HomeMy WebLinkAbout8. Evidence of Site Control - PSA - Comprehensive Permit - Application - 0 Prescott Street 10/21/2025 {
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PURCHASE AND SALE CONTRACT
between
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RCG.NORTH.ANDOVER MILLS LLC,Seller
and
EAST MILL HOUSING LLC., Buyer
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as of,rune 11, 2025
Property;
Lot 3, East Mills Fiats Subdivision,North Andover, MA I
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TABLE OF
l. Description of Property.................. .............
................. ............. ..........................................
2^ Purchase Prioe;.Denn6/ ,PovrneJ1........................................ ................ ...................
,--.--.. l
Z.l. Prbue.-._~._-..,,.,,,'-,,,.~.—_,_—.._,,_—,—_—~~._._~_~,_,
12. Deposit........... .......~—~.`.............. ........ --~—.~----..~------.-.--'.
2�. �� ...........
24� Buyer_-�_ D`^^uut-..---~,_._.,._,'_____,,.,.",~,_._,,,___.^_^_.,~..2
2`5. Seller Default.....................
3. Time.and Place mf Closing.................... ..................
... ....................,....................
3l' ' ..........'— ........................................~^'~---~'--�—.--_�3
3.2. Failure vf Approvals........................ .......... ~,_,, .......... .......................
3
4. Due Diligence.................................. .................. ...................--^^~~—"--'—^~^----'--
4L]. Investigation and Termination............................. ...................... _,_____,,._
47� '
��� ~—~—~~--'---- 4
4,3. Delivery of Documents........ ............... ........... ....... .................. .,. _____..
`*`. xuaewoe`roopeoy from Debt Financing... ........ ............. -- ................................... 5
5 ��n`ppo� |
. , ---, /�yy�u"u� —_..~~------~ .-.--.'—~—~—~--~--...—.—.—_..5
5.1. The Project and and ~—_^.,—.,__---._-5
52. Approvals
°",^^""�^/uu/q�/ opcuu—.—,_-...,—.—~.---..—.—.~--``.^—..-- 5
5.3)' S.hared.Parking Agreement....................................
Error! Bookmarkaot defined.
fi Title; Form of Conveyaneq...... ........... .................. ....................... ........,— '_—^—"
6.1.
��a�«m�m�lcT��o
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6.2.
E^"."mmu^,ce^.........^ ..............................�--^^,.---.--,--.---..~....7
6.3. Curing DefOcts.........................................^.................... ............... _..,,_,__^__,
7. Warrantiesand Representations by Seller ,----_—^—'--.~--~.—' .......... 8
71.
. ^`° ................................. ...... ............... ......
~~---...~—.—.--.. @
7.2. Closing Certificate'__,,___.,..~_~____
........ 10
73.
Indemnity," \ ^--~^^^~-----~---^`--.—'.'--~^---.^—_.—.—._.. l}
8. �� by
r.^^~""^" ^^�1u��o�u,uuu^ �/ Buyer.........................._—...~.. ................ .,. .........
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8.1. Representations—._---.--_—.-^---^-^—~^-----~---'`—'-----�}
8.2.
Closing Certificate' ......................................... ..................
.......... .........
.—...11
83` uudcu/oz\Y^—'------~---..---^—^—.—~—.—~~-----~---~— '
9. Closing Adjustments; Roll Back Taxes.................. ........... ........ ............................................ 12
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9.1 ���tn �������
' --" ^^^--``"`^---^-'--~'-~......."".......................,........ l2
9.2 Corrections.
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g� 0f�m�a
. �""vw+uu/� ._.,-~,--_.~..--~---.-~ ......... `'...........' .......... l3
8/4. Survival......... ........ .................^.........................-........, ............`..................~_-~^ 13
10' Covenants hySclb:z
' '`~'..... ............. ........... ^-'^^............................
-'--..---... 13
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' ^` `~v,ona/ia ...............................................
, .........._ ...... .......... ........................
l}. Conditions Material to Buyer's Obligations..........................~~.^.~.-^~..............,,' Y4
ll l ��oo���0o�
' ' -'^~'^~.....................-' .....................`................................................... 1:4
11.2L Failure ofCooditiouo.,........... ........ ........ ......... __.-,'-_.". ....... 14
12. Closing.Deliveries.................................... ........ ...... .......'...... ^'". ......... ............... ...... 14
12.
1. Seller's Obligations........................................... ............-~ ...................... . .......... . 15
12.2.
Buyer's Obligations ...... ......................................................... ......
...................... 15
l3. Broker
s............................... ........... . ....... .............. ................ .......................... ............ 16
lz[ RiokofLoms .............................................
l4J' Taking^-`~'^--^............... ~—'-^~'~................'..........-. ........ ............ 16
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15' Assignment .................. .........
~-. ...... `.—_~_.^_.-r-."".. .......... ...................... 16 |
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l5] and.Assumption/�x^/8/u^u�u �/+u�uzopuoo.-,'-_-.^~-..~-..-.-,,,.............................. ...l6
l(L Notices............
^~-'^~-'~-`~--'.........`-" ............................ ~^'--.......... .... l6
17, Escrow Agent� ~'--~--'~-^-''^--~'''--'.-~----~---~--_^.---.... l7
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Delivery of l7
17.2. Alterhative.Actiom.........................
Error! Bookmark not defined.
17.3.
Liability.... ................. .................. .......... ........................
................................
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l7/4. Modification...................... .... --~~.-.^-~^~-...-^--.—___.-,--... 18
}7.5.. Expenses~ ......... ...... ..................... _ ........................ ...............
^-...- ..... 18
17-6. Escrow Account--' .~^~-~'---^-~^
..Error! Bookmark not defined.
17.7. Resignation...................... ........................' ........�.-...Error! Bookmark not defined.
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-� Miscellaneous. ..... ........... .........
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l�.�
' . ^^",^r/p"�g Lar,�A^uiguu ...... ..................... .......^- ........................................- l9
18.2.
Amendment.... .................................... ....................................... .................... ........ ly
18-3 �hn1}���oc�a���
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. Possession 19
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]87.' Captions.................... ........................................ .,~~, ............. ......,__~~__,~. 1g
l8 �� \�m�n�oa' ^'-~-^^--^~^^-^^ lB
18.9.. Deleted..................................................`-. ...............Error! Bookmark not defined.
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1.8.
�+' Deleted....... .......... ......... ...--._,-..,
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Exhibits:
8-1 ~ Site Plan of Property
^`-^ -
Legal Description of Property
B - Environmental.Reports
^~ - rF«,outs uuuP/mom
�T) - Form Of Seller's Closing
CerCfioo10
E: - Form of Buyers Closing:Certificate
Form of Assignment and Assumption Agreement Re: C0otn18ts:add Intangibles
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.Agreement(this"Contract")made.this.11 th day.o f June; 2025 by and between.RCG
NORTH ANDOVER MILLS LLC ["Seller"), a Massachusetts limited liability company,.having }
an office at C/o RCG LLC, 17 Ivaloo Street, Suite 100, Somerville,Massachusetts 02143; and 1
EAST HELL HOUSING LLC. ("Buyer°'), a Massachusetts limited liability company, having.an
office at c/o RCG LLC, 17 Ivaloo Street, Suite. 100, Somerville,Massachusetts 0214.3.
RECITALS
A: Seller owns a.parcel of land located in North Andover,Massachusetts:as
described as Lot 3 of a subdivision entitled"East Mill, 1 High.Street:and 0 Prescott Street;North
Andover, Essex County,MA 01845"and,recorded with the Northern Essex District Registry as
Plan No. 19129.
B.. Seller desires to sell and Buyer desires to purchase said parcel and any
improvements thereon on the terms and subject to the conditions set forth herein.
NOW, THEREFORE, the parties hereto, intending to be legally hound hereby, agree as
follows:
1, Description of Property
Seller agrees to sell, and Buyer agrees.to buy.,upon the terms.and conditions herein set.
forth, (i) those certain premises located in the Town.of North Andover, County of Essex,
Commonwealth of Massachusetts as generally shown on the site plan(the "Site Plan') attached
hereto as Exhibit A-1 and described on Exhibit A-2,together with all right,title and interest of
Seller in and to.any land lying in the bed of streets (open or proposed) adjacent or abutting or
adjoining such premises,together with all rights,:privileges, rights of way and easements. j
appurtenant to.such premises,including,without limitation, all minerals; oil or gas on or under
such premises; development rights,air rights,water rights,and any easements,rights.of way or
other interests in,on or under any lands, highways, alleys, streets, marshes,marshlands,-
waterways or rights of way abutting or adjoining;such premises, and all buildings and other
improvements located thereon (collectively the"Real Property"); and(ii)all studies, surveys,
plans; specifications,reports, approvals, licenses, permits. certificates; special permits, site plan
approvals and variances benefiting, owned or caused to be prepared by Seller(collectively,the
"Permits and Plans")relating:to.the Real Property and the Project. All items referred to in
clauses (i)and(ii) are herein collectively referred to as the"Property."Notwithstanding the
foregoing and of particular emphasis;the Property shall(a) not include ownership in the
Subdivision Road(i.e.,.ownership of the Subdivision Road shall remain with the Seller); and(b)
be subject to easement rights for parking:granted to.RCG West.Mill NA,.LLC and AvalonBay,
Inc.
2. Purchase Price;.Deposit; Payment
2.1. Price. The purchase price ("Purchase Price")for the Property.shall be Ten
Million and 001100 Dollars ($10,000,aa0.00),based on the final Approvals for the Project (as 3
such terms are defined below)with a number of multifamily units deemed necessary by Buyer. f
The Purchase Price shall be subject to adjustment as.set forth in Article 9 below. !
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2.2. Deposit
(a) As security for Buyer's performance hereunder a deposit(the"Initial
Deposit..")of Fifty Thousand and 0 11.00 Dollars($50,400.00) will be paid by Buyer not later
than thirty (30)business days after the full execution of this Contract.to Buyer's designated.
Attorney(hereafter the"Escrow Agent"). The.Initial Deposit,the First Extension Deposit,and
the Second Extension Deposit(as hereinafter defined),if made, together with aray interest
thereon,are collectively referred to herein as the "Deposit". The.Deposit shall be held by
Escrow Agent subject to the terms of this Contract and to be duly accounted for at the time for
performance of this Contract. The.Deposit shall be:deposited by.Escrow Agent in an IDLTA
account or a federally insured, interest-bearing money market account and disbursed according
to the terms of this Contract. Either Buyer or Seller shall.provide Escrow A.gent.with a W 9
form:and such party shall be responsible for any taxes on the interest on the Deposit,if any,
regardless of whether such party receives all or any portion of the Deposit. If the Closing (as
hereinafter defined) shall occur,the cash Deposit,together with any interest thereon, shall be
applied in reduction of the Purchase Price payable at the Closing. The.Deposit will be deposited
in an interest bearing savings account with the interest following the Deposit.
(b) Escrow Agent's duties and responsibilities hereunder are governed by the
terms of Article 17 herein. Escrow Agent has executed this Contract for the limited purposes of
evidencing its agreement to comply with and perform its obligations as Escrow Agent hereunder
in accordance with this Section and Article 17 of this Contract: Escrow Agent shall confirm for
Buyer and Seller,that.it is holding the Deposit promptly upon receipt thereof
2.3 Pa merits at Closing.
(a) The balance of the Purchase Price shall be.paid by Buyer to Seller at the
Closing by wire transfer of immediately available funds to an account designated in writing by
Seller to Buyer prior to Closing.
(b) The payment required at the Closing shall be increased or decreased, as
the case may be, to account for all items to be apportioned or prorated pursuant to this Contract.
2.4, Buyer:Default. if Buyer is required hereunder to purchase the Property
and shall fail to do so,or if Buyer shall otherwise default under this Contract after notice from
Seller and expiration of a.reasonable.cure period(not to exceed five (5).days),the.Deposit shall
be retained by Seller, which shall constitute full and complete liquidated damages and Seller
shall.have no further recourse or remedy at law or in equity for any breach by Buyer hereunder.
The parties agree That if Buyer defaults, the damages which Seller will suffer will be difficult; if
not impossible,to determine with precision.
2.5. Seller Default. In the.event that Seller defaults.under any of its rnaterial
obligations under this Contract after, except.to.the extent expressly provided otherwise
hereunder,notice fTorn Buyer and expiration of a reasonably cure period.(not to exceed thirty
(30).days), Buyer's sole and exclusive remedy shall be the right to elect any one of the following
rights and remedies:
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(i) Waive the default and proceed to Closing.in accordance with the
provisions of this Contract without any adjustment of the Purchase Price
00 Terminate this Contract.by notice to Seller, in which event the
Deposit shall be paid to Buyer and in the case of a willful or.intentional breach or default by
Seller hereunder whereby Seller conveys.all or any portion of the Property or encumbers the
Property in a mariner which is bidding upon Buyer and which materially interferes with Buyer's
ability to consummate the.transaction or construct the.Project(as Hereinafter defined), Seller
shall reimburse Buyer for the actual costs incurred by Buyer inzonnection with the transaction.
contemplated hereby in an amount not to exceed $250,000, and thereupon,except those
obligations or terms.that expressly survive the termination of this Contract, all obligations of the
parties.under this Contract shall terminate and expire.
(iii) Bring an action for specific perfonnance of Seller's obligations
hereunder.
3. Time and Place of'Closin
3.1. Closing. Unless extended by either party pursuant to any of the terms and
provisions of this Contract,the closing (the"Closing") of the transactions contemplated hereby
shall take place on the date(the"Closing Date")that shall be forty-five(45) days after all the
Approvals are obtained or waived by Buyer in accordance with Section 5.2(c)below. Closing
shall tale place via a mutually acceptable:escrow arrangement or atthe offices of Buyer's
attorneys or at such other place within the Cominonwealth.of Massachusetts as Buyer may
designate. Buyer shall give Seller not less than fifteen(15) days''prior notice of the date for
Closing.
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3.2. Failure ofApprovals. If the Approvals are.not obtained by.the end of the
Approvals Period(as defined below) as the same may lie extended at Buyer's election under 4
Section 5.2 below,.then at Buyer's option, to be exercised by written notice to Seller(the
"Approvals Termination.Notice"), this Contract shall terminate, and the Deposit shall be returned
to the Buyer without any further recourse. remedy to.either party except for the surviving '
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obligations. Notwithstanding the foregoing,Buyer shall.have the.sole.election to close-without �
the Approvals being obtained. [
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3.3. In Event of Fire. if the.said Property shall have been damaged by fire or
casualty insured against, then the Seller shall,unless the Seller has previously restored.the
Property to their former:condition, either at Buyer's sole.option:
(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. The amount of any deductible shall be credited to.the
Purchase.Price. 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 the aggregate of the amounts so recovered or recoverable and retained by the
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holder of the said mortgage and any deductible less.any amounts reasonably expended by the
Seller for any partial restoration.
4. Due Dili ence
4.1. Investigation and Termination. Seller acknowledges that Buyer may
conduct an investigation of the Property,which.Wray include examination of any and all
documentation with respect.to the Property, examination of title to the Property, conduct tests.to
determine the presence or absence of hazardous wastes, asbestos,radon and other similar j
materials and substances, obtain a current as built survey thereof, determine the compliance of i
the Property with all applicable laws,:rules, codes and regulations, conduct engineering
inspections test borings; soil tests,percolation tests,review of.the Permits and Plants, site �
evaluations and such other evaluations, inspections and tests as Buyer desires. Buyer shall
conduct this,investigation during the sixty (60) day period (the."Due Diligence Period") after.the
date that both parties have executed this Contract. Notwithstanding any other provisions
contained in this Contract,.on or before the end of the Due Diligence Period,Buyer shall have
the rightin.its sole and absolute discretion,either based upon its disapproval of any of the j
information it receives; or for any other reason whatsoever; or for no.reason,to terminate this
Contract. In the event Buyer fails to notify Seller that it intends not to to tiinate:this.Contract by
notice on or before the last day of the Due:Diligence Period,.this Contract shall ipso facto be
deemed to have terminated,.in which event the Deposit.shall be returned to Buyer forthwith. In
such case, upon the return of the Deposit to Buyer, all obligations of the parties hereto shall
cease and this.Contract.shall be terminated and the parties shall be without further recourse or
remedy hereunder.
4.2. Indemnification. From and after the date hereof, Seller.shall make the #
Property available to Buyer and its agents, consultants and engineers for such inspections and
tests as Buyer deems appropriate in connection with Buyer's due diligence. Buyer shall
indemnify and hold Seller harmless from and against any and all loss,costs or damage to the €
Property arising out of the actions taken.by Buyer, its agents, engineers or.consultants,.in '
connection.with Buyer's performance of due diligence.
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4.3. Delive of Documents. (a) In order to facilitate Buyer's investigations, #
Seller has.delivered to Buyer the following: j
(i) copies of Seller's.owner's title insurance policy and all documents i
listed therein and Seller's most recent surveyof the Property;
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00 copies of theTerrnits and Plans(see Exhibit C ; and.
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tin copies of an and all engineering-reports, soil borin s tests and
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reports, and reports .relating to.toxic and/or hazardous materials Or substances including,without
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limitation,asbestos, asbestos containing materials, lead paint; radon gas, petroleum products,
urea-formaldehydeand other similar or dissimilar chemical or materials,prepared by or on
behalf of Seller or its affiliates, or otherwise within Seller's possessio
B)_ n or control (see Exhibit
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(b) Seller shall deliver.to.Buyer,within five (5) business days after.request,
copies of such other documents relating to the Property as.Buyer may reasonably request within
thirty (30) days after the date..of this Contract:and which are otherwise within Seller's control and
:are or may be relevant to the use and operation.of the Property.
4.4. Release Pro ent from Debt Financing. On or.before the March 31,2026,
Seller shall use all.commercially reasonable efforts to obtain from Seller's mortgage lender a
written commitment(in form and substance reasonably acceptable to Buyer) indicating that upon.
the Closing of the:.transaction contemplated by this Contract, such.Lender will release the
Property from.the lien of its mortgage.
5. Plans and AORLovals
5.1. The Project and Pre oration of Plans and Approvals. The Property is.
currently improved by a two-level parking structure-containing.600 parking spaces and 115
surface parking spaces.that are used in connection.with Seller's Commercial.Development in
nearby properties known as"North Andover Mills (the"Existing Improvements"). Seller
acknowledges that Buyer 4ntends to acquire.the Property for the purpose of developing a
multifamily residential development(the"Project')with:a number of multifamily units.deemed
necessary by Buyer. The Project shall include not more than 10% of the units.being designated
as affordable.at.no less.than. 80%area.median income, with parking and other related
improvements;provided; however,the amount of units in`the Project designated as affordable
and the rate.at which they are affordable may change if Buyer in its.sole discretion elects.to
attempt to obtain a comprehensive permit under M.G.L. c. 40B'arid its implementing regulations..
The Project.will entail the demolition of the Existing Improvements.and construction of a new
parking garage in which.110 spaces will be shared by the Project and Seller's commercial uses.at
North Andover Mills (the "Shared Parking Arrangement"). In connection with the Project,
Buyer will.need to. develop.comprehensive plans for such development and to..obtain numerous
other permits and approvals,:as set forth in Section.5.2 below.
5.2. Governmental Approvals,
(a) The obligation of Buyer hereunder shall be subject to Buyer obtaining the
Approvals (as defined below), except to the extent waived.by Buyer as permitted Herein. The
Approvals shall include without limitation, (i) any zoning.relief or approvals required to:develop
the Project, (ii):other permits and.approvals as maybe.necessary from municipal,state and
federal authorities except for a building permit and other non-discretionary permits that are
typically issued.by officials in the ordinary course to enable.construction, and (iii) all necessary
approvals for utility connections. The Approvals will also include such zoning relief as is
necessary to permit the Shared Parking Arrangement while leaving Seller's commercial
properties`compliant with the applicable zoning requirements (the"Shared Parking Relief'}, All.
Approvals shall be in form and substance acceptable to Buyer and Seller, each in its sole but
reasonable discretion, and with no conditions imposed by governmental authority which are not.
acceptable to.Buyer and Seiler,again each in its sole but reasonable discretion,with all appeal
periods from any such permit or approval having expired with.no appeal taken; or if such an
appeal has been.'taken, the appeal having been finally adjudicated or dismissed to Buyer's +
satisfaction(in such form, after all approval periods.have expired, collectively, "Approvals").
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Buyer shall be primarily responsible.for seeking all requisite Approvals;provided;however, that
seller shall coordinate with Buyer and the parties shall.submii proposals that it expects.to both
find acceptable. Buyer and Seller will coordinate all meetings and other contacts with North
Andover government officials and staff: Seller shall cooperate fully in Buyer's seeking the
Approvals,including, without limitation; by executing all documents required to be signed by the
`'property owner" or as the prior applicant in:connection with Buyer's pursuit of the Approvals in
an expeditious manner when such requests are made by Buyer or any third-party advisor
representing Buyer but without cost or liability to Seiler.
(b) if at any time during the Approvals Period (as.defined below and as the
same may be extended as.provided below), Buyer determines in its.sole.discretion that it is
unlikely that all necessary Approvals will be obtained for Buyer's proposed development within
the time.provided hereunder, or if Buyer is denied any such Approvals, or if.any of the
conditions of subsection.(a) above.are not achieved, Buyer may terminate this Contract by
written notice to Seller,whereupon the Deposit shall be returned to Buyer,this Contract shall
terminate and all further rights, remedies and obligations of the parties hereto shall cease except
for the surviving obligations. If at any time during the Approvals; Seller determines in its sole.
discretion that it is unlikely that all.necessary Approvals will be obtained for Buyer's proposed
development within the time provided hereunder, Seller may terminate this Contract by written
notice to Buyer,whereupon the:Deposit shall be returned to Buyer,this Contract shall terminate
and all further rights; remedies and obligations of the parties hereto shall cease except for the
surviving obligations.
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(c) Buyer may;.by notice to Seller at any time prior to expiration of the
Approvals Period, as same may extended pursuant to (d) below, elect to waive the receipt of
one or more Approvals and to give notice of Closing.
(d) Extension of Time. If Buyer shall not have obtained all Approvals by the
date that is twelve(12)months from the end of the Due Diligence Period.(such period being
defined as the "Approvals Period"),then.Buyer may, subject to Seller consent,which shall not.be
unreasonably withheld, extend the Approvals.Period for two (2) consecutive periods of six(6)
months each(respectively;the"First Permitting Period Extension" and the"Second Permitting
Period Extension")Buyer may exercise its right to the extend Approvals Period,by notice to '
Seller given not later than the expiration.of the Approvals Period(or the first extension of the
same as applicable). Not later than five(5)business days after the giving of such notice, Buyer
shall deposit.with the Escrow Agent.an additional deposit(respectively,.the "first.Extension
Deposit" and the "Second Extension Deposit")of$10,000 for each extension.. The First
Extension Deposit and the Second Extension Deposit shall be part of the Deposit as set forth in
this Contract. Buyer's failure to timely deliver a.Buyer's Extension Notice.or to timely make the
required.First Extension Deposit or Second Extension Deposit shall be deemed to be a
termination by Buyer hereunder due to the Approvals not having been obtained in accordance
with Section 5.2(b) above.
5.1. Shared.Parking Agreement. Buyer and Seller agree to reasonably
negotiate a reciprocal easement agreement(the"Shared.Parking Agreement"),.in farm and �
substance reasonably acceptable to the parties,which shall reflect tiie approvals obtained for the
Shared Parking Arrangement described in Section.5.1 above. The Shared Parking Agreement
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will, among other things, govern access and egress to the.parking.areas on the Property,
operations and maintenance responsibility, and any relevant parking rights.
6. Title,Form.of Conveyance
6.1. Marketable Title. At the Closing the Property shall be conveyed by Seller
to Buyer in fee simple absolute,.by good and sufficient quitclaim deed(the"Deed")running to
Buyer. The Deed shall convey a good and clear record and marketable title to the Property,
insurable at standard rates by the Title Company.(as hereinafter defined), free from all
encumbrances and encroachments from or on the Property except the encumbrances or
restrictions as are approved by Buyer in accordance with Section 6.2 herein. The Deed shall be.
in proper statutory form for recording.and shall be duly executed and acknowledged and
delivered by Seiler at the Closing.
6.2. Encumbrances. If Buyer shall.not have terminated this Contract pursuant
to Section.4.1 herein, then Buyer shall,.no later than the last day of the Due Diligence Period,
notify Seller of any exceptions, defects or objections to title which.Buyer claims are
unacceptable to it in its sole and absolute discretion("Unacceptable Exceptions") and shall
simultaneously therewith furnish Seller's counsel with a copy of the title commitment procured
by Buyer which sets forth said Unacceptable.Exceptions. Failure to comply in full with the
foregoing sentence shall constitute a waiver of any exceptions, defects or objections to title
which could have been raised or noted.by Buyer had Buyer procured a title.commitment within
said period, and Buyer shall accept title subject to all exceptions, defects or objections to title..
which could have been raised or noted by Buyer had it procured a title commitment within said
time period. At the Closing Seller shall deliver title to the Real Property free and clear of any
liens or encumbrances created or arising after the date of the title commitment obtained by
Buyer. Regarding the mortgage presently encumbering the Property (the"East Mill Mortgage".), i
Seller shall deliver the Release Notice as set forth in Section 4.4 of this Contract to confrm that
Seller's.lender will.provide a partial release of the East Mill IVMortgage.so that this encumbrance
will.be released`frornthe Property at.the time of.Closing.
6.3: Curing Defects_ If there are any Unacceptable`Exceptions which can be
cured by the payment of money, Seller shall be obligated to cure, discharge and remove the same
on or before the Closing Dateby paying the same in full and obtaining appropriate discharges or
other like instruments which are in recordable form and which are sufficient to discharge.and.
remove said title defects of record and are otherwise satisfactory in form and substance to the
Title.Company. If'Seller fails to comply with its obligation under the foregoing sentence,Buyer
shall have the right to cure.the.same and any amount required to be expended(or escrowed by
the Title Company in connection therewith) shall be credited against the.Purchase Price payable
at Closing. If there are any Unacceptable Exceptions which cannot be cured by the payment-of
money ("Non-Monetary Title Defects"),.Seller.shall be obligated to use all due:diligence and
reasonable efforts to cure the same as expeditiously as possible.. In this instance, all due
diligence and reasonable efforts to cure:shall mean Seller employing good faith efforts for a
period of not to exceed sixty [60)days and not to exceed expenditures of$100;0.00.
If Seller fails to cure any Non-Monetary Title Defects within thirty(3.0)days after it receives
notification thereof from Buyer,then Buyer shall be entitled, at any time thereafter,but before
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such Non-Monetary Title Defects are cured,to terminate this Contract,in:which event the
Deposit shall be returned to.Buyer forthwith. In such,case; upon the return of the Deposit to
Buyer and provided that Seller has used all due diligence and reasonable efforts to cure any Non-
.Monetary Title Defects (and has otherwise complied with and not violated its obligations under
this Contract),.then all obligations of the parties hereto.shall.cease.and this Contract.shall be
terminated and the parties shall be without further recourse or remedy hereunder.
7. Varranties and Representations b Seller.
7.1. Re resentations. Seller hereby warrants.and represents to Buyer, knowing
and intending that Buyer is relying hereon in entering into this Contract and consummating the
transactions contemplated hereby noting that Buyer has its Due Diligence Period to.investigate.
certain of the matters.referred to below. that:
(a) Seller has full power and authority to enter into and perform this Contract
and all documents, instruments and contracts entered into or to be entered into by it pursuant to.
this Contract and to carry out the transactions contemplated hereby. This Contract is, and all
documents to be executed by Seller and delivered to Buyer at the Closing.will be on the Closing
Date, duly authorized, executed and delivered by Seller and all consents and approvals of third
parties have been obtained. This:Contract is, and all documents to be executed by Seller and
delivered to Buyer at the Closing will be the legal, valid.and binding obligations of Seller,
enforceable in accordance with their respective terms will not violate any provisions of any
contract,judicial order or any other thing to which Seller is a party or to or by which Seller or the
Property is subject or bound: Neither the execution nor delivery of this Contract nor the
consummation of the transactions contemplated by this Contract is subject to any requirement
that Seller obtains any consent, license, approval or authorization of, or makes any declaration or
filing.with, any governmental authority or third party.
(b) To the reasonable knowledge ofSeller,there.are no current zoning,
environmental or other land use regulation proceedings that would detrimentally. affect the use;
occupancy or operation of the Property for multi-family residential purposes or the value of the
Property or affect the ability of the Buyer to develop the'Property for multi-family residential
purposes..
(c) ,Seller has not received any notice of any moratorium, condemnation
proceeding or proceedings or agreement in the nature of eminent domain or for the dedication of
any part of the Property to any public or quasi-public agency ("Taking") in connection with the
Property; and to the reasonable knowledge of Seller;.no such proceeding or agreement is
contemplated,
s(d) There are no assessments or special.assessments (including, without
limitation, assessments for municipal improvements)filed i
pending or, to the reasonable �
knowledge of Seller,.proposed.against the Property or any portion thereof, including,without
limitation, any street improvement or special district assessments.
(e) Seller has never used enerated E
� ,processed, stared;released, discharged,
transported,handled or disposed of any Hazardous.Substance(as.lterein.defined), on, in or in I
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connection with the Property, and to the reasonable knowledge of Seller, no prior owner or
operator of the Property or anyone else has used, generated, processing, stored,released,
discharged,transported,handled:or disposed of any Hazardous Substance on or in the Property,
To the reasonable knowledge of Seller,no Hazardous Substance is present or exists on,in,under,
near or about.the Property. Exhibit B hereto lists all.reports or writings in the possession (actual
or constructive) of Seller with respect to or.which relate to the environmental condition of the
Property and/or any:surrounding properties. As used in this Contract the term"Hazardous
Substances"shall mean and include any and all chemical, substance, material.,waste.or
component thereof which is now listed, defined or regulated as hazardous or.toxic by or under
any present federal, state or local law, statute, act,:rule, regulation,.requirement, order, directive,
code.or ordinance, and all amendments thereto, pertaining in airy way to health, safety and/or the
environment.
(f) To the reasonable knowledge of Seller,no part of the Property has been.
used as a cemetery or burial ground.
(g} Seller has not received any notice that any default or breach exists under
any covenant, condition,restriction, right of way, easement or other encumbrance affecting any
Part of the Property and has no reasonable knowledge of any fact or condition which would
constitute such default or breach.
(h} There is not now pending,nor to the reasonable knowledge of Seller has
there been threatened,any action, suit,or proceeding against or.affecting Seller or the.Property
before or by any federal.or state court, commission,regulatory body; administrative agency or
other governmental body, domestic or foreign,wherein an unfavorable ruling, decisiori.or
finding may reasonably be.expected.to have a material adverse effect on the business or
prospects of or on the condition or operations of the Property(including the use and development f
p ity y purposes), 7
of the Prp e far multi-family residentialor would interfere with.Buyer's or Sellers
ability to consummate the transactions contemplated by this Contract or would many case or in '
the aggregate have a material adverse.effect,financial or otherwise;on the business or affairs of
Seller.
0.) Seller is not a"foreign person,"as defined under Internal Revenue Code
Section 1445.
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(j} There are no management,,service,supply, maintenance or other contracts
with respect to or affecting the Property and which.would be binding upon Buyer or the Property
after the Closing.
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(k) To the reasonable knowledge of Seller, there are no underground.storage
tanks%in, on, under or about the Property.
(1) Seller has not entered into any presently effective contracts regarding the
sale, conveyance, transfer or disposition of the Property(except for the within Contract). Seller
has not granted.to anyone and no ane possesses any option to purchase or right of first refusal to
purchase the Property. Seller leas not entered into any occupancy contract, leases or the like with
respect to the Property and no one has any right to use or occupy the Property. {
W The:Property is not subject to any roll back tax or any similar tax related
to the discontinuance of any:use.to which the Property has been put.
(n) Exhibit C attached hereto is a complete list of all Permits and Plans setting
forth, with respect to each of the Permits and PIans, (i)the names.of the issuer(s)or preparers)
thereof; (i )the subject matter thereof;(iii)the amounts payable thereunder as of the date of this
Contract(if any); and (iv)the expiration date thereunder if any
).y). The copies of the Permits and:
Plans furnished by Seller to.Buyer and initialed by Seller or its representative(s) are true and
complete copies thereof Except as specified in Exhibit C;the.Permits and Plans have not been
amended.,modified, or supplemented. Seller shall not modify,tenninate or accept surrender of
any of the Permits and Plans without the prior written consent of Buyer.
(o) To the reasonable knowledge of`Seller, all Permits have:been duly and
validly issued by the appropriate authority and are in full force.:and effect and Seller has not
received any notice of violation or default or of proceedings relating to.the revocation!or
modification of any such Permits. Seller has paid in full for all Plans and, upon sale of the same
to Buyer, Buyer shall be entitled to use and enjoy the same as hilly as Seller now may do so.
(p) Seller is not in violation of any Iegal requirements,now or hereafter in
effect;relating to money laundering, anti.=terrorism, trade embargoes and economic sanctions,
including;Without limitation, Executive order 13224 (as.defined below)and the Patriot Act (as.
defined below). Seller(i) is not (a) a Blocked Person(as defined below) or(b) owned, in whole
or in part, directly or indirectly, by any Blocked Person; and (h) does not(a) conduct any j
business or engage in any transaction or dealing with a Blocked Person or(b)deal in, or '
otherwise engage.in, any transaction or dealingrelating to an roe €g Y property rtY; or interests in property,
blocked pursuant to Executive Order.1.3-224. ?
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As used herein,.(i) `Blocked Person"is defined as.any.individuals or entities
which(a)are owned or controlled by, or acting on behalf of,the.governments of countries
currently listed under section 00) of the Export Adininistratio.n.Act as supporting international
terrorism,or{b}are owned or controlled by we acting on behalf of, or are associated with
international terrorism, as indicated by their listing on.the Treasury Department's Specially
Designated.Nationals.and Blocked Persons,as updated from.time to time; (ii) "Executive order
1.3224"is defined as.Executive Order Number 13224, `Blocking Property Transactions with
Persons who Commit, Threaten to Commit, or.Support Terrorism,"66 Fed. Reg. 49079 (Sept.
23, 2001); and(iii) "Patriot Act"is defined as the Uniting and Strengthening Arne by
Providing Appropriate Tools.Required to Intercept and obstruct Terrorism Act of 2001., Pub. L.
No. 1.07�56,. 11:5 $tat. 2.72. ?
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(q) Seller provides notice to Buyer that Seller is not reciting all publicly
available information and directs'Seller to perform its own,investigation.and conclusion during
its Due Diligence Period of the risks and/or benefits of all contemplated or potential actions of
the Town of North Andover and any other governmental.body.
7.2. Closin Certificate. At the Closing,and as a condition thereof, without
limitation of any other obligations of Seller caiitained in tlus Contract, Seller shall warrant and
represent to Buyer on the date.of Closing in writing.that all of the representations and warranties,
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if still true, made by Seiler in this Contract continue to be true and correct in.all material respects
as of the date of Closing as if they were made on the date`of Closing. The Closing Certificate is.
attached hereto as Exhibit D.
7.3. Indemnity. Seller shall indemnify and defend Buyer against and hold
Buyer harmless from any.and all losses, costs; damages, liabilities and expenses, arising out of a
breach by Seller of its warranties,representations and/or covenants in this Contract. All.
warranties; representations; indemnifications and covenants by Seller contained in this Contract
and made.in any writing pursuant to this Contract shall survive for a period of nine(9) months
after Closing. The limit of the indemnity of Seller and any claims of breach by seller for this
Section 7 in.its entirety will be $100,000.
8. Warranties and Representations b�Buyer
8.1. Representations. Buyer hereby warrants and represents to Seller, knowing
and intending that Seller is relying hereon in.enteringinfo this Contract and consummating the
transactions contemplated hereby;.that:
(a) Buyer is,and on the Closing Date shall be a corporation duly and validly
organized and existing, in good standing and governed by the laws of the.Commonwealth.of
Massachusetts. Buyer has full power and authority to enter into and perform this Contract and
all documents, instruments and conti:acts entered into or to.be entered into.by it pursuant to this
Contract and to carry out the transactions contemplated hereby. This.Contract.is, and all
docurrients that are to be executed by Buyer and delivered to Seller at the Closing will be duly
authorized,.executed and delivered by.Buyer, and all consents required.under Buyer's €
organizational documents, by law or otherwise have been obtained. This Contract is,:avid all
documents that are to be executed by Buyer and delivered to.Seller at the Closing,will be the.
legal, valid and binding obligations of Buyer, enforceable in accordance with their terms and will
not violate any provisions.of any contract,judicial order or any natter to which Buyer is a party
or to or by which Buyer is subject. Neither the execution.nor delivery of this Contract nor the
consummation of the transactions contemplated bythis Contract is subject to any requirement
that Buyer obtain any consent, approval.or authorization of, or make.any declaration or filing
with,any governmental.authority or third party.
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No consent,.approval or waiver of any third party is required for the �
consummation by Buyer of the transactions contemplated by this Contract.
(c) Buyer is not in violation of any legal requirements, now or hereafter in
effect,.relating to money laundering, anti-terrorism,trade embargoes and economic sanctions,
including,without limitation;Executive.Order 132244 and the Patriot Act. Buyer(i).is not(a).a
Blocked Person or(h) owned, in whole or in part, directly or indirectly,by any Blocked Person;
and ( i) does not(a) conduct any business or engage in any transaction or dealing with a Blocked 1
Person or(b) deal in, or otherwise engage in;.any transaction or dealing relating to any property,
or interests in property,blocked pursuant to Executive Order 13224..
8.2. Closing Certificate.. Aube Closing, acid as a condition thereof, without
limitation of any other obligation of Buyer contained in this.Contract;the Buyer Shall warrant
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and represent,to Seller on the date of Closing in writing that all representations made by Buyer in
this Contract continue to be true and correct in all materials respects as of the date of.Closing as
if they were-made on the date of Closing. The Closing Certif Cate is attached hereto as Exhibit E. '
8.3. Indemnity. Buyer shall lind.emnify and defend Seller against and hold
Buyer harmless from any and all losses, costs, damages, liabilities and expenses, arising out of
breach by Buyer of its warranties, representations and/or covenants in this Contract. All
warranties,.representations, indemnifications and covenants by Buyer contained in this Contract
and made in any writing pursuant to this Contract shall survive for a period of nine(9)amonths
after Closing. The limit of the indemnity of Buyer for this Section in entirety wiil be $100,000.
9. Closing Adjustments-, Roll Back Taxes ?
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3.1. Iteirns to be Ad (a)Real property taxes, and all other items
customarily apportioned in connection with sales of similar properties similarly located shall be
adjusted and apportioned at the Closing as.of the Closing.Date. The net amount thereof shall
either be paid to.Seller by Buyer or paid by Seller .to.Buyer. With respect.to real property taxes,
if the Closing shall occur before the tax rate or assessment is fixed, the apportioninent of such
real property taxes shall be upon the basis of the tax.rate.for the immediately preceding year €
applied to the latest assessed valuation, but such taxes.shall be m-adjusted.as soon as the {
applicable rate and assessment is fixed. i
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(a) If any portion of the Property is now,.has been.or.is on the Closing Date; i
assessed for a use,the:change of which.imposes a"roll back",then Seller shall be responsible for
all"roll back taxes"which relate to any periods.prior to the Closing,plus the year during which
the Closing takes place. At the Closing, Seller shall pay to.Buyer(or allow Buyer a credit
against the Purchase Price for the same), an amount of roll back,taxes which will be assessable
against the Property in connection with all periods referred to above,.as reasonably estimated by �
Buyer. Any underpayment.or overpayment based upon such estimate shall be finalized and/or
corrected and properly adjusted.between the parties as soon as practicable thereafter. f
(b). Assessments (for municipal improvements). To Seller's reasonable
knowledge, Seller does not believe there.are any Assessments (for municipal improvements)
affecting the,Property. Buyer has a Due Diligence Period to evaluate the likelihood of any
assessment(for municipal improvements) conning into effect. In particular if there are any such. E
Assessments, they are likely do be,in_connect on with the Project. Accordingly, Buyer shall make
its own independent evaluation of the viability of its Project during the Due Diligence Period
inclusive of an.evaluation of any existing or possible.Assessments. There shall be no adjustment
for Assessments at the Closing.
9.2. Corrections. In the event that any of the apportionments contemplated
above cannot be determined at the time of Closing by the Seller or Buyer or both or in the event
that any such apportionments are incorrectly calculated.at the time of Closing or thereafter,the. `
parties shall,.as soon as feasible thereafter,male such apportionment or correct such
apportionment, as the case may be.
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9.3. Allocation of Costs. Seller shall.pay all transfer and conveyance taxes.
Buyer shall pay for the cost of recording the deed,,title insurance and. survey.
9A Survival, The obligations of the parties contained.in this.Section 9 shall
survive the Closing for a period of twelve months.
16. Covenants by Seller
10.1. Covenants.
Between the date hereof and the Closing, Seller agrees that:
(a) it will maintain the Property in the same condition as it is on the date of
this Contract.(reasonable wear and tear excepted);
(b) it will not,by reason of any action or omission of Seller,.cause:or permit
any representation or warranty to become not true, incorrect or inaccurate;
(c) it will snake available to Buyer, for inspection, exainrnation,review and.
copying, all engineering reports, environmental reports,title materials,plans arzd specifications.
and other materials of, for and.with respect.to the Property which are in Seller's possession,
(d) it will perform all material obligations with respect to the Property under
all easements., covenants; restrictions.and contracts of record;.
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(e) it will promptly give notice to Buyer.of every threatened or:actual
litigation whether or not covered by insurance against or relating to the.Property (including, €
Without limitation, the sale thereof to Buyer)or any portion thereof between the date of this €
Contract and the Closing; I
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(f) it will not, without the prior written consent of Buyer, apply for, consent to
or process any applications.for zoning,re-zoning; variances,site plan approvals, subdivision
approvals or development with respect.to the Property or any portion thereof;
(g) it will not,without the prior written consent of Buyer, sell,assign,.transfer
or encumber all or any portion of the Property or any interest therein or dispose of or abandon
Zither thereof;
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(4) it will.not, without the prior written consent of Buyer, grant any rights or i
other privileges in or with respect to the Property or any portion thereof or grant, or consent to:or
Waive:the right to object to, any easements; covenants or restrictions affecting all or any portion
of the Property:except as described in Section 10A f above. j
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(i) other than the financing arrangements described in.Section 7.I(g) above,.it
will not enter into any mortgages, operating contracts, ground leases, space leases or other
contracts or encumbrances with respect to or affecting the Property or any portion thereof; �
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(]) it will promptly notify Buyer`if it discovers,determines or is.notifed that
any warranty or representation made by Seller hereunder is not(or is no longer) true; and.
(k) it will make the Property available to Buyer and its agents,consultants and
engineers for:such inspections and tests as Buyer deems appropriate,provided Buyer gives:Seller
notice in writing two (2) days ahead of such inspections and tests..
1 1, Conditions Material to Buy_er's Obligations
11.1. Conditions. Without.limitation of any other conditions to Buyer's
obligation to close set.fdrth in this Contract, the obligations of Buyer under this Contract are
subject to the satisfaction at the time of Closing (any one of which may be waived in whole or in
part by Buyer at or prior to.Closing):
(a) All of the representations by Seller set:forth in this Contract or.any Exhibit j
attached hereto shall be true and correct in all material respects;
(b) Seller shall have performed, observed and complied with all covenants €
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and obligations required by this Contract to be performed by Seller at.or prior to Closing; {
(c) Full possession of the Property, free of al claims of and possession by
tenants and occupants is to be delivered at.Closing,the Property to be then(i) in the same
condition as it.now is;and(ii) in the same condition as described in any hazardous material site
evaluation report obtained by Buyer,there having been no change in such condition from the.
date of such report;.and (iii) suitable for residential development without the requirement for any
so-called Activity.and Use Limitation.
(d) The Title Company is unconditionally committed to issuing a policy
insuring good record and marketable.title free and clear of all liens and.encumbrances except the
encumbrances or restrictions as are.approved by Buyer in accordance with Section 6.2 of this
Contract.
(e) The.Approvals shall.have been obtained or waived.as set forth herein. f
(f) If the Buyer is not safisf ed with an of the conditions in Section 1].1 a
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.to (e),.it.will notify Seller of any deficiencies, and Seller will have a 20-day cure.period. Seller
will then he responsible for keeping these conditions the same until the Closing.
11.2. Failure of Conditions. If.any of the conditions described in Section 11.1 !
above:is not satisfied at the time of Closing, Buyer shall have the sole election to terminate this �
Contract, in which event the Deposit shall be returned to Buyer forthwith. In such case,.upon the
return of the Deposit to Buyer;then all obligations of the parties hereto shall cease and this
Contract shall be terminated and.the parties shall be without further recourse or remedy
hereunder. Notwithstanding anything to.the contrary herein,this Section 11.2 shall not affect
Buyer's rights pursuant to Section 2.5 herein to the extent any such failure to satisfy a closing.
condition is a result of Seller's breach:or default.
12. Closirw Deliveries �
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12.1. Seller's.Obligations. At.the Closing; Seller shall, without limitation of
Seller's obligations under this Contract, deliver the following documents.satisfactory in form and
substance to Buyer and.Buyer's counsel, properly executed and acknowledged as required:
(a) The Deed;
(b) Originals of all Permits and Plans as shown in Exhibit C. all amendments
thereto and all.records and correspondence relating thereto;
(c) A warranty Bill.of Sale relating to the Permits and Plans as shown on
Exhibit C;
(d) A certification of non-foreign status in the form required.by law-
(e) Evidence satisfactory to Buyer And to Buyer's title insurance company
(the "Title Company")that all necessary approvals,.licenses and/or consents have been obtained
and.such.other evidence satisfactory to Buyer or the Title Company of Seller's authority and the {
.authority of the signatory on behalf of Seller to convey the Property pursuant to this Contract; s
(f) Affidavits sufficient for the Title Company to delete any exceptions for
parties in possession or mechanics or materiaimen's liens..from the commitment for owner's title
insurance (the "Title.Insurance"), and such other affidavits relating to the Title Insurance as the
Title Company may reasonably request;
(g) A.certificate restating as of the Closing:Date all of Seller's representations.
and warranties contained herein;
(h) An.original of a Closing Statement setting forth the Purchase Price,the €
closing adjustments and prorations and the application thereof'at the Closing(the"Closing.
Statement");
(i) Such transfer tax, gains or other similar forms required by law;
0) An original 1 o99-B certification; �
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(k) Intentionally omitted;
(1) An assignment by Seller to.Buyer of any guarantees, warranties,permits,
licenses, approvals or other rights benefiting the Property in a farm attached hereto as Exhibit F;
(m) Such other instruments as Buyer may reasonably request consistent with
the terms of this Contract.
12.2. Bu er's Obli ations. At the Closing,Buyer shall without limitation of
Buyer's obligations under this:Contract,deliver the following documents satisfactory in form
and substance to Seller and Seller's counsel,properly executed and acknowledged as required:
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(a) The Purchase Price;
(b) The.Closing Statement; and
(c) A certificate restating as of the Closing Date all of Buyer's representations
and warranties contained herein.
13. Brokers
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Each of Buyer and Seller represents..to the other that no agent:or broker has been
instrumental in effecting this transaction. Seller represents.that it bas not giver;any agent or
broker a listing.to.sell the Property,nor has:any other agent or broker introduced Buyer to Seller,
nor has any agent or broker been instrumental in effecting this transaction. Each party shall
indemnify and hold the other party hai7nless in connection with any further commission or other
liability claimed or incurred by the other party as.a result of the breach of any agreement or
representation herein by the indemnifying party, including.counsel fees and other litigation costs,. '
provided that the party seeking indemnification shall have given prompt notice of any such claim.
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or liability asserted and shall.have offered the other party.the opportunity to defend against such €€
claim or liability. The obligations under this Section shall survive the.Closing or the earlier f
tennination of this Contract. s
14. Risk of Loss E
14.1. Uddfig,. In the event Seller receives any notice..of a Taking or proposed.
Taking prior to closing, Seller will immediately deliver a copy of such notice to Buyer. if all or €
any.part of the property has been.or.is Taken.prior to Closing,or if any proceeding for a Taking
has been or is commenced prior to Closing, or if notice of the contemplated cornmencement
thereof has been or is given to Seller and/or.Buyer prior to Closing, Buyer shall have the right, at
its sole option,to terminate this Contract by notice to Seller within fifteen(15) days.after receipt:
by Buyer of written notice of the Taking or the proposed Taking. If Buyer does not terminate
this Contract,the Purchase Price shalt be reduced by the total.of all awards or damages received €'€
prior to Closing by.Seller and any party claiming under or through Seller; and Seller and any I
party clairniing under or through Seller shall, at:Closing, assign to Buyer all right,title and
interest in and to all awards or damages to which Seller or such party may have become entitled
or tray thereafter be:.entitled to by reason of any exercise of the power of eminent domain or
condemnation with respect to or for the Taking of the Property orany portion thereof. Seller
shall not settle any claim for any award or damages for any Taking without the prior written
consent of Buyer. j
15. Assignment
15.1. Assi nment and Assurri Lion. Buyer shall have the right;without Seller's
consent,to.assign this.Contract and its rights hereunder to any entity which shall:control,be
controlled by or under common control with Buyer or arty.director or officer.of Buyer. �
16. Notices
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Any notice or communication which may be or is required to be given pursuant to the
terms oftbis Contract shall be in writing and shall be sent to the respective party at the addresses
set forth below, postage prepaid, by certified mail, return receipt requested, by a nationally
recognized overnight courier service that provides tracking and proof of receipt of items mailed
or by e-mail or facsimile provided that if notices are given by facsimile a copy thereof must be
sent on the same day by nationally recognized overnight courier service that provides tracing and
proof of receipt of items mailed for next business day delivery. Notices shall be effective upon
receipt. Either party may change the address to which notices to it shall be sent by a notice sent
in accordance with the requirements of this Section.
To Buyer:
East Mill Housing LLC
17 lvaloo Street, Suite 100
Somerville, Massachusetts 02143
Telephone: 617-625-8315
E-mail: dsteii rgh,�lbe
Attn: David Steinbergh
To Seller:
ECG North Andover Mills LLC
c/o RCG LLC
17 Ivaloo, Street, Suite LOO
Somerville, Massachusetts O2143
Telephone: 617-625-8315
E-mail: ru .41c-cotri
Attn: Matthew Picarsic
To Escrow Agent:
To be added when finalized
17. Escrow Agent.
17.1. DelivMofDel2osi .
(a) Escrow Agent shall deliver the Deposit(for purposes,of this Section 17,
the"Escrow")to Seller and Buyer promptly after receiving ajoint written notice from Seller and
Buyer directing the disbursement of the same, such disbursement to be made in accordance with
such direction, If Escrow Agent receives written notice from Buyer or Seller that the party
giving such notice is entitled to the Escrow, then Escrow Agent shall (a)promptly give notice to
the other party of Escrow Agent's receipt ol'such notice and enclose a copy of such notice and
(b) subject to the provisions of the fallowing paragraph which shall apply if a conflict arises, on.
the I nth day after the giving of the notice referred to in clause (a)above, deliver the Escrow to
the party claiming the right to receive it,
In the event that Escrow Agent shall be uncertain as to its duties or actions hereunder or
shall receive instructions or a notice from Buyer or Seller which are in conflict with instructions
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or a notice from the other party or which, in the reasonable opinion of Escrow Agent, are in
conflict with any.of the provisions of this Contract, it shall be.entitled to take any of
following courses of action:
.(b) Hold.the Escrow as provided in.this Contract and.decline to take any
further action until Escrow Agent receives a joint written direction from Buyerand Seller or any
order of a court of competent jurisdiction directing the disbursement of the Escrow, in which.
case Escrow Agent shall then disburse the Escrow in.accordance with such direction;
(c) In the event of litigation between Buyer and Seller,Escrow Agent may �
deliver the Escrow to the elerk of'any court in which such litigation is pending; or
(d) Escrow Agent may'deliver the Escrow to a court of competent jurisdiction
and therein commence an action for interpleader,the cost thereof to Escrow Agent to be borne
by whichever of Buyer or Seller does not prevail in the litigation.
17.2. Liabilily. Escrow Agent shall not lie liable for any action taken..or omitted
in good faith and believed by it to be authorized or within the rights.or powers conferred upon.it
by this Contract and it may rely, and shall be protected in acting or refraining from acting in €
reliance upon an opinion of counsel and upon any directions;instructions, notice, certificate,
instrument, request,paper or other documents.believed by it to be genuine and to have been
made, sent,signed or presented by the proper party or parties. In no event shall Escrow.Agent's
liability hereunder exceed the aggregate amount of the Escrow. Escrow Agent shall be under no
obligation to take any legal action in connection with the Escrow or.this Contract or to appear in,
prosecute or.defend any action or legal proceeding which would or might, in its sole opinion,
involve it in cost, expense,.loss or liability unless; in.advance, and as often as reasonably €
required by it, Escrow Agent shall be'furnished with such.security and indemnity as it finds
reasonably satisfactory.against all such cost,.expense, loss or liability.. Notwithstanding any
other provision of this Contract, Buyer and Seller jointly indemnify and hold harmless Escrow
Agent against any loss, liability.or expense incurred without bad faith on its part and arising out.
of or in connection with its services.under the terms of this Contract, including the cost and
expense of defending itself against any claim of liability.
1.7.3. Modification. Escrow Agentshall not be bound by any modification of
this Contract unless the same.is in writing and.signed by Buyer; Seller and Escrow Agent. From
time to time on or after the:date hereof,Buyer and Seller shall.deliver or cause to be delivered to
Escrow Agent such.further documents and instruments that fall due,or cause to be done such.
further acts as Escrow Agent may reasonably request(it being.understood that Escrow Agent !
shall have no obligation to make.any such.request) to carry out more effectively the provisions
and.purposes of this Contract,to evidence compliance with this Contract or to assure itself that it
is protected in acting hereunder. {
17.4. Expenses. Escrow Agent shall serve hereunder without fee for its services
as escrow agent, but shall be entitled to reimbursement for expenses incurred by Buyer and
Seller, which expenses.shall be paid and borne equally by Buyer and Seller,unless. such
expenses are associated with litigation between Buyer and Seller, in which event they shall be
borne by the party that does not prevail in the litigation. Escrow Agent shall not seek
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reimbursement for the services of its employees and partners, but only for its actual and
reasonably incurred.out-of-pocket expenses.
18. Miscellaneous.
18.1. Governin Law,• Assigns. This.Contract shall.be governed by and
construed in accordance with the laws of the Commonwealth of Massachusetts and shall be,
binding upon and inure to the.benefit of.the respective successors and assigns of the parties, If
Seller shall consist of more than one person or entity,the liability hereunder of the;persons
and/or entities cornprising Seller shall be joint and several.
18.2.. Amendment. This Contract represents the entire understandii2g of the
parties hereto with respect to the subject matter hereof and may only be amended by.a writing
executed by the panties hereto. All.prior negotiations and discussions by the parties hereto with
respect to.the subject matter hereof are merged herein and superseded bere by.
19.3. Not Recordable. Buyer agrees that.this Contract is not recordable,
assignable or transferable,by Buyer;and any attempt to record, assign or transfer, other than as €
permitted to an assignee or nominee as permitted by Section 15.1 shall be void and a default of
this agreement, and the.Seller shall, in the case of any transfer,recording or assignment, have the €
option to terminate this Contract and.retain the Deposit as liquidated damages.
18.4. Possession. At the Closing, Seller shall deliver possession of the Property
to Buyer and Buyer shall.be entitled to all rents, issues and profits therefrom.
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1.8.5. Cooperation. After the.Closing Seller and Buyer shall cooperate with one €
another at reasonable times and on reasonable conditions and shall execute and.deliver such
instruments and documents as may be necessary in order to fully carry out the intent and €
purposes of the.transactions contemplated hereby. Except for such instruments and documents
as the parties were originally obligated to deliver by the terns of this Contract,such cooperation
shall be without additional cost or liability.
18.6. Counterparts. This Contract may be executed in one or more counterparts,
including facsimile counterparts or electronic counterparts, each of which shall be deemed.an
original but all of which,taken together, shall constitute one and the same Contract. Each party
may rely upon a facsimile or".pd#"counterpart or other electronic delivery (including, without.
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limitation,DocuSign) of this Contract signed by the other party(ies)with the same effect as if
such party(ies)had received an`original counterpart signed by such other party(ies). In proving
this Contract, it shall not be necessary to produce or account for more than one such.counterpart.
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18:7. Captions. The captions in this Contract are inserted only for the purpose
of convenience of reference and in no way define, limit or describe the scope or intent of this
Contract or any part thereof
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18.8. 'Waivers. Buyer shall have the right to waive any condition to its
obligation to close title to the Property. No waiver shall.be binding upon Buyer unless in writing
and signed.by Buyer's.duly authorized representative. �
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1.8.9. Construction. Each provision of this Contract has been mutually
negotiated,prepared and drafted,.each party has been represented by legal counsel,.and in
connection with the construction of any provision hereof or deletions herefrom no consideration
shall be given to the issue of which party actually prepared, drafted,;requested'or negotiated any
provision or deletion.
1.8.14.. Confidentiality. Except to the extent that information must be disclosed to
obtain the:Approvals,the information set forth herein is intended to be private and confidential
between the entities executing this Contract and is not to be disclosed.to third parties without the.
consent of each such entities. Nothing.in this.Section shall prevent Seller or Buyer from
disclosing or accessing any information otherwise deemed confidential under this Section(a)in
connection with.that party's enforcement of its rights hereunder; (b)pursuant to any'legal
requirement; any statutory reporting requirement.or any accounting or auditing disclosure
requirement;.(c)in connection with performance by either parry of its obligations under this
Contract(including, but not limited to,the delivery and recordation of instruments, notices or
other documents required hereunder); or(d)to potential.investors,participants or assignees in or
of the transaction contemplated by this Contract. The provisions of this paragraph shall survive
the Closing or the earlier termination of this Contract.
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IN WITNESS MESS the parties have executed this Contract as of the date first above written.
BUYER:
EAST MILL, HOUSING LLC.
It's
Hereunto ly author , ed
SELLER:
RC G NORTH A" D1 O� �VER MILLS LLC
By:
fmt��;7�—
Its
Hereunto duly authorized