PURCHASE AND SALE AGREEMENT
(80 Eisenhower Drive — Westbrook, Maine)
This PURCHASE AND SALE AGREEMENT (this “Agreement”) is made and entered into as of the 17th day of January, 2006 (the “Effective Date”), by and among CW WESTBROOK LIMITED PARTNERSHIP, a Delaware limited partnership having an address of c/o S.R. Weiner and Associates, Inc., 1330 Boylston Street, Chestnut Hill, Massachusetts 02467, (“Seller”) and IDEXX LABORATORIES, INC., a Delaware corporation having an address of 80 Eisenhower Drive, Westbrook, Maine 04092 (“Buyer”).
In consideration of Ten Dollars ($10.00) and other good and valuable consideration, the receipt, sufficiency and delivery of which are hereby acknowledged, the parties hereto hereby agree as follows:
1. AGREEMENT TO PURCHASE AND SELL. Seller hereby agrees to sell, and Buyer hereby agrees to buy, subject to the terms and conditions of this Agreement, the following real and personal property (collectively, the “Property”):
1.1 the land, as more particularly described in Exhibit A attached hereto and made a part hereof, together with all mineral and water rights, easements, rights, rights of way, privileges and benefits appurtenant thereto (the “Land”), and all buildings and improvements thereon (the “Improvements”). The Land and the Improvements are collectively referred to as the “Real Property”;
1.2 all of Seller’s right, title and interest, if any, in and to all fixtures and equipment now used in connection with the operation of the Improvements and located therein including, without limiting the generality of the foregoing, any of the following: boilers, pumps, tanks, electric panel switchboards, lighting equipment and wiring, heating, plumbing, ventilating and air conditioning apparatus and equipment, elevators, escalators, and conveyors, and all other personal property owned by Seller and located at the Property (the “Personalty”);
1.3 all of Seller’s right, title and interest in and to all leases and occupancy agreements for any portion of the Real Property, including, without limitation, the Leases (as defined below), together with any and all guarantees, deposits and escrows and prepaid rents relating to or serving as security for the Leases and any files kept by Seller in connection with the Leases; provided, however, that with respect to the Sanmina Lease identified on Exhibit C, Seller shall assign its rights, in common with Seller such that both parties shall have the right to enforce such rights independently of the other, but Buyer shall not assume any obligations thereunder;
1.4 all of Seller’s right, title and interest, if any, in and to all intangible property used in connection with the foregoing, including, without limitation, all contract rights, licenses, permits, approvals, utility contracts, telephone exchange numbers, advertising materials, plan and specifications, drawings, surveys, governmental approvals and development rights and all warranties and guaranties (if any) issued to or held by Seller by any manufacturer, supplier, contractor, subcontractor or materialman in connection with the construction or installation of the Improvements or equipment or fixtures included as part of the Property or the maintenance of the Property;
1.5 the interests of Seller in and to any contracts relating to the operation, ownership, maintenance or management of the Real Property (“Service Contracts”) and listed on Exhibit E attached hereto, but only to the extent Buyer elects to assume any such contracts (each an “Assumed Contract”), which election shall be evidenced by written notice to Seller prior to the end of the Inspection Period. Any Service Contract not assumed by Buyer will be terminated by Seller as of the Closing. Notwithstanding the foregoing, the existing property management agreement between Seller and S.R. Weiner and Associates, Inc., if any, shall be terminated at Closing; and
1.6 all of Seller’s rights and interests in and to any easements affecting the Premises, including the right to receive any payments in connection therewith.
2. PURCHASE PRICE; ASSUMED LOAN.
2.1 The purchase price for the Property (the “Purchase Price”) shall be Eighteen Million Dollars ($18,000,000.00), subject to adjustment as hereinafter provided, minus the sum of (x) the outstanding principal balance of the Assumed Loan, and (y) unpaid interest thereon accrued through the “Closing Date” (as hereinafter defined), and (z) all other amounts then due and owing under the Assumed Loan. Subject to the terms and conditions of this Agreement, the Purchase Price shall be paid as follows:
|| 2.1.1 Within one (1) “Business Day” (as defined in Section 17.14 below) after the Effective Date, a cash deposit by wire transfer of immediately available funds in the amount of Six Hundred Thousand Dollars ($600,000.00) (together with any interest earned thereon, the “Deposit”) shall be paid by Buyer to Lawyers Title Insurance Corporation, as escrow agent (“Escrow Agent”), and the Deposit shall be held and paid in accordance with the terms of this Agreement. |
|| 2.1.2 The balance of the Purchase Price, subject to adjustments and prorations provided for in this Agreement, shall be paid by Buyer to Escrow Agent at the Closing (as hereinafter defined) by wire transfer of immediately available federal funds and Escrow Agent shall transfer such funds, together with the Deposit by wire transfer of immediately available funds to such account(s) as Seller may designate in writing. |
2.2 Escrow Agent is executing this Agreement to acknowledge Escrow Agent’s responsibilities hereunder. Any amendment to this Agreement that is not signed by Escrow Agent shall be effective as to the signatories thereto, but shall not be binding on Escrow Agent. Escrow Agent shall accept the Deposit with the understanding of the parties that Escrow Agent is not a party to this Agreement except to the extent of its specific responsibilities hereunder, and does not assume or have any liability for the performance or non-performance of Buyer or Seller hereunder to either of them and need not be joined in any amendment hereto, except to the extent any such amendment modifies Escrow Agent’s rights or obligations hereunder. Additional provisions with respect to the Escrow Agent are set forth in Section 16 below. If the Escrow Agent requires an additional agreement or provisions, the parties agree to negotiate such agreement or provisions in good faith.
2.3 Subject to the provisions of this Agreement, the Property will be conveyed subject to that certain loan (the “Assumed Loan”) in the original principal amount of Nine Million Five Hundred and no/100 Dollars ($9,500,000.00) as the same may have been modified, amended or extended, made by Sun Life Assurance Company of Canada (the “Lender”), which Assumed Loan is evidenced and secured by the documents listed on Exhibit B attached hereto (the “Assumed Loan Documents”). Prior to the Closing, Seller and Buyer shall use good faith efforts to obtain the approval of the Lender (and/or, if applicable, the loan servicer (“Servicer”)) to the transfer of the Property to Buyer subject to the Assumed Loan. Seller shall use good faith efforts to have the Lender include in such approval document such estoppel provisions pertaining to the Assumed Loan as Buyer shall reasonably request. All loan assumption fees and all other costs and fees and expenses (including legal fees) charged by the Lender shall be borne by Seller. Except as set forth in the preceding sentence, any and all costs and expenses incurred by Buyer in connection with the assumption of the Assumed Loan shall be paid by Buyer. Buyer agrees to cooperate in good faith and to provide, execute and deliver, as applicable, such documents and financial information to Lender or Servicer for review and approval prior to and in connection with the approval of Buyer’s assumption of the Assumed Loan as Lender and/or Servicer shall reasonably require, in form and substance reasonably acceptable to Buyer, but in no event on terms less favorable than set forth in the Assumed Loan Documents. If required by Lender or Servicer, Buyer shall form a “single purpose” subsidiary to acquire title to the Property and to assume the Assumed Loan. In no event shall Buyer be obligated to incur or assume any liability in excess of Seller’s current obligations under the Assumed Loan Documents. It shall be a condition to Buyer’s obligations hereunder, that the Assumed Loan Documents shall be amended to Buyer’s reasonable satisfaction to (a) accommodate the fact that Buyer is a publicly traded company and to make the obligations and restrictions thereunder consistent with the rights and obligations of Buyer as a publicly traded company; (b) to eliminate any restrictions on the transfer of stock of Buyer; (c) eliminate any requirements or obligations specific to Seller and not reasonably capable of being satisfied or performed by Buyer; and (d) address such other provisions as Buyer shall reasonably require. In addition, the Assumed Loan Documents shall be amended to provide for the Lender’s release of Seller and any guarantor or indemnitor of Seller’s obligations under the Assumed Loan Documents from any and all liability thereunder. At Closing, Seller shall assign to Buyer all of Seller’s rights to all escrow balances or reserves, if any, maintained by the Lender or Servicer in connection with the Assumed Loan, and Seller shall receive a credit from Buyer in the amount of such escrow balances or reserves, subject to confirmation from Lender or Servicer. Notwithstanding the foregoing, if Seller and Buyer have not obtained the Lender’s and Servicer’s approval to the assumption of the Assumed Loan by Buyer or its affiliate on or before the Closing Date (the “Lender’s Consent”), then the Closing Date shall automatically be extended for up to thirty (30) days to allow Seller to obtain such approval prior to the Closing. In the event approval for the assumption of the Assumed Loan is not obtained prior to the Closing Date (as such date may be extended as aforesaid), Seller or Buyer may terminate this Agreement by written notice given to the other on or before the Closing Date (as extended). If the Loan Documents are not amended as provided above to Buyer’s satisfaction, or if Seller is not able to secure from the lender estoppel provisions reasonably satisfactory to Buyer, Buyer may terminate this Agreement by written notice given to Seller on or before the Closing Date (as extended). Upon termination of this Agreement, as provided in either of the preceding two sentences, the Deposit shall be returned to Buyer and this Agreement shall terminate without further recourse to either party, except that those obligations that pursuant to the express terms hereof survive the termination of this Agreement shall remain in effect. Up to and including the Closing Date, Seller shall (x) continue to perform all obligations and to make all required payments in the manner and at the times specified in the Assumed Loan Documents; and (y) use its best efforts to prevent from occurring any event that with notice or the passage of time, or both, would constitute a default under the Assumed Loan Documents.
3. REPRESENTATIONS AND WARRANTIES OF SELLER.
3.1 Representations and Warranties. Seller represents and warrants to Buyer as follows as of the date hereof and as of the Closing:
|| 3.1.1 Authority. Seller is a limited partnership, duly organized, validly existing and in good standing under the laws of the State of Delaware, and has all requisite power and authority to enter into this Agreement and all documents now or hereafter to be executed and delivered by Seller pursuant to this Agreement (collectively, the “Seller’s Documents”) and to perform its obligations hereunder and under Seller’s Documents. |
|| 3.1.2 No Conflict; Due Authorization. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereunder on the part of Seller does not and will not conflict with the Partnership Agreement establishing Seller, and no consents or waivers of or by any third party are necessary to permit the consummation by Seller of the transactions contemplated by this Agreement, other than the consent of Lender or Servicer as provided in Section 2.3. This Agreement and all documents that are to be executed by Seller and delivered to Buyer at the Closing are, and at the Closing shall be, duly authorized, executed and delivered by Seller, and are, and at the Closing will be, legal, valid and binding obligations of Seller, enforceable in accordance with their terms, and, when executed, and also at the time of Closing, will not violate any provisions of any agreement or judicial order to which Seller is a party or to which Seller or the Property is subject. |
|| 3.1.3 Leases. There are no leases or occupancy agreements affecting the Property except for the Leases set forth on Exhibit C attached hereto (together, the “Leases”, and each individually, a “Lease”). Seller has paid in full all brokerage commissions and leasing fees connected with the Leases. Exhibit D sets forth a true and complete list of all security deposits (and all accrued interest thereon, if any) currently being held by Seller under the Leases, and whether held in cash, letter of credit or otherwise. As of the Closing Date, the term of the lease between Seller, as lessor, and PRECISmetals, Inc. (whose interest is now owned by Sanmina-SCI) as lessee, shall have expired. Seller shall remain responsible for, and hereby represents, covenants and agrees that it will pay, any and all amounts owed to the tenant under the Sanmina Lease, including without limitation the return of any security deposit, reconciliation of operating expenses, real estate taxes and prepaid rent. |
|| 3.1.4 Contracts. Seller has delivered to Buyer true and complete copies of all of the Service Contracts in effect with respect to the Property, a true, correct and complete list of which is attached hereto as Exhibit E. Seller represents and covenants that it shall be responsible for, and shall pay, all amounts due and owing under all Service Contracts not assumed by Buyer, and with respect to Assumed Contracts, all amounts due and owing to the extent that such amounts pertain to work performed or materials supplied prior to the Closing Date. |