Attached files
EXHIBIT 10.3
THIRD AMENDMENT TO
PURCHASE AND SALE AGREEMENT
THIS THIRD AMENDMENT TO PURCHASE AND SALE AGREEMENT (this "Amendment") is
made as of the 6th day of May, 2015 (the "Effective Date"), by and between
FREETOWN ACQUISITION COMPANY, LLC, a Massachusetts limited liability company
(the "Seller"), and AMERICANN, INC., a Delaware corporation (the "Buyer" or
"Purchaser").
RECITALS
WHEREAS, Seller and Purchaser entered into that certain Purchase and Sale
Agreement dated as of January 9, 2015, for the purchase and sale of those
certain parcels of vacant land located at 1A & 3A Ridge Hill Road, Freetown,
Massachusetts, containing approximately 52.68 acres, which parcels are more
particularly described therein, as amended by a certain First Amendment to
Purchase and Sale Agreement dated as of March 30, 2015, as further amended by
that certain Second Amendment to Purchase and Sale Agreement dated as of May 4,
2015 (as so amended, the "Agreement");
WHEREAS, Seller and Purchaser desire to modify the terms of the Agreement
pursuant to the terms and conditions of this Amendment; and
NOW THEREFORE, in consideration of the mutual promises set forth herein,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto, intending to be legally
bound, hereby agree as follows:
1. Incorporation of Recitals; Definitions. The foregoing recitals are
incorporated herein. Capitalized terms not otherwise defined herein
shall have the meaning given such terms in the Agreement.
2. Closing Date. Section 6 of the Agreement is hereby deleted and
replaced with the following:
"The Deed of the Premises is to be delivered and the consideration
paid at the offices of Donoghue, Barrett & Singal, P.C., One Beacon
Street, Boston, MA 02108, or such other location in the greater Boston
area as may be required by Buyer's mortgage lender, at 11:00 am (EST)
on the date that is the earlier of (a) thirty (30) days following
Buyer's receipt of the Permits (as defined below), or (b) September 1,
2015 (the "Closing Date"). It is agreed that time is of the essence of
all provisions of this Agreement. The date and time of delivery of the
Deed is sometimes referred to herein as the "Closing" or the "Closing
Date."
As used herein, a "Permit" or "Permits" shall mean all permits,
authorizations, and approvals (including, without limitation,
environmental permits and approvals, and zoning variances, exceptions
and special permits) which are necessary in order to use the Premises
for cannabis cultivation, processing and dispensary facility have been
granted by the applicable state and local governmental agency.
Buyer shall have the right to extend the Closing Date pursuant to two
(2) options to extend the Closing Date by thirty (30) days (each a
"Closing Extension Option"). In order for the Buyer to exercise the
first Closing Extension Option, Buyer must (a) provide Seller with
1
written notice that Buyer has elected to extend the Closing Date on or
before August 25, 2015, and (b) simultaneously with the delivery of
such written notice, delivers to Escrow Agent (as defined below) an
additional deposit of One Hundred Thousand Dollars ($100,000) (the
"First Additional Deposit"). In order for the Buyer to exercise the
second Closing Extension Option, Buyer must (a) provide Seller with
written notice that Buyer has elected to extend the Closing Date on or
before September 25, 2015, and (b) simultaneously with the delivery of
such written notice, delivers to Escrow Agent (as defined below) an
additional deposit of One Hundred Thousand Dollars ($100,000) (the
"Second Additional Deposit", which together with the First Additional
Deposit, the "Additional Deposits", or each an "Additional Deposit").
Upon the delivery of the Additional Deposit to the Escrow Agent, such
Additional Deposit shall be (i) held in accordance with Section 15,
(ii) non-refundable to the Buyer, and (iii) credited to the Purchase
Price at a successful Closing. Notwithstanding the foregoing, in the
event that the Closing does not occur due to Seller's default under
the terms and conditions of this Agreement, then all deposits shall be
refunded to Buyer."
3. Due Diligence Period. Section 17(A) of the Agreement is hereby deleted
and replaced with the following:
"Inspections. Buyer shall have from the date hereof until 5:00 p.m.
(EST) on May 6, 2015 (the "Due Diligence Period") to perform whatever
inspections it desires and otherwise satisfy itself that it desires to
acquire the Premises. Notwithstanding the foregoing, the Buyer shall
have until August 4, 2015 (the "Wetlands and Permitting Period") to
obtain the Wetlands Approvals (as defined herein) and any other
Permits that specifically rely, or are specifically dependent (the
"Wetlands Affected Permits") on the Wetlands Approval prior to the end
of the Wetlands and Permitting Period. If Buyer is unable to obtain
the Wetlands Approvals and Wetlands Affected Permits prior to the
expiration of the Wetlands and Permitting Period, then Buyer shall
have the right, at Buyer's election, to terminate this Agreement
effective upon notice to Seller of the exercise of said option and
receive the Deposit back. If Buyer fails to give written notice to
Seller on or before the expiration of the Wetlands and Permitting
Period that Buyer is not satisfied with the inspections described
herein, Buyer shall be deemed to have waived the right to terminate
this Agreement pursuant to this Section 17A, all Deposits shall be
deemed to be non-refundable to the Buyer. If the Agreement is
terminated in accordance with this Section 17A, all Deposits paid by
the Buyer, and all interest thereon, shall be returned to Buyer, and
the parties shall have no further obligations to each other.
As used herein, "Wetlands Approvals" shall mean the approvals and
agreements from the Town of Freetown's Conservation Commission, or
other Town of Freetown boards or agencies, needed to in order for the
Buyer to build the greenhouses and other improvements on the Premises
within certain wetlands buffer areas, more particularly shown on the
plan attached hereto as Exhibit A."
4. Ratification and No Further Amendment. As modified by this Amendment,
the Agreement is fully ratified, adopted and approved by the parties
hereto effective as of the date hereof. Except as expressly set forth
herein, the Agreement remains unmodified and in full force and effect.
5. Counterparts. This Amendment may be executed in multiple counterparts
each of which shall be deemed an original but together shall
constitute one and the same instrument.
2
6. Signatures. Handwritten signatures to this Amendment transmitted by
telecopy or electronic transmission (for example, through use of a
Portable Document Format or "PDF" file) shall be valid and effective
to bind the party so signing.
[SIGNATURE PAGES FOLLOWING]
3
IN WITNESS WHEREOF, Seller and Purchaser have executed and delivered this
Amendment as of the date first above written.
SELLER:
FREETOWN ACQUISITION COMPANY, LLC, a
Massachusetts limited liability company
By: /s/ Kathleen H. Wade
----------------------
Name: Kathleen H. Wade
Title: Vice President - Legal
PURCHASER:
AMERICANN, INC., a Delaware corporation
By: /s/ Timothy R. Keogh
----------------------
Name: Timothy R. Keogh
Title: CEO
