LAND EXCHANGE AGREEMENT

Transcription

1 LAND EXCHANGE AGREEMENT This LAND EXCHANGE AGREEMENT (this Agreement ) is made this i day of february, 2017 (the Effective Date ) and is by and between the TOWN OF SOUTHBOROUGH, a Massachusetts municipal corporation acting by and through its Board of Selectmen with no personal liability (the Town ), and ST. MARK S SCHOOL OF SOUTHBOROUGH, INC., a Massachusetts nonprofit educational corporation duly established pursuant to M.G.L. c. 180, formerly known as the Trustees of St. Mark s School ( St. Mark s and together with the Town, the Parties or Party as the context may require). RECITALS WHEREAS, the Town is the owner of the following real property: (1) a parcel of land located at 0 School Street in Southborough, Massachusetts containing approximately 1.63 acres, more particularly described in Exhibit A attached hereto and commonly known as the Stump Dump (the School Street Property ), and (ii) a parcel of land located at 19 Main Street in Southborough, Massachusetts containing approximately 2.34 acres, more particularly described in Exhibit A and commonly known as the Public Safety uilding (the Main Street Property. together with the School Street Property, the Town Property ); WHEREAS, St. Mark s is the owner of the real property located at 36 Cordaville Road in Southborough, Massachusetts containing approximately 60 acres, more particularly described in Exhibit B attached hereto and commonly known as the St. Mark s Golf Course (the Course Property ); WHEREAS, St. Mark s intends to acquire the Town Property and the Town intends to acquire the Golf Course Property (the Land Exchange ) subject to the terms and conditions of this Agreement; and WHEREAS, the Parties intend to seek the necessary votes of the Southborough Town Meeting and a special act of the Massachusetts General Court to authorize and carry out the Land Exchange. TERMS Of AGREEMENT NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is acknowledged, the Parties agree as follows: ARTICLE 1 LAND EXCHANGE 1.1 Agreement to Exchange. In consideration of the mutual obligations of the Parties set forth in this Agreement, the Town hereby agrees to convey the Town Property to St. Mark s, and St. Mark s hereby agrees to convey the Golf Course Property to the Town, on the terms and conditions set forth in this Agreement. Client Matter/I 2385/00042/A DOCX[Ver 4] 1

2 ARTICLE 2 THE PARCELS 2.1 The Town Property. The Town Property includes all buildings, improvements and fixtures located on the Town Property and all rights, privileges and easements appurtenant to the Town Property owned by the Town, including, without limitation, all mineral, oil, gas and water rights relating to the Town Property, all rights to any land lying in the bed of any street, road or alley adjoining the Town Property and all strips and gores adjoining the Town Property. The conveyance of the Town Property does not include any personal property. 2.2 The Golf Course Property. The Golf Course Property includes all buildings, improvements and fixtures located on the Golf Course Property, if any, and all rights, privileges and easements appurtenant to the Golf Course Property owned by St. Mark s, including, without limitation, all mineral, oil, gas and water rights relating to the Golf Course Property, all rights to any land lying in the bed of any street, road or alley adjoining the Golf Course Property and all strips and gores adjoining the Golf Course Property. The conveyance of the Golf Course Property does not include any personal property, with the exception of those items identified in Exhibit C attached hereto. ARTICLE 3 EXCHANGE AND CLOSING COSTS 3.1 Exchange. The Parties agree that the consideration for the Town Property is the Golf Course Property, and the consideration for the Golf Course Property is (i) the Town Property, and (ii) the sum of Four Million Five Hundred Thousand Dollars (S4,500,000.OO)(the Partial Purchase Price ). 3.2 The Town s Closing Costs. At the Closing, the Town shall pay (i) the Partial Purchase Price, (ii) the recording charges for any instrument that releases or discharges any lien or other matter of record title as required by this Agreement on the Town Property, and (iii) fees and expenses of the Town s counsel. 3.3 St. Mark s Closing Costs. At the Closing, St. Mark s shall pay (i) recording charges for any instrument that releases or discharges any lien or other matter of record title as required by this Agreement on the Golf Course Property, and (ii) fees and expenses of St. Mark s counsel. 3.4 Closing Statement. St. Mark s shall prepare a draft closing statement at least two (2) days prior to the Closing Date reflecting the Parties closing costs and any necessary adj ustments(the Closing Statement ). Client Matter/12385/00042/A DOCX[Vec41 2

3 ARTICLE 4 CLOSING, CLOSING DATE AND DELIVERABLES 4.1 Closing. The consummation of the transaction contemplated by this Agreement (the Closing ) shall occur at 10:00 a.m. at the Worcester District Registry of Deeds (the Registry), or such other location as the Parties may agree, on a date that is sixty (60) days after the effective date of the Special Act described herein (the Closing Date ). It is agreed that time is of the essence with respect to the Closing Date and all time and date deadlines set forth in this Agreement. Notwithstanding the foregoing to the contrary, St. Mark s may extend the Closing Date to a date in the month of July following the originally scheduled Closing Date to allow St. Mark s to use the Golf Course property as a golf course through the end of the spring semester. 4.2 The Town s Closing Deliverables. On the Closing Date, the Town shall deliver, or cause to be delivered at the Town s expense, each of the following to St. Mark s: (a) A duly executed and acknowledged quitclaim deed conveying the Town Property to St. Mark s or St. Mark s nominee; (b) The Partial Purchase Price, subject to adjustment as provided in this Agreement, payable to St. Mark s by wire transfer; (c) Customary affidavits sufficient for St. Mark s title insurer to delete any exceptions for parties in possession and mechanic s or material men s liens from St. Mark s title insurance policy; (d) Evidence reasonably satisfactory to St. Mark s and St. Mark s title insurer of the Town s authority to convey the Town Property pursuant to this Agreement in form and substance reasonably satisfactory to St. Mark s and St. Mark s title insurer which shall include the necessary certificates for Town Meeting Votes; (e) (f) A counterpart original of the Closing Statement; and Keys to the improvements located on the Town Property. 4.3 St. Mark s Closing Deliverables. On the Closing Date, St. Mark s shall deliver, or cause to be delivered at St. Mark s expense, each of the following items to the Town: (a) A duly executed and acknowledged quitclaim deed conveying the Golf Course Property to the Town or the Town s nominee; (b) Customary affidavits sufficient for the Town s title insurer to delete any exceptions for parties in possession and mechanic s or material men s liens from the Town s title insurance policy; (c) Evidence reasonably satisfactory to the Town and the Town s title insurer of St. Mark s authority to convey the Golf Course Property pursuant to this Agreement in form and substance reasonably satisfactory to the Town and the Town s title insurer; CIent Matter/ /A DOCX[Ver 4] 3

4 (d) (e) A counterpart original of the Closing Statement: Keys to the improvements located on the Golf Course Property; and 38. (f) A Disclosure of Beneficial Interests in accordance with M.G.L. c. 7C, ARTICLE 5 POSSESSIONAND CONDITION OF THE PARCELS 5.1 Possession and Condition of the Parcels. Full possession of the Parcels free of all tenants and occupants, except as herein provided, is to be delivered at the Closing, said Parcels to be then (a) in the same condition as they now are, reasonable use and wear thereof excepted, and (b) not in violation of said building and zoning laws, and (c) in compliance with provisions of any instrument referred to in Article 6 hereof. The Parties shall be entitled to inspect the Parcels prior to the delivery of the deeds in order to determine whether the condition thereof complies with the terms of this Article. ARTICLE 6 TITLE AND SURVEY 6.1 Deed. The Parcels shall be conveyed by good and sufficient Massachusetts quitclaim deeds running to the Town or St. Mark s or to their nominee, as the case may be. The deeds shall convey good, clear, record and marketable title to the Town Property and the Golf Course Property, as the case may be, free from all encumbrances except for the following: (a) provisions of existing and future laws, regulations, restrictions, requirements, ordinances, resolutions and orders (including, without limitation, any relating to building, zoning and environmental protection) as to the use, occupancy subdivision or improvement of the applicable Parcel; (b) such real and personal property taxes for the then current tax period as are not due and payable on the Closing Date; (c) any liens for municipal betterments assessed after the Effective Date on the applicable Parcel by the municipality in which the applicable Parcel is located; and (d) those title and survey matters that the Parties agree, or are obligated to take title subject to, as set forth in this Article. 6.2 Golf Course Property Deed. Notwithstanding the forgoing, the deed conveying the Golf Course Property to the Town shall contain the following restrictions, running to the benefit of St. Mark s: (1) the Golf Course Property shall only be used for municipal purposes, provided, however that a municipal purpose cannot include the sale or lease of all or any portion of the Golf Course Property to third parties to provide revenue for the Town (this restriction does Client Matter/12385/00042/A DOCX[Ver 4} 4

5 not include nor effect the Town s ability to license or permit a third party entity from managing the golf course facilities on behalf of the Town), and (ii) at least fifty percent (50%) of the Golf Course Property shall remain as undeveloped land in perpetuity to the extent permitted by applicable law (the Restriction ).The Restriction shall be more particularly set forth in the Deed for the Golf Course Property and agreed upon by the parties prior to the Closing. 6.3 Title Commitment. The Parties may, at their expense, obtain an ALTA Title Insurance Commitment or other title report showing all matters affecting title to the applicable Parcel (the Title Document ). 6.4 Survey. The Parties may. at their expense, employ a surveyor or surveying firm, licensed in Massachusetts, to prepare a survey of the applicable Parcel (the Survey ). 6.5 Title Objections. Either Party may furnish to the other a written statement specifically identifying any liens, encumbrances, encroachments or other objections to the title to the Town Property or the Golf Course Property, as the case may be ( Title Objection Notice ). A copy of the Title Commitment and the Survey shall accompany the Title Objection Notice. The Party issuing the Title Objection Notice may not object to the matters set forth in Section 6.1(a) through Section 6.1(c), provided, however, that either Party may object to any Order of Conditions in the chain of title that is not accompanied by a Certificate of Compliance. If the Party entitled to receive a Title Objection Notice does not receive a Title Objection Notice on or before 5:00 PM on the St. Mark s Due Diligence Date or the Town s Due Diligence Date, as the case may be, then the issuing Party shall be deemed to have waived that Party s right to object to matters of title or matters of survey that were of record or in existence on the Effective Date. 6.6 Obligation to Cure. The Party receiving a Title Objection Notice shall remove those objections listed on the Title Objection Notice that (1) are mortgages or other liens created by, through or under the Party owning the applicable Parcel which secure solely the payment of a stated indebtedness, (ii) were voluntarily placed on the record title by the Party owning the applicable Parcel after the Effective Date, or (iii) may be removed solely by delivery of an affidavit of the Party owning the applicable Parcel. 6.7 Election to Cure. If objections appear on a Title Objection Notice that the Party receiving the Title Objection Notice is not obligated to remove pursuant to Section 6.6, then the Party receiving the Title Objection Notice, within seven (7) days of receipt of the Title Objection Notice, shall send written notice to the other Party indicating which, if any, of the remaining objections the Party receiving the Title Objection Notice has elected to eliminate prior to the Closing (the Title Cure Notice ). The Party receiving the Title Cure Notice, within (7) days of receipt of Title Cure Notice. shall either (i) elect to terminate this Agreement, or (ii) elect to accept title to the Town Property or the Golf Course Property, as the case may be, subject to the title and survey matters that the Party sending the Title Cure Notice has elected not to remove. If a Party fails to send the Title Cure Notice within said seven (7) day period, then the Party with the right to send the Title Cure Notice shall be deemed to have elected to remove none of the objections listed on the Title Objection Notice. Client Matter/12385/000421A DOCX[Ver4J 5

6 6.8 New Title and Survey Matters. Both Parties shall have the right to object to any title matters or survey matters that first arise afier the effective date of the Title Document or the Survey, as the case may be, in which case said matters shall be resolved in the manner set forth in this Article and, if required, the Closing Date shall be extended to provide the Parties with the time periods set forth above. ARTICLE 7 REPRESENTATIONS AND WARRANTIES OF THE TOWN 7.1 The Town s Representations and Warranties. The Town represents and warrants to St. Mark s as of the Effective Date as follows: (a) Leases. There are no leases, licenses, occupancy agreements or other rental agreements (written or verbal) that grant any possessory interest in and to any space situated on the Town Property; (b) Contracts. There are no service, maintenance, supply or management contracts affecting the Town Property that will survive the Closing and be binding on St. Mark s; (c) Ability to Perform. The Town has full power to execute, deliver and carry out the terms and provisions of this Agreement, the Town has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and the person signing this Agreement on behalf of the Town is authorized to do so; (d) No Impediments. There is no action, suit. arbitration, unsatisfied order or judgment, government investigation or proceeding pending against the Town which, if adversely determined, could individually or in the aggregate materially interfere with the consummation of the transactions contemplated by this Agreement; (e) Litigation. The Town has received no written notice of litigation affecting the Town Property or the Town s ability to fulfill its obligations under this Agreement, nor has any such action been threatened in writing; (f) Notices. The Town has not received any written notices that remain outstanding or unresolved relating to (i) any violation of any laws, ordinances, bylaws or other governmental regulations applicable to the Town Property, (ii) any pending or threatened condemnation proceedings regarding any portion of the Town Property, or (iii) any proposed changes to the zoning ordinance affecting the Town Property; (g) Information.(i) All information regarding the Town Property furnished by the Town to St. Mark s is true and correct in all material respects, (ii) the Town has not failed to furnish to St. Mark s any information which would be material to the ownership, operation or development by St. Mark s of the Town Property as it exists presently or at the Closing, and (iii) the Town has disclosed to St. Mark s in writing all material adverse information of which the Town is aware, if any, concerning the physical condition of the Town Property; Cilent Matter/12385/00042/A DOCX[Ver 4] 6

7 (h) Hazardous Materials. The Town has no knowledge of any Hazardous Materials which have been generated, stored, treated or disposed ol or otherwise deposited in, on or about the Town Property (including, without limitation, the surface and subsurface waters of the Town Property) and the Town has no knowledge of any substances or conditions in or on the Town Property which would support a claim or cause of action under a federal, state or local environmental statutes, regulations, ordinances or other environmental regulatory requirements. As used in this Agreement, Hazardous Materials means all chemicals, materials, substances, pollutants, contaminants and wastes, including, without limitation, oil, petroleum, petroleum containing substances, PCBs, asbestos containing materials, mold, mildew, fungus, microbial contaminants or pathogenic organisms or any other chemicals, materials, substances, pollutants, contaminants or wastes regulated under the Comprehensive Environmental Response Compensation and Liability Act of 1980, the Superfund Amendments and Reauthorization Act, the Resource Conservation and Recovery Act, Chapter 21E and Chapter 21C of the Massachusetts General Laws, all regulations promulgated under the foregoing and any other federal, state or local law, ordinance, bylaw or regulation applicable to the Parcels; and (i) Underground Storage Tanks. The Town has no knowledge of any underground storage tanks at the Town Property, either currently existing or previously abandoned. 7.2 Survival of the Town s Representations and Warranties. The representations and warranties of the Town set forth in this Agreement shall survive the Closing for a period of one (1) year. ARTICLE 8 REPRESENTATIONS AND WARRANTIES OF ST. MARK S 8.1 St. Mark s Representations and Warranties. St. Mark s represents and warrants to the Town as of the Effective Date as follows: (a) Leases. There are no leases, licenses, occupancy agreements or other rental agreements (written or verbal) that grant any possessory interest in and to any space situated on the Golf Course Property; (b) Contracts. There are no service, maintenance, supply or management contracts affecting the Golf Course Property that will survive the Closing and be binding on the Town; (c) Ability to Perform. St. Mark s has full power to execute, deliver and carry out the terms and provisions of this Agreement, St. Mark s has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and the person signing this Agreement on behalf of St. Mark s is authorized to do so; (d) No hnpediments. There is no action. suit, arbitration, unsatisfied order or judgment, government investigation or proceeding pending against St. Mark s which, if adversely determined, could individually or in the aggregate materially interfere with the consummation of the transactions contemplated by this Agreement; Client Mauer/12385/00042/A DOCX[Ver 4] 7

8 (e) Not a Foreign Person. St. Mark s is not a foreign person within the meaning of Section 1445(f)(3) of the Internal Revenue Code of 1986, as amended; (f) Litigation. St. Mark s has received no written notice of litigation affecting the Golf Course Property or St. Mark s ability to fulfill its obligations under this Agreement, nor has any such action been threatened in writing; (g) Notices. St. Mark s has not received any written notices that remain outstanding or unresolved relating to (i) any violation of any laws, ordinances, bylaws or other governmental regulations applicable to the Golf Course Property, (ii) any pending or threatened condemnation proceedings regarding any portion of the Golf Course Property, or (iii) any proposed changes to the zoning ordinance affecting the Golf Course Property; (h) Information. (1) All information regarding the Golf Course Property furnished by St. Mark s to the Town is true and correct in all material respects, (ii) St. Mark s has not failed to furnish to the Town any information which would be material to the ownership, operation or development by the Town of the Golf Course Property as it exists presently or at the Closing, and (iii) St. Mark s has disclosed to the Town in writing all material adverse information of which St. Mark s is aware, if any, concerning the physical condition of the Golf Course Property; (i) Hazardous Materials. St. Mark s has no knowledge of any Hazardous Materials which have been generated, stored, treated or disposed of, or otherwise deposited in, on or about the Golf Course Property (including, without limitation, the surface and subsurface waters of the Golf Course Property) and St. Mark s has no knowledge of any substances or conditions in or on the Golf Course Property which would support a claim or cause of action under a federal, state or local environmental statutes, regulations, ordinances or other environmental regulatory requirements; and (j) Underground Storage Tanks. St. Mark s has no knowledge of any underground storage tanks at the Golf Course Property, either currently existing or previously abandoned. 8.2 Survival of St. Mark s Representations and Warranties. The representations and warranties of St. Mark s set forth in this Agreement shall survive the Closing for a period of one (1) year. ARTICLE 9 OBLIGATIONS OF THE TOWN PRIOR TO CLOSING 9.1 No New Leases. The Town shall not enter into any lease for space on the Town Property. 9.2 Continuation of Contracts. The Town shall not modify or amend any existing service, maintenance, supply or management contracts or enter into any new service, Client Matter/12385/00042/A DOCX[Ver 4] 8

9 maintenance, supply or management contracts with respect to the Town Property unless the same are terminable without penalty prior to the Closing. 9.3 Maintenance of Insurance. The Town shall continue in force and effect until the Closing Date all policies of property and casualty insurance maintained by the Town with respect to the Town Property that are in existence on the Effective Date. Subject to Article 13, the risk of loss with respect to the Town Property shall remain vested in the Town until the Closing. 9.4 Continued Operation. Until the Closing Date, the Town (i) shall continue to operate and maintain the Town Property in a prudent manner consistent with current operating standards for the Town Property, and (ii) shall not make any material alterations to the Town Property. ARTICLE 10 OBLIGATIONS OF ST. MARK S PRIOR TO CLOSING 10.1 No New Leases. St. Mark s shall not enter into any lease for space on the Golf Course Property Continuation of Contracts. St. Mark s shall not modify or amend any existing service, maintenance, supply or management contracts or enter into any new service, maintenance, supply or management contracts with respect to the Golf Course Property unless the same are terminable without penalty prior to the Closing Maintenance of Insurance. St. Mark s shall continue in force and effect until the Closing Date all policies of property and casualty insurance maintained by St. Mark s with respect to the Golf Course Property that are in existence on the Effective Date. Subject to Article 13, the risk of loss with respect to the Golf Course Property shall remain vested in St. Mark s until the Closing Continued Operation. Until the Closing Date, St. Mark s (i) shall continue to operate and maintain the Golf Course Property in a prudent manner consistent with current operating standards for the Golf Course Property, and (ii) shall not make any material alterations to the Golf Course Property. ARTICLE 11 TOWN MEETING VOTES AND SPECIAL ACT 11.1 The obligation of the Parties to consummate the transaction contemplated by this Agreement is conditioned upon the following: (a) Town Meeting Votes. A valid vote or votes of the Southborough Town Meeting authorizing the Board of Selectmen to (i) dispose of all of the Town s interests in the Town Property, with any officer, board, or committee having custody of any of the Town Property having authorized such disposition, (ii) acquire the Golf Course Property in accordance Client Matter/12385/00042/A DOCX[Ver 41 9

10 with the terms of this Agreement, (iii) petition the Massachusetts General Court to enact a special act authorizing the Land Exchange under the terms and conditions of this Agreement notwithstanding the provisions of M.G.L. c. 30B, M.G.L. c. 6lB or any other general or special law to the contrary (the Special Act ), and (iv) obtain sufficient engineering and construction funding for the new public safety facility at 36 Cordaville Road, items (i), (ii), (iii) and (iv) of this subparagraph being the Town Meeting Votes. Court. (b) Special Act. Enactment of the Special Act by Massachusetts General 11.2 form of Special Act. The Town and St. Mark s agree to jointly draft the proposed text of the Special Act to be submitted prior to March 3, 2017 for approval by the General Court Vote Termination Date: F allure to obtain passage of the Town Meeting Votes or the Special Act or the Article 97 Special Act (as that term is defined below) by December 31, 2017 (the Vote Termination Date ) shall render this Agreement null and void without further recourse by either Party, unless such Vote Termination Date is extended by mutual agreement of the Parties. ARTICLE 12 CLOSING CONDITIONS 12.1 Conditions to the Town s Obligation to Close. The obligation of the Town to consummate the transaction contemplated by this Agreement is conditioned upon the following: (a) As of the Closing Date, St. Mark s shall have performed St. Mark s obligations under this Agreement and shall have tendered all deliverables to be made on or before the Closing. (b) The conveyance of the Town Property to St. Mark s occurs simultaneously with the conveyance of the Golf Course Property to the Town. (c) (d) Town Meeting Votes. The Town obtaining the Town Meeting Votes and the Special Act The Town obtaining a successful ballot initiative in furtherance of the (e) The Town obtaining (I) a valid vote or votes of the Southborough Town Meeting authorizing the Board of Selectmen to petition the Massachusetts General Court to enact a special act pursuant to Article 97 of the Massachusetts Constitution to transfer the Main Street Property to St. Mark s as set forth in this Agreement (the Article 97 Special Act ), and (ii) enactment of the Article 97 Special Act by the Massachusetts General Court Conditions to St. Mark s Obligation to Close. The obligation of St. Mark s to consummate the transaction contemplated by this Agreement is conditioned upon the following: Client Matterfl2385/00042/A DOCX[Vet 4] 10

11 Town Golf (a) The Town having performed the Town s obligations under this Agreement and shall have tendered all deliverables to be made on or before Closing. (b) The conveyance of the Town Property to St. Mark s occurs simultaneously with the conveyance of the Golf Course Property to the Town. (c) (d) Town Meeting Votes. (e) The Town obtaining the Town Meeting Votes and the Special Act. The Town obtaining a successful ballot initiative in furtherance of the The Town obtaining the Article 97 Special Act. ARTICLE 13 RISK OF LOSS 13.1 Casualty Property. If, prior to the Closing, a material part of the structure on the Town Property is destroyed or damaged by fire or other casualty, then the Town shall promptly notify St. Mark s of such fact and the Town, at the Town s expense, shall demolish the structure on the Town Property and remove all demolition debris from the Town Property in accordance with all applicable laws and codes at the Town s expense. F or the purposes of this Section 12.1, a material part of the structure on the Town Property shall mean a part of the structure as shall have a value, as reasonably determined by St. Mark s, in excess of $100,000. If there is damage to or destruction of less than a material part of the structure on the Town Property by fire or other casualty, then the Closing shall proceed as contemplated by this Agreement without demolition or reimbursement, provided, however, (1) the Town shall secure the structure on the Town Property as required by applicable laws and codes, and (ii) the Town shall pay any insurance proceeds received by the Town to St. Mark s and pay to St. Mark s any restoration costs not covered by insurance Casualty Course Property. If, prior to the Closing, a material part of the structure on the Golf Course Property is destroyed or damaged by fire or other casualty, then St. Mark s shall promptly notify the Town of such fact and St. Mark s, at St. Mark s expense, shall either demolish the structure on the Golf Course Property and remove all demolition debris from the Golf Course Property in accordance with all applicable laws and codes at St. Mark s expense, or reimburse the Town for said costs. For the purposes of this Section 12.2, a material part of the structure on the Golf Course Property shall mean a part of the structure as shall have a value, as reasonably determined by the Town, in excess of $100,000. If there is damage to or destruction of less than a material part of the structure on the Golf Course Property by fire or other casualty, then the Closing shall proceed as contemplated by this Agreement without demolition or reimbursement, provided, however, (i) St. Mark s shall secure the structure on the Golf Course Property as required by applicable laws and codes, and (ii) St. Mark s shall pay any insurance proceeds received by St. Mark s to the Town and pay to the Town any restoration costs not covered by insurance. Client.{atter/I2385/OOO42/A DOCX[Ver 4] 11

12 Town Golf 13.3 Eminent Domain Property. If, prior to the Closing, all or any significant portion of the Town Property is taken by eminent domain (or is the subject of a pending taking which has not yet been consummated) by any entity, then the Town shall notify St. Mark s of such fact and St. Mark s shall have the right to terminate this Agreement by giving written notice to the Town not later than ten (10) days after the giving of the Town s notice. For the purposes of this Section 13.3, a significant portion of the Town Property shall mean such a portion of the Town Property as shall have a value, as reasonably determined by St. Mark s, in excess of $50,000. If St. Mark s elects not to terminate this Agreement, or if anything less than a significant portion of the Town Property is taken by eminent domain (or becomes the subject of a pending taking), then the Town shall assign to St. Mark s (without recourse) at the Closing the right of the Town to the awards, if any, for the taking, and St. Mark s shall be entitled to receive and keep all awards for the taking of the Town Property Eminent Domain Course Property. if, prior to the Closing, all or any significant portion of the Golf Course Property is taken by eminent domain (or is the subject of a pending taking which has not yet been consummated) by any entity other than the Town, then St. Mark s shall notify the Town of such fact and the Town shall have the right to terminate this Agreement by giving written notice to St. Mark s not later than ten (10) days after the giving of St. Mark s notice. for the purposes of this Section 13.4, a significant portion of the Golf Course Property shall mean such a portion of the Golf Course Property as shall have a value, as reasonably determined by St. Mark s, in excess of $50,000. If the Town elects not to terminate this Agreement, or if anything less than a significant portion of the Golf Course Property is taken by eminent domain (or becomes the subject of a pending taking), then St. Mark s shall assign to the Town (without recourse) at the Closing the right of St. Mark s to the awards, if any, for the taking, and the Town shall be entitled to receive and keep all awards for the taking of the Golf Course Property. ARTICLE 14 RIGHT TO EXTEND; DEFAULT 14.1 St. Mark s Extension. If St. Mark s shall be unable to give title, make conveyance, deliver possession or make the Golf Course Property conform to the provisions of this Agreement, then the Closing Date shall be extended for a period of up to sixty (60) days as determined by St. Mark s in a written notice delivered to the Town prior to the Closing Date (the St. Mark s Extended C1osin Date ). During the extended time, St. Mark s shall use reasonable efforts to remove any objections in title, deliver possession or make the Golf Course Property conform to the provisions of this Agreement, as the case may be. St. Mark s reasonable efforts with respect to the foregoing sentence shall not require St. Mark s to expend more than $10,000. If St. Mark s is unable to give title, make conveyance, deliver possession or make the Golf Course Property conform to the provisions of this Agreement by the St. Mark s Extended Closing Date, then the Town may elect on the St. Mark s Extended Closing Date to either (i) accept such title as St. Mark s can deliver to the Golf Course Property in its then condition, or (ii) terminate this Agreement. Client Matter/l235/OOO42IA DOCX[Ver 4] 12

13 14.2 St. Mark s Default. If St. Mark s defaults in its obligation to close as contemplated by this Agreement, then the Town s sole and exclusive remedy at law and in equity shall be to terminate this Agreement The Town s Extension. If the Town shall be unable to give title, make conveyance, deliver possession or make the Town Property conform to the provisions of this Agreement, then the Closing Date shall be extended for a period of up to sixty (60) days as determined by the Town in a written notice delivered to St. Mark s prior to the Closing Date (the The Town Extended Closing Date ). During the extended time, the Town shall use reasonable efforts to remove any objections in title, deliver possession or make the Town Property conform to the provisions of this Agreement, as the case may be. The Town s reasonable efforts with respect to the foregoing sentence shall not require the Town to expend more than $10,000. If the Town is unable to give title, make conveyance, deliver possession or make the Town Property conform to the provisions of this Agreement by the Town Extended Closing Date, then St. Mark s may elect on the Town Extended Closing Date to either (i) accept such title as the Town can deliver to the Town Property in its then condition, or (ii) terminate this Agreement The Town Default. If the Town defaults in its obligation to close as contemplated by this Agreement, then St. Marks s sole and exclusive remedy at law and in equity shall be to terminate this Agreement. ARTICLE 15 NOTICES 15.1 Notices. Any notices required or permitted to be given under this Agreement shall be given in writing and shall be delivered (i) by certified mail, postage prepaid, return receipt requested, (ii) by a commercial overnight courier that guarantees next day delivery and provides a receipt, or (iii) by electronic mail (with a hard copy sent by certified mail or by overnight courier), by 5:00 p.m. on the day such notice is required to be given, and such notices shall be addressed as follows: To the Town: To St. Mark s: Aldo A. Cipriano, Esq. Town Counsel 277 Main Street Marlborough, MA aldoc.esq@comcast.net Todd Helwig. Esq. Mirick O Connell 1800 West Park Drive, Suite 400, Westborough, MA thelwigmirickoconnell.com or to such other address as either Party may from time to time specify in writing to the other Party. Any notice shall be effective when sent, provided that the sender has evidence of Client Matter/ /A DOCX[Ver 4] 1 3

14 delivery, which may include written receipt, written evidence of attempted delivery or confirmation of receipt. ARTICLE 16 DISCLAIMERS AND WAIVERS 16.1 No Reliance by St. Mark s. Except as expressly stated in this Agreement, the Town makes no representation or warranty as to the truth, accuracy or completeness of any materials, data or information delivered by the Town or its agents to St. Mark s in connection with the transaction contemplated by this Agreement. St. Mark s acknowledges and agrees that all materials, data and information delivered by the Town to St. Mark s in connection with the transaction contemplated by this Agreement are provided to St. Mark s as a convenience only and that any reliance on or use of such materials, data or information by St. Mark s shall be at the sole risk of St. Mark s, except as otherwise expressly stated in this Agreement Disclaimers by the Town. Except as expressly set forth in this Agreement, St. Mark s agrees that the Town 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 Town 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 Town Property with laws, the truth, accuracy or completeness of the documents or any other information provided by or on behalf of the Town to St. Mark s, or any other matter or thing regarding the Town Property. St. Mark s acknowledges and agrees that at the Closing the Town shall convey to St. Mark s and St. Mark s shall accept the Town Property as is, where is, and with all faults, except to the extent expressly provided otherwise in this Agreement. St. Mark s has not relied and will not rely on, and the Town is not liable for or bound by, any express or implied warranties, guaranties, statements, representations or information pertaining to the Town Property or relating to the same made or furnished by the Town, unless specifically set forth in this Agreement. At the Closing, St. Mark s 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 St. Mark s investigations, and St. Mark s, upon Closing, shall be deemed to have waived, relinquished and released the Town 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 St. Mark s might have asserted or alleged against the Town 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 environmental laws) and any and all other acts, omissions, events, circumstances or matters regarding the Town Property. St. Mark s agrees that should any cleanup, remediation or removal of Hazardous Materials or other environmental conditions on the Town 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, St. Mark s and that St. Mark s shall have no claim, including, without limitation, any statutory claims or claims for contribution or joint liability, against the Town. Client Mattec/12385i00042/M DOCX[Ver 4] 14

15 16.3 No Reliance by the Town. Except as expressly stated in this Agreement, St. Mark s makes no representation or warranty as to the truth, accuracy or completeness of any materials, data or information delivered by St. Mark s or its agents to the Town in connection with the transaction contemplated by this Agreement. The Town acknowledges and agrees that all materials, data and information delivered by St. Mark s to the Town in connection with the transaction contemplated by this Agreement are provided to the Town as a convenience only and that any reliance on or use of such materials, data or information by the Town shall be at the sole risk of the Town, except as otherwise expressly stated in this Agreement Disclaimers by St. Mark s. Except as expressly set forth in this Agreement, the Town agrees that St. Mark s 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 Golf Course 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 Golf Course Property with laws, the truth, accuracy or completeness of the documents or any other information provided by or on behalf of St. Mark s to the Town, or any other matter or thing regarding the Golf Course Property. The Town acknowledges and agrees that at the Closing St. Mark s shall convey to the Town and the Town shall accept the Golf Course Property as is, where is, and with all faults, except to the extent expressly provided otherwise in this Agreement. The Town has not relied and will not rely on, and St. Mark s is not liable for or bound by, any express or implied warranties, guaranties, statements, representations or information pertaining to the Golf Course Property or relating to the same made or furnished by St. Mark s, unless specifically set forth in this Agreement. At the Closing, the Town 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 the Town s investigations, and the Town, upon Closing, shall be deemed to have waived, relinquished and released St. Mark s 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 the Town might have asserted or alleged against St. Mark s 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 environmental laws) and any and all other acts, omissions, events, circumstances or matters regarding the Golf Course Property. The Town agrees that should any cleanup, remediation or removal of Hazardous Materials or other environmental conditions on the Golf Course 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, the Town and that the Town shall have no claim, including, without limitation, any statutory claims or claims for contribution or joint liability, against St. Mark s Effect and Survival of Disclaimers. St. Mark s and the Town agree that the provisions of this Article 16 shall survive the Closing. Client Matter/ /A DOCXtVer4] 1 5

16 ARTICLE 17 HOLDOVER 17.1 Holdover. The Town may remain on the Main Street Property for the period commencing on the Closing Date and ending on the earlier of (i) the date that the Town notifies St. Mark s that it has vacated the Main Street Property, or (ii) thirty-six (36) months after the Closing Date (the Holdover Period ) on the following terms and conditions: (a) Holdover Costs. During the Holdover Period, the Town shall pay all costs and expenses associated with the Town s use of the Main Street Property, including, but not limited to, the payment of all utility costs and real estate taxes. St. Mark s shall not be obligated to (1) pay any cost or expense associated with the Main Street Property during the Holdover Period, or (ii) maintain a property insurance policy on the building located on the Main Street Property. (b) Obligations of the Town. During the Holdover Period (or at the expiration of the Holdover Period as applicable), the Town agrees: (i) (ii) (iii) (iv) (v) (vi) To maintain the Main Street Property at the Towns expense in substantially the same condition as at the time the Holdover Period began, fire, other casualty and reasonable wear and tear excepted; To pay for all heat, water and utilities furnished to the Main Street Property; To assume the risk of loss with respect to all personal property the Town at the Main Street Property; That if any of the Town s personal property is damaged by any cause, no part of the loss will be charged to St. Mark s; To the maximum extent permitted by law, that the Town will occupy the Main Street Property at the Town s own risk, and that St. Mark s will not be liable to the Town. or to any person claiming or admitted to the Main Street Property through the Town, for injury or death to persons, or loss or damage to property of any nature whatsoever; To the maximum extent permitted by law, to defend, indemnify and hold harmless St. Mark s against any claim for personal injury, bodily injury or death, or loss or damage to property, including legal fees and expenses, incurred by the Town or any person claiming or admitted to the Main Street Property through the Town; of Client Matter/12385/000421A DOCX[Ver 4] 1 6

17 (vii) To remove from the Main Street Property, at the Town s sole cost, liability, and expense,(i) all personal property, trucks, trailers and automotive parts and materials, and (ii) otherwise deliver the Main Street Property to St. Mark s in broom-clean condition; (viii) Provide St. Mark s with the insurance listed on Exhibit B; (ix) (x) (xi) (xii) (xiii) (xiv) (xv) To maintain the septic system serving the Main Street Property in the ordinary course and provide at the Closing any certification required by Title 5 of the State Environmental Code; To use the Main Street Property as a municipal public safety facility, and for no other purpose (the Permitted Use ); To comply with all laws applicable to the Town s use an occupancy of the Main Street Property; To not allow any liens for unpaid work or materials to attach to the Main Street Property; To not use, generate, dispose of or store any hazardous materials at the Main Street Property except as reasonably required by the Permitted Use and then only in accordance with all applicable laws; To not allow the use or occupancy of any portion of the Main Street Property by any other person or entity; and To permit access to the Main Street Property by St. Mark s and St. Mark s employees and contractors following reasonable notice Extended Holdover Period. Provided that the Town can demonstrate that the Town is using good faith and diligent efforts to permit and construct a new public safety facility on the Golf Course Property, then the Town shall have the right to extend the Holdover Period for an additional period not to exceed thirty-six (36) months. Not later than six (6) months prior to the end of the Holdover Period, the Town may provide notice to St. Mark s exercising the Town s right to extend the Holdover Period. The Town s exercise notice shall state the amount of additional time that the Town needs to remain on the Main Street Property, provided, however, the time shall not exceed thirty-six (36) months (the Extended Holdover Period ). The Extended Holdover Period shall be on the same terms and conditions as the Holdover Period, except that the Town shall pay to St. Mark s as rent the sum of Ten Thousand Dollars ($10,000) per month, with partial months pro-rated, due and payable on the first day of each month during the Extended Holdover Period Demolition Delay. The Parties acknowledge that it is the intent of St. Mark s to demolish the structures located on the Town Property and that said demolition is a primary reason for St. Mark s entering into this Agreement. The Town represents and warrants to St. Mark s that as of the Effective Date no structure located on the Town Property is subject to the Client Matter112385i00042/A DOCX[Ver 4] 17

18 Town of Southborough Demolition Delay Bylaw (the Delay Bylaw ). If St. Mark s is prevented from demolishing any structure on the Town Property due to the operation of the Delay Bylaw, as the same may exist on the Effective Date or may be amended after the Effective Date, then the Town shall pay St. Mark s the sum of $15,000 per month that St. Mark s is so prevented from demolishing any one or more structures on the Town Property, prorated for any partial month Survival. The provisions of this Article 17 shall survive the Closing. ARTICLE 18 ROLL-BACK TAXES 18.1 Set-Off Against Roll-Back Taxes. As authorized by the Special Act, in consideration of St. Mark s agreeing to pay the costs to demolish and dispose of the Public Safety Building located on the Main Street Property (the Demolition Costs ), the Town hereby agrees that the Demolition Costs shall be set off against any roll-back taxes owed to the Town by St. Mark s pursuant to M.G.L. c. 61B with respect to the Golf Course Property. Any remaining rollback taxes due, as may be determined by the Southborough Board of Assessors, will not be due until the demolition is complete and all Demolition Costs have been paid, as evidenced by documentation of such Demolition Costs by St. Mark s. The Town estimates that the Rollback Taxes will be $310, Survival. The provisions of this Article 18 shall survive the Closing. ARTICLE 19 INVESTIGATIONS 19.1 St. Mark s Investigations. Subject to the terms of this Agreement, St. Mark s may perform a due diligence investigation of the Town Property, and in this regard St. Mark s shall have the full opportunity to (i) inspect, take measurements, conduct surveys and perform tests, (ii) show the Town Property to contractors, architects, surveyors, engineers, insurers, banks and other lenders and investors, and (iii) make legal, financial, zoning, engineering, accounting and other reviews or investigations of the Town Property. Notwithstanding the foregoing to the contrary, St. Mark s shall not perform any soil or groundwater testing for the presence of Hazardous Materials without the prior written approval of the Town, which approval shall not be unreasonably or untimely withheld. St. Mark s shall immediately at the conclusion of its investigation restore the Town Property to as near the condition which existed immediately prior to the investigations as is reasonably possible, including replacing paving and landscaping. St. Mark s, its employees, agents, contractors, subcontractors, consultants and other representatives shall take all reasonable precautions to minimize the impact of St. Mark s investigations on the Town Property Town Investigations. Subject to the terms of this Agreement, the Town may perform a due diligence investigation of the Golf Course Property, and in this regard the Town shall have the full opportunity to (i) inspect, take measurements, conduct surveys and perform Client Mafler/ /AJ DOCX[Ver 4] 1 8

19 tests, (ii) show the Golf Course to contractors, architects, surveyors, engineers, insurers, banks and other lenders and investors, and (iii) make legal, financial, zoning, engineering, accounting and other reviews or investigations of the Golf Course Property. Notwithstanding the foregoing to the contrary, the Town shall not perform any soil or groundwater testing for the presence of Hazardous Materials without the prior written approval of St. Mark s, which approval shall not be unreasonably or untimely withheld. The Town shall immediately at the conclusion of its investigation restore the Golf Course Property to as near the condition which existed immediately prior to the investigations as is reasonably possible, including replacing paving and landscaping. The Town, its employees, agents, contractors, subcontractors, consultants and other representatives shall take all reasonable precautions to minimize the impact of the Town s investigations on the Golf Course Property St. Mark s Termination. If St. Mark s investigations of the Town Property are not satisfactory to St. Mark s, in St. Mark s sole and absolute discretion, then St. Mark s may terminate this Agreement by written notice delivered to the Town not later than 5:00 p.m. on March 3, 2017 (the St. Mark s Due Diligence Date ). If St. Mark s shall not have terminated this Agreement by written notice delivered to the Town on or before 5:00 p.m. on the St. Mark s Due Diligence Date, then St. Mark s shall have no right to terminate this Agreement pursuant to this Section. Notwithstanding the foregoing to the contrary, St. Mark s has the right to extend the St. Mark s Due Diligence Date for a period of up to sixty (60) days by delivering written notice to the Town prior to the expiration of the initial St. Mark s Due Diligence Date, provided, however, St. Mark s may only exercise said extension if St. Mark s environmental consultant recommends additional environmental testing Town s Termination. If the Town s investigations of the Golf Course Property are not satisfactory to the Town, in the Town s sole and absolute discretion, then the Town may terminate this Agreement by written notice delivered to the St. Mark s not later than 5:00 p.m. on March 3, 2017 (the Town s Due Diligence Date ). If the Town shall not have terminated this Agreement by written notice delivered to St. Mark s on or before 5:00 p.m. on the Town s Due Diligence Date, then the Town shall have no right to terminate this Agreement pursuant to this Section. Notwithstanding the foregoing to the contrary, the Town has the right to extend the Town s Due Diligence Date for a period of up to sixty (60) days by delivering written notice to St. Mark s prior to the expiration of the initial Town s Due Diligence Date, provided, however, the Town may only exercise said extension if the Town s environmental consultant recommends additional environmental testing Access. Investigations permitted under this Agreement shall be done at reasonable times and after twenty-four (24) hours prior notice (which may be verbal) to the other Party. Prior to access, the party seeking access shall provide evidence of insurance to the other Party and said insurance shall be on commercially reasonable terms and name the other Party as an additional insured Property Documents. Within fourteen (14) days after the Effective Date, and from time to time thereafter upon request, St. Mark s shall deliver to the Town all documents in St Mark s possession regarding the Golf Course Property, including, but not limited to, title reports, structural reports, environmental reports and surveys. Within fourteen (14) days after the Effective Date, and from time to time thereafter upon request, the Town shall deliver to St. Client Matter/I 2385/000421A DOCX[Ver4] 1 9

20 and and Mark s all documents in the Town s possession regarding the Town Property, including, but not limited to, title reports, structural reports, environmental reports and surveys St. Mark s Indemnification and Release of Liability. St. Mark s agrees that access to the Town Property is done at St. Mark s own risk, responsibility and liability. St. Mark s releases the Town and further shall cause its contractors, subcontractors and agents to indemnify the Town from and against any and all liability or responsibility for any loss, injury, claim or damage to human beings, fixtures or other personal property (including, but not limited to, personal/bodily injury, wrongful death, and property damage including reasonable attorneys fees, costs and expenses) arising from and/or related to, in whole or in part, any act, conduct or omission by St. Mark s, its agents, servants, employees and contractors while at the Town Property The Town s Indemnification and Release of Liability. The Town agrees that access to the Golf Course Property is done at the Town s own risk, responsibility and liability. The Town releases St. Mark s and further shall cause its contractors, subcontractors and agents to indemnify St. Mark s from and against any and all liability or responsibility for any loss, injury, claim or damage to human beings, fixtures or other personal property (including, but not limited to, personal/bodily injury, wrongful death, and property damage including reasonable attorneys fees, costs and expenses) arising from and/or related to, in whole or in part, any act, conduct or omission by the Town its agents, servants, employees and contractors while at the Golf Course Property Survival. The provisions of the Article 19 shall survive the Closing or the earlier termination of this Agreement. ARTICLE 20 MISCELLANEOUS PROVISIONS 20.1 Assignment. Neither Party may assign its rights, obligations or interest in this Agreement to any other person or entity without first obtaining the prior written consent of the other Party, which consent may be given or withheld in that Party s sole discretion Integration. This Agreement embodies and constitutes the entire understanding between the Parties with respect to the transaction contemplated by this Agreement, and all prior agreements, understandings, representations and statements, oral or written, are merged into this Agreement. Neither this Agreement nor any provision of this Agreement may be waived, modified, amended, discharged or terminated except by an instrument signed by the Party against whom the enforcement of such waiver, modification. amendment, discharge or termination is sought, and then only to the extent set forth in such instrument No Recording. Neither Party shall record this Agreement or any memorandum of this Agreement. Client Matter/123$5/00042/A DOCX[Ver4] 20

21 20.4 Captions. The captions in this Agreement are inserted for convenience of reference only and in no way define, describe or limit the scope or intent of this Agreement or any of the provisions of this Agreement Drafts. This Agreement shall not be binding or effective until properly executed and delivered by both St. Mark s and the Town Number and Gender. As used in this Agreement, the masculine shall include the feminine and neuter, the singular shall include the plural and the plural shall include the singular, as the context may require Attachments. If the provisions of any schedule or rider to this Agreement are inconsistent with the provisions of this Agreement, the provisions of such schedule or rider shall prevail. All attached schedules are hereby incorporated as integral parts of this Agreement Further Assurances. Each Party agrees that it will without further consideration execute and deliver such other documents and take such other action, whether prior or subsequent to Closing, as may be reasonably requested by the other Party to consummate more effectively the purposes or subject matter of this Agreement Counterparts. This Agreement may be executed in counterparts, and all such executed counterparts shall constitute the same agreement. It shall be necessary to account for only one such counterpart in proving this Agreement. The transmission of a signed counterpart of this Agreement by portable document format (.pdf) shall have the same force and effect as delivery of an original signed counterpart of this Agreement and shall constitute valid and effective delivery for all purposes of this Agreement Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Agreement shall nonetheless remain in full force and effect so long as the intent of the parties can be reasonably accomplished thereby No Third Party Beneficiaries. The provisions of this Agreement and of the documents to be executed and delivered at Closing are and will be for the benefit of St. Mark s and the Town only and are not for the benefit of any third party. Accordingly, no third party shall have the right to enforce the provisions of this Agreement or of the documents to be executed and delivered at the Closing Construction. The Parties acknowledge that the Parties and their counsel have reviewed and revised this Agreement and that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting Party shall not be employed in the interpretation of this Agreement or any exhibits or amendments to this Agreement Termination of Agreement. The parties understand and agree that if either the Town or St. Mark s terminates this Agreement pursuant to a right of termination granted in this Agreement, such termination shall operate to relieve St. Mark s and the Town from all obligations under this Agreement, except for such obligations that expressly survive the termination of this Agreement. Client Mauerrl23S5,000421A DOCX[Ver 4] 21

22 20.16 Merger. Except as otherwise specifically provided in this Agreement, the provision in which time is an element Time of the Essence. Time is of the essence of this Agreement and of each Client Marter/12385/00042/A DOCXt Ver 4J 22 WAIVE ANY AND ALL RIGHT TO A TRIAL BY JURY 1N ANY ACTION OR PROCEEDING BROUGHT IN CONNECTION WITH THIS AGREEMENT AND ALL MATTERS CONTEMPLATED BY THIS AGREEMENT WAIVER OF JURY TRIAL. THE TOWN AND ST. MARK S HEREBY the full performance and discharge of every obligation to be performed under this Agreement. delivery and the acceptance of the respective deeds by St. Mark s and the Town shall be deemed accordance with, the laws of the Commonwealth of Massachusetts Governing Law. This Agreement shall be governed by, and construed in

23 proceeding to litigation. (SIGNA TURES ON NEXT PA GEl Client Matter/12385/00042/A DOCX(Ver 4] Mediation. The Parties agree to resort to non-binding arbitration on any issue of dispute as to the terms of this Agreement or any other matter related to this transaction before

24 The parties have executed this instrument under seal as of the Effective Date. ST. MARK S St. Mark s School of Southborough, Inc. f/k/a the Trustees of St. Mark s School By: LL ( 4Ya-4 Name: y i-f C. Li / V 4) Title: P F C /4 a ( Hereunto duly authorized. THE TOWN: Town of Southborough by its Board Selectmen t4 Brian E. Shea, Chairman Bonnie J$ianeuf Vice kthtperson Jo1f9F. Rooney, Bo5Member aul Cimin. oard Member Daniel L. Kolenda, Board Member Client Matter/I /A DOCX[Vcr4] 24

25 EXHIBIT A The Town Property The land with any structures thereon known as and numbered 19 Main Street. Southborough, Worcester County, Massachusetts containing 2.34 acres more or less owned by the Town of Southborough being the same parcel shown on the most recent Assessor s Maps of the Town as Map 54, Lot 26 together with another parcel of land with any structures thereon known as and numbered 0 School Street, Southborough, Worcester County, Massachusetts containing 1.63 acres more or less owned by the Town of Southborough being the same parcel shown on the most recent Assessor s Maps of the Town known as Map 65, Lot 10. Client Matter/I 23$5/OOO42/A35376g2DOCX[Ver4 25

26 The land with any structures thereon known as and numbered 36 Cordaville Road, Southborough. owned by Trustees of St. Mark s School now known as St. Mark s School of $outhborough, Inc. Worcester County, Massachusetts containing 217,800 square feet (60 acres) and more or less The Golf Course Property Client Mattec1l2385f000421A35376g2 DOCX(Ver4] 26 For Seller s Title, see deed recorded in Worcester Registry of Deeds in Book 2318 at Page 257 and Assessors Map, Map 45. Parcel 277. EXifiBIT B

27 EXHIBIT C The Golf Course Personal Property None Client Mafter/12385/00042/A DOCX[Ver.4] 27

28 EXHIBIT U Insurance Requirements To be agreed upon by the parties prior to the Closing. Client Matter/12385/00042/A DOCX[Ver 4] 28

29 . St. Marks obligation to provide the Management Agreement Assignment is Property ); the Parties or Party as the context may require). formerly known as the Trustees of St. Mark s School ( St. Mark s and together with the Town, FIRST AMENDMENT TO LAND EXCHANGE AGREEMENT Cflcnt Matter/i 235/COO42/A3B46756.DOCXWe,;4J end: except as set forth in Section 4.3(g). 5. Section 10.2 of the Agreement is hereby amended by adding the following at the end: except as set forth in Section 4.3(g). 4. Section 8.1(b) of the Agreement is hereby amended by adding the following at the writing, at least thirty (30) days prior to the Closing, of its desire for the date of the Closing. any cost associated with Management Agreement Assignment arising after the ( Management Agreement Assignment ) in the form attached hereto as Exhibit expressly contingent upon the following: (1) the Town shall notif St. Mark s in Golf Course Property by and between St. Marks and St. Mark s Golf Club, Inc. Management Agreement Assignment; and (2) the Town shall be responsible for (g) An assignment of the Management and Maintenance Agreement for the section 4.3(g): 3. Section 4.3 of the Agreement is hereby amended by adding the following new forty-nine Thousand Dollars ($4,949,000.00). Hundred Thousand Dollars ($4,500,000.00) and replacing it with Four Million Nine Hundred 2. Section 3.1 of the Agreement is hereby amended by deleting Four Million Five land located at 19 Main Street in Southborough, Massachusetts containing WHEREAS, the Town is the owner of the following real property: a parcel of approximately 2.34 acres, more particularly described in Exhibit A and commonly known as the Public Safety Building (the Main Street Property or the Town the following: 1. The first Recital of the Agreement is hereby deleted in its entirety and replaced by NOW THEREFORE, the Town and St. Mark s agree as follows: WHEREAS, the Town and St. Mark s wish to amend the Agreement. February 13, 2017 ( Agreement ); and WHEREAS, the Town and St. Mark s entered into a Land Exchange Agreement dated a Massachusetts nonprofit educational corporation duly established pursuant to M.G.L. c. 180, This First Amendment to Land Exchange Agreement (this Amendment ) effective this 28th day of July, 2017, is entered into by and between the TOWN OF SOUTHBOROUGH, a Massachusetts municipal corporation acting by and through its Board of Selectmen with no personal liability (the Town ), and ST. MARK S SCHOOL OF SOUTHBOROUGH, INC.,

30 6. Exhibit A of the Agreement is hereby deleted in its entirety and replaced by the following: The land with any structures thereon known as and numbered 19 Main Street, $outhborough, Worcester County, Massachusetts containing 2.34 acres more or less owned by the Town of Southborough being the same parcel shown on the most recent Assessor s Maps of the Town as Map 54, Lot 26. effect. Apart from the amendments set forth above, the Agreement remains in full force and [SIGNATURES FOLLOW ON NEXT PAGE] Client Matter/I 2S5/OOO42IM$46756.DOCXtVer:4J

31 The parties have executed this instrument under seal as of the Effective Date. ASSIGNOR: St. Mark s School of Southborough, Inc. f/k/a The Trustees of St. Mark s School hereunto duly authorized ASSIGNEE: Town of Southborough, by its Board of Selectmen By: Name: nr Th Daniel L. Kolenda, Chairman Title: C nc3lc\ c Brian E. Shea, Vice Chairman Lisa M. Braccio, BoiMember CUeN Matter!l2385NOO42iA3g46756DOCXtVr:4J

32 EXHIBIT A Assignment of Management and Maintenance Agreement CIien Matter/I 23S5/OOO42fA DOCXfVer:4)

33 ASSIGNMENT AND ASSUMPTION OF MANAGEMENT AND MAINTENANCE AGREEMENT This ASSIGNMENT AND ASSUMPTION OF MANAGEMENT AND MArNTENANCE AGREEMENT (this Agreement ) is made and entered into as of 2017, by and between ST. MARK S SCHOOL OF SOUTHBOROUGH, INC., a Massachusetts nonprofit educational corporation duly established pursuant to M,G.L. c. 180, formerly known as the Trustees of St. Mark s School ( Assignor ), and the TOWN OF SOUTHBOROUGH, a Massachusetts municipal corporation acting by and through its Board of Selectmen with no personal liability ( Assignee ). RECITALS: This Agreement is made with reference to the following facts: Concurrently herewith, pursuant to that certain Land Exchange Agreement dated february 13, 2017, as amended by that certain first Amendment to Land Exchange Agreement, Assignor is conveying to Assignee all of Assignor s right, title, interest and estate in and to certain real property located at 36 Cordaville Road, Southborough Massachusetts (collectively, the Property ). Assignor desires to sell, assign, convey, transfer, set over and deliver to Assignee, and Assignee desires to accept and obtain, all of Assignor s right, title and interest in and to the Management and Maintenance Agreement for the Property, as extended by an agreement dated January 25, 2017, a copy of which is attached hereto and incorporated herein as Exhibit A (the Management Agreement ). NOW, THEREFORE, in consideration of the foregoing, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Assignor does hereby SELL, ASSIGN, CONVEY, TRANSFER, SET OVER and DELIVER unto Assignee all of Assignor s right, title and interest in and to the Management Agreement. 1. Assignee assumes and agrees to perfonn all of the covenants, agreements and obligations of Assignor under the Management Agreement first arising or accruing from and after the date of this Agreement. Assignee hereby agrees to indemnify, hold harmless and defend Assignor from and against any and all obligations, liabilities, costs and claims (including reasonable attorneys fees) suffered or incurred by Assignor on account of Assignee s failure to perform the covenants and obligations assumed by Assignee under this paragraph. 2. Assignor hereby agrees to indemnify, hold harmless and defend Assignee from and against any and all obligations, liabilities, costs and claims (including reasonable attorneys fees) suffered or incurred by Assignee on account of Assignor s failure to perform any covenants and obligations under the Management Agreement arising or accruing prior to the date of this Agreement. 3. The parties hereto agree to execute such further documents and agreements as may be necessary or appropriate to effectuate the purposes of this Agreement. dent Metner/I2$/OOO42/A3*4I I IDOCX[Ver:))

34 [SIGNATURES FOLLOW ON NEXT PAGE] which together shall constitute one and the same instrument. Massachusetts (without reference to conflicts of laws principles). This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of be governed by and construed in accordance with the laws of the Commonwealth of hereto and their respective successors, assigns and legal representatives. This Agreement shall 4 This Agreement shall be binding upon and shall inure to the benefit of the parties CUcnt &123QQQ42M4I 3 J.DOCXVcr3J

35 N WITNESS WHEREOF, the parties hereto have executed this Agreement under seal as of the date first above written. ASSIGNOR: St. Mark s School of Southborough, Inc. f/ic/a The Trustees of St. Mark s School hereunto duly authorized By: Name: Title; ASSIGNEE: Town of $outhborough, by its Board of Selectmen Daniel L. Kolenda, Chairman Brian E. Shea, Vice Chairman Lisa M. Braccio, Board Member Bonnie J. Phaneuf, Board Member Clieni Mtterfl2385fOOO42/A384Sl I I,DOCX(V3]

36 EXHIBIT A Management and Maintenance Agreement Cllcnt Matter/12385/00042/A38481 I I.DOCXrr:1