Exhibit








Execution Copy
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this “Agreement”) is made and entered into as of this 1st day of February, 2018 (the “Effective Date”) by and between ASC Devens, LLC, a Delaware limited liability company having an address of 64 Jackson Road, Devens, Massachusetts 01434 (“Seller”), and 64 Jackson, LLC, a Massachusetts limited liability company having an address at 133 Pearl Street, Boston, Massachusetts 02110 (“Purchaser”).
RECITALS
WHEREAS, Seller is the owner of certain improved real property located at 64 Jackson Road, Devens, Massachusetts; and
WHEREAS, Seller desires to sell to Purchaser, and Purchaser, desires to acquire from Seller, such real property on the terms and conditions set forth in this Agreement.
NOW THEREFORE, in consideration of the mutual covenants herein contained and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Seller and Purchaser agree as follows:
1.DEFINITIONS.
For the purposes of this Agreement, the following terms will have the following definitions:
Applicable Environmental Law shall have the meaning given such term in Section 12.1.14.
Purchaser shall have the meaning given such term in the introductory paragraph of this Agreement.
Closing shall have the meaning give such term in Section 5.1.
Closing Date shall mean March 30, 2018 at 10:00 a.m.
Deed shall have the meaning given such term in Section 9.1. 
Deposit shall have the meaning given such term in Section 3.2.2.
Due Diligence Period shall have the meaning given such term in Section 7.2.
Escrow Agent shall mean Stewart Title Guaranty Company.
Extended Time shall have the meaning set forth in Section 7.6.
First Deposit shall have the meaning given such term in Section 3.2.1.
Land shall have the meaning given such term in Section 2(a).
Hazardous Substance shall have the meaning given such term in Section 12.1.14.


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Holdover Period shall have the meaning set forth in Section 6.1.
Improvements shall have the meaning given such term in Section 2(c).
Monetary Liens shall mean (i) mortgages or other security documents or similar encumbrances given to secure indebtedness for money borrowed, (ii) mechanics or materialman’s liens, or (iii) any other voluntary and/or involuntary encumbrances, including, without limitation, judgments, attachments and executions, which may be discharged by the payment of money or bonding in lieu thereof.  
Permitted Encumbrances shall have the meaning given such term in Section 7.1.
Permitted Use shall have the meaning set forth in Section 6.1(a)(ix).
Premises shall have the meaning given such term in Section 2(c).
Property shall have the meaning given such term in Section 2.
Purchase Price means a sum equal to Twenty-Three Million and 00/100 Dollars ($23,000,000), to be paid as set forth in Section 3, as adjusted in accordance with Section 11 hereof.
Second Deposit shall have the meaning given such term in Section 3.2.2.
Seller shall have the meaning given such term in the introductory paragraph of this Agreement.
Seller Mortgage shall have the meaning given in Section 3.2.3.
Seller Note shall mean a Six Million and 00/100 Dollar ($6,000,000) subordinated secured commercial promissory note more fully described in Section 3.2.3.
Seller’s Title Notice shall have the meaning given such term in Section 7.2.
Intercreditor, Subordination and Standstill Agreement shall have the meaning given in Section 3.2.3.
Title Commitment shall mean the title commitment issued by the Title Company to Purchaser with respect to the Premises.
Title Company shall mean Stewart Title Guaranty Company or another title insurance company acceptable to Purchaser.
Title Objections shall have the meaning given such term in Section 7.2.
2.    PURCHASE AND SALE.
Subject to the terms and conditions of this Agreement, Seller shall sell and convey to Purchaser, and Purchaser shall purchase from Seller, the following described property (all of Section 2(a) – (e) is hereinafter collectively referred to as the “Property”):
(a)    those certain tracts of real estate located in the Regional Enterprise Zone of Devens, Massachusetts, which real estate is more particularly described in the attached Exhibit A, together with all 


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right, title and interest of Seller in and to all easements, covenants, agreements, rights, privileges, tenements, hereditaments and appurtenances thereunto now or hereafter belonging or appertaining thereto (collectively, the “Land”); and
(b)    all right, title and interest of Seller (whether now or hereafter existing) in and to any land lying in the bed of any street, alley, road or avenue (whether open, closed or proposed) within, in front of, behind or otherwise adjoining the Land or any of it, and all right, title and interest of Seller (whether now or hereafter existing); and
(c)    all of the buildings, structures, fixtures, facilities, installations and other improvements of every kind and description now or hereafter in, on, over and under the Land, including, without limitation, any and all plumbing, air-conditioning, heating, ventilating, mechanical, electrical and other utility systems, parking lots and facilities, landscaping, roadways, sidewalks, recreational facilities, security devices, signs and light fixtures (collectively, the “Improvements”) (the Land and Improvements being collectively referred to as the “Premises”); and
(d)    all right, title and interest of Seller in and to all existing surveys, blue prints, construction drawings, plans and specifications (including, without limitation, structural, HVAC, mechanical and plumbing plans and specifications), transferable warranties and guaranties and other documentation for or with respect to the construction or operation of the Property or any part thereof; all right, title and interest of Seller in and to all transferable licenses, permits, approvals or other like instruments applicable to the operation, use or enjoyment of the Premises.
3.    PURCHASE PRICE AND PAYMENT.
3.1.    Purchase Price.  Subject to the adjustment provisions set forth in Section 11 hereof, Purchaser shall pay (or cause payment of) the Purchase Price for the Property.
3.2.    Payment.  The Purchase Price shall be paid as follows:
3.2.1.      Within three (3) business days after the execution of this Agreement by Seller and Purchaser, Purchaser shall deposit Five Hundred Thousand  and 00/100 Dollars ($500,000.00) (the “First Deposit”) in immediately available funds with Escrow Agent by wire transfer, to be held and disbursed pursuant to the provisions of this Agreement.  If Purchaser fails to comply with the provisions of this Section 3.2.1, Seller may immediately terminate this Agreement by written notice to Purchaser in which case this Agreement shall be void and of no further force or effect as of the date of the notice. 
3.2.2.      On February 15, 2018 Purchaser shall deposit Five Hundred Thousand and 00/100 Dollars ($500,000.00) (the “Second Deposit”) in immediately available funds with Escrow Agent by wire transfer, to be held and disbursed pursuant to the provisions of this Agreement.  If Purchaser fails to comply with the provisions of this Section 3.2.2, within forty-eight (48) hours of Notice, Seller may immediately terminate this Agreement by written notice to Purchaser in which case this Agreement shall be void and of no further force or effect as of the date of the notice and the Escrow Agent shall deliver the First Deposit to Seller as liquidated damages.  For purposes of this Agreement, the First Deposit and the Second Deposit shall be referred to as the “Deposit”. 


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3.2.3.      Seller has agreed to provide financing to Purchaser in connection with its purchase of the Property.  At Closing, the Purchaser shall execute and deliver to Seller the Seller Note substantially in the form attached hereto as Exhibit B (the “Seller Note”).   Such Seller Note shall be secured by a second mortgage on the Property substantially in the form of Exhibit C (the “Seller Mortgage”) and a Subordinated Assignment of Leases and Rents substantially in the form attached hereto as Exhibit D (the “ALR”).  Seller agrees that the exact form of the Seller Note, the Seller Mortgage and the ALR shall be subject to review and negotiation with Purchaser’s first mortgagee and Seller agrees and consents to entering into an Intercreditor, Subordination and Standstill Agreement with such first mortgagee in connection with the Closing (the “Intercreditor, Subordination and Standstill Agreement”).  The Intercreditor, Subordination and Standstill Agreement shall provide, without limitation, that no payments of accrued interest or principal shall be made under the junior subordinated Seller Note during any period in which there exists an event of default under the senior loan documents with Purchaser’s first mortgagee.  Notwithstanding the foregoing, the exact form of the Seller Note, the Second Mortgage, the ALR and the Intercreditor, Subordination and Standstill Agreement shall be finalized by February 28, 2018, and if the form of such documents are not finalized by such time, or if Seller is not satisfied with the form of such documents, in its sole and absolute discretion by such time, then Seller may terminate this Agreement by written notice to Purchaser delivered at any time thereafter, in which event the Deposit shall be returned to Purchaser and this Agreement shall be void and of no further force or effect.
3.2.4.      At Closing, Purchaser shall pay to Seller the Purchase Price less the Deposit and less the Seller Note, such sum to be paid by federal funds wire transferred to an account designated by Escrow Agent, subject, however, to such adjustments as are required by this Agreement, and Escrow Agent shall wire the sale proceeds to Seller on the Closing Date following recording of the Deed. 
4.    ESCROW OF DEPOSIT.
4.1.    Escrow of Deposit.  The Deposit shall be held in escrow by Escrow Agent, in a non-interest bearing account, subject to the terms and conditions of this Agreement.  If the Closing shall occur, the Deposit shall be delivered to Seller and credited on behalf of Purchaser towards the Purchase Price.  If Purchaser elects to terminate this Agreement for any reason in accordance with the provisions of this Agreement, the entire Deposit shall be delivered to Purchaser.  If the Closing does not occur on the Closing Date, and such failure to close is attributable to the default of Purchaser under this Agreement, Escrow Agent shall, subject to Section 17.1 and upon notice from Seller to Escrow Agent and Purchaser, deliver the Deposit to Seller on the third business day following its receipt of such notice.  If the Closing does not occur on the Closing Date, and such failure to close is attributable to the default of Seller under this Agreement, Escrow Agent shall, subject to Section 17.2 and upon notice from Purchaser to Escrow Agent and Seller, deliver the entire Deposit to Purchaser on the third business day following its receipt of such notice. 
4.2.    Terms Governing Escrow Agent.  The Escrow Agent shall be subject to the following terms and conditions and no others:
(a)    The duties and obligations of Escrow Agent shall be determined solely by the express provisions of this Agreement and no implied duties or obligations shall be read into this Agreement 


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against Escrow Agent.  Further, Escrow Agent shall be under no obligation to refer to any other documents between Purchaser and Seller related in any way to this Agreement.
(b)    Escrow Agent shall not be liable to anyone by reason of any error of judgment, or for any act done or step taken or omitted by the Escrow Agent in good faith, or for any mistake of fact or law, or for anything which the Escrow Agent may do or refrain from doing in connection herewith, unless caused by or arising out of the actual and intentional misconduct of the Escrow Agent or any act of the Escrow Agent in willful disregard of this Agreement or involving gross negligence on the part of the Escrow Agent.
(c)    In the event of any disagreement between Purchaser and Seller resulting in adverse claims and demands being made in connection with or against the funds held in escrow, or in the event that either of Purchaser or Seller objects to any proposed disposition of the Deposit, Escrow Agent shall be entitled, at Escrow Agent’s option, to refuse to comply with the claims or demands of either party until such disagreement is finally resolved (i) by Purchaser and Seller as evidenced by a joint written direction to Escrow Agent, or (ii) by a court of competent jurisdiction (in proceedings which Escrow Agent or any other party may initiate, it being understood and agreed by Purchaser and Seller that Escrow Agent has the authority (but no obligation) to initiate such proceedings).
(d)    Purchaser and Seller each agree to jointly and severally indemnify Escrow Agent against any and all losses, liabilities, costs (including reasonable attorney’s fees) and other expenses in any way incurred by Escrow Agent in connection with or as a result of any disagreement between Purchaser and Seller under this Agreement or otherwise incurred by Escrow Agent in any way on account of its role as escrow agent.
5.    CLOSING.
5.1.    Closing Date.  Subject to the provisions of this Agreement, Purchaser and Seller shall close this transaction (the “Closing”) at 10:00 a.m., Boston, Massachusetts time on the Closing Date, in escrow at the offices of Escrow Agent located in Massachusetts, or at such other time and place as Seller and Purchaser shall agree in writing.  If the date of Closing above provided for falls on a Saturday, Sunday, Monday or legal holiday, the Closing Date shall be the next business day. 
6.    HOLDOVER.
6.1.    Holdover.  Seller may remain on the Property for the period commencing on the Closing Date and ending on the earlier of (i) the date that Seller notifies Purchaser that it has vacated the Property, or (ii) six (6) months after the Closing Date (the “Holdover Period”) on the terms and conditions set forth in this Section.
(a)    Obligations of Seller.  During the Holdover Period (or at the expiration of the Holdover Period as applicable), Seller agrees that it will remain only in those portions of the Property where its machinery is located for the purposes of disassembling its machinery and equipment and decommissioning its plant so as to completely vacate the Property during such period of time; provided, however, to the extent that Seller needs to operate some or all of its machinery in connection therewith, it may do so.  Seller also hereby agrees:


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	(i)
	To maintain that portion of the Property where Seller's machinery is located at Seller's expense in substantially the same condition as at the time the Holdover Period began, fire, other casualty and reasonable wear and tear excepted;


		
	(ii)
	To pay for only that portion of electricity furnished to the Property and consumed by Seller while manufacturing product;


		
	(iii)
	To assume the risk of loss with respect to all personal property of Seller at the Property;


		
	(iv)
	That if any of Seller's personal property is damaged by any cause, no part of the loss will be charged to Purchaser unless caused by the Purchaser’s gross negligence or misconduct;


		
	(v)
	To the maximum extent permitted by law, that Seller will occupy the Property at Seller’s own risk, and that Purchaser will not be liable to Seller, or to any person claiming or admitted to the Property through Seller, for injury or death to persons, or loss or damage to property of any nature whatsoever; 


		
	(vi)
	To the maximum extent permitted by law, to defend, indemnify and hold harmless Purchaser against any claim for personal injury, bodily injury or death, or loss or damage to property, including legal fees and expenses, incurred by Seller or any person claiming or admitted to the Property through Seller; 


		
	(vii)
	To remove from the Property, at Seller’s sole cost, liability, and expense, (i) all personal property and materials, and (ii) otherwise deliver the Property to Purchaser in broom-clean condition;


		
	(viii)
	Provide Purchaser with the insurance listed on Exhibit E;


		
	(ix)
	To use the Property as Seller currently does, and for no other purpose (the “Permitted Use”);


		
	(x)
	To comply with all laws applicable to Seller’s use and occupancy of the Property;


		
	(xi)
	To not allow any liens for unpaid work or materials to attach to the Property;


		
	(xii)
	To not use, generate, dispose of or store any Hazardous Substances at the Property except as reasonably required by the Permitted Use and then only in accordance with all applicable laws;


		
	(xiii)
	To not allow the use or occupancy of any portion of the Property by any other person or entity; and


		
	(xiv)
	To permit access to the Property by Purchaser and Purchaser employees and contractors following reasonable notice. 




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7.    TITLE.
7.1.    State of Title.  Seller shall convey title to the Premises by the Deed, transferring good, clear and marketable fee simple title, insurable at standard title insurance premiums and free and clear of all liens and other encumbrances other than the following (which shall hereinafter be referred to as the “Permitted Encumbrances”):
(a)    Provisions of then existing building and zoning laws;
(b)    Easements, restrictions and reservations of record, if any, that are listed on Schedule B to the Title Commitment; subject, however, to other provisions of this Section 7;
(c)    Such real estate taxes for the then current fiscal year as are not yet due and payable; 
(d)    Any liens for municipal betterments assessed after the date of this Agreement.
7.2.    Title Objections.  Within twenty-one (21) days after the Effective Date (the “Due Diligence Period”), Purchaser may submit to Seller such objections that Purchaser may have to the state of title to the Premises that exist as of the date of the Title Commitment (the “Title Objections”).  Notwithstanding the foregoing, Purchaser may not include as Title Objections any matters addressed in the most recent deed to the Premises attached hereto as Exhibit F. Seller shall have five (5) business days from receipt of Purchaser’s Title Objections to notify Purchaser whether Seller will agree to cause a Title Objection to be cured, removed or corrected (“Seller’s Title Notice”).  If within the time specified, Seller fails to send Seller’s Title Notice, then Seller shall be deemed to have elected not to cause any Title Objection to be cured, removed or corrected as aforesaid.  Purchaser may then, at its option, to be exercised on or before the later of (i) that date which is three (3) business days following Purchaser’s receipt of Seller’s Title Notice in which the Seller has elected not to cause any Title Objection to be cured, removed or corrected, or (ii) in the event Seller fails to deliver Seller’s Title Notice, that date which is six (6) business days after Seller’s receipt of Purchaser’s Title Objections, either (x) terminate this Agreement and immediately receive from Escrow Agent the Deposit, in which event this Agreement, without further action of the parties, shall become null and void, and neither party shall have any further rights or obligations under this Agreement, or (y) elect to accept title to the Property as it then is, without any reduction in the Purchase Price.  If Purchaser fails to make either such election, Purchaser shall be deemed to have elected option (x). 
7.3.    New Title Matters.  If any new title matter appears after the initial effective date of the Title Commitment, Purchaser and Seller shall have the same rights and obligations and timeframes after the expiration of the Due Diligence Period with respect to any such new title matter as they have in Section 7.2.
7.4.    Monetary Liens.  Notwithstanding anything to the contrary contained in this Agreement, Seller shall be obligated, and does hereby agree, (i) to payoff and discharge at or prior to Closing all Monetary Liens encumbering the Property whether or not any such Monetary Lien is the subject of a Title Objection except for institutional mortgages which shall be paid at Closing but for which releases shall be obtained in accordance with local conveyancing practice, and (ii) to cure any matters that Seller agrees to cure, remove or correct in Seller’s Title Notice.
7.5.    Use of Purchase Price to Clear Title.  To enable Seller to make conveyance as herein provided, Seller may (and Seller shall, with respect to Monetary Liens or other matters which 


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Seller is obligated to cure), at the time of Closing, use the Purchase Price, or any part thereof, to cure the title of any or all matters which are either (i) Monetary Liens; (ii) Title Objections that Seller has agreed to remove, provided that all instruments so procured shall be delivered at Closing, unless reasonably satisfactory arrangements for the recording of such instruments after the Closing Date are made at Closing, and the Title Company issues, at the Closing, its policy obtained by Purchaser for the Premises without exception for the matters so cured.
7.6.    Extension to Perfect.  If Seller shall be unable to give title, make conveyance, or deliver possession of the Premises as required by this Agreement, or if at the Closing the Premises do not conform with the provisions of this Agreement, then Seller shall use reasonable efforts to remove any defects in title, deliver possession or make the Premises conform to the provisions of this Agreement, as the case may be, in which event Seller shall give written notice to Purchaser on or before the Closing Date, and the Closing shall be extended for a period of up to thirty (30) days as designated by Seller in the written notice (the “Extended Time”). If at the expiration of the Extended Time Seller shall have failed to remove any defects in title, deliver possession or make the Premises conform, as the case may be, all as set forth in this Agreement, then either party may terminate this Agreement, in which case the Deposit shall be refunded to Purchaser and all other obligations of the parties shall cease and this Agreement shall be void and without recourse to the parties. 
8.    OPERATION OF PROPERTY THROUGH CLOSING.
8.1.    General Management and Operation Practices.  Except as otherwise provided in this Section 8, Seller shall manage and operate the Property as it currently does. Seller will not make any material change in its management or operation of the Property.
8.2.    Encumbrances.  Seller shall not sell, mortgage, pledge, hypothecate or otherwise transfer or dispose of all or any part of the Property or any interest therein nor shall Seller enter into any matter of record or initiate, consent to, approve or otherwise take any action with respect to zoning or any other governmental rules or regulations presently applicable to all or any part of the Property.
8.3.    Maintenance of Existing Insurance.  Seller shall maintain in full force and effect its existing insurance coverages.
8.4.    Notices.  Within ten (10) business days after receipt, Seller shall provide Purchaser with true and complete copies of any written notices that Seller receives from any governmental authority with respect to (i) any special assessments or proposed increases in the valuation of the Property; (ii) any condemnation or eminent domain proceedings affecting the Property or any portion thereof; or (iii) any violation of any environmental law or any zoning, health, fire, safety or other law, regulation or code applicable to the Property.  
8.5.    Litigation.  Seller will advise Purchaser of any litigation, arbitration proceeding or administrative hearing within ten (10) business days after receipt of notice thereof which is instituted after the Effective Date and which concerns or affects the Property.
9.    SELLER’S DELIVERIES AT CLOSING.
At Closing, Seller shall do, deliver or cause the following:


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9.1.    Deed.  Seller shall execute, acknowledge and deliver to Purchaser, a recordable quitclaim deed in the amount of the full Purchase Price (the “Deed”) in substantially the form attached hereto as Exhibit G, sufficient to transfer and convey to Purchaser fee simple title to the Premises subject only to the Permitted Encumbrances.  The Deed shall provide that the Seller is not taxed as a corporation for federal income tax purposes.    
9.2.    Authority and Entity Documentation.  Seller shall deliver such entity documents, certificates, resolutions and legal existence and good standing certificates as may be reasonably and customarily required by the Title Company.
9.3.    Affidavits.  Seller shall execute and deliver such affidavits or indemnities as the Title Company shall reasonably require in order to delete from any title insurance policy or endorsement thereto obtained by Purchaser at the Closing those exceptions relating to mechanic’s and materialman’s liens or parties in possession on the Property.
9.4.    Possession.  Seller shall deliver possession of the Property free of any tenants or other occupants and otherwise in the condition as required by this Agreement, subject, however, to the provisions of Section 6.
9.5.    Title Documents.  If Seller has any obligation pursuant to this Agreement to cure Title Objections pursuant to Section 7, Seller shall deliver the means necessary to effect such cure.
9.6.    1099-S Report Filing.  Seller shall execute a real estate transaction reporting form, if required by Section 6045 of the Internal Revenue Code of 1986, as amended as provided by any settlement agent or the Title Company.
9.7.    FIRPTA Affidavit.  Seller shall execute a non-foreign person affidavit required by Section 1445 of the Internal Revenue Code of 1986, as amended as provided by any settlement agent or the Title Company.
9.8.    Seller’s Closing Certificate.  Seller shall execute and deliver to Purchaser a certificate executed confirming that to Seller’s knowledge, Seller’s representations and warranties contained in Section 12.1 are true and correct in all material respects on the Closing Date, except for any change in facts disclosed pursuant to Section 12.3.
9.9.    Closing Statement.  Seller shall execute and deliver to Purchaser a closing statement in customary form.
9.10.    Other Documents.  Seller shall execute and deliver such other instruments and documents and do such other acts as may be reasonably necessary for the consummation of the transactions provided for in this Agreement.
10.    PURCHASER’S DELIVERIES AT CLOSING.
At Closing, Purchaser shall do or deliver the following:
10.1.    Balance of the Purchase Price.  Purchaser shall deliver to Escrow Agent the balance of the Purchase Price, as adjusted by Section 11 hereof.


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10.2.    Transaction Documents.  Purchaser shall have duly executed and delivered to Seller the Seller Mortgage and the ALR and Purchaser shall have duly executed and delivered the Seller Note.
10.3.    Authority and Entity Documentation.  Purchaser shall deliver such entity documents, resolutions and legal existence and good standing certificates as may be required by the Title Company.
10.4.    Closing Statement.  Purchaser shall execute and deliver to Seller a closing statement in customary form.
10.5.    Other Documents.  Purchaser shall execute and deliver such other instruments and documents and do such other acts as may be reasonably necessary for the consummation of the transactions provided for in this Agreement.
11.    ADJUSTMENTS AND POST-CLOSING COLLECTIONS; CLOSING COSTS.
11.1.    Adjustments.  Real estate taxes for the then current fiscal year, charges for utilities, including water, sewer, and fuel oil, and for utility services, maintenance services, maintenance and service contracts, all operating costs and expenses, and all other income, costs, and charges of every kind which in any manner relate to the operation of the Property (but not including insurance premiums) shall be apportioned as of the Closing Date, as if Purchaser is the owner of the Property on the Closing Date.  If the amount of said real estate taxes is not known at the time of the Closing, they shall be apportioned on the basis of the taxes assessed for the preceding fiscal 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.  Purchaser shall be responsible for the payment of any assessments or notice of assessments first made after the date of execution hereof for any public improvement, provided the Closing occurs.  Any deposits on utilities paid by Seller shall be returned to Seller.  
11.2.    Closing Costs.  Seller shall pay for Massachusetts deeds excise stamps payable on the sale the Property in the statutory amount, Seller’s attorneys’ fees, Seller related recording fees, and all other costs customarily paid for by a seller in a commercial real estate transaction in the Worcester, Massachusetts area.  Purchaser shall pay all costs of Purchaser’s due diligence investigations, the costs of title insurance, including the examination fees, all costs of updating title, any fee charged by the Escrow Agent and Purchaser’s related recording fees, Purchaser’s attorneys’ fees, and all other costs customarily paid for by a Purchaser in a commercial real estate transaction in the Worcester, Massachusetts area.  
12.    REPRESENTATIONS AND WARRANTIES.
12.1.    Seller’s Representations and Warranties.  As a material inducement to Purchaser to execute this Agreement and to consummate this transaction, Seller represents and warrants to Purchaser that, to its knowledge, that:
12.1.1.      Authority and Standing.  Seller is duly organized, validly existing and qualified and empowered to conduct its business, and has full power and authority to enter into and fully 


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perform and comply with the terms of this Agreement.  The person executing this Agreement on behalf of Seller is duly authorized to do so.  The execution and delivery of this Agreement will not conflict with or result in the breach of any contract, agreement, law, rule or regulation to which Seller is a party or by which Seller or the Property is bound.  This Agreement is valid and enforceable against Seller in accordance with its terms and each instrument to be executed by Seller pursuant to this Agreement or in connection herewith will, when executed and delivered, be valid and enforceable against Seller in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, moratorium, reorganization or similar laws affecting the enforcement of creditors rights generally.  There are no attachments, executions, assignments for the benefit of creditors, or voluntary or involuntary proceedings in bankruptcy or under other debtor relief laws contemplated by, pending or threatened against the Seller.
12.1.2.      Actions.  There is no suit, action or administrative proceeding pending or threatened against Seller or the Property before or by any federal or state court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, nor is there any action or proceeding pending or threatened which challenges or impairs Seller’s ability to execute, deliver or perform its obligations under, this Agreement.
12.1.3.      Notice of Violations.  Seller has received no written notice that the Property (or any part thereof) violates any laws, rules and regulations of any federal, state, city or county government or any agency, body, or subdivision thereof having any jurisdiction over the Property that have not been resolved to the satisfaction of the issuer of the notice.
12.1.4.      Zoning.  Seller has received no written notice concerning any change in the zoning classification of the Property. 
12.1.5.      Contracts.  Seller has received no written notice from any third party, alleging any violation or default by Seller under any contract or other agreement affecting the Property, including, without limitation, any recorded documents. 
12.1.6.      Agreements to Lease, Sell, Etc.  Seller has not entered into any agreement to lease, sell, mortgage or otherwise encumber or dispose of its interest in the Property or any part thereof, except for matters disclosed in the Title Commitment and this Agreement.  There are no leases for all or any portion of the Property.
12.1.7.      Withholding Obligation.  Seller is not a “foreign person” within the meaning of Section 1445 of the Internal Revenue Code.
12.1.8.      Condemnation.  Seller has received no written notice of any existing, proposed or contemplated eminent domain proceeding or plan to widen, modify or realign the streets abutting or providing access to the Premises. 
12.1.9.      Notices from Insurers.  Seller has received no written notice from any insurer with respect to any defects or inadequacies of all or any part of the Property or the use or operation thereof.
12.1.10.      Governmental Agreements.  Except as described on Schedule 12.1.10, there are no material agreements with governmental authorities, agencies, utilities or quasi-governmental entities which affect the Property or Seller and which will be binding on Purchaser after Closing except as reflected on the record title.


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12.1.11.      Other Material Agreements.  Except as described on Schedule 12.1.11, there are no material agreements with any third parties which affect the Property or Seller and which will be binding on Purchaser or the Property after Closing, other than those agreements which are disclosed in the Title Commitment.
12.1.12.      Bankruptcy.  No proceeding has been filed by or against Seller under the United States Bankruptcy Code, or any state laws relating to bankruptcy or insolvency, seeking liquidation of Seller or any of its partners, or a reorganization or arrangement with their creditors, or the appointment of a trustee or receiver for any of their assets or business.
12.1.13.      OFAC.  Seller is in compliance with the requirements of Executive Order No. 13224, 66 Fed. Reg. 49079 (September 25, 2001) (the “Order”) and other similar requirements contained in the rules and regulations of the office of Foreign Assets Control, Department of the Treasury (“OFAC”) and in any enabling legislation or other Executive Orders or regulations in respect thereof (the Order and such other rules, regulations, legislation, or orders are collectively called the “Orders”).  Neither Seller, nor to the best of Seller’s knowledge, any beneficial owner of Seller:
(a)    is listed on the Specially Designated Nationals and Blocked Persons List maintained by OFAC pursuant to the Order and/or on any other list of terrorists or terrorist organizations maintained pursuant to any of the rules and regulations of OFAC or pursuant to any other applicable Orders (such lists are collectively referred to as the “Lists”);
(b)    is a person who has been determined by competent authority to be subject to the prohibitions contained in the Orders; or
(c)    is owned or controlled by, nor acts for or on behalf of, any person or entity on the Lists or any other person or entity who has been determined by competent authority to be subject to the prohibitions contained in the Orders.
12.1.14.      Environmental.  Since the date the Seller acquired title to the Property, Seller has not received any written notice from any governmental authority having jurisdiction over the Property or any third party of any violation of Applicable Environmental Law with respect to the Property or as result of migration of Hazardous Substances to adjacent properties.  As used in this Agreement, the term “Hazardous Substance” shall mean any material or substance, including without limitation asbestos, polychlorinated biphenyls and petroleum products, that is currently listed as hazardous or toxic under Applicable Environmental Laws.  As used in this Agreement, the term “Applicable Environmental Laws” shall mean any present and future Federal, Commonwealth of Massachusetts or local laws, statutes, ordinances, rules, regulations, or standards including but not limited to the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), as amended by the Superfund Amendments and Reauthorization Act of 1986 (“SARA”), 42 U.S.C. §§ 9601 et seq.; the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. §§ 6901 et seq.; the Federal Water Pollution Control Act, as amended by the Clean Water Act of 1977 (“CWA”), 33 U.S.C. §§ 1251 et seq.; and the Toxic Substances Control Act (“TSCA”), 15 U.S.C. §§ 2601 et seq. as the foregoing have been amended from time to time to the date of this Agreement that apply to the Property and relate to Hazardous Substances.
12.2.    Purchaser’s Representations and Warranties.  As a material inducement to Seller to execute this Agreement and consummate this transaction, Purchaser represents and warrants to Seller that:


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12.2.1.      Organization and Authority.  Purchaser has the full right and authority and has obtained any and all consents required therefor to enter into this Agreement, and to consummate or cause to be consummated the sale contemplated herein.  The persons signing this Agreement on behalf of Purchaser are authorized to do so.  This Agreement and all of the documents to be delivered by Purchaser at the Closing have been authorized and property executed and will constitute the valid and binding obligations of Purchaser, enforceable against Purchaser in accordance with their terms.
12.2.2.      Conflicts.  There is no agreement to which Purchaser is a party or, to Purchaser’s knowledge, binding on Purchaser which is in conflict with this Agreement.
12.2.3.      Actions.  To the best of Purchaser’s knowledge, there is no action or proceeding pending or threatened which challenges or impairs Purchaser’s ability to execute, deliver or perform its obligations under, this Agreement
12.2.4.      Ability to Pay Purchase Price.  The Purchaser has the ability to pay the Purchase Price at the Closing pursuant to this Agreement
12.3.    Change in Conditions.  The parties will promptly notify each other of any material change in facts that arise prior to the Closing that would make any of the foregoing representations untrue if such state of facts had existed on the date of this Agreement.  The party receiving such notice shall have five (5) business days to respond to the notifying party indicating whether the change in fact is acceptable or whether the notifying party must rectify the change in fact as a prior to the Closing.
12.4.    Survival of Representations and Warranties.  All representations and warranties set forth above shall be continuing and deemed remade as of the Closing Date and shall survive the Closing for a period of one (1) year.  No claim for a breach of any representation or warranty of Seller shall be actionable or payable (i) if the breach in question results from or is based on a condition, state of facts or other matter that was known to Purchaser as of the Closing Date, (ii) unless the valid claims for all such breaches collectively aggregate more than $25,000.00, in which event the full amount of such claims, up to but not exceeding the sum of $1,500,000.00, shall be actionable, and (iii) unless written notice containing a description of the specific nature of such breach shall have been given by Purchaser to Seller prior to the expiration of said one (1) year period and an action shall have been commenced by Purchaser against Seller within eighteen (18) months after the date of the Closing.  Seller shall not be liable to Purchaser for any consequential, indirect, special or incidental damages under any provisions of this Agreement or for any consequential, indirect, special or incidental damages arising out of any act or failure to act hereunder even if the Seller has been advised of or has foreseen the possibility of such damages.  Notwithstanding any provision of this Agreement to the contrary, (a) Seller’s aggregate liability to Purchaser for any and all claims, obligations, liabilities and causes of action arising under, out of, or in relation to this Agreement shall not exceed One Million Five Hundred Thousand Dollars ($1,500,000), regardless of whether such claims, obligations, liabilities and causes of action arise in tort, contract, including without limitation, for a breach of any Seller representation or warranty, under statute or otherwise, and (b) Purchaser’s sole and exclusive remedy for any successful claim by Purchaser against Seller shall be paid by offsetting the amount owed by Purchaser to Seller from the Seller Note.
12.5.    Seller’s Knowledge.  All of the representations and warranties of Seller contained in this Agreement are based on Seller’s knowledge.  The term “Seller’s knowledge” shall mean the actual, not constructive or implied, knowledge of John Kosiba without any further obligation 


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of John Kosiba to make any independent investigation of the matters being represented and warranted, or to make any further inquiry of any other persons, or to search or examine any files, records, books or correspondence.  Purchaser acknowledges that the individual or individuals named above are named solely for the purpose of defining and narrowing the scope of Seller’s knowledge and not for the purpose of imposing any liability on or creating any duties running from such individual or individuals to Buyer.  Buyer agrees that Buyer shall not bring an action of any kind against such individual or individuals, any shareholder, member, manager, partner, officer or employee of Seller, as applicable, related to or arising out of these representations and warranties.
12.6.    Environmental Matters.  Section 18.2 provides, in part, that Purchaser agrees that should any cleanup, remediation or removal of Hazardous Substances or other environmental conditions on the Property be required after the Closing Date, such clean-up, removal or remediation shall be the responsibility of, and shall be performed at the sole cost and expense of, Purchaser and that Purchaser shall have no claim, including, without limitation, any statutory claims or claims for contribution or joint liability, against Seller (or Seller’s officers, directors, shareholders, partners, members, managers, employees and agents), and Purchaser shall indemnify and hold Seller (and Seller’s officers, directors, shareholders, partners, members, managers, employees and agents) harmless from and against any and all costs, losses, claims, demands, damages, liabilities and expenses Seller (or Seller’s officers, directors, shareholders, partners, members, managers, employees and agents) may suffer or incur after the Closing Date as a result of any cleanup, remediation or removal of Hazardous Substances or other environmental conditions on the Property after the Closing Date (the “Purchaser Waiver and Indemnity”).  Notwithstanding the provisions of Section 18.2 to the contrary, the Purchaser Waiver and Indemnity shall be limited from the Closing Date to the second anniversary of the Closing Date solely to the extent as follows:  (i) Seller shall indemnify Purchaser for any costs, losses, claims, demands, damages, liabilities and expenses incurred as a result of any cleanup, remediation or removal of Hazardous Substances or other environmental conditions on the Property required by Applicable Environmental Laws with respect to Hazardous Substances located exclusively in the soil or groundwater, or both, of the Land prior to the second anniversary of the Closing Date, in the maximum aggregate amount of the then outstanding amounts payable under the Seller Note, and (ii) Purchaser’s sole and exclusive remedy with respect to Seller’s limited indemnification obligation set forth in the foregoing subparagraph (i) shall be the right to offset amounts then outstanding and payable to the Seller under the Seller Note.  Upon the occurrence of the second anniversary of the Closing Date, the Purchaser Waiver and Indemnity shall take full force and effect.  
13.    CERTAIN CONDITIONS PRECEDENT.
At the option of Purchaser, the obligations of Purchaser under this Agreement are contingent and conditional upon any one or more of the following:
13.1.    Seller’s Performance.  Seller shall not have breached its obligations under this Agreement in any material respect.
13.2.    No Additional Contingencies.  Purchaser’s ability to purchase the Property is not contingent on any due diligence investigations (other than title), permitting, or financing.
14.    CASUALTY LOSS AND CONDEMNATION.
14.1.    Material Damage or Condemnation.  If, prior to Closing, the Property or any part thereof shall be destroyed or materially damaged by fire or other casualty, or condemned in any 


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material respect (that is, damage or destruction determined by Seller’s insurance company to be in excess of $500,000.00, or a condemnation which materially impedes access to the Property or materially reduces the number of parking spaces serving the Improvements to the extent that such reduction causes a violation of any applicable law, rule, regulation or bylaw), Purchaser and Seller shall each have the option to terminate this Agreement or to consummate the transaction contemplated by this Agreement notwithstanding such condemnation, destruction or material damage.  If Purchaser elects to consummate the transaction contemplated by this Agreement (and provided Seller has not elected to terminate this Agreement), Purchaser shall be entitled to receive the condemnation proceeds or settle the loss under all policies of insurance applicable to the destruction or damage and receive the proceeds of insurance applicable thereto, and Seller shall, at Closing and thereafter, execute and deliver to Purchaser all required proofs of loss, assignments of claims and other similar items.  Purchaser shall receive a credit against the Purchase Price equal to Seller’s insurance deductible.  If Purchaser elects to terminate this Agreement, the Deposit shall be returned to Purchaser by Escrow Agent, in which event this Agreement shall, without further action of the parties, become null and void and neither party shall have any rights or obligations under this Agreement, except for the obligations of Purchaser that expressly survive termination of this Agreement.
14.2.    Other Damage or Condemnation.  If, prior to Closing, there is any other damage or destruction or condemnation to the Property, in the case of damage or destruction, Seller shall either repair such damage prior to Closing or allow Purchaser a credit against the Purchase Price in an amount equal to the reasonably estimated cost of repair as the parties shall mutually agree, and in the case of a condemnation, Purchaser shall be entitled to receive the condemnation proceeds.  If they cannot agree, then Purchaser shall have the right to terminate this Agreement and receive back the Deposit whereupon all rights and obligations between the parties shall cease.
15.    BROKERAGE WARRANTY.
Seller and Purchaser mutually represent and warrant that neither Seller nor Purchaser has dealt with any broker in connection with the purchase and sale and that neither Seller nor Purchaser knows of any broker who has claimed or may have the right to claim a commission in connection with this purchase and sale.  Seller and Purchaser shall indemnify and defend each other against any costs, claims or expenses, including attorneys’ fees, arising out of the breach on their respective parts of any representations, warranties or agreements contained in this Section 15.  The provisions of this Section shall survive the Closing.
16.    ACCEPTANCE OF DEED.
The acceptance of the Deed by Purchaser shall be deemed to be a full performance and discharge of every agreement and obligation hereof, except such agreements or obligations which are, under or by the terms of this Agreement, to survive or be performed after the Closing.
17.    DEFAULT AND DAMAGES.
17.1.    Default by Purchaser.  If Purchaser shall default in the performance of its closing obligations under this Agreement, then as Seller’s sole remedy for such default and upon written notice of termination from Seller to Purchaser and to Escrow Agent, this Agreement shall terminate (except for this section and each of the other sections which expressly survive termination of this Agreement), and the Escrow Agent shall deliver the Deposit to Seller as liquidated damages.


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17.2.    Default by Seller.  If Seller shall default in the performance of its obligations to close under this Agreement, then upon written notice of such default from Purchaser to Seller and Escrow Agent, the Purchaser may elect to either (a) terminate this Agreement, in which case the Escrow Agent shall deliver the Deposit to Purchaser and this Agreement shall be void and of no further force or effect, or (b) commence an action for specific performance of this Agreement.  With respect to all claims for a breach of Seller’s obligations under this Agreement, Purchase may waive such breach and proceed to the Closing.
IN THE EVENT THE SALE OF THE PROPERTY IS NOT CONSUMMATED BECAUSE OF A DEFAULT UNDER THIS AGREEMENT ON THE PART OF THE PURCHASER, PURCHASER AND SELLER AGREE THAT IT WOULD BE EXTREMELY DIFFICULT AND IMPRACTICAL TO DETERMINE THE AMOUNT AND EXTENT OF DETRIMENT TO SELLER.  PURCHASER AND SELLER THEREFORE AGREE THAT, IF PURCHASER DEFAULTS HEREUNDER PURCHASER’S DEPOSIT IS A REASONABLE ESTIMATE OF SELLER’S DAMAGES AND THAT SELLER SHALL BE ENTITLED TO SAID SUM AS LIQUIDATED DAMAGES, WHICH SHALL BE SELLER’S SOLE AND EXCLUSIVE REMEDY, EITHER AT LAW OR IN EQUITY AS A RESULT OF SUCH DEFAULT.  
18.    DISCLAIMERS AND WAIVERS
18.1    No Reliance.  Except as expressly stated in this Agreement, Seller makes no representation or warranty as to the truth, accuracy or completeness of any materials, data or information delivered by Seller to Purchaser in connection with the transaction contemplated by this Agreement.  Purchaser acknowledges and agrees that all materials, data and information delivered by Seller to Purchaser in connection with the transaction contemplated by this Agreement are provided to Purchaser as a convenience only and that any reliance on or use of such materials, data or information by Purchaser shall be at the sole risk of Purchaser, except as otherwise expressly stated in this Agreement. Without limiting the generality of the foregoing, Purchaser agrees that (i) any environmental, engineering or other report with respect to the Property which is delivered by Seller to Purchaser shall be for general informational purposes only, (ii) Purchaser shall not have any right to rely on any such report delivered by Seller to Purchaser, but rather shall rely on Purchaser’s own inspections and investigations of the Property and reports commissioned by Purchaser with respect to the Property, and (iii) neither Seller nor any affiliate of Seller shall have any liability to Purchaser for any inaccuracy in or omission from any such report.
18.2    Disclaimers.  Except as expressly set forth in this Agreement, Purchaser agrees that Seller is not making, and has not at any time made, any representations or warranties of any kind or character, express or implied, with respect to the Property, including, but not limited to, any representations or warranties as to habitability, merchantability, fitness for a particular purpose, title, zoning, tax consequences, latent or patent physical or environmental condition, the presence of any Hazardous Materials, utilities, operating history or projections, valuation, governmental approvals, the compliance of the Property with laws, the truth, accuracy or completeness of the documents or any other information provided by or on behalf of Seller to Purchaser, or any other matter or thing regarding the Property.  Purchaser acknowledges and agrees that at the Closing Seller shall sell and convey to Purchaser and Purchaser shall accept the Property “as is, where is, and with all faults”, except to the extent expressly provided otherwise in this Agreement.  Purchaser has not relied and will not rely on, and Seller is not liable for or bound by, any express or implied warranties, guaranties, statements, representations or information pertaining to the Property or relating to the same (including, without limitation, property information packages distributed with respect to the Property) made or furnished by Seller, the manager of the Property, or any real estate broker or agent representing or purporting to represent Seller, to whomever made or given, directly or indirectly, orally or in writing, unless specifically 


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set forth in this Agreement.  Purchaser represents to Seller that Purchaser has conducted, or will conduct prior to Closing, such investigations of the Property, including, but not limited to, the physical and environmental condition of the Property, as Purchaser deems necessary to satisfy Purchaser as to the condition of the Property and the existence or nonexistence or curative action to be taken with respect to any Hazardous Substances on, in, under or discharged from the Property, and will rely solely upon the same and not upon any information provided by or on behalf of Seller or its agents or employees with respect to the same.  At the Closing, Purchaser shall assume the risk that adverse matters, including, but not limited to, construction defects, adverse physical conditions and adverse environmental conditions, may not have been revealed by Purchaser's investigations, and Purchaser, upon Closing, shall be deemed to have waived, relinquished and released Seller (and Seller's officers, directors, shareholders, partners, members, managers, employees and agents) from and against any and all claims, demands, causes of action (including causes of action in tort and statutory claims), losses, damages, liabilities, costs and expenses (including attorneys' fees and court costs) of any and every kind or character, known or unknown, which Purchaser might have asserted or alleged against Seller (and Seller's officers, directors, shareholders, members, managers, employees and agents) at any time by reason of or arising out of any latent or patent construction defects or physical or environmental conditions, violations of any applicable laws (including, without limitation, any Applicable Environmental Laws) and any and all other acts, omissions, events, circumstances or matters regarding the Property.  Purchaser agrees that should any cleanup, remediation or removal of Hazardous Substances or other environmental conditions on the Property be required after the Closing Date, such clean-up, removal or remediation shall be the responsibility of, and shall be performed at the sole cost and expense of, Purchaser and that Purchaser shall have no claim, including, without limitation, any statutory claims or claims for contribution or joint liability, against Seller (or Seller’s officers, directors, shareholders, partners, members, managers, employees and agents), and Purchaser shall indemnify and hold Seller (and Seller’s officers, directors, shareholders, partners, members, managers, employees and agents) harmless from and against any and all costs, losses, claims, demands, damages, liabilities and expenses Seller (or Seller’s officers, directors, shareholders, partners, members, managers, employees and agents) may suffer or incur after the Closing Date as a result of any cleanup, remediation or removal of Hazardous Substances or other environmental conditions on the Property after the Closing Date.
18.3    Effect and Survival of Disclaimers.  Seller and Purchaser acknowledge that the Purchase Price to be paid to Seller for the Property takes into account that the Property is being sold subject to the provisions of this Section 18.  Seller and Purchaser agree that the provisions of this Section 18 shall survive the Closing.
19.    MISCELLANEOUS PROVISIONS.
19.1.    Notices.  All notices, requests and other communications hereunder shall be made in writing and delivered or mailed by registered or certified first-class mail, postage prepaid, return receipt requested, or sent by commercial overnight courier delivery service, charges prepaid, or sent by email with a hard copy to follow, addressed as follows:


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If to Purchaser:        64 Jackson, LLC 
                133 Pearl Street
Boston, MA 02110
Attn:  Steven E. Goodman
Email: sgoodman@gfipartners.com 


With a copy to:        Peter W. Shrair
Cooley, Shrair P.C.
1380 Main Street
Springfield, MA 01103
Email: pshrair@cooleyshrair.com 
or at such other address for notice as Purchaser shall last have furnished in writing to the person giving the notice;
If to the Seller:        ASC Devens, LLC
114 East Main Street
Ayer, MA 01432
Attention: John Kosiba, Senior Vice President and CFO
Email:  john.kosiba@amsc.com 
with a copy to:        American Superconductor Corporation
114 East Main Street
Ayer, MA 01432
John Samia, General Counsel and Corporate Secretary
Email:  john.samia@amsc.com 


Todd K. Helwig, Esq.
Mirick O’Connell
1800 West Park Drive, Suite 400
Westborough, MA 01581
Email: thelwig@mirickoconnell.com


If to Escrow Agent:    Stewart Title Guaranty Company
National Title Services
5935 Carnegie Blvd, Suite 301
Charlotte, NC  28209


or at such other address for notice as Seller shall last have furnished in writing to the person giving the notice.  Any notice shall be deemed effective: upon receipt by email or hand delivery; the next day after sending if sent by overnight courier; or three (3) days after sending if sent by postal service.
19.2.    Relationship of Parties.  It is the intention of this Agreement to create the relationship of Seller and Purchaser between the parties hereto and no other relationship whatsoever.
19.3.    Waivers.  No delay or omission by any party hereto to exercise any right or power accruing upon any noncompliance or failure of performance by the other party under the 


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provisions of this Agreement shall impair any such right or power or be construed to be a waiver thereof.  A waiver by any party hereto of any of the terms, covenants, conditions or agreements hereof to be performed by the other party must be in writing signed by the party charged and shall not be construed to be a waiver of any succeeding breach thereof or of any other term, covenant, condition or agreement herein contained.
19.4.    Confidentiality.  Neither party shall, without the prior written consent of the other party, disclose the existence of this Agreement, the identity of Purchaser or Seller or any of the terms or conditions of the proposed transaction to any third party other than its accountants and attorneys, or to the extent required by law; provided, however, that the Seller or Seller’s parent, American Superconductor Corporation, may make any public disclosure it believes in good faith is required by applicable law, regulation or stock market rule.  The obligations in this provision shall survive the Closing or the termination of this Agreement.
19.5.    Section Headings.  The section headings herein are for convenience and reference only, and in no way define or limit the scope and contents of this Agreement, or in any way affect its provisions.
19.6.    Counterparts.  This Agreement may be executed in several counterparts, each of which shall be deemed an original, and all such counterparts shall together constitute one and the same instrument.  A signed facsimile or electronic copy of this Agreement or a signed portable document format (.pdf) copy of this Agreement shall be binding upon the parties to this Agreement as fully and to the same extent as an original signed copy.  
19.7.    Governing Law, Etc.  This instrument is to be construed as a Commonwealth of Massachusetts contract and sets forth the entire agreement between the parties.  This Agreement constitutes the entire agreement and final expression between parties for the matters covered herein.  All prior writings or oral communications are merged herein and superseded hereby, whether or not the same purport to be an agreement of the parties.  This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns.  This Agreement may be canceled, modified or amended only by written instrument executed by both Seller and Purchaser.  In any litigation or other dispute resolution regarding this Agreement or arising out of the transaction that is the subject of this Agreement, the prevailing party shall be paid all of its legal fees and related costs relating to such litigation or other dispute resolution.
19.8.    Partial Invalidity.  If any term or provision of this Agreement or the application thereof to any person, property or circumstance shall to any extent be invalid or unenforceable, the remainder of this Agreement or the application of such term or provision to persons, properties and circumstances other than those as to which it is invalid or unenforceable, shall not be affected thereby, and each term and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law, provided that any invalidity regarding payment to Seller of the Purchase Price shall void the entire Agreement.
19.9.    Time of Essence.  Time is of the essence of this Agreement, and failure by either party to comply with this Section 19.8 shall be a material default of this Agreement by such party.
19.10.    Nominee; Assignment.  Purchaser may designate a nominee to take title to the Property by written notice to Seller delivered at least seven (7) days prior to the Closing.  Purchaser 


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may assign this Agreement only with the prior written consent of Seller, which may be withheld or granted in Seller’s sole and absolute discretion.  No assignment shall release the Purchaser herein named from any obligation or liability under this Agreement.  
19.11.    Submission Not An Offer.  The submission of a draft of this Agreement or a summary of some or all of its provisions, or the acceptance of a letter of intent to an agreement, does not constitute an offer to sell the Property or bind the Seller and Purchaser, it being understood and agreed that neither Seller nor Purchaser shall be legally bound with respect to the sale or purchase of the Property unless and until this Agreement has been executed by both Seller and Purchaser and a fully executed copy has been delivered to each of them.
19.12.    No Recording.  Purchaser agrees that neither this Agreement nor any memorandum of this Agreement shall be recorded and that any such recordation shall, at Seller’s election, be a default by Purchaser under this Agreement.
20.    CONVEYANCING STANDARDS.  ANY TITLE MATTER WHICH IS THE SUBJECT OF A TITLE, CONVEYANCING OR PRACTICE STANDARD OR CUSTOM OF THE REAL ESTATE BAR ASSOCIATION (R.E.B.A.) OF THE COMMONWEALTH OF MASSACHUSETTS SHALL BE GOVERNED BY SUCH TITLE STANDARD OR PRACTICE TO THE EXTENT APPLICABLE.
21.        LIMITATION OF LIABILITY.  IF THE PERSON EXECUTING THIS AGREEMENT ON BEHALF OF SELLER OR PURCHASER IS EXECUTING THIS AGREEMENT IN A REPRESENTATIVE OR FIDUCIARY CAPACITY OR AS AN OFFICER OR MANAGER OF EITHER SELLER OR PURCHASER, ONLY THE PRINCIPAL, ESTATE OR ENTITY REPRESENTED SHALL BE BOUND, AND NEITHER THE PERSON EXECUTING THIS AGREEMENT ON BEHALF OF SELLER OR PURCHASER, AS THE CASE MAY BE, NOR ANY DIRECTOR, OFFICER, EMPLOYEE, SHAREHOLDER, PARTNER, TRUSTEE OR BENEFICIARY OF ANY TRUST, SHALL BE PERSONALLY LIABLE FOR ANY OBLIGATION, EXPRESS OR IMPLIED, HEREUNDER EXCEPT TO THE EXTENT THAT THE PROCEEDS OF SALE ARE DISTRIBUTED TO ANY SUCH PERSONS
22.    PURCHASER AND SELLER HEREBY WAIVE ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING BROUGHT IN CONNECTION WITH THIS AGREEMENT AND ALL MATTERS CONTEMPLATED BY THIS AGREEMENT.
[signature page to follow]


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IN WITNESS WHEREOF, the parties hereto have caused this Purchase and Sale Agreement to be duly executed as of the date and year first above written.
SELLER:
ASC DEVENS LLC 


By:    /s/ John Kosiba            
Name:    John Kosiba            
Title:    Authorized Person        




PURCHASER:
64 JACKSON, LLC


By:    /s/ Steven Goodman        
Name:    Steven Goodman        
Title:    Manager            




ESCROW AGENT:
STEWART TITLE GUARANTY COMPANY


By:     /s/ Danielle Howell        
Name:     Danielle Howell        
Title:     Vice President            


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Schedules to ASC Devens LLC and 64 Jackson LLC Purchase and Sale Agreement
Schedule 12.1.10
Existing Government Agreements
All agreements included in that certain closing binder titled “Acquisition of Lot 7, Jackson Boulevard Devens (Harvard), Massachusetts,” including, without limitation (i) the Utility Sales Agreement by and between the Seller and MassDevelopment Finance Agency, and (ii) the Post-Closing Agreement between Massachusetts Development Finance Agency and the Seller.
Federal Facilities Agreement between the Army and the United States Environmental Protection Agency and signed by the EPA on May 13, 1991, and the modification thereto, dated March 27, 1996, the Final Environmental Impact Statement, prepared by the United States Army Corps of Engineers, New England Division dated May 1995, Final Environmental Baseline Survey for Proposed Lease and/or Transfer Fort Devens Base-Wide Base Realignment and Closure Environmental Evaluation (BRAC EE) Fort Devens, Massachusetts, prepared by Arthur D. Little, Inc., dated March 1996, revised April 1996.
Schedule 12.1.11
Existing Other Material Agreements
All agreements included in that certain closing binder titled “Acquisition of Lot 7, Jackson Boulevard Devens (Harvard), Massachusetts,” including, without limitation (i) the Utility Sales Agreement by and between the Seller and MassDevelopment Finance Agency, and (ii) the Post-Closing Agreement between Massachusetts Development Finance Agency and the Seller.
Federal Facilities Agreement between the Army and the United States Environmental Protection Agency and signed by the EPA on May 13, 1991, and the modification thereto, dated March 27, 1996, the Final Environmental Impact Statement, prepared by the United States Army Corps of Engineers, New England Division dated May 1995, Final Environmental Baseline Survey for Proposed Lease and/or Transfer Fort Devens Base-Wide Base Realignment and Closure Environmental Evaluation (BRAC EE) Fort Devens, Massachusetts, prepared by Arthur D. Little, Inc., dated March 1996, revised April 1996.






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EXHIBITS:
	
		
	Exhibit A
	Description of Land

	Exhibit B
	Form of Subordinated Secured Commercial Promissory Note

	Exhibit C
	Form of Second Mortgage

	Exhibit D
	Form of Subordinated ALR

	Exhibit E
	Insurance Requirements

	Exhibit F
	Existing Deed

	Exhibit G
	Proposed Deed








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EXHIBIT A


Description of Land


A certain parcel of land in Harvard, Massachusetts, shown as Lot 7 on a plan entitled “Harvard Massachusetts Level 1 Subdivision Lot 7 Givry Street” prepared by Howe Surveying Associates, Inc., dated July 19, 2000, recorded with the Worcester District Registry of Deeds in Plan Book 761, Plan 44 (the “Parcel”), bounded and described as follows:


Beginning at a stone bound to be set at the easterly comer of said lot on the southwesterly sideline of Givry Street;


Thence S 52°47'59" W, nine hundred twelve and 16/100 (912.16) feet to a stone bound to be set;


Thence N 77°23'38" W, eight hundred ninety and 78/100 (890.78) feet to a stone bound to be set;


Thence N 15°53'53" E, six hundred thirty-three and 13/100 (633.13) feet to a stone bound to be set;


Thence along a curve to the right with a radius of one thousand nine hundred thirty-six and 00/100 (1936.00) feet, a length of one thousand thirty-two and 70/100 (1032. 70) feet to a stone bound to be set;


Thence along a curve to the right with a radius of twenty-five and 79/100 (25.79) feet, a length of forty-three and 30/100 (43.30) feet to a stone bound to be set;


Thence S 37°20'20" E, one thousand four hundred eleven and 03/100 (1411.03) feet to the point of beginning.


The Parcel contains 34.89± acres according to the aforementioned plan.










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EXHIBIT B


Form of Subordinated Secured Commercial Promissory Note




SUBORDINATED SECURED COMMERCIAL PROMISSORY NOTE


$6,000,000                                _____________, 20___    




FOR VALUE RECEIVED, 64 Jackson, LLC, a Massachusetts limited liability company with a usual place of business at 133 Pearl Street, Boston, Massachusetts 02110 (the "Borrower") promise(s) to pay to the order of ASC Devens, LLC, a Delaware limited liability company (its successors, assigns and any future holder or holders this Note collective, the "Lender"), at Lender's office located at                           , or at such other place as Lender may designate in writing, the principal sum of Six Million and 00/100 Dollars ($6,000,000), plus interest from the date hereof, all as hereinafter set forth.


This Subordinated Secured Commercial Promissory Note (“Note”) is issued pursuant to that certain Purchase and Sale Agreement between the Borrower and the Lender dated as of_____________, 2018, as it may be amended, modified and/or restated from time to time by mutual written agreement of Lender and Borrower (the “Agreement”), all of the terms and conditions of which are incorporated herein by reference. Capitalized terms used herein and not defined herein have the meanings ascribed to them in the Agreement.


This Note is subject to an Intercreditor, Subordination and Standstill Agreement of even date herewith between Lender and the East Boston Savings Bank. Any assignment, transfer or conveyance of this Note shall be subject to said Intercreditor, Subordination and Standstill Agreement.


INTEREST


Interest from the date hereof upon the unpaid principal balance from time to time outstanding shall accrue at a fixed rate of [insert Applicable Federal Rate as of the closing date] percent (     %) per annum.  Interest shall be calculated on the basis of actual days elapsed and a 360-day year.
    
REPAYMENT


Principal and interest due Lender hereunder shall be repaid as follows:


A.  Three Million and 00/100 Dollars ($3,000,000) of principal, together with all accrued interest shall be due and payable on March 31, 2019.


B.  Three Million and 00/100 Dollars ($3,000,000), plus all accrued interest thereon shall be due and payable on March 31, 2020.




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C.  Notwithstanding the foregoing, in the event that the Mortgaged Premises (defined below) is sold (a “Sale”), the entire unpaid principal shall be repaid, in full, together with all accrued interest thereon in connection with such Sale.  The payment in full of all amounts due under this Note as the result of a Sale shall be paid at, and shall be a condition to, the closing of, a Sale.


Any payments received by Lender with respect to this Note prior to demand, acceleration or maturity shall be applied first to any costs, expenses or charges due Lender from Borrower, second to any unpaid accrued interest hereunder, and third to the unpaid principal hereunder.  Any payments received after demand, acceleration or maturity shall be applied in such a manner as Lender shall determine.


If any payment received by Lender with respect to this Note shall be deemed by a court of competent jurisdiction to have been a voidable preference or fraudulent conveyance under federal or state law, or otherwise due any party other than Lender, then the obligation for which the payment was made shall not be discharged by the payment and shall survive as an obligation due hereunder, notwithstanding Lender's return to Borrower or any other party of the original of this Note or other instrument evidencing the obligation for which payment was made.


Borrower may prepay this Note from time to time in whole or part without penalty.  All prepayments (with prepayment defined herein as any payment of principal in advance of its due date) shall be applied first to any costs, expenses or charges due Lender from Borrower, second to any accrued interest that is due and payable as of the date of the prepayment, and third against the principal payments due hereunder in the inverse order of their maturity.  Any partial prepayments shall not affect Borrower’s obligation to make any of the payments required hereunder until all indebtedness evidenced by this Note is fully paid.


Pursuant to that second Mortgage of even date between the Lender and Borrower (the “Mortgage”), the following described property from Borrower, in addition to all other collateral now or hereafter provided by Borrower, or by any guarantor or endorser hereof, to Lender, shall secure this Note and all other present and future obligations of Borrower to Lender:  second mortgage on property located at 64 Jackson Road, Devens, Massachusetts (the “Mortgaged Premises”).


This Note shall be in default, and all unpaid principal, interest, and other amounts due hereunder, shall, at Lender's option, be immediately due and payable, without prior notice, protest, or demand, upon the occurrence of any one or more of the following events of default (the "Events of Default"):  (a) the failure of Borrower to pay when due any amount due hereunder; (b) an Event of Default (as defined in the Mortgage) under the Mortgage, or (c) the granting of any trust mortgage upon any assets of Borrower, the occurrence of any assignment for the benefit of Borrower's creditors, or the appointment of a custodian, trustee, or receiver with respect to any assets of Borrower, or the filing of any petition by or against Borrower under the Bankruptcy Reform Act of 1978 (as amended), or any other federal or state law by which Borrower is or may be relieved from its debts, except that with respect to an involuntary filing against the Borrower, the Borrower shall have forty five days from the date of filing to dismiss the involuntary filing prior to it constituting an Event of Default, or (d) a monetary breach or monetary default by the Borrower of any terms, covenants, or conditions of any loan, guaranty, financial instrument or other agreement involving 


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indebtedness, secured to the Borrower’s first mortgage lender after the passage of any applicable notice and/or cure periods.  An Event of Default will be deemed to be continuing unless waived in writing by Lender or the Event of Default has been cured as provided herein or in the Mortgage and Security Agreement.


If the entire amount of any required principal and/or interest payment is not paid in full on the date the same is due, the Borrower shall pay to the Lender a late fee equal to five percent (5.00%) of the required payment.


Upon the occurrence of an Event of Default which remains uncured beyond any applicable notice and/or cure period, the unpaid principal hereunder shall, at the option of the Lender, bear interest at a per annum interest rate equal to nine percent (9.00%) per annum until such Event of Default is cured or waived in writing by Lender.


Borrower, and each endorser and guarantor hereof, severally agree to hereby waive presentment, demand, notice and protest and also waives any delay on the part of the holder hereof.  Each also assents to (i) any extension, or other indulgence (including, without limitation, any release substitution or addition of collateral or of any direct or indirect obligor) permitted by Lender with respect to this Note and/or any collateral given to secure this Note, (ii) any extension or other indulgence, as described above, with respect to any other obligation or any collateral given to secure such other obligation of Borrower or any endorser or guarantor to Lender, or (iii) to the modification or amendment, at any time and from time to time, of this Note, the Mortgage and Security Agreement, or any other instrument securing this Note or any of the loan documents evidencing the Obligations at the request of any person liable thereon. A discharge or release of any party directly or indirectly liable hereon shall not discharge or otherwise affect the liability of any other party directly or indirectly liable hereon.


No indulgence, delay, or omission by Lender in exercising or enforcing any of its rights or remedies hereunder shall operate as a waiver thereof on that occasion nor on any other occasion.  No waiver of any default hereunder shall operate as a waiver of any other default hereunder, nor as a continuing waiver. No waiver of a default or of any other right or remedy hereunder, nor any modification of any provision of this Note, shall be enforceable unless it is in writing signed by the party against whom the waiver or modification is to be enforced. All of Lender's rights and remedies hereunder and under any other related loan documents shall be cumulative and may be exercised singularly or concurrently, at Lender's sole and exclusive discretion.


It is not intended under this Note to charge interest at a rate exceeding the maximum rate of interest permitted to be charged under applicable law, but if interest exceeding said maximum rate should be paid hereunder, the excess shall, at Lender's option, be (a) deemed a voluntary prepayment of principal not subject to the prepayment premium (if any) set forth herein or (b) refunded to Borrower.


Borrower, and each endorser and guarantor hereof, jointly and severally agree to pay on demand all costs and expenses, including, but not limited to, reasonable attorneys' fees, incurred by Lender in connection with the protection and/or enforcement of any of Lender's rights or remedies against Borrower or any such endorser or guarantor (whether or not any suit has been instituted by 


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or against Lender).


This Note shall be binding upon Borrower and each endorser and guarantor hereof and upon their respective heirs, successors, and representatives, and shall inure to the benefit of Lender and its successors, endorsees and assigns.


The liabilities of the Borrower (and each co-maker, if any), and any endorser or guarantor hereof, are joint and several.  Each reference in this Note to the Borrower, any endorser and any guarantor, is to such maker, co-maker (if any), endorser and guarantor, individually, as well as collectively.  No party obligated on account of this Note may seek contribution from any other party also obligated unless and until all obligations to Lender of the party to whom contribution is sought have been satisfied in full.  Each reference to Lender herein is to the named payee hereto or any subsequent holder hereof, and their respective successors, endorsees and assigns.


Borrower represents to Lender that the proceeds of this Note will not be used for personal, family or household purposes and that this loan is strictly a commercial transaction.


BORROWER, AND EACH ENDORSER AND GUARANTOR HEREOF, HEREBY EXPRESSLY WAIVE ALL RIGHTS TO A TRIAL BY JURY WITH RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE RELATING, DIRECTLY OR INDIRECTLY, TO THIS NOTE AND/OR OTHER LOAN DOCUMENTS (IF ANY) EXECUTED IN CONNECTION HEREWITH AND ALSO SUBMIT TO THE JURISDICTION OF THE COURTS OF THE COMMONWEALTH OF MASSACHUSETTS (AND THE FEDERAL COURTS SITUATED THEREIN) WITH RESPECT TO ALL CLAIMS CONCERNING THIS NOTE AND/OR ANY COLLATERAL SECURING THEIR RESPECTIVE LIABILITIES TO LENDER. 


This Note shall be governed by the laws of the Commonwealth of Massachusetts, without regard to its principles of conflicts of laws, and shall take effect as a sealed instrument.


Signed under seal as of the day and year first above written.


64 JACKSON, LLC




BY:                    
Steven E. Goodman, Manager








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EXHIBIT C


Form of Second Mortgage



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EXHIBIT D


SUBORDINATED ALR



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EXHIBIT E


Insurance Requirements 


Insurance Requirements During Holdover Period
SELLER’S INSURANCE DURING THE HOLDOVER PERIOD.  Seller shall at all times during the Holdover Period, at its sole cost and expense, carry and maintain the following insurance:  
(a) insurance coverage for any and all trade fixtures and personal property, including, but not limited to, any furniture, machinery, goods, products or supplies, of Seller, which Seller may have upon or within the Improvements; 
(b) Commercial General Liability Insurance relating to the Improvements and its appurtenances  and Seller’s use of other portion(s) of Purchaser's Property on an occurrence basis, with minimum limits of liability in the amount of $2,000,000.00 in respect of bodily injury or death and/or property damage combined; and 
(c) workmen’s compensation insurance insuring against and satisfying Seller’s obligations and liabilities under applicable workmen’s compensation laws. Seller’s Commercial General Liability Insurance shall name Purchaser, and any entity Purchaser transfers the management of the real property leased hereunder to, as additional insureds.  All liability and casualty policies maintained by Seller shall be written as primary policies, not contributing with and not supplemental to coverage that Purchaser may carry.  Seller may maintain any of its required insurance coverages under blanket policies of insurance covering the Improvements and any other premises of Seller, or companies affiliated with Seller, provided the coverage afforded will not be reduced or diminished by reason of the use of such blanket policy.






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EXHIBIT F


Existing Deed



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EXHIBIT G


Form of Proposed Deed



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