EXHIBIT-10.78


 


FIRST
AMENDMENT TO PURCHASE AND SALE AGREEMENT


 


This
First Amendment to Purchase and Sale Agreement (the “First Amendment”)
is hereby entered into as of the 11th day of December, 2003 by and
among Leonard Florence Associates, Inc., a Massachusetts corporation (“Seller”),
175 McClellan Highway LLC, a Delaware limited liability company (“Purchaser”),
and Syratech Corporation, a Delaware corporation (“Syratech”).


 


WHEREAS,
Seller and Berkeley Investments, Inc., a Massachusetts corporation (“Berkeley”)
and Syratech executed and delivered that certain Purchase and Sale Agreement
dated as of November 26, 2003, pursuant to which Seller agreed to sell, and
Berkeley or its permitted assignee agreed to purchase, the land with the
buildings thereon located at and known as 175 McClellan Highway and 144 Addison
Street, East Boston, Massachusetts, as affected by letter agreement by and
among Seller, Berkeley and Syratech dated as of December 5, 2003, and as
assigned to Purchaser by Assignment and Assumption of Purchase and Sale
Agreement of even date herewith (the “Assignment and Assumption Agreement”)
by and between Berkeley, as assignor, and Purchaser, as assignee (as so
affected and assigned, the “Purchase Agreement”);


 


WHEREAS, a copy of the
Assignment and Assumption Agreement is attached hereto as Schedule 1;


 


WHEREAS, capitalized terms
used herein and not otherwise defined shall have the meanings set forth in the
Purchase Agreement; and


 


WHEREAS, Seller and
Purchaser have agreed to amend certain terms and provisions of the Purchase
Agreement as more particularly provided in this First Amendment.


 


NOW THEREFORE, in
consideration of the mutual agreements contained herein and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto hereby agree as follows.


 


1.                                       Reduction of Purchase Price.  The
definition of the term “Purchase Price” set forth in Section 1.1 and cross
referenced to the first sentence of Section 2.3 of the Purchase Agreement is
hereby amended by deleting the text “Fifteen Million Eight Hundred Thousand and
00/100 Dollars ($15,800,000.00)” and substituting therefor the text “Fourteen
Million Eight Hundred Thousand and 00/100 Dollars ($14,800,000.00)”.


 


2.                                       Extension of Study Period.


 


(a)                                  The definition of the term “Study Period” set
forth in Section 1.1 of the Purchase Agreement is hereby amended by inserting
the text “and the Violation (as defined in Section 5.2(b)” after the text
“environmental matters”.  Purchaser
acknowledges that the Study Period has expired with respect to Section 5.2(a)
of the Purchase Agreement and Purchaser has no further rights under such
Section 5.2(a).


 

















 


(b)                                 Section 5.2(b) of the Purchase Agreement is
hereby amended by deleting in its entirety the text of said Section 5.2(b) and
substituting therefor the following text:


 


“Notwithstanding the
foregoing, Seller hereby agrees that the Study Period shall be extended to
December 17, 2003 at 5:00 p.m., Boston, Massachusetts time, in order to allow
Purchaser to conduct additional due diligence with respect to the environmental
condition of the Property and the violation issued by the City of Boston
Department of Inspectional Services disclosing the failure to obtain a
certificate of use and occupancy (the “Violation”).  If Purchaser shall not be satisfied with the
environmental condition of the Property or the status of the Violation in its
sole and absolute discretion, Purchaser shall be entitled to terminate this
Agreement at any time at or prior to 5:00 p.m., Boston, Massachusetts time on
December 17, 2003 by giving notice thereof to Seller, and thereupon the Deposit
shall be promptly returned to Purchaser, and except for matters specifically
surviving the termination of this Agreement, Seller and Purchaser shall have no
further obligations or liabilities to each other hereunder.  If Purchaser fails to give such notice prior
to the expiration of the Study Period as so extended, it shall conclusively be
deemed to have elected to waive its right to terminate this Agreement under
this Section 5.2(b) and shall be obligated to purchase the Property in its
condition “AS IS” as of the end of the Study Period as so extended.”


 


3.                                       Amendment to Syratech Lease.


 


(a)                                  The Purchase Agreement is hereby amended by
adding the following text after the phrase “depreciation for capital
expenditures” in the second sentence in Section 9(c) of the Syratech Lease
(Exhibit F):


 


“(other than capital
expenditures on account of replacing the roof and HVAC systems)”.


 


(b)                                 The Purchase Agreement is hereby further
amended by adding the following text as Section 40 of the Syratech Lease
(Exhibit F):


 


“40.                           World Gym of Boston Memberships. 
Gallante Enterprises, Inc. d/b/a World Gym of Boston (“World Gym”),
pursuant to its Lease with Landlord (the “World Gym Lease”), provides
Landlord with free standard World Gym memberships for each year during the term
of the World Gym Lease.  Landlord agrees
that, so long both the World Gym Lease and the Syratech Lease are in effect,
and Tenant is not in default beyond applicable notice, grace or cure periods,
and World Gym so provides such memberships, Tenant shall be entitled to use
twenty (20) of said memberships for the remainder of the term of the World Gym
Lease.”


 


(c)                                  The Purchase Agreement is hereby further amended
by adding the following clause as clause (xxi) of Section 9 of the Syratech
Lease (Exhibit F):


 


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“any repair or maintenance
costs incurred in connection with the roof prior to the date of its replacement
by Landlord.”


 


4.                                       Extension of Closing Date.  The
definition of the term “Closing Date” set forth in Section 1.1 of the Purchase
Agreement is hereby amended by deleting the text “December 15, 2003” and
substituting therefor the text “December 18, 2003”.


 


5.                                       Removal From Chapter 183A.


 


(a) Purchaser has elected to
purchase the Property free and clear of the provisions of Massachusetts General
Laws Chapter 183A, as amended (“Chapter 183A”).  Accordingly, the definition of the term
“Real Property” set forth in Section 1.1 of the Purchase Agreement is hereby
amended by deleting the text of the entire definition thereof and substituting
therefor the following text:


 


““Real Property”
shall mean the Land and the Improvements.”


 


(b) Exhibit A-1 (Real
Property) to the Purchase Agreement is hereby deleted in its entirety, and
Exhibit D (Deed) to the Purchase Agreement is hereby deleted in its entirety
and Exhibit D to this First Amendment is hereby substituted therefor.


 


(c) In lieu of delivering
the certificate referred to in Section 8.2(i) and the resignations referred to
in Section 8.2(j) of the Purchase Agreement, at Purchaser's request, Seller
shall, at Closing, execute and deliver documents provided by Purchaser removing
the Land and Improvements from Chapter 183A (provided such documents impose no
obligations or liability on Seller).  In
such event, any title defects resulting from such documents shall constitute
Permitted Exceptions.


 


(d) Section 8.2 of the
Purchase Agreement is hereby further amended by deleting in its entirety the
text of said Section 8.2(j) and substituting therefor the text “(j)
Intentionally Deleted”.


 


6.                                       Estoppel Certificates.


 


(a)                                  Exhibit I to the Purchase Agreement is hereby
deleted in its entirety and Exhibit I-1 to this First Amendment is
hereby substituted therefor.  Exhibit
I-2 to this First Amendment is hereby added as Exhibit I-2 to the Purchase
Agreement.


 


(b)                                 Section 3.1(i) to the Purchase Agreement is
hereby amended by deleting the text thereof in its entirety and substituting
therefor the following text:


 


“(i)                               On the Closing Date, Seller shall deliver
estoppel certificates with respect to (x) the Leases to Budget Rent A Car
System, Inc., substantially in the form of Exhibit I-1 hereto which are
not inconsistent with the information set forth in the Lease


 


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Schedule and which shall not
claim any default on the part of Seller, and (x) the Lease to Gallante
Enterprises, Inc. d/b/a World Gym of Boston (“World Gym”), substantially
in the form of either Exhibit I-1 or Exhibit I-2 hereto which is
not inconsistent with the information set forth in the Lease Schedule, provided
that Seller shall use commercially reasonable efforts to obtain World Gym's
estoppel in the form of Exhibit I-1.”


 


7.                                       Purchaser's Election to Assume Certain
Service Contracts.  Purchaser hereby notifies Seller, pursuant
to Section 3(b) of the Purchase Agreement, that Purchaser will assume those
Contracts listed on Schedule 2 hereto. 
Pursuant to the terms of the Purchase Agreement, Seller shall, within
thirty (30) days after the Closing Date, at its own expense, terminate all
other contracts.


 


8.                                       Seller's Representations. 
Pursuant to Section 5.7 of the Purchase Agreement, Seller acknowledges
that the only changes that have occurred in the Seller's representations
contained in Section 7.3 of the Purchase Agreement are the following:


 


(a)                                  The existence of the Violation; and


 


(b)                                 The existence of that certain Lubrication
Service Program Agreement by and between Associated Elevator Companies and
Wallace International dated August 18, 2000.


 


9.                                       Counterparts, Etc.  This
First Amendment may be executed in counterparts, each of which shall be an
original and all of which, when taken together, shall constitute one agreement.  Executed copies of this First Amendment may
be delivered by facsimile.


 


10.                                 Ratification.  In
all other respects, Seller and Purchaser hereby reaffirm all of the covenants,
agreements, terms, conditions, and other provisions of the Purchase Agreement
except as modified hereby, and the Purchase Agreement is hereby incorporated in
full herein by reference.


 


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IN
WITNESS WHEREOF, Seller and Purchaser have executed this First Amendment as a
sealed instrument as of the date first written above.


 


	
   

  	
  SELLER:

  
	
   

  	
   

  
	
   

  	
  LEONARD FLORENCE ASSOCIATES, INC.,

  a Massachusetts corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gregory W. Hunt

  	
   

  
	
   

  	
  Name:

  	
  Gregory W. Hunt

  
	
   

  	
  Title:

  	
  Senior Vice President and Chief Financial Officer, Treasurer

  
	
   

  	
   

  
	
   

  	
  SYRATECH:

  
	
   

  	
   

  
	
   

  	
  SYRATECH CORPORATION, a

  Delaware corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gregory W. Hunt

  	
   

  
	
   

  	
  Name:

  	
  Gregory W. Hunt

  
	
   

  	
  Title:

  	
  Senior Vice President and Chief Financial Officer, Treasurer

  



 


	
   

  	
  PURCHASER:

  
	
   

  	
   

  
	
   

  	
  175 MCCLELLAN HIGHWAY LLC, a Delaware

  limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
  By:  Berkeley McClellan MGR
  LLC, a Delaware limited liability company, a manager

  
	
   

  	
   

  
	
   

  	
  By: Berkeley Investments, Inc., a Massachusetts corporation, its
  manager

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Young K. Park

  
	
   

  	
   

  	
  Name:  Young K. Park

  
						



 


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