Attached files
EXHIBIT 10.4
SIXTH AMENDMENT TO
PURCHASE AND SALE AGREEMENT
THIS SIXTH AMENDMENT TO PURCHASE AND SALE AGREEMENT (this "Amendment") is
made as of the 22nd day of December, 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 further amended by that certain Third Amendment to Purchase and Sale
Agreement dated as of May 6, 2015, as further amended by that certain Fourth
Amendment to Purchase and Sale Agreement dated as of August 25, 2015, and as
further amended by that certain Fifth Amendment to Purchase and Sale Agreement
dated as of August 27, 2015 (as so amended, the "Agreement");
WHEREAS, the Seller has agreed to extend the Closing Date under the
Agreement in accordance with the terms herein;
WHEREAS, Seller and Purchaser desire to otherwise 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) five (5) business days
following Buyer's receipt of the DPH Approval (as defined below), or
(b) February 29, 2016 (the "Closing Date"). It is agreed that time is
of the essence of all provisions of this Agreement. The date and time
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of delivery of the Deed is sometimes referred to herein as the
"Closing" or the "Closing Date."
As used herein, a "DPH Approval" shall mean, collectively, written
approvals by the Department of Health for the Commonwealth of
Massachusetts, as required by the laws of the Commonwealth of
Massachusetts, of the Purchaser's consulting agreement, development
agreement and lease agreement, each relating to the Purchaser's
development of the Premises for the cultivation of medical marijuana.
Notwithstanding the foregoing, the Buyer acknowledges and agrees that
the failure by the Buyer to timely receive DPH Approval shall not
entitle the Buyer to a return of the Deposit under the terms of the
Agreement.
3. Extension Fee. As consideration for the extension of the Closing Date,
the Buyer shall, within two (2) business days from the date hereof,
time being of the essence, deliver to Seller a fee, which shall be
considered earned upon receipt and non-refundable to Buyer, of One
Hundred Thousand Dollars ($100,000) (the "Extension Payment");
provided, however, if the Buyer performs all of its obligations under
Section 16(B) of the Agreement and the Closing occurs, then the Seller
shall treat the Extension Payment as an increase to the Purchase Price
paid by the Buyer which shall then be $4,100,000.00. Wiring
instructions for the Seller are attached hereto as Schedule A.
4. Release of the Deposit to Seller. The parties herein acknowledge that
the Escrow Agent is currently holding a Deposit equal to Three Hundred
Thousand Dollars ($300,000) (the "Existing Deposit"). The Buyer hereby
agrees to promptly notify the Escrow Agent that the Existing Deposit
shall be released to the Seller pursuant to the wiring instructions
attached hereto as Schedule A. If required by the Escrow Agent, the
Buyer and Seller agree to provide the Escrow Agent with their
respective consent to the release of the Existing Deposit to the
Seller in accordance with this Paragraph 4. If the Closing occurs, the
Existing Deposit funds shall be considered applicable to the Purchase
Price to be paid to the Seller. Notwithstanding the foregoing, if the
Seller fails to perform its obligations under the Agreement, upon
written demand from the Buyer, Seller shall return the Existing
Deposit funds to the Escrow Agent, which Escrow Agent shall hold the
Existing Deposit funds in accordance with Section 15 of the Agreement.
5. 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.
6. 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.
7. 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.
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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
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Name: Kathleen H. Wade
Title: Vice President
PURCHASER:
AMERICANN, INC., a Delaware corporation
By: /s/ Timothy R. Keogh
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Name: Timothy R. Keogh
Title: CEO, Presiden
