RFF Family Partnership, LP v. Link Development, LLC et al

Filing 1

COMPLAINT Verified Complaint against Robert V Wallace, Jeffrey B. Karll, Link Development, LLC, Russell and Associates LLC Filing fee: $ 350, receipt number 0101-3432030 (Fee Status: Filing Fee paid), filed by RFF Family Partnership, LP. (Attachments: # 1 Civil Cover Sheet, # 2 Civil Cover Sheet Category, # 3 Exhibit A - Certificate of Organization, # 4 Exhibit B - Foreclosure Deed, # 5 Exhibit C - Desert Pine Mortgage, # 6 Exhibit D- Certificate of Organization, # 7 Exhibit E - Managers Cert, Cert of Manager, # 8 Exhibit F - Desert Palm Mortgage, # 9 Exhibit G - BD Mortgage, # 10 Exhibit H - Amendment of Mortgage, # 11 Exhibit I - Certificate of Organization, # 12 Exhibit J - Superior Court Complaint, # 13 Exhibit K - Link Land Court Complaint, # 14 Exhibit L - Note, # 15 Exhibit M - Loan Agreement and mortgage, # 16 Exhibit N - Guaranty, # 17 Exhibit O - subordination agreements, # 18 Exhibit P - Assignment, # 19 Exhibit Q - Settlement Agreement, # 20 Exhibit R - Russell Land Court Complaint, # 21 Exhibit S - Land Court Decision, # 22 Exhibit T - Memorandum of Sale, # 23 Exhibit U - redacted P&S)(Briansky, Richard)

EXHIBIT

I]

PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (.ggreen¡g!!l') is made as of the
l, by and b.erween REF FAMILy PARTNE. RSHIþ LIMITED
PARTNERSHIP, with an offìie at P.o. Box 6090, Beverly Hills, califomia 902i2 as seller
.q'SgIer"), and
or. its nominee, with a¡ office ar
day of January,20l

æ

læ

as purchaser

IIIIE

1"gg¡g¡gfl

BACKGROUND

A. This A$eement is made with ¡eference to the following real and personal
ploperty (collectively, the "EfSÞgE'):
O)

4,ll that ce.rlain real property tocated in the City of Saugus, County of
Essex, Coininón\¡r'ealth of Massachusefls, and commonly known and numb".ã¿ ,, :SZ_Sjg
Broadwa¡', as mor.e p4rtiçularly desciibed on Dxhibit A hereto, together with all easements,
rights and privileges appurtenant thereto (rhe ..Lápü'[

(2) The brülding located on the Land (the . guilglqC"), together with aü
imp;wements appurtenant the-reto (the Buildings and such improverne.tts bei-ng herejnafter
collectively refened to as the "!¡qproveme¡¡þ," and the Land-¿nd the lmpro'e-ments being
hereinaf{er collectively referred to as the ,,Reãt prooertv'.);
(3)

Ail fixtures, equipment. fmiture, fumishings, appliances, supplies and
o-ther.personal property of every nature and description attached oiperiaining to, orììherwìse
used in connection wirh, the Real Properry, owned by seller and loáated wìtùin ihe neal property
(the "Pcrgo¡aitv') exoluding oiily thôse {ìxtures, equipment, fumiture, fumishings, applianc'es,'
supp.lies and other personal property being ret4ingd by the seller as set forti, on elitiþiì n;
a"¿
(4)
_. ,.dll. intitngible ptoperty used or usefi.rl in co¡urection with the foregoing,
-.
includi¡rg, wítþout limitation, any gchitecturâI, inechanicar, electricar and stmctu¡alplais,
studieg drawings- specifications, surveys, renderìngs and other teohnical descriptiqns that rerate
to the Real Property to the extent Sellei may legally transfer the sânre and same are available,
and all otlie¡ conlraol rights, guarantees. licenses, permits and warråüìties
B.
_
. Seller is prepared to sell, transfer and ionvey the property to purchàsei, and
Purchas-er is prepared to purchase
purchasé

and accept the same from Seiler, á11 for the
hereinafter defined) and on the other tei.rns and conditions hereinafter set forth.

In consideration oror"

,nuffiffiffis

to be legally bound hereby, the parties hereto agree:

1.

price

las

herein contained. and inten<ring

sale a¡d Purchase- setler hereþ agrees to sell, trarrsfer and conræy the property
to Purchaser, and Purchàjèr hp¡eby agrees to púrcñase and acjept the property from Seller, in

gach case fo¡ the Purchase Price and on and subject to the other terms and conditions set forth in
this Agreement.

2._

Purchase Price. The purchase price for the Property (the ,.Furch¿se price,') is

Dolla¡s, which,
subject 10 the terms and conditions hereinafter set fdrth. shall be paid by purchaser to Seller as

follows:

2,1

Deposit. Concurent lvith the execution and delivery of this Agreement b1i
Pruchaser, Purchaser shall deliver to Broke¡ ('Ëgqqyéggg!") by rvÌre tansfer of immediately
available Federal Funds, a deposit in the amount ofOne Hund¡ed Thousand and 00/100 Dollars
($100,000.00) as earnest money on the signing ofthis Agreement (togethe¡ witl jnterest eamed
thereon. the "Deposif') to be held in escrow and delivered ifl accolda¡ce with this Agreement, it
bèing understood and agreed that Deposit is non-refundable to pwchaser except in the event that
the closing fails to occur solely due to a default hereunder by selìer and except as fufher hereon
p¡o. vided.

2.2

Payment at Closins. At the consummâtioÌ of the transaction
coñtemplated her€by (the "çlgs¡eg), Purchaser shall deliver to Selle¡ or Seller's designee an
amounl equal to the Purohase Price less the Deposit, subject to adjustJhents and appofionments
as set forth hereín. The delivery of documents and the disbursernent of funds shall be effectuated
af the Closirig.

3.

Representations and W¿¡rranties ofseller. Subject to all matters disclosed in any
document delìvered to Purchaser by Seller or on any exhibit attached hereto, a¡ld subject to any
infòrmation discovered by Purchaser or other information disclosed to Purchaser by Seller or ány
dther person prior to the Closirig (all such matters being refened to herein as ''[¡ggE!!q
iv,I?1leÌs"), Seller repreSents ând wanants to Purchaser as follows;

3.1 Authpritv, Seller is a limited partnership duly organized arid validly
existiirg rurder the laws ofthe State of Califomia is drrly authorized to tiansact business in the
Common*ealth of Massachusetts and has all requisite power and authcifity to enter into this
Agree$ent a¡d perform its obligations hereunder, The execution and delir.ery ofthis Agreement
have been dúly authorized.
3.2 Ño Conflict. To the best of Seller's.actuai knpwledge, the execution and
delivery ofihis Agreement and the consùmmation ofthe transactions contemplated hereunder on
the part ofSeller do not and will not confliqt r,lith or result in the breach of any material temìs or
provisions of, or constilute a default unde¡. or resuh i¡ the creation or imposition of any lien,
cla¡ge, or encumbrarice upon any ofthe Property or Assels ofthe Seller by reason of tlre terms of
any contract. mortgage, lien, lease, agreement, indenture, instrument orjudgment to which Seller
is a party or which is or purports to be bi¡ding upon Seller or which othenvise affecrs Seller,
r¡ùich will not be discharged, assqlned or released at Closing.
3.3

No Further Authorizalion. To the best ofseìler's actuaÌ knowledge. no
action by an; federal, state or municipal or other governrnental depafment, commission, board,

bu¡eau or instrumentality is necessary to make this Agreement a valid instrument binding upon
Seller in accordance with its terms.

3.4 FIRPTA. Seller is not a "foreign person"
ofthe Intemal Revenue Code.

as defined

in Section 1445(Ð(3)

3.5

Violations- Claims or Notices. To the best ofscller's knowledge, Seller
has not received notice of any (a) violation of any fe<leral, state or local law, regulation or
ordinance, which violation has not been rectified, ft) pending or threatened claims or lawsuits
âgainst the Seller relative to the Propert-y or that may aflect the p¡operty or arising out ofthe
ownership, management or operation offhe Property, (c) i4Titten notice of any claim arising florn
the alleged presence on the Property of any hazardous substances, (d) communication, either in
writing Or verbâlly from any govemment agency or employee, advising Seller ofpotential or
pending enfoicement action on account of environmental conditions at the pioperty, (e)
agreement by which any pafy othêr tha¡ the Purchaser may acquire any.interest in the property.
Notwithstandirg the fòregoing seller and Buyer acknowledge the currènt action involving a
claim of p¡iority of title to the P¡eniises as set forth in the Land court civil Acrion No. l0 MISC
425681 (the "Land Court Action").

3.5

LimitationsRega¡dineRepresentationsând Waffanries.

3.5.1 Selier's Knowledee. As used in ùis Agreement, or in â-ny other
agreement, {ocument, certifisate.or instrument delive¡ed by Seller to purchaser, the phrase ..to
the best ofseller's actual knowledge", 'to rhe be$ ofgeller's knowledge" or any similar pkase
shall mean the actual, not coirstructive or imputed, knowtedge of Robert Freedman, without any
obligation on his part to make a.ny independeit investigation of the matters being represented and
rvarranted, or to malie any inquþ ofany othei persons, or to search or examine any files,
recoids, books, correspondence and the like. The Pruchaser hereby agrees that recourse under
this Agreement is limited to Seller and no claim wi.ll be made agaihst Robert Freedman
individual.ly or in his câþàcity as t-he party having Seller's l',noivledge.
3.5.2 .Exception Matters. Seller shall harç no liability whatsoever to purihaser
respect to any Exceptio¡r MêJters. If purchaser obta¡ns knowledge of zìúy Excëption Matters
with
before the closing, Purchaspr ma¡¡ coßu1nmâte t¡e acquisition ofthe property subjecr theretô
Furchaser determines to prcçeed with the purchæe o.f the Property pursuant to Article 8 (thereby
waiving all-rights to seek a¡d recover Damages (as hereinafter defiîed) agaþqr se.lter); provided.
however, ifPurchaser obtains knowledge ofany Exception Manets prior io the Closing, which
Ë¡ceptjon Matters mriterially ard adversely affect the value to puIchaser of the tansactions
contemplated by this Agreement, Purchaser may, (1) terminate the Agreement ahd all deposits
hereunder shall be immediateiy refunded with interest accrued; (2) offset the purchase price bv
the adverse value ofthe Exception Matte.r; (3) commence a legal proceeding against Seller
allegíng that Seller was in breach ofsuch representation or warranty when made or as of f}re
Closing, arid that Purchaser has suffered aètu¿il damageS às a result thereof (a "Proceedine"). If
Purchaser shall have timely commenced a Proceeding, and a court of competent juiisdictión
shall, pursuant to a flnal, non-appealâble order in coimection with such Prôceeding, determine
that (a) Seller was in breach ofa representation or r*.arratty as ofthe date made or as ofClosing,
ft) Purcha5er suffered actual damages (a¡ disiinguished from consequential damages) lthe

if

--t

"D¿¡q4geq:') by reason ofsuch breach, and (c) Purchaser did not hare actual or constructive
knowledge of such breach on or prior to the date the representation or warra¡ty was made, then
Purchaser shall be entitled to receive an amount equal to its Damages. Notwithstanding the
foregoing, in no event shall Pu¡chase¡ be entitled to sue, seek, obtain or be awarded Damages
'f¡om Seller, ur ess and until the aggregâte amourìt of Damages exceeds the sum of FIVE
THOUSAND and 00/i00 DOLLARS ($5,000.00) (the "Base Amount")., whereupon Seller shall
'be liable to Purchaser for all Damages accfuing above the Base Amount, but in no event will
Seller be liable to Purchaser to the extent that the aggregâte Damages to Purchaser exceed the
sum of TWO HUNDRED FiFTY IHOUSAND and 00/i00 DOLLARS (5250,000.00).
Additionally, Seller agrees to indemnifl Buyer for all costs and experses associated with
resôlving the Land Cour{ Action.

3.5.3 Purch¿ìser Notice. Purchaser agrees to inform Seller promptly in writing if
discovers that any representâtion or wan"anty ofSeller is inaccurate in any material respect, or
it
if it believes that Seller has failed to deliver to Purchaser any ilocument or material which it is
obligated to deliver herer¡nder.

3.5,4 No Survival. All

ôf the representations a¡d \À'arra¡ties ofSeller shall
provided for, and none of the represêntations or warranties of Seller
merge into the Deed herein
contained in this Section 3 shall survive the Closing Date or teÍriination of this Ag¡eemeff.

4.

Representaiions and Warranties ofPurchaser. Pqrchaser represents and',r'anahts that:

4.1

íght,

Authoritv, Pwchaser is an individual and/or busin€ss ef,tity with the
por,l'er and authority to enter into this Agreement and to consummate the transaction

full

oontemplated hereby.

.2

4
Nq Çonflici: App¡ovals. The execution and deliveqy of this Agieement
the consummaiion of the t¡ansactions contemplated hereunder on the part of Purchaser does
ãnd
nort and will not violate a¡y aÞplicable law, otdinancç. statute, rule, regulation, order, decree or
j udgment, conflict with or result in the breach of any material terms or provisioirs of, or
constitute a default uhder, or result in the creation or imposition ofany lièn charge, or
encurnbrance upon any ofthe ptopefty or assçts of the Purchaser by reason ofdre terms ofany
contract. mortgage,.lien, lease, agreement, indenture, instrumeni or judgms.nt to which Pu¡chaser
is a party or which is or purports to be binding upor Purchæpr qr whích othenryise affects
furchaser, which will uot be tlischarged, asswned or released at Closing. No action by any
fêderâl, state or nìunicipal or oiher govemmental department, co¡ir¡nission. board, bureau or
instrumentality iò necessary to make this Agreement a valid instrument binding upon PurchaSer
in accordance with its terms.

4.3

Consent. No consent of aqy third party is requirêd in ordei for Purchaser
to enter into this dgreenient and to consuiîmate the transaction conternplaæd by this AgÌeenent
(other than those that have been obtained or will be obtained orr or þríor to the Closing).

4.4

Litlsation, There is no action, suit, arbitration, unsatisfied o¡de¡ or
judgment, government investigation or proceeding pending against Putchaser which, if adversely
detçrmined, could individualiy or ín the aggregate materially interfere wìth the consuirimation of

the transaction contemplated by this Agreement other than the Land Cowt Action. The parties
agree that the Purchaser's oblìgations hereunder shall be contingent upon the resolution and
fiiing ofstipulations of dismissal, with prejudice, by all panies ofthe Land Court Action, and the
Super Cou¡ Action (No. 06-5242), and any other litigation which has not been resolved relative
to the Property. Additionally, Seller agrees !o indermiry, defend and hold harmless Pu¡chaser
from any and all claims relative to these matters and for all costs and expenses associated rvith
the Land Court Action, Superior Court Aclion and any other cur¡ent or pending litigation
associated with the Property. Jfany such litigation has not been resolved prior to closiûg, then
Purchaser may elect to terminate this Agreement and all deposits, with interest, shall be retumed
forthìMith. This provision shall suwive tle transfer of the deed.

4.5

ERISA Matters. Purchaser, or its nomiiee, is noû (i) a plan '"vhich is
subject to Title I of the Emplqyee Retireme.nt Income Secu¡ity Act of 1974, as amended
(*ERISA"). as defined in Section 3(3) ofERISA, nor a plan as defined in Section 4975(eXt) of
the Intemal Revenue Code of i986, as imended (each ofthe foregoíng hereinaffer referred to
coliectively as a "!þi"); (ii) a'¡govemmentdl plan" as defined in Secdon 3(32) of ERISA: or
(iii) a "pa¡ty in inter'est," as defined in Section 3(14) of ERISA, to a Pla& except with respect to
plans, ifany, mainrained by Purchaser, nor do the assets of Purchaser constitute 'þlan assets" of
one or more ofsuch Plâns .¡/ithin the meaning çf Departmêht of Labor Regulations Section
2510.3-101. Purchaser is actirlg on its own behalf anal not oh account ofor for the benefit ofany
Plao. Purchaser has no present intent to transfe¡ the Property to any entity, person or Plan *4rich
will cause a violation of ERISA. Puichaser shâll not assign its interest under this Agreement 10
any en¡ity, person o¡ Plan which w-ill cai¡se a violation ofBRISA,.

4.6

OFAC and Related Comoliance.

4,6.1 Pu¡chaser ís in compliance with ttre requirements of Executive O¡de¡ No.
133224,66Fed. Reg.49079 (Sept. 25,2001) (the "9¡:!þI") and other similar requiremeffis
contained i¡ the rules and regdations ofthe Office ofForeign Assets Control, Departmenr ofthe
Treasury COFACT) and in an}, epabling lçgislation o¡ other Executive Orders or regulations in
respect tlrereof (the Order and such other rules, regulátions, legislation, or o¡ders arecollectively
called thg

('Qg!ers"),

4.6.2

Neithe¡ Purchaser nor any benefrcial owner ofPurchase¡:

(Ð

is listed on the Specially Desipated Nationals and Blocked
PersonS List maintained by OFAC pursuant to the Order and/or on any other list ofterrorists or

te¡rorist organiz¿tions maintained pursuant to any of the rules and regulations ofOFAC or
pursuant to any other applicable Orders (such lists are collectively referred to as the "!þþ");

(iÐ

is a Person who has been determined by competent authority to be
subject to the prohibitions contained in the Orders; or is owùed or controlled by. or acts fo¡ or on
behalfof, any Person on the Lists or any other Person who has been dgtermined by competent
authority to be subject to the prohibitioris contai¡ed in the Orders,

5.

Due Diligence Period-

5.1

The term ''pgq Ðjlgggggdq!", as used herein shall mean the period
commencing on the date hereof and ending at 5:00 p.m. Eastem Standard Time on the sixtieth
(60rh) day th-ereafter.

5.2

Subject to the tenns and conditions hereol during the Due Diligence
Period, Purchaser or its representatives may inspect the Property and conduct sùch tests
(including environmental and engineering tests and studies) and irivestigations thereofas
Ptuchaser may reasonably require. Purchaser (i) shall give Seller at ieast forty eight (48) hours
prior notice ofPurchâser's request to enter rhe Property (which notice may be telephonic), (ii)
shall at all times conduct inspections and tests in compliance with applicable law in a ma¡urer so
as not to cause any material damage, liability, loss, cost or expense to Selier or the Property, (iii)
shall promptly reÈtore the Property substantially to its condition immediately preceding
Purchaser's inspections and tests, (iv) shall keep the Property free and clear ofany mechanic's
liens or materialman's liens aiising from such inspections ånd tests, (v) shall at all times alloû a
representative ofSeller îo accompãny Purchaser or Purchaser's representative(s) whur at the
Property provided that Seller shall reasonably cooperate with Pu¡chaser to make a ¡epresentdtive
availqblg (vi) In the event ttre Closing does not occur, shall provide Seller, aJ no cost or expense
to Seller, with ca.pies of al1 engineering and environmental reports. iab artalyses, appraisaiJand
õther reports or studies commissioned and received by Purcbaser in connection with Pu¡chaser'S
ínspections and tests (collectively, the "I4gp$tþdBgports"), and (vii) until the Closing occurs
hereunder, shall keep the lnspection Reports and the contents thereof and all information a¡d
documents provided by Seller to Pùc¡aser puïiuaùt to the last sentence of this Section 5.2
confidential, except to the extent such information is a matter ofpublic infoimation other than as
a tesult ofdisclosure by Purchaser, or to the extent that such dis'cJosure is eompelled by law or
by regulalòry õrjudicial process, provided, houever, tha! Purchaser may disclose suoh
informâtion to ìts agents, advisors, consultants, members, partners¡ invesÏors, affiliates, lenders,
advisors, attomeys and accountants (gollectively, "Tianl4çgSn Partigg"), so long as such
Transaction Parties are informed by Purchaserofthe confidential naru¡e ofsuch information and
are directed by Purchaser to freat suoh information confidentially and to use such information
only ih con¡ectic;n wíth the transaction contemplated by tgs Agregmenl (it being agreed that
Purqhase¡'s obìigâtio4$ under this Section 5.2 shall sun'ive the termination ofthis Agreement but
shall nol su¡ùive thç Clssing).

5.3

Purchaser shall not, and shall not pennit any of its employees, consultants,
engineers, conlr¿Elors and agents to conduct any soil lests or sampling or any boririg, digging.
drilling or other physical intrusíon of the Property (collectivety, "Te$i!C"), except at reasona¡le
times and with the prior written consent of Seller, which consent shall not be unreasonably
withheld or delayed with respect to limited, non-invasive Testing ifPurchaser gives Seller at
leasr forty eight (48) höurs prior notice of any such Testing (which notice may be telephonic). In
connection with such Testing, Purchaser o¡ each ofPurchaser's contraotors, consuìtants aod other
Prrrchaser Parties (aS hereinafter defined) performing any such Testing.shall fumish to Seller,
prior to the cÒmmencement of such Testing, in form reasonably satisfactory to Seller. a
cerüficate or certificates of insu¡ance, or other satisfactory evidence indicãting that Puchaser
a¡d each ofsuch consuhants and contractors have each obtained Commercial General Liabililv
Insurance whÏch includes contractu'ãl liábility and produots anal completed operaiions lvith limits
not less than $1,000,000.00 pe¡ ocÇurrence ¿nd $i,000,000.00 in the aggregate for bodily injury,
including death, and property da4qge combined or such lessor li.irìits as are customary for

-6-

similar testing at similar þroperties. Purchaser shall, in the event the Closing does not occur for
any reason at its sole cost and expense, promptly cause the Propefty to be restored substaitially
fo its condition existing prior to such Testing. The consultant's aforesaid insu¡ance cove¡age
shall include acts and omissions ofthe insured's contactÒrs. subcofflactors, agents and
employees. AII such Commercial General Liability insurance shall name Seller as an additional
insureä. In addition, all such certificate(s) or other evidence shall indicate that the coverage
described therein is in force as of the date ofthe commencement ofthe applicable Testing and
that the coverage evidenced thereby shall not be modified or ca¡celled without at least tetr (10)
da).s' prior wïitten notice to Seller. All requirements pursuant to This Section 5.3 with respecl to
Testing shall be in addition to all other requitemenfs set foÍh in this Section 5'

5-4

Unless due to the negligence or willful acts ofally Indemnified Parties
(hereinafter defined), Purchaser hereþ (i) agrees to protect defend, indemnify and hold
Àarmless Seller, its employees, agents, managers, membei's, emplo¡ees, successors and assigns
(collectively, the "Indemnilieil Prrtiesl) from and agaiist any and all liabilities, actions, suits,

mechanics' liens, judgments, losôes, costs, damages, expenses (including, without limìntion,
reasonable attomeys' fees and expenses), ctaims a¡d d.entands ofany n4ture whatsoçve¡ assefted
againsl, or suffered or incurred by any of the Indemnifiçd Parties' a¡ising out ofor in any way
relaling to the acts or omisSions ofany Purchaser Party (as hereinafter defined) in conducting
such inspections, Testing or ûther activìties at the Property by or on behalf of any Purchasêr
Party; and (ii) to pay to Seller all costs and expenses, including, without limitation, reasoirable
gttomeys' feés an<i disbUrseme s, incuned by Seller in enforcing the obligations of Purchaser
.uir.der the provisioris ófthis senfence. The Þr'o\'isioris 'ôf fhis Seçtion 5.4 shall survive the Closing
or any earlier tenni ation of this Agreement, The ferm "pt$4a*¿84[", as used herein,
means Ptllclìaser or âny agent, employee, consultani, contractor or subcontractor ofPurchaser or
any other party claiming under or through any ofthe foregoing panies oranyperson o¡ party
rùich, at th.e directio¡ ofPurchaser or any priniípal æ affiliate ofPurchaser, enters upon the
Premises to inspect same or perfornÌ ariy Testing.

5.5 lt

based on PurchasÊr's invesligation ofthe PropeÍy duiing the Due
Períod, Purchaser is not satisfied, in its sole discretion, with the condition ofthe
Þiligence
Proferty and/or if Purclaser is unable to procuie fmahcing necessary to acquire the Property'
then Purchaser may c.anqel this Agfeement by givlng written notice to Seller not later than 5:00
p.m. EST on tþe lasi day Of fhe Drie Diligenie Period. If this Agreement is cancelled by
Þu¡çhaser pursuant to the foregoing Þrovisions öf1his Section 5.5, then (A) Purchaser shall be
entitled to receii,e the Deþosii and al1 inærest é¿rmed thereolr, alld @) and neither party hereto
shall have any further rights, liabilìties or obligations under this Agteement except those that are
.e,xpressly provided in this Agreement to the survive the termination hereof.

5.6

Time shall be of the essence ofall dates and time periods set forth in this

Section 5.

6.

Cgnditions Precedgnt to Þwchaser's Oblisations: ''As Is" Pûchase. All of
Purchaser's obligations hereunder are expressly conditioned oh the satisfáction at or before the
time of Closing hereuider. or a1 or befo¡e such earlier time as may be expressly staied herein, of
each ofthe followíig cóndilions (ary one or more ofwhiçh may be waived in whole or in part
by Purchæer. at Purchaser's option):

-7

-

6.1

Accu¡acy ofRep¡esentalions- AII of the representations and u'a¡ranties of
Seller contained in lhis Agreement shall hâve been true and cor¡ect in all material respects w-hen
made, and, subject to the provisions set forth in Article 3 he¡eol shall be true and co¡rect in all
material fespects on the date ofClosing with the same effèct as ifmade on and as ofsuch date.

6.2

Perfomrance. Seller shall have performed, observed and complied u,ith atl
covenants, ag¡eements a¡d conditions requi¡€d by this Agreement to be performed,
material
observed and complied with on its part prior to or as ofClosing hereunder,

6.3

Documents and Deliveries. All instruments and documents requi¡ed on
part to effectuate this Agreement and the lransactions contemplated hereby shall be
Seller's
delive¡ed to Pu¡chase¡ and shall be in form and substa¡ce consistent with the requirements

herein.
6

.4

Pu¡chase "As Js".

6.4.I EXCEPT AS EXPRESSLY SET FORTH IN THIS AG.REEMENT, IT IS
I]NDERSTOOD AND AGREED THAT SELLER]S NOT MAKING AND HAS NOT AT
ANY TIMË MADE ANY WARR..qNTIES OR REPRESENTATIONS OF ANY KIND OR
C.ITARACTER, ÐXPRESS OR IMPLIED, WITTI RESPECT TO THE PROPERTY.
INCLUDING, BUT NOT LIM]TED TO, ANY WARR¡,NTIES OR R.EPRESENTAT,ION$ AS
TO HABITABILITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE.
PURCHASER ÀCKNOWLEDGES AND AGREES THAT UPON CLOSING
pURcHASER AND pURCHASER sHALL

Spllen snRr-L sELL AND coNVEy to

A,CCEPT THE PROPERTY ''AS IS. WHERE IS. WN
". PURCHASER HAS
NOT RELIED AND IVILL NOT RELY ON, AND SELLER ]S NOT LI,ABLE FOR OR
BOUND BY, ANYEP.RESS OR IMPLIED V/ARRANTIES, GUARANIIES,
STATEMENTS, REPRESENTATIONS OR INFORMATIÓN PERTA I\IING TO THE
PROPERTY OR RELATING THERETO (INCLUDING SPECIF]CALLY, WITHOUT
LIMITATION, ANY PROSPECTUS DISTRIBUTED WITH RESP.ECT TO THE PROPERTY).
MADE ORFURNISHED BY SELLER, TI{E MANAGERS OF THE PROPERTY, OR AIIY
R&q.L ESTATE BROKER OR AGENT REPRESENTING OR PTIRPORTING TO
REPRESENT SELLER, TO WHOMEVER MADE OR GIVEN, D]RECTLY OR
iND]RECTLY, OR.A,LLY OR IN WRTTING, LTNLESS SPECIFICALI.Y SET FORTII IN THIS
,A,GREEMENT. PURCHASER ALSO ACKNOWLEDGES THAT THE PURCHASE PRICE
REFLECTS AND TAKES INTO ACCOUNT TI{AT THE PROPERTY IS BEING SOLD ('AS.
IS.-

PURCHASER ACKNOWLEDGES AND REPRESENTS TO SELLER THAT
PURCITASER HAS CONDUCTED, OR WILL CONDUCT PRIOR TO CLOSING, SUCH
INVESTIGATIONS OT THE PROPERTY, INCLUDING BUTNOT LIMITED TO, TI{E
P}rySICAL AND EWIRONMENTAL CONDITIONS THEREOF, AS PURCIIASER DEEMS
NECESSARY OR DESIRABLE TO SATISFY ITSEL.F AS TO THE CO}IDITION OF THE
PROPERTY AND THE EXISTENCE OR NONEXISTENCE OR CURATIVE ACTION TO BE
TAKEN WITH RESPECT TO é.NY FIAZARDOUS OR TOXIC SUBSTANCES ON OR

-8-

DISCHARGED FROM THE PROPERTYI AND WILL RELY SOLELY UPON SAME AND
NOT UPON ANY INFORMATION PROVIDED BY OR ON BEHALF OF SELLER OR ITS
AGENTS OR EMPLOYEES V/ITH RESPECT THERETO, OTHER TTIAN SUCH
REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLERAS ARE
EXPRESSLY SET FORTH IN THIS AGREEMENT. UPON CLOSING, PURCHASER
SHALL ASSUME THE RISK THAT ADVERSE MATTERS, INCLUDING BUT NOT
LIMITED TO, CONSTRUCTION DEFECTS AND ADVERSE PHYSICAL AND
ENVIRONMËNTAL CONDITIONS, MAY NOT IIAVE BEEN REVEALED BY
PURCHASER'S INVESTIGATiONS, AND PURCHASER, UPON CLOSING, SHALL BE
DEEMED TO HAVE WAIVED, RELINQUISHED AND RELEASED SELLER (AND
SELLER'S OFF]CERS, DIRECTORS, SHAREHOLDERS, EMPLOYEËS AND AGENTS)
FROM AND AGAINST ANY AND ALL CLAIM$, DEMANDS, CAUSES OF ACTION
(INCLUDING CAUSES OF ACTION IN TORT), LOSSES, DAMACES, L]ABILITIES,
COSTS AND EXPENSES (INCLUDING REASONABLE ATTORNEYS' FEES) OT ANY
AND EVERY KINÎD OR CHARACTE& KNOWN OR IJ]'{KNOWN, WHICH PURCHASER
MIGHT HAVE ASSERTED OR ALTEGED AGAINST SELLER (AND SEI-LERiS
OFFICERS, DiRECTORS, SFIAREHOLDERS, EMPLOYEES AND AGENTS) AT ANY
TIME BY REASON OF OR ARISING OUT OF ANY LATENT OR PATENT
CONSTRUCTION DEFECTS OR PHYSICAL COÀDITIONS, VIOLATIONS OF ANY
APPLICABLE LAWS AND ANY A}ID ALL OTHER ACTS, OMISSIONS, EVENTS,
CIRqUMSTANCES OR MATTERS REGÀRDING THE PROPERTY.
THE PROV]SIONS OF THIS SECTION SHALL SURVIVE CLOSING OR ANY

TERMINATION OF THIS AGRËEMENT.

6.4.2 Purchaser heleby agrees that, ifat any time after the Closing. any tltird
party or any governmental agency seeks to hold PtuchaSer respoirsible for the presence of, or aly
Ioss, cgst or damage associated wiih, Hazardous Materials (as hereinaffer defined) in, on, above
o¡ beneath the Real Property or emanatirig therefrom, then tÏe Purchaser waives any rights it
may have against Sêller in coirnection therewith including, without limitation, under CERCLA
(defined bêlow), and Purqhaser agrees that it shall not (i) implead the Selleq (ii) bring a
contribution action or simila¡ action against the Seller or (iii) attempt in any way to hold the
leller responsible witþ rçspect to any such mâtter. The ptovisions ofthis Section 6.4.2 shali
suryive the Closing. As used hetein, "þZeEIgqM¿ jlgIieÞ" shall mea¡ anil ìnclude, but shall
not be limited to a¡y petroleum pioduct ând â11hazá¡dous or toxic substances, wastes Or
subst¿mces, ariy substarices which because oftheif quantitiìted concentration, chemical, or active,
flammable, exþlosive, infectious or othet characteristics, constitute or may reasoniably be
expected to constitute or conlribute to a danger or hazard to public health, safety or welfare ol to
the enviroffient, including, without l.imitation, any hazardous or toxic waste or substances which
.are included under or regulated (whether now existing or hereafter èíacted or plomulgated, as
they may be arrended fiom time to time) including, witbout limitation, the Comprehensive
Environmental Responsè, Compensation and Liability Act of 1980,42 U.S.C. Section 9601 et
gçS. ("çEBçL{"), the Federal Resource Conservation and Recovery 4c1,42 U.S.C, Section
6901 et seq., simiia¡ state laws.and regulations adopted thereunder.

6.5

Title. Within thirty (30) days after the full execution and delivery of this
Agreemenl, Purchasershall obtain an updated title repQrt or cornmitment with respect to the

-9-

Propeny lrom any title insurance company authorized to do business in the Conrmonuealth

of

Mâssâchusetts. Pu¡chaser shall have a period often (10) days after receipt ofthe updated tirle
report within which to examine said title report. If Purchaser objects to any matteß disclosed in
such updated title report not shown on the title report attached hereto, Purchase¡ shall. within
said period. notiff Seller in writing specifying the objectionable matters. Seller shall cure ary
such matters withi¡ sixty (60) days from receipt ofsuch notice (the "I!!þllurgBeIigg"). in
which event the Closing, if it otherwise is scheduled to occur earlier, shall be extended until the
èarlier of six.ty (60) days after receípt of such notice or three (3) business days after such matter
is cured. If at the expiration ofthe Title Cu¡e Period, Seller, desþite its best effods in good faith,
has been unable to cure any such defect, then Purchaser may elect to extend the Title Cu¡e Period
for an additional rhirty (30) days for Seller to cu¡e such defects o¡ Purchaser may elect to
terminate this Agreement with Notice to tüe Seller ín which event the Deposit, and all interest
eamed ihercon. shall be immediately returned to the Pu¡chaser.

6:6 Land Swao. Seller shall consummate the closj¡g a swap of land described
in a Settlement Agreernent dated October 30, 2007 consisting of a swap of a certairi portion of
the Premises in returin for a certain portion of land bèlonging to the abÈt[er to the noÍh of the
Prçmises adding ûontage along Rgute I to the Premises. Seller shall provide Purchaser during
the Due Diligence Pe¡iod with drafts ofany and all documents necessàry to effectuate the land
SWap, v'hich documenis may nol substantiaily deviate from the final land swap documents.
6.7

Failùe of C¡nditions. ln the event Seller shall not be able to convey fitle
to the Property on the Closing Date in accordance $,ith the prclvisions ofthis Agreement. then
Puchase¡ shall have lhe option, exercìsable by rwitten nofice to Seller at or prior to Closing, of
(a) accepting at Closing such title as Seller is able to convey and./or waiving ary unsatisfied
condition precedenf, wilh no deductión from or adjustment of the Purchase Price, or (b) declining
to proceed to Closing. .In the lalter event, except as expressly set forth herein, all obligations,
liabilities ând rights of the parties under this Agreement shall te¡mÌnate, and the Deposit shall be
retumed

tO Purchaser.

7.

C.losing;Deliveries.

.1

Time óf Closine. Tbe Ctqsing shall take place on or before the dare which
7
is ninety (90) days àfter the expiration of the Due Diligence Period *ith TIME BEING OF THE
ESSENCE with respect to Pur.chaser's oþligâtion to close cin such date, or such other date to

which the Closing may be adjoumed by Seller in accordance with the terms he¡eof (such datç on
which the Closing occurs being refeneil to herein as the "Çþ!isÉÐel!g")' The Closing shall
lakç placq at the ofhce of Seller's attomey, however, it being understood that neithe¡ Seller nor
Pu¡chaser nor their respectivè coûnsel need be physically present at Closing so long as all
documents that are iequired to be delivered at Closing are fully executed and available on the
elosing Date, and a¡r authorized signalory of each party is available either in person or by
telephone and fac¡imile at Closing.
7 .2
Seller Deliveries. At Closing, Seller shall deliver to Púchaser the
following. and it shall be a condition to Purchaser's obligatioh to close that Seiler shall lave

delivered the same to Purchaser:

l0

7.2.1 A quitclaim deed conveying lee simple title to the Real property, fiom
seller. duly executed and acknowledged by Seller, subject to such title matters as äre àppro'ed
by Purchaser pursuant to Section 6.5.
7.2-2 A bill of sale fo¡ rhe Personalty ftom

Seller.

7.2.3 AII books, records and fites maintained by Seiler's property manager
relating to the constnìction, leasing, operation and maintenance of the propertl-.

-

7.2.4 Such affidavits, letters of indem¡ity or certificares of tirle as the title
insurer shall require in order to issue an owner's policy oftitle irsurance free ofany exceptions
lor unfiled mechanics' oI materialmen's liens for work performed by Seller prior tó Closing. or
for rights ofparties in possession.
7,2.5 A Non-Foreign Affidavit as rêquired by tþe Foreign
("FIRPT{"), as arnended, duly executed by Seller.

Investors in Real

Property Tax Act

7.2.6 A counterpart original of the glosíng statemeff duly executed by Seller
and a certificate Good standing of the business entiti, frbm thg proper govemment authority.
7 2.7 All other instruments and documents re¿ìsonably required to effectuate this
Agreement and the lraìrsactions contemplated thereby.
7 .3
Purchaser Deliveries- At CJosing. Purchaser shall dèliver to Seiler the
following, and it shall be a conditìon to seller's obligarion ro close that purchaser shall have
delivered the same to Seller:

7.3.1 In accordance rvith Seller's iústructions, a rvíre transfer in the amount
required under Section 2.2 hereof(subject to the adjustmens provided for in this Agreement),
harìsfened to the order or account of Seller or Seller's designee.
7.3.2 A countèryart

originâl of the closing statement duly executed by

Purchaser.

7.3.3 All other instruments and docuÌnents reasonâbly required to effectì.Ete this
Agreement and the transactions contemplated thereby.

8.

Aonortionments:Taxes:Exoenses.

Ll

Anportionments.

.l

8.1
Ta,xes and OÞeraliBs Exoenses. All real estate taxes, charges and
assessments affecting the Property ("Taxg!), all charges for water; eleclricity, s¿rver rental, gas,
telephone and all other utilities ('loperatinq ExÞe¡ses), shall be prôrated on a per diem basis as
of midnight of the date immediately preceding the date of Closing. If any Taxes have not been
finally assessed as ofthe date ofÇlosing for the cur¡ent fisca] year of the taxing authority, then
the sa¡ne shall be a.djusted at Closing based upon the most recenlly issued bills therefor, and shall
be re-adjusted when and if fin¿l bills are issued. If any opel4ting Expenses cannol conclusively

l1

be determined as ofthe date ofCiosing, then the same shall be adjusted at Closing based upon
the most recently issued bills tlrus far and shall be re-adjusted within one hundred twenty (120)
days after the end ofthe calendar yea¡ in which the Closìng occurs after final Operaling
Expenses are determined. Pu¡chaser hereby agrees to assume all non-delinquent assessments
affecting the Property, vr'hether special or general.

If Seller is presentþ prosecuting tax abalement proceedings, after the Closing,
Seller shall continue to be authorized to prosecute such proceedings, and shall be entitled to any
abatement:proceeds obtained in connection therewith. Purchaser agrees afier the Closing, to the
çxtent reasonably necessary for Selle¡ to continue to prosecute such proceedings, to reasonably
cooperate with Seller, at no cost to Purchaser, in such prosecution, alld also âg¡ees to promptly
endorse or pay over to Seller any abatemenl amounts for such years received by Purchaser.
8.1

,2

Additior¡al Prorations. The following ddditional items shall be prorated

as

of the date of C.losing:

(a)

Water charges and sewer renfs on the basis of the fìscal yeæ fo¡ u'hich
assessed, subject to the plovisìeus hereof; and

(b)

Fuel, if any, as estimated by Seller's firel supplier. valued ât the price
the¡efor then cha.rged by such supplier including any applicable taxes.

8.2 Exoenses. Each party will pay all its onn expenses incurred in connection
with this Agreement and the transactions contemplated hereby, including, without limitation, all
costs a¡d expenses stated herein to be bome by a partyr and all cif their respective accounting,
legal and appraisal fees. Seller, in addition to its other expenses, shall pay at Closing all deed or
other transfer taxes and döcumentary stamps payable i.n connection with the purchase and sale of
.the Real Property, and one-halfofall escrow fees and closing costs cha.rged by the iitle comþany,
if apþlicable. Purchaser, in addition to its other expenses, shall pay at Closing (a) all due
diligence costs and expenses, (b) Þremiums for any coverage undei Purchaser's or Purchase¡'s
lender?s tifJe inswance policy, (c) suwey cost, and (d) one-half ofall escrow a¡d closing costs
charged by the fitle company, ifapplicable.
9.

IntentionallvOmitted.

10.

Reniedìes.

10.1

Purchêser Def¿iult. In the e\.ent Purchaser breaches or faìls to complete
ofthe Property or to perform its obligations under this Agreement, then Seller shall
be entitled to receive the Deposit. plus a1l interest eamed and accrued thereon, as liquidâted
damages (and not as a penalty). Thereupon this Agrgement shaìl terminate zrnd the parties shall
be relíeved ofall fui1her obligations and liabilities hereunder. except as expressly set fofh
herein. Purchaser and Seller acknowledge that the damages to Seller resulting from Purchaser's
breach would be diffrcult, ifnot impossible, to ascertain with any accì.racy! and that the
liquidated damage aftount set forth in this Section represeffs both parties' best effofs to
app¡ôximate such poþntial damages. Retention of the Deposit shall be Seller's sole reriredy at
law or in equiry.
the pur.chAse

l2

10.2 Seller Default. In the event Seller breaches or fails, without legal excuse,
to complete the sale ofthe Property or to perform its obligations under this Agreeinent,
Purchaser may, as its sole remedy therefor, subject to the next pæagraph of this Section I 1.2.
either (a) enforce specific performance of this A$eement against Sêller, ór (b) terminate rhis
Agreement and receive a return ofthé Deposit, plus ínterest earned and acc¡ued thereon.
Notwithstanding anything to the contrary contained in this Agreement, Purchaser agrees
its recourse agaÍnst Seller under this Agreement or under any other agreement, documenl,
that
certìficate or instrument delivered by Seller to Purchase¡ or under any law applicable to the
Property or this transaction, shall be strictly limited to Sellerts interest in the Property (or upon
consummation ofthe transactj.on contemplated hereunder, to the net proceeds ofthe sale thereof
actually received by Seller), and that in no event shall Purchaser seek or obtain any recovery or
judgmeni against any of Seller's other assets (ifany) or against any of Seller's partners (or their
constituent partners) or any direðtor, manager, member, officer. employee or shareholder ofany
of the foregóing.

l.

1
Possession. Possession
surrendered to Purchaser at Closing.

1,2.

Notices.

ofthe Prgperty, free of all tenants and occupants, shall be

All

notices and other communications provided for herein shall be in
(or such ofher addrèss as a party may
hereafter designate for itself by nôtice to the other parties as required hereby) ofthe party for
whom such notice or communication is intended:

writing and shall be

Iffo

Seller:

sent to the addtess set forth below

Robert Freedman
RFF Family Partnership
P.Q. Box 6090

Beverly Hills, CA 90212
Fax:

With a copies

to:

Bums

& Levinson LLP

125 Sunìmer Street

Boston, MA 021l0
Attention: Michael D. MaçClary, Esq.
Fax: [phone]

Ifto Fu¡chaser:

GFfi'
Fax:

With a copy

to:

Michael B. Cabral, Esq.
Law Offices of Michaei B. Cabral, LLC
6 Beacon Street

Suite

lli5

Bosron, MA 02108

-13-

Tel:[phone]
Fax: [phone]A
suoh notice or côrirînunication shall be sufficient if sent by registered or certified mail.
retum receipt reqùested, postage prepaid; by hand detivery; by ovemight courier sewice; or by
telecopy, rvith an origina! by regular mail. Any such nolice or communication shall be effective
when delivered o¡ when delivery is refused- Attomeys are hereby authorized to send and receive
nodces on behalfoftheil respecfive clíent and to agree to extensions of time periods.

Any

13,

Brokers. Purchaser a¡Ìd Seller each represents to the other that it has not dealt
with any broker or agent in corurection rv-ith this transaction other than Caroline Ligotti of Otis &
Aheam, Inc.who will be paìd $ 120,000 by Seller pursuant to a s€parate agreement. Each party
hereby ìndemnifies and hoids ha¡mless the other parry from all loss, cost and expense (including
reasonable attorneys' fees) æising out Òf a breâch ôf its representation o¡ undertaking set forth in
this Section 13. The provisions of this Section 13 shall sun ive Closing or the termination of this
Agreqmeut.

14.

Esffow Agent. Escrow Agent shall hold the Deposit in accorda¡ce with the Teüns
and provisions ofthis Agreement, subject to the follow{ng:

14..1 Oblieations. Esero\ry Agent undertakes to perform only such duties as are
expressly set forth in this Agreement and no implied duties or obligations shall be read into this
.Agreement against Escrow Agent.

14-2 Reliance. Escrow Ageni may act in reliance upon any writing or
instrument or signature \Ã'hich it in good faith, believes, and ariy state.ment or àssertion contained
in such writing or iüstrument, and mây assume th?t any person purporting to give any witing,
notioet advioe or iirstrument in connection with the provisions ofthis Agreengnt has been duly
authorized to do so. Escrow Agent shall nol be liable in any manner for the sufficiency or
Co¡iectiess as to form, ma¡ner and execution, or validity of any instrument deposited in escrow,
nor as to the ìdentity. authority, or right ofany person e¡ecuting the same, and Escrow Agent's
duries under this Agreement shall be limited to those provided in this Agreement.
14.3 Indemnification, Unless Esc¡ow Agent disçharges ahy ofits d¡ties undçr
fhis Ag¡eement in a ne€¡ligent manner or is guilty of willful misconduct with regard to its dutigs
underthis Agreemênt, Sellef and Purchaser shall indemnifr Escrow Agent and hold it harmless
from any and all clâims, liâbilities, losses, actions, suits or proceediirgs at law or in equity, or
other expenses, fees, or charges ofany character or ìutu¡e, which it may incur or with rvhich it
may be threatened by reason of its acting as Escrow Agent under this Agreement; and in such
con¡ection Seller and Purchaser shall indemnify Escrorv Agent agâinst any and all expenses
including reasonable attomeys' fees and the cosl ofdefending any action- suit or proceeding or
resistiag any claim in such capacity.
14.4 Dispuies. If the pzirties (including Escow Agent) shall be ii disagreement
about the interpretation ofthis Agreement, or about their respective rights and obligations, or the
propriety ofany action contemplated by Escrow Agent, or the application ofthe Dçposit, Esorow
Agent shall hold the Deposit until the receipt of witten instructions from both Purchæer and

t4-

addition' iñ any such evenl'
Seller or a final order ofa court of competentjudsdiction' -ln
to resolve the
uut shati noiùe i"q'uitta io, m"^un action in interoleader
Ë;;.;;
for atl costs and reàsonable attomeys' fees in
disagreement. Escrow Agent shai'Ue in¿emninea
*V sgch inteçleader action and shall be fully
ils capacity as Êscrow agent in å'nirettì"" *itlt
judgment in
under this Agreement until a final
protected in suspending all ot pt"
"J;"ities
ihe inrerpleade¡ action is received-

;g;;"y,

"îit

14.5
have full und

counsel.

;J;;t;;

its own choice and
Counsel. Êscrow Agent may consult with counsel of
the opinion of such
*a piot""tion io a"cordan"e *'ith

"o.pl"t.-authork"ãoo
EscrowAgentshattotie#"ttåtU"tiuUt"foranymistakesoffactorerrorsof-.-.
o-iitio* oianv kind' unless iaused bv its nesliseüce or willtul

ã;;ni

u"t. o.

misconduct.

Agent shall not' by
Açknowledqeme¡t' Pù¡chaset agrces that the Esclôw'
be disqualified from representing
virnre of its services as Escrpw ffiñ'a"t ,t ir egreeäent,
of rúe propery if rhis Asfe€'menr shall terminate
$tË; i; ;.ffiij;; *,lrãy n oiJ*arketing
for any reason

14.6

Agent in
14.6 lnterest. All deposits íntq ihe esdow shall be held by the Escrow Deposit
occu¡, all interest eamed on the
¿in interest bearing u""ouni. irìrr" closing shall
thç benefit of Pu¡chase¡' If
shall be dqemed to t" pitt oiin" O"poiit-and shall accrue to
heTeof' then all interest eamed
this Agleement shatt te ærminatea pursuant to the teÍrts
Depqsit becomes
on thJDeposit shall be paid tq PurcLæer, except to the extent that
ln iuch event the interest eamed on the
payable tó Sellerpursuánt to Section
biposit shdll accrue tô the benefit of the Sell€r'

I1'l

15.

Miscellaneous.

l5.lExculpation.Pufchaserag¡gesthalitdoesnothaveandwillnothavealry

¿isclosed ór qndilclosed offrcer" director' employee' agenl,
""tiãnãffifi:iny
paren! subsidiary Òr other afftliate of
trustee, sharehold"r, purto"r, -".ttt"i, manager, principal,
ae;n!'trusJee' mrstee, shareholder' inânagel' rhember'
ð"ù"r, *v
"mployee,
"fn"áidire"tor, p"r"ni, subiidiary- o. other affiliato (cóltectively, r'S9!lglþ
".
of
"u"t
[mù"t..'f , *irì"g out oior in iooneótion wittr t6s agreement or the traqsaqtiqnsofcoñtemplaf€d
any liability
ËrË;=;;"h^;t"agrees to look solely to Sellø and its assets for the sêtisfac.t:ion or forlhe
contemplãtetl hereby,
this Agre",".nt o, rh" t*taclioils
ãrãùíig"ti"r
and
",iri"fir¡rder
of a¡/of the covenÃts, w¿frarlties or other agreenenJs conlained herein'
oerfoniance
any of
;"t io sre o. otl"rwise seek to enfo¡ce any personal obligation against
s'ith this Agreement
Seller's Àffiliates with respect to any matters aiising out ofor in connection
generalþ of the foregoing
ãi itr" t*o.u.tìo* contemplated heieby- Wíthout limiting the
herety unconditionally ând iÍevocably-waives any
orovisions ofthis Section 15.1, Purchaser
of aay naturè rvhatsoever it may now oi hereafter.hawe
Ãa *,rt"t æ
äã
""tion unconditionally and inevocably ieleases and discharges
"ä
äänrr-d]i"ì:"-Ámriui"r, *¿ r,"r"uv
accrue in
iã11"¡, gmtiut", from any and all liability whatsoeuer which may now or hereaftér.
ou1 ofthis Agreement
with o¡ a¡ising
ã"rol.
4ga.insi Seller s .Affilílirtes, in connection
"fp*"n"r"r cõntemplaied hereby. If ãy action is brought by Purchaser against S¡ller.¡
o, ¡l,e r.uns""tioos
,lgrlement, rhe rfansacrion or subjecr rnatte¡ described
o, uri¡ioe out

claims or causes of

*y

;;;;;r;Ër.lpt

ã*h;;;;;;t

"ì¡..

;ffììì"*,;;i;irc

io

sfihis

t5 -

hereinortheenforcementhereof'Seller'sAffiliatesshallbeentitledtorecovertiomPurchaserand
i;'con¡rection *ith ttt" defense of such action
aftomeys' fees, costs a-nd exP#;;;;;J
all
sette.'s emtiates from and against any and
pu¡chaser shali

ind"-*rv, *¿ r.,åìiîäi"ss

against
*¿ ri"tiritv i"zuttiog tto* attv claim o¡ action brought l5 l shall
this Section
piovisions of
in violation oilñs'É;lj*t5.1. The
Bind and

i":r;;;o'"tdil"g.r,

seller,s Afütiates
Cfosing' i5 2 Govemingl-aw:
surviye lhe termination of this ÇåtÏñäõ;
trte law ofthe Commonwealth ofMassachusetts
lnure. This Agreement shall u" ã"tã*"J uv
pariies hereto and their respective heirs, executors'
and shall bi¡d and inure to the uåneni or trré

;á;il;l;t"rt,

ttcÇessors, assigns and personal representatives'

Agreçmenl nor any
Recordins' The parties hereto agree that neither this
purchaser agrees that a breach ofthis provision
memorandum or notice hereor sñali be iecorded.
¡¡il^greement and keep the Deposit
bv purchaser shatt immeaiatAy äü'iiÈ ò"ii"r . ,"r*i*t"
anv
15

'3

\¡/ith
*ith anv court in
;i;öidffi ffiö;: ï" f'ú"s;i'hi' Ag'""*tnt tU' Seciion' The connection ofthis Sec¡ion
provisions
litisation hereund"r rt ¡t not u" å"1¡¡iJ" litt"¡ "f

1óJ shall survive the termination ofthis Agreement'

15,4

a¡d every date set
Time oflhe Essence' Time is ofthe essence of each

forth in this A$eerìent.
pæegraphs and
.
HeadineS. Ths headings preceding the text ofthe
atrd shall not constitute a
reference
tãLiv iot
i*ãlni
he..or
"înitoi*cJof
effect'
"ubna¡ae.aphs
snat thev affect its meaning' construction or

15.5

*
ä;?ìñ;Ëleliãninoi

in
Counterpârts This Agreement may be executed simultaneously
together shall oonstilute
originat, 6ut all of whioh
coüìterparrs, each o¡whiof, sfrafUe i"emååin
1

5.6

one and the samq instrument.

|5.TUseofProceeclstoClgarTitle.ToenableSellertomakeconveyanoeas
portion thereof

herein provitled, Sellei may,
td clea¡ the title of any ot al

the Purchase Price or any
"se provided tha.t provision reasonably
or i"tãi".tr,
piocured
ro, p-.pi*ordins of all instrurnents so
ttr" Propertv is located'
i.,

dì;;ffiãffiGG'
enJtri$r-"å,

#;il;io;ii"f,å"r;. *.ã"ii.-*ãã.
in accordancé witt,.o'o"y*#g"f;#;ñt"ijjrä"tion

'i'tri"t

l5.SEnrifeAereement:AÍnendments.ThisApreementandtheExhibitshereto

conditions äd undertakings between the
set foÍh all ofthe promises, covenants, agleements'
prior and
to trt *uj"át åutter hereof' an<I supersede all
or conditions' exp¡ess ot
inducements
contemporangous agreements and ttriderstandings'
*ntAn a n"tãi". fnir egr"ement may not be changed orally
implied, oral or wntt"n,
"*""pü"
¡v or on-behalf of the party or parties agai-nst
bur only by an agr".-"nt io **ifingl å"ry "*".ut.¿

;;Ë't Ët* ;;i;.ú";t

;-;;

å"får"".;m of *v *¿uii, iitanie, modification'

l5-g

consent or discharge is sought'

Date' Seller shall be free to
Oneraiion offhe Property' Prior to the Ctosing

operate the Property in its discretion'
15 .1

of the time

0

and the calculation
Business Days' If, under the terms of this Agreement

perù"providããñä"in tL" ctotittg o*"

il;; til, Å;;;;.",

ot

*y 9q1 d"T-to.be determined
holidav (Federal' or

should fall on Sáturdav' a sundav' a legal

16-

Massachusetts) or other date on u.hich banks located in Boston, Massachusetts, are not open for
business, then such date shall be extended to the next business dây'

15.11 ConJidentialiw. The parties shall keep Ihe terms of this Agreement
confidential (and Purchaser shall keep information it leams about the Property confidential) and
shall not disclose such terms and, iì the case ofPurch¿ser, informatio¿ to any other parties
withoùt the other paf)"s prior &ritten consent, whìch cqnsent shall be in each party's sole

discretion; p¡Ovided, hoÛeve¡, that each Barty may, without obtaining such prior written consent,
make such disclosures as may be required by applicable laws or agreements by which such party
is bound, and to each such parry's managers, members, offtcers, lenders, employees, attomeys,
aciountânts, appraisers, insurance advisors, consultants and sir.nilar third pafy professionals.
Casualtv Loss. Notrvithstanding a¡ything herein tq the contrary, i¡ the event of the
ãamage or destruction ofor to thp premises by fire, vandalisr¡, or other casuaþ. in excess of
$10,0ô0.00 ìn value prior to closing, or in the evenl oftaking of all or a part of the premises by
eminent domain, then at Pirchaser's optlon, this Agreeme. nt may be terminated and the Deposit,
t'ith all interest, shall be refunded to Purchaser.
I 5-

i

2

15.13 Risk ofLoss. Risk of loss shali remain with Seller until the recording
the Essex County South Regisu-y ofDeeds.
deed rvith

ofthe

15.14 Ôonformitv ofqremises. It is understood and agreed by the Parties that the premises shall
not be in conformity with the title provisions of this Agreement unless:

(a) all buildings, structures and jmprõvements including, but not limited 1o,. any drivervays
and all means of access to the Property, shall be located completely within the boundary
lines of said Property and shall not encroach upon of under the property of any other
person or entity; and
(b) no buildings, stnictures or improvemerits of any kind belonging to any other person ol
entity shall encroach upon or under said P¡operty¡ provided, however, that encroacþing
utiliiy easements shall not be .consideréd as a violatiön of the title provisions of this
Agreemerrt and ñrrther provided that any such utility easements shall not affect the use of
the P¡emises for residenliaL/commercial þurposes; and

(c) the Propert) shall abut or have access to a public way, duly laid out or accepted as such
by the Cily ofsaugus in which said premises are located; and
(d) title to the P¡operty is insurable, for the benefit ofthe Purchaser (for owner's policy) and
Purchaser' moÉgage lender (loan poliçy), if applicable, by a title inswance company of
Purchaser's choice qualified to do business in Massachusetts and utilizing the American
Land Title Assooiation (ALTA) form cunently in use, subject only to those printed
exceptions to title normally included in the 'lJacket" to such form or policy.
Leases and Occupancy.. Seller shail not between the date ofthis
agreement and closing enter into any lease5, licenqes or other occupancy anangements for any

15.15

t7

affecting the premises' without
space at the Property, or any contract or other agreements
Furchaset's prior written consent.

to this
15.16 Title Standards / REBA. Any mattel ol practice arising under or relating
Ba¡ Association
.tu"du.d of th" M"ttuchùsetß Real Estate
ugr."*"oi*fti"
deed shall be covered by the said title stãrdard or practice standard
uiif,e tin" for d"livery of tire
to Ihe extent applicable'

i5.lTProoe4vlnsurance'seilerwillcontinuetomaintaininfullforcea¡deffectall
insürance as presently canied, until the time ofclosing'
favor of any
15.18 Further Encumlrances' Seller will not grant or purport to create in
tle Propefi
party áay interest in the Property or any part thereof or further encumber

third
without the prior written notice to the Purchaser'

lsignanre Page to Followl

- 18 -

INWITNESS.WHERT-OF,thepartieshaveexecutedanddeliveredtlìisAgfeemel]taS
of the date first above u'r'itten.

SELLER:
RFF FAI\{ILY PARITNERSHIP LIMITED PARTNERSHIP
A Califg.nú

By:

K"^*"" fia--^grr
er

.-FìË

-

Kevin Aheam. President

",ßRç¡=fitq'

EXIIIBIT "4"

Exhibit A

FIRST PARCEL

- NOT

REGISTERED

ThatcertainparceloflandinSaugus,EssexCounty'Massachusettsofftheeastsideof
side of an umtought Metropolitan District
1Èroadwayi and off tþe squtheasTerþ
ðo--¡ìion luyout of Ma¡ch 10, 1932, bounded and described as follows:
Route t

L-d

regisered iand (being
Beginning at an iron pin in a stone shoun on a plan of adjoining
of Title No. 10353); thence
i5302Á wirh Essex South Disnici Certificate
C;;;

ä;;îo.

runnþg

NORTII ó4"55'37',

EAST

by Lot B as shown g¡ a plan dated November 12, 198tr ¡evised
,q"e. t, lSsz, ¡v Medfoid Engineering and Survey and filed ^
¡ire* Souih Disuict Registry ofDeeds in Plan Book 173'
Plan 42, along a stone wall, 115.66 feet to an angle; thence

*iti

NORTH 79'06'I5" EAST

by said l,ot B on said plan by the rt'au' 57'64 feet to ân ¿ingle;
thence

SOUTH19"23'08'EASTbysaidLotBonsaidplanbythewall'I33'g6feettoanangle'
thence

EASTERLY

bv said Lot B on said plan by the wall by lwo bounds

EASTERLY

by said Lot B on said plan, 370 feet; thence

ã"u.*ing ,"rp".tivelt

87.60 feet and 1 14.50 feet; tlrence still

By Lot A-2 ô4 çaid plarr, about 630 feet to a Point at the most
ofiot 12 on a plan dated June 19, i979 b¡'
iáJhl.ty
"o*"t aqd frted with said Deeds in PIan Book i60 as
Carter & Towers

SOUTT{EASTERLY

Plan 97; thence

SOUTH 58"22'30"

wESr

NORTHWESTERL'Y

NORTII 13"59'32"

EAST

bl,
bv Lots 12, i I and l0' bv the ena oi!;.amo1f;s$^eI' Td
the I 979 plan, 788'82 feet, nrore or
L'ors 9, 8 a¡d 7 as show¡ on
with
1.s.. tó land .ho*u on Land Court Plan No- 30651A filed
826; thçnce
Essex South District Certificate of Title No' 3 3
bv said land shoun on Land Court Plan No' 3306514' about
1i92.8? feet to a Land Court bound in a rvall; thence
on Land
by the wall, 49'45 feet fo an iron pin in the wall shown
Court Plan No. i53024; thence

-l-

SOUTHEASTERLY

by Lot 1, 133.75 feet; thence

NORTHEASTERLY

by Lots

1,

2, 3 and 4'

'160

feet; and thence

NORTHWESTERLYbyLot4,l30feettothepoíntofbeginning,thefinalthree
boLrnds being by the land shown on Land Court Plan

No'

t5302,A'.

LLC¡ by
The First Parcel hereinabove, being the same premises conve¡'ed to Saugus Holding'
on July 12.
deed of Saugus Funding Corp. ¡ecõrded uith Essex South District Regisuy* of Deeds
2001 in Book 17407,Page 462.
SECOND PARCEL-NOT REGISTERED

ThosecertainpalcelsoflandinSau$us,EssexCounty,MassãchusettssitúatedonDenise
Drive a¡d Diamond irreet aqd shown as Lots l, 3, 5,7 ,9 and I I on à pla¡ entitled "Definitive
Á¡þdivisiqn plan Land ia Saug¡f'by Carter B. Towers-Eng'r Cor-p-, dated June 19, i979 and
filed with Essex South District Deeds in Plan Book 160 as Plaq 97'
There is, as appurtenant to the parcels the dght to use in common with all others entitled
tlereto all streeis a¡á *ays shp*t, on iaid Pla¡ for all purposes for rvhich pu¡lic ways are used
in the Town ofsaugur, includiog sp.cifically such rights in Diamond street and Denise Drive.

Being the same premises conveyed to saugus Holding, LLC, by deed ofsaùgus Frrnding corp'
dateà'Oplober 2ã,200i and ¡ecoided with said Registry ofDeeds in Book l7843,Page 194.

THIRD PARCEL _ REGISTERED LAND
That cer-tain parcel of land situate in saugus, county of Essex and commonwealth of
Massachusetts, bounded and described as follou's:

NORTHWESTERLY

by the southeasterly line of Lynn Fells Parkway, I I '12 feet;

by land now or formerly of Lillian E. Newhall, 114'26 feet: and
NORTHERLY
NORTHEASTERLY 130 feet,
SOUTffiASTERLY i60 feet, and
SOUTHWESTERLY 133.75 feet by land now or formerly of Elizabeth Conley, and
by la-nd now or formerly of Louis Gq¡ondelis et al, 50'55 feet'
WESTERLY

All of said

boundaries ate determined by the Court to be locateà as show¡ upon plan

numbered 15302-4, filed with original certificate of Title No. 10353 in Southem Registry
District for Essex County.
The above parcel is presently covered by Certifrcate of Tille No. 733i

Book 387.

I in Registratiorr

FOURTH PARCEL _ NOT REGISTERED
Those certain parcels ofland in saugus, Essex County, Massachusetts sùuated on Denise
Drive and Diamond Si¡eet and shown as Lots 2, 4, ó, 8 l0 and 12 on a plan entitled "DeJinitive
Subdivision Plan Land in Saugus" by Carter & Torvers Eng'r Corp., dated June 19, 1979 a¡d
filed with Essex South District Deeds in Plan Book 160 as Plan 97.
There is, as appunenant to the parcels the right to use in common with all othe¡s entitled
public rvays are
thereto to all steets and ways shorvri on said Plan for al1 purposes for\rl'hich
including specifically sUch rights in Diamond Street and Denise
used in the Torw ofsaugus,

Drive.
The Fourth Parcel hereinabove, being the same premises conveyed to Saugus Holding'
LLC, by deed of saugus Funding corp. recorded with Essex South District Registy ofDeeds on
July 12,2001 in Book 17407, Pagc 471.

J:\Docst4073 j\00û02\01 j48372-DOC