EXHIBIT 10.13
STANDARD FORM
PURCHASE AND SALE AGREEMENT
This 20 day of December 1995
1. PARTIES BOSTON BIOMEDICA, INC.
AND MAILING
ADDRESSES herein after called the SELLER, agrees to SELL and DONALD M.
(fill in) LEONARD, TRUSTEE, LIVE OAK REALTY TRUST, u/d/t dated June 30, 1995
to be recorded at the Plymouth County Northern District Reg.
hereinafter called the BUYER or PURCHASER, agrees to BUY, upon the
terms hereinafter set forth, the following described premises:
2. DESCRIPTION 80 MANLEY STREET, WEST BRIDGEWATER, MA as per deed recorded at
(fill in and include Plymouth County Registry of Deeds at Book 8406, Page 180.
title reference)
3. BUILDINGS, Included in the sale as a part of said premises are the buildings,
STRUCTURES, structures, and improvements now thereon, and the fixtures
IMPROVEMENTS, belonging to the SELLER and used in connection therewith
FIXTURES including, if any, all wall-to-wall carpeting, drapery rods,
(fill in or delete) automatic garage door openers, venetian blinds, window shades,
screens, screen doors, storm windows and doors, awnings, shutters,
furnaces, heaters, heating equipment, stoves, ranges, oil and gas
burners and fixtures appurtenant thereto, hot water heaters,
plumbing and bathroom fixtures, garbage disposers, electric and
other lighting fixtures, mantels, outside television antennas,
fences, gates, trees, shrubs, plants, and ONLY IF BUILT IN,
refrigerators, air conditioning equipment, ventilators,
dishwashers, washing machines and dryers.
4. TITLE DEED Said premises are to be conveyed by a good and sufficient quitclaim deed running to the
(fill in) BUYER, or to the nominee designated by the BUYER by written notice to the SELLER at least
* Include here by specific seven days before the deed is to be delivered as herein provided, and said deed shall
reference any restric- convey a good and clear record and marketable title thereto, free from encumbrances,
tions, easements, rights except
and obligations in party (a) Provisions of existing building and zoning laws;
walls not included in (b), (c) Such taxes for the then current year as are not due and payable on the date
leases, municipal and of the delivery of such deed;
other liens, other encum- (d) Any liens for municipal betterments assessed after the date of this
brances, and make pro- agreement;
vision to protect (e) Easements, restrictions and reservations of record, if any, so long as the
SELLER against BUYER's same do not prohibit or materially interfere with the current use of said
breach of SELLER's premises;
covenants in leases
where necessary.
5. PLANS If said deed refers to a plan necessary to be recorded therewith
the SELLER shall deliver such plan with the deed in form adequate
for recording or registration.
6. REGISTERED
TITLE
7. PURCHASE PRICE The agreed purchase price for said premises is ONE HUNDRED THIRTY THOUSAND EIGHT HUNDRED
(fill in); space is (130,800.00) -----------dollars, of which
allowed to write
out the amounts $
if desired $
$
$
$130,800.00* TOTAL
*payment to be made as provided for in paragraph 35 of Rider
COPYRIGHT 1979 1984. 1986. 1987, 1988 [GRAPHIC OMITTED] All rights reserved This form may not be
GREATER BOSTON REAL ESTATE BOARD [Real Estate Logo] copied or reproduced in whole or in part
in any manner whatsoever without the prior express
written consent of the Greater Boston Real Estate
Board.
8. TIME FOR Such deed is to be delivered at 10:00 o'clock AM on the 27th day of December 1995* at the
PERFORMANCE; Office of Atty. Wayne Mathews or at Plymouth County Registry of Deeds at Brockton, MA.
DELIVERY OF It is agreed that time is of the essence of this agreement.
DEED (fill in) * or such sooner date as agreed to between the parties.
9. POSSESSION AND Full possession of said premises free of all tenants and occupants, except C.W.B.
CONDITION OF CONTRACTORS, INC. herein provided, is to be delivered at the time of the delivery of the
PREMISE deed, said premises to be then (a) in the same condition as they now are, reasonable use and
(attach a list of wear thereof excepted, and (b) not in violation of said building and zoning laws, and (c) in
exceptions, if any) compliance with provisions of any instrument referred to in clause 4 hereof. The BUYER shall
be entitled personally to inspect said premises prior to
the delivery of the deed in order to determine whether the
condition thereof complies with the terms of this clause.
10. EXTENSION TO If the SELLER shall be unable to give title or to make conveyance, or to deliver possession
PERFECT TITLE of the premises, all as herein stipulated, or if at the time of the delivery of the deed the
OR MAKE PREMISES premises do not conform with the provisions hereof, then the SELLER shall use reasonable
CONFORM efforts to remove any defects in title, or to deliver possession as provided herein, or to
(Change period of make the said premises conform to the provisions hereof, as the case may be, in which event
time if desired) the SELLER shall give written notice thereof to the BUYER at or before the time for
performance hereunder, and thereupon the time for performance hereof shall be
extended for a period of thirty days.
11. FAILURE TO If at the expiration of the extended time the SELLER shall have failed so to remove any
PERFECT TITLE defect in title, deliver possession, or make the premises conform, as the case may be, all as
OR MAKE herein agreed, or if at any time during the period of this agreement or any extension
PREMISES thereof, the holder of a mortgage on said premises shall refuse to permit the insurance
CONFORM, etc. proceeds, if any, to be used for such purposes, then any payments made under this agreement
shall be forthwith refunded and all other obligations of the
parties hereto shall cease and this agreement shall be void
without recourse to the parties hereto.
12. BUYER's The BUYER shall have the election, at either the original or any
ELECTION TO extended time for performance, to accept such title as the SELLER
ACCEPT TITLE can deliver to the said premises in their then condition and to
pay therefore the purchase price without deduction, in which case
the SELLER shall convey such title, except that in the event of
such conveyance in accord with the provisions of this clause, if
the said premises shall have been damaged by fire or casualty
insured against, then the SELLER shall, unless the SELLER has
previously restored the premises to their former condition, either
(a) pay over or assign to the BUYER, on delivery of the deed, all
amounts recovered or recoverable on account of such insurance,
less any amounts reasonably expended by the SELLER for any partial
restoration, or
(b) if a holder of a mortgage on said premises shall not permit
the insurance proceeds or a part thereof to be used to restore the
said premises to their former condition or to be so paid over or
assigned, give to the BUYER a credit against the purchase price,
on delivery of the deed, equal to said amounts so recovered or
recoverable and retained by the holder of the said mortgage less
any amounts reasonably expended by the SELLER for any partial
restoration.
13. ACCEPTANCE The acceptance of a deed by the BUYER or his nominee as the case
OF DEED may be, shall be deemed to be a full performance and discharge of
every agreement and obligation herein contained or expressed,
except such as are, by the terms hereof, to be performed after the
delivery of said deed.
14. USE OF To enable the SELLER to make conveyance as herein provided, the
MONEY TO SELLER may, at the time of delivery of the deed, use the purchase
CLEAR TITLE money or any portion thereof to clear the title of any or all
encumbrances or interests, provided that all instruments so
procured are recorded simultaneously with the delivery of said
deed, or reasonably satisfactory arrangements are made for
subsequent record.
15. INSURANCE Until the delivery of the deed, the SELLER shall maintain insurance on said premises as
Insert amount follows:
(list additional Type of Insurance Amount of Coverage
types of insurance
and amounts as (a) Fire and Extended Coverage $ as currently insured
agreed) (b)
16. ADJUSTMENTS water charges, and taxes for the then current fiscal
(list operating ex- year, shall be apportioned and fuel value shall be adjusted, as of
penses, if any, or the day of performance of this agreement and the net amount
attach schedule) thereof shall be added to or deducted from, as the case may be,
the purchase price payable by the BUYER at the time of delivery of
the deed. Uncollected rents for the current rental period shall be
apportioned if and when collected by either party.
17. ADJUSTMENT If the amount of said taxes is not known at the time of the
OF UNASSESSED delivery of the deed, they shall be apportioned on the basis of
AND the taxes assessed for the preceding fiscal year, with a
ABATED TAXES reapportionment as soon as the new tax rate and valuation can be
ascertained; and, if the taxes which are to be apportioned shall
thereafter be reduced by abatement, the amount of such abatement,
less the reasonable cost of obtaining the same, shall be
apportioned between the parties, provided that neither party shall
be obligated to institute or prosecute proceedings for an
abatement unless herein otherwise agreed.
18. BROKER's FEE THE PARTIES REPRESENT THAT NO BROKERAGE COMMISSION IS DUE UNDER THIS
(fill in fee with AGREEMENT
dollar amount or
percentage; also
name of Brokerage
firm(s))
19. BROKER(S)
WARRANTY
(fill in name)
21. BUYER's If the BUYER shall fail to fulfill the BUYER's agreements herein,
DEFAULT all deposits made hereunder by the BUYER shall be retained by the
DAMAGES SELLER as liquidated damages and shall be the Seller's sole and
exclusive remedy at law or in equity.
22. RELEASE BY
HUSBAND OR
WIFE
23. BROKER AS
PARTY
24. LIABILITY OF If the SELLER or BUYER executes this agreement in a representative
TRUSTEE, or fiduciary capacity, only the principal or the estate
SHAREHOLDER, represented shall be bound, and neither the SELLER or BUYER so
BENEFICIARY, etc. executing, nor any shareholder or beneficiary of any trust, shall
be personally liable for any obligation, express or implied,
hereunder.
25. WARRANTIES AND The BUYER acknowledges that the BUYER has not been influenced to enter into this transaction
REPRESENTATIONS nor has he relied upon any warranties or representations not set forth or incorporated in the
(fill in); if none, agreement or previously made in writing, except for the following additional warranties and
state "none"; if representations, if any, made by either the SELLER or the Broker(s): NONE
any listed, indicated
by whom each war-
ranty or represen-
tation was made
26. (omit if not
provided for
in Offer to
Purchase)
27. CONSTRUCTION This instrument, executed in multiple counterparts, is to be
OF AGREEMENT construed as a Massachusetts contract, is to take effect as a
sealed instrument, sets forth the entire contract between the
parties, is binding upon and ensures to the benefit of the parties
hereto and their respective heirs, devisees, executors,
administrators, successors and assigns, and may be cancelled,
modified or amended only by a written instrument executed by both
the SELLER and the BUYER. If two or more persons are named herein
as BUYER their obligations hereunder shall be joint and several.
The captions and marginal notes are used only as a matter of
convenience and are not to be considered a part of this agreement
or to be used in determining the intent of the parties to it.
30. ADDITIONAL The initialed riders, if any, attached hereto, are incorporated herein by reference.
PROVISIONS
SEE RIDER TO PURCHASE AND SALE AGREEMENT HERETO ANNEXED CONTAINING
PARAGRAPHS 31-36.
FOR RESIDENTIAL PROPERTY CONSTRUCTED PRIOR TO 1978, BUYER MUST ALSO HAVE SIGNED
LEAD PAINT "PROPERTY TRANSFER NOTIFICATION CERTIFICATION"
NOTICE: This is a legal document that creates binding obligations. If not
understood, consult an attorney.
BOSTON BIOMEDICA, INC.
BY: /s/Richard T. Schumacher, President
----------------------------------- -----------------------------
SELLER SELLER
/s/Donald M. Leonard Trustee
------------------------------------- -----------------------------
BUYER BUYER
DONALD M. LEONARD, TRUSTEE
LIVE OAK REALTY TRUST
- -------------------------------------------------------------------------------
Broker(s)
EXTENSION OF TIME FOR PERFORMANCE
The time for the performance of the foregoing agreement is extended until
____ o'clock M. on the _______________________ day of ____________________ 19
_____ , time still being of the essence of this agreement as extended. In all
other respects, this agreement is hereby ratified and confirmed.
This extension, executed in multiple counterparts, is intended to take
effect as a sealed instrument.
- ----------------------------------- -----------------------------
SELLER (or spouse) SELLER
- ----------------------------------- -----------------------------
BUYER BUYER
---------------------------------------------------------------------
Broker(s)
RIDER TO PURCHASE AND SALE AGREEMENT BETWEEN BOSTON BIOMEDICA, INC., SELLER AND
DONALD M. LEONARD, TRUSTEE, LIVE OAK REALTY TRUST, BUYER, WITH RESPECT TO THE
PREMISES AT 80 MANLEY STREET, WEST BRIDGEWATER, MA
31. NOTICES: All notices under this Agreement shall be in writing and shall be
delivered personally or shall be sent by U.S. Post Office, Express Mail, Federal
Express, return receipt requested, addressed as follows:
TO SELLERS: KEVIN W. QUINLAN, SR. VICE PRESIDENT
CHIEF FINANCIAL OFFICER
BOSTON BIOMEDICA, INC.
375 West Street
Bridgewater, MA 02329
With a copy to: HOWARD L. LEVIN, ESQUIRE
BROWN RUDNICK FREED & GESMER
1 FINANCIAL CENTER
BOSTON, MA 02111
TO BUYER: DONALD M. LEONARD, TRUSTEE
LIVE OAK REALTY TRUST
80 Manley Street
West Bridgewater, MA 02379
With a copy to: James M. Burke, Esquire
48 North Pearl Street
Brockton, MA 02401
32. AFFIDAVITS: Seller agrees to execute at the time of closing customary
affidavits or other documents required by the title insurance company insuring
title to the Premises as may be necessary to delete the standard exceptions for
mechanic's liens, and for claims of tenants. Seller agrees to execute such
affidavits required by Section 1445 of the Internal Revenue Code.
33. CAPTIONS: The captions in this Agreement are inserted for convenience of
reference only and in no way define, describe or limit the scope or intent of
this Agreement or any of the provisions thereof.
34. SELLER'S RIGHT OF OPTION AND FIRST REFUSAL:
The Buyer and the Seller agree that the Seller shall have a right of
first refusal to purchase the property for a period of ten (10) years from the
date of this Agreement, if offered for sale by the owner at the same or equal
sales price as long as the Buyer holds title to the property and Seller, or its
successor, is still an operating entity. The Buyer (Oak) will provide copies of
any bonified written offer to purchase the property to the Seller (Boston)
within seven (7) calendar days of receipt. Boston shall then have the right to
purchase at the same price by giving written notice to Oak within thirty (30)
calendar days. Boston will purchase the property at the offered selling price
within sixty (60) days of its notification of intent to purchase at the Plymouth
County Registry of Deeds. Should Boston not notify Oak of its intent to purchase
or not purchase the property on or before the date required, Oak shall be free
to sell the property to any third party, at that purchase price, for a period of
three months. If the Property is not sold at that purchase price within said
three month period, any subsequent offer to sell within said ten (10) year
period shall be subject to this right of refusal.
The foregoing right of refusal shall be incorporated into the Deed by
including the following language in the Deed: [SEE EXHIBIT "B"].
Further, the Seller shall have an option to purchase the subject property
at any time after June 27, 2000, subject to the proviso set forth below,
provided the Seller gives the Buyer written notice of its intent to repurchase
at the then current fair market value, as set forth in the following language to
be inserted into the Deed:
Said premises (the "Premises') are conveyed subject to an option to
purchase in favor of Grantor, its successors and/or assigns (hereinafter
referred to as "BBI"). To that end BBI hereby reserves an option to purchase
(the "Option") the Premises upon the following terms and conditions:
1. BBI may exercise the Option at any time from and after the date of
June 27, 2000 through and including June 27, 2015, (provided, however, that BBI
may exercise the Option prior to June 27, 2000, upon the failure of Grantee to
perform the Grantee's options under that certain Parking and Service Agreement
dated December 20, 1995, between Grantee and BBI), by giving written notice to
Grantee (hereinafter referred to as "OAK"), its successors and/or assigns of its
intent to exercise the Option in the manner required hereunder (the "Option
Notice").
2. The Option Notice shall specify (a) the name, address and telephone
number of a real estate appraiser doing business in West Bridgewater,
Massachusetts, whom BBI wishes to provide a fair market value appraisal with
respect to the Premises, and (b) a date and time between 9:00 a.m. and 3:00 p.m.
on any day on which the Plymouth County Registry of Deeds is open for business
on which BBI wishes the closing of the acquisition of the Premises to take
place, said date to be not less than nine months after the date on which the
option notice is given. Within seven days from Oak's receipt of the Option
Notice, Oak shall give written notice (the "Response Notice") to BBI specifying
the name, address and telephone number of a real estate appraiser familiar with
commercial real estate values and doing business in West Bridgewater,
Massachusetts, whom Oak wishes to provide a fair market value appraisal with
respect to the Premises.
3. BBI and Oak shall use best efforts to obtain, within seven days from the
date of the Response Notice, written appraisals of the fair market value of the
Premises without consideration of any brokerage commission, from the real estate
appraisers specified in each of the Option Notice and Response Notice. If the
values stated by such appraisers differ by less than $10,000.00, the average of
such values shall be deemed to be the fair market value of the Premises. If such
values differ by $10,000.00 or more, BBI and Oak shall use good faith efforts to
agree to a value, provided, however, if the parties are unable to agree within
seven days from the date the later of the two appraisals is received, BBI shall
request the two appraisers to select a third appraiser whose determination of
value shall be deemed to be the fair market value, provided the third
appraiser's value shall not exceed or be less than the values determined by the
prior two appraisers. If the third appraiser's value exceeds the high appraisal
of the two, the high appraisal of the first two shall be deemed the fair market
value. If the third appraiser's value is below the low appraisal of the two, the
low appraisal of the first two shall be deemed the fair market value. BBI shall
have fourteen days from the date of receipt of the determination of fair market
value, in accordance with this paragraph, to notify Oak whether BBI elects to
complete the acquisition of the Premises at a purchase price (the "Purchase
Price") equal to the fair market value as determined pursuant to this paragraph.
In the event that BBI elects not to complete the acquisition of the Premises for
the Purchase Price, this option shall terminate. If BBI elects to proceed with
the acquisition of the premises for the Purchase Price, the closing shall take
place at the Plymouth County Registry of Deeds at the time and on the date
specified (the "Closing Date") in the Option Notice, unless another time or
place is mutually agreed upon in writing.
4. At the closing, BBI shall tender the full Purchase Price for the
Premises, determined in accordance with the preceding paragraph, by certified,
cashiers, treasurers or bank check(s), and Oak shall deliver to BBI a Quitclaim
Deed to the premises, conveying good and clear record and marketable title to
the premises, free and clear from encumbrances other than (a) provisions of
existing building and zoning laws, (b) such taxes for the then current year as
are not due and payable on the date of the delivery of such Deed, (c) any liens
for municipal betterments assessed after the date of the Option Notice, and (d)
easements, restrictions and reservations of record, if any, so long as the same
do not prohibit or materially interfere with the current use of the Premises.
Oak agrees that, prior to the expiration of this Option, Oak will not suffer or
permit the Premises to be encumbered by any lien beyond the initial mortgage
amount of $100,000.00 without the permission of BBI, and will not permit the
Premises to be contaminated by oil, or other hazardous materials as defined and
described in Massachusetts General Laws Chapter 21C or 21E, or applicable
federal law.
5. Rent, taxes for the then current fiscal year and water and sewer use
charges shall be apportioned, as of the date Closing
Date, and the net amount thereof shall be added to or deducted from, as the case
may be, the Purchase Price payable by BBI at the time of the delivery of the
Deed. If the amount of said taxes is not known at the time of the delivery of
the Deed, they shall be apportioned on the basis of the taxes assessed for the
preceding fiscal year, with a reapportionment as soon as the new tax rate and
valuation can be ascertained; and, if taxes which are apportioned shall
thereafter be reduced by abatement, the amount of such abatement, less the
reasonable cost of obtaining the same, shall be apportioned between the parties,
provided that neither party shall be obligated to institute or prosecute
proceedings for an abatement. Any other obligations of Oak to BBI shall be
applied to reduce the Purchase Price, and any other obligations of BBI to Oak
shall be added to the Purchase Price.
6. If BBI fails to purchase the Premises on the date specified in the
Option Notice, or on such other date as may be agreed upon in writing between
the parties, or if BBI notifies Oak in writing following the determination of
the Purchase Price pursuant to paragraph 3 above that BBI does not wish to
purchase the Premises for the Purchase Price, then this Option shall terminate,
and neither BBI nor Oak shall have any further obligation hereunder, except that
the parties agree to execute a written notice of termination suitable for
recording with the Plymouth County Registry of Deeds.
7. All notices required or which may be given under the terms of this
Option, shall be deemed properly given (a) two business days after being mailed,
postage prepaid, by certified mail, return receipt requested, or (b) one day
after delivered to a national overnight delivery service, or (c) when actually
received by hand delivery, including but not limited to, courier service or
facsimile transmission, to the parties as follows:
if to Oak, to: Donald M. Leonard, Trustee
Live Oak Realty Trust
80 Manley Street
West Bridgewater, MA 02379
if the to BBI, to: Boston Biomedica, Inc.
375 West Street
West Bridgewater, MA 02379
ATTN: Chief Financial Officer
Either party, may by written notice to the other sent in accordance with the
provisions of this paragraph, change the address for such party to receive
notice.
8. The Option shall be construed as a Massachusetts contract, is to take
effect as a sealed instrument, is binding upon and shall inure to the benefit of
the parties hereto and their respective transferees, successors and assigns, and
may be modified or amended only by a written instrument executed by BBI, Oak or
their respective transferees, successors and assigns.
35. PURCHASE PRICE: The purchase price for the subject property is
$130,800.00 of which the sum of $50,000.00 shall be paid to the Seller in cash,
cashier's check or bank funds. The remainder of the purchase price of $80,800.00
will be paid by means of the attached Promissory Note and the attached Service
and Parking Agreement (marked as Exhibit "A") dated this date between the Seller
and Buyer, by which the Buyer agrees to perform maintenance services on the
Seller's adjacent property at 375 West Street, West Bridgewater, MA, for a
period of fifty four (54) months. For each month of service provided the Buyer
will be credited with a payment toward the outstanding balance of the Promissory
Note of $1,496.29. Upon completion of the Service and Parking Agreement the
Seller shall have received the full purchase price of $130,800.00. For so long
as said Promissory Note remains unsatisfied, or said Service and Parking
Agreement has not been fully and completely performed, whichever is longer,
Buyer will not suffer or permit the Premises to be encumbered by any lien beyond
the first mortgage amount of $100,000.00 without the prior written approval of
the Seller, which approval shall not be unreasonably withheld.
Should the Buyer sell the subject property prior to performance of all
work required under the Service and Parking Agreement, then the Buyer shall
provide the Seller with the balance of funds due under the contract for purchase
less sums credited for services provided.
36. EARLY SALE: The parties agree that the Buyer shall have a period of
fifty-four months from 12/27/95, before the Options to Purchase shall take
effect. The Buyer agrees, therefore, that should the property be sold for a
price above $130,800.00 at any time within the said fifty four (54) months, the
Seller shall be entitled to any excess upon sale, including any additional
payments for services not yet performed under the Service and Parking Agreement
or credited, according to the following formula (the "Appreciation Credit"): If
the property is sold within one month following 12/27/95, the original date of
transfer, the Seller (Boston) shall be entitled to the full proceeds in excess
of $130,800.00. Should the property be sold after the first month, but prior to
the second month, then the Seller (Boston) shall receive 53/54ths of any excess
beyond the purchase price of $130,800.00. This formula shall continue on a
descending scale until the expiration of the 54 months at which time the Seller
(Boston) shall not be entitled to any excess beyond the original purchase price
of $130,800.00. In the event Seller should reacquire the property prior to the
expiration of said 54 month period the Appreciation Credit shall be applied to
reduce the Purchase Price due from the Seller.
SELLER: BUYER:
BOSTON BIOMEDICA, INC.
BY: /s/Richard T. Shumacher, President /s/Donald M. Leonard, Trustee
---------------------------------- -----------------------------
DONALD M. LEONARD, TRUSTEE
LIVE OAK REALTY TRUST
EXHIBIT "A"
LIVE OAK REALTY TRUST
80 Manley Street
West Bridgewater, Massachusetts 02379
December 20, 1995
Boston Biomedica, Inc.
375 West Street
West Bridgewater, MA 02379
RE: Parking and Service Agreement
Fifty Four month agreement from
December 27, 1995 to June 27, 2000
The intent of this Agreement is to supply ten parking spaces and building and
yard maintenance for the benefit of 375 West Street, Brockton, MA. This
Agreement includes the following:
1. Ten additional parking spaces for Boston Biomedica at 80 Manley Street (see
attached parking plan).
2. Snow removal services as required to keep parking area and sidewalks clean
and passable.
3. Law mowing services-keeping law mowed to a reasonable appearance and
fertilizing as necessary.
4. Supply labor for maintenances as required and requested (it being the
intention of the parties that labor and maintenance provided shall average
approximately 20.6 hours per month) for:
a. weeding, mulching, trimming of bushes;
b. snow shoveling and installation of ice melt;
c. Exterior building maintenance-roof work,
caulking, repairs and cleaning;
d. interior repairs;
e. or any services required by BBI.
This Agreement does not include any materials. All materials will be supplied at
cost or by Boston Biomedica.
In consideration for the services provided in accordance with this Agreement,
Live Oak shall be credited an amount equal to $1,496.29 per month, which amount
is equal to, and shall be credited as, the
Boston Biomedica, Inc.
December 20, 1995
Page 2
monthly payment due under that certain Promissory Note made by Live Oak to the
order of Boston Biomedica, Inc., dated as of December 20, 1995. Any default
under or failure by Live Oak to perform this Agreement that remains uncured for
ten (10) days after BBI provides notice to Oak, shall constitute an event of
default under said Promissory Note.
This Agreement is for the benefit of and has been fully performed by Boston
Biomedica and its successors and assigns and is not cancelable for the term of
the Agreement. It can be extended by mutual agreement between both parties.
Your signature below and our acceptance thereof will formalize the Agreement.
BOSTON BIOMEDICA INC. LIVE OAK REALTY TRUST
BY: /s/Richard T. Shumacher BY: /s/Donald M. Leonard
----------------------- -----------------------
TITLE: President TITLE: Trustee
-------------------- --------------------
DATE: 12/27/95 DATE: 12/27/95
-------------------- ---------------------
QUITCLAIM DEED
Property Address: 80 Manley Street, West Bridgewater, Massachusetts
Boston Biomedica, Inc., a Massachusetts corporation having an address at 375
West Street, West Bridgewater, Plymouth County, Massachusetts ("Grantor"), in
consideration of ONE HUNDRED THIRTY THOUSAND EIGHT HUNDRED ($130,800.00) DOLLARS
paid, grants to DONALD M. LEONARD, TRUSTEE of LIVE OAK REALTY TRUST, u/d/t dated
June 30, 1995 recorded herewith, having an address at 80 Manley Street, West
Bridgewater, Massachusetts ("Grantee"),
the land with buildings thereon located at 80 Manley Street, West Bridgewater,
Plymouth County, Massachusetts, more particularly described as follows:
The land in West Bridgewater, Plymouth County, Massachusetts on the northerly
side of West Street and the westerly side of Manley Street as shown as Lot 2A on
a plan entitled, "Plan of Land in West Bridgewater, Massachusetts owned by
C.W.B. Contractors, Inc., June 11, 1985" said plan being recorded in Plymouth
County Registry of Deeds in Plan Book 26, Page 260.
Being the same premises conveyed to Grantor by deed dated December 11, 1995 from
JAMES LEONARD, TRUSTEE, C.W.B. REALTY TRUST u/d/t dated March 21, 1988, recorded
at Plymouth County Registry of Deeds at Book 8406, Page 168, which deed recorded
at Plymouth County Registry of Deeds at Book 14018 Page ___.
Said premises (the "Premises") are conveyed subject to an option to
purchase in favor of Grantor, its successors and/or assigns (hereinafter
referred to as "BBI"). To that end BBI hereby reserves an option to purchase
(the "Option") the Premises upon the following terms and conditions:
1. BBI may exercise the Option at any time from and after the date of June
27, 2000 through and including June 27, 2015 (provided, however, that
BBI may exercise the Option prior to June 27, 2000, upon the failure of
Grantee to perform any of Grantee's obligations under that certain
Service and Parking Agreement dated December 20, 1995, between Grantee
and BBI), by giving written notice to Grantee (hereinafter referred to
as "OAK"), its successors and/or assigns of its intent to exercise the
Option in the manner required hereunder (the "Option Notice").
2. The Option Notice shall specify (a) the name, address and telephone
number of a real estate appraiser doing business in West Bridgewater,
Massachusetts, whom BBI wishes to provide a fair market value appraisal
with respect to the Premises, and (b) a date and time between 9:00 a.m.
and 3:00 p.m. on any day on which the Plymouth County Registry of Deeds
is open for business on which BBI wishes
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the closing of the acquisition of the Premises to take place, said date
to be not less than nine nor more than thirty-six months after the date
on which the Option Notice is given. Within seven days from OAK's
receipt of the Option Notice, OAK shall give written notice (the
"Response Notice") to BBI specifying the name, address and telephone
number of a real estate appraiser familiar with commercial real estate
values and doing business in West Bridgewater, Massachusetts, whom OAK
wishes to provide a fair market value appraisal with respect to the
Premises.
3. BBI and OAK shall use best efforts to obtain, within seven days from
the date of the Response Notice, written appraisals of the fair market
value of the Premises without consideration of any brokerage
commission, from the real estate appraisers specified in each of the
Option Notice and Response Notice. If the values stated by such
appraisers differ by less than $10,000.00, the average of such values
shall be deemed to be the fair market value of the Premises. If such
values differ by $10,000.00 or more, BBI and OAK shall use good faith
efforts to agree to a value, provided, however, if the parties are
unable to agree within seven days from the date the later of the two
appraisals is received, BBI shall request the two appraisers to select
a third appraiser whose determination of value shall be deemed to be
the fair market value, provided that the third appraiser's value shall
not exceed the greater of, or be less than the lesser of, the two
values determined by the prior two appraisers. If the third appraiser's
value exceeds the high appraisal of the two, the high appraisal of the
first two shall be deemed the fair market value. If the third
appraiser's value is less than the low appraisal of the two, the low
appraisal of the first two shall be deemed the fair market value. BBI
shall have fourteen days from the date of receipt of the determination
of fair market value, in accordance with this paragraph, to notify OAK
whether BBI elects to complete the acquisition of the Premises at a
purchase price (the "Option Purchase Price") equal to the fair market
value as determined pursuant to this paragraph. In the event that BBI
elects not to complete the acquisition of the Premises for the Option
Purchase Price, this Option shall terminate. If BBI elects to proceed
with the acquisition of the Premises for the Option Purchase Price, the
closing shall take place at the Plymouth County Registry of Deeds at
the time and on the date specified (the "Closing Date") in the Option
Notice, unless another time or place is mutually agreed upon in
writing.
4. At the closing, BBI shall tender the full Option Purchase Price for the
Premises, determined in accordance with the preceding paragraph, by
certified, cashiers, treasurers or bank check(s), and OAK shall deliver
to BBI a Quitclaim Deed to the Premises, conveying good and clear
record and marketable title to the premises, free and clear from
encumbrances other than (a) provisions of existing building and zoning
laws, (b) such taxes for the then current year as are not due and
payable on the date of the delivery of such Deed, (c) any liens for
municipal betterments assessed after the date of the Option Notice, and
(d) easements, restrictions and reservations of record, if any, so long
as the same do not prohibit
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or materially interfere with the current use of the Premises. OAK
agrees that, prior to the expiration of this Option, OAK will not
suffer or permit the Premises to be encumbered by any lien beyond the
initial mortgage amount of $100,000.00 without the permission of BBI,
and will not permit the Premises to be contaminated by oil, or other
hazardous materials as defined and described in Massachusetts General
Laws Chapter 21C or 21E, or applicable federal law.
5. Rent, taxes for the then current fiscal year and water and sewer use
charges shall be apportioned, as of the date Closing Date, and the net
amount thereof shall be added to or deducted from, as the case may be,
the Option Purchase Price payable by BBI at the time of the delivery of
the Deed. If the amount of said taxes is not known at the time of the
delivery of the Deed, they shall be apportioned on the basis of the
taxes assessed for the preceding fiscal year, with a reapportionment as
soon as the new tax rate and valuation can be ascertained; and, if
taxes which are apportioned shall thereafter be reduced by abatement,
the amount of such abatement, less the reasonable cost of obtaining the
same, shall be apportioned between the parties, provided that neither
party shall be obligated to institute or prosecute proceedings for an
abatement. Any other obligations of OAK to BBI shall be applied to
reduce the Option Purchase Price, and any other obligations of BBI to
OAK shall be added to the Option Purchase Price.
6. If BBI fails to purchase the Premises on the date specified in the
Option Notice, or on such other date as may be agreed upon in writing
between the parties, or if BBI notifies OAK in writing following the
determination of the Option Purchase Price pursuant to paragraph 3
above that BBI does not wish to purchase the Premises for the Option
Purchase Price, then this Option shall terminate, and neither BBI nor
OAK shall have any further obligation hereunder, except that the
parties agree to execute a written notice of termination suitable for
recording with the Plymouth County Registry of Deeds.
The Premises are also conveyed subject to a right of first refusal in
favor of BBI. To that end, BBI hereby reserves a right of first refusal (the
"Right of Refusal") with respect to the Premises upon the following terms and
conditions:
A. OAK shall not sell all or any portion of the legal or beneficial
ownership in the Premises for a period of ten (10) years from the date
of this Deed without first offering to sell the Premises to BBI, as
hereinafter set forth.
B. In the event that OAK shall receive any bona fide written offer (the
"Offer") to purchase the Premises, or any interest therein, OAK shall
provide a copy of such offer within seven (7) calendar days of receipt
of such offer, together with a written offer to sell the Premises, or
such interest therein, for the purchase price set forth in the Offer.
BBI shall have the right to elect to purchase the Premises, or such
portion thereof described in the Offer, for the purchase price
specified in the Offer, by giving written notice to OAK within thirty
(30) days of receipt by BBI of the
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Offer (the "Acceptance Notice"). The Acceptance Notice shall specify
the time, date and place within Plymouth or Suffolk County that the
closing is to take place, provided that such date shall be not more
than sixty (60) days from the date of giving the Acceptance Notice.
C. In the event that BBI elects to purchase the Premises at the purchase
price stated in the Offer, BBI shall purchase the Premises as set forth
in the Acceptance Notice. At the closing, BBI shall tender the full
purchase price for the Premises, as specified in the Offer, by
certified, cashiers, treasurers or bank check(s), and OAK shall deliver
to BBI a Quitclaim Deed to the Premises, conveying good and clear
record and marketable title to the premises, free and clear from
encumbrances other than (a) provisions of existing building and zoning
laws, (b) such taxes for the then current year as are not due and
payable on the date of the delivery of such Deed, (c) any liens for
municipal betterments assessed after the date of the Acceptance Notice,
and (d) easements, restrictions and reservations of record, if any, so
long as the same do not prohibit or materially interfere with the
current use of the Premises. OAK agrees that, prior to the expiration
of this Right of Refusal, OAK will not suffer or permit the Premises to
be encumbered by any lien beyond the initial mortgage amount of
$100,000.00 without the permission of BBI, and will not permit the
Premises to be contaminated by oil, or other hazardous materials as
defined and described in Massachusetts General Laws Chapter 21C or 21E,
or applicable federal law. Rent, taxes for the then current fiscal year
and water and sewer use charges shall be apportioned, as of the date
closing date specified in the Acceptance Notice, and the net amount
thereof shall be added to or deducted from, as the case may be, the
purchase price payable by BBI at the time of the delivery of the Deed.
If the amount of said taxes is not known at the time of the delivery of
the Deed, they shall be apportioned on the basis of the taxes assessed
for the preceding fiscal year, with a reapportionment as soon as the
new tax rate and valuation can be ascertained; and, if taxes which are
apportioned shall thereafter be reduced by abatement, the amount of
such abatement, less the reasonable cost of obtaining the same, shall
be apportioned between the parties, provided that neither party shall
be obligated to institute or prosecute proceedings for an abatement.
Any other obligations of OAK to BBI shall be applied to reduce the said
purchase price, and any other obligations of BBI to OAK shall be added
to said purchase price.
D. If BBI notifies OAK that it does not elect to purchase the Premises for
the purchase price stated in the Offer, or if BBI does not give the
Acceptance Notice on or before the date required, OAK shall be free to
sell the Premises to any third party for a period of three (3) months
at the purchase price specified in the Offer. If the Premises are not
sold at that purchase price within that three (3) month period, any
subsequent offer to purchase the Premises shall be subject to the Right
of Refusal.
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E. If, after giving the Acceptance Notice, BBI fails to purchase the
Premises on the date specified in the Acceptance Notice, or on such
other day as may be agreed upon in writing between the parties, or if
BBI fails or declines to give the Acceptance Notice and OAK sells the
Premises for the purchase price specified in the Offer to a bona fide
third party within the three (3) month period provided in the preceding
paragraph, or if BBI ceases to exist as a going concern leaving no
assignee or successor by merger, acquisition or other reorganization,
then this Right of Refusal shall terminate, and neither BBI nor OAK
shall have any further obligation hereunder, except that the parties
agree to execute a written notice of termination suitable for recording
with the Plymouth County Registry of Deeds.
All notices required or which may be given under the terms of the
Option or the Right of Refusal, shall be deemed properly given (a) two business
days after being mailed, postage prepaid, by certified mail, return receipt
requested, or (b) one day after delivered to a national overnight delivery
service, or (c) when actually received by hand delivery, including but not
limited to, courier service or facsimile transmission, to the parties as
follows:
if to OAK, to: Donald M. Leonard, Trustee
Live Oak Realty Trust
80 Manley Street
West Bridgewater, MA 02379
if to BBI, to: Boston Biomedica, Inc.
375 West Street
West Bridgewater, MA 02379
ATTN: Chief Financial Officer
Either party, may by written notice to the other sent in accordance with the
provisions of this paragraph, change the address for such party to receive
notice.
Each of the Option and the Right of Refusal shall be construed as a
Massachusetts contract, is to take effect as a sealed instrument, shall run with
the land, is binding upon and shall inure to the benefit of the parties hereto
and their respective transferees, successors and assigns, and may be modified or
amended only by a written instrument executed by BBI, OAK or their respective
transferees, successors and assigns.
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Executed as a sealed instrument as of the 20th day of December, 1995.
GRANTOR: BOSTON BIOMEDICA, INC.
By: /s/Richard T. Shumacher
--------------------------------
Richard T. Schumacher, President
By: /s/Kevin W. Quinlan
--------------------------------
Kevin W. Quinlan, Treasurer
GRANTEE:
/s/Donald M. Leonard, Trustee
------------------------------------
Donald M. Leonard, Trustee of Live Oak
Realty Trust, as aforesaid
COMMONWEALTH OF MASSACHUSETTS
PLYMOUTH, SS December 28, 1995
Then personally appeared the above named Kevin W. Quinlan, Treasurer
as aforesaid, and acknowledged the foregoing instrument to be his free act and
deed, and the free act and deed of Boston Biomedica, Inc., before me,
/s/Candice J. Kobyluck
---------------------------
,Notary Public
My commission expires: June 1, 2001
COMMONWEALTH OF MASSACHUSETTS
PLYMOUTH, SS December 28, 1995
Then personally appeared the above named Donald M. Leonard, Trustee
of Live Oak Realty Trust, as aforesaid, and acknowledged the foregoing
instrument to be his free act and deed, before me,
/s/Candice J. Kobyluck
---------------------------
,Notary Public
My commission expires: June 1, 2001
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