Purchase and Sale Agreement - Folio Corp., Vision IV Properties LLC and First American Title Co.
PURCHASE AND SALE AGREEMENT
This PURCHASE AND SALE AGREEMENT (this "Agreement" or this "Contract")
is made and entered into as of the 23rd day of August, 2000, by and among FOLIO
CORPORATION, a Utah corporation ("Seller") and VISION IV PROPERTIES, LLC, a Utah
limited liability company, ("Buyer"); and FIRST AMERICAN TITLE COMPANY, as
escrow agent ("Escrow Agent").
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 Fee simple title in and to the land described on EXHIBIT A
attached hereto, together with all easements, rights, privileges and benefits
appurtenant thereto (collectively, the "Land"), and the buildings and other
improvements thereon (collectively, 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 fixtures 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
tangible personal property owned by Seller and located and used at the Real
Property, including, without limitation, the items of personal property set
forth in EXHIBIT I attached hereto (collectively, the "Personalty") (without
limitation, the Personalty shall include all individual cubicles and furniture
(including conference room furniture) currently located at the Real Property but
shall not include either (a) free-standing furniture within the private offices
at the Real Property), or (b) all computer equipment, PBX and telephone
equipment, and networking equipment located at or in the Real Property;
1.3 All of Seller's right, title and interest, if any, in and
to all intangible property necessary for the future operation or maintenance of
the Real Property, including, without limitation, all licenses, permits and
warranties, excluding therefrom (i) the tradenames, names, logos signs and
identifications, "Folio", "Folio Corporation", "Open Market", "Open Market,
Inc.", and all derivatives thereof; and (ii) all patents, trademarks,
copyrights, processes, intellectual property and other intangible property used
in connection with or related to the
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business operations of the Seller and its affiliates (as distinct from those
necessary for the future operation or maintenance of the Real Property); and
1.4 All of Seller's right, title and interest, if any, in and
to any land lying in the bed of any street, road, avenue, open or proposed,
public or private, in front of or adjoining the Real Property or any portion
thereof, to the center line thereof, and any unpaid award for any taking by
condemnation to be made in lieu thereof.
2. PURCHASE PRICE. The purchase price for the Property (the "Purchase
Price") shall be FOUR MILLION ONE HUNDRED THOUSAND DOLLARS ($4,100,000.00).
Subject to the terms and conditions of this Agreement, the Purchase Price shall
be paid as follows:
2.1 Contemporaneously with the execution of this Agreement, an
initial cash deposit in the amount of TEN THOUSAND DOLLARS ($10,000.00)
(together with any interest earned thereon, the "Initial Deposit") shall be paid
to Escrow Agent.
2.2 By not later than the expiration of the Inspection Period,
an additional cash deposit in the amount of TWO HUNDRED THOUSAND DOLLARS
($200,000.00) (together with any interest earned thereon, the "Additional
Deposit") shall be paid to Escrow Agent. The Initial Deposit and the Additional
Deposit are referred to herein collectively as the "Deposit."
2.3 At the Closing (as hereinafter defined), the Deposit and
the balance of the Purchase Price, subject to adjustments and prorations
provided for in this Agreement, shall be paid to Seller by wire transfer of
immediately available federal funds to Seller's account or such other person as
Seller may designate in writing. Without limitation, at the Closing all interest
on the Deposit shall be paid to Seller as aforesaid as its own property.
3. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller hereby makes the
following representations and warranties to the best of Seller's actual
knowledge as of the date hereof and again as of the Closing, the truth and
accuracy of which shall constitute a condition to Closing for the benefit of
Buyer. These representations and warranties are made as a material inducement to
Buyer to enter into this Agreement, and Buyer would not have entered into this
Agreement except in reliance upon the representations and warranties of Seller
made herein. Buyer shall be entitled to rely upon the representations and
warranties of Seller notwithstanding Buyer's inspection and investigation of the
Real Property except to the extent Buyer discovers matters or conditions that
indicate the inaccuracy of a representation or warranty, which discovered
matters shall be deemed waived upon Closing and the respective representations
and warranties shall be deemed modified to reflect the inaccuracy discovered by
Buyer:
3.1 AUTHORITY. Seller is a corporation duly organized and
validly existing under the laws of the State of Utah, and Seller 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, "Seller's Documents") and to perform its obligations hereunder
and under the applicable Seller's Documents.
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3.2 NO CONFLICT. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereunder on the part of
Seller do not and will not violate any applicable law, ordinance, statute, rule,
regulation, order, decree or judgment, conflict with or result in the breach of
any material terms or provisions of, or constitute a default under, or result in
the creation or imposition of any lien, charge, or encumbrance upon the Property
or other assets of Seller which will not be discharged or released at Closing by
reason of the terms of any contract (other than the Trane Contract and the Dover
Contract, each as hereinafter defined), mortgage, lien, lease, agreement,
indenture, instrument or judgment to which Seller is a party.
3.3 LEASES. Except for that certain lease dated July 1, 1999
with NextPage LC (the "NextPage Lease"), there are no leases or occupancy
agreements affecting the Property.
3.4 NO CONDEMNATION. Seller has not received any written
notice of any pending or contemplated condemnation, eminent domain or similar
proceeding with respect to all or any portion of the Real Property.
3.5 CONTRACTS. Seller has delivered to Buyer true, correct and
complete copies of all of the service, utility, maintenance, and other contracts
or agreements (other than title matters which are of record as of the date
hereof) currently in effect with respect to the Property, a list of which is
attached hereto as EXHIBIT B (the "Contracts", which term shall also include
contracts entered into after the date hereof pursuant to this Agreement).
3.6 LITIGATION. To the best of Seller's actual knowledge,
there is no material action, suit or proceeding pending or threatened against or
affecting the Property, or arising out of the ownership, management or operation
of the Real Property, this Agreement or the transactions contemplated hereby.
3.7 FIRPTA. Seller is not a "foreign person" as defined in
Section 1445(f)(3) of the Internal Revenue Code.
3.8 ADVERSE ACTIONS. Seller has not received any written
notices from any governmental authority of violations with respect to the Real
Property which have not been heretofore corrected. Seller has not received any
written notices of any planned or commenced public improvements which may result
in special assessments with respect to the Real Property, or written notices
from any government agency or court order requiring repair, alteration or
correction of any existing condition with respect to the Real Property which
have not heretofore been performed or corrected.
3.9 PROPERTY ZONING. Seller has not received any written
notices from any governmental agency claiming that the Property is not properly
zoned for the operation of an office building.
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Seller's representations and warranties set forth in this Agreement
shall survive the Closing for a period of twelve (12) months and any action
brought on Seller's representations and warranties shall be commenced within
said twelve (12) month period or shall be forever barred and waived.
As used throughout this Article 3, the phrase "to the best of Seller's
actual knowledge," "Seller has no actual knowledge" or phrases of similar import
shall mean the actual, not constructive or imputed, knowledge of Susan Burton,
Director of Real Estate, without any obligation on her part to make any
independent investigation of the matters being represented and warranted, or to
make any inquiry of any other persons, or to search or examine any files,
records, books, correspondence and the like. Further, to the extent Buyer
discovers prior to the Closing any inaccuracy in a representation and warranty
of Seller in this Agreement and the Closing occurs, such representation and
warranty shall be deemed modified to reflect the inaccuracy discovered by Buyer.
4. INSPECTIONS.
4.1 COMMITMENT FOR OWNER'S TITLE INSURANCE POLICY. Within ten
(10) days after the date of execution of this Agreement, Seller shall deliver to
Buyer a commitment (the "Commitment") from First American Title Insurance
Company (or another national title insurance company acceptable to Buyer in its
reasonable discretion) to issue a standard ALTA owner's title insurance policy
in the amount of the Purchase Price, insuring Buyer as the Owner of fee simple
title to the Property, with exceptions and exclusions to coverage for the
Permitted Encumbrances and for the standard exceptions and exclusions to
coverage for matters customarily excluded under an ALTA owner's title insurance
policy.
4.2 INSPECTIONS. From the date hereof through and including
the earlier of (i) the date on which the Closing occurs, or (ii) the date on
which this Agreement is terminated in accordance with the terms and conditions
hereof, Buyer, its agents, employees and contractors, shall be entitled to
perform, at Buyer's sole cost and expense, such inspections of the Property and
all matters relating thereto and each aspect thereof that Buyer determines
necessary or appropriate. Such inspections may include, without limitation,
reviewing and assessing the Commitment and other title matters concerning the
Property, conducting surveys, reviewing and assessing the compliance of the
Property with applicable laws, rules and regulations such as those relating to
zoning, land-use matters, building, fire and safety codes, and reviewing and
analyzing environmental conditions affecting the Property. In connection
therewith, Buyer and it's agents may enter upon the Property (as coordinated
through Seller's property manager), including all leased areas (subject to the
rights of tenants), upon reasonable prior notice to Seller, to perform
inspections and tests of the Property and matters related thereto, including
test borings, environmental studies, examinations and tests of structural and
mechanical systems within the Improvements, and examining the books and records
of Seller and Seller's property manager relating to the Property. If Buyer
wishes to engage in any testing which could damage or disturb any portion of the
Property, Buyer shall obtain Seller's prior consent thereto. Without
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limiting the generality of the foregoing, Seller's written approval shall be
required prior to any testing or sampling of surface or subsurface soils,
surface water, groundwater, or any materials in or about the Improvements.
4.2.1 INSURANCE. Contemporaneously with the execution
hereof, Buyer shall deliver to Seller evidence reasonably satisfactory to Seller
that Buyer and all of Buyer's agents and contractors entering onto the Property
have obtained comprehensive general liability insurance naming Seller as an
additional insured with respect to the Property in an amount of not less than
$2,000,000.00 and written on such forms as are reasonably acceptable to Seller.
4.2.2 LIMITATION ON INSPECTIONS. In connection with
the right to enter upon the Property set forth in this Article 4, Buyer agrees
(i) not to interfere materially with the operation of the Property or any
tenants of the Property, (ii) to restore the Property to its prior condition
after the performance of any such inspections, and (iii) to hold harmless and
indemnify Seller and Seller's agents, employees, contractors, and tenants from
any and all damages, claims, losses and liabilities (including, without
limitation, reasonable legal fees and expenses) arising from or related to
Buyer's or Buyer's agents' or contractors' or employees' actions or omissions or
its failure to satisfy the conditions of subsections (i) and (ii) above. The
provisions of this subparagraph shall survive the Closing and delivery of the
Deed (as hereinafter defined) or termination of this Agreement.
4.3 TERMINATION OPTION. The period of time between the date
hereof and 4:00 p.m. on September 17, 2000 is hereinafter referred to as the
"Inspection Period." Buyer, in its sole discretion, may elect to terminate this
Agreement, for any reason or no reason, by giving notice of such election to
Seller on any day prior to and including the final day of the Inspection Period
(time being of the essence of the giving of such notice), in which event, except
as expressly set forth herein, neither Seller nor Buyer shall have any further
liability or obligation to the other hereunder. If such termination by Buyer
occurs on or prior to the date which is twenty (20) days after the date of this
Agreement, then the Initial Deposit shall be returned to Buyer; however, if such
termination occurs after said twenty (20) day period, then the Initial Deposit
shall be nonrefundable and shall be retained by Seller as it's own property,
free and clear of any rights or claims of Buyer. If Buyer does not elect to
terminate this Agreement, then by not later than the expiration of the
Inspection Period, Buyer shall deliver the Additional Deposit to Escrow Agent.
If Buyer timely delivers the Additional Deposit to Escrow Agent, as aforesaid,
the delivery of the Additional Deposit shall be considered an election by Buyer
not to terminate this Agreement, and all of the conditions of this Section 4.3
shall be considered satisfied and the Buyer's termination option under this
Section 4.3 shall be null and void and of no further force or effect, and this
Agreement and the obligations of the parties shall remain in full force and
effect. Without limiting the foregoing, if Buyer fails to deliver the Additional
Deposit by not later than the expiration of the Inspection Period, then such
failure shall be considered to be an election by Buyer to terminate this
Agreement, in which event the Initial Deposit shall be nonrefundable and shall
be retained by Seller as its own property, free and clear of any rights or
claims of Buyer, and except as expressly set forth herein, neither Seller nor
Buyer shall have any further liability or obligation to the other hereunder.
Except as set forth in this Article 4, there
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are and shall be no conditions or contingencies, of any kind whatsoever, to the
obligation of Buyer to purchase the Property, including, without limitation, any
contingencies relating to the obtaining of financing by Buyer.
5. AS IS PURCHASE; MAINTENANCE OF PROPERTY.
5.1. AS IS PURCHASE. BUYER ACKNOWLEDGES AND AGREES THAT BUYER
IS ACQUIRING THE PROPERTY IN ITS "AS IS" CONDITION, WITH ALL FAULTS, AND WITHOUT
ANY WARRANTY, EXPRESS, IMPLIED OR STATUTORY, ALL OF WHICH ARE HEREBY WAIVED AND
DISCLAIMED BY BUYER, EXCEPT FOR ONLY SUCH REPRESENTATIONS AND WARRANTIES AS ARE
EXPRESSLY AND SPECIFICALLY SET FORTH IN THIS AGREEMENT. OTHER THAN AS EXPRESSLY
AND SPECIFICALLY SET FORTH HEREIN, NEITHER SELLER NOR ANY AGENTS,
REPRESENTATIVES, OR EMPLOYEES OF SELLER (INCLUDING, WITHOUT LIMITATION, BROKER
(AS HEREINAFTER DEFINED)) HAVE MADE ANY REPRESENTATIONS OR WARRANTIES, DIRECT OR
INDIRECT, ORAL OR WRITTEN, EXPRESS OR IMPLIED, TO BUYER OR ANY AGENTS,
REPRESENTATIVES, OR EMPLOYEES OF BUYER WITH RESPECT TO THE CONDITION OR
CONSTRUCTION OF THE PROPERTY, ITS FITNESS FOR ANY PARTICULAR PURPOSE, ITS
MERCHANTABILITY, ITS COMPLIANCE WITH ANY LAWS, OR OTHERWISE AND BUYER IS NOT
AWARE OF AND DOES NOT RELY UPON ANY SUCH REPRESENTATION. BUYER ACKNOWLEDGES THAT
THE BUYER HAS HAD OR, PURSUANT TO THE TERMS HEREOF, WILL HAVE A FULL AND
COMPLETE OPPORTUNITY TO MAKE SUCH INSPECTIONS (OR HAVE SUCH INSPECTIONS MADE BY
CONSULTANTS) AS IT DESIRES OF THE PROPERTY AND ALL FACTS RELEVANT TO ITS USE,
INCLUDING, WITHOUT LIMITATION, THE INTERIOR, EXTERIOR, STRUCTURE, AND
CONSTRUCTION OF ALL IMPROVEMENTS, AND THE CONDITION OF SOILS AND SUBSURFACES.
BUYER IS RELYING SOLELY ON ITS OWN INVESTIGATIONS OF THE PROPERTY AND NOT ON ANY
INFORMATION PROVIDED BY SELLER OR ITS AGENTS. EXCEPT ONLY WITH RESPECT TO A
BREACH BY SELLER OF ANY REPRESENTATION OR WARRANTY EXPRESSLY AND SPECIFICALLY
CONTAINED HEREIN, BUYER HEREBY WAIVES, RELEASES AND FOREVER DISCHARGES SELLER,
ANY OFFICER, PARTNER, DIRECTOR, EMPLOYEE, AGENT OR PERSON ACTING ON BEHALF OF
SELLER AND ANY AFFILIATE OF SELLER OF AND FROM ANY AND ALL CLAIMS, ACTIONS,
CAUSES OF ACTION, DEMANDS, RIGHTS, DAMAGES, LIABILITIES AND COSTS WHATSOEVER,
DIRECT OR INDIRECT, KNOWN OR UNKNOWN, WHICH BUYER NOW HAS OR WHICH MAY ARISE IN
THE FUTURE AGAINST SELLER OR ANY SUCH OTHER PARTIES RELATED IN ANY WAY TO THE
PROPERTY, INCLUDING, WITHOUT LIMITATION, THEIR CONSTRUCTION, VALUE, COMPLIANCE
WITH LAWS, OR CONDITION. IN FURTHERANCE OF THE FOREGOING AND NOT IN LIMITATION
THEREOF, BUYER HEREBY AGREES NOT TO ASSERT ANY CLAIM FOR CONTRIBUTION, COST,
RECOVERY OR OTHERWISE AGAINST SELLER OR ANY SUCH AFFILIATE (WHETHER ARISING
UNDER STATUTORY LAW, COMMON LAW, FEDERAL LAW,
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STATE LAW OR OTHERWISE) RELATING, DIRECTLY OR INDIRECTLY, TO THE PHYSICAL
CONDITION OF THE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE EXISTENCE OF OIL,
LEAD PAINT, ASBESTOS, OR HAZARDOUS MATERIALS OR SUBSTANCES ON, OR THE
ENVIRONMENTAL CONDITION OF, THE PROPERTY, WHETHER KNOWN OR UNKNOWN. THE
PROVISIONS OF THIS SECTION 5.1. SHALL SURVIVE THE CLOSING.
5.2 SELLER'S COVENANTS. Seller agrees that:
5.2.1 MAINTENANCE OF PROPERTY. From and after the
date of this Agreement through the Closing, the Property will be operated and
managed on behalf of Seller in the normal course of business, in a manner
consistent with the way the Property is presently being operated and managed.
5.2.2 CONTRACTS. All Contracts shall remain in full
force subsequent to, and shall not be terminated as of, the Closing Date and
shall be assigned to and assumed by Buyer at Closing, in accordance with an
subject to the terms and conditions of the assignment and assumption agreement
attached hereto as EXHIBIT F. Seller shall not enter into new contracts, amend
Contracts or terminate Contracts (other than due to the default of the other
party thereto) without the approval of Buyer, such approval not to be
unreasonably withheld, conditioned or delayed. The failure of Buyer to respond
to a request by Seller to take any of the foregoing actions within five (5)
business days of such request shall be deemed the consent of Buyer to the taking
of such action.
6. CLOSING.
6.1. The closing (the "Closing") under this Agreement shall
occur at 10:00 A.M. on October 15, 2000 (the "Closing Date"), at the offices of
Goulston & Storrs, P.C., 400 Atlantic Avenue, Boston, Massachusetts 02110.
6.2 SELLER'S DELIVERIES. At Closing, Seller shall deliver to
Buyer the following (collectively, the "Seller's Closing Documents):
6.2.1 A Special Warranty Deed (the "Deed") for the
Real Property substantially in the form attached hereto and made a part hereof
as EXHIBIT C running to Buyer conveying fee simple title to the Real Property,
free from encumbrances except the following "Permitted Encumbrances":
(a) taxes and assessments for the then current year
and future years as are not yet due and payable at
Closing;
(b) "roll-back" taxes, if any, pertaining to all or
any portion of the Real Property;
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(c) all covenants, conditions, easements,
restrictions, rights-of-way, reservations, and other
matters of record set forth as exceptions or
exclusions to coverage in the Commitment, or
referenced in any other title certification, title
report, or title insurance commitment received by
Buyer during the Inspection Period; and
(d) all covenants, conditions, easements,
restrictions, rights-of-way, reservations, and other
matters which a survey of the Real Property would
disclose provided the same do not materially
interfere with the current use of the Improvements.
(e) local, state and federal laws, ordinances or
governmental regulations, including but not limited
to, building and zoning laws, ordinances and
regulations, now or hereafter in effect relating to
the Property;
(f) the effects of the recorded plan(s) of
subdivisions of record affecting the Real Property,
and rights and interests thereunder or pertaining
thereto; and
(g) the standard preprinted form exceptions set forth
in an ALTA Owner's Title Policy.
6.2.2 The Commitment in accordance with Section 4.1
hereof;
6.2.3 A Bill of Sale for the Personalty,
substantially in the form attached hereto and made a part hereof as EXHIBIT E.
6.2.4 An assignment and assumption agreement
substantially in the form attached hereto and made a part hereof as EXHIBIT F,
assigning to Buyer all right, title and interest of Seller in and to the Leases
and the Contracts.
6.2.5 Originals of all Contracts to the extent in the
possession of Seller.
6.2.6 Written notices (collectively, the "Sale
Notices") signed by the Seller, addressed to each contractor to the Contracts,
indicating that the Property has been sold to Buyer and that all rights of
Seller thereunder and in any security deposits have been assigned to Buyer,
substantially in the form of EXHIBIT H attached hereto and made a part hereof,
respectively.
6.2.7 An affidavit sufficient for the Title Company
to delete any exceptions for parties in possession (other than tenants under the
Leases) and mechanics' and materialmen's liens from the title policy for the
Real Property. Except for the foregoing
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affidavit, Seller shall not be obligated under the terms of this Agreement to
indemnify the Title Company for any matter affecting title to the Property.
6.2.8 Certifications and affidavits as required by
the Foreign Investors Real Property Tax Act, substantially in the form attached
hereto and made a part hereof as EXHIBIT G.
6.2.9 A closing and proration statement reflecting
all adjustments to the Purchase Price contemplated by this Agreement (the
"Closing Statement").
6.2.10 The Certificate As To Information Required
Under Internal Revenue Code Section 6045, in the form required under Section
6045 of the Internal Revenue Code.
6.2.11 All other documents reasonably required to
effectuate this Agreement and the transaction contemplated hereby.
6.2.12 Possession of the Property shall be delivered
to Buyer immediately following the Closing.
6.3 BUYER'S DELIVERIES. At Closing, Buyer shall deliver to
Seller the following:
6.3.1 The Purchase Price in accordance with the
provisions of Section 2.3 hereof.
6.3.2 Duplicate originals of the assignment and
assumption agreement in the form attached hereto as EXHIBIT F.
6.3.3 The Closing Statement.
6.3.4 The Sale Notices.
6.3.5 The Certificate As To Information Required
Under Internal Revenue Code Section 6045, in the form required under Section
6045 of the Internal Revenue Code.
6.3.6 All other documents reasonably required to
effectuate this Agreement and the transaction contemplated hereby, including,
without limitation, such transfer or other similar forms required by law.
6.4 TITLE MATTERS. If Seller shall be unable to convey title
or satisfy the conditions to Closing on the Closing Date, then Seller shall use
reasonable efforts to remove any defects in title or satisfy any condition as
provided herein, as the case may be, in which event the
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Seller shall give notice thereof to Buyer at or before the Closing Date, and
thereupon the Closing Date shall be extended for a period of up to forty-five
(45) days; provided, however, in no event shall Seller be obligated to expend
more than $100,000 to remove such title defects and/or satisfy such conditions.
In the event Seller shall be unable to convey title or satisfy the conditions to
Closing on the date of Closing in accordance with this Agreement, then Buyer
shall have the option, exercisable by notice to Seller at or prior to the
Closing Date, as the same may have been extended, of either: (i) accepting at
Closing such title as Seller is able to convey and/or waiving any defect, and
waiving any other condition to Closing as herein required, with no deduction
from or adjustment of the Purchase Price; or (ii) terminating this Agreement, in
which event all obligations, liabilities and rights of the parties under this
Agreement shall terminate except as otherwise herein provided, and the entire
Deposit shall be returned to Buyer.
7. APPORTIONMENTS; TAXES; EXPENSES.
7.1 APPORTIONMENTS.
7.1.1 TAXES. Applicable real estate and personal
property taxes for the Property shall be apportioned as of the Closing with the
Seller being responsible for all taxes payable with respect to the period up to
the Closing Date and with Buyer being responsible for such taxes payable with
respect to the period from and after the Closing Date and, if necessary, the net
amounts shall be added to or deducted from, as the case may be, the Purchase
Price. The term "real estate taxes" shall include any installments of
betterment, special or similar assessments. If the amount of such taxes is not
known at the Closing, such taxes shall be apportioned on the basis of the taxes
assessed for the preceding tax period, with a reapportionment within sixty (60)
days of the Closing (or as soon thereafter as such taxes are determined) 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. Neither party shall be obligated to
commence or prosecute abatement proceedings.
7.1.2 OPERATING EXPENSES. All maintenance,
management, electricity, water, gas, sewage and other utility and operating
expenses applicable to the Property and payments under any Contracts shall be
prorated between the Seller and Buyer as of the Closing based on estimates of
the amounts that will be due and payable on the next payment date, unless final
readings or invoices therefor as of the Closing shall have been obtained, in
which case such final readings or invoices shall be utilized as the basis for
adjustment. During the sixty (60) day period following the Closing, Seller and
Buyer shall recalculate the foregoing adjustment with the result that Seller
shall pay for those expenses attributable to the period of time prior to the
Closing Date and Buyer shall pay for those expenses attributable to the period
of time commencing with the Closing Date. Any and all deposits held by utility
companies or with other providers of services to the Property shall remain the
property of Seller and be returned to the Seller by such companies and
providers, except to the extent that Buyer elects to credit to Seller the amount
of any such deposits.
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7.2 EXPENSES.
7.2.1 SELLER'S EXPENSES. Seller shall pay (a) the
recordation taxes incident to the recording of the Deed, and (b) expenses
incurred by Seller in connection with the transaction contemplated by this
Agreement.
7.2.2 BUYER'S EXPENSES. Buyer shall pay expenses
incurred by Buyer in connection with the transaction contemplated by this
Agreement.
7.2.3 OTHER EXPENSES. Except as herein specifically
provided, Seller and Buyer shall allocate all closing costs between them in
accordance with standard practice in Provo, Utah.
7.3 ERRORS; SURVIVAL. During the sixty (60) day period
following the Closing, Buyer and Seller agree to re-prorate the closing
adjustments in order to correct any error in performing the prorations or to
reflect information that becomes available during such 60-day period indicating
that the prorations performed at Closing were not accurate. The provisions of
this Article 7 shall survive the Closing.
8. EMINENT DOMAIN; CASUALTY.
8.1 If all or substantially all of the Property is taken by
eminent domain after the date hereof and prior to the Closing, this Agreement
shall terminate and the Deposit shall be returned to Buyer. If a taking by
eminent domain of a material part of the Property shall be made after the date
hereof and prior to the Closing, then the Seller shall promptly notify Buyer of
the same (the "Taking Notice"), and Buyer shall have the right to terminate this
Agreement by notice from Buyer to Seller given on or before the date that is the
earlier to occur of: (a) after ten (10) days the date of the Taking Notice, and
(b) the Closing. In the event Buyer does not terminate this Agreement, Buyer
shall accept such title to the Property as the Seller can deliver subject to
such taking, in which case Seller shall pay over or assign to Buyer all rights
and proceeds arising by reason of such taking (less any collection costs
incurred by Seller in connection therewith and any costs and expenses incurred
by Seller to restore the Property) and Buyer shall pay the Purchase Price
without reduction.
If a taking by eminent domain of an immaterial part of the Property
shall be made after the date hereof and prior to the Closing, then the Buyer
shall accept such title to the Property as the Seller can deliver subject to
such taking, in which case Seller shall pay over or assign to Buyer all rights
and proceeds arising by reason of such taking (less any collection costs
incurred by Seller in connection therewith and any costs and expenses incurred
by Seller to restore the Property) and Buyer shall pay the Purchase Price
without reduction. For purposes of this Section 7.1, "material" shall mean any
loss due to a condemnation which (a) materially impairs the current use of the
Property, (b) eliminates more than ten percent (10%) of the parking spaces
servicing the Property, (c) materially and adversely affects access to the
Property or (d) results in
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tenants leasing an aggregate of more than ten (10%) of the then leased area of
the Property having the right to terminate their Leases.
8.2 If any time after the date hereof and prior to the Closing
any portion of the Improvements is destroyed or damaged as a result of fire or
any casualty, the Seller shall promptly give notice thereof to Buyer. The rights
and obligations of the parties by reason of such destruction or damage shall be
as follows:
8.2.1 If the "Cost of Repair and Restoration" (as
hereinafter defined) of such destruction or damage shall be $500,000 or less,
the obligations of the parties hereunder shall not be affected by such
destruction or damage, and Buyer shall accept title to the Property in its
destroyed or damaged condition. Buyer shall pay the Purchase Price without
reduction, and the Seller shall pay over or assign to Buyer without recourse all
rights to any proceeds of insurance payable with respect to such destruction or
damage (less any collection costs incurred by Seller in connection therewith and
any costs and expenses incurred by Seller to restore the Property) and Buyer
shall receive a credit against the Purchase Price in the amount of any
deductible.
8.2.2 If the Cost of Repair and Restoration of such
destruction or damage shall exceed $500,000, Buyer shall have the right to
terminate this Agreement by notice from Buyer to Seller given on or before the
date that is the earlier to occur of (a) ten (10) days after the date of the
Cost Notice (as hereinafter defined) and (b) the Closing Date. In the event
Buyer does not terminate this Agreement, Buyer shall accept title to the
Property in its destroyed or damaged condition in accordance with and subject to
the provisions of subparagraph 8.2.1 above. If Buyer so terminates this
Agreement, then the Deposit shall be paid to Buyer.
8.2.3 The term "Cost of Repair and Restoration" shall
mean the amount of Seller's good faith estimate of the actual cost of repair and
restoration to restore the Property to the condition it was in immediately prior
to the casualty. Seller shall send Buyer notice of the Cost of Repair and
Restoration (the "Cost Notice") promptly after making the aforesaid estimate.
8.3 The provisions of Section 8.2 shall survive the delivery
of the Deed and the Closing.
9. REMEDIES.
9.1 SELLER'S REMEDIES. If Seller shall have fulfilled all of
its obligations under this Agreement in the time and manner specified herein and
Buyer breaches any of its obligations hereunder, then Seller shall, as its sole
remedy therefor, be entitled to receive the entire Deposit, as liquidated
damages (and not as a penalty) in lieu of, and as full compensation for, all
other rights or claims of Seller against Buyer by reason of such default.
Thereupon this Agreement shall terminate and the parties shall be relieved of
all further obligations and liabilities hereunder, except as expressly set forth
herein. Buyer and Seller acknowledge that the damages to Seller resulting from
Buyer's breach would be difficult, if
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not impossible, to ascertain with any accuracy, and that the liquidated damage
amount set forth in this Section represents both parties' efforts to approximate
such potential damages.
9.2 BUYER'S REMEDIES. If Buyer shall have fulfilled all of its
obligations under this Agreement in the time and manner specified herein and
Seller breaches any of its obligations hereunder, Buyer shall have, as its sole
remedy therefor, the right either to (a) bring an action for specific
performance for conveyance of the Property on the terms set forth in this
Agreement, or (b) receive the entire Deposit, in which event this Agreement
shall terminate and the parties shall be relieved of all further obligations and
liabilities hereunder, except as expressly set forth herein.
9.3 REMEDIES EXCLUSIVE. By the express agreement of Buyer and
Seller, the remedies set forth in this Article 9 constitute the sole remedies at
law or in equity available to Buyer and Seller, as the case may be, on account
of the other party's breach of its obligations under this Agreement; provided,
however, to the extent any terms or provisions hereof are specifically intended
to survive the Closing and delivery of the Deed or the termination of this
Agreement, the other party shall have all remedies with respect thereto as may
be available at law or in equity. In no event, however, shall either party
hereto be liable for any consequential, special, indirect or punitive damages,
and in no event shall damages for which Seller is responsible hereunder exceed
the Purchase Price to the extent actually received by Seller at Closing.
10. FURTHER ASSURANCES. After the Closing, Seller and Buyer agree to
perform such other acts, and to execute, acknowledge and deliver, such other
instruments, documents and other materials as the other may reasonably request
(at no cost to such party) and as shall be necessary in order to effect the
consummation of the transactions contemplated hereby. The provisions of this
Article 10 shall survive the Closing.
11. REPRESENTATIONS OF BUYER. Buyer hereby makes the following
representations and warranties to the best of Buyer's actual knowledge as of the
date hereof and again as of the Closing, the truth and accuracy of which shall
constitute a condition to Closing for the benefit of Seller. These
representations and warranties are made as a material inducement to Seller to
enter into this Agreement, and Seller would not have entered into this Agreement
except in reliance upon the representations and warranties of Buyer made herein.
Seller shall be entitled to rely upon the representations and warranties of
Buyer.
11.1 AUTHORITY. Buyer is a limited liability company, duly
organized, validly existing and in good standing under the laws of the State of
Utah and Buyer has all requisite power and authority to enter into this
Agreement and all documents now or hereafter to be executed and delivered by
Buyer pursuant to this Agreement (collectively, "Buyer's Documents") and to
perform its obligations hereunder and under Buyer's Documents.
11.2 NO CONFLICT. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereunder on the part of
Buyer do not and will
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not violate any applicable law, ordinance, statute, rule, regulation, order,
decree or judgment, conflict with or result in the breach of any material terms
or provisions of, or constitute a default under, or result in the creation or
imposition of any lien, charge, or encumbrance upon any of the property or
assets of Buyer which will not be discharged or released at Closing by reason
of, the terms of any contract, mortgage, lien, lease, agreement, indenture,
instrument or judgment to which Buyer is a party.
Buyer's representations and warranties set forth in this Agreement
shall survive the Closing for a period of twelve (12) months and any action
brought on Buyer's representations and warranties shall be commenced within said
twelve (12) month period or shall be forever barred and waived.
12. NOTICES. All notices, approvals, consent, requests and other
communications provided for herein shall be in writing (from either a party
hereto or its counsel) and shall be sent to the address set forth below (or such
other address as a party may hereafter designate for itself by notice to the
other parties as required hereby) of the party for whom such notice or
communication is intended:
12.1 If to Seller:
Open Market, Inc.
One Wayside Road
Burlington, Massachusetts 01803-4613
Attention: Susan Burton, Director of Real Estate
With a copy to:
Open Market, Inc.
One Wayside Road
Burlington, Massachusetts 01803-4613
Attention: Office of General Counsel
And a copy to:
Goulston & Storrs, P.C.
400 Atlantic Avenue
Boston, Massachusetts 02110
Attention: Frank E. Litwin, Esq.
12.2 If to Buyer:
W.J. Knowles
3311 N University Avenue
Suite 200
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Provo UT 84604
With a copy to:
Hill, Johnson & Schmutz, LLC
3319 North University Avenue, Suite 200
Provo, Utah 84604
Attention: Richard L. Hill, Esq.
Each notice, approval, consent, request, or other communication shall
be deemed received at the earlier of (a) when delivered in hand, (b) forty-eight
(48) hours after the same has been deposited in the United States mail, postage
prepaid, certified or registered mail, return receipt requested, or (c)
twenty-four (24) hours after the same has been deposited with a nationally
recognized overnight delivery service which provides tracking and receipt
services for such deposited notices, addressed in all cases to the respective
party at their addresses set forth above, or to such other address or addresses
as the parties may from time to time specify by notice so given.
13. BROKERS. Buyer and Seller each represent to the other that it has
not dealt with any broker or agent in connection with this transaction other
than Scott McDonald and Rob T. Smith (collectively, the "Brokers"). Seller shall
pay Brokers a commission in connection with this Agreement if, as and when the
Closing shall occur and not otherwise, pursuant to a separate agreement. Each of
Buyer and Seller hereby indemnifies and holds harmless the other from all
losses, costs and expenses (including reasonable attorneys' fees and expenses)
arising out of a breach of its representation or undertaking set forth in this
Article 13. The provisions of this Article 13 shall survive Closing or the
termination of this Agreement.
14. ESCROW AGENT.
14.1 All Deposits paid by BUYER under this Agreement shall be
held in escrow by Escrow Agent (the "Escrow Agent") and shall be deposited by
the Escrow Agent into an interest bearing bank account at First Security Bank of
Utah, N.A. The Escrow Agent shall hold such amounts together with all interest
accrued thereon (the "Escrow Funds") in such account until such time as it
receives:
a) A written notice signed by the Buyer and the Seller directing it
to release all or a portion of the Escrow Funds to the party
specified in such notice; or
b) A final order, judgment or decree of a court directing the
disposition of the Escrow Funds.
14.2 The Escrow Agent shall not be responsible for the
genuineness of any signature or for the genuineness or collectibility of any
check and may rely conclusively and
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shall be protected in relying upon, and shall have no duty or obligation to
investigate, ascertain the correctness or status of, any judgment, order,
decree, certificate, notice, request, consent, statement or other instrument
delivered to it in connection with its activities hereunder. In no event shall
the Escrow Agent be liable for any act performed or omitted to be performed by
it hereunder in the absence of willful and wanton misconduct, and in no event
shall it be liable or responsible for any failure of the banking institution in
which the Escrow Funds are held to pay any amount at the Escrow Agent's
direction or for any failure of such amounts to be covered by deposit insurance.
BUYER and SELLER hereby jointly and severally indemnify and hold the Escrow
Agent harmless from any damage, cost, liability or expense (including, but not
limited to, legal fees either paid to retained attorneys or representing the
fair value of legal services rendered by the Escrow Agent) which the Escrow
Agent may incur by reason of its actions hereunder, without prejudice to any
right which the SELLER or the BUYER may have to recover from the other for any
such damage, cost, liability or expense. Without limiting the generality of the
foregoing, in no event shall the Escrow Agent be required to take any action
unless and until it has been indemnified to its satisfaction by the party
requesting such action.
14.3 In the event that a dispute shall arise as to the
disposition of the Deposit, the Escrow Agent shall have the right, at its
option, to either hold the same or deposit the same with a court of competent
jurisdiction pending decision of such court, and the Escrow Agent shall be
entitled to rely upon the final decision of such court no longer subject to
appeal.
14.4 The Escrow Agent shall be entitled to rely upon any
judgment, certification, demand or other writing delivered to it hereunder
without being required to determine the authenticity or the correctness of any
fact stated therein, the propriety or validity thereof, or the jurisdiction of a
court issuing any such judgment. The Escrow Agent may act in reliance upon (i)
any instrument or signature believed to be genuine and duly authorized, and (ii)
advice of counsel in reference to any matter or matters connected therewith.
15. MISCELLANEOUS.
15.1 ASSIGNABILITY. Buyer may not assign or transfer all or
any portion of its rights or obligations under this Agreement to any other
individual, entity or person without the prior written consent thereto by
Seller. No assignment or transfer by Buyer will release Buyer of its obligations
hereunder.
15.2 GOVERNING LAW; PARTIES IN INTEREST. This Agreement shall
be governed by the laws of the State of Utah and shall bind and inure to the
benefit of the parties hereto and their respective heirs, executors,
administrators, successors, and permitted assigns.
15.3 RECORDING; CONFIDENTIALITY. Neither this Agreement nor
any notice or memorandum hereof shall be recorded in any public record. A
violation of this prohibition shall constitute a material breach of this
Agreement. Prior to Closing, Buyer shall maintain in strict confidence all
information received by it from Seller or obtained as a result of its inspection
of
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<PAGE>
the Property or review of Seller's books and records, this obligation to survive
the termination of this Agreement.
15.4 TIME OF THE ESSENCE. Time is of the essence of this
Agreement.
15.5 HEADINGS. The headings preceding the text of the
paragraphs and subparagraphs hereof are inserted solely for convenience of
reference and shall not constitute a part of this Agreement, nor shall they
affect its meaning, construction or effect.
15.6 COUNTERPARTS. This Agreement may be executed
simultaneously in counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.
15.7 EXHIBITS. All Exhibits which are referred to herein and
which are attached hereto or bound separately are expressly made and constitute
a part of this Agreement.
15.8 MERGER. Except as otherwise specifically provided herein,
the acceptance of the Deed by the recordation thereof shall be deemed to be a
full and complete performance and discharge of every agreement and obligation of
Seller herein contained.
15.9 ENTIRE AGREEMENT; AMENDMENTS. This Agreement and the
Exhibits hereto set forth all of the covenants, representations, warranties,
agreements, conditions and undertakings between the parties hereto with respect
to the subject matter hereof, and supersede all prior and contemporaneous
agreements and understandings, inducements or conditions, express or implied,
oral or written. This Agreement may be amended, modified or altered only by an
agreement in writing, duly executed by or on behalf of the party or parties
against whom enforcement of any waiver, change, modification, consent or
discharge is sought.
15.10 COST OF LITIGATION. In the event of any litigation to
enforce this Agreement if either party obtains final judgment on the merits,
then the prevailing party shall be entitled to recover the reasonable actual
out-of-pocket attorneys fees and disbursements which it incurs in connection
with said action.
15.11 LIMITATION OF LIABILITY. In no event shall any officer,
director, partner, shareholder, agent or employee of Buyer be personally liable
for any of the obligations of Buyer under this Agreement. In no event shall any
officer, director, partner, shareholder, agent or employee of Seller be
personally liable for any of the obligations of Seller under this Agreement.
15.12 NO AGREEMENT UNTIL EXECUTION AND DELIVERY. The delivery
by either party of unexecuted copies of this Agreement is solely for the purpose
of review by the party to whom delivered and is in no way to be construed as an
offer or an acceptance by either party or an agreement to sell or purchase the
Property, as applicable, and neither party shall be bound by the terms hereof
until a definitive agreement satisfactory to both Purchaser and Seller has been
executed and delivered by both parties.
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<PAGE>
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as an instrument under seal as of the date first above written.
SELLER:
FOLIO CORPORATION, a Utah corporation
By: /s/ Betty J. Savage
---------------------------------
Name:Betty J. Savage
Its: Secretary
Hereunto duly authorized
Federal Taxpayer ID # 87-0443158
BUYER:
VISION IV PROPERTIES LLC, a Utah limited
liability company
/s/ W.J. Knowles
-----------------------------------
W.J. Knowles, its manager, hereunto duly authorized
Federal Taxpayer ID # 87-0643828
ESCROW AGENT:
FIRST AMERICAN TITLE INSURANCE
COMPANY
/s/ Charles S. Walker
-------------------------------
By:
Name: Charles S. Walker
Its: Vice President
Address and Telephone Number:
578 So. State
Orem, Utah 84058
(801) 224-8676
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<PAGE>
SCHEDULE OF EXHIBITS
Exhibit A -- Legal Description of Land
Exhibit B -- Contracts
Exhibit C -- Special Warranty Deed
Exhibit D -- Title Exceptions
Exhibit E -- Bill of Sale
Exhibit F -- Assignment and Assumption Agreement Re: Contracts
Exhibit G -- Non-Foreign Certification
Exhibit H -- Notice of Sale Letter to Contractors
Exhibit I -- Schedule of Personal Property
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EXHIBIT A
LEGAL DESCRIPTION OF LAND
B-1
<PAGE>
EXHIBIT B
CONTRACTS
1. Agreement with Bratt, Inc., for landscaping and maintenance services;
2. Agreement with Simplex, for monitoring services;
3. Agreement with The Trane Company, for air conditioning equipment
controls and related heating equipment services (the "Trane Contract");
4. Agreement with Professional Building Maintenance, for janitorial
services; and
5. Agreement with Dover Elevator Company, for elevator maintenance
services (the "Dover Contract").
C-1
<PAGE>
EXHIBIT C
SPECIAL WARRANTY DEED
FORM OF DEED
SPECIAL WARRANTY DEED
The undersigned, FOLIO CORPORATION having a mailing address of ________
(the "Grantor"), for consideration paid and in full consideration of
_____________ AND 00/100 DOLLARS ($___________) paid and other good and valuable
consideration, hereby CONVEYS and WARRANTS against all claiming by, through or
under it, but not otherwise, to VISION IV PROPERTIES, LLC, a Utah limited
liability company having a mailing address of c/o ___________________ (the
"Grantee"), the land and all improvements thereon located in the Provo City,
Utah County, Utah, and more particularly described on Exhibit A attached hereto
and made a part hereof.
Reference is made to that certain Purchase and Sale Agreement (the
"Agreement") dated July ___, 2000, between Grantor as Seller, and Grantee, as
Buyer. All capitalized words and phrases used below and not otherwise defined
herein shall have the meanings ascribed to them in the Agreement. The property
conveyed hereby is conveyed subject to the following:
(a) taxes and assessments for the then current year
and future years as are not yet due and payable at
Closing;
(b) "roll-back" taxes, if any, pertaining to all or
any portion of the Real Property;
(c) all covenants, conditions, easements,
restrictions, easements, rights-of-way reservations,
and other matters of record set forth as exceptions
or exclusions to coverage in the Commitment or in any
other title certification, title report, or title
insurance commitment received by Grantee during the
Inspection Period; and
(d) all covenants, conditions, easements,
restrictions, easements, rights-of-way reservations,
and other matters which a survey of the Real Property
would disclose provided the same do not materially
interfere with the current use of the Improvements.
(e) local, state and federal laws, ordinances or
governmental regulations, including but not limited
to, building and zoning laws,
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ordinances and regulations, now or hereafter in
effect relating to the Property;
(f) the effects of the recorded plan(s) of
subdivisions of record affecting the Real Property,
and rights and interests thereunder or pertaining
thereto; and
(g) the standard preprinted form exceptions set forth
in an ALTA Owner's Title Policy.
IN WITNESS WHEREOF, the said Grantor has executed this Deed as a sealed
instrument as of the ______ day of ______________, 2000.
FOLIO CORPORATION
By:
--------------------------------------------
Name:
-------------------------------------
Its:
--------------------------------------
Hereunto duly authorized
3
<PAGE>
COMMONWEALTH OF MASSACHUSETTS)
)
COUNTY OF ) ___________ ___, 2000
On this day, before me, personally appeared ____________________ who
being by me duly sworn, did say that he is _________________ of
_________________ and he acknowledged the foregoing instrument to be his free
act and deed and the free act and deed of said ________________, before me
-----------------------------------------
Notary Public
My Commission expires:
-------------------
4
<PAGE>
EXHIBIT A
LEGAL DESCRIPTION
5
<PAGE>
EXHIBIT D
TITLE EXCEPTIONS
E-1
<PAGE>
EXHIBIT E
FORM OF BILL OF SALE
BILL OF SALE
KNOW ALL MEN BY THESE PRESENTS, that FOLIO CORPORATION, ("Seller"), for
and in consideration of the sum of ten dollars ($10.00) and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, does hereby bargain, sell, grant, transfer, assign, and convey to
_______________ ("Buyer"), its successors and assigns, for its and their own use
and benefit, forever, any and all personal property owned by Seller and now at,
in or upon or used in connection with the premises known as The NextPage
Building, City of Provo, County of Utah, State of Utah, and more particularly
described in EXHIBIT A attached hereto (the "Premises"). Said personal property
to include the following:
All items of personal property owned by Seller and located on the
Premises or used in connection with the ownership or operation of the
Premises, including, without implied limitation, all furniture,
fixtures, equipment, machines, apparatus, appliances, supplies and
personal property of every nature and description and all replacements
thereof, and any intangible property now or hereafter owned by Seller
and used in the ownership or operation of the Premises and including,
without limitation, to the extent Seller has rights therein that can be
assigned, any plans and specifications, surveys, drawings, manuals, and
records, and with respect to the management, leasing, promotion,
ownership, maintenance, use, occupancy and operation of the Premises,
permits, licenses, governmental approvals, guaranties, warranties,
contracts, lease agreements, service contracts, utility contracts or
other rights relating to the ownership, use or operation of the
Premises; however, specifically excluding therefrom (i) all
free-standing furniture within the private offices at the Premises;
(ii) all computer equipment, PBX and telephone equipment, and
networking equipment located at or in the Premises; (iii) the
tradenames, names, logos, signs, and indentifications, "Folio", "Folio
Corporation", "Open Market", "Open Market, Inc.", and all derivatives
thereof; and (iv) all patents, trademarks, copyrights, processes,
intellectual property and other intangible property used in connection
with or related to the business operations of the Seller and its
affiliates (as distinct from those necessary for the future operation
or maintenance of the Real Property).
Except as expressly set forth in the Purchase and Sale Agreement for
the Premises, Seller makes no warranty, express or implied, as to the condition
of the personal property or its merchantability of fitness for any particular
purpose. By its acceptance of this Bill of Sale, Buyer acknowledges that it has
fully inspected the personal property and Buyer accepts the same in its present
use and "as is condition" in
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<PAGE>
accordance with and subject to, and except as otherwise expressly provided in
the Purchase and Sale Agreement for the Premises.
Seller does hereby agree to warrant and defend title to said personal
property unto Seller, its successors and assigns against the lawful claims and
demands of all persons claiming by, through or under Seller.
The liability of the Seller hereunder shall be limited as provided in the
Purchase and Sale Agreement, dated _______ __, 2000.
In Witness Whereof, Seller has executed this Bill of Sale, under seal,
as of the ____ day of ______________, 2000.
Witness: SELLER:
FOLIO CORPORATION
By:
---------------------------- -----------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
Hereunto duly authorized
F-2
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EXHIBIT A
DESCRIPTION OF REAL PROPERTY
F-3
<PAGE>
EXHIBIT F
ASSIGNMENT AND ASSUMPTION AGREEMENT
RE: CONTRACTS
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT is made as of this ____ day of
_________, 2000, by and between FOLIO CORPORATION, having an address of c/o Open
Market, Inc., One Wayside Road, Burlington, Massachusetts 01803, ("Assignor"),
and ________________________________ ("Assignee").
WITNESSETH:
WHEREAS, Assignee has this date purchased from Assignor certain real
property (the "Premises"), known as The NextPage Building, Provo, Utah, all more
particularly described on EXHIBIT A attached hereto made a part hereof, and
WHEREAS, under the terms and conditions of the Purchase and Sale
Agreement pursuant to which the Premises were purchased, it was contemplated
that Assignor and Assignee would enter into this Assignment;
NOW, THEREFORE, in consideration of the premises herein contained and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and intending to be legally bound hereby, the parties
hereto do hereby agree as follows:
1. Assignor hereby transfers and assigns to Assignee all right, title
and interest of Assignor in and to all those certain service, supply and
maintenance agreements, equipment leases and other contracts with respect to or
affecting the Premises specifically listed on EXHIBIT B attached hereto and made
a part hereof (collectively, the "Contracts").
TO HAVE AND TO HOLD all of the foregoing unto the Assignee, its
successors and assigns, from and after the date hereof, subject to the terms,
covenants, conditions and provisions contained herein.
2. Assignee hereby accepts the foregoing assignment of the Contracts
and hereby assumes all the duties and obligations of Assignor accruing from and
after the date hereof under or with respect to the Contracts. Assignee shall
indemnify, defend and hold Assignor harmless from and against any and all
claims, liabilities and costs (including reasonable attorneys' fees and costs)
arising out of or relating to Assignee's failure to perform any duty or
obligation assumed by Assignee under the Contracts.
G-1
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3. Assignor shall indemnify, defend and hold Assignee harmless from and
against any and all claims, liabilities and costs (including reasonable
attorneys' fees and costs) arising out of or relating to Assignor's failure to
perform any duty or obligation accruing before the date hereof under the
Contracts or with respect to the Security Deposits.
4. This Agreement shall bind and inure to the benefit of the parties
hereto and their respective successors and assigns.
IN WITNESS WHEREOF, the parties have executed this Agreement as an
instrument under seal on the day and year first above written.
ASSIGNOR:
FOLIO CORPORATION
By:
---------------------------------------
Name:
--------------------------------
Its:
---------------------------------
ASSIGNEE:
------------------------------
By:
---------------------------------------
Name:
--------------------------------
Its:
---------------------------------
G-2
<PAGE>
EXHIBIT A
LEGAL DESCRIPTION
3
<PAGE>
EXHIBIT B
CONTRACTS
I-1-
<PAGE>
EXHIBIT G
NON-FOREIGN CERTIFICATION
Section 1445 of the Internal Revenue Code provides that a transferee
(or buyer) of a U.S. real property interest must withhold tax if the transferor
(or seller) is a foreign person. To inform the transferee that withholding of a
tax is not required in connection with the transfer of a U.S. real property
interest by OPEN MARKET, INC. ("Seller"), the undersigned being duly authorized
hereby certifies as to the following:
1. Seller is not a foreign corporation, foreign partnership,
foreign trust, foreign estate or non-resident alien individual
(as those terms are defined in the Internal Revenue Code
Section 1445 and regulations promulgated thereunder or under
other provisions applicable thereto);
2. The U.S. Taxpayer Identification Number of Seller is
____________;
3. The address of Seller is One Wayside Road, Burlington,
Massachusetts 01803-4613.
The undersigned understands that this Certification may be disclosed to
the Internal Revenue Service and that any false statement contained herein could
be punished by fine, imprisonment or both.
Under penalties of perjury, the undersigned declares that he has
examined this certification and to the best of his knowledge and belief it is
true, correct and complete.
Date: _________________, 2000
SELLER:
FOLIO CORPORATION
By:
--------------------------------
Name:
-------------------------
Its:
--------------------------
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<PAGE>
EXHIBIT H
NOTICE OF SALE LETTER TO CONTRACTORS
__________________, 2000
VIA CERTIFIED MAIL
RETURN RECEIPT REQUESTED
Re: The NextPage Building, Provo, Utah
Dear Contractor:
This is to advise you that the above referenced property was sold to
______________ ("Purchaser"). As part of the sale, your contract has been
assigned to Purchaser, Purchaser has assumed the obligations as owner under your
contract from and after the date of this letter, and any goods, services or
utilities supplied to the property subsequent to the date of this letter shall
be for its account.
The above referenced property will be managed by ___________________________,
and all future invoices and correspondence and any and all notices to Purchaser
should be sent to:
Thank you for your attention to this matter.
SELLER:
FOLIO CORPORATION
By:
------------------------------------
Name:
Its:
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BUYER:
------------------------------
By:
-------------------------------------------
Name:
------------------------------------
Its:
-------------------------------------
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