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EXHIBIT 10.7
PURCHASE AND SALE AGREEMENT
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1. PARTIES This 8th day of November, 1996 Xxxxxxxx Chelmsford B
Associates, a Massachusetts limited partnership with a
principal place of business at 000 Xxxxxxxxx Xxxx,
Xxxxxxxxx, XX 00000 (the "the SELLER"), agrees to sell
and Northland Development Corporation, a Delaware
corporation with a principal place of business at 0000
Xxxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx (the "the BUYER"
or the "PURCHASER") agrees to buy, upon the terms
hereinafter set forth, the following described premises:
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2. DESCRIPTION A certain parcel of land comprising approximately 9.26
acres of land located on Riverneck Road, Chelmsford,
Massachusetts identified on the Town of Chelmsford Tax
Assessor's Map 110 as Lot 32 and all as shown on Exhibit
A attached hereto (the "Premises" or the "Property"). The
Premises are shown on a plan of land entitled "Site Plan,
000/0 Xxxx Xxxxxx Xxxxxxxx X, Xxxxxxxxxx Mass." prepared
by X.X. Xxxxx Associates, Inc. and dated December 19,
1984, revised 3/12/86 (the "Plan"). The SELLER's title is
derived under a Deed recorded with the Middlesex County
(Northern District) Registry of Deeds in Book 3818, Page
249 and Certificate of Title No. 27533.
3. APPURTENANCES The Premises to be conveyed shall include all other
assignable rights, easements, privileges, licenses or
appurtenances benefiting, affecting or relating to the
Premises as held by the SELLER and running with the land
and including without limitation all rights in adjoining
private ways and any assignable permit rights held by the
SELLER. The BUYER shall be entitled to such rights as the
SELLER may have and which are assignable by SELLER and
are appurtenant to the Premises, but SELLER makes no
representations that SELLER has any such rights or that
any such rights held by SELLER are assignable to or
exercisable by BUYER. In addition, at the time set for
Closing, the SELLER shall deliver to the BUYER an
easement agreement from the owner and any mortgagee of
adjacent Lot 3 shown on the Plan in recordable form for
the purposes of allowing drainage and/or discharge to
flow from the Premises onto Lot 3 abutting the Premises
substantially in the manner shown on the Plan.
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4. TITLE DEED The Property shall be conveyed by a good and
sufficient quitclaim deed running to the BUYER or to the
nominee designated by the BUYER by written notice to the
SELLER at least 10 days prior to closing, and said deed
shall convey good and clear record and marketable title
thereto free from encumbrances, except:
a. provisions of existing building and zoning laws;
b. such taxes for the then current year as are not due
and payable as of the date of the delivery of the deed;
and,
c. a presently outstanding betterment lien for sewer
installation and any other liens for municipal
betterments assessed and recorded after the date of this
Agreement.
d. Matters which BUYER is deemed to have accepted
pursuant to the terms of this Agreement.
e. Matters which in BUYER's reasonable judgment do not
impair BUYER's Proposed Project (as hereinafter defined).
Except as to matters which the BUYER is deemed to have
accepted pursuant to the terms hereof the SELLERS title
hereunder shall not be deemed good and marketable unless:
i. such title is insurable at standard rates by a
recognized company of the BUYER's choice which shall
affirmatively insure each of the appurtenances to be
conveyed pursuant to paragraph 3 hereof and without
exceptions except as to matters permitted or waived under
this paragraph 4 and standard printed exceptions on the
policy jacket;
ii. the BUYER'S survey discloses no new encroachments,
including without limitation encroachments of structures,
easements or rights of way from adjacent properties onto
the Property arising after December 15, 1996;
iii. Appurtenant to the Property is the right to use a
driveway shown on the Plan leading to Riverneck Road in
common with the owner of Lot I shown on the Plan.
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BUYER agrees that promptly upon execution of this
Agreement BUYER will cause title to the Property to be
reviewed in the manner deemed appropriate by Buyer as of
December 15, 1996 and a survey to be prepared. On or
before the end of the Inspection Period BUYER will notify
SELLER of any manner in which the title to the Property
as of December 15, 1996 does not comply with the
standards of this Agreement. If BUYER does not terminate
this Agreement pursuant to Paragraph 24 then any such
objections to title as of December 15, 1996 shall be
subject to Paragraph 10 hereof, and the SELLER shall
notify the BUYER within 10 days of BUYER's notice of
title objections as to the actions which SELLER intends
to take to cure title defects in BUYER's notice. BUYER
will be deemed to have waived any objections to the
status of record title as of December 15, 1996 to the
extent such objection is not noted in BUYER's title
notice to SELLER. The standards of subparagraphs (i)
through (iii) of this Paragraph 4 shall apply to any
matters of record title or of survey first recorded or
occurring after December 15, 1996.
5. REGISTERED In addition to the foregoing, said deed shall be in form
TITLE sufficient to entitle the BUYER to a Certificate of
Title, and the SELLER shall deliver with said deed all
instruments, including without limitation the SELLER'S
Owner's Duplicate Certificate, necessary to enable the
BUYER to obtain such Certificate of Title.
6. PURCHASE The Purchase Price for the Property is Six Hundred
Thousand and NO/100 Dollars ($600,000.00) which, less the
Deposit referred to in Paragraph 7, shall be paid to the
Seller at the delivery and recording of the deed in
certified, bank, or treasurer's funds or by wire
transfer.
7. DEPOSIT Upon the execution hereof, the BUYER shall deliver to
Xxxxxxx, Xxxxxxx and Xxxx, LLP, as escrow agent, an
amount of Sixty Thousand ($60,000.00) Dollars to be held
in accordance with Paragraph 32 as a deposit applicable
to the purchase price and to be accounted for at the
delivery of the deed or delivered (i) to the SELLER if
the sale either closes or does not close because of a
default of the BUYER or (ii) to the BUYER if the sale
does not close for any other reason.
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8. TIME AND Such deed is to be delivered (the "Closing") on or
PLACE FOR before the 30th day after the expiration of all appeal
PERFORMANCE periods for the approvals as described in Paragraph 26
hereof provided that this Agreement shall not sooner have
been terminated under any clause of this Agreement
allowing for such termination. The Deed shall be
delivered at the office of BUYER's counsel Xxxxxxxxxxx
and Xxxxxxxxxx 0000 Xxxxxx Xxxxxx Xxxxxx, XX 00000. BUYER
may, at BUYER's option, advance the closing to any
earlier date and/or change the location of the closing
within Greater Boston upon at least five (5) business
days' notice to SELLER. It is agreed that time is of the
essence of this Agreement.
9. POSSESSION Full possession of said premises free of all tenants and
AND occupants is to be delivered at the time of the delivery
CONDITION of the deed, said premises to be:
OF PREMISES
a. in the same condition as they now are, and
b. in compliance with the requirements referred to in
paragraphs 3 and 4.
10. EXTENSION TO If the SELLER shall be unable to give title or to make
PERFECT TITLE OR conveyance, or to deliver possession of the Premises, all
MAKE PREMISES as herein stipulated, or if at the time of the delivery
CONFORM of the deed the Premises do not conform with the
provisions hereof the SELLER shall use reasonable efforts
to remove any defects in title, or deliver possession as
provided herein, or make the Premises conform to the
provisions hereof as the case may be and the time for
performance hereof shall be extended for such period as
may be reasonably necessary but not more than thirty (30)
days for the SELLER to correct any such cure; provided
that the SELLER shall not be obligated to spend more than
$5,000.00 to remove non-monetary defects, deliver
possession as provided herein or make the Premises
conform to the provisions hereof but provided further
that the SELLER shall be obligated to remove all
voluntary monetary encumbrances and shall be obligated to
bond or offer to pay up to the net sale proceeds into
court with respect to involuntary monetary encumbrances
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11. FAILURE TO If at the expiration of any such extended time the
PERFECT TITLE OR SELLER shall have failed to remove any defects in title,
MAKE PREMISES deliver possession, or make the Premises conform, as the
CONFORM, ETC. case may be all as herein agreed then, at the BUYER's
sole option, except as provided in Paragraph 12, the
deposits made under this Agreement shall be forthwith
refunded and all other obligations of the parties hereto
shall cease and this Agreement shall be void without
recourse to the parties, except for BUYER's
indemnification and reimbursement obligations hereunder
which shall survive any such termination.
12. BUYERS ELECTION The BUYER shall have the election, at either the original
TO ACCEPT TITLE or any extended time for performance, to accept such
title as the SELLER can deliver to the Premises in their
then condition and to pay therefor the purchase price
without deduction, in which case the SELLER shall convey
such title.
13. ACCEPTANCE The acceptance of a deed by the BUYER or its nominee, as
OF DEED the case may be, shall be deemed to be a full performance
and discharge of every agreement and obligation herein
contained or expressed, except such as are, by the
express terms hereof, to be performed after the delivery
of the deed.
14. USE OF PURCHASE To enable the SELLER to make conveyance as herein
MONEY TO CLEAR provided, the SELLER may, at the time of the Closing use
TITLE the purchase money or any portion thereof to clear the
title of any or all encumbrances or interests, provided
that all instruments so procured from institutional
lenders are recorded reasonably promptly after the
delivery of the deed in the usual and customary manner
and all other instruments are recorded simultaneously
with the recording of said deed
15. ADJUSTMENTS Any applicable municipal use charges, assessments and
taxes for the then current year shall be apportioned as
of the Closing, and the net amount thereof shall be added
to or deducted from, as the case may be, the purchase
price payable by the BUYER at the Closing.
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16. ADJUSTMENT OF If the amount of said taxes is not known at the time of
UNASSESSED AND the delivery of the deed, they shall be apportioned on
ABATED TAXES the basis of the taxes assessed for the preceding year
with a reapportionment as soon as the new tax rate and
valuation can be ascertained; and, if the taxes which are
to be apportioned shall thereafter be reduced by
abatement, the amount of such abatement, less the
reasonable cost of obtaining the same shall be
apportioned between the parties, provided that neither
party shall be obligated to institute or prosecute
proceedings for an abatement unless herein otherwise
agreed.
17. BROKERAGE Each party represents that neither has engaged the
services of a real estate broker in the consummation of
this transaction except that the SELLER has engaged The
Miles Company, Inc. pursuant to a separate agreement, and
that except for the commission to The Niles Company,
Inc., which SELLER agrees to pay, no commission is due to
any person from this sale. Each party indemnifies the
other from and against all costs, loss and damage
incurred by the other resulting from any other claim or
right to a brokerage commission arising out of the
failure of its representation. This provision shall
survive delivery of the deed.
18. TITLE INSURANCE At the Closing the SELLER shall execute usual and
customary title insurance company affidavits in form and
substance reasonably satisfactory to SELLER to the effect
that there are no parties in possession affecting the
Premises and that no work has been performed upon the
Premises by SELLER which would entitle any person to a
mechanic's or materialman's lien upon any portion of the
Premises. The SELLER shall provide certificates or
affidavits reasonably satisfactory to the BUYER's title
insurance company as to the existence of the SELLER and
the identity and authority of the general partners acting
on behalf of SELLER. The SELLER shall further execute a
foreign person certificate pursuant to Internal Revenue
Code Section 1445 and provide BUYER with information
sufficient for IRS form 1099 if required.
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19. ACCESS The SELLER hereby agrees that the BUYER and the BUYER'S
representatives, consultants, engineers and/or agents
shall have the right of access to the Premises at all
reasonable times on reasonable prior notice from the date
of this Agreement up to and including the Closing all at
the sole risk and responsibility of the BUYER, to conduct
surveys, engineering, hazardous materials and other
construction or development tests, or to inspect the
Property. Tests anticipated by BUYER to be undertaken
under this paragraph as set forth in Exhibit B attached.
Prior to any such access BUYER or BUYER's contractors or
agents shall provide SELLER with certificates of
insurance evidencing liability insurance coverage of at
least $1,000,000, property damage of at least $1,000,000
and, to the extent applicable worker's compensation
insurance in at least statutory limits and naming SELLER,
its agents, partners and employees and The Equitable Life
Insurance Company of America as additional insurers. The
BUYER agrees to indemnify and hold the SELLER, its
agents, partners and employees harmless from and against
any damage, claims, loss or liability arising out of any
activity of BUYER, its representatives, consultants,
engineers and/or agents on the Premises. The SELLER
acknowledges that the BUYER's hazardous materials testing
or other tests may require the digging of one or more
borings or test pits on the Property, and surveys may
cause usual and customary holes, clearing of sight fines,
or digging. The BUYER agrees promptly to re-grade and
re-store reasonably the Property upon the taking of any
borings; or test pits and to undertake such tests using
appropriate caution. BUYER's obligations under this
paragraph 19 to indemnify Seller shall survive the
delivery of the deed or termination of this Agreement,
and BUYER's obligations under this paragraph 19 to
restore the Property shall survive termination of this
Agreement.
20. BUYERS DEFAULT In the event the BUYER shall default in the performance
of the BUYER'S obligations hereunder all deposits made by
the BUYER and all interest earned thereon shall be
retained by the SELLER as liquidated damages and shall
constitute the SELLER's sole remedy at law or in equity.
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21. PLANS AND SELLER agrees to assign to the BUYER at the Closing all
PERMITS of the SELLER'S right, title and interest in such plans,
surveys, engineering reports, licenses, permits and
governmental or quasi governmental permits as exist as of
the date of the Closing including without limitation
SELLER's rights if any under a previous MEPA approval for
the Property, but only to the extent such rights, plans,
licenses, or permits (i) relate to the Premises, (ii) are
assignable at no cost to SELLER and without the necessity
of obtaining any third party's consent, and (iii) are
otherwise useful or necessary in Buyer's reasonable
judgment for development, construction or operation of
the BUYER'S proposed development similar to that
previously permitted by SELLER and shown on the Plan (the
"Proposed Project")
22. MUTUAL Prior and subsequent to delivery of the deed the SELLER
COOPERATION agrees at BUYER's expense to cooperate with the BUYER'S
filings for all governmental permits usual, customary or
necessary for the Proposed Project. The SELLER'S
cooperation shall include, without limitation, the
signing of such applications as are required to be in the
name of the owner of the land while the SELLER is the
owner and the submission to regulatory authorities of
letters of approval and support by the SELLER. In
exercising its cooperation under this paragraph, the
SELLER shall not be obligated to expend any monies but
each shall lend such reasonable support as is reasonably
requested to applications or requests of the BUYER
without the expenditure of money. SELLER agrees that Lot
C shown on the Plan will not be developed with a project
of more than 59,000 gross square feet, and BUYER agrees
that the Proposed Project will not exceed 97,000 gross
square feet, it being the intention of this paragraph
that each of Lot B and Lot C have the right pursuant to
previously granted MEPA authorizations to construct the
projects shown in such authorizations. In the event
either BUYER or SELLER desires to construct or develop a
project of more than the respective aforesaid gross
square footage and as described and shown in such
authorizations, such party may seek the required
approvals, including without limitation any changes to
the MEPA authorizations previously granted, provided the
other party's rights under such previously granted MEPA
authorizations are not affected The mutual covenants
contained in this Paragraph shall survive delivery of the
deed.
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23. DUE DILIGENCE Notwithstanding any other provision hereof the BUYER
shall for sixty (60) days after the date of this
Agreement (the "Inspection Period") have the right
subject to the provisions of paragraph 19 to conduct a
"due diligence" review of the Property and of the
feasibility of BUYER's proposed development and such
other matters as BUYER may deem appropriate in BUYER's
judgment including but not limited to:
(A) OIL AND HAZARDOUS MATERIALS: The BUYER may engage
an engineering consultant at the BUYER's expense to
conduct a so-called "21E study" environmental report
on the Property with a view towards determining
whether any portion of the Property contains or is
subject to a release or threat of release of oil or
hazardous materials as defined in M.G.L. c 21E. The
BUYER's environmental report may at the BUYER's
election include soils and groundwater testing at the
Property.
(B) BUILDABILITY. The BUYER may review whether the
Property is buildable in view of ledge, site
conditions or access, unavailability or expense of
providing utilities, existence of wetlands or
floodplains, zoning, subdivision, MEPA or other
regulatory constraints or any other reason the BUYER
may deem appropriate. BUYER is specifically authorized
to review the development potential of the Property
with governmental officials in order to estimate and
evaluate the risk or likelihood of success in
obtaining necessary governmental approvals for
development of the Property.
(C) TITLE AND SURVEY: The BUYER may have the record
title to the Property investigated as of the date
hereof and may have such surveys or other plans or
information relative to title prepared in order to
ascertain whether the Property conforms to the
conveyancing standards of this Agreement, whether all
necessary rights appurtenant run with the Property and
is otherwise suitable for the BUYER's development.
BUYER agrees that it will promptly and diligently seek to
satisfy itself with respect to its due diligence review
of the Property within the Inspection Period, exerting
reasonable efforts to that end. BUYER agrees that it will
keep SELLER reasonably informed concerning the progress
of its due diligence review.
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24. RIGHT TO On or before the end of the Inspection Period the BUYER
TERMINATE shall have the right to terminate this Agreement with or
without any reason. The BUYER may exercise its right
under this Paragraph by a notice to the SELLER in the
BUYER's sole discretion no later than 5:00 P.M. on the
last day of the Inspection Period in which event this
Agreement shall be terminated, the deposit described in
Paragraph 7 hereof together with any interest accrued
thereon shall be returned to the BUYER and the parties
shall have no further obligations to each other
hereunder, except that BUYER's obligation to indemnify
and reimburse SELLER and to restore the Property pursuant
to paragraph 19 and SELLER's obligation to return the
deposit with accrued interest shall survive any such
termination. Upon any termination of this Agreement under
this paragraph BUYER shall promptly deliver to SELLER,
but not as a condition of such termination copies of any
plans, reports or other investigatory data obtained by
BUYER in the course of BUYER's due diligence
investigation. BUYER shall not warrant or represent the
accuracy of any factual matters or legal conclusions
contained in any such reports, nor shall BUYER be
required to provide that any such reports shall run to or
for the benefit of SELLER. Further BUYER may withhold
reports prepared by its counsel or other reports, plans
or documents given in confidence or subject to
non-disclosure provisions binding on BUYER. It is
expressly understood and agreed that BUYER's failure to
give timely notice of termination as aforesaid shall be
conclusively deemed to constitute BUYER's waiver of
BUYER's right to terminate this Agreement under this
Paragraph.
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25. HAZARDOUS In the event BUYER does not terminate this Agreement as
MATERIALS provided in Paragraph 25 and in the further event that
BUYER's investigation of the Premises indicates that oil
or hazardous materials are present in, on or under the
Premises that would require removal or remediation under
the Massachusetts Contingency Plan then BUYER may, by a
notice given within the Inspection Period, require that
SELLER remove or remediate such condition or take such
other steps as are required by law and further that
Seller provide documentation and approvals as required by
the Massachusetts Contingency Plan, if any; provided that
in undertaking such remediation and documentation SELLER
shall not be required to expend more than $50,000.00. In
the event that SELLER provides reasonable evidence that
the removal, remediation and documentation required under
this Paragraph will cost in excess of $50,000.00 then
SELLER may at SELLER's option decline to undertake such
removal or remediation and may instead determine that the
Premises as delivered would not conform to the
requirements hereof and SELLER may terminate this
Agreement by a notice to BUYER within fifteen (15) days
of the end of the Inspection Period subject to the
provisions of Paragraph 12.
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26. PERMITS AND In the event the BUYER does not terminate this Agreement
APPROVALS during the Inspection Period pursuant to Paragraph 24 the
BUYER shall, at the BUYER's sole cost and expense, during
or promptly after the end of the Inspection Period
prepare plans and applications as necessary for such
zoning permits, variances, wetlands orders, Army Corps
permits, sewer and water connection permits, NPDES
permits, MEPA review or other governmental or
quasigovernmental permits, licenses, orders and approvals
as the BUYER may reasonably determine are usual,
customary or necessary to construct the Proposed
Project. The BUYER shall use good faith diligent efforts
to submit to the Chelmsford Planning Board or other
appropriate permit granting authority an application for
a Special Permit or Site Plan Review or such other relief
as the BUYER shall reasonably deem appropriate on or
before February 15, 1997. In the event that after
employing reasonable efforts, the BUYER is unable to
obtain all such permits, licenses, orders and approvals
including without limitation utility services, but in any
event not including a building permit, on or before the
date six months after the end of the Inspection Period
and all appeal periods related thereto have not expired
within such time, then the BUYER shall have the right
either to (i) terminate this Agreement by a notice given
within seven days after the end of the period of six (6)
months after the end of the Inspection Period in which
event all deposits made hereunder together with any
interest accrued thereon shall be refunded to the BUYER
and the parties shall have no further obligations to each
other under this Agreement or (ii) upon one, two or three
further notices to the SELLER each given prior to
expiration of the applicable extension period, and
provided that the BUYER is diligently seeking such
approvals, extend the time for obtaining such approvals
and expiration of any such appeals period(s) for up to
three (3) three extension periods of thirty (30) days
each, or (iii) proceed to close the purchase herein
contemplated.
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In the event BUYER shall elect to extend the time for
obtaining such approvals and/or running of the appeals
period then Buyer's right to terminate this Agreement for
failure to obtain such permits or approvals final beyond
appeal shall be likewise extended, provided, however, for
each thirty (30) day extension exercised by BUYER under
this paragraph the amount of the deposit which SELLER is
obligated to return to BUYER in the event of BUYER's
termination shall be reduced by $20,000, with all
interest on the deposit that is non-refundable accruing
to SELLER. FOR EXAMPLE: If BUYER shall exercise two
thirty (30) day extensions under this paragraph and then
during the second extension terminate this Agreement on
account of a failure to obtain permits final beyond
appeal then the amount of the deposit to which BUYER
would be entitled to have returned to BUYER would be
($60,000.00 less (2 x $20,000 = $40,000)) $20,000.
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27. REPRESENTATIONS A. THE BUYER'S REPRESENTATIONS AND WARRANTIES. The BUYER
hereby represents and warrants that the following
representations and warranties are true and accurate as
of the date hereof and shall be deemed renewed by the
BUYER on the date of the Closing as if made at such time
and shall survive the Closing:
(i) the BUYER is a duly organized legally existing
Delaware corporation qualified to do business in
Massachusetts with full legal authority to enter into
this transaction and to fulfill its obligations
hereunder, and,
(ii) the BUYER and the persons signing on its behalf
have been authorized by all necessary corporate action of
the BUYER's directors to enter into and deliver this
Agreement and carry out the transaction contemplated
hereby.
B. THE SELLER'S REPRESENTATIONS AND WARRANTIES: The
SELLER hereby warrants and represents that the following
representations and warranties are true and accurate as
of the date hereof and shall be deemed renewed by the
SELLER on the date of the Closing as if made at such time
and shall survive the Closing:
(i) the SELLER is a duly organized legally existing
Massachusetts limited partnership with full legal
authority to enter into this transaction and to fulfill
its obligations hereunder
(ii) The Seller and those persons signing on its
behalf have been authorized by all necessary partnership
action, if any is so required to enter into and deliver
this Agreement and to carry out the transaction
contemplated hereby.
(iii) Neither the execution of this Agreement nor the
consummation of the transactions contemplated hereby will
constitute a violation of or be in conflict with or
constitute a default under any term or provision of any
order, agreement or lease to which SELLER is a party.
28. CAPTIONS The captions herein are used only as a matter of
convenience and are not to be considered a part of this
Agreement or to be used in determining the intent of the
parties to it.
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29. NOTICES Notices hereunder shall be deemed properly sent three
days after posting if mailed, certified United States
Mail, return receipt requested, postage prepaid or on the
date of delivery if delivered by courier (including
overnight courier services) or served in hand to the
BUYER at its address first set forth herein with a copy
to Xxxx X. Xxxxxxxxxxx, Xxxxxxxxxxx and Xxxxxxxxxx, 0000
Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 and to the
SELLER at its address first set forth herein with a copy
to Xxx X. Rubin, Goodwin, Procter & Xxxx XXX, Xxxxxxxx
Xxxxx, Xxxxxx, XX 00000
30. ASSIGNMENT This Agreement may be assigned by the BUYER to any
affiliate or nominee of the BUYER without the prior
written consent of the SELLER, provided that upon any
assignment of the BUYER's rights hereunder Northland
Development Corporation shall remain liable for
performance of the obligations of the BUYER hereunder
including those surviving delivery of the deed or
termination of this Agreement, otherwise this Agreement
may not be assigned without SELLER's prior written
consent.
31. TITLE STANDARDS In matters respecting title to the Premises, standards of
the Massachusetts Conveyancers Association shall be
determinative.
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32. DEPOSITS, ESCROW All deposits referred to in Section 7 are to be held in
AGENT an interest bearing escrow account, and any interest is
to be accounted for and allocated to the BUYER at the
Closing; provided, however, that if all or any of the
deposit is retained by the SELLER under the provisions of
this agreement upon the default of the BUYER, then the
entire amount of interest earned shall be paid to the
SELLER.
All deposits made hereunder shall be held by Xxxxxxx,
Procter & Xxxx LLP, as Escrow Agent, subject to the terms
of this Agreement and shall be duly accounted for at the
Closing. In the event of any disagreement, however, the
Escrow Agent may elect, at its sole discretion, either
(a) to retain said deposit, and all interest thereon,
pending instructions mutually given by the SELLER and the
BUYER, or by final order, decree or judgment by a court
of competent jurisdiction (and no such decree or judgment
shall be deemed to be "final", unless and until the time
of appeal has expired and no appeal has been perfected)
or (b) to transfer the entire deposit, together with all
accrued interest thereon, either to a party mutually
agreeable to the BUYER and the SELLER to serve as a
substitute escrow agent to hold the deposit and such
interest pending the resolution of dispute between the
BUYER and the SELLER, or into a court of competent
jurisdiction. In the event of either of the foregoing
elections, Xxxxxxx, Procter & Xxxx LLP shall thereafter
be entitled to represent the SELLER in such dispute as
fully and completely as though Xxxxxxx, Procter & Xxxx
had never been the escrow agent holding the deposit. The
Escrow Agent shall not be 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
Agreement 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
document believed by it in good faith to be genuine and
to have been made, sent, signed or presented by the
proper party or parties. Notwithstanding any other
provisions of this Agreement, the BUYER and the SELLER
jointly indemnify and hold harmless the Escrow Agent
against any loss, liability or reasonable expense
incurred without bad faith or gross negligence on its
part arising out of or in connection with its services
under the terms of this agreement, including the
reasonable cost and expense of defending itself against
any claim or liability.
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33. AMENDMENTS The BUYER and the SELLER have the right to mutually
amend, modify, extend or terminate their obligations
under this Agreement without first having to obtain the
consent of the Escrow Agent, except in the case of
amendments or modifications of Section 34.
34. MISCELLANEOUS (a) Warranties and Representations: The BUYER
acknowledges that the BUYER has not been influenced to
enter into this transaction nor has BUYER relied upon any
warranty or representations not expressly set forth in
this Agreement. The BUYER hereby acknowledges that BUYER
is purchasing the Property "AS IS" without any
representations or warranties express or implied and that
BUYER is being given the opportunity to inspect fully the
Property. BUYER is not relying upon any statement or
representation of SELLER or the Brokers, express or
implied, with respect to the condition of the Property or
the feasibility or developability of the Proposed
Project. The provisions of this paragraph shall survive
delivery of the deed.
(b) Construction of Agreement: This Instrument, executed
in multiple counterparts, be construed as a Massachusetts
contract, is to take effect as a sealed instrument, sets
forth the entire contract between the parties, is binding
upon and inures to the benefit of the parties hereto and
their respective heirs, devisees, executors,
administrators, successors and assigns, and may be
canceled, modified or amended only by a written
instrument executed by both the SELLER and the BUYER. If
two or more persons are named herein as BUYER their
obligations hereunder shall be joint and several. The
captions and marginal notes are used only as a matter of
convenience and are not to be considered a part of this
AGREEMENT or to be used in determining the intent of the
parties to it.
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Executed this date first set forth above.
SELLER BUYER
XXXXXXXX CHELMSFORD B NORTHLAND DEVELOPMENT
ASSOCIATES LIMITED PARTNERSHIP CORPORATION
By: /s/ By: /s/
-------------------------------- -------------------------------
Its
ESCROW AGENT
XXXXXXX, PROCTER AND
XXXX LLP
By: /s/
-------------------------------
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