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: July 2, 1996
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(Date of earliest event reported)
MGI PROPERTIES
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(Exact name of Registrant as specified in its charter)
Massachusetts 1-6833 04-6268740
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(State or other jurisdiction (Commission (I.R.S. Employer
of incorporation) File Number) Identification
Number)
One Winthrop Square, Boston, Massachusetts 02110
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(Address of Principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (617) 422-6000
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This report consists of four consecutively numbered pages.
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Item 2. Acquisition or Disposition of Assets.
On July 2, 1996 MGI Properties ("MGI" or the "Registrant") acquired
230,000 square feet of first-class office space and an additional 25,000 square
feet of retail space in One Portland Square and Two Portland Square, Portland,
Maine, plus adjacent land, currently utilized as a 523-space surface parking lot
for a combined purchase price $31,200,000. MGI's investment in Portland Square
and the adjacent land was acquired from two separate legal entities -- Portland
Square Limited Partnership and Two Portland Square Limited Partnership -- which
have common ownership interests. The purchases were made subject to two separate
pre-existing, non-recourse first mortgage loans which total $21,300,000, and
which bear interest at a weighted average fixed rate of 8.7% and have a weighted
average maturity of eight years. The balance was funded with cash of $9,900,000
derived primarily from advances under MGI's lines of credit with the Bank of
Boston and BayBank. Based on current operations, MGI estimates property
operating income (rental and other income, less property operating expenses and
real estate taxes) will produce an approximate 11.5% initial return prior to
mortgage interest expense.
The Portland Square complex, overlooking Portland Harbor, is one of
the premier office complexes in Portland, Maine. One Portland Square is a
first-class, ten-story office building constructed in 1987. The building was
developed as a condominium and MGI's purchase consists of 104,600 square feet in
floors one through six. As the majority owner of the building, MGI will assume
three of the five seats on the board which governs the condominium association.
Two Portland Square, a first-class, seven-story office building of 150,400
square feet, was completed in 1990. These adjacent buildings are located in the
heart of the downtown Portland, Maine financial district adjoining the historic
Old Port Exchange area and one block from the Portland waterfront. The office
and retail space is currently 99% leased.
Certain matters discussed in this report are forward-looking
statements that are subject to risks and uncertainties that could cause actual
results to differ materially from those projected. Such risks and uncertainties
include, but are not limited to, the Risk Factors referred to in Registrant's
Form 10-Q report for the quarter ended May 31, 1996 and in the Item 1 discussion
of the Registrant's business in its Form 10-K report for the year ended November
30, 1995 under the captions entitled "Environmental Matters" and "Competition,
Regulation and Other Factors."
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
(a), (b) Financial Statements of properties acquired and Pro Forma
Financial Information will be filed on Form 8-K/A as soon as practicable, but
not later than September 15, 1996, as it is currently impracticable to file such
information.
(c) Exhibits
1. Purchase and Sale Agreement, dated as of April 26, 1996, by and
between Portland Square Limited Partnership, a Massachusetts limited partnership
and MGI Properties, a Massachusetts business trust, pertaining to upper and
lower lots, Portland, Maine.
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2. Purchase and Sale Agreement, dated as of April 26, 1996, by and
between Two Portland Square Limited Partnership, a Massachusetts limited
partnership and MGI Properties, a Massachusetts business trust, pertaining to
Two Portland Square, Portland, Maine.
3. Purchase and Sale Agreement, dated as of April 26, 1996, by and
between Portland Square Limited Partnership, a Massachusetts limited partnership
and MGI Properties, a Massachusetts business trust, pertaining to Units #1
through 6, One Portland Square, Portland, Maine.
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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 hereunto duly authorized.
Date: July 16, 1996 /s/ Phillip C. Vitali
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Phillip C. Vitali
Executive Vice President and Treasurer
(Chief Financial Officer)
Date: July 16, 1996 /s/ David P. Morency
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David P. Morency
Controller
(Principal Accounting Officer)
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PURCHASE AND SALE AGREEMENT
UPPER AND LOWER LOTS
PORTLAND, MAINE
BETWEEN
MGI PROPERTIES
-BUYER-
AND
PORTLAND SQUARE LIMITED PARTNERSHIP
-SELLER-
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INDEX TO LEASE
1. DESCRIPTION.......................................................1
2. TITLE; DEED.......................................................1
3. PLAN..............................................................2
4. PURCHASE PRICE....................................................2
5. CLOSING...........................................................3
a. Deed...............................................3
b. Conditions to Buyer's Obligations..................3
c. Real Estate Taxes..................................6
6. POSSESSION AND CONDITION OF UNITS AND PREMISES....................6
7. TITLE DEFECTS; EXTENSION OF TIME TO PERFECT TITLE.................6
8. ACCEPTANCE OF DEED................................................7
9. WARRANTIES AND REPRESENTATIONS....................................7
10. DELIVERY OF PREMISES IN "AS IS" CONDITION........................13
11. DUE DILIGENCE....................................................13
a. Environmental Inspection..........................14
b. Financing Contingency.............................14
12. ACCESS TO INFORMATION............................................15
13. USE OF MONEY TO CLEAR TITLE......................................15
14. INSURANCE........................................................15
15. CLOSING ADJUSTMENTS..............................................15
a. Rents.............................................15
b. Taxes and Expenses of Sale........................16
c. License Fees......................................16
d. Service Contracts.................................16
e. Utilities.........................................16
16. BROKERS..........................................................17
17. BUYER'S DEFAULT; DAMAGES.........................................17
18. ESCROW AGENT; DISPUTES...........................................17
a. Liability of Escrow Agent.........................17
b. Disputes..........................................17
19. PACKAGE OFFER CONTINGENCY........................................19
20. VERRILL & DANA CONTINGENCY.......................................19
21. ENTIRE UNDERSTANDING.............................................19
22. NOTICES..........................................................19
23. CONSTRUCTION OF AGREEMENT........................................20
24. OPERATING COVENANTS..............................................20
25. LIKE-KIND EXCHANGE...............................................21
26. PERSONAL LIABILITY...............................................21
27. SEC RULES........................................................21
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LIST OF EXHIBITS
EXHIBIT A DESCRIPTION OF PROPERTY
EXHIBIT B LIST OF ENCUMBRANCES
EXHIBIT C ASSIGNMENT OF SERVICE AGREEMENTS
EXHIBIT C-1 LIST OF SERVICE CONTRACTS
EXHIBIT D ASSIGNMENT OF PERMITS, APPROVALS AND LICENSES
EXHIBIT E ASSIGNMENT, ACCEPTANCE AND ASSUMPTION OF
LEASES, GUARANTIES, TENANCIES AND OCCUPANCIES
EXHIBIT F LIST OF LEASES/RIGHTS TO PARK
EXHIBIT G WARRANTY BILL OF SALE AND ASSIGNMENT
EXHIBIT G-1 PERSONAL PROPERTY WHICH BELONGS TO OTHERS AND
IS NOT INCLUDED IN SALE
EXHIBIT H INSURANCE CERTIFICATE
EXHIBIT I ACTIONS AGAINST SELLER
EXHIBIT J CLAIMS INVOLVING CONSTRUCTION OF THE PREMISES
EXHIBIT K RENT ROLL AND SECURITY DEPOSITS
EXHIBIT L COMMISSION DUE FROM SELLER/BUYER/OTHER PARTY
EXHIBIT M ASSIGNMENT OF RIGHTS IN AND TO THE MEMORANDUM
OF RIGHTS, OPTIONS & RESTRICTIONS
<PAGE>
PURCHASE AND SALE AGREEMENT
Upper and Lower Lots
Portland, Maine
Purchase and Sale Agreement, dated as of April 26, 1996 (this
"Agreement"), by and between PORTLAND SQUARE LIMITED PARTNERSHIP, a
Massachusetts limited partnership having a business address at 2150 Washington
Street, Newton, MA 02162 ("Seller"), and MGI PROPERTIES, a Massachusetts
business trust having an address at 1 Winthrop Square, Boston, MA 02110
("Buyer").
W I T N E S S E T H :
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. DESCRIPTION. Seller hereby agrees to sell to Buyer and Buyer hereby
agrees to purchase from Seller, upon the terms and conditions hereinafter set
forth, two (2) parcels of land currently used as parking lots located in
Portland, Cumberland County, Maine, one parcel located on the block bounded by
Union Street, Fore Street, Cotton Street and Spring Street Arterial and known as
the Upper Lot and the other parcel located on the block bounded by Fore Street,
Cross Street, Center Street and Commercial Street and known as the Lower Lot,
both parcels more particularly described in Exhibit A attached hereto, together
with the structures and improvements existing thereon and all of Seller's right,
title and interest in and to any streets, ways or alleys abutting or adjoining
thereon and all other rights appurtenant to the parcels and all permits,
licenses, certificates, variances, consents and approvals, plans,
specifications, warranties and guaranties, fixtures owned by Seller, advertising
and leasing brochures, trademarks, development rights, if any, and other
intangible property pertaining to the parcels (the "Intangible Property"),
(collectively, the "Premises").
2. TITLE; DEED. The Premises are to be conveyed by a Maine Warranty
Deed with warranty covenants (the "Deed") running to Buyer or its nominee, and
the Deed shall convey good record, marketable and insurable title free and clear
of any and all liens, claims and encumbrances, except:
(a) Provisions of existing applicable laws and regulations in
effect on the date of the delivery of the Deed, provided the same do not
interfere with the current use of the Premises;
(b) Such real and personal property taxes for the then current
tax period as are not yet due and payable on the date of the recording of the
Deed;
(c) Any liens for municipal betterments assessed on the
Premises after the date of the recording of the Deed;
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(d) The easements, agreements, encumbrances, rights, title or
interests of others and other agreements and other matters as are referenced in
the list of encumbrances attached hereto as Exhibit B so long as the same do not
interfere with the current use of the Premises ("Permitted Encumbrances").
(e) The Equitable Life Assurance Society of the United States
("Equitable") loan documents evidencing a $12,616,000.00 loan ("Loan") secured
by a first mortgage lien on the Premises, including without limitation, a
Mortgage and Security Agreement, as amended by a First and Second Amendment to
Mortgage dated December 10, 1990 and June 1, 1995, respectively, a UCC-1
Financing Statement and an Assignment of Lessor's Interest in Lease, as amended
by a First Amendment dated June 1, 1995 ("Loan Documents");
3. PLAN. If the Deed refers to a plan necessary to be recorded
therewith, Seller shall deliver such plan with the Deed in form adequate for
recording.
4. PURCHASE PRICE. In consideration of Seller's conveyance of the
Premises, Buyer shall pay to Seller the sum of $2,297,500.00 of which
$25,500.00 has been paid by Buyer as a deposit as of this day
("Second Deposit").
$2,272,000.00 representing the balance, be paid as follows:
Approximately $175,535.20 plus interest by assumption
of the Equitable Loan, if Buyer so elects, and the
balance (or, if Buyer does not assume the Loan and
does not exercise its right to terminate this
Agreement pursuant to Paragraph 11(b) hereof, the
full $2,272,000.00) to be paid immediately upon the
recording of the Deed by the Buyer's title insurance
company (the "Title Company") by certified check or
checks or, at Seller's request, by wire transfer in
accordance with wiring instructions provided by
Seller subject only to withholding if required by the
Internal Revenue Service.
$2,297,500.00 TOTAL
All deposits made hereunder shall be held by Atlantic Title Company, 76
Atlantic Avenue, Portland, Maine 04106, as Escrow Agent in an interest-bearing
FDIC insured bank account or accounts (so that no account has in excess of
$100,000) 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, with all interest accrued thereon with regard to
the Deposit from and after the date hereof being applied against the Purchase
Price, except only that accrued and earned interest on the deposit shall be paid
to Buyer in the event the deposit is returned to Buyer for any reason,
including, without limitation, in the event of Seller's failure or inability to
perform Seller's obligations hereunder.
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5. CLOSING. (a) Deed. The Deed is to be delivered at a closing no later
than 11:00 a.m. on June 24, 1996 ("Closing Date") at the Cumberland County
Registry of Deeds unless otherwise agreed upon in writing. It is agreed that
time is of the essence of this Agreement.
(b) Conditions to Buyer's Obligations. Buyer's obligation to
purchase the Premises and pay the Purchase Price shall be subject to the
satisfaction at or before the Closing of each of the following conditions,
unless waived in writing by Buyer:
(i) Deed. Seller shall deliver the Deed, duly
executed and acknowledged by Seller.
(ii) Title Affidavits. Such customary affidavits
and indemnities as the Title Company may
reasonably require in order to issue a
so-called owner's title insurance policy
without the standard exceptions, including
without limitation, an exception for
mechanics' and materialman's liens or for
parties in possession, and with affirmative
insurance to the effect that Verrill &
Dana's rights of first offer, rights of
first refusal and options to purchase has
been complied with and will not affect
Buyer's title except to the extent that it
may apply to future sales;
(iii) Non-Foreign Affidavit. A non-foreign person
affidavit executed to reflect the status of
Seller;
(iv) Assignment of Service Agreements. Seller
shall deliver an instrument of assignment
and assumption in substantially the form of
Exhibit C, duly executed and acknowledged by
Seller, assigning to Buyer Seller's interest
in the written agreements relative to the
operation, management, maintenance,
security, finance or insurance for the
Premises listed on Exhibit C-1 ("Service
Agreements") in effect on the Closing Date
but only those which Buyer has elected to
assume, and evidence of the termination of
all Service Agreements not so assumed;
(v) Assignment of Permits. Seller shall deliver
a blanket assignment to Buyer in the form of
Exhibit D of all permits, licenses,
certificates, variances, consents and
approvals pertaining to the Premises, duly
executed and acknowledged by Seller,
together with any originals of such
instruments in Seller's possession or
control, and together with approvals of any
party which may be required in order to
effectuate such assignments including
without limitation, if required, the
approval of any state or local authority.
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(vi) Assignment of Leases. Seller shall deliver
an instrument of assignment and assumption
in substantially the form of Exhibit E, duly
executed and acknowledged by Seller,
assigning to Buyer Seller's interest in the
leases and lease guaranties, if any, set
forth in Exhibit F for space in the Premises
in effect on the Closing Date;
(vii) Warranty Bill of Sale and Assignment. Seller
shall deliver to Buyer a Bill of Sale in the
form attached hereto as Exhibit G for all
apparatus, fixtures and articles of personal
property owned by Seller and attached to or
used or procured for use in connection with
the operation or maintenance of the Premises
including, but without limiting the
generality of the foregoing, all engines,
furnaces, boilers, stokers, pumps, heaters,
tanks, dynamos, motors, generators,
switchboards, electrical equipment, heating,
plumbing, lifting and ventilating apparatus,
materials handling equipment, air-cooling
and air-conditioning apparatus, gas and
electric fixtures, elevators, escalators,
fittings, and machinery and all other
equipment of every kind and description,
used or procured for use in the operation of
the Building (except those certain
apparatus, fixtures or articles or personal
property belonging to lessees or other
occupants of the building or to the
management company or to persons other than
Seller as shown on Exhibit G-1 unless the
same be abandoned by any such sublessee or
other occupant or person), together with any
and all replacements thereof and additions
thereto and all Intangible Property
("Personal Property");
(viii) Estoppel Certificates. Seller shall deliver
current estoppel certificates in
substantially the form provided by Buyer and
containing information which comports with
the Rent Roll for all tenants having leases
for parking spaces at the Premises and
occupying in excess of 5,000 rentable square
feet of office space at Portland Square and,
with respect to those tenants occupying less
than 5,000 rentable square feet, least
seventy-five percent (75%) of all other such
retail tenants and seventy-five percent
(75%) of all such non-retail tenants
(determined by square footage of office
space rather than the number of tenants). To
the extent Seller is unable to obtain
estoppel certificates from all tenants,
Seller shall provide Buyer with an estoppel
certificate in the form provided by Buyer
with respect to lease information only, for
all tenants from whom an estoppel
certificate has not been obtained;
(ix) Representations and Warranties. The
representations and warranties made by
Seller in Paragraph 9 of this Agreement
shall
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be true and correct on the date of this
Agreement and shall be true and correct on
the Closing Date with the same effect as
though such representations and warranties
had been made or given as of such date;
(x) A 1099 IRS filing;
(xi) Evidence reasonably satisfactory to Buyer
and the Title Company of (a) the authority
of Seller to execute the closing documents
and of any signatory to execute the same on
behalf of the Seller and (b) the expiration
of the rights of first offer, rights of
first refusal and options to purchase of
Verrill & Dana;
(xii) If Buyer assumes the Loan, an estoppel
certificate of the Lender with respect to
the Loan, as defined in Section 11(f), and
final assumption documents relating to
Buyer's assumption of the Loan, in form and
substance reasonably satisfactory to Buyer
and Seller, and true and complete copies of
all documentation relating to the Loan have
been provided to Buyer;
(xiii) Reissuances (addressed to Buyer) of the land
use opinions issued by counsel to Seller in
connection with the Loan dated as of the
Closing;
(xiv) Delivery of all keys, locks, security codes
and similar security-related materials;
(xv) Notices to all tenants under the Leases of
the conveyance in form and substance
reasonably satisfactory to Buyer;
(xvi) Any filings required under the laws of the
State of Maine and the City of Portland
relating to the transaction;
(xvii) All documentation required by change of
ownership provisions under any Lease;
(xviii) An assignment in the form attached hereto as
Exhibit M of all of Seller's rights (and the
rights of any original Northland party)
under that certain Memorandum of Rights,
Options & Restrictions dated October 30,
1987 by and between Portland Square Limited
Partnership and Verrill & Dana, as amended
by letter agreement dated August 24, 1989
between Mark Massey and Christopher
Coggeshall (the "Memorandum"); and
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(xix) Assignment of Fisherman's Wharf Parking
Lease dated December 9, 1991, as amended.
(c) Real Estate Taxes. Seller shall pay all real estate
transfer taxes at the Closing and for the cost of recording any instruments
required to clear title. Buyer shall pay for the recording of the Deed (not
including real estate transfer taxes), any mortgages and any other instruments
to be recorded.
6. POSSESSION AND CONDITION OF UNITS AND PREMISES. Full possession
of the Premises, free of all tenants and occupants, except those set forth on
Exhibit F hereto, is to be delivered at the Closing, the Premises to be then in
the same condition as they now are, reasonable use and wear thereof excepted,
and, not in violation, in a manner which would adversely affect the use of the
Premises for its current use, of the applicable laws and regulations referred to
in paragraph 2(a) hereof or the Permitted Encumbrances.
7. TITLE DEFECTS: EXTENSION OF TIME TO PERFECT TITLE. If Seller shall
be unable to give title or to make conveyance, or to deliver possession of the
Premises, all as herein stipulated, or if at the Closing the Premises do not
conform with the provisions hereof, then Seller shall (i) remove all
encumbrances, if any, which secure the payment of money, whether or not created
by Seller including, but not limited to, liens and mortgages, and (ii) use
reasonable efforts to remove all other defects in title and to deliver
possession as provided herein, and to make the Premises conform to the
provisions hereof, as the case may be, and thereupon the closing shall be
extended for such period (not to exceed 45 days) as shall be required to remove
such defects in title, deliver possession or make the Premises conform to the
provisions hereof, as the case may be; provided, however, that with respect to
Seller's obligations set forth in clause (ii) above, Seller shall not be
obligated to expend to cure such defects, or to deliver possession, or to make
the Premises conform, an amount greater than $100,000 in the aggregate.
If at the expiration of the extended time Seller shall have failed so
to remove any defects in title, deliver possession, or make the Premises
conform, as the case may be, pursuant to this Paragraph 7, any deposits made
under this Agreement shall be forthwith refunded to Buyer with the interest
earned thereon and all other obligations of the parties hereto shall cease, and
this Agreement shall be void and without recourse to the parties hereto.
Notwithstanding the foregoing, Buyer shall have the election, at either the
original or extended closing, to accept such title as Seller can deliver to the
Premises in their then condition and to pay therefor the Purchase Price without
reduction (except in the case of encumbrances which secure the payment of money
which can be discharged of record by the payment of an ascertainable sum), in
which case Seller shall convey such title to the Premises except that upon such
election by Buyer in the event of such conveyance in accordance with the
provisions of this clause if any portion of the Premises shall have been taken
by exercise of the power or eminent domain, Seller shall pay over or assign to
Buyer on delivery of the Deed all awards recovered or recoverable on account of
such taking and all of Seller's rights to receive any such awards, less any
amounts reasonably expended by Seller in obtaining such award, in which event
there shall be no reduction in the Purchase Price, and except further that upon
such election by Buyer if the Premises shall have
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been damaged by fire or casualty insured against, then Seller shall, unless
Seller has previously restored the Premises to their former condition, pay over
or assign to Buyer, on delivery of the Deed, all amounts recovered or
recoverable on account of such insurance, less any amounts reasonably expended
by Seller for partial restoration, plus any deductible amount not recoverable.
8. ACCEPTANCE OF DEED. The acceptance of the Deed by Buyer shall be
deemed to be a full performance and discharge of every agreement and obligation
herein contained or expressed, except for the provisions of Paragraphs 9, 16 and
27 hereof, which shall survive the delivery of the Deed and the closing of the
transactions contemplated by this Agreement for a one (1) year period following
the Closing with the exception of certain obligations with respect to the
Equitable Loan as described in Paragraph 9 which will survive as set forth
therein (and any other provisions which specifically state that they so
survive).
9. WARRANTIES AND REPRESENTATIONS. (a) Seller represents, covenants and
warrants to and agrees with Buyer, as of the date of this Agreement and as of
the closing, as follows:
(1) Seller has not received any written notice and does not
otherwise have knowledge of any eminent domain and/or
condemnation proceedings, either pending or
contemplated, or of any current provisions of, or
proposed changes in the zoning of the Premises for its
current use, or any other local laws or ordinances
either pending or contemplated, which, in either case,
may materially adversely affect the use of the Premises
for its current use.
(2) Seller is a limited partnership duly organized under
the laws of the State of Massachusetts and duly
qualified to do business in the State of Maine and has
the power, authority and legal right to execute and
deliver this Agreement and to enter into the
transactions contemplated hereby, and the execution and
delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly
authorized by all requisite corporate actions on the
part of Seller and such authority has not been revoked.
(3) Seller has not and, prior to the closing, will not
grant any easements nor enter into any agreement for
lease or otherwise which may affect title to or convey
any interest in the Premises which cannot be terminated
prior to the date of closing.
(4) Seller has not received written notice from any
governmental, federal, state, county or municipal
agency or authority requiring the assessment or
correction of any condition with respect to the
Premises or any part thereof, by reason of a violation
of any law, regulation, ordinance or otherwise
including without limitation The Americans With
Disabilities Act and the Maine Human Rights Act and
except as set forth in the study entitled "ADA
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Analysis dated May 28, 1992" prepared by David
Saltzman, A1A (which has been provided to Buyer),
Seller does not otherwise have knowledge of any
violation of any law, regulation, ordinance or
otherwise relating to the Premises.
(5) Other than as set forth in the environmental report
entitled "Report on Oil and Hazardous Material Site
Evaluation, Portland Square Parking Lot, Portland,
Maine" dated 16 October 1987, and the report entitled
"Report on Oil and Hazardous Material Site Evaluation,
Fore Street Parking Lot, Portland, Maine" dated 1
October 1987, both prepared by Haley & Aldrich, Inc.
(collectively, the "Environmental Reports"), Seller has
not received any written notice and does not otherwise
have actual knowledge of oil or hazardous waste or
materials present on or released to or from the
Premises;
(6) The insurance maintained by Seller with respect to the
Premises and its use and operation is listed on the
certificates attached as Exhibit H hereto. Seller has
not received any notices from any insurer or its agent
requiring performance of any work with respect to the
Premises or canceling or threatening to cancel any
policy, and the Premises complies with the requirements
of all insurance carriers and with the requirements of
the State of Maine Board of Fire Underwriters.
(7) Except as disclosed in writing to Buyer prior to the
date of this Agreement and listed on Exhibit I attached
hereto, there are no actions or proceedings instituted
or pending before any court, administrative agency or
arbitrator against Seller, against or concerning the
Premises, or against, relating to, or adversely
affecting the right, title or interest of Seller in or
to any of the Premises, or relating to Seller's
execution or performance of this Agreement, and, to the
best of Seller's knowledge, there are no such actions
or proceedings threatened. No proceeding has been filed
by or against Seller under the United States Bankruptcy
Code, or any State law relating to bankruptcy or
insolvency, seeking liquidation of Seller, or its
reorganization, or an arrangement with its creditors,
or the appointment of a trustee or receiver for its
assets or business.
(8) All contractors, subcontractors and other persons or
entities furnishing work, labor, materials or supplies
for construction of or additions to the Premises or for
tenant improvements have been paid in full or provided
for in a manner satisfactory to Buyer according to its
written approval, and Seller has no knowledge of any
claims against the Premises or Seller in connection
therewith and has no claims against any of its
contractors or subcontractors except as set forth on
Exhibit J hereto.
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(9) The leases for parking spaces at the Premises and the
guaranties thereof in all material respects are
accurately and completely listed along with all
amendments, letter agreements and letters of extension
in Exhibit F (the "Leases"), and true and complete
copies of which Seller has provided to Buyer. The
Leases constitute the sole agreements and
understandings relating to leasing or licensing of
space on the Premises, there are no occupancies,
rights, privileges or licenses in or to any other part
of the Premises other than pursuant to the Leases, and,
except as set forth in the Leases, no Lease provides
for any restrictions or options on the leasing, use,
ownership, purchase or occupancy of or any part of the
Premises. The Leases are unmodified except as set forth
in copies of the leases provided to Buyer, and in full
force and effect, in accordance with their respective
terms, without any actual or threatened default by
either party thereunder, except as listed on Exhibit F
attached hereto, nor are there any defenses,
counterclaims, offsets, concessions or rebates except
as set forth in the Leases, and Seller has not given or
made, or received, any notice of default, or any claim,
which remains uncured or unsatisfied, with respect to
any of the Leases, and, to the best of Seller's
knowledge there is no basis for any such claim or
notice of default by any tenant. The rent roll
furnished by Seller to Buyer and attached hereto as
Exhibit K accurately and completely sets forth all the
rents payable by tenants, no tenant having paid more
than one month's rent in advance. Exhibit K furnished
by Seller to Buyer accurately and completely sets forth
all security deposits from tenants. All tenant
improvements or work to be done, furnished or paid for
by Seller, or credited or allowed to a tenants for, or
in connection with the Premises pursuant to any Lease
have been completed and paid for or provided for in a
manner satisfactory to Buyer according to its written
approval. No tenant under the leases has any right to
free rent or other concessions. No tenant is habitually
in default under its lease. Except as set forth on
Exhibit L attached hereto, no leasing, brokerage or
like commissions, fees or payments are due from Seller
or will be due from Buyer or any other party with
respect to the Leases or any extensions, modifications
or amendments thereof or any future sale of the
Premises. With respect to any leasing commission due
described in Exhibit L, the same shall only be due if
the subject management agreement is in full force and
effect. There has been no assignment, pledge or
encumbrances of any Lease by Seller or any of the rents
or other payments due to Seller thereunder except in
connection with the Loan, as defined in Section 11(f)
below. All insurance required to be provided by tenants
under the Leases is in full force and effect.
(10) The Service Agreements are accurately and completely
listed in Exhibit C-1, as so set forth constitute the
sole agreements and understandings of Seller with
respect to the operation and maintenance of any of the
Premises, and the copies thereof furnished by Seller to
Buyer are true and complete. To
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the best of Seller's knowledge, there are no claims or
any bases for claims in respect of the Premises or its
operation by any of the parties to the Service
Agreements. All of said service agreements are
cancelable upon no more than thirty (30) days' notice
except as set forth in Exhibit C-1.
(11) Seller has submitted to Buyer statements of income of
Seller for the years ended December 31, 1993, 1994 and
1995, prepared in accordance with generally accepted
accounting principles consistently applied with an
unqualified opinion of independent certified public
accountants, that the above-described financial
statements present fairly the results of operations
for, and the financial position as at the end of, such
years in accordance with generally accepted accounting
principles consistently applied. Such statements of
income present fairly the financial position and
results of operations of Seller and the Premises as at
the dates thereof. Since the date of the most recent of
such financial statements there have been no changes in
the assets, liabilities, financial condition, business
or results of operations of Seller other than changes
in the ordinary course of business the effect of which
has not been in any case, or in the aggregate,
materially adverse.
(12) There are no unpaid or outstanding real estate or other
taxes, or assessments on or against the Premises or any
part thereof which are payable by Seller (except only
real estate taxes not yet due and payable). Seller has
delivered to Buyer true and correct copies of real
estate tax bills for the Premises for the current tax
year. No abatement proceedings are pending with
reference to any real estate taxes assessed against the
Premises. There are no betterment assessments or other
special assessments presently pending with respect to
any portion of the Premises, and Seller has received no
notice of any such special assessment being
contemplated.
(13) No approval, consent, order or authorization of, or
designation, registration or declaration with, any of
the United States or the State of Maine, any
department, board, agency, office, commission or other
subdivisions thereof, or any official thereof (each a
"Governmental Authority") is required in connection
with the valid execution and delivery of, and
performance of the covenants of, this Agreement by
Seller.
(14) The execution of this Agreement by Seller and Seller's
observance and performance of all of its respective
covenants and obligations hereunder do not contravene
any judgement, order or provision of the law or any
agreement binding upon Seller; however, the ability of
Seller to perform under this Agreement is conditioned
upon approval by Equitable of the assumption of the
Loan by Buyer unless Buyer elects to pay cash for the
Premises as described in Section 11(b) hereof.
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(15) The Premises do not encroach upon the property of any
third party and no improvements owned by any other
party, either aboveground or underground, encroach upon
the Premises.
(16) All utilities servicing the Premises are of sufficient
capacity for the unimpeded current operation of the
Premises and such utilities are obtained via
connections directly in the public ways abutting the
Premises without the need for any easements, rights of
way or licenses from any third parties except as shown
on the survey described in Exhibit B hereto and on the
survey described in Exhibit B to the purchase and sale
agreement for Units #1-6 at One Portland Square.
(17) With respect to the Loan as defined in Section 11(f),
Seller has not breached any warranty, representation or
covenant made by Seller to Lender and is otherwise not
in default under the Loan, and the Loan is non-recourse
except under certain circumstances set forth in the
Loan documents, true and complete copies of which have
been provided to Buyer.
(18) The parking lots were built in accordance with the
original plans and specifications as the same were
approved by the appropriate local and state
authorities.
(19) All permits, licenses and approvals necessary for the
construction, use, and operation of the Premises have
been obtained and are in full force and effect, all
requirements thereof have been complied with and all
appeal periods relating thereto have expired without
appeal.
(20) All private ways providing access to the Premises are
zoned in a manner which will permit access to the
Premises over such ways by all passenger and commercial
vehicles.
(21) The Memorandum, as defined in Section 5, is in full
force and effect to the best of Seller's knowledge; a
true and complete copy of The Memorandum and amendments
thereto has been delivered to Buyer; there are no other
amendments thereto except as described in Paragraph
5(b)xviii; there are no defaults by either party to the
Memorandum or by Two Portland Square Limited
Partnership as assignee thereof; all provisions of the
Memorandum have been fully complied with (i) in
connection with the transaction contemplated by this
Agreement and (ii) in general, including without
limitation, all provisions of the Memorandum which
relate to the construction, use and operation of Two
Portland Square.
(22) The lease for parking spaces at Fisherman's Wharf dated
December 9, 1991 between Portland Square Limited
Partnership and Fisherman's Wharf
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Associates II is in full force and effect and all rent is
paid in full to the end of the month in which the Closing
occurred and Seller has received no notice of default
from the Landlord thereunder.
It shall be a condition of Buyer's obligation to close under this
Agreement that the foregoing warranties and representations made by Seller shall
be true in all material respects as of the closing. In the event any warranty or
representation made herein shall not be true in all material respects at the
Closing and Seller gives written notice thereof to Buyer prior to Closing, then,
at Buyer's option, and as Buyer's sole remedy at law or in equity, all sums paid
hereunder by Buyer shall forthwith be refunded to Buyer with all interest earned
thereon and all obligations of the parties hereunder shall terminate without
recourse. If Buyer elects to purchase the Premises notwithstanding such notice,
the particular warranty or representation shall be deemed amended.
Each of the general and limited partners of Seller and the other
signatories to the Loan documents (collectively, said general and limited
partners, other signatories and Seller hereinafter referred to as the "Liable
Parties") hereby join in this Agreement for the purpose of representing that
they know of no information which would indicate that any of the foregoing
representations is untrue or misleading and agree to be jointly and severally
liable post-closing for the one (1) year period following the closing for any
misrepresentation of Seller in this Section 9 and any misrepresentation of any
of the Liable Parties set forth in this sentence. Furthermore, the Liable
Parties also agree, jointly and severally, to indemnify and hold harmless Buyer
and its nominee post-Closing (i) for any and all costs or expenses incurred by
the Buyer during the one (1) year period following the Closing pursuant to the
Loan documents as a result of a breach of any obligation, warranty,
representation or covenant under the Loan documents committed or caused by any
of the Liable Parties prior to the Closing; provided that the Buyer did not have
actual knowledge, prior to the Closing, of the existence of the breach; and (ii)
for the term of the Loan as of the date hereof (or until the Loan is discharged,
assigned by Buyer or its nominee or satisfied, if earlier) for any and all costs
or expenses incurred by the Buyer pursuant to the Loan documents as a result of
any and all so-called "bad acts", including without limitation, fraud,
misrepresentation or deceptive business practice committed by any of the Liable
Parties in connection with the Loan prior to the Closing. Likewise, Buyer agrees
to indemnify and hold harmless Seller post-Closing for the term of the Loan (or
until the Loan is discharged or satisfied, if earlier) for any and all costs and
expenses incurred by Seller pursuant to the Loan documents as a result of a
breach of any obligation, warranty, representation or covenant under the Loan
documents committed by or caused by Buyer or its nominee after Buyer assumes the
Loan or as a result of any and all "bad acts", as defined above, committed by
Buyer in connection with the Loan. The word "Lender" as used in this Paragraph
shall be deemed to include Lender, its successors and assigns.
(b) Buyer represents, covenants and warrants to and agrees
with Seller that Buyer has the power, authority and legal right to execute and
deliver this Agreement and to enter into the transactions contemplated hereby,
and that the execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby have been duly authorized by all
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requisite corporate actions on the part of Buyer and such authority has not been
revoked.
10. DELIVERY OF PREMISES IN "AS IS" CONDITION. Except as expressly set
forth in this Agreement, Buyer acknowledges that Buyer has not been influenced
to enter into this transaction nor has Buyer relied upon any warranties,
representations or indemnities by Seller, express or implied, with respect to
the condition or suitability of the Premises or any part thereof, any matter of
fact or any matter in any way relating to the Premises, this Agreement or
otherwise. In particular, Buyer acknowledges that Seller is selling and Buyer is
purchasing the Premises "AS IS, WHERE IS", with all faults and defects, latent,
patent or otherwise. Without limiting the generality of the foregoing, Buyer
acknowledges that, except as expressly set forth in this Agreement and in the
Deed, neither Seller nor any broker or agent of Seller has provided any
representations, warranties, promises, covenants, agreements or guaranties of
any kind or character whatsoever, whether express or implied, oral or written,
as to:
(a) The nature, quality or condition of the Premises,
including, without limitation, the water, soil and geologic or environmental
nature, quality or condition;
(b) The suitability of the Premises for any and all activities
and uses which Buyer may conduct thereon;
(c) The compliance of or by the Premises or its operation with
any laws, rules, ordinances or regulations of any applicable governmental
authority or body;
(d) The habitability, merchantability or fitness for a
particular purpose of the Premises; or
(e) Any other matter with respect to the Premises not
specifically addressed in Paragraph 9(a) above.
11. DUE DILIGENCE. Buyer's obligation to purchase the Premises shall be
subject to the satisfaction of Buyer with respect to all aspects of the Premises
and the Loan, including without limitation, the title, survey, environmental and
other condition, compliance with law, taxes and assessments based upon Buyer's
due diligence review of the same at Buyer's sole cost and expense by May 24,
1996 ("Due Diligence Period").
Buyer shall have the right to terminate this Agreement for any reason
during the Due Diligence Period without recourse to either party hereto in which
case Buyer shall receive a refund of its deposit and any interest thereon. If
Buyer does not so terminate this Agreement by notice to Seller given within the
Due Diligence Period, Buyer shall not thereafter have any claim against Seller
or any right to terminate this Agreement because of any matters which were
existing at the expiration of the Due Diligence Period unless Seller agrees in
writing to cure any defects and then fails to do so; provided, however, that the
foregoing shall not in any way limit the obligations of Seller and each other
party to the Agreement pursuant to Section 9 of this Agreement.
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The provisions of this paragraph 11 shall survive the delivery of the
Deed and the closing of the transactions contemplated by this Agreement.
(a) Environmental Inspection. Buyer acknowledges that the
Environmental Reports have been prepared by parties other than Seller, that
Seller has made no representation or warranty with respect to the content,
completeness or accuracy of the Environmental Report and that Seller does not
intend for Buyer to rely upon the information set forth in the Environmental
Report.
Buyer shall have the right to retain a qualified professional at its
expense to prepare a report concerning compliance of the Premises with the
Comprehensive Environmental Response Compensation Act, the Resource Conservation
and Liability Act, the Superfund Amendment and Reauthorization Act, the Resource
Conservation Recovery Act, the Superfund Amendment Act and Reauthorization Act,
any so-called federal, state or local "superfund" or "superlien" statute or
other federal or state or local laws. Upon request of Seller, Buyer shall
provide a copy of same to Seller to the extent that Buyer's consultants permit
the same. Buyer agrees to limit all communication relative to the report to
Buyer, Seller, the qualified engineer and Buyer's counsel except as required by
law.
(b) Financing Contingency. Seller hereby agrees to negotiate
and coordinate the assumption of Seller's existing loan (the "Loan") by Buyer's
nominee covering the Units and the upper and lower parking lots at Portland
Square from Equitable Life Assurance Society of the United States ("Lender")
which will have a current outstanding principal balance of $12,388,285.00 as of
June 1, 1996 on the same terms and conditions currently in effect with the
exception of the Equitable Conditional Guaranty and Paragraph 38 in the
Equitable Second Amendment of Mortgage and Security Agreement dated June 1, 1995
both of which shall be waived and with the exception of the addition of a
further assignment provision for future owners and a restatement in the loan
assumption documents of the non-recourse language contained in the existing loan
documents. Such terms of assumption must be reasonably satisfactory to Seller.
In the event a binding written commitment satisfactory to Buyer in its sole
discretion for such financing is not obtained from Lender on or before the
expiration of the Due Diligence Period, then Buyer or Seller shall have the
option to (i) terminate this Agreement without recourse to the other party in
which case all deposits made hereunder shall forthwith be refunded to Buyer with
interest thereon or (ii) extend the Due Diligence Period for up to an additional
thirty (30) days with respect to this financing contingency only. In the event
Seller exercises its right to terminate hereunder, such exercise shall not be
effective if Buyer elects to purchase the Premises without assuming the Loan and
pays all costs paid to or for Lender by Seller in connection with a prepayment
of the Loan as required by the Loan documents less the one point (1%) fee that
Seller would have paid if Buyer had assumed the Loan which Seller shall pay
towards such prepayment fee. If Buyer does assume the Loan, the fee charged by
the Lender (one point of loan amount) as consideration for allowing the
assumption and Lender's attorney's fees, but excluding Buyer's attorney's fees,
shall be paid by Seller.
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12. ACCESS TO INFORMATION. Seller will give Buyer and its counsel,
inspectors, accountants, and other representatives full access, during normal
business hours, to the Premises and to the books, contracts, commitments, and
other records (including computer files, retrieval programs, and other
documentation) of Seller and will furnish Buyer and such representative during
such periods with all such information and data concerning the affairs of Seller
and the Premises as Buyer or such representatives reasonably may request. Buyer
and its agents and consultants shall also have the right, at reasonable times
and upon reasonable notice to Seller, to enter upon the Premises, to perform
measurements, surveys, environmental tests including subsurface exploration
(with Seller's prior approval of scope), structural inspections and such other
tests which Buyer may deem necessary to evaluate the Premises. All such testing
shall be at Buyer's risk and expense. Buyer agrees to indemnify and hold Seller
harmless from any and all liability, loss and damage incurred by Seller as a
result of the exercise of the foregoing access rights by Buyer, its agents or
consultants except if due to any notification required to be made by law to any
local, state or federal authority. Should Buyer disturb the current condition of
the Premises in exercising such access rights, Buyer agrees to restore the
Premises to its current condition if Buyer does not take title to the Premises
in accordance with this Agreement.
13. USE OF MONEY TO CLEAR TITLE. To enable Seller to make conveyance as
herein provided, Seller may, at the closing, use the purchase money or any
portion thereof to clear the title of any or all encumbrances or interests
provided the documents necessary to clear title are recorded simultaneously with
the Deed.
14. INSURANCE. Until the closing, Seller will maintain in full force
and effect any existing policies of insurance relating to the Premises.
15. CLOSING ADJUSTMENTS. The parties agree that the revenue from and
expenses relating to the Premises shall be adjusted effective as of the Closing
Date with the intent that the Seller shall be entitled to the benefit of all
revenues from the Premises and shall be responsible for all expenses relating to
the Premises up to the Closing Date and the Buyer shall be entitled to the
benefit of all revenues from the Premises from and after the Closing Date.
Without restricting the generality of the foregoing, the following closing
adjustments shall be made at the Closing. With respect to the Closing Date,
Buyer shall be responsible for all expenses and entitled to all income for such
date.
(a) Rents. All security deposits and interest thereon shall be
paid to Buyer or credited against the Purchase Price at Closing. Collected rents
(fixed, minimum, additional or percentage) and charges (including, but not
limited to, CAM, real estate and tax amounts payable by tenants and any last
month's rent or other advance rents) shall be adjusted as of the Closing date.
Uncollected rents (fixed, minimum, additional or percentage) and unpaid charges
(as aforesaid) for the relevant period shall be adjusted if and when collected
in the case of rents and adjusted if and when paid in the case of charges. All
rents and charges collected after the Closing shall be applied first against
sums payable for the then current rental period, with any excess applied first
against such sums as are then due and payable to Buyer for the period from and
after the Closing Date and then and only then against such sums as are then due
and payable
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to Seller for the period prior to the Closing Date. Percentage rents shall be
adjusted on the assumption that sales upon which they are computed were the same
for each day of said period. Buyer agrees to use reasonable efforts (not
including legal proceedings) during the six month period following the Closing
to collect (on behalf of Seller, as its agent and without fee) unpaid rents and
charges due and payable for periods prior to the Closing and to hold same as
collected in a special account and to account for in writing and remit same to
Seller monthly (less Buyer's or Buyer's managing agent's reasonable costs)
during such period. At the end of such six month period, the obligations of
Buyer to collect such unpaid rent under this Section 15(a) shall terminate;
however, Seller shall have, at its option, continuing after the end of such
six-month period, for a period of six (6) additional months, the right to
collect (at Seller's sole cost and expense) any unpaid rents and charges due and
payable for periods prior to the Closing, but such right shall not include
summary process or eviction proceedings or any proceedings which might affect
the landlord-tenant relationship under the leases.
(b) Taxes and Expenses of Sale. Real estate taxes (no matter
how levied), and any other taxes in the nature thereof and constituting a lien
upon the Premises if not paid. If the amount of real estate taxes for the fiscal
year during which Closing occurs is not finally determined at the time of
Closing, such taxes shall be apportioned on the basis of the full amount of the
assessment for such period (or the assessment for the prior tax period if the
assessment for the current tax period is not then known) and the rate for the
next prior tax year, notwithstanding any provisions of law which permit reduced
payment pending final determination, and shall be reapportioned as soon as the
new tax rate and valuation, if any, has been finally determined; and, if the
taxes which have been apportioned shall subsequently be reduced by abatement,
the amount of such abatement, less the cost of obtaining the same and after
deduction of sums payable to tenants under Leases or expired or terminated
Leases, shall be apportioned between the parties. All other assessments of every
type, nature or description, as of the Closing Date, assessed to the Premises
and outstanding, shall be paid in full by Seller prior to the Closing (or by
Buyer after the Closing out of any funds withheld from the Purchase Price for
that purpose). If there are any type of taxes payable to any governmental
authority by reason of the sale or transfer of the Premises, Seller agrees to
pay the same and provide an appropriate return or form executed by Seller, as
may be required.
(c) License Fees. Fees for customary annual or other periodic
licenses and permits for periods including the Closing Date.
(d) Service Contracts. Charges on contracts and agreements
listed on Exhibit C-1 which are to be assigned to Buyer.
(e) Utilities. Seller will obtain final cut-off readings of
fuel, telephone, electricity, water, sewer and gas on the Closing Date but will
not permit such utilities to be cut off. Seller shall pay the bills based on
such readings promptly after the same are rendered. If arrangements cannot be
made for any such cut-off reading, the parties shall apportion the charges for
such services on the basis of the bill therefor for the most recent billing
period prior to the Closing Date, and Seller and Buyer shall promptly readjust
the apportionments in accordance
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with the last bills rendered.
16. BROKERS. 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 other than Northland
Management Corp. ("Broker"), 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 agrees to pay Broker any and all fees which may be due to Broker in
connection herewith.
17. BUYER'S DEFAULT; DAMAGES. If Buyer shall fail to fulfill Buyer's
obligations hereunder, all payments made hereunder by Buyer, together with any
and all interest thereon from the date hereof, shall be paid to Seller as full
and complete liquidated damages and not as a penalty, and shall be Seller's sole
remedy at law or in equity, and all obligations of Seller and Buyer hereunder
shall terminate without recourse to either party.
18. ESCROW AGENT; DISPUTES. (a) Liability of Escrow Agent. With respect
to any amount placed in escrow pursuant to this Agreement, the Escrow Agent
shall not be liable for any action or nonaction taken in good faith in
connection with the performance of its duties hereunder, but shall be liable
only for its own 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 such amount, 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:
(i) by mutual agreement between the parties; or
(ii) 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 proceedings.
(b) Disputes. Except as provided below in items (i) and (ii)
the Escrow Agent shall deliver the Deposit to Seller promptly after the Closing.
(i) Demand by Buyer. The Escrow Agent shall
deliver the Deposit to Buyer promptly upon
receipt of a written demand therefor from
Buyer stating that Seller has defaulted in
the performance of this Agreement or that
any condition or obligation of Buyer under
this Agreement has not been fulfilled
stating the facts and circumstances
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underlying such default or unsatisfied
condition; provided, however, that the
Escrow Agent shall not so act until fifteen
(15) days after Seller has received a copy
of such demand, nor thereafter honor such
demand by Buyer if it shall have received
notice from Seller in accordance with
subsection (iii) below.
(ii) Demand by Seller. The Escrow Agent shall
deliver the Deposit to Seller promptly after
written demand therefor from Seller given
subsequent to the Closing Date, stating that
Buyer has defaulted in performance of this
Agreement and the facts and circumstances
underlying such default; provided, however,
that the Escrow Agent shall not so act until
fifteen (15) days after Buyer has received a
copy of such demand, nor thereafter honor
such demand by Seller if it shall have
received notice from Buyer in accordance
with subsection (iii) below.
(iii) Upon the filing of a written demand for the
Deposit by Buyer or Seller, as the case may
be, pursuant to subsections (i) or (ii)
above, the Escrow Agent promptly shall mail
a copy thereof to the other party in the
manner provided herein for the giving of
notices and the other party shall have the
right to object to the compliance by the
Escrow Agent with such demand by filing
written notice of such objection with the
Escrow Agent at any time within fifteen days
after the receipt of such copy by such
party, but not thereafter. Such notice shall
set forth the basis for objecting to the
delivery of the Deposit. Upon receipt of
such notice of objection, the Escrow Agent
shall promptly mail a copy thereof to the
party which filed a written demand for the
Deposit.
(iv) In the event the Escrow Agent shall have
received the notice of objection provided
for in subsection (iii) above within the
time therein prescribed, the Escrow Agent
shall continue to hold and invest the
Deposit until: (i) the Escrow Agent receives
the joint written direction from Seller and
Buyer or a final judgement of a court of
competent jurisdiction directing the
disbursement of the Deposit, in which case
the Escrow Agent shall then disburse same in
accordance with such direction or judgement;
or (ii) in the event of litigation between
Seller and Buyer, the Escrow Agent delivers
the deposit to the Clerk of Court in which
such litigation is pending, or (iii) the
Escrow Agent deposits all of same with a
court of competent jurisdiction and therein
commences an action for interpleader, the
cost thereof to the Escrow Agent to be borne
by whichever of Seller or Buyer does not
prevail in the litigation.
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19. PACKAGE OFFER CONTINGENCY. Seller and Buyer acknowledge that the
Premises which are the subject of this Agreement are part of a package offer to
purchase certain property located in Portland, Maine consisting of the Premises,
condominium Units 1-6 in the building known as One Portland Square and the
building known as Two Portland Square (collectively the "Package Properties").
Accordingly, Buyer shall only have the right to purchase the Premises described
herein if Buyer also simultaneously purchases the other Package Properties,
except that if Seller fails to fulfill its obligations under this Agreement or
the agreement for the sale of Units #1-6 at One Portland Square or seller of Two
Portland Square fails to fulfill any of its obligations under that purchase and
sale agreement, Buyer shall not be required to purchase less than all of the
Package Properties but rather shall only be required to purchase all the Package
Properties simultaneously. Therefore, in the event Buyer requests a refund of
its deposit on or before the expiration of the Due Diligence Period for any of
the reasons contained in paragraph 11 or is otherwise refunded its deposit
because Seller has failed to fulfill its obligations hereunder, Buyer shall be
entitled to a refund of its deposits held pursuant to the other two (2) purchase
and sale agreements for the other Package Properties. Likewise, if Buyer
receives a refund of its deposit under any of the other two (2) purchase and
sale agreements, Buyer shall receive a refund of the deposit held hereunder. In
addition, in the event the time for performance is extended pursuant to
Paragraph 7 of any of the purchase and sale agreements for any of the Package
Properties, the time for performance under any of the other purchase and sale
agreements for the other Package Properties shall likewise be automatically
extended without the necessity of additional written documentations.
20. VERRILL & DANA CONTINGENCY. Buyer and Seller acknowledge that
Verrill & Dana, the owner of Units #7-10 at One Portland Square has a right of
first offer to purchase the Package Properties. Accordingly, this Agreement is
contingent upon the expiration on or before May 1, 1996 of Verrill & Dana's said
right of first offer. In the event Verrill & Dana exercises such right, all
deposits made hereunder shall be refunded to Buyer with interest thereon and
this Agreement shall terminate without recourse to the parties hereto. In
addition, if Verrill & Dana exercises such right, this Agreement shall
automatically terminate without recourse to either party hereto and Seller shall
promptly refund the Deposit with interest thereon and reimburse Buyer for all
reasonable out-of-pocket costs incurred in connection with its due diligence
described in Paragraph 11 hereof, including without limitation, legal,
engineering and environmental costs and Buyer shall provide Seller with valid
invoices therefor.
21. ENTIRE UNDERSTANDING. This Agreement, with the exhibits attached
hereto, if any, constitutes the entire agreement between the parties hereto with
respect to the Premises and no verbal statements made by anyone with regard to
the transaction which is the subject of this Agreement shall be construed as a
part hereof unless the same be incorporated herein by writing.
22. NOTICES. All notices required or permitted to be given hereunder
shall be in writing and delivered by hand or mailed postage prepaid, by
registered or certified mail or by telecopy, addressed in the case of Seller, to
Northland Management Corporation, 2150 Washington Street, Newton, Massachusetts
02162, Attention: Jeremy Hubball, President, and
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in the case of Buyer, to: Karl Weller, Senior Vice President, MGI Properties,
1 Winthrop Square, Boston, MA 02110 or in case of either party to such other
address as shall be designated by written notice given to the other party. Any
such notice shall be deemed given when so delivered by hand or if so mailed,
when deposited with the U.S. Postal Service, or if so telecopied, when received.
23. CONSTRUCTION OF AGREEMENT. This Agreement, executed as of the date
first above written, is to be construed as a Massachusetts contract, is to take
effect as a sealed instrument, is binding upon and inures to the benefit of the
parties hereto and their respective successors and assigns, and may be
cancelled, modified or amended only by a written instrument executed by both
Seller and Buyer.
24. OPERATING COVENANTS. The following shall govern the operations of
the Property from the effective date hereof through the Closing Date.
(a) Seller shall not take any of the following actions
without the express written consent of Buyer: (i) make or permit to be made any
material alterations to the Premises; (ii) enter into any lease or service
contract with respect to the Premises or any part thereof; (iii) remove or
permit the removal from the Premises of any personal property other than in the
ordinary course of business in which the personal property being removed is
replaced with new personal property of equal or greater value; (iv) reduce the
quality of the improvements at the Premises or their service and maintenance, or
materially reduce the number of employees currently employed by Seller to
service, maintain and secure the Premises; or (v) modify or agree to the
modification of any of the terms or conditions of any existing Lease or
contracts.
(b) At all times prior to the Closing Date, Seller shall
continue to operate and manage the Premises in a manner consistent with Seller's
operation and management policies in effect as of the effective date of this
Agreement; subject, however, to Seller's compliance with its obligations under
Paragraph 24(a) above.
(c) Seller will pay in full, prior to the Closing Date,
all bills and invoices for labor, goods, material and services of any kind
relating to the Premises. Except as provided in Paragraph 24(a) above, any
alterations, installations, decorations and other work required to be performed
under the Leases or other agreements affecting the Premises prior to the Closing
have been, or will be, completed by the Closing Date, and have been, or will be,
paid in full prior to the Closing Date or if same have not been completed and/or
paid at the Closing Date, the Purchase Price will be reduced by an amount equal
to the unpaid amounts and such amounts shall be paid by Buyer.
(d) After the date hereof and prior to the Closing Date,
no part of the Premises or any interest therein will be alienated, encumbered or
otherwise transferred, and no liens will be placed or permitted to be placed
thereon.
20
<PAGE>
(e) It shall be a condition of Buyer's obligations
hereunder that on the Closing Date there shall be no default by Seller under any
Lease.
(f) After the date hereof, Seller shall promptly notify
Buyer of any change in any condition with respect to the Premises or of any
event or circumstance which makes any representation or warranty of Seller to
Buyer under this Agreement untrue or misleading, or any covenant of Buyer under
this Agreement incapable or less likely of being performed, it being understood
that the Seller's obligation to provide notice to Buyer under this Paragraph 24
shall in no way relieve Seller of any liability for a breach by Seller of any of
its representations, warranties or covenants under this Agreement.
25. LIKE-KIND EXCHANGE. Buyer reserves the right to designate the
Premises as a replacement property in connection with any like-kind exchange
that it may transact, and Seller agrees to cooperate in such like-kind exchange
transaction and to sign such documentation as may be reasonably requested by
Buyer so long as Seller is not placed in a less advantageous position, receives
the full purchase price in cash subject to Paragraph 11(b) and Buyer pays all of
Seller's expenses, if any, related thereto.
26. PERSONAL LIABILITY. The Seller is a Massachusetts Limited
Partnership and all persons dealing with the Limited Partnership, including the
Buyer, must look solely to the property of the Limited Partnership and to the
General Partner for the enforcement of any claims against the Limited
Partnership. No limited partner, shareholder, director, employee, agent, parent,
or officer of the Seller shall be liable for any obligation, express or implied,
under this Agreement except as set forth in Section 9 with respect to the
General Partner and Limited Partners of Seller and certain other parties. The
preceding two sentences shall be inserted, or deemed inserted at Seller's
election, in every document and agreement executed and/or delivered by Seller
pursuant hereto. MGI Properties is a Massachusetts business trust and all
persons dealing with the Trust, including without limitation, the Seller, must
look solely to the property of the Trust for the enforcement of any claims
against the Trust. Neither the trustees, officers, agents nor shareholders of
the Trust assume any personal liability in connection with its business or
assume any personal liability for obligations entered into on its behalf. The
preceding two sentences shall be inserted, or deemed inserted at Buyer's
election, in every document and agreement executed and/or delivered by Buyer
pursuant hereto. The foregoing provisions of this Paragraph 26 shall survive the
Closing Date, the delivery of the deed, and any termination of this Agreement.
27. SEC RULES. Seller agrees to cooperate with Buyer at no cost to
Seller in any audit which may be required to be conducted by Buyer's accountants
in connection with Buyer's compliance with SEC Rules. The provisions of this
Paragraph 27 shall survive the delivery and recording of the Deed.
21
<PAGE>
SELLER:
PORTLAND SQUARE LIMITED
PARTNERSHIP , a Massachusetts Limited
Partnership
By: Northland Union Street Limited,
Partnership, its General Partner, a
Massachusetts Limited Partnership
By: Northland Realty Corporation,
its General Partner, a Delaware
Corporation
Witness: /s/ Alyssa Jermyn By: /s/ Jeremy Hubball
Jeremy Hubball, President
BUYER:
MGI PROPERTIES
Witness: /s/ Diane J. Soucy By: /s/ Kev Welles
Its: JUP
ESCROW AGENT:
ATLANTIC TITLE COMPANY
Witness: /s/ Wendy Lee Dyer By: /s/ Samuel H. Merrill
Its: Staff Counsel
AS TO PARAGRAPH 9 ONLY:
GENERAL PARTNER:
NORTHLAND UNION STREET LIMITED
PARTNERSHIP
By: Northland Realty Corporation,
its General Partner
Witness: /s/ Alyssa Jermyn By: /s/ Jeremy Hubball
Jeremy Hubball, President
22
<PAGE>
NORTHLAND REALTY CORPORATION
Witness: /s/ Alyssa Jermyn By: /s/ Jeremy Hubball
Jeremy Hubball, President
LIMITED PARTNERS:
INTERNATIONAL PROPERTIES
LIMITED PARTNERSHIP
By: International Properties, Ltd.,
its General Partner
Witness: /s/ John Morrow By: /s/ Frank Sobey
Frank Sobey, Vice President
J.B. BROWN & SONS, a ____________
Witness: /s/ Dawn E. Smith By: /s/ Charles E. Prinn III
Charles E. Prinn III, President
NORTHLAND SPRING STREET
LIMITED PARTNERSHIP, a Massachusetts
Limited Partnership
By: Northland Realty Corporation,
its General Partner
Witness: /s/ Alyssa Jermyn By: /s/ Jeremy Hubball
Jeremy Hubball, President
NORTHLAND INVESTMENT
CORPORATION
Witness: /s/ Alyssa Jermyn By: /s/ Joseph R. Ryan
Joseph R. Ryan, E.V.P.
w:\p&s.agr\2port\mgilot.6
23
<PAGE>
EXHIBIT A
PARCEL THREE - Lower Parking
A certain lot or parcel of land being the majority of the block bounded
northerly by Fore Street, easterly by Cross Street, southerly by Commercial
Street and westerly by Center Street in the City of Portland, County of
Cumberland and State of Maine, and further bounded and described as follows:
Beginning at a drill hole at the intersection of the northwesterly line of
Commercial Street and the easterly line of Center Street, said point being the
most southwesterly corner of certain land conveyed to the Atbro Corporation by
deed dated October 3, 1979, and recorded in the Cumberland County Registry of
Deeds in Book 4506, Page 48;
Thence North 43[degrees] 29' 22.8" East along Commercial Street, a distance of
54.32 feet to a reinforcing rod;
Thence North 46[degrees] 50' 30" East along said Commercial Street, a distance
of 54.32 feet to a reinforcing rod;
Thence North 52[degrees] 30' 11.2" East along said Commercial Street, a distance
of 35.64 feet to a drill hole;
Thence North 24[degrees] 17' 37.6" West along land formerly of Ari Newman and
Lee Beamis, and now Harbor Landing Condominium, see Declaration of Condominium
recorded in Book 6505, Page 312, Cumberland County Registry of Deeds, a distance
of 93.23 feet to a reinforcing rod;
Thence North 65[degrees] 44' 46" East along land now or formerly of said Ari
Newman and Lee Beamis, a distance of 109.60 feet to a P.K. Spike in the westerly
line of Cross Street;
Thence North 13[degrees] 21' 13.9" West along said Cross Street, a distance of
287.70 feet to a reinforcing rod, said point being located at the intersection
of the westerly line of Cross Street and the southerly line of Fore Street;
Thence South 69[degrees] 41' 09.0" West along said Fore Street, a distance of
318.64 feet to a reinforcing rod, said point being located at the intersection
of the southerly line of Fore Street and the easterly line of Center Street;
Thence South 24[degrees] 16' 16.2" East along said Center Street, a distance of
451.12 feet to the point of beginning.
Excepting from the above described premises those premises taken by the State of
Maine by its Department of Transportation set forth in its Notice of layout and
Taking dated August 21, 1991 and recorded in the Cumberland County Registry of
Deeds in Book 9688, Page 341.
<PAGE>
PARCEL TWO - Upper Parking
A parcel of land shown as "Lot 3" on a Land Title Survey prepared for Northland
Realty Corporation by Lewis & Wasina, Inc. dated April 5, 1995, Project No.
9508 located on the southerly side of Spring Street Arterial, the easterly side
of Cotton Street and the northerly side of Fore Street, City of Portland, County
of York, State of Maine, and being more particularly described as follows:
Beginning at a found rebar at the intersection of the northerly right of way
line of Fore Street and the easterly right of way line of Cotton Street;
Thence, N24[degrees]18'44"W along the easterly right of way line of Cotton
Street a distance of 356.32 feet to a set 5/8 inch rebar with aluminum cap
stamped "Lewis & Wasina PLS 2114" at the southerly right of way line of Spring
Street Arterial;
Thence, N65[degrees]47'27"E along the southerly right of way line of Spring
Street Arterial a distance of 89.72 feet to a found rebar;
Thence, continuing to follow the southerly right of way line of Spring Street
Arterial along a curve to the left having a delta of 3[degrees]11'35", a radius
of 3887.30 feet, an arc length of 216.65 feet and a chord bearing and length of
N64[degrees]11'39"E, 216.62 feet to a found drill hole in a concrete sidewalk;
Thence, S11[degrees]09'10"E following the former easterly right of way line of
Cross Street, now discontinued, along Lot 1 and lands conveyed by deed to Two
Portland Square Limited Partnership as shown on said plan a total distance of
413.33 feet to a found rebar on the northerly right of way line of Fore Street;
Thence, S78[degrees]49'49"W along the northerly right of way line of Fore Street
a distance of 79.03 feet to a found rebar;
Thence, S75[degrees]13'06"W along the northerly right of way line of Fore Street
a distance of 137.10 feet to the Point of Beginning.
All the above mentioned found rebar are 5/8 inch with aluminum cap stamped
"SMRT RLS 1314".
Reference should be made to the plan for further details of the boundary and
easements.
The basis of bearing for this description is magnetic north, 1972, as shown on
said plan.
<PAGE>
EXHIBIT B
LIST OF ENCUMBRANCES
UPPER PARKING LOT
1. Liens for taxes and assessments for fiscal year 1997 and subsequent
years not yet due and payable.
2. Terms and Conditions of Memorandum of Rights, Options, Restrictions by
and between Portland Square Limited Partnership and Verrill & Dana
dated October 30, 1987 and recorded in the Cumberland County Registry
of Deeds in Book 8045, Page 277.
3. Rights and easements for public utility facilities, pedestrian passage
and scenic view corridor as set forth in quit-claim deed from Portland
Square Limited Partnership to The City of Portland dated April 25, 1986
and recorded in Cumberland County Registry of Deeds in Book 7168, Page
48 and shown on "Cross Street Easement Plan" dated January 3, 1986
prepared by Hunter-Ballew Associates.
4. Rights and easements granted to Portland Water District by Portland
Square Limited Partnership as set forth in an instrument dated July 9,
1987 and recorded in the Cumberland County Registry of Deeds in Book
7931, Page 152.
5. Terms and provisions of Lease for parking spaces by and between
Portland Square Limited Partnership as Lessor and Verrill & Dana as
Lessee dated October 30, 1987, a Memorandum of which is recorded in the
Cumberland County Registry of Deeds in Book 8045, Page 299.
6. Rights, easements, covenants, conditions and restrictions set forth in
Declaration of Easement by Portland Square Limited Partnership dated
October 30, 1987, and recorded in the Cumberland County Registry of
Deeds in Book 8045, Page 303.
7. Parking tenants shown on Schedule 1.
8. Rights, easements, covenants, conditions and restrictions set forth in
Declaration of Easement by Portland Square Limited Partnership dated
December 18, 1989 and recorded in the Cumberland County Registry of
Deeds in Book 9028, Page 117; as affected by Subject Property Notice
dated December 18, 1989 and recorded in the Cumberland County Registry
of Deeds in Book 9028, Page 136; and by Permitted Parking Areas Plan
dated December 18, 1989 and recorded in the Cumberland County Registry
of Deeds in Book 9028, Page 141.
9. Rights and easement granted from Portland Square Limited Partnership to
Central Maine Power Company by deed dated February 28, 1990 and
recorded in the Cumberland County Registry of Deeds in Book 9107, Page
251.
<PAGE>
LIST OF ENCUMBRANCES
LOWER LOT
1. Liens for taxes and assessments for fiscal year 1997 and subsequent
years not yet due and payable.
2. Matters disclosed on survey entitled land of Property in Portland,
Maine made for Portland Square Limited Partnership - Land Title Survey,
prepared by H.I. and E.C. Jordan, Surveyors, Plan File No. 99, Louis T.
Maguire, RLS #284, dated November 15, 1989 and revised to March 28,
1995.
3. Lease between Portland Square Limited Partnership and Verrill & Dana, a
memorandum of which is recorded in the Cumberland County Registry of
Deeds in Book 8045, Page 299, and matters affecting said leasehold
interest as shown on record; as affected by Notice of Designation dated
December 18, 1989 and recorded in Cumberland County Registry of Deeds
in Book 9028, Page 115.
4. Declaration of Easement by Portland Square Limited Partnership dated
December 18, 1989 and recorded in the Cumberland County Registry of
Deeds in Book 9028, Page 117; as affected by Subject Property Notice
dated December 18, 1989 and recorded in Cumberland County Registry of
Deeds in Book 9028, Page 136; and by Permitted Parking Areas Plan dated
December 18, 1989 and recorded in Cumberland County Registry of Deeds
in Book 9028, Page 141.
5. Rights and easements for roof overhang and for the use of sidewalks
over portions of the premises granted to Ari Newman and Lee Beamis by
deed dated September 12, 1967 and recorded in the Cumberland County
Registry of Deeds in Book 3011, Page 321.
6. Rights, easements, covenants, conditions and restrictions set forth in
Declaration of Easement by Portland Square Limited Partnership dated
October 30, 1987 and recorded in Cumberland County Registry of Deeds in
Book 8045, Page 303; as affected by Additional Declaration of Easement
dated December 18, 1989 and recorded in Cumberland County Registry of
Deeds in Book 9028, Page 92; Release of Easement dated December 18,
1989 and recorded in Cumberland County Registry of Deeds in Book 9028,
Page 97; Subject Property Notice dated December 18, 1989 and recorded
in Cumberland County Registry of Deeds in Book 9028, Page 102; and
Permitted Parking Areas Plan dated December 18, 1989 and recorded in
Cumberland County Registry of Deeds in Book 9028, Page 112.
7. Rights of parking tenants shown on Schedule 1 & 2.
<PAGE>
SCHEDULE 1
TO EXHIBIT B
ONE PORTLAND SQUARE - LONG TERM PARKING TENANTS
NAME PARCELS AFFECTED
Verrill & Dana Upper and Lower
Peoples Heritage Savings Bank Upper and Lower
H.M. Payson Upper
Albin, Randall & Bennett Upper and Lower
Prudential Insurance Upper
Prudential Securities Upper
Aquarius Travel Lower
Commercial Union Lower
A.G. Edwards Lower
UNUM Upper and Lower
Aetna Lower
*Parking spaces may be relocated to other lots as long as the number of spaces
provided for in the respective leases is not reduced.
<PAGE>
SCHEDULE 2
TO EXHIBIT B
ONE PORTLAND SQUARE - MONTHLY PARKING TENANTS
NAME
Anwer, Janat
Maddrell, Carla
A.G. Edwards
Medical Network
Mobile Imaging
H.M. Payson
Peoples Heritage
Commercial Union
Brown, May
Silverstein, Leslie
Howard, Pat
Berueffy, Max
Littlefield, Denise
Reynolds, Michelle
Slaby, Jozef
Niles, Benjamin
Hopkins, Dominique
*All monthly tenant parking spaces are located on Lower Parking Lot.
<PAGE>
EXHIBIT C
ASSIGNMENT OF SERVICE AGREEMENTS
FOR VALUE RECEIVED, PORTLAND SQUARE LIMITED PARTNERSHIP, a
Massachusetts limited partnership having its principal place of business at 2150
Washington Street, Newton, MA 02162 (hereinafter referred to as "Assignor"),
hereby assigns, transfers, conveys and sets over unto MGI PROPERTIES, a
Massachusetts business trust (hereinafter referred to as "Assignee"), without
recourse to Assignor in any event or for any reason whatsoever and without any
warranties herein, express or implied, in law or otherwise except as set forth
in the Purchase and Sale Agreement described below, all of Assignor's rights,
title and interest in, to and under all of the service agreements relating to
the Property conveyed this day from Assignor to Assignee pursuant to a Purchase
and Sale Agreement between them and listed on Exhibit C-1 hereto.
Assignee hereby accepts such assignment and assumes and agrees to
perform, observe and comply with all of Assignor's obligations under such
service agreements first accruing on or after the date hereof. Assignee hereby
indemnifies and agrees to save and hold Assignor free and harmless from any
liability under any of said service agreements for the performance or observance
of any obligations of the Assignor thereunder first accruing on or after the
date hereof. Assignor hereby indemnifies and agrees to save and hold Assignor
free and harmless from any liability under any of said service agreements for
the performance or observance of any obligations of the Assignor which accrued
or should have accrued prior to the date hereof.
This Agreement shall not in any way modify the warranties of Assignor
contained in a Purchase and Sale Agreement between Assignor and Assignee dated
April ____, 1996.
This Assignment shall be binding upon and inure to the benefit of the
respective executors, administrators, heirs, successors and assigns of Assignor
and Assignee.
IN WITNESS WHEREOF, Assignor and Assignee have executed this instrument
under seal as of ____________, 1996.
ASSIGNOR: PORTLAND SQUARE LIMITED PARTNERSHIP
By: Northland Union Street Limited Partnership,
its General Partner
By: Northland Realty Corporation,
its General Partner
By:
Jeremy Hubball, President
ASSIGNEE: MGI PROPERTIES
By:
<PAGE>
EXHIBIT C-1
UPPER AND LOWER LOTS
LIST OF SERVICE CONTRACTS
Cash register maintenance contract
01/01/88 Northland Management Corp. Management Expires 01/01/97
<PAGE>
EXHIBIT D
ASSIGNMENT OF PERMITS, APPROVALS AND LICENSES
FOR VALUE RECEIVED, PORTLAND SQUARE LIMITED PARTNERSHIP, a
Massachusetts limited partnership having its principal place of business at c/o
Northland Investment Corporation, 2150 Washington Street, Newton, Massachusetts
02162 (hereinafter referred to as "Assignor"), hereby assigns, transfers,
conveys and sets over unto MGI Properties, a Massachusetts business trust
(hereinafter referred to as "Assignee"), without recourse except as provided
herein to Assignor in any event or for any reason whatsoever and without any
warranties herein, express or implied, in law or otherwise except as set forth
in the Purchase and Sale Agreement described below, all of Assignor's rights,
title and interest in, to and under all of the permits, approvals and licenses
relating to the Property conveyed this day from Assignor to Assignee pursuant to
a Purchase and Sale Agreement between them and listed on Schedule A hereto.
Assignee hereby accepts such assignment and assumes and agrees to
perform, observe and comply with all of Assignor's obligations under such
permits, approvals and licenses first accruing on or after the date hereof.
Assignee hereby indemnifies and agrees to save and hold Assignor free and
harmless from any liability under any of said permits, approvals and licenses
for the performance or observance of any obligations of the Assignor thereunder
first accruing on or after the date hereof. Assignor hereby indemnifies and
agrees to save and hold Assignor free and harmless from any liability under any
of said permits, approvals and licenses for the performance or observance of any
obligations of the Assignor which accrued or should have accrued or which
accrued prior to the date hereof.
This Agreement shall not in any way modify the warranties of Assignor
contained in a Purchase and Sale Agreement between Assignor and Assignee dated
April ____, 1996
This Assignment shall be binding upon and inure to the benefit of the
respective executors, administrators, heirs, successors and assigns of Assignor
and Assignee.
IN WITNESS WHEREOF, Assignor and Assignee have executed this instrument
under seal as of ____________, 1996.
ASSIGNOR: PORTLAND SQUARE LIMITED PARTNERSHIP
By: Northland Union Street Limited Partnership its General Partner
By: Northland Realty Corporation, its General Partner
By:
Jeremy Hubball, President
ASSIGNEE: MGI PROPERTIES
By:
<PAGE>
EXHIBIT E
ASSIGNMENT, ACCEPTANCE AND ASSUMPTION
OF LEASES, GUARANTIES, TENANCIES AND OCCUPANCIES
FOR VALUE RECEIVED, PORTLAND SQUARE LIMITED PARTNERSHIP, a
Massachusetts limited partnership having its principal place of business at 2150
Washington Street, Newton, MA 02162 (hereinafter referred to as "Assignor"),
hereby assigns, transfers, conveys and sets over until MGI PROPERTIES, a
Massachusetts business trust (hereinafter referred to as "Assignee"), without
recourse and without any warranties herein, express or implied, in law or
otherwise except as provided in the Purchase and Sale Agreement described below,
all of the right, title and interest of Assignor, as lessor in, to and under all
of the leases, guaranties, tenancies and occupancies described in the Schedule
attached hereto pertaining to the premises consisting of the upper and lower
parking lots at Portland Square, Portland, Maine.
TOGETHER with the appurtenances and all the estate and rights of
Assignor in, to and under said leases, guaranties, tenancies and occupancies.
TO HAVE AND TO HOLD the same until Assignee, its executors,
administrators, heirs, successors and assigns, for the rest of the term of said
leases, guaranties, tenancies and occupancies and subject to the terms,
covenants and conditions and provisions thereof.
Assignee hereby accepts such assignment and agrees to keep, observe and
perform all of Assignor's obligations under said leases, guaranties, tenancies
and occupancies first accruing after the date hereof. Assignee hereby
indemnifies and agrees to hold Assignor free and harmless from any liability,
cost or expense under said leases, guaranties, tenancies and occupancies for the
performance or observance of any obligations of the lessor thereunder first
accruing on or after the date hereof. Assignor hereby indemnifies and agrees to
hold Assignor free and harmless from any liability, costs or expense under said
leases, guaranties, tenancies and occupancies for the purpose or observance of
any obligations of the lessor thereunder which accrued or should have accrued
prior to the date hereof.
This Agreement shall not in any way modify the warranties contained in
a Purchase and Sale Agreement between Assignor and Assignee dated as of April
_____, 1996.
This Agreement shall be binding upon and inure to the benefit of the
respective executors, administrators, heirs, successors and assigns of Assignor
and Assignee.
<PAGE>
IN WITNESS WHEREOF, Assignor and Assignee have executed this Agreement
under seal as of ________________, 19___.
ASSIGNOR: PORTLAND SQUARE LIMITED PARTNERSHIP
By: Northland Union Street Limited Partnership,
its General Partner
By: Northland Realty Corporation,
its General Partner
By:
Jeremy Hubball, President
ASSIGNEE: MGI PROPERTIES
By:
<PAGE>
EXHIBIT F
LIST OF LEASES/RIGHTS TO PARK
TENANT UPPER LOT LOWER LOT LEASE DATE
Aetna 0 24 July 1, 1989
Albin, Randall 7 3 June 1, 1988
& Bennett
Bertini 0 1 August 6, 1993
Carla Bella 0 1 August 6, 1992
A.G. Edwards 0 20 April 2, 1991
Fleet Bank 0 70 August 21, 1995
Medical Network 0 4 September 1, 1992
Mobile Imaging 0 5 September 27, 1991
H.M. Payson 14 9 March 11, 1987
Peoples Heritage 25 92 October 18, 1987
Commercial Union 0 7 January 16, 1991
Prudential Insurance 0 1 March 15, 1989
Prudential Securities 6 3 August 31, 1988
UNUM 4 131 August 31, 1989
Verrill & Dana 29 31 October 30, 1987
<PAGE>
EXHIBIT G
WARRANTY BILL OF SALE AND ASSIGNMENT
KNOW ALL MEN BY THESE PRESENTS that PORTLAND SQUARE LIMITED
PARTNERSHIP, a Massachusetts limited partnership, having a place of business at
2150 Washington Street, Newton, MA 02162 for consideration paid by MGI
PROPERTIES, a Massachusetts business trust, the receipt of which is hereby
acknowledged, does hereby grant, sell, transfer, assign and deliver unto the
said MGI Properties the following goods, chattels and intangible personal
property.
1. The property listed on Exhibit A hereto.
2. All other apparatus, fixtures and articles owned by the
undersigned attached to or used or procured for use in
connection with the operation and maintenance of any building,
structure or other improvements located on the property at the
upper and lower parking lots at Portland Square, Portland,
Maine (the "Premises") except apparatus, fixtures or articles
or personal property belonging to lessees or other occupants
of the Premises.
TO HAVE AND TO HOLD all and singular the said goods, chattels and
intangible personal property to the said MGI Properties and its successors and
assigns, to their use and behoof forever.
AND Portland Square Limited Partnership hereby covenants with the
grantee that it is the lawful owner of the said goods, chattels and intangible
personal property; that they are free of all encumbrances; that it has good
right to sell the same as aforesaid; and that it will WARRANT and DEFEND the
same against the lawful claims and demands of all persons forever. The property
transferred by this Warranty Bill of Sale and Assignment is transferred AS IS,
WHERE IS.
IN WITNESS WHEREOF, Portland Square Limited Partnership has caused this
instrument to be executed under seal as of ___________, 1996.
PORTLAND SQUARE LIMITED PARTNERSHIP
By: Northland Union Street Limited Partnership
its General Partner
By: Northland Realty Corporation,
its General Partner
By:
Jeremy Hubball, President
<PAGE>
SCHEDULE A
TO EXHIBIT G
PERSONAL PROPERTY
SHARED AMONG ONE PORTLAND SQUARE AND TWO PORTLAND SQUARE
1 IBM computer for HVAC (386)
1 Worktable and chair
1 JC8500 HVAC control system
1 Schlage proximity access card system
1 2-drawer filing cabinet
LOCATED IN MAINTENANCE SHOP
4 Maintenance desks with chairs
Metal shelving
Uniform lockers
Misc. hardware (door handles, hinges, bolts, closures)
Misc. plumbing supplies (diagrams, plungers, valves)
Misc. electrical supplies (junction boxes, batteries, wiring, connectors)
Misc. paint supplies (paints, brushes, scrapers, rollers, caulking)
Misc. tools (pliers, wrenches, drivers, clamps, levels, hammers, mallets,
vice grips, saws)
1 Sump pump
1 Shop vacuum (12 gallon)
2 Desk movers
1 Moving dolly
1 Key machine
1 10" drill press
2 Makita cordless drills
1 Tool box
Various landscape materials (rakes, shovels, brooms, hoses, trash cans)
1 Small microwave
1 Small refrigerator
Misc. fans (desk type, floor model)
1 Answering machine
3 Telephones
Bulletin boards
TWO PORTLAND SQUARE
1 Security video recorder with 5 cameras
1 Garage sweeper
1 Large flammable liquid storage cabinet
1 Message board Supply shelving
1 12 foot ladder
1 6 foot ladder
6 handheld fire extinguishers
<PAGE>
1 Pallet of ice melt (45 bags)
5 Brass elevator doors (leftover from construction)
Various lightbulbs (purchased monthly)
Air handler filters
Various algaecides and pump for cooling towers
Janitorial supplies (paper products, etc.) purchased monthly
UNITS 1-6, ONE PORTLAND SQUARE
4 Hand held fire extinguishers
Various lightbulbs (purchased monthly)
Janitorial supplies (paper products, etc.)
PARKING LOTS
1 Sweda cash register
2 Cintac parking control computers
2 Printers
INTANGIBLE PROPERTY
All permits, licenses, certificates, variances, consents and approvals, plans,
specifications, warranties and guaranties, fixtures owned by Seller, advertising
and leasing brochures, trademarks, development rights, if any, and other
intangible property pertaining to the Premises.
<PAGE>
EXHIBIT G-1
PERSONAL PROPERTY WHICH BELONGS TO OTHERS
AND IS NOT INCLUDED IN SALE
CONDOMINIUM ASSOCIATION:
1 Security video recorder with four (4) cameras
2 6 foot ladders
1 3 foot ladder
1 8 foot ladder
1 Powered lift
1 Hand cart
1 Message board Supply shelving
1 Small flammable liquid storage cabinet
Various light bulbs (purchased monthly)
Air handler filters
1 Pallet of ice melt (45 bags)
Various algaecides and pump for cooling towers
Small amount of janitorial supplies (trash bags, cleaners)
MANAGEMENT COMPANY:
1 Turo snowblower
<PAGE>
EXHIBIT H
ACORD. CERTIFICATE OF INSURANCE CSR JM DATE (MM/DD/YY)
NORTH-4 04/03/96
PRODUCER THIS CERTIFICATE IS ISSUED AS A MATTER
Rodman Insurance Agency, Inc OF INFORMATION ONLY AND CONFERS NO
75 Wells Ave RIGHTS UPON THE CERTIFICATE HOLDER.
Newton MA 02159 THIS CERTIFICATE DOES NOT AMEND, EXTEND
OR ALTER THE COVERAGE AFFORDED BY THE
Philip Nyman POLICIES BELOW.
617-527-3000
COMPANIES AFFORDING COVERAGE
COMPANY
A Federal Insurance Company
INSURED
Portland Square Limited COMPANY
Partnership et al B
See Attached Listing
c/o Northland Realty Corp. COMPANY
2150 Washington Street C
Newton MA 02162
COMPANY
D
- --------------------------------------------------------------------------------
COVERAGES
THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN
ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED.
NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER
DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN,
THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE
TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN
REDUCED BY PAID CLAIMS.
- ------------------------------------------------------------------------------
POLICY POLICY
EFFECTIVE EXPIRATION
CO TYPE OF POLICY DATE DATE
LTR INSURANCE NUMBER (MM/DD/YY) (MM/DD/YY) LIMITS
GENERAL GENERAL AGGREGATE $
LIABILITY PRODUCTS-
[ ] COMMERCIAL COMPROP AGG $
GENERAL PERSONAL &
LIABILITY ADV INJURY $
[ ] CLAIMS MADE EACH OCCURRENCE $
[ ] OCCUR FIRE DAMAGE
[ ] OWNER'S (Any one fire) $
CONTRACTOR'S MED EXP
PROT (Any one person) $
[ ] ______________
- ------------------------------------------------------------------------------
AUTOMOTIVE COMBINED
LIABILITY SINGLE LIMIT $
[ ] ANY AUTO BODILY INJURY $
[ ] ALL OWNED AUTOS (Per person)
[ ] SCHEDULED AUTOS BODILY INJURY $
[ ] HIRED AUTOS (Per accident) $
[ ] NON-OWNED AUTOS PROPERTY DAMAGE $
[ ] ______________
- ------------------------------------------------------------------------------
GARAGE LIABILITY AUTO ONLY-
[ ] ANY AUTO EACH ACCIDENT $
[ ] ______________ OTHER THAN
AUTO ONLY $
EACH ACCIDENT $
AGGREGATE $
- ------------------------------------------------------------------------------
EXCESS LIABILITY
A [X] UMBRELLA FORM TBD 03/01/96 03/01/97 EACH OCCURRENCE $20000000
OTHER THAN AGGREGATE $20000000
[ ] UMBRELLA FORM ______________ $
- --------------------------------------------------------------------------------
WORKERS COMPENSATION STATUTORY LIMITS
AND EMPLOYERS' EACH ACCIDENT $
LIABILITY DISEASE-
POLICY LIMIT $
THE PROPRIETOR/ [ ] INCL DISEASE-EACH
PARTNER/ [ ] EXCL EMPLOYEE $
EXECUTIVE
OFFICERS ARE:
- --------------------------------------------------------------------------------
OTHER
- --------------------------------------------------------------------------------
DESCRIPTION OF OPERATIONS/LOCATIONS/VEHICLES/SPECIAL ITEMS
The above Umbrella Coverage extends to One Portland Square, Two Portland
Square, and the Upper and Lower Parking Lots located at the Portland Square
Properties in Portland, Maine.
- --------------------------------------------------------------------------------
CERTIFICATE HOLDER CANCELLATION
PORTL-1 SHOULD ANY OF THE ABOVE DESCRIBED
Portland Square Ltd Part et al POLICIES BE CANCELLED BEFORE THE
See attached listing EXPIRATION DATE THERETO, THE ISSUING
c/o Northland Realty Corp COMPANY WILL ENDEAVOR TO MAIL 30 DAYS
2150 Washington Street WRITTEN NOTICE TO THE CERTIFICATE
Newton Ma 02162 HOLDER NAMED TO THE POLICY BUT FAILURE
TO MAIL SUCH NOTICE SHALL IMPOSE NO
ACORD 25-S (3/93) OBLIGATION OR LIABILITY OF ANY KIND
UPON THE COMPANY, ITS AGENTS OR
REPRESENTATIVES
AUTHORIZED REPRESENTATIVE
/s/ Philip Nyman
(C) ACORD CORPORATION 1993
<PAGE>
EXHIBIT I
ACTIONS AGAINST SELLER
NONE
<PAGE>
EXHIBIT J
CLAIMS INVOLVING CONSTRUCTION OF THE PREMISES
NONE
<PAGE>
EXHIBIT K
NORTHLAND CORP
RENT ROLL II
*********************************INSERT EXHIBIT K****************************
<PAGE>
EXHIBIT L
COMMISSIONS DUE FROM SELLER
NONE
<PAGE>
SCHEDULE A TO EXHIBIT L
NORTHLAND CORP
LEASE EXP/OPT REPORT (LEASEEXP)
********************INSERT SCHEDULE A TO EXHIBIT L****************************
<PAGE>
EXHIBIT M
ASSIGNMENT OR RIGHTS IN AND TO THE
MEMORANDUM OF RIGHTS, OPTIONS AND RESTRICTIONS
FOR VALUE RECEIVED, PORTLAND SQUARE LIMITED PARTNERSHIP, a
Massachusetts limited partnership having its principal place of business at 2150
Washington Street, Newton, MA 02162 (hereinafter referred to as "Assignor"),
hereby assigns, transfers, conveys and sets over until MGI PROPERTIES, a
Massachusetts business trust (hereinafter referred to as "Assignee"), without
recourse and without any warranties herein except as set forth in the Purchase
and Sale Agreement, express or implied, in law or otherwise, all of the right,
title and interest of Assignor, as "Seller" in, to and under the Memorandum of
Rights, Options and Restrictions dated October 30, 1987 between it and Verrill &
Dana recorded in the Cumberland County Registry of Deeds in Book 8045, Page 277
(the "Memorandum").
Assignee hereby accepts such assignment and agrees to keep, observe and
perform all of Assignor's obligations as "Seller" under said Memorandum of
Rights, Options and Restrictions first accruing after the date hereof. Assignee
hereby indemnifies and agrees to hold Assignor free and harmless from any
liability under the Memorandum in connection with the performance or observance
of any obligations or failure to perform as the "Seller" by Assignee thereunder
first accruing on or after the date hereof. Assignor hereby indemnifies and
agrees to hold Assignee free and harmless from any liability under said
Memorandum in connection with the performance or observance of any obligations
or failure to perform as the "Seller" by Assignor thereunder which accrued or
should have accrued prior to the date hereof.
This Agreement shall not in any way modify the warranties contained in
a Purchase and Sale Agreement between Assignor and Assignee dated as of April
____, 1996.
This Agreement shall be binding upon and inure to the benefit of the
respective executors, administrators, heirs, successors and assigns of Assignor
and Assignee.
IN WITNESS WHEREOF, Assignor and Assignee have executed this Agreement
under seal as of ________________, 1996.
ASSIGNOR: PORTLAND SQUARE LIMITED PARTNERSHIP
By: Northland Union Street Limited Partnership,
its General Partner
By: Northland Realty Corporation,
its General Partner
By: ___________________________
Jeremy Hubball, President
ASSIGNEE: MGI PROPERTIES
By:
<PAGE>
PURCHASE AND SALE AGREEMENT
ONE PORTLAND SQUARE
PORTLAND, MAINE
BETWEEN
MGI PROPERTIES
-BUYER-
AND
PORTLAND SQUARE LIMITED PARTNERSHIP
-SELLER-
<PAGE>
INDEX TO LEASE
1. DESCRIPTION......................................................1
2. TITLE; DEED......................................................2
3. PLAN.............................................................2
4. PURCHASE PRICE...................................................2
5. CLOSING..........................................................3
a. Deed..............................................3
b. Conditions to Buyer's Obligations.................3
c. Real Estate Taxes.................................6
6. POSSESSION AND CONDITION OF UNITS AND PREMISES...................6
7. TITLE DEFECTS; EXTENSION OF TIME TO PERFECT TITLE................6
8. ACCEPTANCE OF DEED...............................................7
9. WARRANTIES AND REPRESENTATIONS...................................7
10. DELIVERY OF UNITS IN "AS IS" CONDITION..........................13
11. DUE DILIGENCE...................................................14
a. Environmental Inspection.........................14
b. Financing Contingency............................15
12. ACCESS TO INFORMATION...........................................15
13. USE OF MONEY TO CLEAR TITLE.....................................16
14. INSURANCE.......................................................16
15. CLOSING ADJUSTMENTS.............................................16
a. Rents............................................16
b. Taxes and Expenses of Sale.......................17
c. License Fees.....................................17
d. Service Contracts................................17
e. Utilities........................................17
f. Condominium Capital Reserve......................17
16. BROKERS.........................................................18
17. BUYER'S DEFAULT; DAMAGES........................................18
18. ESCROW AGENT; DISPUTES..........................................18
a. Liability of Escrow Agent........................18
b. Disputes.........................................18
19. PACKAGE OFFER CONTINGENCY.......................................20
20. VERRILL & DANA CONTINGENCY......................................20
21. ENTIRE UNDERSTANDING............................................20
22. NOTICES.........................................................20
23. CONSTRUCTION OF AGREEMENT.......................................21
24. OPERATING COVENANTS.............................................21
25. LIKE-KIND EXCHANGE..............................................22
26. PERSONAL LIABILITY..............................................22
27. CONDOMINIUM GOVERNANCE..........................................22
28. SEC RULES.......................................................23
<PAGE>
LIST OF EXHIBITS
EXHIBIT A DECRIPTION OF UNITS
EXHIBIT A-1 DESCRIPTION OF PROPERTY
EXHIBIT B LIST OF ENCUMBRANCES
EXHIBIT C ASSIGNMENT OF SERVICE AGREEMENTS
EXHIBIT C-1 LIST OF SERVICE CONTRACTS
EXHIBIT D ASSIGNMENT OF PERMITS, APPROVALS AND
LICENSES
EXHIBIT E ASSIGNMENT, ACCEPTANCE AND ASSUMPTION OF
LEASES, GUARANTIES, TENANCIES AND OCCUPANCIES
EXHIBIT F LIST OF LEASES
EXHIBIT G WARRANTY BILL OF SALE AND ASSIGNMENT
EXHIBIT G-1 PERSONAL PROPERTY WHICH BELONGS TO OTHERS AND
IS NOT INCLUDED IN SALE
EXHIBIT H INSURANCE CERTIFICATE
EXHIBIT I ACTIONS AGAINST SELLER
EXHIBIT J CLAIMS INVOLVING CONSTRUCTION OF THE UNITS
EXHIBIT K RENT ROLL AND SECURITY DEPOSITS
EXHIBIT L COMMISSION DUE FROM SELLER/BUYER/OTHER PARTY
EXHIBIT M ASSIGNMENT OF RIGHTS IN AND TO THE
MEMORANDUM OF RIGHTS, OPTIONS & RESTRICTIONS
<PAGE>
PURCHASE AND SALE AGREEMENT
UNITS #1-6
ONE PORTLAND SQUARE
PORTLAND, MAINE
Purchase and Sale Agreement, dated as of April 26, 1996 (this
"Agreement"), by and between PORTLAND SQUARE LIMITED PARTNERSHIP, a
Massachusetts limited partnership, having a business address at 2150 Washington
Street, Newton, MA 02162 ("Seller"), and MGI PROPERTIES, a Massachusetts
business trust having an address at 1 Winthrop Square, Boston, MA 02110
("Buyer").
W I T N E S S E T H :
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. DESCRIPTION. Seller hereby agrees to sell to Buyer and Buyer hereby
agrees to purchase from Seller, upon the terms and conditions hereinafter set
forth, the following property (the "Premises"): the six (6) condominium Units
denominated Units 1, 2, 3, 4, 5 and 6 (the "Units") in One Portland Square, a
Business Condominium situated at the corner of Union and Spring Streets in the
City of Portland, County of Cumberland and State of Maine (the "Condominium")
created pursuant to the Maine Condominium Act, 33 M.R.S.A. 1601 - 101 et seq.
(the "Act") by Declaration of Condominium dated as of October 27, 1987 recorded
in the Cumberland County Registry of Deeds in Book 8039, Page 37 (the
"Declaration"), together with (a) an undivided percentage interest for each of
the Units as set forth in the Declaration in both the common areas and
facilities of the Condominium including without limitation, the Land, as defined
below and all exclusive or other rights to any Limited Common Areas
(collectively, the "Common Areas") and votes in the association of unit owners
through which the Condominium is to be managed and regulated, and (b) such other
rights, licenses and easements appurtenant to the Units as may be set forth in
the documents governing the operation of the Condominium, including, without
limitation, the Declaration and the Articles of Incorporation of One Portland
Square Condominium Association (the "Association") and the By-Laws of the
Association (collectively the "Condominium Documents"), and any administrative
rules and regulations adopted pursuant to the Articles of Incorporation and/or
the By-Laws, and (c) any fixtures defined in the Condominium Documents as part
of the Units, and (d) all permits, licenses, certificates, variances, consents
and approvals pertaining to the Units, all plans and specifications, warranties
and guaranties relating to the Units and the aforementioned fixtures,
advertising and leasing brochures, tradenames, trademarks, development rights,
if any, and other intangible property pertaining to the Units and their use and
operation (the "Intangible Property"). The Units comprise generally the first
six (6) floors of the Building (the "Building") on a certain
1
<PAGE>
parcel of land located at the corner of Union Street and Spring Street in
Portland, Maine, as more particularly described in Exhibit A-1 hereto (the
"Land").
2. TITLE; DEED. The Units are to be conveyed by a Maine Warranty Deed
with warranty covenants (the "Deed") running to Buyer or its nominee, and the
Deed shall convey good record, marketable and insurable title free and clear of
any and all liens, claims and encumbrances, except:
(a) Provisions of existing applicable laws and regulations in
effect on the date of the delivery of the Deed, provided the same do not
interfere with the current use of the Premises;
(b) Such real and personal property taxes for the then current
tax period as are not yet due and payable on the date of the recording of the
Deed;
(c) Any liens for municipal betterments assessed on the Units
after the date of the recording of the Deed;
(d) The easements, agreements, encumbrances, rights, title or
interests of others and other agreements referred to in the Condominium
Documents and other matters as are referenced in the list of encumbrances
attached hereto as Exhibit B so long as the same do not interfere with the
current use of the Premises ("Permitted Encumbrances");
(e) The Equitable Life Assurance Society of the United States
("Equitable") loan documents evidencing a $12,616,000.00 loan ("Loan") secured
by a first mortgage lien on the Premises, including without limitation, a
Mortgage and Security Agreement, as amended by a First and Second Amendment to
Mortgage dated December 10, 1990 and June 1, 1995, respectively, a UCC-1
Financing Statement and an Assignment of Lessor's Interest in Lease, as amended
by a First Amendment dated June 1, 1995 ("Loan Documents");
3. PLAN. If the Deed refers to a plan necessary to be recorded
therewith, Seller shall deliver such plan with the Deed in form adequate for
recording.
4. PURCHASE PRICE. In consideration of Seller's conveyance of the
Units, Buyer shall pay to Seller the sum of $12,350,000.00 of which
$137,250.00 has been paid by Buyer as a deposit as of this day
("Second Deposit").
$12,212,750.00 representing the balance shall be paid by
assumption of the Equitable Loan, if Buyer so
elects or, if Buyer does not assume the Loan and
does not exercise its right to terminate this
Agreement pursuant to Paragraph 11(b) hereof, the
full $12,212,750.00 to be paid immediately upon
the recording of the Deed by the Buyer's title
insurance company (the "Title Company") by
certified check
2
<PAGE>
or checks or, at Seller's request, by wire
transfer in accordance with wiring instructions
provided by Seller subject only to withholding if
required by the Internal Revenue Service.
$12,350,000.00 TOTAL
All deposits made hereunder shall be held by Atlantic Title Company, 76
Atlantic Avenue, Portland, Maine 04106, as Escrow Agent in an interest-bearing
FDIC insured bank account or accounts (so that no account has in excess of
$100,000) 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, with all interest accrued thereon with regard to
the Deposit from and after the date hereof being applied against the Purchase
Price, except only that accrued and earned interest on the deposit shall be paid
to Buyer in the event the deposit is returned to Buyer for any reason,
including, without limitation, in the event of Seller's failure or inability to
perform Seller's obligations hereunder.
5. CLOSING. (a) Deed. The Deed is to be delivered at a closing no later
than 11:00 a.m. on June 24, 1996 ("Closing Date") at the Cumberland County
Registry of Deeds unless otherwise agreed upon in writing. It is agreed that
time is of the essence of this Agreement.
(b) Conditions to Buyer's Obligations. Buyer's obligation
to purchase the Units and pay the Purchase Price shall be subject to the
satisfaction at or before the Closing of each of the following conditions,
unless waived in writing by Buyer:
(i) Deed. Seller shall deliver the Deed, duly
executed and acknowledged by Seller.
(ii) Title Affidavits. Such customary affidavits
and indemnities as the Title Company may
reasonably require in order to issue a
so-called owner's title insurance policy
without the standard exceptions, including
without limitation, an exception for
mechanics' and materialman's liens or for
parties in possession, and with affirmative
insurance to the effect that Verrill &
Dana's rights of first offer, rights of
first refusal and options to purchase has
been complied with and will not affect
Buyer's title except to the extent that it
may apply to future sales;
(iii) Non-Foreign Affidavit. A non-foreign person
affidavit executed to reflect the status of
Seller;
(iv) Assignment of Service Agreements. Seller
shall deliver an instrument of assignment
and assumption in substantially the form of
Exhibit C, duly executed and acknowledged by
Seller, assigning
3
<PAGE>
to Buyer Seller's interest in the written
agreements relative to the operation,
management, maintenance, security, finance
or insurance for the Units listed on Exhibit
C-1 ("Service Agreements") in effect on the
Closing Date but only those which Buyer has
elected to assume, and evidence of the
termination of all Service Agreements not so
assumed;
(v) Assignment of Permits. Seller shall deliver
a blanket assignment to Buyer in the form of
Exhibit D of all permits, licenses,
certificates, variances, consents and
approvals pertaining to the Units, duly
executed and acknowledged by Seller,
together with any originals of such
instruments in Seller's possession or
control, and together with approvals of any
party which may be required in order to
effectuate such assignments including
without limitation, if required, the
approval of any state or local authority.
(vi) Assignment of Leases. Seller shall deliver
an instrument of assignment and assumption
in substantially the form of Exhibit E, duly
executed and acknowledged by Seller,
assigning to Buyer Seller's interest in the
leases and lease guaranties, if any, set
forth in Exhibit F for space in the Units in
effect on the Closing Date;
(vii) Warranty Bill of Sale and Assignment. Seller
shall deliver to Buyer a Bill of Sale in the
form attached hereto as Exhibit G for all
apparatus, fixtures and articles of personal
property owned by Seller and attached to or
used or procured for use in connection with
the operation or maintenance of the Units
including, but without limiting the
generality of the foregoing, all engines,
furnaces, boilers, stokers, pumps, heaters,
tanks, dynamos, motors, generators,
switchboards, electrical equipment, heating,
plumbing, lifting and ventilating apparatus,
materials handling equipment, air-cooling
and air-conditioning apparatus, gas and
electric fixtures, elevators, escalators,
fittings, and machinery and all other
equipment of every kind and description,
used or procured for use in the operation of
the Units (except those certain apparatus,
fixtures or articles or personal property
belonging to lessees or other occupants of
the Units or to the management company or to
persons other than Seller as shown on
Exhibit G-1 unless the same be abandoned by
any such sublessee or other occupant or
person), together with any and all
replacements thereof and additions thereto
and all Intangible Property ("Personal
Property");
(viii) Estoppel Certificates. Seller shall deliver
current estoppel certificates in
substantially the form provided by Buyer and
4
<PAGE>
containing information which comports with
the Rent Roll for all tenants occupying in
excess of 5,000 rentable square feet and,
with respect to those tenants occupying less
than 5,000 rentable square feet, at least
seventy-five percent (75%) of all such
retail tenants and seventy-five percent
(75%) of all such non-retail tenants
(determined by square footage rather than
the number of tenants). To the extent Seller
is unable to obtain estoppel certificates
from all tenants, Seller shall provide Buyer
with an estoppel certificate in the form
provided by Buyer with respect to lease
information only, for all tenants from whom
an estoppel certificate has not been
obtained;
(ix) Representations and Warranties. The
representations and warranties made by
Seller in Paragraph 9 of this Agreement
shall be true and correct on the date of
this Agreement and shall be true and correct
on the Closing Date with the same effect as
though such representations and warranties
had been made or given as of such date;
(x) A 1099 IRS filing;
(xi) Evidence reasonably satisfactory to Buyer
and the Title Company of (a) the authority
of Seller to execute the closing documents
and of any signatory to execute the same on
behalf of the Seller and (b) the expiration
of the rights of first offer, rights of
first refusal and options to purchase of
Verrill & Dana;
(xii) If Buyer assumes the Loan, an estoppel
certificate of the Lender with respect to
the Loan, as defined in Section 11(f), and
final assumption documents relating to
Buyer's assumption of the Loan, in form and
substance reasonably satisfactory to Buyer
and Seller, and true and complete copies of
all documentation relating to the Loan have
been provided to Buyer;
(xiii) Reissuances (addressed to Buyer) of the land
use opinions issued by counsel to Seller in
connection with the Loan dated as of the
Closing;
(xiv) Delivery of all keys, locks, security codes
and similar security-related materials;
(xv) Notices to all tenants under the Leases of
the conveyance in form and substance
reasonably satisfactory to Buyer;
5
<PAGE>
(xvi) Any filings required under the laws of the
State of Maine and the City of Portland
relating to the transaction;
(xvii) All documentation required by change of
ownership provisions under any Lease;
(xviii) An assignment in the form attached hereto as
Exhibit M of all of Seller's rights (and the
rights of any original Northland party)
under that certain Memorandum of Rights,
Options & Restrictions dated October 30,
1987 by and between Portland Square Limited
Partnership and Verrill & Dana, as amended
by letter agreement dated August 24, 1989
between Mark Massey and Christopher
Coggeshall (the "Memorandum");
(xix) A Certificate from the Association that as
of the Closing there are no outstanding
common area charges due and payable with
respect to the Units; and
(xx) Assignment of Fisherman's Wharf Parking
Lease dated December 9, 1991, as amended.
(c) Real Estate Taxes. Seller shall pay all real estate
transfer taxes at the Closing and for the cost of recording any instruments
required to clear title. Buyer shall pay for the recording of the Deed (not
including real estate transfer taxes), any mortgages and any other instruments
to be recorded.
6. POSSESSION AND CONDITION OF UNITS AND PREMISES. Full possession
of the Premises, free of all tenants and occupants, except those set forth on
Exhibit F hereto, is to be delivered at the Closing, the Premises and the Common
Areas to be then in the same condition as they now are, reasonable use and wear
thereof excepted, and, not in violation, in a manner which would adversely
affect the use of the Premises and the Common Areas for their current uses, of
the applicable laws and regulations referred to in paragraph 2(a) hereof or the
Permitted Encumbrances.
7. TITLE DEFECTS: EXTENSION OF TIME TO PERFECT TITLE. If Seller shall
be unable to give title or to make conveyance, or to deliver possession of the
Premises, all as herein stipulated, or if at the Closing the Premises and the
Common Areas do not conform with the provisions hereof, then Seller shall (i)
remove all encumbrances, if any, which secure the payment of money, whether or
not created by Seller, including, but not limited to, liens and mortgages, and
(ii) use reasonable efforts to remove all other defects in title and to deliver
possession as provided herein, and to make the Premises and the Common Areas
conform to the provisions hereof, as the case may be, and thereupon the closing
shall be extended for such period (not to exceed 45 days) as shall be required
to remove such defects in title, deliver possession or make the Units conform to
the provisions hereof, as the case may be; provided,
6
<PAGE>
however, that with respect to Seller's obligations set forth in clause (ii)
above, Seller shall not be obligated to expend to cure such defects, or to
deliver possession, or to make the Units conform, an amount greater than
$100,000 in the aggregate.
If at the expiration of the extended time Seller shall have failed so
to remove any defects in title, deliver possession, or make the Premises and the
Common Areas conform, as the case may be, pursuant to this Paragraph 7, any
deposits made under this Agreement shall be forthwith refunded to Buyer with the
interest earned thereon and all other obligations of the parties hereto shall
cease, and this Agreement shall be void and without recourse to the parties
hereto. Notwithstanding the foregoing, Buyer shall have the election, at either
the original or extended closing, to accept such title as Seller can deliver to
the Premises in their then condition and to pay therefor the Purchase Price
without reduction (except in the case of encumbrances which secure the payment
of money which can be discharged of record by the payment of an ascertainable
sum), in which case Seller shall convey such title to the Premises except that
upon such election by Buyer in the event of such conveyance in accordance with
the provisions of this clause if any portion of the Premises shall have been
taken by exercise of the power or eminent domain, Seller shall pay over or
assign to Buyer on delivery of the Deed all awards recovered or recoverable on
account of such taking and all of Seller's rights to receive any such awards,
less any amounts reasonably expended by Seller in obtaining such award, in which
event there shall be no reduction in the Purchase Price, and except further that
upon such election by Buyer if the Units shall have been damaged by fire or
casualty insured against, then Seller shall, unless Seller has previously
restored the Premises to their former condition, pay over or assign to Buyer, on
delivery of the Deed, all amounts recovered or recoverable on account of such
insurance, less any amounts reasonably expended by Seller for partial
restoration, plus any deductible amount not recoverable.
8. ACCEPTANCE OF DEED. The acceptance of the Deed by Buyer shall be
deemed to be a full performance and discharge of every agreement and obligation
herein contained or expressed, except for the provisions of Paragraphs 9, 16, 27
and 28 hereof, which shall survive the delivery of the Deed and the closing of
the transactions contemplated by this Agreement for a one (1) year period
following the Closing with the exception of certain obligations with respect to
the Equitable Loan as described in Paragraph 9 which will survive as set forth
therein (and any other provisions which specifically state that they so
survive).
9. WARRANTIES AND REPRESENTATIONS. (a) Seller represents, covenants and
warrants to and agrees with Buyer, as of the date of this Agreement and as of
the closing, as follows:
(1) Seller has not received any written notice and does not
otherwise have knowledge of any eminent domain and/or
condemnation proceedings, either pending or
contemplated, or of any current provisions of, or
proposed changes in the zoning of the Units for their
current uses , or any other local laws or ordinances
either pending or contemplated, which, in either case,
may materially adversely affect the use of the Premises
or Common Areas
7
<PAGE>
for their current use.
(2) Seller is a limited partnership duly organized under
the laws of the State of Massachusetts and duly
qualified to do business in the State of Maine and has
the power, authority and legal right to execute and
deliver this Agreement and to enter into the
transactions contemplated hereby, and the execution and
delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly
authorized by all requisite corporate actions on the
part of Seller and such authority has not been revoked.
(3) Seller has not and, prior to the closing, will not
grant any easements nor enter into any agreement for
lease or otherwise which may affect title to or convey
any interest in the Units which cannot be terminated
prior to the date of closing.
(4) Seller has not received written notice from any
governmental, federal, state, county or municipal
agency or authority requiring the assessment or
correction of any condition with respect to the
Premises or the Common Areas or any part thereof, by
reason of a violation of any law, regulation, ordinance
or otherwise including without limitation The Americans
With Disabilities Act and the Maine Human Rights Act
and except as set forth in the study entitled "ADA
Analysis dated May 28, 1992" prepared by David
Saltzman, A1A (which has been provided to Buyer),
Seller does not otherwise have knowledge of any
violation of any law, regulation, ordinance or
otherwise relating to the Premises or the Common Areas.
(5) Other than as set forth in the environmental reports
entitled "Oil and Hazardous Material Site Evaluation,
One Portland Square, Portland, Maine" dated 5 October
1987 prepared by Haley & Aldrich, Inc. and the report
entitled "Phase I Environmental Site Assessment, One
Portland Square, Portland, Maine" dated May 2, 1995
prepared by Recon Environmental Corp. (collectively,
the "Environmental Reports"), Seller has not received
any written notice and does not otherwise have actual
knowledge of oil or hazardous waste or materials, or
(except as set forth in the DEP registration form dated
November 1, 1990 a copy of which has been delivered to
Buyer) underground storage tanks, present on or
released to or from the Units, the Land or the Common
Areas.
(6) The insurance maintained by Seller with respect to the
Units and their use and operation is listed on the
certificates attached as Exhibit H hereto. Seller has
not received any notices from any insurer or its agent
requiring performance of any work with respect to the
Units or canceling or threatening to cancel any policy,
and the Units comply with the
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requirements of all insurance carriers and with the
requirements of the State of Maine Board of Fire
Underwriters.
(7) Except as disclosed in writing to Buyer prior to the
date of this Agreement and listed on Exhibit I attached
hereto, there are no actions or proceedings instituted
or pending before any court, administrative agency or
arbitrator against Seller, against or concerning the
Units, the Premises or the Common Areas or against,
relating to, or adversely affecting the right, title or
interest of Seller in or to any of the Premises, or the
right, title or interest of the Association in the
Common Areas, or relating to Seller's execution or
performance of this Agreement, and, to the best of
Seller's knowledge, there are no such actions or
proceedings threatened. No proceeding has been filed by
or against Seller under the United States Bankruptcy
Code, or any State law relating to bankruptcy or
insolvency, seeking liquidation of Seller, or its
reorganization, or an arrangement with its creditors,
or the appointment of a trustee or receiver for its
assets or business.
(8) All contractors, subcontractors and other persons or
entities furnishing work, labor, materials or supplies
for construction of or additions to the Premises or the
Common Areas or for tenant improvements have been paid
in full or provided for in a manner satisfactory to
Buyer according to its written approval, and Seller has
no knowledge of any claims against the Premises or
Seller or the Association in connection therewith and
has no claims against any of its contractors or
subcontractors except as set forth on Exhibit J hereto.
(9) The leases for space in the Units and the guaranties
thereof in all material respects are accurately and
completely listed along with all amendments, letter
agreements and letters of extension in Exhibit F (the
"Leases"), and true and complete copies of which Seller
has provided to Buyer. The Leases constitute the sole
agreements and understandings relating to leasing or
licensing of space in the Units, there are no
occupancies, rights, privileges or licenses in or to
the Units other than pursuant to the Leases, and,
except as set forth in the Leases, no Lease provides
for any restrictions or options on the leasing, use,
ownership, purchase or occupancy of or any part of the
Premises. The Leases are unmodified except as set forth
in copies of the leases provided to Buyer, and in full
force and effect, in accordance with their respective
terms, without any actual or threatened default by
either party thereunder, except as listed on Exhibit F
attached hereto, nor are there any defenses,
counterclaims, offsets, concessions or rebates except
as set forth in the Leases, and Seller has not given or
made, or received, any notice of default, or any claim,
which remains uncured or unsatisfied, with respect to
any of the Leases, and, to the best of Seller's
knowledge there is no basis for any such claim or
notice of default by any
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tenant. The rent roll furnished by Seller to Buyer and
attached hereto as Exhibit K accurately and completely
sets forth all the rents payable by tenants, no tenant
having paid more than one month's rent in advance.
Exhibit K furnished by Seller to Buyer accurately and
completely sets forth all security deposits from tenants.
All tenant improvements or work to be done, furnished or
paid for by Seller, or credited or allowed to a tenant,
for, or in connection with, the Units pursuant to any
Lease have been completed and paid for or provided for in
a manner satisfactory to Buyer according to its written
approval. No tenant under the leases has any right to
free rent or other concessions. No tenant is habitually
in default under its lease. Except as set forth on
Exhibit L attached hereto, no leasing, brokerage or like
commissions, fees or payments are due from Seller or will
be due from Buyer or any other party with respect to the
Leases or any extensions, modifications or amendments
thereof or any future sale of the Premises. With respect
to any leasing commission due described in Exhibit L, the
same shall only be due if the subject management
agreement is in full force and effect. There has been no
assignment, pledge or encumbrances of any Lease by Seller
or any of the rents or other payments due to Seller
thereunder except in connection with the Loan, as defined
in Section 11(f) below. All insurance required to be
provided by tenants under the Leases is in full force and
effect.
(10) The Service Agreements are accurately and completely
listed in Exhibit C-1, as so set forth constitute the
sole agreements and understandings of Seller with respect
to the operation and maintenance of any of the Units, and
the copies thereof furnished by Seller to Buyer are true
and complete. To the best of Seller's knowledge, there
are no claims or any bases for claims in respect of the
Units or its operation by any of the parties to the
Service Agreements. All of said service agreements are
cancelable upon no more than thirty (30) days' notice
except as set forth in Exhibit C-1.
(11) Seller has submitted to Buyer statements of income of
Seller and the Association for the years ended December
31, 1993, 1994 and 1995, prepared in accordance with
generally accepted accounting principles consistently
applied with an unqualified opinion of independent
certified public accountants, that the above-described
financial statements present fairly the results of
operations for, and the financial position as at the end
of, such years in accordance with generally accepted
accounting principles consistently applied. Such
statements of income present fairly the financial
position and results of operations of the Association,
Seller and the Premises as at the dates thereof. Since
the date of the most recent of such financial statements
there have been no changes in the assets, liabilities,
financial condition, business or results of operations of
Seller other than changes in the ordinary course of
business the effect of which has not been in any
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case, or in the aggregate, materially adverse.
(12) There are no unpaid or outstanding real estate or other
taxes, or assessments on or against the Units or any part
thereof or the Common Areas or any part thereof, which
are payable by Seller (except only real estate taxes not
yet due and payable). Seller has delivered to Buyer true
and correct copies of real estate tax bills for the Units
and the Common Areas for the current tax year. No
abatement proceedings are pending with reference to any
real estate taxes assessed against the Units or the
Common Areas. There are no betterment assessments or
other special assessments presently pending with respect
to any portion of the Units or the Common Areas, and
Seller has received no notice of any such special
assessment being contemplated.
(13) No approval, consent, order or authorization of, or
designation, registration or declaration with, any of the
United States or the State of Maine, any department,
board, agency, office, commission or other subdivisions
thereof, or any official thereof (each a "Governmental
Authority") is required in connection with the valid
execution and delivery of, and performance of the
covenants of, this Agreement by Seller.
(14) The execution of this Agreement by Seller and Seller's
observance and performance of all of its respective
covenants and obligations hereunder do not contravene any
judgement, order or provision of the law or any agreement
binding upon Seller; however, the ability of Seller to
perform under this Agreement is conditioned upon approval
by Equitable of the assumption of the Loan by Buyer
unless Buyer elects to pay cash for the Premises as
described in Section 11(b) hereof.
(15) The Units and the Common Areas do not encroach upon the
property of any third party and no improvements owned by
any other party, either aboveground or underground,
encroach upon the Land, the Common Areas or the Units.
(16) All utilities servicing the Units and the Common Areas
are of sufficient capacity for the unimpeded current
operation of the Units and the Common Areas and such
utilities are obtained via connections directly in the
public ways abutting the Land without the need for any
easements, rights of way or licenses from any third
parties except as shown on the survey described in
Exhibit B hereto and on the survey described in Exhibit B
to the purchase and sale agreement for Two Portland
Square between the parties hereto.
(17) With respect to the Loan as defined in Section 11(f),
Seller has not breached any warranty, representation or
covenant made by Seller to Lender and is otherwise not in
default under the Loan, and the Loan is non-recourse
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except under certain circumstances set forth in the Loan
documents, true and complete copies of which have been
provided to Buyer.
(18) The common area charges for the Units are $23,219.00 per
month, and true and complete copies of the Condominium
Documents have been delivered to Buyer. Seller knows of
no special assessments currently planned by the
Association in excess of the monthly common area charge.
True and complete copies of the Association's current
budget and balance sheet have been delivered to Buyer.
(19) The Building was built in accordance with the original
plans and specifications as the same were approved by the
appropriate local and state authorities.
(20) All permits, licenses and approvals necessary for the
construction, use, and operation of the Building have
been obtained and are in full force and effect, all
requirements thereof have been complied with and all
appeal periods relating thereto have expired without
appeal.
(21) All private ways providing access to the Premises and the
Common Areas are zoned in a manner which will permit
access to the Premises and the Common Areas over such
ways by all passenger and commercial vehicles.
(22) The Memorandum, as defined in Section 5, is in full force
and effect to the best of Seller's knowledge; a true and
complete copy of The Memorandum and amendments thereto
has been delivered to Buyer; there are no other
amendments thereto except as described in Paragraph
5(b)xviii; there are no defaults by either party to the
Memorandum or by Two Portland Square Limited Partnership
as assignee thereof; all provisions of the Memorandum
have been fully complied with (i) in connection with the
transaction contemplated by this Agreement and (ii) in
general, including without limitation, all provisions of
the Memorandum which relate to the construction, use and
operation of Two Portland Square.
(23) The lease for parking spaces at Fisherman's Wharf dated
December 9, 1991 between Portland Square Limited
Partnership and Fisherman's Wharf Associates II is in
full force and effect and all rent is paid in full to the
end of the month in which the Closing occurred and Seller
has received no notice of default from the Landlord
thereunder.
It shall be a condition of Buyer's obligation to close under this
Agreement that the foregoing warranties and representations made by Seller shall
be true in all material respects as of the closing. In the event any warranty or
representation made herein shall not be true in all material respects at the
Closing and Seller gives written notice thereof to Buyer prior to Closing,
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then, at Buyer's option, and as Buyer's sole remedy at law or in equity, all
sums paid hereunder by Buyer shall forthwith be refunded to Buyer with all
interest earned thereon and all obligations of the parties hereunder shall
terminate without recourse. If Buyer elects to purchase the Premises
notwithstanding such notice, the particular warranty or representation shall be
deemed amended.
Each of the general and limited partners of Seller and the other
signatories to the Loan documents (collectively, said general and limited
partners, other signatories and Seller hereinafter referred to as the "Liable
Parties") hereby join in this Agreement for the purpose of representing that
they know of no information which would indicate that any of the foregoing
representations is untrue or misleading and agree to be jointly and severally
liable post-closing for the one (1) year period following the closing for any
misrepresentation of Seller in this Section 9 and any misrepresentation of any
of the Liable Parties set forth in this sentence. Furthermore, the Liable
Parties also agree, jointly and severally, to indemnify and hold harmless Buyer
and its nominee post-Closing (i) for any and all costs or expenses incurred by
the Buyer and its nominee during the one (1) year period following the Closing
pursuant to the Loan documents as a result of a breach of any obligation,
warranty, representation or covenant under the Loan documents committed or
caused by any of the Liable Parties prior to the Closing; provided that the
Buyer did not have actual knowledge, prior to the Closing, of the existence of
the breach; and (ii) for the term of the Loan as of the date hereof (or until
the Loan is discharged, assigned by Buyer or its nominee or satisfied, if
earlier) for any and all costs or expenses incurred by the Buyer pursuant to the
Loan documents as a result of any and all so-called "bad acts", including
without limitation, fraud, misrepresentation or deceptive business practice
committed by any of the Liable Parties in connection with the Loan prior to the
Closing. Likewise, Buyer agrees to indemnify and hold harmless Seller
post-Closing for the term of the Loan (or until the Loan is discharged or
satisfied, if earlier) for any and all costs and expenses incurred by Seller
pursuant to the Loan documents as a result of a breach of any obligation,
warranty, representation or covenant under the Loan documents committed by or
caused by Buyer or its nominee after Buyer assumes the Loan or as a result of
any and all "bad acts", as defined above, committed by Buyer in connection with
the Loan. The word "Lender" as used in this Paragraph shall be deemed to include
Lender, its successors and assigns.
(b) Buyer represents, covenants and warrants to and agrees
with Seller that Buyer has the power, authority and legal right to execute and
deliver this Agreement and to enter into the transactions contemplated hereby,
and that the execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby have been duly authorized by all requisite
corporate actions on the part of Buyer and such authority has not been revoked.
10. DELIVERY OF UNITS IN "AS IS" CONDITION. Except as expressly set
forth in this Agreement, Buyer acknowledges that Buyer has not been influenced
to enter into this transaction nor has Buyer relied upon any warranties,
representations or indemnities by Seller, express or implied, with respect to
the condition or suitability of the Units or any part thereof, any matter of
fact or any matter in any way relating to the Units, this Agreement or
otherwise. In particular, Buyer acknowledges that Seller is selling and Buyer is
purchasing the Units "AS
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IS, WHERE IS", with all faults and defects, latent, patent or otherwise. Without
limiting the generality of the foregoing, Buyer acknowledges that, except as
expressly set forth in this Agreement and in the Deed, neither Seller nor any
broker or agent of Seller has provided any representations, warranties,
promises, covenants, agreements or guaranties of any kind or character
whatsoever, whether express or implied, oral or written, as to:
(a) The nature, quality or condition of the Units, including,
without limitation, the water, soil and geologic or environmental nature,
quality or condition;
(b) The suitability of the Units for any and all activities
and uses which Buyer may conduct thereon;
(c) The compliance of or by the Units or their operation with
any laws, rules, ordinances or regulations of any applicable governmental
authority or body;
(d) The habitability, merchantability or fitness for a
particular purpose of the Units; or
(e) Any other matter with respect to the Units not
specifically addressed in Paragraph 9(a) above.
11. DUE DILIGENCE. Buyer's obligation to purchase the Units shall be
subject to the satisfaction of Buyer with respect to all aspects of the
Premises, the Common Areas, and the Loan, including without limitation, the
title, survey, environmental and other condition, compliance with law, taxes and
assessments based upon Buyer's due diligence review of the same at Buyer's sole
cost and expense by May 24, 1996 ("Due Diligence Period").
Buyer shall have the right to terminate this Agreement for any reason
during the Due Diligence Period without recourse to either party hereto in which
case Buyer shall receive a refund of its deposit and any interest thereon. If
Buyer does not so terminate this Agreement by notice to Seller given within the
Due Diligence Period, Buyer shall not thereafter have any claim against Seller
or any right to terminate this Agreement because of any matters which were
existing at the expiration of the Due Diligence Period unless Seller agrees in
writing to cure any defects and then fails to do so; provided, however, that the
foregoing shall not in any way limit the obligations of Seller and each other
party to this Agreement pursuant to Section 9 of this Agreement.
The provisions of this paragraph 11 shall survive the delivery of the
Deed and the closing of the transactions contemplated by this Agreement.
(a) Environmental Inspection. Buyer acknowledges that the
Environmental Reports have been prepared by parties other than Seller, that
Seller has made no representation or warranty with respect to the content,
completeness or accuracy of the Environmental Report and that Seller does not
intend for Buyer to rely upon the information set forth in the
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Environmental Report.
Buyer shall have the right to retain a qualified professional at its
expense to prepare a report concerning compliance of the Premises and the Common
Areas with the Comprehensive Environmental Response Compensation Act, the
Resource Conservation and Liability Act, the Superfund Amendment and
Reauthorization Act, the Resource Conservation Recovery Act, the Superfund
Amendment Act and Reauthorization Act, any so-called federal, state or local
"superfund" or "superlien" statute or other federal or state or local laws. Upon
request of Seller, Buyer shall provide a copy of same to Seller to the extent
that Buyer's consultants permit the same. Buyer agrees to limit all
communication relative to the report to Buyer, Seller, the qualified engineer
and Buyer's counsel except as required by law. Seller shall obtain such
approvals as may be necessary from the Association to accomplish the foregoing.
(b) Financing Contingency. Seller hereby agrees to negotiate
and coordinate the assumption of Seller's existing loan (the "Loan") by Buyer's
nominee covering the Units and the upper and lower parking lots at Portland
Square from Equitable Life Assurance Society of the United States ("Lender")
which will have a current outstanding principal balance of $12,427,717.00 as of
June 1, 1996 on the same terms and conditions currently in effect with the
exception of the Equitable Conditional Guaranty and Paragraph 38 in the
Equitable Second Amendment of Mortgage and Security Agreement dated June 1, 1995
both of which shall be waived and with the exception of the addition of a
further loan assignment provision for future owners and a restatement in the
loan assumption documents of the non-recourse language contained in the existing
loan documents. Such terms of assumption must be reasonably satisfactory to
Seller. In the event a binding written commitment satisfactory to Buyer in its
sole discretion for such financing is not obtained from Lender on or before the
expiration of the Due Diligence Period, then Buyer or Seller shall have the
option to (i) terminate this Agreement without recourse to the other party in
which case all deposits made hereunder shall forthwith be refunded to Buyer with
interest thereon or (ii) extend the Due Diligence Period for up to an additional
thirty (30) days with respect to this financing contingency only. In the event
Seller exercises its right to terminate hereunder, such exercise shall not be
effective if Buyer elects to purchase the Premises without assuming the Loan and
pays all costs paid to or for Lender by Seller in connection with a prepayment
of the Loan as required by the Loan documents less the one point (1%) fee that
Seller would have paid if Buyer had assumed the Loan which Seller shall pay
towards such prepayment fee. If Buyer does assume the Loan, the fee charged by
the Lender (one point of loan amount) as consideration for allowing the
assumption and Lender's attorney's fees, but excluding Buyer's attorney's fees,
shall be paid by Seller.
12. ACCESS TO INFORMATION. Seller will give Buyer and its counsel,
inspectors, accountants, and other representatives full access, during normal
business hours, to the Units and the Common Areas and to the books, contracts,
commitments, and other records (including computer files, retrieval programs,
and other documentation) of Seller and will furnish Buyer and such
representative during such periods with all such information and data concerning
the affairs of Seller and the Units as Buyer or such representatives reasonably
may request. Buyer and its agents and consultants shall also have the right, at
reasonable times and upon reasonable notice
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to Seller, to enter upon the Units and the Common Areas, to perform
measurements, surveys, environmental tests including subsurface exploration
(with Seller's prior approval of scope), structural inspections and such other
tests which Buyer may deem necessary to evaluate the Units. All such testing
shall be at Buyer's risk and expense. Buyer agrees to indemnify and hold Seller
harmless from any and all liability, loss and damage incurred by Seller as a
result of the exercise of the foregoing access rights by Buyer, its agents or
consultants except if due to any notification required to be made by law to any
local, state or federal authority. Should Buyer disturb the current condition of
the Units in exercising such access rights, Buyer agrees to restore the Units to
its current condition if Buyer does not take title to the Units in accordance
with this Agreement.
13. USE OF MONEY TO CLEAR TITLE. To enable Seller to make conveyance as
herein provided, Seller may, at the closing, use the purchase money or any
portion thereof to clear the title of any or all encumbrances or interests
provided the documents necessary to clear title are recorded simultaneously with
the Deed.
14. INSURANCE. Until the closing, Seller will maintain in full force
and effect any existing policies of insurance relating to the Units and will
cause the Association to maintain in full force and effect any existing policies
of insurance relating to the Common Areas.
15. CLOSING ADJUSTMENTS. The parties agree that the revenue from and
expenses relating to the Premises shall be adjusted effective as of the Closing
Date with the intent that the Seller shall be entitled to the benefit of all
revenues from the Premises and shall be responsible for all expenses relating to
the Premises up to the Closing Date and the Buyer shall be entitled to the
benefit of all revenues from the Premises from and after the Closing Date.
Without restricting the generality of the foregoing, the following closing
adjustments shall be made at the Closing. With respect to the Closing Date,
Buyer shall be responsible for all expenses and entitled to all income for such
date.
(a) Rents. All security deposits and interest thereon shall be
paid to Buyer or credited against the Purchase Price at Closing. Condominium
fees and collected rents (fixed, minimum, additional or percentage) and charges
(including, but not limited to, CAM, real estate and tax amounts payable by
tenants and any last month's rent or other advance rents) shall be adjusted as
of the Closing date. Uncollected rents (fixed, minimum, additional or
percentage) and unpaid charges (as aforesaid) for the relevant period shall be
adjusted if and when collected in the case of rents and adjusted if and when
paid in the case of charges. All rents and charges collected after the Closing
shall be applied first against sums payable for the then current rental period,
with any excess applied first against such sums as are then due and payable to
Buyer for the period from and after the Closing Date and then and only then
against such sums as are then due and payable to Seller for the period prior to
the Closing Date. Percentage rents shall be adjusted on the assumption that
sales upon which they are computed were the same for each day of said period.
Buyer agrees to use reasonable efforts (not including legal proceedings) during
the six month period following the Closing to collect (on behalf of Seller, as
its agent and without fee) unpaid rents and charges due and payable for periods
prior to the Closing and to
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hold same as collected in a special account and to account for in writing and
remit same to Seller monthly (less Buyer's or Buyer's managing agent's
reasonable costs) during such period. At the end of such six month period, the
obligations of Buyer to collect such unpaid rent under this Section 15(a) shall
terminate; however, Seller shall have, at its option, continuing after the end
of such six-month period, for a period of six (6) additional months, the right
to collect (at Seller's sole cost and expense) any unpaid rents and charges due
and payable for periods prior to the Closing, but such right shall not include
summary process or eviction proceedings or any proceedings which might affect
the landlord-tenant relationship under the leases.
(b) Taxes and Expenses of Sale. Real estate taxes (no matter
how levied), and any other taxes in the nature thereof and constituting a lien
upon the Units if not paid. If the amount of real estate taxes for the fiscal
year during which Closing occurs is not finally determined at the time of
Closing, such taxes shall be apportioned on the basis of the full amount of the
assessment for such period (or the assessment for the prior tax period if the
assessment for the current tax period is not then known) and the rate for the
next prior tax year, notwithstanding any provisions of law which permit reduced
payment pending final determination, and shall be reapportioned as soon as the
new tax rate and valuation, if any, has been finally determined; and, if the
taxes which have been apportioned shall subsequently be reduced by abatement,
the amount of such abatement, less the cost of obtaining the same and after
deduction of sums payable to tenants under Leases or expired or terminated
Leases, shall be apportioned between the parties. All other assessments of every
type, nature or description, as of the Closing Date, assessed to the Units and
outstanding, shall be paid in full by Seller prior to the Closing (or by Buyer
after the Closing out of any funds withheld from the Purchase Price for that
purpose). If there are any type of taxes payable to any governmental authority
by reason of the sale or transfer of the Units, Seller agrees to pay the same
and provide an appropriate return or form executed by Seller, as may be
required.
(c) License Fees. Fees for customary annual or other periodic
licenses and permits for periods including the Closing Date.
(d) Service Contracts. Charges on contracts and agreements
listed on Exhibit C-1 which are to be assigned to Buyer.
(e) Utilities. Seller will obtain final cut-off readings of
fuel, telephone, electricity, water, sewer and gas on the Closing Date but will
not permit such utilities to be cut off. Seller shall pay the bills based on
such readings promptly after the same are rendered. If arrangements cannot be
made for any such cut-off reading, the parties shall apportion the charges for
such services on the basis of the bill therefor for the most recent billing
period prior to the Closing Date, and Seller and Buyer shall promptly readjust
the apportionments in accordance with the last bills rendered.
(f) Condominium Capital Reserve. Seller's allocable share of
any working capital or other reserve funds held by the Association is not
included in the purchase price and shall be reimbursed to Seller as a closing
adjustment. Seller agrees to continue to operate the Premises,
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and to cause the Association to continue to operate the Common Areas, in the
manner currently operated on the date hereof, and agrees not to defer, or to
permit the Association to defer, any expenditures, including without limitation,
capital expenditures, which would ordinarily be conducted in the ordinary course
of business prior to the Closing Date.
16. BROKERS. 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 other than Northland
Management Corp. ("Broker"), 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 agrees to pay Broker any and all fees which may be due to Broker in
connection herewith.
17. BUYER'S DEFAULT; DAMAGES. If Buyer shall fail to fulfill Buyer's
obligations hereunder, all payments made hereunder by Buyer, together with any
and all interest thereon from the date hereof, shall be paid to Seller as full
and complete liquidated damages and not as a penalty, and shall be Seller's sole
remedy at law or in equity, and all obligations of Seller and Buyer hereunder
shall terminate without recourse to either party.
18. ESCROW AGENT; DISPUTES. (a) Liability of Escrow Agent. With respect
to any amount placed in escrow pursuant to this Agreement, the Escrow Agent
shall not be liable for any action or nonaction taken in good faith in
connection with the performance of its duties hereunder, but shall be liable
only for its own 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 such amount, 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:
(i) by mutual agreement between the parties; or
(ii) 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 proceedings.
(b) Disputes. Except as provided below in items (i) and (ii)
the Escrow Agent shall deliver the Deposit to Seller promptly after the Closing.
(i) Demand by Buyer. The Escrow Agent shall
deliver the Deposit to Buyer promptly upon
receipt of a written demand therefor from
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<PAGE>
Buyer stating that Seller has defaulted in
the performance of this Agreement or that
any condition or obligation of Buyer under
this Agreement has not been fulfilled
stating the facts and circumstances
underlying such default or unsatisfied
condition; provided, however, that the
Escrow Agent shall not so act until fifteen
(15) days after Seller has received a copy
of such demand, nor thereafter honor such
demand by Buyer if it shall have received
notice from Seller in accordance with
subsection (iii) below.
(ii) Demand by Seller. The Escrow Agent shall
deliver the Deposit to Seller promptly after
written demand therefor from Seller given
subsequent to the Closing Date, stating that
Buyer has defaulted in performance of this
Agreement and the facts and circumstances
underlying such default; provided, however,
that the Escrow Agent shall not so act until
fifteen (15) days after Buyer has received a
copy of such demand, nor thereafter honor
such demand by Seller if it shall have
received notice from Buyer in accordance
with subsection (iii) below.
(iii) Upon the filing of a written demand for the
Deposit by Buyer or Seller, as the case may
be, pursuant to subsections (i) or (ii)
above, the Escrow Agent promptly shall mail
a copy thereof to the other party in the
manner provided herein for the giving of
notices and the other party shall have the
right to object to the compliance by the
Escrow Agent with such demand by filing
written notice of such objection with the
Escrow Agent at any time within fifteen days
after the receipt of such copy by such
party, but not thereafter. Such notice shall
set forth the basis for objecting to the
delivery of the Deposit. Upon receipt of
such notice of objection, the Escrow Agent
shall promptly mail a copy thereof to the
party which filed a written demand for the
Deposit.
(iv) In the event the Escrow Agent shall have
received the notice of objection provided
for in subsection (iii) above within the
time therein prescribed, the Escrow Agent
shall continue to hold and invest the
Deposit until: (i) the Escrow Agent receives
the joint written direction from Seller and
Buyer or a final judgement of a court of
competent jurisdiction directing the
disbursement of the Deposit, in which case
the Escrow Agent shall then disburse same in
accordance with such direction or judgement;
or (ii) in the event of litigation between
Seller and Buyer, the Escrow Agent delivers
the deposit to the Clerk of Court in which
such litigation is pending, or (iii) the
Escrow Agent deposits all of same with a
court of competent jurisdiction and therein
commences an action for
19
<PAGE>
interpleader, the cost thereof to the Escrow
Agent to be borne by whichever of Seller or
Buyer does not prevail in the litigation.
19. PACKAGE OFFER CONTINGENCY. Seller and Buyer acknowledge that the
Units which are the subject of this Agreement are part of a package offer to
purchase certain property located in Portland, Maine consisting of the Units,
the building known as Two Portland Square and two (2) surface parking lots which
are located adjacent to the Building and Two Portland Square (collectively, the
"Package Properties"). Accordingly, Buyer shall only have the right to purchase
the Units described herein if Buyer also simultaneously purchases the other
Package Properties, except that if Seller fails to fulfill its obligations under
this Agreement or the agreement for the two (2) parking lots or the seller of
Two Portland Square fails to fulfill any of its obligations under that purchase
and sale agreement, Buyer shall not be required to purchase less than all of the
Package Properties but rather shall only be required to purchase all the Package
Properties simultaneously. Therefore, in the event Buyer requests a refund of
its deposit on or before the expiration of the Due Diligence Period for any of
the reasons contained in paragraph 11 or is otherwise refunded its deposit
because Seller has failed to fulfill its obligations hereunder, Buyer shall be
entitled to a refund of its deposits held pursuant to the other two (2) purchase
and sale agreements for the other Package Properties. Likewise, if Buyer
receives a refund of its deposit under any of the other two (2) purchase and
sale agreements, Buyer shall receive a refund of the deposit held hereunder. In
addition, in the event the time for performance is extended pursuant to
Paragraph 7 of any of the purchase and sale agreements for any of the Package
Properties, the time for performance under any of the other purchase and sale
agreements for the other Package Properties shall likewise be automatically
extended without the necessity of additional written documentations.
20. VERRILL & DANA CONTINGENCY. Buyer and Seller acknowledge that
Verrill & Dana, the owner of Units #7-10 at One Portland Square has a right of
first offer to purchase the Package Properties. Accordingly, this Agreement is
contingent upon the expiration on or before May 1, 1996 of Verrill & Dana's said
right of first offer. In the event Verrill & Dana exercises such right, all
deposits made hereunder shall be refunded to Buyer with interest thereon and
this Agreement shall terminate without recourse to the parties hereto. In
addition, if Verrill & Dana exercises such right, this Agreement shall
automatically terminate without recourse to either party hereto and Seller shall
promptly refund the Deposit with interest thereon and reimburse Buyer for all
reasonable out-of-pocket costs incurred in connection with its due diligence
described in Paragraph 11 hereof, including without limitation, legal,
engineering and environmental costs and Buyer shall provide Seller with valid
invoices therefor.
21. ENTIRE UNDERSTANDING. This Agreement, with the exhibits attached
hereto, if any, constitutes the entire agreement between the parties hereto with
respect to the Units and no verbal statements made by anyone with regard to the
transaction which is the subject of this Agreement shall be construed as a part
hereof unless the same be incorporated herein by writing.
22. NOTICES. All notices required or permitted to be given hereunder
shall be in writing and delivered by hand or mailed postage prepaid, by
registered or certified mail or by
20
<PAGE>
telecopy, addressed in the case of Seller, to Northland Management Corporation,
2150 Washington Street, Newton, Massachusetts 02162, Attention: Jeremy Hubball,
President, and in the case of Buyer, to: Karl Weller, Senior Vice President, MGI
Properties, 1 Winthrop Square, Boston, MA 02110 or in case of either party to
such other address as shall be designated by written notice given to the other
party. Any such notice shall be deemed given when so delivered by hand or if so
mailed, when deposited with the U.S. Postal Service, or if so telecopied, when
received.
23. CONSTRUCTION OF AGREEMENT. This Agreement, executed as of the date
first above written, is to be construed as a Massachusetts contract, is to take
effect as a sealed instrument, is binding upon and inures to the benefit of the
parties hereto and their respective successors and assigns, and may be
cancelled, modified or amended only by a written instrument executed by both
Seller and Buyer.
24. OPERATING COVENANTS. The following shall govern the operations of
the Property from the effective date hereof through the Closing Date.
(a) Seller shall not take any of the following actions
without the express written consent of Buyer: (i) make or permit to be made any
material alterations to the Premises; (ii) enter into any lease or service
contract with respect to the Premises or any part thereof; (iii) remove or
permit the removal from the Premises of any personal property other than in the
ordinary course of business in which the personal property being removed is
replaced with new personal property of equal or greater value; (iv) reduce the
quality of the improvements at the Premises or their service and maintenance, or
materially reduce the number of employees currently employed by Seller to
service, maintain and secure the Premises; or (v) modify or agree to the
modification of any of the terms or conditions of any existing Lease or
contracts.
(b) At all times prior to the Closing Date, Seller shall
continue to operate and manage the Premises in a manner consistent with Seller's
operation and management policies in effect as of the effective date of this
Agreement; subject, however, to Seller's compliance with its obligations under
Paragraph 24(a) above.
(c) Seller will pay in full, prior to the Closing Date,
all bills and invoices for labor, goods, material and services of any kind
relating to the Premises. Except as provided in Paragraph 24(a) above, any
alterations, installations, decorations and other work required to be performed
under the Leases or other agreements affecting the Premises prior to the Closing
have been, or will be, completed by the Closing Date, and have been, or will be,
paid in full prior to the Closing Date or if same have not been completed and/or
paid at the Closing Date, the Purchase Price will be reduced by an amount equal
to the unpaid amounts and such amounts shall be paid by Buyer.
(d) After the date hereof and prior to the Closing Date,
no part of the Premises or any interest therein will be alienated, encumbered or
otherwise transferred, and no liens will be placed or permitted to be placed
thereon.
21
<PAGE>
(e) It shall be a condition of Buyer's obligations
hereunder that on the Closing Date there shall be no default by Seller under any
Lease.
(f) After the date hereof, Seller shall promptly notify
Buyer of any change in any condition with respect to the Premises or of any
event or circumstance which makes any representation or warranty of Seller to
Buyer under this Agreement untrue or misleading, or any covenant of Buyer under
this Agreement incapable or less likely of being performed, it being understood
that the Seller's obligation to provide notice to Buyer under this Paragraph 24
shall in no way relieve Seller of any liability for a breach by Seller of any of
its representations, warranties or covenants under this Agreement.
25. LIKE-KIND EXCHANGE. Buyer reserves the right to designate the
Premises as a replacement property in connection with any like-kind exchange
that it may transact, and Seller agrees to cooperate in such like-kind exchange
transaction and to sign such documentation as may be reasonably requested by
Buyer so long as Seller is not placed in a less advantageous position, receives
the full purchase price in cash subject to Paragraph 11(b) and Buyer pays all of
Seller's expenses, if any, related thereto.
26. PERSONAL LIABILITY. The Seller is a Massachusetts Limited
Partnership and all persons dealing with the Limited Partnership, including the
Buyer, must look solely to the property of the Limited Partnership and to the
General Partner for the enforcement of any claims against the Limited
Partnership. No limited partner, shareholder, director, employee, agent, parent,
or officer of the Seller shall be liable for any obligation, express or implied,
under this Agreement except as set forth in Section 9 with respect to the
General Partner and Limited Partners of Seller and certain other parties. The
preceding two sentences shall be inserted, or deemed inserted at Seller's
election, in every document and agreement executed and/or delivered by Seller
pursuant hereto. MGI Properties is a Massachusetts business trust and all
persons dealing with the Trust, including without limitation, the Seller, must
look solely to the property of the Trust for the enforcement of any claims
against the Trust. Neither the trustees, officers, agents nor shareholders of
the Trust assume any personal liability in connection with its business or
assume any personal liability for obligations entered into on its behalf. The
preceding two sentences shall be inserted, or deemed inserted at Buyer's
election, in every document and agreement executed and/or delivered by Buyer
pursuant hereto. The foregoing provisions of this Paragraph 26 shall survive the
Closing Date, the delivery of the deed, and any termination of this Agreement.
27. CONDOMINIUM GOVERNANCE. As of the Closing Date, Seller shall
arrange for its designated Trustees and other officers of the Association to
resign therefrom and for Trustees and other officers chosen by Buyer to be
seated in their places on the Association. To the extent that due to meeting
dates or other timing constraints, such transfer cannot be accomplished as of
the Closing Date, Seller agrees that it will keep its designees in such
positions after the Closing Date until such time as it is practicable to conduct
the transition. Until such transition occurs, Seller shall cause such Trustees
and other officers to govern the Association and vote in accordance with Buyer's
written instructions. The provisions of this Paragraph 27
22
<PAGE>
shall survive the Closing and the delivery and recording of the Deed.
28. SEC RULES. Seller agrees to cooperate with Buyer at no cost to
Seller in any audit which may be required to be conducted by Buyer's accountants
in connection with Buyer's compliance with SEC Rules. The provisions of this
Paragraph 28 shall survive the delivery and recording of the Deed.
SELLER:
PORTLAND SQUARE LIMITED
PARTNERSHIP, a Massachusetts Limited
Partnership
By: Northland Union Street Limited,
Partnership, its General Partner, a
Massachusetts Limited Partnership
By: Northland Realty Corporation,
its General Partner, a Delaware
Corporation
Witness: /s/ Alyssa Jermyn By: /s/ Jeremy Hubball
Jeremy Hubball, President
BUYER:
MGI PROPERTIES
Witness: /s/ Diane J. Soucy By: /s/ Kev Welles
Its: JUP
ESCROW AGENT:
ATLANTIC TITLE COMPANY
Witness: /s/ Wendy Lee Dyer By: /s/ Samuel H. Merrill
Its: Staff Counsel
23
<PAGE>
AS TO PARAGRAPH 9 ONLY:
GENERAL PARTNER:
NORTHLAND UNION STREET LIMITED
PARTNERSHIP
By: Northland Realty Corporation, its
General Partner
Witness: /s/ Alyssa Jermyn By: /s/ Jeremy Hubball
Jeremy Hubball, President
NORTHLAND REALTY CORPORATION
Witness: /s/ Alyssa Jermyn By: /s/ Jeremy Hubball
Jeremy Hubball, President
LIMITED PARTNERS:
INTERNATIONAL PROPERTIES
LIMITED PARTNERSHIP
By: International Properties, Ltd.
Witness: /s/ John Morrow By: /s/ Frank Sobey
Frank Sobey, Vice President
J.B. BROWN & SONS, a ______________
Witness: /s/ Dawn E. Smith By: /s/ Charles E. Prinn III
Charles E. Prinn III, President
NORTHLAND SPRING STREET
LIMITED PARTNERSHIP, a Massachusetts
Limited Partnership
By: Northland Realty Corporation
Witness: /s/ Alyssa Jermyn By: /s/ Jeremy Hubball
President
24
<PAGE>
NORTHLAND INVESTMENT
CORPORATION
Witness: /s/ Alyssa Jermyn By: /s/ Joseph R. Ryan
Joseph R. Ryan, E.V.P.
w:\p&s.agr\2port\mgi1ps.6
25
<PAGE>
EXHIBIT A
Units No. 1, 2, 3, 4, 5, and 6 of ONE PORTLAND SQUARE, A BUSINESS CONDOMINIUM,
situated at the corner of Union and Spring Streets in the City of Portland,
County of Cumberland and State of Maine, as more particularly described in the
Declaration of One Portland Square, A Business Condominium, dated as of October
27, 1987 and recorded in the Cumberland County Registry of Deeds on October 29,
1987 in Book 8039, Page 37, and in the Plats and Plans incorporated into the
Declaration and recorded in the Cumberland County Registry of Deeds in Plan Book
No. 166, Page 44, Sheets 1 through 13, by virtue of the recording of which
Declaration, Plats and Plans, the Declarant created the Condominium pursuant to
the Maine Condominium Act, Title 33 of the Maine Revised Statutes of 1964, as
amended, Chapter 31, Sections 1601-101 et seq., as amended.
<PAGE>
Exhibit A-1
DESCRIPTION OF PROPERTY
A certain parcel of land situated on the Southerly side of Spring Street
Arterial and on the Westerly side of Union Street, and on the Easterly side of
discontinued Cross Street in the City of Portland, County of Cumberland, State
of Maine, being bounded and described as follows:
Beginning at a point on the said Westerly line of Union Street, said point being
the Southeasterly corner of the parcel herein described and being the
Northeasterly corner of the remaining lands of Portland Square Limited
Partnership, said point being a set 5/8" rebar with plastic cap marked "SMRT RLS
1314";
Thence S75[degrees]35'10"W along said land of Portland Square Limited
Partnership the Northerly side of a concrete teller pad forty-one and sixty-two
hundredths (41.62) feet to the Northwesterly corner of said pad; said pad being
the Northerly most pad of three teller pads;
Thence S14[degrees]24'50"E along said land of Portland Square Limited
Partnership, being the Westerly end of said pad four and no hundredths (4.00)
feet to the Southwest corner of said pad;
Thence S75[degrees]35'10"W along said land of Portland Square Limited
Partnership, along the Southerly face of a 7" curb twenty-eight and nineteen
hundredths (28.19) feet, to a point;
Thence along said land of Portland Square Limited Partnershp, along said curb,
on a curve to the left having a radius of six and no hundredths (6.00) feet and
an arc distance of three and nine hundredths (3.09) feet, and a chord which
bears S60[degrees]49'32"W three and six hundredths (3.06) feet, to a point;
Thence S46[degrees]04'00"W along said land of Portland Square Limited
Partnership, along said curb, twenty-nine and ninety-eight hundredths (29.98)
feet, to a point;
Thence along said land of Portland Square Limited Partnership, along said curb,
on a curve to the right having a radius of six and no hundredths (6.00) feet and
an arc distance of three and nine hundredths (3.09) feet, said chord bears
S60[degrees]49'32"W three and six hundredths (3.06) feet, to a point;
Thence S75[degrees]35'10"W along said land of Portland Square Limited
Partnership, along said curb, seventy-nine and sixty-seven hundredths (79.67)
feet, to the Easterly sideline of discontinued Cross Street to a point;
<PAGE>
Thence N11[degrees]09'09"W along said land of Portland Square Limited
Partnership, being the Easterly sideline of discontinued Cross Street, two
hundred fourteen and thirty-one hundredths (214.31) feet to a set 5/8" rebar
with plastic cap marked "SMRT RLS 1314" at the Southerly side line of said
Spring Street Arterial;
Thence along said Southerly side of Spring Street Arterial being a curve to the
left having a radius of three thousand eight hundred sixty-five and seventy-two
hundredths (3,865.72) feet and an arc distance of one hundred forty-three and
thirteen hundredths (143.13) feet, and a chord which bears N61[degrees]31'42"E
one hundred forty-three and twelve hundredths (143.12) feet, to a set 5/8" rebar
with plastic cap marked "SMRT RLS 1314";
Thence along said Southerly right of way line, being on a curve to the right
having a radius of twenty-five and no hundredths (25.00) feet and an arc
distance of forty-five and ninety-eight hundredths (45.98) feet, and a chord
which bears S66[degrees]50'34"E thirty-nine and seventy-seven hundredths (39.77)
feet to a set 5/8" rebar with plastic cap marked "SMRT RLS 1314", at the
Westerly side line of said Union Street;
Thence along said Westerly side line of Union Street S14[degrees]06'53"E two
hundred four and fifteen hundredths (204.15) feet to the Point of Beginning.
Said parcel contains 0.90 acres, more or less.
Meaning and intending to describe a portion of parcels #1 and #2 in a deed from
ATBRO Corp. to Portland Square Limited Partnership dated December 16th, 1985
recorded in Book 7008 Page 97 and 102 and of Parcels #1 and #2 in a deed from
ATBRO Corp. to Portland Square Limited Partnership dated December 16th, 1985
recorded in the Cumberland County Registry of Deeds in Book 7114 Page 209 and
the adjoining discontinuance of Cross Street Book 7165 Page 46.
The Basis of Bearing for this description is Magnetic North 1972 from HI & EC
Jordan plan dated July 1981.
This description is based from a land title survey plan by Stevens Morton Rose &
Thompson, Inc. dated October 22, 1987.
<PAGE>
EXHIBIT B
LIST OF ENCUMBRANCES
UNITS 1-6
ONE PORTLAND SQUARE
1. Liens for Real Estate Taxes and Assessments for fiscal year 1997 and
subsequent years not yet due and payable.
2. Matters disclosed on Plan for Northland Realty Corporation, ALTA/ACSM
Land Title Survey of One Portland Square dated April 5, 1995, by Lewis
& Wasina, Inc. and Accompanying Surveyor's Report dated April 27, 1995
by Bruce E. Lewis.
3. Covenants, Restrictions, Obligations, Easements, Development Rights,
Conditions, Reservations, Liens for Assessments, and Limitations on
Title set forth in the Declaration of One Portland Square, A Business
Condominium, dated as of October 27, 1987 and recorded in the
Cumberland County Registry of Deeds on October 29, 1987 in Book 8039,
Page 37, and in the Plats and Plans incorporated into the Declaration
and recorded in the Cumberland County Registry of Deeds in Plan Book
Number 166, Page 44, Sheets 1 through 13.
4. Terms and provisions of the Maine Condominium Act, Title 33 of the
Maine Revised Statutes of 1964, as amended, Chapter 31, Sections
1601-101 et seq., as amended.
5. Terms and Conditions of Memorandum of Rights, Options, Restrictions by
and between Portland Square Limited Partnership and Verrill & Dana
dated October 30, 1987 and recorded in the Cumberland County Registry
of Deeds in Book 8045, Page 277.
6. Rights and easements for public utility facilities, pedestrian passage
and scenic view corridor as set forth in quit-claim deed from Portland
Square Limited Partnership to The City of Portland dated April 25, 1986
and recorded in Cumberland County Registry of Deeds in Book 7168, Page
48 and shown on "Cross Street Easement Plan" dated January 3, 1986
prepared by Hunter-Ballew Associates.
7. Rights and easements granted by Portland Square Limited Partnership to
Central Maine Power Company and New England Telephone and Telegraph
Company by deed dated September 5, 1986 and recorded in the Cumberland
County Registry of Deeds in Book 7708, Page 284.
8. Rights and easements granted in Easement Deed by Portland Square
Limited Partnership and Verrill & Dana to Portland Square Limited
Partnership dated October 30, 1987 and recorded in the Cumberland
County Registry of Deeds in Book 8045, Page 275.
<PAGE>
9. Rights of the One Portland Square Building tenants:
a. Peoples Heritage Savings Bank under lease dated May 21, 1986.
b. H.M. Payson and Company under lease dated March 11, 1987.
c. Federal Express Corporation under lease dated May 12, 987.
d. U.S.A. (Office of Hearing and Appeals) under lease dated July 19, 1993
e. The MacBride-Dunham Group under lease dated November 1, 1991
f. Victory Deli under lease dated July 1, 1988
g. Carl Metzger, M.D., PA under lease dated September 1, 1990
h. Albin, Randall & Bennett under lease dated September 4, 1988
i. James Lemieux & William Leete under lease dated December 1, 1995
j. Northland Management Corp. under lease dated September 1, 1990
k. Prudential Securities, Inc. under lease dated November 1, 1988
11. Terms and provisions of lease by and between Portland Square Limited
Partnership as lessor and Verrill & Dana and Peoples Heritage Savings
Bank as lessee dated October 30, 1987 and recorded in the Cumberland
County Registry of Deeds in Book 8046, Page 77.
12. Terms and provisions of lease by and between Portland Square Limited
Partnership as lessor and Verrill & Dana and Peoples Heritage Savings
Bank as lessee dated October 30, 1987 and recorded in the Cumberland
County Registry of Deeds in Book 8046, Page 80.
13. Terms and provisions of lease by and between Portland Square Limited
Partnership as lessor and Verrill & Dana as lessee dated October 30,
1987 and recorded in the Cumberland County Registry of Deeds in Book
8046, Page 83.
<PAGE>
EXHIBIT C
ASSIGNMENT OF SERVICE AGREEMENTS
FOR VALUE RECEIVED, PORTLAND SQUARE LIMITED PARTNERSHIP, a
Massachusetts limited partnership having its principal place of business at 2150
Washington Street, Newton, MA 02162 (hereinafter referred to as "Assignor"),
hereby assigns, transfers, conveys and sets over unto MGI PROPERTIES, a
Massachusetts business trust (hereinafter referred to as "Assignee"), without
recourse to Assignor in any event or for any reason whatsoever and without any
warranties herein, express or implied, in law or otherwise except as set forth
in the Purchase and Sale Agreement described below, all of Assignor's rights,
title and interest in, to and under all of the service agreements relating to
the Property conveyed this day from Assignor to Assignee pursuant to a Purchase
and Sale Agreement between them and listed on Exhibit C-1 hereto.
Assignee hereby accepts such assignment and assumes and agrees to
perform, observe and comply with all of Assignor's obligations under such
service agreements first accruing on or after the date hereof. Assignee hereby
indemnifies and agrees to save and hold Assignor free and harmless from any
liability under any of said service agreements for the performance or observance
of any obligations of the Assignor thereunder first accruing on or after the
date hereof. Assignor hereby indemnifies and agrees to save and hold Assignor
free and harmless from any liability under any of said service and maintenance
agreements for the performance or observance of any obligations of the Assignor
which accrued or should have accrued prior to the date hereof.
This Agreement shall not in any way modify the warranties of Assignor
contained in a Purchase and Sale Agreement between Assignor and Assignee dated
April ____, 1996.
This Assignment shall be binding upon and inure to the benefit of the
respective executors, administrators, heirs, successors and assigns of Assignor
and Assignee.
IN WITNESS WHEREOF, Assignor and Assignee have executed this instrument
under seal as of ____________, 1996.
ASSIGNOR: PORTLAND SQUARE LIMITED PARTNERSHIP
By: Northland Union Street Limited Partnership,
its General Partner
By: Northland Realty Corporation,
its General Partner
By: ______________________________
Jeremy Hubball, President
ASSIGNEE: MGI PROPERTIES
By: ______________________________
<PAGE>
EXHIBIT C-1
LIST OF SERVICE CONTRACTS
Date Vendor Service Period
08/01/95 Clean Sweep Cleaning 08/01/95 - 02/28/97*
10/30/87 Northland
Management Corp. Management-Building Expires 10/30/96
10/30/87 Northland
Management Corp. Management/Leasing-Units Expires 10/30/96
*Mutual right to cancel at any time upon 30 days' prior written notice.
<PAGE>
EXHIBIT D
ASSIGNMENT OF PERMITS, APPROVALS AND LICENSES
FOR VALUE RECEIVED, PORTLAND SQUARE LIMITED PARTNERSHIP, a
Massachusetts limited partnership having its principal place of business at c/o
Northland Investment Corporation, 2150 Washington Street, Newton, Massachusetts
02162 (hereinafter referred to as "Assignor"), hereby assigns, transfers,
conveys and sets over unto MGI Properties, a Massachusetts business trust
(hereinafter referred to as "Assignee"), without recourse except as provided
herein to Assignor in any event or for any reason whatsoever and without any
warranties herein, express or implied, in law or otherwise except as set forth
in the Purchase and Sale Agreement described below, all of Assignor's rights,
title and interest in, to and under all of the permits, approvals and licenses
relating to the Property conveyed this day from Assignor to Assignee pursuant to
a Purchase and Sale Agreement between them and listed on Schedule A hereto.
Assignee hereby accepts such assignment and assumes and agrees to
perform, observe and comply with all of Assignor's obligations under such
permits, approvals and licenses first accruing on or after the date hereof.
Assignee hereby indemnifies and agrees to save and hold Assignor free and
harmless from any liability under any of said permits, approvals and licenses
for the performance or observance of any obligations of the Assignor thereunder
first accruing on or after the date hereof. Assignor hereby indemnifies and
agrees to save and hold Assignor free and harmless from any liability under any
of said permits, approvals and licenses for the performance or observance of any
obligations of the Assignor which accrued or should have accrued or which
accrued prior to the date hereof.
This Agreement shall not in any way modify the warranties of Assignor
contained in a Purchase and Sale Agreement between Assignor and Assignee dated
April ____, 1996
This Assignment shall be binding upon and inure to the benefit of the
respective executors, administrators, heirs, successors and assigns of Assignor
and Assignee.
IN WITNESS WHEREOF, Assignor and Assignee have executed this instrument
under seal as of ___________, 1996.
ASSIGNOR: PORTLAND SQUARE LIMITED PARTNERSHIP
By: Northland Union Street Limited Partnership,
its General Partner
By: Northland Realty Corporation, its General Partner
By: _____________________________________
Jeremy Hubball, President
ASSIGNEE: MGI PROPERTIES
By: _____________________________________
<PAGE>
EXHIBIT E
ASSIGNMENT, ACCEPTANCE AND ASSUMPTION
OF LEASES, GUARANTIES, TENANCIES AND OCCUPANCIES
FOR VALUE RECEIVED, PORTLAND SQUARE LIMITED PARTNERSHIP, a
Massachusetts limited partnership having its principal place of business at 2150
Washington Street, Newton, MA 02162 (hereinafter referred to as "Assignor"),
hereby assigns, transfers, conveys and sets over until MGI PROPERTIES, a
Massachusetts business trust (hereinafter referred to as "Assignee"), without
recourse and without any warranties herein, express or implied, in law or
otherwise except as provided in the Purchase and Sale Agreement described below,
all of the right, title and interest of Assignor, as lessor in, to and under all
of the leases, guaranties, tenancies and occupancies described in the Schedule
attached hereto pertaining to the Units at One Portland Square, Portland, Maine.
TOGETHER with the appurtenances and all the estate and rights of
Assignor in, to and under said leases, guaranties, tenancies and occupancies.
TO HAVE AND TO HOLD the same until Assignee, its executors,
administrators, heirs, successors and assigns, for the rest of the term of said
leases, guaranties, tenancies and occupancies and subject to the terms,
covenants and conditions and provisions thereof.
Assignee hereby accepts such assignment and agrees to keep, observe and
perform all of Assignor's obligations under said leases, guaranties, tenancies
and occupancies first accruing after the date hereof. Assignee hereby
indemnifies and agrees to hold Assignor free and harmless from any liability,
cost or expense under said leases, guaranties, tenancies and occupancies for the
performance or observance of any obligations of the lessor thereunder first
accruing on or after the date hereof. Assignor hereby indemnifies and agrees to
hold Assignor free and harmless from any liability, costs or expense under said
leases, guaranties, tenancies and occupancies for the purpose or observance of
any obligations of the lessor thereunder which accrued or should have accrued
prior to the date hereof.
This Agreement shall not in any way modify the warranties contained in
a Purchase and Sale Agreement between Assignor and Assignee dated as of April
_____, 1996.
This Agreement shall be binding upon and inure to the benefit of the
respective executors, administrators, heirs, successors and assigns of Assignor
and Assignee.
<PAGE>
IN WITNESS WHEREOF, Assignor and Assignee have executed this Agreement
under seal as of ________________, 19___.
ASSIGNOR: PORTLAND SQUARE LIMITED PARTNERSHIP
By: Northland Union Street Limited Partnership,
its General Partner
By: Northland Realty Corporation,
its General Partner
By: ____________________________________
Jeremy Hubball, President
ASSIGNEE: MGI PROPERTIES
By: ____________________________________
<PAGE>
SCHEDULE TO EXHIBIT E
Albin, Randall & Bennett
Carl Metzger, M.D., PA
Federal Express Corporation
H.M. Payson & Co.
James Lemieux
Northland Management Corp.
Peoples Heritage Bank
Prudential Securities, Inc.
The MacBride-Dunham Group, Inc.
United States of America
Verrill & Dana
Victory Deli, Inc.
<PAGE>
EXHIBIT F
LIST OF LEASES
Albin, Randall & Bennett
Carl Metzger, M.D., PA
Federal Express Corporation
H.M. Payson & Co.
James Lemieux
Northland Management Corp.
Peoples Heritage Bank
Prudential Securities, Inc.
The MacBride-Dunham Group, Inc.
United States of America
Verrill & Dana
Victory Deli, Inc.
<PAGE>
EXHIBIT G
WARRANTY BILL OF SALE AND ASSIGNMENT
KNOW ALL MEN BY THESE PRESENTS that PORTLAND SQUARE LIMITED
PARTNERSHIP, a Massachusetts limited partnership, having a place of business at
2150 Washington Street, Newton, MA 02162, for consideration paid by MGI
PROPERTIES, a Massachusetts business trust, the receipt of which is hereby
acknowledged, does hereby grant, sell, transfer, assign and deliver unto the
said MGI Properties the following goods, chattels and intangible personal
property.
1. The property listed on Schedule A hereto.
2. All other apparatus, fixtures and articles owned by the
undersigned attached to or used or procured for use in
connection with the operation and maintenance of any Units,
structure or other improvements located on the property at One
Portland Square, Portland, Maine (the "Units") except
apparatus, fixtures or articles or personal property belonging
to lessees or other occupants of the Units.
3. The right, if any, to use the trade name "One Portland Square"
and documents of title and business records pertaining to the
Units.
TO HAVE AND TO HOLD all and singular the said goods, chattels and
intangible personal property to the said MGI Properties and its successors and
assigns, to their use and behoof forever.
AND Portland Square Limited Partnership hereby covenants with the
grantee that it is the lawful owner of the said goods, chattels and intangible
personal property; that they are free of all encumbrances; that it has good
right to sell the same as aforesaid; and that it will WARRANT and DEFEND the
same against the lawful claims and demands of all persons forever. The property
transferred by this Warranty Bill of Sale and Assignment is transferred AS IS,
WHERE IS.
IN WITNESS WHEREOF, Portland Square Limited Partnership has caused this
instrument to be executed under seal as of ___________, 1996.
PORTLAND SQUARE LIMITED PARTNERSHIP
By: Northland Union Street Limited Partnership,
its General Partner
By: Northland Realty Corporation,
its General Partner
By: _____________________________________
Jeremy Hubball, President
<PAGE>
SCHEDULE A
TO EXHIBIT G
PERSONAL PROPERTY
SHARED AMONG ONE PORTLAND SQUARE AND TWO PORTLAND SQUARE
1 IBM computer for HVAC (386)
1 Worktable and chair
1 JC8500 HVAC control system
1 Schlage proximity access card system
1 2-drawer filing cabinet
LOCATED IN MAINTENANCE SHOP
4 Maintenance desks with chairs
Metal shelving
Uniform lockers
Misc. hardware (door handles, hinges, bolts, closures)
Misc. plumbing supplies (diagrams, plungers, valves)
Misc. electrical supplies (junction boxes, batteries, wiring, connectors)
Misc. paint supplies (paints, brushes, scrapers, rollers, caulking)
Misc. tools (pliers, wrenches, drivers, clamps, levels, hammers, mallets,
vice grips, saws)
1 Sump pump
1 Shop vacuum (12 gallon)
2 Desk movers
1 Moving dolly
1 Key machine
1 10" drill press
2 Makita cordless drills
1 Tool box
Various landscape materials (rakes, shovels, brooms, hoses, trash cans)
1 Small microwave
1 Small refrigerator
Misc. fans (desk type, floor model)
1 Answering machine
3 Telephones
Bulletin boards
TWO PORTLAND SQUARE
1 Security video recorder with 5 cameras
1 Garage sweeper
1 Large flammable
liquid storage cabinet
1 Message board Supply shelving
1 12 foot ladder
1 6 foot ladder
6 handheld fire extinguishers
<PAGE>
1 Pallet of ice melt (45 bags)
5 Brass elevator doors (leftover from construction)
Various lightbulbs (purchased monthly)
Air handler filters
Various algaecides and pump for cooling towers
Janitorial supplies (paper products, etc.) purchased monthly
UNITS 1-6, ONE PORTLAND SQUARE
4 Hand held fire extinguishers
Various lightbulbs (purchased monthly)
Janitorial supplies (paper products, etc.)
PARKING LOTS
1 Sweda cash register
2 Cintac parking control computers
2 Printers
GENERAL INTANGIBLES
All permits, licenses, certificates, variances, consents and approvals
pertaining to the Units, all plans and specifications, warranties and guaranties
relating to the Units and the aforementioned fixtures defined in the Condominium
Documents as part the Units, all advertising and leasing brochures, tradenames,
trademarks, development rights, if any, and other intangible property pertaining
to the Units and their use and operation.
<PAGE>
EXHIBIT G-1
PERSONAL PROPERTY WHICH BELONGS TO OTHERS
AND IS NOT INCLUDED IN SALE
CONDOMINIUM ASSOCIATION:
1 Security video recorder with four (4) cameras
2 6 foot ladders
1 3 foot ladder
1 8 foot ladder
1 Powered lift
1 Hand cart
1 Message board
Supply shelving
1 Small flammable liquid storage cabinet
Various light bulbs (purchased monthly)
Air handler filters
1 Pallet of ice melt (45 bags)
Various algaecides and pump for cooling towers
Small amount of janitorial supplies (trash bags, cleaners)
MANAGEMENT COMPANY:
1 Turo snowblower
<PAGE>
EXHIBIT H
NORTHLAND CORP
RENT ROLL II
**************************INSERT EXHIBIT H HERE******************************
<PAGE>
EXHIBIT I
ACTIONS AGAINST SELLER
NONE
<PAGE>
EXHIBIT J
CLAIMS INVOLVING CONSTRUCTION OF THE UNITS
NONE
<PAGE>
EXHIBIT K
[Rent Roll II]
<PAGE>
EXHIBIT L
COMMISSIONS DUE FROM SELLER/BUYER/OTHER PARTY
NONE
<PAGE>
SCHEDULE A TO EXHIBIT L
NORTHLAND CORP
LEASE EXP/OPT REPORT (LEASEEXP)
<PAGE>
EXHIBIT M
ASSIGNMENT OF RIGHTS IN AND TO THE
MEMORANDUM OF RIGHTS, OPTIONS AND RESTRICTIONS
FOR VALUE RECEIVED, PORTLAND SQUARE LIMITED PARTNERSHIP, a
Massachusetts limited partnership having its principal place of business at 2150
Washington Street, Newton, MA 02162 (hereinafter referred to as "Assignor"),
hereby assigns, transfers, conveys and sets over until MGI PROPERTIES, a
Massachusetts business trust (hereinafter referred to as "Assignee"), without
recourse and without any warranties herein except as set forth in the Purchase
and Sale Agreement, express or implied, in law or otherwise, all of the right,
title and interest of Assignor, as "Seller" in, to and under the Memorandum of
Rights, Options and Restrictions dated October 30, 1987 between it and Verrill &
Dana recorded in the Cumberland County Registry of Deeds in Book 8045, Page 277
(the "Memorandum").
Assignee hereby accepts such assignment and agrees to keep, observe and
perform all of Assignor's obligations as "Seller" under said Memorandum of
Rights, Options and Restrictions first accruing after the date hereof. Assignee
hereby indemnifies and agrees to hold Assignor free and harmless from any
liability under the Memorandum in connection with the performance or observance
of any obligations or failure to perform as the "Seller" by Assignee thereunder
first accruing on or after the date hereof. Assignor hereby indemnifies and
agrees to hold Assignee free and harmless from any liability under said
Memorandum in connection with the performance or observance of any obligations
or failure to perform as the "Seller" by Assignor thereunder which accrued or
should have accrued prior to the date hereof.
This Agreement shall not in any way modify the warranties contained in
a Purchase and Sale Agreement between Assignor and Assignee dated as of April
____, 1996.
This Agreement shall be binding upon and inure to the benefit of the
respective executors, administrators, heirs, successors and assigns of Assignor
and Assignee.
IN WITNESS WHEREOF, Assignor and Assignee have executed this Agreement
under seal as of ________________, 1996.
ASSIGNOR: PORTLAND SQUARE LIMITED PARTNERSHIP
By: Northland Union Street Limited Partnership,
its General Partner
By: Northland Realty Corporation,
its General Partner
By: _________________________________
Jeremy Hubball, President
ASSIGNEE: MGI PROPERTIES
By: __________________________________
<PAGE>
PURCHASE AND SALE AGREEMENT
TWO PORTLAND SQUARE
PORTLAND, MAINE
BETWEEN
MGI PROPERTIES
-BUYER-
AND
TWO PORTLAND SQUARE LIMITED PARTNERSHIP
-SELLER-
<PAGE>
INDEX TO LEASE
1. DESCRIPTION.................................................1
2. TITLE; DEED.................................................1
3. PLAN........................................................2
4. PURCHASE PRICE..............................................2
5. CLOSING.....................................................3
a. Deed.........................................3
b. Conditions to Buyer's Obligations............3
c. Real Estate Taxes............................6
6. POSSESSION AND CONDITION OF UNITS AND PREMISES..............6
7. TITLE DEFECTS; EXTENSION OF TIME TO PERFECT TITLE...........6
8. ACCEPTANCE OF DEED..........................................7
9. WARRANTIES AND REPRESENTATIONS..............................7
10. DELIVERY OF PREMISES IN "AS IS" CONDITION..................13
11. DUE DILIGENCE..............................................13
a. Environmental Inspection....................14
b. Financing Contingency.......................14
12. ACCESS TO INFORMATION......................................15
13. USE OF MONEY TO CLEAR TITLE................................15
14. INSURANCE..................................................15
15. CLOSING ADJUSTMENTS........................................15
a. Rents.......................................15
b. Taxes and Expenses of Sale..................16
c. License Fees................................16
d. Service Contracts...........................16
e. Utilities...................................16
16. BROKERS....................................................17
17. BUYER'S DEFAULT; DAMAGES...................................17
18. ESCROW AGENT; DISPUTES.....................................17
a. Liability of Escrow Agent...................17
b. Disputes....................................17
19. PACKAGE OFFER CONTINGENCY..................................19
20. VERRILL & DANA CONTINGENCY.................................19
21. ENTIRE UNDERSTANDING.......................................19
22. NOTICES....................................................19
23. CONSTRUCTION OF AGREEMENT..................................20
24. OPERATING COVENANTS........................................20
25. LIKE-KIND EXCHANGE.........................................21
26. PERSONAL LIABILITY.........................................21
27. SEC RULES..................................................21
<PAGE>
LIST OF EXHIBITS
EXHIBIT A DESCRIPTION OF PREMISES
EXHIBIT B LIST OF ENCUMBRANCES
EXHIBIT C ASSIGNMENT OF SERVICE AGREEMENTS
EXHIBIT C-1 LIST OF SERVICE CONTRACTS
EXHIBIT D ASSIGNMENT OF PERMITS, APPROVALS AND
LICENSES
EXHIBIT E ASSIGNMENT, ACCEPTANCE AND ASSUMPTION OF
LEASES, GUARANTIES, TENANCIES AND OCCUPANCIES
EXHIBIT F LIST OF LEASES
EXHIBIT G WARRANTY BILL OF SALE AND ASSIGNMENT
EXHIBIT G-1 PERSONAL PROPERTY WHICH BELONGS TO OTHERS AND
IS NOT INCLUDED IN SALE
EXHIBIT H INSURANCE CERTIFICATE
EXHIBIT I ACTIONS AGAINST SELLER
EXHIBIT J CLAIMS INVOLVING CONSTRUCTION OF THE PREMISES
EXHIBIT K RENT ROLL AND SECURITY DEPOSITS
EXHIBIT L COMMISSION DUE FROM SELLER/BUYER/OTHER PARTY
EXHIBIT M ASSIGNMENT OF RIGHTS IN AND TO THE
MEMORANDUM OF RIGHTS, OPTIONS & RESTRICTIONS
<PAGE>
PURCHASE AND SALE AGREEMENT
Two Portland Square
Portland, Maine
Purchase and Sale Agreement, dated as of April 26, 1996 (this
"Agreement"), by and between TWO PORTLAND SQUARE LIMITED PARTNERSHIP, a
Massachusetts limited partnership having a business address at Two Portland
International Limited, 115 King Street, Stellarton, Nova Scotia BOK1S0
("Seller"), and MGI PROPERTIES, a Massachusetts business trust having an address
at 1 Winthrop Square, Boston, MA 02110 ("Buyer").
W I T N E S S E T H :
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. DESCRIPTION. Seller hereby agrees to sell to Buyer and Buyer hereby
agrees to purchase from Seller, upon the terms and conditions hereinafter set
forth, the parcel of land located at Two Portland Square, Portland, Cumberland
County, Maine, as more particularly described in Exhibit A attached hereto (the
"Land"), together with the building having an address of Two Portland Square
(the "Building"), and structures and improvements existing thereon, together
with all permits, licenses, certificates, variances, consents and approvals,
plans, specifications, warranties and guaranties, fixtures owned by Seller,
advertising and leasing brochures, tradenames, trademarks, development rights,
if any, and other intangible property pertaining to the Building and its use and
operation (the "Intangible Property") and all of Seller's right, title and
interest in and to any streets, ways or alleys abutting or adjoining thereon and
all other rights appurtenant to the Land (collectively, with the Land and the
Building, the "Premises").
2. TITLE; DEED. The Premises are to be conveyed by a Maine Warranty
Deed with warranty covenants (the "Deed") running to Buyer or its nominee, and
the Deed shall convey good record, marketable and insurable title free and clear
of any and all liens, claims and encumbrances, except:
(a) Provisions of existing applicable laws and regulations in
effect on the date of the delivery of the Deed, provided the same do not
interfere with the current use of the Premises;
(b) Such real and personal property taxes for the then current
tax period as are not yet due and payable on the date of the recording of the
Deed;
(c) Any liens for municipal betterments assessed on the
Premises after the date of the recording of the Deed;
1
<PAGE>
(d) The easements, agreements, encumbrances, rights, title or
interests of others and other agreements and other matters as are referenced in
the list of encumbrances attached hereto as Exhibit B so long as the same do not
interfere with the current use of the Premises ("Permitted Encumbrances");
(e) Sun Life Assurance Company of Canada ("Sun Life") loan
documents evidencing a $9,000,000 loan ("Loan") secured by a first mortgage lien
on the Premises, including without limitation, a Mortgage and Security
Agreement, UCC-1 Financing Statement and Assignment of Rent, Income and Leases
("Loan Documents").
3. PLAN. If the Deed refers to a plan necessary to be recorded
therewith, Seller shall deliver such plan with the Deed in form adequate for
recording.
4. PURCHASE PRICE. In consideration of Seller's conveyance of the
Premises, Buyer shall pay to Seller the sum of $16,852,500.00 of which
$187,250.00 has been paid by Buyer as a deposit as of this day
("Second Deposit").
$16,665,250.00 representing the balance, be paid as follows:
Approximately $8,936,249.00 plus interest by
assumption of the Sun Life Loan, if Buyer so elects,
and the balance (or, if Buyer does not assume the
Loan and does not exercise its right to terminate
this Agreement pursuant to Paragraph 11(b) hereof,
the full $16,665,250.00) to be paid immediately upon
the recording of the Deed by the Buyer's title
insurance company (the "Title Company") by certified
check or checks or, at Seller's request, by wire
transfer in accordance with wiring instructions
provided by Seller subject only to withholding if
required by the Internal Revenue Service.
$16,852,500.00 TOTAL
All deposits made hereunder shall be held by Atlantic Title Company, 76
Atlantic Avenue, Portland, Maine 04106, as Escrow Agent in an interest-bearing
FDIC insured bank account or accounts (so that no account has in excess of
$100,000) 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, with all interest accrued thereon with regard to
the Deposit from and after the date hereof being applied against the Purchase
Price, except only that accrued and earned interest on the deposit shall be paid
to Buyer in the event the deposit is returned to Buyer for any reason,
including, without limitation, in the event of Seller's failure or inability to
perform Seller's obligations hereunder.
2
<PAGE>
5. CLOSING. (a) Deed. The Deed is to be delivered at a closing no later
than 11:00 a.m. on June 24, 1996 ("Closing Date") at the Cumberland County
Registry of Deeds unless otherwise agreed upon in writing. It is agreed that
time is of the essence of this Agreement.
(b) Conditions to Buyer's Obligations. Buyer's obligation to
purchase the Premises and pay the Purchase Price shall be subject to the
satisfaction at or before the Closing of each of the following conditions,
unless waived in writing by Buyer:
(i) Deed. Seller shall deliver the Deed, duly
executed and acknowledged by Seller.
(ii) Title Affidavits. Such customary affidavits and
indemnities as the Title Company may reasonably
require in order to issue a so-called owner's
title insurance policy without the standard
exceptions, including without limitation, an
exception for mechanics' and materialman's
liens or for parties in possession, and with
affirmative insurance to the effect that
Verrill & Dana's rights of first offer, rights
of first refusal and options to purchase has
been complied with and will not affect Buyer's
title except to the extent that it may apply to
future sales;
(iii) Non-Foreign Affidavit. A non-foreign person
affidavit executed to reflect the status of
Seller;
(iv) Assignment of Service Agreements. Seller shall
deliver an instrument of assignment and
assumption in substantially the form of Exhibit
C, duly executed and acknowledged by Seller,
assigning to Buyer Seller's interest in the
written agreements relative to the operation,
management, maintenance, security, finance or
insurance for the Premises listed on Exhibit
C-1 ("Service Agreements") in effect on the
Closing Date but only those which Buyer has
elected to assume, and evidence of the
termination of all Service Agreements not so
assumed;
(v) Assignment of Permits. Seller shall deliver a
blanket assignment to Buyer in the form of
Exhibit D of all permits, licenses,
certificates, variances, consents and approvals
pertaining to the Premises, duly executed and
acknowledged by Seller, together with any
originals of such instruments in Seller's
possession or control, and together with
approvals of any party which may be required in
order to effectuate such assignments including
without limitation, if required, the approval
of any state or local authority.
3
<PAGE>
(vi) Assignment of Leases. Seller shall deliver an
instrument of assignment and assumption in
substantially the form of Exhibit E, duly
executed and acknowledged by Seller, assigning
to Buyer Seller's interest in the leases and
lease guaranties, if any, set forth in Exhibit
F for space in the Building in effect on the
Closing Date;
(vii) Warranty Bill of Sale and Assignment. Seller
shall deliver to Buyer a Bill of Sale in the
form attached hereto as Exhibit G for all
apparatus, fixtures and articles of personal
property owned by Seller and attached to or
used or procured for use in connection with the
operation or maintenance of the Premises
including, but without limiting the generality
of the foregoing, all engines, furnaces,
boilers, stokers, pumps, heaters, tanks,
dynamos, motors, generators, switchboards,
electrical equipment, heating, plumbing,
lifting and ventilating apparatus, materials
handling equipment, air-cooling and
air-conditioning apparatus, gas and electric
fixtures, elevators, escalators, fittings, and
machinery and all other equipment of every kind
and description, used or procured for use in
the operation of the Building (except those
certain apparatus, fixtures or articles or
personal property belonging to lessees or other
occupants of the Building or to the management
company or to persons other than Seller as
shown on Exhibit G-1 unless the same be
abandoned by any such sublessee or other
occupant or person), together with any and all
replacements thereof and additions thereto and
all Intangible Property ("Personal Property");
(viii) Estoppel Certificates. Seller shall deliver
current estoppel certificates in substantially
the form provided by Buyer and containing
information which comports with the Rent Roll
for all tenants occupying in excess of 5,000
rentable square feet and, with respect to those
tenants occupying less than 5,000 rentable
square feet, at least seventy-five percent
(75%) of all such retail tenants and
seventy-five percent (75%) of all such
non-retail tenants (determined by square
footage rather than the number of tenants). To
the extent Seller is unable to obtain estoppel
certificates from all tenants, Seller shall
provide Buyer with an estoppel certificate in
the form provided by Buyer with respect to
lease information only, for all tenants from
whom an estoppel certificate has not been
obtained;
(ix) Representations and Warranties. The
representations and warranties made by Seller
in Paragraph 9 of this Agreement shall be true
and correct on the date of this Agreement and
shall be true
4
<PAGE>
and correct on the Closing Date with the
same effect as though such representations
and warranties had been made or given as of
such date;
(x) A 1099 IRS filing;
(xi) Evidence reasonably satisfactory to Buyer and
the Title Company of (a) the authority of
Seller to execute the closing documents and of
any signatory to execute the same on behalf of
the Seller and (b) the expiration of the rights
of first offer, rights of first refusal and
options to purchase of Verrill & Dana;
(xii) If Buyer assumes the Loan, an estoppel
certificate of the Lender with respect to the
Loan, as defined in Section 11(f), and final
assumption documents relating to Buyer's
assumption of the Loan, in form and substance
reasonably satisfactory to Buyer and Seller,
and true and complete copies of all
documentation relating to the Loan have been
provided to Buyer;
(xiii) Reissuances (addressed to Buyer) of the land
use opinions issued by counsel to Seller in
connection with the Loan dated as of the
Closing;
(xiv) Delivery of all keys, locks, security codes and
similar security-related materials;
(xv) Notices to all tenants under the Leases of the
conveyance in form and substance reasonably
satisfactory to Buyer;
(xvi) Any filings required under the laws of the
State of Maine and the City of Portland
relating to the transaction;
(xvii) All documentation required by change of
ownership provisions under any Lease, including
without limitation, the GSA Lease;
(xviii) An assignment in the form attached hereto as
Exhibit M of all of Seller's rights (and the
rights of any original Northland party) under
that certain Memorandum of Rights, Options &
Restrictions dated October 30, 1987 by and
between Portland Square Limited Partnership and
Verrill & Dana, as amended by letter agreement
dated August 24, 1989 between Mark Massey and
Christopher Coggeshall (the "Memorandum");
5
<PAGE>
(xix) An Assignment of Portland Square Limited
Partnership's rights under the Memorandum to
Two Portland Square Limited Partnership dated
January 31, 1995; and
(xx) Assignment of Fisherman's Wharf Parking Lease
dated December 9, 1991, as amended.
(c) Real Estate Taxes. Seller shall pay all real estate
transfer taxes at the Closing and for the cost of recording any instruments
required to clear title. Buyer shall pay for the recording of the Deed (not
including real estate transfer taxes), any mortgages and any other instruments
to be recorded.
6. POSSESSION AND CONDITION OF UNITS AND PREMISES. Full possession
of the Premises, free of all tenants and occupants, except those set forth on
Exhibit F hereto, is to be delivered at the Closing, the Premises to be then in
the same condition as they now are, reasonable use and wear thereof excepted,
and, not in violation, in a manner which would adversely affect the use of the
Premises for its current use, of the applicable laws and regulations referred to
in paragraph 2(a) hereof or the Permitted Encumbrances.
7. TITLE DEFECTS: EXTENSION OF TIME TO PERFECT TITLE. If Seller shall
be unable to give title or to make conveyance, or to deliver possession of the
Premises, all as herein stipulated, or if at the Closing the Premises do not
conform with the provisions hereof, then Seller shall (i) remove all
encumbrances, if any, which secure the payment of money, whether or not created
by Seller including, but not limited to, liens and mortgages, and (ii) use
reasonable efforts to remove all other defects in title and to deliver
possession as provided herein, and to make the Premises conform to the
provisions hereof, as the case may be, and thereupon the closing shall be
extended for such period (not to exceed 45 days) as shall be required to remove
such defects in title, deliver possession or make the Premises conform to the
provisions hereof, as the case may be; provided, however, that with respect to
Seller's obligations set forth in clause (ii) above, Seller shall not be
obligated to expend to cure such defects, or to deliver possession, or to make
the Premises conform, an amount greater than $100,000 in the aggregate.
If at the expiration of the extended time Seller shall have failed so
to remove any defects in title, deliver possession, or make the Premises
conform, as the case may be, pursuant to this Paragraph 7, any deposits made
under this Agreement shall be forthwith refunded to Buyer with the interest
earned thereon and all other obligations of the parties hereto shall cease, and
this Agreement shall be void and without recourse to the parties hereto.
Notwithstanding the foregoing, Buyer shall have the election, at either the
original or extended closing, to accept such title as Seller can deliver to the
Premises in their then condition and to pay therefor the Purchase Price without
reduction (except in the case of encumbrances which secure the payment of money
which can be discharged of record by the payment of an ascertainable sum), in
which case Seller shall convey such title to the Premises, except that upon such
election by Buyer in the event of such conveyance in accordance with the
provisions of this clause if any portion of the Premises shall have been taken
by exercise of the power or eminent domain, Seller shall pay over or
6
<PAGE>
assign to Buyer on delivery of the Deed all awards recovered or recoverable on
account of such taking and all of Seller's rights to receive any such awards,
less any amounts reasonably expended by Seller in obtaining such award, in which
event there shall be no reduction in the Purchase Price, and except further that
upon such election by Buyer if the Premises shall have been damaged by fire or
casualty insured against, then Seller shall, unless Seller has previously
restored the Premises to their former condition, pay over or assign to Buyer, on
delivery of the Deed, all amounts recovered or recoverable on account of such
insurance, less any amounts reasonably expended by Seller for partial
restoration, plus any deductible amount not recoverable.
8. ACCEPTANCE OF DEED. The acceptance of the Deed by Buyer shall be
deemed to be a full performance and discharge of every agreement and obligation
herein contained or expressed, except for the provisions of Paragraphs 9, 16 and
27 hereof, which shall survive the delivery of the Deed and the closing of the
transactions contemplated by this Agreement for a one (1) year period following
the Closing with the exception of certain obligations with respect to the Sun
Life Loan as described in Paragraph 9 which will survive as set forth therein
(and any other provisions which specifically state that they so survive).
9. WARRANTIES AND REPRESENTATIONS. (a) Seller represents, covenants and
warrants to and agrees with Buyer, as of the date of this Agreement and as of
the closing, as follows:
(1) Seller has not received any written notice and does not
otherwise have knowledge of any eminent domain and/or
condemnation proceedings, either pending or
contemplated, or of any current provisions of, or
proposed changes in the zoning of the Premises for its
current use, or any other local laws or ordinances
either pending or contemplated, which, in either case,
may materially adversely affect the use of the Premises
for its current use.
(2) Seller is a limited partnership duly organized under
the laws of the State of Massachusetts and duly
qualified to do business in the State of Maine and has
the power, authority and legal right to execute and
deliver this Agreement and to enter into the
transactions contemplated hereby, and the execution and
delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly
authorized by all requisite corporate actions on the
part of Seller and such authority has not been revoked.
(3) Seller has not and, prior to the closing, will not
grant any easements nor enter into any agreement for
lease or otherwise which may affect title to or convey
any interest in the Premises which cannot be terminated
prior to the date of closing.
(4) Seller has not received written notice from any
governmental, federal, state, county or municipal
agency or authority requiring the assessment or
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correction of any condition with respect to the
Premises or any part thereof, by reason of a violation
of any law, regulation, ordinance or otherwise
including without limitation The Americans With
Disabilities Act and the Maine Human Rights Act and
except as set forth in the study entitled "ADA Analysis
dated May 28, 1992" prepared by David Saltzman, A1A
(which has been provided to Buyer), Seller does not
otherwise have knowledge of any violation of any law,
regulation, ordinance or otherwise relating to the
Premises.
(5) Other than as set forth in the environmental reports
dated 1 October 1987, 5 October 1987, 16 October 1987,
14 November 1990 and 27 December, 1995, respectively on
oil and hazardous material site evaluation and letter
dated 8 October 1990 and prepared by Haley & Aldrich,
Inc. (collectively, the "Environmental Reports"),
Seller has not received any written notice and does not
otherwise have actual knowledge of oil or hazardous
waste or materials, or underground storage tanks,
present on or released to or from the Premises.
(6) The insurance maintained by Seller with respect to the
Premises and its use and operation is listed on the
certificates attached as Exhibit H hereto. Seller has
not received any notices from any insurer or its agent
requiring performance of any work with respect to the
Premises or canceling or threatening to cancel any
policy, and the Premises complies with the requirements
of all insurance carriers and with the requirements of
the State of Maine Board of Fire Underwriters.
(7) Except as disclosed in writing to Buyer prior to the
date of this Agreement and listed on Exhibit I attached
hereto, there are no actions or proceedings instituted
or pending before any court, administrative agency or
arbitrator against Seller, against or concerning the
Premises, or against, relating to, or adversely
affecting the right, title or interest of Seller in or
to any of the Premises, or relating to Seller's
execution or performance of this Agreement, and, to the
best of Seller's knowledge, there are no such actions
or proceedings threatened. No proceeding has been filed
by or against Seller under the United States Bankruptcy
Code, or any State law relating to bankruptcy or
insolvency, seeking liquidation of Seller, or its
reorganization, or an arrangement with its creditors,
or the appointment of a trustee or receiver for its
assets or business.
(8) All contractors, subcontractors and other persons or
entities furnishing work, labor, materials or supplies
for construction of or additions to the Premises or for
tenant improvements have been paid in full or provided
for in a manner satisfactory to Buyer according to its
written approval, and Seller has no knowledge of any
claims against the Premises or Seller in
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connection therewith and has no claims against any of
its contractors or subcontractors except as set forth
on Exhibit J hereto.
(9) The leases for space in the Building and the guaranties
thereof in all material respects are accurately and
completely listed along with all amendments, letter
agreements and letters of extension in Exhibit F (the
"Leases"), and true and complete copies of which Seller
has provided to Buyer. The Leases constitute the sole
agreements and understandings relating to leasing or
licensing of space in the Building or on the Premises,
there are no occupancies, rights, privileges or
licenses in or to the Building or any other part of the
Premises other than pursuant to the Leases, and, except
as set forth in the Leases, no Lease provides for any
restrictions or options on the leasing, use, ownership,
purchase or occupancy of or any part of the Premises.
The Leases are unmodified except as set forth in copies
of the leases provided to Buyer, and in full force and
effect, in accordance with their respective terms,
without any actual or threatened default by either
party thereunder, except as listed on Exhibit F
attached hereto, nor are there any defenses,
counterclaims, offsets, concessions or rebates except
as set forth in the Leases, and Seller has not given or
made, or received, any notice of default, or any claim,
which remains uncured or unsatisfied, with respect to
any of the Leases, and, to the best of Seller's
knowledge there is no basis for any such claim or
notice of default by any tenant. The rent roll
furnished by Seller to Buyer and attached hereto as
Exhibit K accurately and completely sets forth all the
rents payable by tenants, no tenant having paid more
than one month's rent in advance. Exhibit K furnished
by Seller to Buyer accurately and completely sets forth
all security deposits from tenants. All tenant
improvements or work to be done, furnished or paid for
by Seller, or credited or allowed to a tenant, for, or
in connection with, the Building pursuant to any Lease
have been completed and paid for or provided for in a
manner satisfactory to Buyer according to its written
approval. No tenant under the leases has any right to
free rent or other concessions except for Aquarius
Travel and Forum Financial who receive a monthly
payment from an escrow account pursuant to Letter
Agreements dated March 29, 1991 and July 16, 1992
copies of which have been delivered to Buyer. At the
Closing, Seller shall assign the proceeds of such
escrow account to Buyer pursuant to Exhibit E hereto.
No tenant is habitually in default under its lease.
Except as set forth on Exhibit L attached hereto, no
leasing, brokerage or like commissions, fees or
payments are due from Seller or will be due from Buyer
or any other party with respect to the Leases or any
extensions, modifications or amendments thereof or any
future sale of the Premises. With respect to any
leasing commission due described in Exhibit L, the same
shall only be due if the subject management agreement
is in full force and effect. There has been no
assignment, pledge or encumbrances of any Lease by
Seller or any of the
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<PAGE>
rents or other payments due to Seller thereunder except
in connection with the Loan, as defined in Section
11(f) below. All insurance required to be provided by
tenants under the Leases is in full force and effect.
(10) The Service Agreements are accurately and completely
listed in Exhibit C-1, as so set forth constitute the
sole agreements and understandings of Seller with respect
to the operation and maintenance of any of the Premises,
and the copies thereof furnished by Seller to Buyer are
true and complete. To the best of Seller's knowledge,
there are no claims or any bases for claims in respect of
the Premises or its operation by any of the parties to
the Service Agreements. All of said service agreements
are cancelable upon no more than thirty (30) days' notice
except as set forth in Exhibit C-1.
(11) Seller has submitted to Buyer statements of income of
Seller for the years ended December 31, 1993, 1994 and
1995, prepared in accordance with generally accepted
accounting principles consistently applied with an
unqualified opinion of independent certified public
accountants, that the above-described financial
statements present fairly the results of operations for,
and the financial position as at the end of, such years
in accordance with generally accepted accounting
principles consistently applied. Such statements of
income present fairly the financial position and results
of operations of Seller and the Premises as at the dates
thereof. Since the date of the most recent of such
financial statements there have been no changes in the
assets, liabilities, financial condition, business or
results of operations of Seller other than changes in the
ordinary course of business the effect of which has not
been in any case, or in the aggregate, materially adverse
and other than the $9,000,000 loan to the Seller from Sun
Life Insurance Company which is secured by a mortgage on
the Premises.
(12) There are no unpaid or outstanding real estate or other
taxes, or assessments on or against the Premises or any
part thereof, which are payable by Seller (except only
real estate taxes not yet due and payable). Seller has
delivered to Buyer true and correct copies of real estate
tax bills for the Premises for the current tax year. No
abatement proceedings are pending with reference to any
real estate taxes assessed against the Premises. There
are no betterment assessments or other special
assessments presently pending with respect to any portion
of the Premises, and Seller has received no notice of any
such special assessment being contemplated.
(13) No approval, consent, order or authorization of, or
designation, registration or declaration with, any of the
United States or the State of Maine, any department,
board, agency, office, commission or other subdivisions
thereof, or any official thereof (each a "Governmental
Authority") is required in connection with the valid
execution and delivery of, and
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performance of the covenants of, this Agreement by
Seller.
(14) The execution of this Agreement by Seller and Seller's
observance and performance of all of its respective
covenants and obligations hereunder do not contravene any
judgement, order or provision of the law or any agreement
binding upon Seller; however, the ability of Seller to
perform under this Agreement is conditioned upon approval
by Equitable of the assumption of the Loan by Buyer
unless Buyer elects to pay cash for the Premises as
described in Section 11(b) hereof.
(15) The Premises do not encroach upon the property of any
third party and no improvements owned by any other party,
either aboveground or underground, encroach upon the
Premises.
(16) All utilities servicing the Premises are of sufficient
capacity for the unimpeded current operation of the
Premises and such utilities are obtained via connections
directly in the public ways abutting the Land without the
need for any easements, rights of way or licenses from
any third parties except as shown on the survey described
in Exhibit B hereto and on the survey described in
Exhibit B to the purchase and sale agreement for Units
#1-6 at One Portland Square.
(17) With respect to the Loan as defined in Section 11(f),
Seller has not breached any warranty, representation or
covenant made by Seller to Lender and is otherwise not in
default under the Loan, and the Loan is non-recourse
except under certain circumstances set forth in the Loan
documents, true and complete copies of which have been
provided to Buyer.
(18) The Building was built in accordance with the original
plans and specifications as the same were approved by the
appropriate local and state authorities.
(19) All permits, licenses and approvals necessary for the
construction, use, and operation of the Building have
been obtained and are in full force and effect, all
requirements thereof have been complied with and all
appeal periods relating thereto have expired without
appeal.
(20) All private ways providing access to the Premises are
zoned in a manner which will permit access to the
Premises over such ways by all passenger and commercial
vehicles.
(21) The Memorandum, as defined in Section 5, is in full force
and effect to the best of Seller's knowledge; a true and
complete copy of The Memorandum and amendments thereto
has been delivered to Buyer; there are no other
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amendments thereto except as described in Paragraph
5(b)xviii; there are no defaults by either party to the
Memorandum or by Two Portland Square Limited Partnership
as assignee thereof; all provisions of the Memorandum
have been fully complied with (i) in connection with the
transaction contemplated by this Agreement and (ii) in
general, including without limitation, all provisions of
the Memorandum which relate to the construction, use and
operation of Two Portland Square.
(22) The lease for parking spaces at Fisherman's Wharf dated
December 9, 1991 between Portland Square Limited
Partnership and Fisherman's Wharf Associates II is in
full force and effect and all rent is paid in full to the
end of the month in which the Closing occurred and Seller
has received no notice of default from the Landlord
thereunder.
It shall be a condition of Buyer's obligation to close under this
Agreement that the foregoing warranties and representations made by Seller shall
be true in all material respects as of the closing. In the event any warranty or
representation made herein shall not be true in all material respects at the
Closing and Seller gives written notice thereof to Buyer prior to Closing, then,
at Buyer's option, and as Buyer's sole remedy at law or in equity, all sums paid
hereunder by Buyer shall forthwith be refunded to Buyer with all interest earned
thereon and all obligations of the parties hereunder shall terminate without
recourse. If Buyer elects to purchase the Premises notwithstanding such notice,
the particular warranty or representation shall be deemed amended.
Each of the general and limited partners of Seller and the other
signatories to the Loan documents (collectively, said general and limited
partners, other signatories and Seller hereinafter referred to as the "Liable
Parties") hereby join in this Agreement for the purpose of representing that
they know of no information which would indicate that any of the foregoing
representations is untrue or misleading and agree to be jointly and severally
liable post-closing for the one (1) year period following the closing for any
misrepresentation of Seller in this Section 9 and any misrepresentation of any
of the Liable Parties set forth in this sentence. Furthermore, the Liable
Parties also agree, jointly and severally, to indemnify and hold harmless Buyer
and its nominee post-Closing (i) for any and all costs or expenses incurred by
the Buyer and its nominee during the one (1) year period following the Closing
pursuant to the Loan documents as a result of a breach of any obligation,
warranty, representation or covenant under the Loan documents committed or
caused by any of the Liable Parties prior to the Closing; provided that the
Buyer did not have actual knowledge, prior to the Closing, of the existence of
the breach; and (ii) for the term of the Loan as of the date hereof (or until
the Loan is discharged, assigned by Buyer or its nominee or satisfied, if
earlier) for any and all costs or expenses incurred by the Buyer pursuant to the
Loan documents as a result of any and all so-called "bad acts", including
without limitation, fraud, misrepresentation or deceptive business practice
committed by any of the Liable Parties in connection with the Loan prior to the
Closing. Likewise, Buyer agrees to indemnify and hold harmless Seller
post-Closing for the term of the Loan (or until the Loan is discharged or
satisfied, if earlier) for any and all costs and expenses incurred by Seller
pursuant to the Loan
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documents as a result of a breach of any obligation, warranty, representation or
covenant under the Loan documents committed by or caused by Buyer or its nominee
after Buyer assumes the Loan or as a result of any and all "bad acts", as
defined above, committed by Buyer in connection with the Loan. The word "Lender"
as used in this Paragraph shall be deemed to include Lender, its successors and
assigns.
(b) Buyer represents, covenants and warrants to and agrees
with Seller that Buyer has the power, authority and legal right to execute and
deliver this Agreement and to enter into the transactions contemplated hereby,
and that the execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby have been duly authorized by all requisite
corporate actions on the part of Buyer and such authority has not been revoked.
10. DELIVERY OF PREMISES IN "AS IS" CONDITION. Except as expressly set
forth in this Agreement, Buyer acknowledges that Buyer has not been influenced
to enter into this transaction nor has Buyer relied upon any warranties,
representations or indemnities by Seller, express or implied, with respect to
the condition or suitability of the Premises or any part thereof, any matter of
fact or any matter in any way relating to the Premises, this Agreement or
otherwise. In particular, Buyer acknowledges that Seller is selling and Buyer is
purchasing the Premises "AS IS, WHERE IS", with all faults and defects, latent,
patent or otherwise. Without limiting the generality of the foregoing, Buyer
acknowledges that, except as expressly set forth in this Agreement and in the
Deed, neither Seller nor any broker or agent of Seller has provided any
representations, warranties, promises, covenants, agreements or guaranties of
any kind or character whatsoever, whether express or implied, oral or written,
as to:
(a) The nature, quality or condition of the Premises,
including, without limitation, the water, soil and geologic or environmental
nature, quality or condition;
(b) The suitability of the Premises for any and all activities
and uses which Buyer may conduct thereon;
(c) The compliance of or by the Premises or its operation with
any laws, rules, ordinances or regulations of any applicable governmental
authority or body;
(d) The habitability, merchantability or fitness for a
particular purpose of the Premises; or
(e) Any other matter with respect to the Premises not
specifically addressed in Paragraph 9(a) above.
11. DUE DILIGENCE. Buyer's obligation to purchase the Premises shall be
subject to the satisfaction of Buyer with respect to all aspects of the Premises
and the Loan, including without limitation, the title, survey, environmental and
other condition, compliance with law, taxes and assessments based upon Buyer's
due diligence review of the same at Buyer's sole cost and expense by May 24,
1996 ("Due Diligence Period").
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Buyer shall have the right to terminate this Agreement for any reason
during the Due Diligence Period without recourse to either party hereto in which
case Buyer shall receive a refund of its deposit and any interest thereon. If
Buyer does not so terminate this Agreement by notice to Seller given within the
Due Diligence Period, Buyer shall not thereafter have any claim against Seller
or any right to terminate this Agreement because of any matters which were
existing at the expiration of the Due Diligence Period unless Seller agrees in
writing to cure any defects and then fails to do so; provided, however, that the
foregoing shall not in any way limit the obligations of Seller and each other
party to the Agreement pursuant to Section 9 of this Agreement.
The provisions of this paragraph 11 shall survive the delivery of the
Deed and the closing of the transactions contemplated by this Agreement.
(a) Environmental Inspection. Buyer acknowledges that the
Environmental Reports have been prepared by parties other than Seller, that
Seller has made no representation or warranty with respect to the content,
completeness or accuracy of the Environmental Report and that Seller does not
intend for Buyer to rely upon the information set forth in the Environmental
Report.
Buyer shall have the right to retain a qualified professional at its
expense to prepare a report concerning compliance of the Premises with the
Comprehensive Environmental Response Compensation Act, the Resource Conservation
and Liability Act, the Superfund Amendment and Reauthorization Act, the Resource
Conservation Recovery Act, the Superfund Amendment Act and Reauthorization Act,
any so-called federal, state or local "superfund" or "superlien" statute or
other federal or state or local laws. Upon request of Seller, Buyer shall
provide a copy of same to Seller to the extent that Buyer's consultants permit
the same. Buyer agrees to limit all communication relative to the report to
Buyer, Seller, the qualified engineer and Buyer's counsel except as required by
law.
(b) Financing Contingency. Seller hereby agrees to negotiate
and coordinate the assumption of Seller's existing loan (the "Loan") by Seller's
nominee covering the Premises from Sun Life Assurance Company of Canada
("Lender") which will have a current outstanding principal balance of
$8,936,249.00 as of June 1, 1996 on the same terms and conditions currently in
effect plus an additional loan assignment provision for future owners and a
restatement in the loan assumption documents of the non-recourse language
contained in the existing loan documents. Such terms of assumption must be
reasonably satisfactory to Seller. In the event a binding written commitment
satisfactory to Buyer in its sole discretion for such financing is not obtained
from Lender on or before the expiration of the Due Diligence Period, then Buyer
or Seller shall have the option to (i) terminate this Agreement without recourse
to the other party in which case all deposits made hereunder shall forthwith be
refunded to Buyer with interest thereon or (ii) extend the Due Diligence Period
for up to an additional thirty (30) days with respect to this financing
contingency only. In the event Seller exercises its right to terminate
hereunder, such exercise shall not be effective if Buyer elects to purchase the
Premises without assuming the Loan and pays all costs paid to or for Lender by
Seller in connection with
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a prepayment of the Loan as required by the Loan documents less the one point
(1%) fee that Seller would have paid if Buyer had assumed the Loan which Seller
shall pay towards such prepayment fee. If Buyer does assume the Loan, the fee
charged by the Lender (one point of loan amount) as consideration for allowing
the assumption and Lender's attorney's fees, but excluding Buyer's attorney's
fees, shall be paid by Seller.
12. ACCESS TO INFORMATION. Seller will give Buyer and its counsel,
inspectors, accountants, and other representatives full access, during normal
business hours, to the Premises and to the books, contracts, commitments, and
other records (including computer files, retrieval programs, and other
documentation) of Seller and will furnish Buyer and such representative during
such periods with all such information and data concerning the affairs of Seller
and the Premises as Buyer or such representatives reasonably may request. Buyer
and its agents and consultants shall also have the right, at reasonable times
and upon reasonable notice to Seller, to enter upon the Premises, to perform
measurements, surveys, environmental tests including subsurface exploration
(with Seller's prior approval of scope), structural inspections and such other
tests which Buyer may deem necessary to evaluate the Premises. All such testing
shall be at Buyer's risk and expense. Buyer agrees to indemnify and hold Seller
harmless from any and all liability, loss and damage incurred by Seller as a
result of the exercise of the foregoing access rights by Buyer, its agents or
consultants except if due to any notification required to be made by law to any
local, state or federal authority. Should Buyer disturb the current condition of
the Premises in exercising such access rights, Buyer agrees to restore the
Premises to its current condition if Buyer does not take title to the Premises
in accordance with this Agreement.
13. USE OF MONEY TO CLEAR TITLE. To enable Seller to make conveyance as
herein provided, Seller may, at the closing, use the purchase money or any
portion thereof to clear the title of any or all encumbrances or interests
provided the documents necessary to clear title are recorded simultaneously with
the Deed.
14. INSURANCE. Until the closing, Seller will maintain in full force
and effect any existing policies of insurance relating to the Premises.
15. CLOSING ADJUSTMENTS. The following closing adjustments shall be
made at the Closing. With respect to the Closing Date, Buyer shall be
responsible for all expenses and entitled to all income for such date.
(a) Rents. All security deposits and interest thereon shall be
paid to Buyer or credited against the Purchase Price at Closing. Collected rents
(fixed, minimum, additional or percentage) and charges (including, but not
limited to, CAM, real estate and tax amounts payable by tenants and any last
month's rent or other advance rents) shall be adjusted as of the Closing date.
Uncollected rents (fixed, minimum, additional or percentage) and unpaid charges
(as aforesaid) for the relevant period shall be adjusted if and when collected
in the case of rents and adjusted if and when paid in the case of charges. All
rents and charges collected after the Closing shall be applied first against
sums payable for the then current rental period, with any excess applied first
against such sums as are then due and payable to Buyer for the period from
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and after the Closing Date and then and only then against such sums as are then
due and payable to Seller for the period prior to the Closing Date. Percentage
rents shall be adjusted on the assumption that sales upon which they are
computed were the same for each day of said period. Buyer agrees to use
reasonable efforts (not including legal proceedings) during the six month period
following the Closing to collect (on behalf of Seller, as its agent and without
fee) unpaid rents and charges due and payable for periods prior to the Closing
and to hold same as collected in a special account and to account for in writing
and remit same to Seller monthly (less Buyer's or Buyer's managing agent's
reasonable costs) during such period. At the end of such six month period, the
obligations of Buyer to collect such unpaid rents under this Section 15(a) shall
terminate; however, Seller shall have, at its option, continuing after the end
of such six-month period, for a period of six (6) additional months, the right
to collect (at Seller's sole cost and expense) any unpaid rents and charges due
and payable for periods prior to the Closing, but such right shall not include
summary process or eviction proceedings or any proceedings which might affect
the landlord-tenant relationship under the leases.
(b) Taxes and Expenses of Sale. Real estate taxes (no matter
how levied), and any other taxes in the nature thereof and constituting a lien
upon the Premises if not paid. If the amount of real estate taxes for the fiscal
year during which Closing occurs is not finally determined at the time of
Closing, such taxes shall be apportioned on the basis of the full amount of the
assessment for such period (or the assessment for the prior tax period if the
assessment for the current tax period is not then known) and the rate for the
next prior tax year, notwithstanding any provisions of law which permit reduced
payment pending final determination, and shall be reapportioned as soon as the
new tax rate and valuation, if any, has been finally determined; and, if the
taxes which have been apportioned shall subsequently be reduced by abatement,
the amount of such abatement, less the cost of obtaining the same and after
deduction of sums payable to tenants under Leases or expired or terminated
Leases, shall be apportioned between the parties. All other assessments of every
type, nature or description, as of the Closing Date, assessed to the Premises
and outstanding, shall be paid in full by Seller prior to the Closing (or by
Buyer after the Closing out of any funds withheld from the Purchase Price for
that purpose). If there are any type of taxes payable to any governmental
authority by reason of the sale or transfer of the Premises, Seller agrees to
pay the same and provide an appropriate return or form executed by Seller, as
may be required.
(c) License Fees. Fees for customary annual or other periodic
licenses and permits for periods including the Closing Date.
(d) Service Contracts. Charges on contracts and agreements
listed on Exhibit C-1 which are to be assigned to Buyer.
(e) Utilities. Seller will obtain final cut-off readings of
fuel, telephone, electricity, water, sewer and gas on the Closing Date but will
not permit such utilities to be cut off. Seller shall pay the bills based on
such readings promptly after the same are rendered. If arrangements cannot be
made for any such cut-off reading, the parties shall apportion the charges for
such services on the basis of the bill therefor for the most recent billing
period prior to the
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Closing Date, and Seller and Buyer shall promptly readjust the apportionments in
accordance with the last bills rendered.
16. BROKERS. 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 other than Northland
Management Corp. ("Broker"), 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 agrees to pay Broker any and all fees which may be due to Broker in
connection herewith.
17. BUYER'S DEFAULT; DAMAGES. If Buyer shall fail to fulfill Buyer's
obligations hereunder, all payments made hereunder by Buyer, together with any
and all interest thereon from the date hereof, shall be paid to Seller as full
and complete liquidated damages and not as a penalty, and shall be Seller's sole
remedy at law or in equity, and all obligations of Seller and Buyer hereunder
shall terminate without recourse to either party.
18. ESCROW AGENT; DISPUTES. (a) Liability of Escrow Agent. With respect
to any amount placed in escrow pursuant to this Agreement, the Escrow Agent
shall not be liable for any action or nonaction taken in good faith in
connection with the performance of its duties hereunder, but shall be liable
only for its own 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 such amount, 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:
(i) by mutual agreement between the parties; or
(ii) 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 proceedings.
(b) Disputes. Except as provided below in items (i) and (ii)
the Escrow Agent shall deliver the Deposit to Seller promptly after the Closing.
(i) Demand by Buyer. The Escrow Agent shall
deliver the Deposit to Buyer promptly upon
receipt of a written demand therefor from
Buyer stating that Seller has defaulted in
the performance of this Agreement or that
any condition or obligation of Buyer under
this
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Agreement has not been fulfilled stating the
facts and circumstances underlying such
default or unsatisfied condition; provided,
however, that the Escrow Agent shall not so
act until fifteen (15) days after Seller has
received a copy of such demand, nor
thereafter honor such demand by Buyer if it
shall have received notice from Seller in
accordance with subsection (iii) below.
(ii) Demand by Seller. The Escrow Agent shall
deliver the Deposit to Seller promptly after
written demand therefor from Seller given
subsequent to the Closing Date, stating that
Buyer has defaulted in performance of this
Agreement and the facts and circumstances
underlying such default; provided, however,
that the Escrow Agent shall not so act until
fifteen (15) days after Buyer has received a
copy of such demand, nor thereafter honor
such demand by Seller if it shall have
received notice from Buyer in accordance
with subsection (iii) below.
(iii) Upon the filing of a written demand for the
Deposit by Buyer or Seller, as the case may
be, pursuant to subsections (i) or (ii)
above, the Escrow Agent promptly shall mail
a copy thereof to the other party in the
manner provided herein for the giving of
notices and the other party shall have the
right to object to the compliance by the
Escrow Agent with such demand by filing
written notice of such objection with the
Escrow Agent at any time within fifteen days
after the receipt of such copy by such
party, but not thereafter. Such notice shall
set forth the basis for objecting to the
delivery of the Deposit. Upon receipt of
such notice of objection, the Escrow Agent
shall promptly mail a copy thereof to the
party which filed a written demand for the
Deposit.
(iv) In the event the Escrow Agent shall have
received the notice of objection provided
for in subsection (iii) above within the
time therein prescribed, the Escrow Agent
shall continue to hold and invest the
Deposit until: (i) the Escrow Agent receives
the joint written direction from Seller and
Buyer or a final judgement of a court of
competent jurisdiction directing the
disbursement of the Deposit, in which case
the Escrow Agent shall then disburse same in
accordance with such direction or judgement;
or (ii) in the event of litigation between
Seller and Buyer, the Escrow Agent delivers
the deposit to the Clerk of Court in which
such litigation is pending, or (iii) the
Escrow Agent deposits all of same with a
court of competent jurisdiction and therein
commences an action for interpleader, the
cost thereof to the Escrow Agent to be borne
by whichever of Seller or Buyer does not
prevail in the litigation.
18
<PAGE>
19. PACKAGE OFFER CONTINGENCY. Seller and Buyer acknowledge that the
Premises which are the subject of this Agreement are part of a package offer to
purchase certain property located in Portland, Maine consisting of the Premises,
condominium units 1-6 in the building known as One Portland Square and two (2)
surface parking lots which are located adjacent to the Premises (collectively,
the "Package Properties"). Accordingly, Buyer shall only have the right to
purchase the Premises described herein if Buyer also simultaneously purchases
the other Package Properties, except that if Seller fails to fulfill its
obligations under this Agreement or the seller of units 1-6 at One Portland
Square and the two (2) parking lots fails to fulfill any of its obligations
under that purchase and sale agreement, Buyer shall not be required to purchase
less than all of the Package Properties but rather shall only be required to
purchase all the Package Properties simultaneously. Therefore, in the event
Buyer requests a refund of its deposit on or before the expiration of the Due
Diligence Period for any of the reasons contained in paragraph 11 or is
otherwise refunded its deposit because Seller has failed to fulfill its
obligations hereunder, Buyer shall be entitled to a refund of its deposits held
pursuant to the other two (2) purchase and sale agreements for the other Package
Properties. Likewise, if Buyer receives a refund of its deposit under any of the
other two (2) purchase and sale agreements, Buyer shall receive a refund of the
deposit held hereunder. In addition, in the event the time for performance is
extended pursuant to Paragraph 7 of any of the purchase and sale agreements for
any of the Package Properties, the time for performance under any of the other
purchase and sale agreements for the other Package Properties shall likewise be
automatically extended without the necessity of additional written
documentations.
20. VERRILL & DANA CONTINGENCY. Buyer and Seller acknowledge that
Verrill & Dana, the owner of Units #7-10 at One Portland Square has a right of
first offer to purchase the Package Properties. Accordingly, this Agreement is
contingent upon the expiration on or before May 1, 1996 of Verrill & Dana's said
right of first offer. In the event Verrill & Dana exercises such right, all
deposits made hereunder shall be refunded to Buyer with interest thereon and
this Agreement shall terminate without recourse to the parties hereto. In
addition, if Verrill & Dana exercises such right, this Agreement shall
automatically terminate without recourse to either party hereto and Seller shall
promptly refund the Deposit with interest thereon and reimburse Buyer for all
reasonable out-of-pocket costs incurred in connection with its due diligence
described in Paragraph 11 hereof, including without limitation, legal,
engineering and environmental costs and Buyer shall provide Seller with valid
invoices therefor.
21. ENTIRE UNDERSTANDING. This Agreement, with the exhibits attached
hereto, if any, constitutes the entire agreement between the parties hereto with
respect to the Premises and no verbal statements made by anyone with regard to
the transaction which is the subject of this Agreement shall be construed as a
part hereof unless the same be incorporated herein by writing.
22. NOTICES. All notices required or permitted to be given hereunder
shall be in writing and delivered by hand or mailed postage prepaid, by
registered or certified mail or by telecopy, addressed in the case of Seller, to
Northland Management Corporation, 2150 Washington Street, Newton, Massachusetts
02162, Attention: Jeremy Hubball, President, and
19
<PAGE>
in the case of Buyer, to: Karl Weller, Senior Vice President, MGI Properties, 1
Winthrop Square, Boston, MA 02110 or in case of either party to such other
address as shall be designated by written notice given to the other party. Any
such notice shall be deemed given when so delivered by hand or if so mailed,
when deposited with the U.S. Postal Service, or if so telecopied, when received.
23. CONSTRUCTION OF AGREEMENT. This Agreement, executed as of the date
first above written, is to be construed as a Massachusetts contract, is to take
effect as a sealed instrument, is binding upon and inures to the benefit of the
parties hereto and their respective successors and assigns, and may be
cancelled, modified or amended only by a written instrument executed by both
Seller and Buyer.
24. OPERATING COVENANTS. The following shall govern the operations of
the Property from the effective date hereof through the Closing Date.
(a) Seller shall not take any of the following actions
without the express written consent of Buyer: (i) make or permit to be made any
material alterations to the Premises; (ii) enter into any lease or service
contract with respect to the Premises or any part thereof; (iii) remove or
permit the removal from the Premises of any personal property other than in the
ordinary course of business in which the personal property being removed is
replaced with new personal property of equal or greater value; (iv) reduce the
quality of the improvements at the Premises or their service and maintenance, or
materially reduce the number of employees currently employed by Seller to
service, maintain and secure the Premises; or (v) modify or agree to the
modification of any of the terms or conditions of any existing Lease or
contracts.
(b) At all times prior to the Closing Date, Seller shall
continue to operate and manage the Premises in a manner consistent with Seller's
operation and management policies in effect as of the effective date of this
Agreement; subject, however, to Seller's compliance with its obligations under
Paragraph 24(a) above.
(c) Seller will pay in full, prior to the Closing Date,
all bills and invoices for labor, goods, material and services of any kind
relating to the Premises. Except as provided in Paragraph 24(a) above, any
alterations, installations, decorations and other work required to be performed
under the Leases or other agreements affecting the Premises prior to the Closing
have been, or will be, completed by the Closing Date, and have been, or will be,
paid in full prior to the Closing Date or if same have not been completed and/or
paid at the Closing Date, the Purchase Price will be reduced by an amount equal
to the unpaid amounts and such amounts shall be paid by Buyer.
(d) After the date hereof and prior to the Closing Date,
no part of the Premises or any interest therein will be alienated, encumbered or
otherwise transferred, and no liens will be placed or permitted to be placed
thereon.
20
<PAGE>
(e) It shall be a condition of Buyer's obligations
hereunder that on the Closing Date there shall be no default by Seller under any
Lease.
(f) After the date hereof, Seller shall promptly notify
Buyer of any change in any condition with respect to the Premises or of any
event or circumstance which makes any representation or warranty of Seller to
Buyer under this Agreement untrue or misleading, or any covenant of Buyer under
this Agreement incapable or less likely of being performed, it being understood
that the Seller's obligation to provide notice to Buyer under this Paragraph 24
shall in no way relieve Seller of any liability for a breach by Seller of any of
its representations, warranties or covenants under this Agreement.
25. LIKE-KIND EXCHANGE. Buyer reserves the right to designate the
Premises as a replacement property in connection with any like-kind exchange
that it may transact, and Seller agrees to cooperate in such like-kind exchange
transaction and to sign such documentation as may be reasonably requested by
Buyer so long as Seller is not placed in a less advantageous position, receives
the full purchase price in cash subject to Paragraph 11(b) and Buyer pays all of
Seller's expenses, if any, related thereto.
26. PERSONAL LIABILITY. The Seller is a Massachusetts Limited
Partnership and all persons dealing with the Limited Partnership, including the
Buyer, must look solely to the property of the Limited Partnership and to the
General Partner for the enforcement of any claims against the Limited
Partnership. No limited partner, shareholder, director, employee, agent, parent,
or officer of the Seller shall be liable for any obligation, express or implied,
under this Agreement except as set forth in Section 9 with respect to the
General Partner and Limited Partners of Seller and certain other parties. The
preceding two sentences shall be inserted, or deemed inserted at Seller's
election, in every document and agreement executed and/or delivered by Seller
pursuant hereto. MGI Properties is a Massachusetts business trust and all
persons dealing with the Trust, including without limitation, the Seller, must
look solely to the property of the Trust for the enforcement of any claims
against the Trust. Neither the trustees, officers, agents nor shareholders of
the Trust assume any personal liability in connection with its business or
assume any personal liability for obligations entered into on its behalf. The
preceding two sentences shall be inserted, or deemed inserted at Buyer's
election, in every document and agreement executed and/or delivered by Buyer
pursuant hereto. The foregoing provisions of this Paragraph 26 shall survive the
Closing Date, the delivery of the deed, and any termination of this Agreement.
27. SEC RULES. Seller agrees to cooperate with Buyer at no cost to
Seller in any audit which may be required to be conducted by Buyer's accountants
in connection with Buyer's compliance with SEC Rules. The provisions of this
Paragraph 27 shall survive the delivery and recording of the Deed.
21
<PAGE>
SELLER:
TWO PORTLAND SQUARE LIMITED
PARTNERSHIP, a Massachusetts Limited
Partnership
By: Two Portland International Limited
its General Partner, a Canadian
corporation
Witness: /s/ John Morrow By: /s/ Frank C. Sobey
Frank C. Sobey, Vice President
BUYER:
MGI PROPERTIES
Witness: /s/ Diane J. Soucy By: /s/ Kev Welles
Its: JUP
ESCROW AGENT:
ATLANTIC TITLE COMPANY
Witness: /s/ Wendy Lee Dyer By: /s/ Samuel H. Merrill
Its: Staff Counsel
AS TO PARAGRAPH 9 ONLY:
GENERAL PARTNER:
TWO PORTLAND INTERNATIONAL
LIMITED, a Massachusetts corporation
Witness: /s/ John Morrow By: /s/ Frank C. Sobey
Frank C. Sobey, Vice President
22
<PAGE>
LIMITED PARTNERS:
NORTHLAND REALTY CORPORATION
Witness: /s/ Alyssa Jermyn By: /s/ Jeremy Hubball
Jeremy Hubball, President
INTERNATIONAL PROPERTIES
LIMITED PARTNERSHIP
By: International Properties, Ltd.
Witness: /s/ John Morrow By: /s/ Frank C. Sobey
Frank C. Sobey, Vice President
J.B. BROWN & SONS, a _______________
Witness: /s/ Dawn E. Smith By: /s/ Charles E. Prinn III
Charles E. Prinn III, President
NORTHLAND INVESTMENT
CORPORATION
Witness: /s/ Alyssa Jermyn By: /s/ Joseph R. Ryan
Joseph R. Ryan, E.V.P.
w:\p&s.agr\2port\mgi2ps.6
23
<PAGE>
EXHIBIT A
DESCRIPTION OF PREMISES
TWO PORTLAND SQUARE
A certain lot or parcel of land with any buildings thereon situated at the
intersection of Fore Street and Union Street in the City of Portland, County of
Cumberland, and State of Maine, being Lot 2 on Plan for Two Portland Square
Subdivision by Stevens Morton Rose & Thompson dated October 22, 1987, revised to
September 18, 1989 and recorded in Cumberland County Registry of Deeds in Plan
Book 182, Page 29.
Meaning and intending to convey and hereby conveying the property conveyed to
Two Portland Square Limited Partnership by Portland Square Limited Partnership
dated January 31, 1995 and recorded in Cumberland County Registry of Deeds in
Book _____, Page _____.
<PAGE>
EXHIBIT B
LIST OF ENCUMBRANCES
TWO PORTLAND SQUARE
1. Liens for taxes and assessments for fiscal year 1996 and subsequent
years not yet due and payable.
2. Matters disclosed on survey entitled ALTA/ACSM Land Title Survey on
Fore Street, Portland, Maine made for Portland Square Limited
Partnership dated February 21, 1996 prepared by Owen Haskell, Inc. and
accompanying surveyor's report dated February 23, 1996 and executed by
John R. Cyr.
3. Terms and conditions of Memorandum of Rights, Options, Restrictions by
and between Portland Square Limited Partnership and Verrill & Dana
dated October 30, 1987 and recorded in the Cumberland County Registry
of Deeds in Book 8045, Page 277, as affected by letter dated August 24,
1989 from Portland Square Limited Partnership and signed by Mark A.
Massey to Mr. Chris Coggeshall and "Approved" by said Christopher J.W.
Coggeshall, not recorded. Paragraph 16(b) set forth in said Memorandum
restricts and affects the insured land so long as the events set forth
in the first nine lines and references therein of paragraph 16 which
determine the duration do not occur. Violation of said restrictions
will not cause forfeiture of title.
4. Lease between Portland Square Limited Partnership and UNUM Life
Insurance Company, a Memorandum of which is dated December 15, 1989 and
recorded in the Cumberland County Registry of Deeds in Book 9028, Page
180.
5. Lease between Portland Square Limited Partnership and The Aetna
Casualty and Surety Company, a Memorandum of which is dated December
15, 1989 and recorded in the Cumberland County Registry of Deeds in
Book 9028, Page 180.
6. Easement Deed from Portland Square Limited Partnership to Central Maine
Power Company dated February 28, 1990 and recorded in the Cumberland
County Registry of Deeds in Book 9107, Page 251.
7. Department of Environmental Protection Site Location of Development
Modification Findings of Fact and Order for Portland Square Limited
Partnership dated November 30, 1990 and recorded in the Cumberland
County Registry of Deeds in Book 9418, Page 59.
8. Lease Agreement dated July 16, 1992 by and between Portland Square
Limited Partnership and Forum Financial Services, Inc., a memorandum of
which is recorded in Cumberland County Registry of Deeds in Book 10188,
Page 32.
9. Terms and conditions and rights and easements as set forth in Easement
Deed from Two Portland Square Limited Partnership to Portland Square
Limited Partnership dated June 26, 1995, recorded in the Cumberland
County Registry of Deeds in Book 11983, Page 192.
<PAGE>
EXHIBIT C
ASSIGNMENT OF SERVICE AGREEMENTS
FOR VALUE RECEIVED, TWO PORTLAND SQUARE LIMITED PARTNERSHIP,
a Massachusetts limited partnership having its principal place of business at
c/o Two Portland International Limited, 115 King Street, Stellarton, Nova Scotia
BOK1S0 (hereinafter referred to as "Assignor"), hereby assigns, transfers,
conveys and sets over unto MGI PROPERTIES, a Massachusetts business trust
(hereinafter referred to as "Assignee"), without recourse to Assignor in any
event or for any reason whatsoever and without any warranties herein, express or
implied, in law or otherwise except as set forth in the Purchase and Sale
Agreement described below, all of Assignor's rights, title and interest in, to
and under all of the service agreements relating to the Property conveyed this
day from Assignor to Assignee pursuant to a Purchase and Sale Agreement between
them and listed on Exhibit C-1 hereto.
Assignee hereby accepts such assignment and assumes and agrees to
perform, observe and comply with all of Assignor's obligations under such
service agreements first accruing on or after the date hereof. Assignee hereby
indemnifies and agrees to save and hold Assignor free and harmless from any
liability under any of said service agreements for the performance or observance
of any obligations of the Assignor thereunder first accruing on or after the
date hereof. Assignor hereby indemnifies and agrees to save and hold Assignor
free and harmless from any liability under any of said service agreements for
the performance or observance of any obligations of the Assignor which accrued
or should have accrued prior to the date hereof.
This Agreement shall not in any way modify the warranties of Assignor
contained in a Purchase and Sale Agreement between Assignor and Assignee dated
April ____, 1996.
This Assignment shall be binding upon and inure to the benefit of the
respective executors, administrators, heirs, successors and assigns of Assignor
and Assignee.
IN WITNESS WHEREOF, Assignor and Assignee have executed this instrument
under seal as of ____________, 1996.
ASSIGNOR: TWO PORTLAND SQUARE LIMITED PARTNERSHIP
By: Two Portland International Limited,
its General Partner
By: ___________________________________
Frank Sobey, Vice President
ASSIGNEE: MGI PROPERTIES
By: ___________________________________
<PAGE>
EXHIBIT C-1
LIST OF SERVICE CONTRACTS
Date Vendor Service Period
12/07/95 Simplex Time Recorder Fire Alarm 01/01/96 - 01/01/97(b)
N/D Northeast Elevator Elevator Maintenance 02/01/94 - 02/01/97(a)
01/31/96 McQuay Service HVAC Maintenance 01/01/96 - 12/31/00(b)
10/30/92 Johnson Controls HVAC Maintenance 11/01/92 - 10/31/96(b)
08/01/95 Clean Sweep Cleaning 08/01/95 - 02/28/97(c)
12/01/94 Northland
Management Corp. Management/Leasing Automatically renews
(a) Self-renewing from year-to-year thereafter unless 90 days' cancellation
notice is given.
(b) Self-renewing from year to year thereafter unless 30 days' cancellation
notice is given.
(c) Mutual right to cancel at any time upon 30 day's prior written notice.
<PAGE>
EXHIBIT D
ASSIGNMENT OF PERMITS, APPROVALS AND LICENSES
FOR VALUE RECEIVED, TWO PORTLAND SQUARE LIMITED PARTNERSHIP,
a Massachusetts limited partnership having its principal place of business at
c/o Northland Investment Corporation, 2150 Washington Street, Newton,
Massachusetts 02162 (hereinafter referred to as "Assignor"), hereby assigns,
transfers, conveys and sets over unto MGI Properties, a Massachusetts business
trust (hereinafter referred to as "Assignee"), without recourse except as
provided herein to Assignor in any event or for any reason whatsoever and
without any warranties herein, express or implied, in law or otherwise except as
set forth in the Purchase and Sale Agreement described below, all of Assignor's
rights, title and interest in, to and under all of the permits, approvals and
licenses relating to the Property conveyed this day from Assignor to Assignee
pursuant to a Purchase and Sale Agreement between them and listed on Schedule A
hereto.
Assignee hereby accepts such assignment and assumes and agrees to
perform, observe and comply with all of Assignor's obligations under such
permits, approvals and licenses first accruing on or after the date hereof.
Assignee hereby indemnifies and agrees to save and hold Assignor free and
harmless from any liability under any of said permits, approvals and licenses
for the performance or observance of any obligations of the Assignor thereunder
first accruing on or after the date hereof. Assignor hereby indemnifies and
agrees to save and hold Assignor free and harmless from any liability under any
of said permits, approvals and licenses for the performance or observance of any
obligations of the Assignor which occurred or should have accrued or which
accrued prior to the date hereof.
This Agreement shall not in any way modify the warranties of Assignor
contained in a Purchase and Sale Agreement between Assignor and Assignee dated
April ____, 1996
This Assignment shall be binding upon and inure to the benefit of the
respective executors, administrators, heirs, successors and assigns of Assignor
and Assignee.
IN WITNESS WHEREOF, Assignor and Assignee have executed this instrument
under seal as of ___________, 1996.
ASSIGNOR: TWO PORTLAND SQUARE LIMITED PARTNERSHIP
By: Two Portland International Limited, its General Partner
By: ___________________________________________
Frank Sobey, Vice President
ASSIGNEE: MGI PROPERTIES
By: ___________________________________________
<PAGE>
EXHIBIT E
ASSIGNMENT, ACCEPTANCE AND ASSUMPTION
OF LEASES, GUARANTIES, TENANCIES AND OCCUPANCIES
FOR VALUE RECEIVED, TWO PORTLAND SQUARE LIMITED PARTNERSHIP,
a Massachusetts limited partnership having its principal place of business at
c/o Two Portland International Limited, 115 King Street, Stellarton, Nova Scotia
BOK1S0 (hereinafter referred to as "Assignor"), hereby assigns, transfers,
conveys and sets over until MGI PROPERTIES, a Massachusetts business trust
(hereinafter referred to as "Assignee"), without recourse and without any
warranties herein, express or implied, in law or otherwise except as provided in
the Purchase and Sale Agreement described below, all of the right, title and
interest of Assignor, as lessor in, to and under all of the leases, guaranties,
tenancies and occupancies described in the Schedule attached hereto pertaining
to the premises at Two Portland Square, Portland, Maine.
TOGETHER with the appurtenances and all the estate and rights of
Assignor in, to and under said leases, guaranties, tenancies and occupancies.
TO HAVE AND TO HOLD the same until Assignee, its executors,
administrators, heirs, successors and assigns, for the rest of the term of said
leases, guaranties, tenancies and occupancies and subject to the terms,
covenants and conditions and provisions thereof.
Assignee hereby accepts such assignment and agrees to keep, observe and
perform all of Assignor's obligations under said leases, guaranties, tenancies
and occupancies first accruing after the date hereof. Assignee hereby
indemnifies and agrees to hold Assignor free and harmless from any liability,
cost or expense under said leases, guaranties, tenancies and occupancies for the
performance or observance of any obligations of the lessor thereunder first
accruing on or after the date hereof. Assignor hereby indemnifies and agrees to
hold Assignor free and harmless from any liability, costs or expense under said
leases, guaranties, tenancies and occupancies for the purpose or observance of
any obligations of the lessor thereunder which accrued or should have accrued
prior to the date hereof.
This Agreement shall not in any way modify the warranties contained in
a Purchase and Sale Agreement between Assignor and Assignee dated as of April
_____, 1996.
This Agreement shall be binding upon and inure to the benefit of the
respective executors, administrators, heirs, successors and assigns of Assignor
and Assignee.
<PAGE>
IN WITNESS WHEREOF, Assignor and Assignee have executed this Agreement
under seal as of ________________, 19___.
ASSIGNOR: TWO PORTLAND SQUARE LIMITED PARTNERSHIP
By: Two Portland International Limited,
its General Partner
By: _________________________________
Frank Sobey, Vice President
ASSIGNEE: MGI PROPERTIES
By: ___________________________________
<PAGE>
SCHEDULE TO EXHIBIT E
The Aetna Casualty and Surety Co.
A.G. Edwards & Sons
Airborne Express
Aquarius Travel, Inc.
Carla Maddrell
Commercial Union Insurance Co.
Forum Financial Services, Inc.
Janat Anwer & Salim Darwesh
Kirsten Scarcelli Company
Medical Network, Inc.
Mobile Imaging Consortium
Prudential Insurance Company
The Stork Club, Inc.
Sudan, Inc.
Timothy & William O'Brien
TKG, Inc.
Unum Life Insurance Company
<PAGE>
EXHIBIT F
LIST OF LEASES
The Aetna Casualty and Surety Co.
A.G. Edwards & Sons
Airborne Express
Aquarius Travel, Inc.
Carla Maddrell
Commercial Union Insurance Co.
Forum Financial Services, Inc.
Janat Anwer & Salim Darwesh
Kirsten Scarcelli Company
Medical Network, Inc.
Mobile Imaging Consortium
Prudential Insurance Company
The Stork Club, Inc.
Sudan, Inc.
Timothy & William O'Brien
TKG, Inc.
Unum Life Insurance Company
<PAGE>
EXHIBIT G
WARRANTY BILL OF SALE AND ASSIGNMENT
KNOW ALL MEN BY THESE PRESENTS that TWO PORTLAND SQUARE LIMITED
PARTNERSHIP, a Massachusetts limited partnership, having a place of business at
c/o Two Portland International Limited, 115 King Street, Stellarton, Nova Scotia
BOK1S0 for consideration paid by MGI PROPERTIES, a Massachusetts business trust,
the receipt of which is hereby acknowledged, does hereby grant, sell, transfer,
assign and deliver unto the said MGI Properties the following goods, chattels
and intangible personal property.
1. The property listed on Schedule A hereto.
2. All other apparatus, fixtures and articles owned by the
undersigned attached to or used or procured for use in
connection with the operation and maintenance of any building,
structure or other improvements located on the property at Two
Portland Square, Portland, Maine (the "Premises") except
apparatus, fixtures or articles or personal property belonging
to lessees or other occupants of the Premises.
3. The right, if any, to use the trade name "Two Portland Square"
and documents of title and business records pertaining to the
Premises.
TO HAVE AND TO HOLD all and singular the said goods, chattels and
intangible personal property to the said MGI Properties and its successors and
assigns, to their use and behoof forever.
AND Two Portland Square Limited Partnership hereby covenants with the
grantee that it is the lawful owner of the said goods, chattels and intangible
personal property; that they are free of all encumbrances; that it has good
right to sell the same as aforesaid; and that it will WARRANT and DEFEND the
same against the lawful claims and demands of all persons forever. The property
transferred by this Warranty Bill of Sale and Assignment is transferred AS IS,
WHERE IS.
IN WITNESS WHEREOF, Two Portland Square Limited Partnership has caused
this instrument to be executed under seal as of _________, 1996.
TWO PORTLAND SQUARE LIMITED PARTNERSHIP
By: Two Portland International Limited
its General Partner
By: __________________________________________
Frank Sobey, Vice President
<PAGE>
SCHEDULE A
TO EXHIBIT G
PERSONAL PROPERTY
SHARED AMONG ONE PORTLAND SQUARE AND TWO PORTLAND SQUARE
1 IBM computer for HVAC (386)
1 Worktable and chair
1 JC8500 HVAC control system
1 Schlage proximity access card system
1 2-drawer filing cabinet
LOCATED IN MAINTENANCE SHOP
4 Maintenance desks with chairs
Metal shelving
Uniform lockers
Misc. hardware (door handles, hinges, bolts, closures)
Misc. plumbing supplies (diagrams, plungers, valves)
Misc. electrical supplies (junction boxes, batteries, wiring, connectors)
Misc. paint supplies (paints, brushes, scrapers, rollers, caulking)
Misc. tools (pliers, wrenches, drivers, clamps, levels, hammers, mallets,
vice grips, saws)
1 Sump pump
1 Shop vacuum (12 gallon)
2 Desk movers
1 Moving dolly
1 Key machine
1 10" drill press
2 Makita cordless drills
1 Tool box
Various landscape materials (rakes, shovels, brooms, hoses, trash cans)
1 Small microwave
1 Small refrigerator
Misc. fans (desk type, floor model)
1 Answering machine
3 Telephones
Bulletin boards
TWO PORTLAND SQUARE
1 Security video recorder with 5 cameras
1 Garage sweeper
1 Large flammable liquid storage cabinet
1 Message board Supply shelving
1 12 foot ladder
<PAGE>
1 6 foot ladder
6 handheld fire extinguishers
1 Pallet of ice melt (45 bags)
5 Brass elevator doors (leftover from construction)
Various lightbulbs (purchased monthly)
Air handler filters
Various algaecides and pump for cooling towers
Janitorial supplies (paper products, etc.) purchased monthly
UNITS 1-6, ONE PORTLAND SQUARE
4 Hand held fire extinguishers
Various lightbulbs (purchased monthly)
Janitorial supplies (paper products, etc.)
PARKING LOTS
1 Sweda cash register
2 Cintac parking control computers
2 Printers
INTANGIBLE PROPERTY
All permits, licenses, certificates, variances, consents and approvals, plans,
specifications, warranties and guaranties, fixtures owned by Seller, advertising
and leasing brochures, tradenames, trademarks, development rights, if any, and
other intangible property pertaining to the Building and its use and operation.
<PAGE>
EXHIBIT G-1
PERSONAL PROPERTY WHICH BELONGS TO OTHERS
AND IS NOT INCLUDED IN SALE
CONDOMINIUM ASSOCIATION:
1 Security video recorder with four (4) cameras
2 6 foot ladders
1 3 foot ladder
1 8 foot ladder
1 Powered lift
1 Hand cart
1 Message board
Supply shelving
1 Small flammable liquid storage cabinet
Various light bulbs (purchased monthly)
Air handler filters
1 Pallet of ice melt (45 bags)
Various algaecides and pump for cooling towers
Small amount of janitorial supplies (trash bags, cleaners)
MANAGEMENT COMPANY:
1 Turo snowblower
<PAGE>
EXHIBIT H
ACORD. CERTIFICATE OF INSURANCE CSR JM DATE (MM/DD/YY)
NORTH-4 04/03/96
PRODUCER THIS CERTIFICATE IS ISSUED AS A MATTER
Rodman Insurance Agency, Inc OF INFORMATION ONLY AND CONFERS NO
75 Wells Ave RIGHTS UPON THE CERTIFICATE HOLDER.
Newton MA 02159 THIS CERTIFICATE DOES NOT AMEND, EXTEND
OR ALTER THE COVERAGE AFFORDED BY THE
Philip Nyman POLICIES BELOW.
617-527-3000
COMPANIES AFFORDING COVERAGE
COMPANY
A Federal Insurance Company
INSURED
Portland Square Limited COMPANY
Partnership et al B
See Attached Listing
c/o Northland Realty Corp. COMPANY
2150 Washington Street C
Newton MA 02162
COMPANY
D
- --------------------------------------------------------------------------------
COVERAGES
THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN
ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED.
NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER
DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN,
THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE
TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN
REDUCED BY PAID CLAIMS.
- ------------------------------------------------------------------------------
POLICY POLICY
EFFECTIVE EXPIRATION
CO TYPE OF POLICY DATE DATE
LTR INSURANCE NUMBER (MM/DD/YY) (MM/DD/YY) LIMITS
GENERAL GENERAL AGGREGATE $
LIABILITY PRODUCTS-
[ ] COMMERCIAL COMPROP AGG $
GENERAL PERSONAL &
LIABILITY ADV INJURY $
[ ] CLAIMS MADE EACH OCCURRENCE $
[ ] OCCUR FIRE DAMAGE
[ ] OWNER'S (Any one fire) $
CONTRACTOR'S MED EXP
PROT (Any one person) $
[ ] ______________
- ------------------------------------------------------------------------------
AUTOMOTIVE COMBINED
LIABILITY SINGLE LIMIT $
[ ] ANY AUTO BODILY INJURY $
[ ] ALL OWNED AUTOS (Per person)
[ ] SCHEDULED AUTOS BODILY INJURY $
[ ] HIRED AUTOS (Per accident) $
[ ] NON-OWNED AUTOS PROPERTY DAMAGE $
[ ] ______________
- ------------------------------------------------------------------------------
GARAGE LIABILITY AUTO ONLY-
[ ] ANY AUTO EACH ACCIDENT $
[ ] ______________ OTHER THAN
AUTO ONLY $
EACH ACCIDENT $
AGGREGATE $
- ------------------------------------------------------------------------------
EXCESS LIABILITY
A [X] UMBRELLA FORM TBD 03/01/96 03/01/97 EACH OCCURRENCE $20000000
OTHER THAN AGGREGATE $20000000
[ ] UMBRELLA FORM ______________ $
- --------------------------------------------------------------------------------
WORKERS COMPENSATION STATUTORY LIMITS
AND EMPLOYERS' EACH ACCIDENT $
LIABILITY DISEASE-
POLICY LIMIT $
THE PROPRIETOR/ [ ] INCL DISEASE-EACH
PARTNER/ [ ] EXCL EMPLOYEE $
EXECUTIVE
OFFICERS ARE:
- --------------------------------------------------------------------------------
OTHER
- --------------------------------------------------------------------------------
DESCRIPTION OF OPERATIONS/LOCATIONS/VEHICLES/SPECIAL ITEMS
The above Umbrella Coverage extends to One Portland Square, Two Portland
Square, and the Upper and Lower Parking Lots located at the Portland Square
Properties in Portland, Maine.
- --------------------------------------------------------------------------------
CERTIFICATE HOLDER CANCELLATION
PORTL-1 SHOULD ANY OF THE ABOVE DESCRIBED
Portland Square Ltd Part et al POLICIES BE CANCELLED BEFORE THE
See attached listing EXPIRATION DATE THERETO, THE ISSUING
c/o Northland Realty Corp COMPANY WILL ENDEAVOR TO MAIL 30 DAYS
2150 Washington Street WRITTEN NOTICE TO THE CERTIFICATE
Newton Ma 02162 HOLDER NAMED TO THE POLICY BUT FAILURE
TO MAIL SUCH NOTICE SHALL IMPOSE NO
ACORD 25-S (3/93) OBLIGATION OR LIABILITY OF ANY KIND
UPON THE COMPANY, ITS AGENTS OR
REPRESENTATIVES
AUTHORIZED REPRESENTATIVE
/s/ Philip Nyman
(C) ACORD CORPORATION 1993
<PAGE>
EXHIBIT I
ACTIONS AGAINST SELLER
NONE
<PAGE>
EXHIBIT J
CLAIMS INVOLVING CONSTRUCTION OF THE PREMISES
Claims against Turner Construction regarding window seal failure. Buyer
acknowledges disclosure by Seller of the failure of the insulated glass units at
Two Portland Square. The issue surrounds the installation of faulty window lites
which were assembled by installing an aluminum spacer between the two plates of
glass and sealing the edge with a single seal of butyl sealant. As the seals
failed, the window lites become fogged and basically inoperable. The window
manufacturer, EFCO, has provided 225 replacement windows and has offered to pay
$14,000 towards labor cost. The cost to replace the 225 windows was in excess of
$40,000 and the total number of windows that were manufactured using the single
butyl sealant number 700. Seller is currently in negotiations with Turner
Construction and EFCO to resolve this matter.
<PAGE>
EXHIBIT K
NORTHLAND CORP
RENT ROLL II
****************************** INSERT EXHIBIT K HERE ***********************
<PAGE>
EXHIBIT L
COMMISSIONS DUE FROM SELLER/BUYER/OTHER PARTY
NONE
<PAGE>
SCHEDULE A TO EXHIBIT L
NORTHLAND CORP
LEASE EXP/OPT REPORT (LEASEEXP)
********************* INSERT SCHEDULE A TO EXHIBIT L HERE ******************
<PAGE>
EXHIBIT M
ASSIGNMENT OF RIGHTS IN AND TO THE
MEMORANDUM OF RIGHTS, OPTIONS & RESTRICTIONS
FOR VALUE RECEIVED, TWO PORTLAND SQUARE LIMITED PARTNERSHIP,
a Massachusetts limited partnership having its principal place of business at
c/o Two Portland International Limited, 115 King Street, Stellarton, Nova Scotia
BOK1S0 (hereinafter referred to as "Assignor"), hereby assigns, transfers,
conveys and sets over until MGI PROPERTIES, a Massachusetts business trust
(hereinafter referred to as "Assignee"), without recourse and without any
warranties herein except as set forth in the Purchase and Sale Agreement,
express or implied, in law or otherwise, all of the right, title and interest of
Assignor, as "Seller" in, to and under the Memorandum of Rights, Options and
Restrictions dated October 30, 1987 between it and Verrill & Dana recorded in
the Cumberland County Registry of Deeds in Book 8045, Page 277 (the
"Memorandum").
Assignee hereby accepts such assignment and agrees to keep, observe and
perform all of Assignor's obligations as "Seller" under said Memorandum of
Rights, Options and Restrictions first accruing after the date hereof. Assignee
hereby indemnifies and agrees to hold Assignor free and harmless from any
liability under the Memorandum in connection with the performance or observance
of any obligations or failure to perform as the "Seller" by Assignee thereunder
first accruing on or after the date hereof. Assignor hereby indemnifies and
agrees to hold Assignee free and harmless from any liability under said
Memorandum in connection with the performance or observance of any obligations
or failure to perform as the "Seller" by Assignor thereunder which accrued or
should have accrued prior to the date hereof.
This Agreement shall not in any way modify the warranties contained in
a Purchase and Sale Agreement between Assignor and Assignee dated as of April
___, 1996.
This Agreement shall be binding upon and inure to the benefit of the
respective executors, administrators, heirs, successors and assigns of Assignor
and Assignee.
IN WITNESS WHEREOF, Assignor and Assignee have executed this Agreement
under seal as of ________________, 1996.
ASSIGNOR: TWO PORTLAND SQUARE LIMITED PARTNERSHIP
By: Two Portland International Limited, its General Partner
By: __________________________________________
Frank Sobey, Vice President
ASSIGNEE: MGI PROPERTIES
By: __________________________________________
