, as well as certain additional improvements necessitated
by the relocation of the existing driveway to the areas desired by Buyer.
F. Accordingly, Buyer and Seller wish to amend the Purchase Agreement
to provide for the necessary amendments to the Declaration.
<PAGE> 2
AGREEMENT
NOW THEREFORE, in consideration of the foregoing and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Buyer and Seller hereby agree as follows:
1. Recitals; Capitalized Terms. All of the foregoing Recitals
to this Amendment are true and correct and are hereby incorporated in and made a
part of this Amendment to the same extent as if herein set forth in full. All
capitalized terms not otherwise modified or defined herein shall have the same
respective meanings ascribed to them in the Purchase Agreement.
2. Amendment of Exhibit C. The Declaration attached to the
Purchase Agreement as Exhibit C is hereby deleted in its entirety and the form
of Declaration of Restrictions, Covenants and Easements attached hereto as
Exhibit A is hereby substituted in lieu thereof.
3. General Provisions.
(a) Except as set forth in this Amendment, the
Purchase Agreement remains unmodified and in full force and
effect.
(b) This Amendment shall be governed and construed in
accordance with the laws of the Commonwealth of Massachusetts.
This Amendment shall run to, be binding upon, and inure to the
benefit of all successors and assigns of the parties hereto.
The captions used in this Amendment are for convenience only,
and are not part of this Amendment and do not limit, describe
or amplify the terms, provisions or scope of this Amendment.
Each party hereto agrees to execute such documents and take
such acts as any other party hereto may reasonably request to
further effectuate the amendments and transactions
contemplated hereby.
(c) This Amendment may be executed in one or more
counterparts, each of which counterpart when executed and
delivered shall be deemed an original, binding upon all of the
parties hereto, notwithstanding that each of them is not a
signatory to the same counterpart and all of which
counterparts taken together, shall constitute one and the same
instrument. It shall not be necessary in making proof of this
Amendment to produce or account for more than one such
counterpart. Each party hereto represents and warrants that it
has all requisite power and authority to execute and deliver
this Amendment and that the person executing the Amendment on
its behalf is duly authorized to execute this Amendment on
such party's behalf.
2
<PAGE> 3
Executed as an instrument under seal as of the date and year first
written above.
SELLER:
/s/ Linton A. Moulding
----------------------------------------------
Linton A. Moulding
As Trustee of Instron Realty Trust, but not
individually, nor shall his signature bind the
beneficiaries individually
INSTRON CORPORATION
By: /s/ Linton Moulding
------------------------------
Name: Linton Moulding
Title: Chief Financial Officer
BUYER:
REEBOK INTERNATIONAL LTD.
By: /s/ Barry Nagler
----------------------------------------------
Name: Barry Nagler
Title: Senior Vice President and
General Counsel
3
