EXHIBIT 10.5
SEVENTH AMENDMENT TO
PURCHASE AND SALE AGREEMENT
THIS SEVENTH AMENDMENT TO PURCHASE AND SALE AGREEMENT (this "Amendment")
is made as of the 29th day of February, 2016 (the "Effective Date"), by and
between FREETOWN ACQUISITION COMPANY, LLC, a Massachusetts limited liability
company (the "Seller"), and AMERICANN, INC., a Delaware corporation (the "Buyer"
or "Purchaser").
RECITALS
WHEREAS, Seller and Purchaser entered into that certain Purchase and Sale
Agreement dated as of January 9, 2015, for the purchase and sale of those
certain parcels of vacant land located at 1A & 0X Xxxxx Xxxx Xxxx, Xxxxxxxx,
Xxxxxxxxxxxxx, containing approximately 52.68 acres, which parcels are more
particularly described therein, as amended by a certain First Amendment to
Purchase and Sale Agreement dated as of March 30, 2015, as further amended by
that certain Second Amendment to Purchase and Sale Agreement dated as of May 4,
2015, as further amended by that certain Third Amendment to Purchase and Sale
Agreement dated as of May 6, 2015, as further amended by that certain Fourth
Amendment to Purchase and Sale Agreement dated as of August 25, 2015, as further
amended by that certain Fifth Amendment to Purchase and Sale Agreement dated as
of August 27, 2015, and as further amended by that certain Sixth Amendment to
Purchase and Sale Agreement dated as of December 22, 2015 (as so amended, the
"Agreement");
WHEREAS, the Seller has agreed to extend the Closing Date under the
Agreement in accordance with the terms herein;
WHEREAS, Seller and Purchaser desire to otherwise modify the terms of the
Agreement pursuant to the terms and conditions of this Amendment; and
NOW THEREFORE, in consideration of the mutual promises set forth herein,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto, intending to be legally
bound, hereby agree as follows:
1. Incorporation of Recitals; Definitions. The foregoing recitals are
incorporated herein. Capitalized terms not otherwise defined herein shall
have the meaning given such terms in the Agreement.
2. Closing Date. Section 6 of the Agreement is hereby deleted and replaced
with the following:
"The Deed of the Premises is to be delivered and the consideration paid at
the offices of Xxxxxxxx, Xxxxxxx & Xxxxxx, P.C., Xxx Xxxxxx Xxxxxx, Xxxxxx,
XX 00000, or such other location in the greater Boston area as may be
required by Buyer's mortgage lender, at 11:00 am (EST) on the date that is
the earlier of (a) five (5) business days following Buyer's receipt of the
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DPH Approval (as defined below), or (b) March 30, 2016 (the "Closing
Date"). It is agreed that time is of the essence of all provisions of this
Agreement. The date and time of delivery of the Deed is sometimes referred
to herein as the "Closing" or the "Closing Date."
As used herein, a "DPH Approval" shall mean, collectively, written
approvals by the Department of Health for the Commonwealth of
Massachusetts, as required by the laws of the Commonwealth of
Massachusetts, of the Purchaser's consulting agreement, development
agreement and lease agreement, each relating to the Purchaser's development
of the Premises for the cultivation of medical marijuana. Notwithstanding
the foregoing, the Buyer acknowledges and agrees that the failure by the
Buyer to timely receive DPH Approval shall not entitle the Buyer to a
return of the Deposit under the terms of the Agreement.
3. Extension Fee. As consideration for the extension of the Closing Date,
the Buyer shall, within two (2) business day from the date hereof, time
being of the essence, deliver to Seller a fee, which shall be considered
earned upon receipt and non-refundable to Buyer, of Fifty Thousand Dollars
($50,000) (the "Extension Payment"); provided, however, if the Buyer
performs all of its obligations under Section 16(B) of the Agreement and
the Closing occurs, then the Seller shall treat the Extension Payment as an
increase to the Purchase Price paid by the Buyer which shall then be
$4,150,000.00. Wiring instructions for the Seller are attached hereto as
Schedule A.
4. Ratification and No Further Amendment. As modified by this Amendment,
the Agreement is fully ratified, adopted and approved by the parties hereto
effective as of the date hereof. Except as expressly set forth herein, the
Agreement remains unmodified and in full force and effect.
5. Counterparts. This Amendment may be executed in multiple counterparts
each of which shall be deemed an original but together shall constitute one
and the same instrument.
6. Signatures. Handwritten signatures to this Amendment transmitted by
telecopy or electronic transmission (for example, through use of a Portable
Document Format or "PDF" file) shall be valid and effective to bind the
party so signing.
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IN WITNESS WHEREOF, Seller and Purchaser have executed and delivered this
Amendment as of the date first above written.
SELLER:
FREETOWN ACQUISITION COMPANY, LLC,
a Massachusetts limited liability company
By: /s/ Xxxxxxxx X. Xxxx
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Name: Xxxxxxxx X. Xxxx
Title: Vice President
PURCHASER:
AMERICANN, INC., a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Chief Executive Officer
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