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Title: |
Real Estate Purchase and Sale Agreement |
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Entities: |
GSI Lumonics Inc.; Gray Cary Ware & Freidenrich; Piper Rudnick |
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Date: |
2005 |
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Size: |
Preview shows 21KB of 134KB total |
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Price: |
$69 |
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ID: |
#993626 |
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REAL ESTATE PURCHASE AND SALE AGREEMENT
BETWEEN
GSI LUMONICS CORPORATION
(AS SELLER)
AND
STAG CAPITAL PARTNERS, LLC
(AS PURCHASER)
CONCERNING CERTAIN PROPERTY LOCATED AT
22300 HAGGERTY ROAD, FARMINGTON HILLS, MICHIGAN
<PAGE>
TABLE OF CONTENTS
PAGE
----
Schedules and Exhibits
Schedule 1.1 - Defined Terms
Schedule 3.1 - Deposit Escrow Provisions
Schedule 5.1 - Seller Deliveries
Schedule 5.8 Form of Required Amendment
Exhibit A - Land
Exhibit B - Form of Tenant Estoppel
Exhibit C - Lease Related Disclosures
Exhibit D - Exceptions to Seller Representations
Exhibit E - Form of Deed
Exhibit F - (Reserved)
Exhibit G - Form of Assignment and Assumption
Exhibit H - Form of Updated Representation Certificate
<PAGE>
REAL ESTATE PURCHASE AND SALE AGREEMENT
THIS REAL ESTATE PURCHASE AND SALE AGREEMENT (this "Agreement") is entered
into as of the Effective Date (defined below) by and between GSI Lumonics
Corporation, a Michigan Corporation (the "Seller"), and STAG Capital Partners,
LLC, a Massachusetts limited liability company (the "Purchaser"), and is joined
in by the Title Company (defined below) in accordance with Schedule 3.1.
In consideration of the mutual promises hereinafter set forth and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.1 DEFINITIONS. For purposes of this Agreement, capitalized terms
not otherwise defined herein have the meaning set forth in Schedule 1.1.
ARTICLE 2
AGREEMENT; PURCHASE PRICE; CLOSING DATE
SECTION 2.1. AGREEMENT TO SELL AND PURCHASE. Subject to the terms and
provisions hereof, Seller agrees to sell the Property to Purchaser, and
Purchaser agrees to purchase the Property from Seller. The Property is located
at 22300 Haggerty Road, Farmington Hills, Michigan.
SECTION 2.2. PURCHASE PRICE. The Purchase Price for the Property shall be
Six Million Five Hundred Fifteen Thousand Dollars ($6,515,000). Subject to the
adjustments and apportionments as hereinafter set forth, the Purchase Price
shall be paid on the Closing Date by wire transfer of immediately available
federal funds.
SECTION 2.3. CLOSING DATE. The transaction contemplated hereby shall close
on the Closing Date, subject to extension as provided herein.
ARTICLE 3
DEPOSIT
SECTION 3.1. DEPOSIT. No later than the third Business Day following the
Effective Date, Purchaser shall deposit Fifty Thousand Dollars ($50,000) with
the Title Company. No later than the third Business Day immediately following
the end of the Study Period, unless this Agreement terminates in accordance with
Section 5.2 below, Purchaser shall deposit an additional Fifty Thousand Dollars
($50,000) with the Title Company. All deposits made pursuant to this Section
3.1, together with all interest and earnings thereon, are referred to
collectively in this Agreement as the "Deposit." The Deposit shall be held in a
segregated account in accordance with the provisions of Schedule 3.1 hereto. The
Deposit shall be applied to the Purchase Price if the Closing occurs. If the
Closing does not occur or if this Agreement otherwise terminates, the Deposit
shall be disbursed as provided herein. Notwithstanding anything in this
Agreement to the contrary, One Hundred and No/100 Dollars ($100.00) of the
Deposit is delivered to the Title Company as "Independent Contract
Consideration", and the Deposit is reduced by
1
<PAGE>
the amount of the Independent Contract Consideration so delivered to Seller,
which amount has been bargained for and agreed to as consideration for Seller's
execution and delivery of this Agreement.
ARTICLE 4
TITLE AND SURVEY
SECTION 4.1. TITLE AND SURVEY. Promptly upon execution of this Agreement,
(a) Seller shall provide, or cause to be provided, Purchaser with a copy of the
most recent owner's title insurance policy or title commitment issued in
connection with the Real Property (and Purchaser acknowledges receipt of
Seller's title policy for the Real Property); and (b) Purchaser shall order a
title commitment or pro forma title policy (the "Title Commitment") and ALTA
survey of the Real Property (the "Survey"). Purchaser shall have until the Study
Period Notice Deadline to give Seller a written notice that sets forth any
objections that Purchaser has to title or survey matters affecting the Property
and disclosed on the Title Commitment or the Survey (the "Purchaser Title
Objections"). Seller shall use reasonable efforts to cure the Purchaser Title
Objections before the Closing Date. If, despite such reasonable efforts, Seller
is unable to cure the Purchaser Title Objections by the Closing Date, Purchaser
shall have the option (in its sole discretion) of either (y) accepting the title
as it then is or (z) terminating this Agreement, in which event the Deposit
shall immediately be returned to Purchaser, this Agreement shall terminate and
Purchaser and Seller shall have no further obligations or liabilities hereunder
other than Purchaser's obligations under Section 5.1(b)(iv), Section 5.2 and
Section 5.3. Notwithstanding anything in this Agreement to the contrary, all
Voluntary Liens will be satisfied by Seller on or prior to the Closing Date or,
if not so satisfied, shall be satisfied at Closing out of the proceeds otherwise
payable to Seller, and Purchaser shall have no obligation to give Seller any
notice of objection with respect to any Voluntary Liens.
ARTICLE 5
INSPECTION AND AUDIT
SECTION 5.1. DUE DILIGENCE MATERIALS; ACCESS.
(a) No later than June 13, 2005, Seller shall provide to Purchaser
complete copies of the documents and materials listed on Schedule 5.1, to the
extent that such documents are in Seller's possession or are reasonably
available to Seller.
(b) During the term of this Agreement, Purchaser, personally or through
its authorized agents or representatives, shall be entitled to interview the
Tenant and, upon no less than two (2) Business Days' advance notice to Seller,
to enter upon the Property during normal business hours, and shall have the
right to make such investigations, including appraisals, engineering studies,
soil tests, environmental studies, inquiry of governmental officials, and
underwriting analyses, as Purchaser deems necessary or advisable, subject to the
following limitations: (i) Purchaser shall give Seller written or telephonic
notice not less than two (2) Business Days before conducting any inspections on
the Property, and a representative of Seller and Tenant shall have the right to
be present when Purchaser or its representatives conducts its or their
investigations on the Property; (ii) neither Purchaser nor its representatives
shall materially interfere with the construction, use, occupancy or enjoyment of
the Property by the Seller or Tenant; (iii) neither Purchaser nor its agents
shall damage the Property or any portion thereof, except for any immaterial
damage caused by environmental or geotechnical tests, all of which shall
promptly be repaired by Purchaser; and (iv) Purchaser shall indemnify, hold
harmless and defend the Seller against all costs (including reasonable
attorneys' fees) and damage to the Property caused by the activities of
Purchaser or its agents under this paragraph, provided; however, that such
indemnity shall not include any costs or
2
<PAGE>
damages caused by (x) the acts of the Seller or its agents or representatives
(to the extent caused by the acts of Seller or its agents or representatives),
(y) any claims of diminution in the value of the Property as a consequence of
the results revealed by such tests and inspections (except in the event of a
breach by Purchaser of its obligations under Section 5.3) or (z) any
pre-existing condition of the Property (except to the extent such condition is
made worse by Purchaser). The foregoing indemnification obligation shall survive
the Closing or termination of this Agreement for a period of six (6) months.
SECTION 5.2. STUDY PERIOD. Purchaser shall have the period ending at 6:00
p.m. (local time in Boston, Massachusetts) on July 8, 2005 (the "Study Period"),
to physically inspect the Property, review economic data and market conditions,
underwrite the Tenant and review the Lease, conduct appraisals, make inquiry of
governmental officials, perform examinations of the physical condition of the
Improvements, examine the Real Property for the presence of Hazardous Materials,
and to otherwise conduct such due diligence and underwriting as Purchaser, in
its sole and absolute discretion, deems appropriate in accordance with Section
5.1(b) above. This Agreement shall terminate unless, before 6:00 p.m. on the
first business day following the end of the Study Period (the "Study Period
Notice Deadline"), Purchaser gives Seller written notice (the "Study Period
Notice") that Purchaser, in its absolute and unreviewable discretion, elects to
proceed with the purchase of the Property subject to and in accordance with the
terms of this Agreement. In addition, at any time before the Study Period Notice
Deadline, Purchaser may, in its absolute and unreviewable discretion, terminate
this Agreement by giving written notice thereof to Seller (the "Termination
Notice"). In the event that either: (a) Purchaser gives a Termination Notice
before the Study Period Notice Deadline, or (b) Purchaser does not give a
Termination Notice but fails to give the Study Period Notice before the Study
Period Notice Deadline, this Agreement shall automatically terminate, the
Deposit promptly shall be returned to Purchaser, and Seller and Purchaser shall
have no further obligations or liabilities to each other hereunder other than
Purchaser's obligations under Section 5.1(b)(iv), this Section 5.2 and Section
5.3. In the event of a termination of this Agreement for any reason, Purchaser
shall deliver to Seller originals or copies of all materials and documents in
Purchaser's possession relating to the Property and obtained by Purchaser during
its investigation of the Property.
SECTION 5.3. CONFIDENTIALITY. Purchaser shall use the Confidential
Information only for purposes of evaluating the Property in connection with its
potential purchase thereof in accordance with the terms of this Agreement (and,
if the Closing occurs, in connection with its ownership of the Property).
Notwithstanding the foregoing, Purchaser may disclose the Confidential
Information: (a) to its owners, legal counsel, accountants, lenders, potential
investors, regulatory authorities, or otherwise required by law, and other third
parties having a reason to review the Confidential Information in connection
with Purchaser's purchase of the Property; provided the Confidential Information
is kept confidential by such parties, (b) in connection with any legal
proceeding brought by Purchaser to enforce its rights under this Agreement; and
(c) to the extent that such disclosure is required by law or court order or by
discovery rules in any legal proceeding, provided that Purchaser first shall
provide written notice thereof to Seller. If this Agreement is terminated before
the Closing, Purchaser promptly shall return the Confidential Information to
Seller and shall not retain copies thereof. Except as otherwise provided in
Subsection (b) of this Section 5.3, the provisions of which shall apply to both
Seller and Purchaser for purposes of this sentence, neither Seller nor Purchaser
shall disclose this Agreement or make any public announcements concerning the
sale of the Property pursuant to this Agreement without first obtaining the
prior written consent of the other. In addition, and notwithstanding the
foregoing restrictions, Seller and Purchaser authorize each other and their
respective representatives to disclose, as necessary for the financing of the
purchase contemplated by this Agreement, the tax treatment and tax structure of
the transaction contemplated hereby and all related materials, including tax
analyses or opinions, relating to such tax treatment and tax structure. The
provisions of this paragraph shall survive the Closing or termination of this
Agreement.
3
<PAGE>
SECTION 5.4. TERMINATION OF CONTRACTS. No Contracts will be assigned to
Purchaser at Closing pursuant to this Agreement. Seller shall be responsible for
the termination of all Contracts prior to the Closing Date, and Purchaser shall
not have any liability under any of the Contracts. The provisions of this
Section 5.4 shall survive the Closing.
SECTION 5.5. COOPERATION. During the term of this Agreement, the Seller
shall direct its property manager, agents and employees to cooperate with the
reasonable requests of the Purchaser to obtain information concerning the
Property pursuant to the provisions of Section 5.1 and Section 5.3 above.
SECTION 5.6. NO ASSUMPTION OF EMPLOYEE CLAIMS. Purchaser and Seller agree
that Purchaser has not assumed and shall not assume any obligations to (or
regarding the employment of), any individuals previously or currently employed
by Seller in the management, ownership or operation of the Property. Purchaser
shall not assume, shall not take subject to and shall not be liable for, any
liabilities or obligations of any kind or nature, whether absolute, contingent,
accrued, known or unknown, to former or current employees of Seller (i) which
arise or accrue prior to the Closing including, without limitation, any
liabilities or obligations of Seller in connection with any employee benefit
plans or collective bargaining agreements, employment agreements or other
similar arrangement, any liabilities or obligations with respect to employment
arising under any federal, state or municipal statute or common law, or any
liabilities or obligations in respect of retiree health benefits, and (ii) with
respect to severance payments or other termination payments owing by Seller to
any of Seller's former or current employees (collectively, "Employee Claims").
Prior to the Closing Date Seller's employees shall vacate the Property. No
portion of any liability respecting the Employee Claims listed in clause (ii)
immediately above shall be passed through or charged to the Tenant by Seller.
The provisions of this paragraph shall survive the Closing.
SECTION 5.7. ACCESS DATE. Seller anticipates that the Access Date shall
occur before June 1, 2005 as required pursuant to Section 1.02 of the Lease. In
the event that the Access Date does not occur on or before June 1, 2005, then
Purchaser shall be entitled to terminate this Agreement by giving written notice
thereof to Seller no later than June 11, 2005, in which event the Deposit will
promptly be returned to Purchaser, Seller promptly shall reimburse Purchaser for
the actual, reasonable third party costs that Purchaser has incurred in
connection with this Agreement and Purchaser's due diligence hereunder
(including reasonable legal fees; provided, however, that the aggregate amount
of such third party costs shall not exceed Twenty Five Thousand Dollars
[$25,000]), and the parties shall have no further obligation to each other,
except Purchaser's obligations under Section 5.1(b)(iv), Section 5.2 and Section
5.3.
SECTION 5.8. REQUIRED AMENDMENT. On or before the expiration of the Study
Period, Seller and Tenant shall amend the Lease such that Section 14.8 thereof,
as it pertains to Tenant's right of first refusal under the Lease, is deleted
(such amendment, in the form attached as Schedule 5.8, being the "Required
Amendment", shall be the only amendment to the terms and provisions of the Lease
permitted pursuant to this Section 5.8). In the event that the Lease is not
amended as required by this Section 5.8 on or before the expiration of the Study
Period, then Purchaser shall be entitled to terminate this Agreement by giving
written notice thereof to Seller, in which event the Deposit will promptly be
returned to Purchaser, Seller promptly shall reimburse Purchaser for the actual,
reasonable third party costs that Purchaser has incurred prior to the expiration
of the Study Period in connection with this Agreement and the transaction
contemplated hereby (including reasonable legal fees; provided, however, that
the aggregate amount of such third party costs shall not exceed Twenty Five
Thousand Dollars [$25,000]), and the parties shall have no further obligation to
each other, except Purchaser's obligations under Section 5.1(b)(iv), Section 5.2
and Section 5.3.
4
<PAGE>
ARTICLE 6
CONDITIONS PRECEDENT, CASUALTY DAMAGE OR CONDEMNATION
SECTION 6.1. CONDITIONS PRECEDENT FAVORING PURCHASER. In addition to the
conditions precedent in favor of Purchaser set forth elsewhere in this
Agreement, Purchaser's obligations under this Agreement are subject to the
timely fulfillment of the conditions set forth in this Section 6.1 on or before
the Closing Date, or such earlier date as is set forth below. Each condition may
be waived in whole or in part only by written notice of such waiver from
Purchaser to Seller. Purchaser, by consummation of the Closing pursuant to this
Agreement, shall have waived the conditions precedent set forth in this Section
6.1 (provided, however, that any such waiver shall not in any way modify or
affect any other provision, condition, obligation, representation, warranty or
covenant set forth elsewhere in this Agreement).
(a) Seller shall have performed and complied in all material
respects with all of the terms of this Agreement to be performed and complied
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