Motion,Ex Parte: Willard, Beth A, et al vs. Bill Willard Incorporated

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COMMONWEALTH OF MASSACHUSETTS
THE TRIAL COURT

HAMPSHIRE, SS SUPERIOR COURT DEPARTMENT
CIVIL ACTION NO. 1780CV0050

 

Defendant

)
In re: )
)
BETH A. WILLARD; WILLIAM T. )
WILLARD, JR.; RICHARD J. WILLARD; 5
CRYSTAL L. WILLARD, SABRINA M. )
WILLARD; BILLY JEAN WILLARD, }
NANCY T. McGRATH; MARGARET T. 5)
TACY; AND JO ANN MORIN ) TAMPSHIRE SU PERIOR COURT
)
Plaintiff:
v. _ } FEB 2.8 2019
) HARRY JEKanuwys
) UWSKE J
BILL WILLARD, INCORPORATED, ) GLERKIMARICTR AT A
)
)
)

 

ASSENTED TO MOTION FOR AUTHORITY TO SELL
BY PRIVATE SALE CERTAIN REAL PROPERTY IN NORTHAMPTON,
MASSACHUSETTS TO CED NORTHAMPTON SOLAR, LLC

NOW comes JONATHAN R. GOLDSMITH, the court-appointed receiver (the
“Receiver” or the “Seller”) of Bill Willard, Incorporated (the “Corporation” or “Willard”),
through the undersigned counsel, and hereby respectfully moves this Honorable Court to enter an
Order authorizing the Receiver to sell by private sale certain real property of the Corporation

located in Northampton, Massachusetts, and all as more fully detailed below (the “Premises”).

In support of this Motion, the Receiver represents as follows:

1. This matter comes before the Court by way of Complaint filed on March 28,
2017, by the above-referenced Plaintiffs. On April 12, 2017, said Plaintiffs filed their JointMotion for Appointment of Receiver, which was allowed by the Court by endorsement on April
13, 2017. On April 24, 2017, the Court entered its Order on the Receiver’s Motion, delineating
in sui generis the Trustee’s authority and duties relating to the gathering and protecting of the
assets of the Corporation, in anticipation of the Receiver liquidating said assets for payment of

the liabilities of Corporation and thereafter distribution to Willard’s shareholders.

2. The Receiver, in connection with his duties and responsibilities, now seeks
permission from this Court to sell, by private sale, to CED Northampton Solar, LLC (“the
Buyer”) that property described as follows:

(a) Certain land situated in the City of Northampton of Hampshire County, Massachusetts, and more
particularly described as Lot 2 as shown on plan entitled “Approval Not Required Plan of Land located in
Northampton, Massachusetts (Hampshire County)”, owned by Bill Willard, Incorporated Scale: 1" = 100',
Dated January 22, 2019 recorded in the Hampshire County Registry of Deeds in Book of Plans 243, Page
78 aud 79 (the “ANR Plan”),

(b) Without warranty, all of Seller’s rights, title, and interest in and to all plans, specifications, drawings,
and other architectural or engineering data relating to the Property (collectively, the “Plans”), if any.

3. The Receiver has entered into a Purchase and Sale Agreement for the sale of said
Premises, subject to, inter alia, this Court’s approval. (A copy of the executed Purchase and Sale
Agreement is annexed hereto). The Receiver proposes to sell said Premises for the purchase
price of $450,000.00. The Buyer is an unrelated third-party.

4. Other contingencies include: 1) the Receiver shall have approval from GGB
Massachusetts Land LLC (“GGB”) to record, or cause to be recorded, a Confirmatory Deed from
the Receiver to GGB with respect to Lot 1 and Parcel 3 as shown on the ANR Plan. 2) The Title
Company (or such other party as agreed to by the Buyer) shall be in possession of the
Confirmatory Deed, together with a recordable copy of the Easement Plan (as defined by the
Confirmatory Deed) and be immediately prepared to record the same. The foregoing

contingencies are further described and defined in Purchase and Sales Agreement attached.

5. The Receiver believes that the purchase price is fair and reasonable under the
circumstances for the Premises, and that the sale thereto will benefit the due administration of the

Receivership. Counsel for the Parties hereto have given their assent to this Motion and Sale.WHEREFORE, the Receiver respectfully requests permission of this Court to:

i) proceed with a private sale of the Premises to CED Northampton Solar, LLC in
accordance with the aforesaid Purchase and Sale Agreement; and

(ii) deal with and perform any other duties, which the Receiver deems necessary and

reasonable to effectuate the sale of the Premises via said private sale.

 

(BBO No. 548285)

1350 Main Street, Suite 1505
Springfield, MA 01103

Tel. (413) 747-0700

jgoldsmith@gkalawfirm.com
Dated: f2x}} 4

ASSENTED TO:

The Plaintiffs,
ILLARD; WILLIAM T. WILLARD, JR.;

J. WILLARD; CRYSTAL L. WILLARD;
. * ; and “4 / .N WILLARD;

   
 
 
 

75 Market Place

Springfield, MA 01103

Dated: L}12414

The Plaintiffs,

NANCY T. McGRATH; MARGARET T. TACY; and

  

Uy)

Melnick Law Office
110 King Street
Ded ai MA 01060

Dated: 2.|22A( 4REAL ESTATE PURCHASE AGREEMENT

This Real Estate Purchase Agreement (“Agreement”) is made on Februaryahay, 2019 (“Effective Date”),
by and between Jonathan R. Goldsmith, as he is the Receiver of Bill Willard, Inc., in his representative capacity and
not individually (“Seller”), whose address is 1350 Main Street, Suite 1505, Springfield, Massachusetts 01103, and
CED Northampton Solar, LLC (“Purchaser”), whose address is 100 Summit Lake Drive, Suite 210, Valhalla, New

York 10595.
For valuable consideration received, the parties agree as follows:

1, Agreement for Purchase and Sale. Scller shal] sell, transfer, and convey to Purchaser, and Purchaser shall
purchase from Seller, subject to, and on the terms and conditions set forth in this Agreement, the following
(collectively, the “Property"):

(a) Certain land situated in the City of Northampton of Hampshire County, Massachusetts, and more
particularly described as Lot 2 as shown on plan entitled “Approval Not Required Plan of Land located in
Northampton, Massachusetts (Hampshire County)”, owned by Bill Willard, Incorporated Scale: 1" = 100',
Dated January 22, 2019 recorded in the Hampshire County Registry of Deeds in Book of Plans 243, Page
78 and 79 (the “ANR Plan”).

(b) Without warranty, all of Seller’s rights, title, and interest in and to all plans, specifications, drawings,
and other architectural or engineering data relating to the Property (collectively, the “Plans”), if any.

2. Purchase Price. The purchase price for the Property (“Purchase Price”) shall be $450,000.00 to be paid as
follows: :

{a) The sum of Ten Thousand and 00/100 Dollars ($10,000.00), previously delivered in connection
with that certain Option for the Purchase of Land executed by and between the parties (the “Option
Agreement”) (said amount being non-refundable in accordance with the terms of the Option Agreement,
but which shall be applied towards the Purchase Price in the event of Closing (as hereinafter defined));

(b) The sum of Twenty-Five Thousand and 00/100 Dollars ($25,000.00) shall be delivered to Fidelity
National Title Insurance Company (the “Title Company”) acting as escrow agent (“Escrow Agent”)
within three business days of the Effective Date, to be held in escrow pursuant to that certain Earnest
Money Escrow Agreement in the form attached hercto as Exhibit B (‘Earnest Money Escrow
Agreement”) as dated on or about the date hereof, by and among Seller, Purchaser and Escrow Agent,
which amount shall be aad constitute the “Deposit” hereunder; and

{(c) The bafance of the Purchase Price, subject to adjustments as provided herein, shall be paid at the
Closing (defined in Paragraph 6).

3, Condition of Property.

(a) Purchaser acknowledges that, except as otherwise set forth in this Agreement or in any of the Closing
documents, Seller has not made, does not make, and specifically negates and disclaims any and all
representations, warranties, promises, covenants, agreements, or guaranties of any kind or character
whatsoever, whether express or implied, oral or written, past, present or future, of, as to, concerning, or
with respect to (i) the value, nature, quality, or condition of the Property, including, without limitation, the
water, soil, and geology or structural elements, or foundations; (ii) the suitability of the Property for any or
all of Purchaser's activities and uses; (iii) the compliance of or by the Property with any laws, codes, roles,
ordinances, regulations, orders, decrees, or other requirement of any applicable governmental authority or
body (collectively, the “Laws”), including, without limitation, compliance with any applicable zoning
ordinance; (iv) the habitability, marketability, profitability, or fitness for a particular purpose of the
Property; (v) existence in, on, under, or over the Property of any Hazardous Materials (defined below); or
{b) any other matter with respect to the Property. Additionally, no person acting on behalf of Seller isauthorized to make, and by execution of this Agreement Purchaser acknowledges that no person has made,
any representation, agreement, statement, warranty, guaranty, or promise regarding the Property, and no
representation, warranty, agreement, guaranty, statement, or promise, if any, made by any person acting on
behalf of Seller shall be valid or binding on Seller unless expressly set forth in this Agreement or in any of
the Closing documents. “Hazardous Materials” means any substance that is or contains (A) any
“hazardous substance” as now or hereafter defined in §101(14) of the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980 (CERCLA), as amended (42 USC 9601 et seq.), or any
regulations promulgated under CERCLA; (B) any “hazardous waste” as now or hereafter defined in the
Resource Conservation and Recovery Act (RCRA) (42 USC 6901 et seq.) or regulations promulgated under
RCRA; (C) any substance regulated by the Toxic Substances Control Act (TSCA) (15 USC 2601 et seq.);
(D) gasoline, diesel fuel, or other petroleum hydrocarbons; (E) asbestos and asbestos-containing materials
in any form, whether friable or nonftiable; (F) polychlorinated biphenyls; (G) radon gas; and (H) any
additional substances or materials that are now or hereafter classified or considered to be hazardous or toxic
under any Laws,

(c) Purchaser further acknowledges that having been given the opportunity to inspect the Property,
Purchaser is relying solely on its own investigation of the Property and not on any information provided or
to be provided by Seller and agrees to accept the Property and waive all objections or claims against Seller
arising from or related to the Property or to any Hazardous Materials on the Property except for a breach of
any representations or warranties set forth in this Agreement or any of the Closing documents. Purchaser
further acknowledges that any information provided or to be provided with respect to the Property was
obtained from a variety of sources and that Seller has not made any independent investigation or
verification of the information and makes no representations as to the accuracy, truthfulness, or
completeness of the information.

(d) Seller shall convey and Purchaser shall accept the Property in “AS IS, WHERE IS” condition,
including, subject to easements and restrictions of record.

(©) This Paragraph 3 shall survive the Closing.

4, Prorations. Any taxes and assessments that are a lien on the Land, or that otherwise relate to the Land and are
due and payable as of Closing (other than the lien of general real estate taxes that are not due and payable as of
Closing) shall be paid by Seller on or before Closing, Real estate taxes shall be prorated and adjusted between
Seller and Purchaser as of Closing for the fiscal tax period in which the Closing Date falls (the “Fiscal
Period”). If the real estate taxes for the Fiscal Period cannot be determined as of Closing, the taxes shall be
prorated as of Closing based on the real estate taxes payable with respect to the Land for the immediately
preceding Fiscal Period. Once the actual real estate taxes for the Fiscal Period in which the Closing occurs have
been determined, the proration of the taxes shall be recalculated based on the actual taxes for the Fiscal Period,
and the party awing the other an amount based on the recalculation shall promptly pay the same to the other
party. The parties shall arrange for final readings of utility meters as of Closing and Seller shall pay at Closing
final utility charges based on the readings. All charges for water, sewer and other utilities incurred up to the day
prior to the Closing shall be paid by Seller.

5, Contingencies,

(@) Court Approval. The obligation of the parties to close the transactions contemplated by this
Agreement shall be contingent on approval by the Hampshire County Superior Court, in Civil
Action No. 1780CV0050 (“Court Approval”), which Seller shall pursue diligently and in good
faith. If Court Approval is not received on or before March 22, 2019, Purchaser may, at its
election, terminate this Agreement, and Escrow Agent shall refund the Deposit to Purchaser, after
which neither party shall have any further liabilities or obligations under this Agreement except
those that expressly survive the termination hereof.

(b) Seller shall have approval from GGB Massachusetts Land LLC (‘“GGB”) to record (or cause to be
recorded) that certain Confirmatory Deed from Seller to GGB with respect to Lot I and Parcel 3 as
shown on the ANR Plan (the “Confirmatory Deed”), which Confirmatory Deed is in the form
attached hereto as Exhibit C.(©) The Title Company (or such other party agreed to by Purchaser) shall be in possession of the
Confirmatory Deed, together with a recordable copy of the Easement Plan (as defined in the
Confirmatory Deed) (the “Basement Plan") and be immediately prepared to record the
Confirmatory Deed and Easement Plan.

6. Closing. The transactions contemplated under this Agreement shall, subject to the satisfaction of the
contingencies set forth in Paragraph 5, be consummated at a closing (“Closing”) to be held on or before the
thirtieth (30th) day following satisfaction of the contingencies set forth in Paragraph 5. Closing shall occur
through escrow to be conducted by the Title Company. At Closing,

(a) Seller shall:

a execute and/or deliver to the Title Company a Quitclaim Deed for the Land (the “Deed”) in
the form attached as Exhibit A and certifying that the sale of the Property is not the sale of all
or substantially all of the assets of Bil! Willard, Inc. in the Commonwealth of Massachusetts.
By this conveyance the Receiver does not warrant or represent that the title to the property
will be insurable or marketable, except as set forth in the Deed;

(il) deliver (or cause to be delivered) to the Title Company (or such other party agreed to by
Purchaser) the executed original of the Confirmatory Deed and the Easement Plan, which
shall be recorded prior to the recording of the Deed;

ii) pay the real estate transfer taxes imposed under Massachusetts law in connection with the
recordation of the Deed;

(iv) execute and deliver to the Title Company an Affidavit of Nonforeign Status;

() execute and deliver to the Title Company all documentation reasonably required by the Title
Company to delete the standard exceptions for partics in possession and mechanic’s liens
from Purchaser’s owner’s policy of title insurance;

(vi) deliver to the Title Company an original certificate of good standing for Bill Willard Inc., if
required by the Title Company and provided that Bill Willard Inc is not required to file an
annual report in order to obtain said certificate of good standing;

(vii) execute and deliver to the Title Company all documentation reasonably required by the Title
Company to evidence the Court Approval, which documentation shall be in recordable form;

(viii) deliver possession of the Property to Purchaser.

(b) Purchaser shall pay to Seller the balance of the Purchase Price, as adjusted pursuant to Paragraph 4, by
wire transfer of immediately available funds.

(c) Seller and Purchaser shall execute a mutually acceptable Closing Statement.

7. Default and Remedies.

(a) It shall be a default by Seller under this Agreement (a “Seller’s Default”) if Seller shall fail to perform
in any material respect any of its covenants and agreements contained in this Agreement when required to
be performed hereunder. [f a Seller’s Default occurs, then Purchaser shall have the right to terminate this
Agreement by giving notice to Seller or to sue for specific performance of this Agreement (but shall not be
permitted to sue for monetary damages), so long as Purchaser institutes such an action for specific
performance within thirty (30) days from the date of the alleged Seller’s Default. In the event Purchaser
elects to terminate this Agreement, the Deposit shall be refunded to Purchaser, all rights and obligations of
the parties under this Agreement shall expire (except those rights and obligations that expressly survive the
termination of this Agreement), and this Agreement shal] become null and void.(b) It shall be a default by Purchaser under this Agreement (a “Purchaser's Default”) if Purchaser shall
fail to pay any sum of money under this Agreement when due and payable, or Purchaser shall fail to
perform in any material respect any of its other covenants and agreements contained in this Agreement
when required to be performed hereunder. If a Purchaser’s Default occurs and remains uncured for at least
thirty (30) days after Purchaser has received written notice thereof from Seller (excluding a Purchaser's
Default consisting of Purchaser’s failure to deliver the Purchase Price at Closing, for which no notice or
cure period shall be required), the Deposit shall be paid over to Seller, and this shall be Seller's sole and
exclusive remedy hereunder, or at law or in equity, for a Purchaser's Default. In such event, all rights and
obligations of the parties under this Agreement shall expire (except those rights and obligations that
expressly survive the termination of this Agreement), and this Agreement shall become null and void,

8. Representations and Warranties.
@ Seller warrants and represents to Purchaser that as of the date of this Agreement and at Closing that:

(Bill Willard, Inc. is a Massachusetts corporation authorized under the laws of the Commonwealth
of Massachusetts;

(ii) to the best of Seller's knowledge, Bill Willard, Inc. is the sole owner in fee simple title to the
Land;

(ili) subject to the Seller obtaining Court Approval, (a) this Agreement constitutes a legal, valid, and
binding agreement of Seller, and (b) the execution and delivery of this Agreement by Seller and the
consummation of the transactions contemplated by this Agreement by Seller will not violate any order,
writ, injunction, or decree of any court and any litigation to which Seller is 2 party or bound or violate
any law;

(iv) to Seller’s actual knowledge, (A) the Property has not been used for the generation, storage,
treatment, or disposal of Hazardous Materials, (B) no Hazardous Material is located in, on, or beneath
the Property, including but not limited to any underground storage tanks, and (C) no underground
storage tank was previously removed from the Property;

(v) to Seller’s actual knowledge, the Property is not, and Seller has not received any notice that the
Property is, in violation of any federal, state, local, or other governmental zoning, health,
environmental, safety, platting, subdivision, or other law, ordinance, or regulation, or any applicable
private restriction relating to the Property or the operation or use of it, except for the violations set
forth in the lawsuit filed in the United States District Court for the District of Massachusetts entitled
Conservation Law Foundation, Inc. v, Bill Willard Inc., Case # 1:17-CV-10141MPK; and

(vi) to the best of Seller’s knowledge, there are no leases or contracts relating to the Property or the
use thereof that will bc binding on Purchaser or the Property subsequent to Closing.

(b) Purchaser represents and warrants to Seller as of the date of this Agreement and at Closing that:

(i) Purchaser is a limited liability company authorized and existing under the laws of the State of
Delaware;

(ii) neither the execution of this Agreement by Purchaser nor the performance of Purchaser’s
obligations under this Agreement will constitute a default under its organizational documents or any
contract or agreement by which Purchaser is bound; and

(iii) the execution and delivery of this Agreement by Purchaser and the consummation of the
transactions contemplated by this Agreement by Purchaser will not violate any order, writ, injunction,
or decree of any court and any litigation to which Purchaser is a party or bound or violate any law.9. Broker. Seller and Purchaser each represent and warrant to the other that no broker has been engaged by it in
connection with the transactions contemplated by this Agreement. Seller and Purchaser shall each indemnify
the other against any costs, claims, or expenses, including reasonable attomey fees, arising out of the breach of
the foregoing representation by the indemnifying party. The indemnification provision of this Paragraph 9 shall
survive the Closing or termination of this Agreement,

10, Notice. Any notice required or permitted to be given under this Agreement by one party to the other shail be
in writing and the same shall be given and deemed to have been served and given when (a) delivered in person
to the party to whom the notice is given, (b) placed in the U.S. mail, postage prepaid, by registered or certified
mail, return receipt requested, (c) deposited with a nationally recognized overnight courier service, or (d)
delivered by electronic mail, provided that a paper copy shall be thereafter delivered by one of the methods in
(a), (b) or (c). The address of the parties for the purposes of this Agreement and for all notices under this
Agreement shall be the address indicated in the introductory paragraph of this Agreement. E-mail delivery to
the Seller shall be made to jgoldsmith@gkalawfirm.com, E-mail delivery to the Purchaser may be made to
ceblegal@conedceb.com, with a copy to conlind@gtlaw.com. Notices to the Title Company shall be delivered
to:

Laura W. Kaltz

Assistant Vice President

Fidelity National Title Company, National Commercial Services — Atlanta
5565 Glenridge Connector, Suite 300

Atlanta, GA 30342

E-mail: laura.kaltz@FNTG.com.

11. Saturday, Sunday, or Legal Holiday. Whenever any determination is to be made or action to be taken on a
date specified in this Agreement, if the date falls on a Saturday, Sunday, or legal holiday, the date of the
determination or action shall be extended to the next day that is not a Saturday, Sunday or legal holiday (a

“business day”).

12. Entire Agreement. This Agreement embodies the entire agreement of the parties and supersedes any prior or
contemporaneous understandings or written or oral agreements between them concerning the Property. No
variation, modification, or alteration of these terms shall be binding on cither party unless set forth in an express
and formal written amendment executed by all parties to this Agreement.

13, Survival. The representations and warranties of the parties contained in this Agreement shall survive the
Closing for one year and shall not merge in the covenant deed or any of the other documents executed in
connection with the Closing.

14, Governing Law. This Agreement shall be governed by and construed under and in accordance with the taws
of the Commonwealth of Massachusetts.

15. Binding Effect. All of the terms and provisions in this Agreement shall bind and inure to the benefit of the
parties and their respective heirs, personal representatives, successors, and assigns.

16. Construction. This Agreement shall not be construed more strictly against one party than against the other
merely by virtue of the fact that it may have been prepared by counsel for one of the parties, it being
acknowledged and agreed that this Agreement shall be interpreted in light of the probable intent of the parties.

17. Attorney Fees. In connection with any litigation, including appellate procecdings, arising out of this
Agreement, the prevailing, party shall be entitled to recover from the losing party the reasonable attorney fees
and other costs incurred by the prevailing party in connection with the litigation.

18. Counterparts; Facsimile. This Agreement may be executed in one or more counterparts, each of which shall
be deemed to be an original, but all of which together shall constitute one and the same instrument. This
Agreement may be executed and delivered by facsimile transmission, and a facsimile of this Agreement or of a
signature of a party will be effective as an original.[see next page for signatures]IN WITNESS WHEREOF, the parties have executed this Agreement under seal to be effective as of the

Effective Date,

SELL]

  
     

Jonat) Goldsmith, as the
Receiver for Bill Willard, Inc.

PURCHASER:

CED NORTHAMPTON SOLAR, LLC

 

[Signature Page to Real Estate Purchase Agreement|EXHIBIT A
(Proposed Deed)

 

BEE B

Property Address:
Lot 2, Ryan Road, Northampton, MA.

KNOW ALL MEN BY THESE PRESENTS, that {, Jonathan R. Goldsmith as Receiver of Bill
Willard, Incorporated, (pursuant to a Joint Motion to appoint Receiver in Book 12833, Page 240 and
assent to Motion for Authority to Sell by Private Sale) of 1350 Main Street, Suite 1505, Springfield,
Hampden County, Massachusetts (“Grantor”).

For consideration paid and in full consideration of Four Hundred Fifty Thousand and 00/100 Dollars
($450,000.00),

grant(s) to CED Northampton Solar, LLC, a Delaware Limited Liability Company having its principal
place of business located at 100 Summit Lake Drive, Suite 210, Valhalla, NY 10595

WITH QUITCLAIM COVENANTS

The land in Northampton, Hampshire County, Massachusetts being known and designated as Lot 2 as
shown on plan entitled “Approval Not Required Plan of Land located in Northampton, Massachusetts
(Hampshire County)”, owned by Bill Willard, Incorporated Scale: 1" = 100', Dated January 22, 2019
recorded in the Hampshire County Registry of Deeds in Book of Plans 243, Page 78 and 79 (the “Plan”).

Said Lot 2 contains approximately 2,327,218.23 square feet/53.43 acres.

Together with a permanent non-exclusive easement for ingress and egress to Lot 2 and for the installation
of utilities in the area labeled as “Access and Utility Easement” on that certain Plan of Land in
Northampton, Massachusetts, Access and Utility Easement Pian prepared for CED Northampton Solar,
LLC by Sherman & Fredryk, LLC, dated February __, 2019, and recorded in the Hampshire Registry of
Deeds in Plan Book Page (the “Easement Plan”), which easement is reserved and described
in that certain Confirmatory Deed from Grantor to GGB Massachusetts Land LLC, recorded in the
Hampshire County Registry of Deeds in Book , Page

Subject to the following:

wa Provisions of existing building and zoning laws;

(ii) Existing rights and obligations in party walls, whether or not the same are the
subject of written agreement;

iii) Such taxes for the then current period as are not due and payable on the date of
the delivery of such deed;(iv) Any liens for municipal betterments assessed after the date of this Agreement;

and
(vy) Easentents, restrictions and reservations of record, if any, provided the same do

not affect the intended use of the Property.
THIS CONVEYANCE DOES NOT CONSTITUTE A SALE OF ALL OR SUBSTANTIALLY ALL OF
THE ASSETS OF BILL WILLARD, INCORPORATED,
BEING 2 portion of the same premises conveyed to the grantor(s) herein by deeds of Bill Willard
Incorporated dated December 2, 1953 and recorded in said Registry of Deeds in Book 1157, Page 444, and
by deed dated October 13, 1979 and recorded in said Registry of Deeds in Book 1583, Page 727.

‘Witness my/our hand(s) and seal(s} this day of. 2019.

Jonathan R. Goldsmith as Receiver
of Bill Willard, IncorporatedCOMMONWEALTH OF MASSACHUSETTS
Hampden, ss.

Onthis___ day of __.» 2019, then personally appeared the above-named

Jonathan R. Goldsmith as Receiver of Bill Willard, Incorporated proved to me
through satisfactory evidence of identification being (check whichever applies): 0 driver's license or other
state or federal goveramental document bearing a photographic image, C1 oath or affirmation of a credible
witness known to me who knows the above signatory, or 2] my own personal knowledge of the identity of
the signatory, to be the persons whose names are signed on the preceding document, and acknowledged to
me that he/she/they signed it voluntarily for its stated purpose and his/her/their signature was his/her/their
free act and deed.

Notary Public
My Commission Exp:EXHIBIT B
Earnest Money w Agreement

EARNEST MONEY ESCROW AGREEMENT

ESCROWNO. ___

 

This is an ESCROW AGREEMENT, made the day and year written below, by, between
and among: Chicago Title Insurance Company (“Eserew Agent”), CED Northampton
Solar, LLC, whose address is 100 Summit Lake Drive, Suite 210, Valhalla, New York 10595
(“Buyer”), and Jonathan R. Goldsmith, as he is the Receiver of Bill Willard, Inc, in his
representative capacity and not individually, whose address is 1350 Main Street, Suite 1505,
Springfield, Massachusetts 01103 (“Seller”). .

Whereas Buyer and Seller are parties under a certain contract for the sale of certain real
property known as Lot 2, Ryan Road,( Northampton, Massachusetts; and

Whereas Buyer and Sclier have requested Escrow Agent to act as Escrow Agent to hold
the carnest money agrecd to thercin (hereafter "Deposit"), in accordance with the terms and
provisions of this Earnest Money Escrow Agreement.

Now, therefore, in consideration of the promiscs and undertakings herein made, and the
proposed issuance of a title insurance policy (or policies) underwritten by Escrow Agent, it is
agreed that:

1, Buyer and Seller hereby appoint Escrow Agent as Escrow Agent, hereunder, and the
Deposit is hereby delivered to Escrow Agent, who by signing below acknowledges its
receipt by wire (ransfer in the amount of $25,000.00. The Escrow Agent shall receive a
fee in accordance with the Company’s Escrow Services and Charges which will be for
serving as Escrow Agent under this agreement which fee shall be deducted from the
Deposit when return of the Deposit is requested.

2. Escrow Agent SHALL HOLD THE DEPOSIT UNTIL WRITTEN RELEASE
DISBURSEMENT INSTRUCTIONS (WHICH INSTRUCTIONS MAY BE
DELIVERED BY E-MAIL TO LAURA.KALTZ@FNTG.COM) ARE RECEIVED
FROM SELLER OR BUYER.

All written requests to release funds shall be sent to both the Escrow Agent and
the other party. If Escrow Agent receives a written request to release funds from
one party, Escrow Agent shall release the Deposit in accordance with such
instructions upon the earlier of (a) confirmation from the other party that they
have no objection to the request, or (b) the passage of five (5) business days
without an objection in writing received by Escrow Agent from the other party.

3. Escrow Agent is hereby authorized to and directed 1o invest the Deposit in the name of
Buyer, by Escrow Agent as follows:

a. Deposits will be invested in a Market Rate Savings Account at Escrow
Agent's bank at the discretion of Escrow Agent and upon receipt of an
IRS Form W-9 for the party for whom the funds are to be invested.

 

i
'be. Other types of investments will be considered upon written request :
directed to the Company and subject to possible additional fees payable
to the Escrow Agent as negotiated. i

c. Invest funds? Yesa NoX
PL i Ss

   

4. Interest shalt be payable at the time the Deposit is disbursed in accordance with the terms
of the Escraw Agreement and written release/disbursement instructions.

5. All investments will be made in the regular course of business. To be eititled to same
day investment (assuming good funds are provided) the Deposit must be received by
noon; otherwise, such funds will be deposited on the next business day.

6. Escrow Agent shall have NO OBLIGATION TO INVEST the deposit.

2 The investment shal? be subject to the rules, reguiations, policies and procedures of said
Depository.

8 Escrow Agent shall not be responsible for levies by taxing authorities based upon the
taxpayer identification number used to establish any interest bearing account.

Agreed to this 22 day of February 2019.

 

ESCROW AGENT: SELLER:

CHICAGO TITLE INSURANCE . COMPANY

py KOU KOO
Nae CLALTR REE

Title: Pos

 

  

BUYER: ‘
CED NORTHAMPTON SOLAR, LLC
a Delayyare yy ited Lighility Company
/ J
By, AZCONDITIONS OF ESCROW.

Escrow Agent accepts this undertaking subject to these Conditions of Escrow:

The Deposit may be processed for collection in the normal course of business by
Escrow Agent, who may commingle funds received by it with escrow funds of
others in its regular escrow account at Escrow Agent’s bank (hereafter the
‘Depository”), Escrow Agent shall not be accountable for any incidental bencfit
which may be attributable to the funds so deposited.

Escrow Agent shall not be liable for any loss caused by the failure, suspension,
bankruptey or dissolution of the Depository.

Escrow Agent shall not be liable for loss or damage resulting from:

a, any good faith act or forbearance of Escrow Agent; :

b any default, error, action or omission of any party, other than the Escrow
Agent;

c any defect in the title to any property unless such loss is covered under a
policy of title insurance issued by the Escrow Agent;

d, the expiration of any time limit or other delay which is not solely caused

by the failure of Escrow Agent to proceed in its ordinary course of
business, and in no event where such time limit is not disclosed in
writing to the Escrow Agent;

e the lack of authenticity of any writing delivered to Escrow Agent or of
any signature thereto, or the lack of authority of the signatory to sign
such writing;

f. Escrow Agent’s compliance with all attachments, writs, orders,
judgments, or other legal process issued out of any court;

eg Escrow Agent's assertion or failure to assert any cause of action or
defense in any judicial or administrative proceeding;

h. Any loss or damage which arises afier the Deposit has been disbursed in

accordance with the terms of this Agreement. .
Escrow Agent shall be fully indemnified by the parties hereto for all its expenses,
costs and reasonable attorney’s fees incurred in connection with any interpleader
action which Escrow Agent may file, in its sole discretion, to resolve any dispute
as to the Deposit; or which may be filed against the Escrow Agent. Such costs,
expenses or attorney’s fees, as well as the fees of Escrow Agent described below,
may be deducted from the Deposit.
If Escrow Agent is made a party to any judicial, non-judicial or administrative
action, hearing or process based on acts of any of the other parties hereto and not
on the malfeasance and/or negligence of Escrow Agent in performing its duties
hereunder, the expenses, costs and reasonable attorney fees incurred by Escrow
Agent in responding to such action, hearing or process may be deducted from the
funds held hereunder and the party/parties whose alleged acts are a basis for such
proceedings shall indemnify, save and hold Escrow Agent harmless from said
expenses, costs and fees so incurred.
The Company’s fee for acting as Escrow Agent is shown on its Escrow Services
and Charges which is available upon request. These fees, which may be paid in
advance or will be deducted from the account upon disbursement, are the joint
and several obligation of cach party to any agreement, sales contract or other
writing forming the basis for this escrow undertaking.10.

Notwithstanding anything contained herein to the contrary, all controversies,
issues, interpretation and other matters relating in any way to the escrow called
for hereunder shali be interpreted and governed by the laws of the
Commonwealth of Massachusetts.

In the event of any conftict between the terms any provisions of these Conditions
of Escrow and the terms and provisions of the Agreement or other document to
which this is attached, the terms and provisions of these Conditions of Escrow
shall prevail.

Escrow Agent shall be fully indemnified by the other parties hereto and such
parties shall hold Escrow Agent harmless from all damages, costs, claims and
expenses arising from Escrow Agent’s performance of its duties hereunder,
including reasonable attorneys fees, except for those damages, costs, claims and
expenses resulting from the gross negligence or willful misconduct of the Escrow
Agent.

In the event of a dispute, Escrow Agent may file a suit in interpleader in any
court in the Commonwealth of Massachusetts having jurisdiction in the matter
for the purpose of having the respective rights of the parties adjudicated and may
deposit with the court any and all monies and other escrowed items held
hereunder. Upon institution of such interpleader suit or other action, depositing
such monies and other escrowed items with the court, and giving notice thereof
to the parties thereto by personal service or in accordance with the order of the
court, Escrow Agent shall be fully released and discharged from all further
obligations hereunder with respect to the items so deposited.

Buyer's lnit, Seller’s aly Escrow Agent Init.EXHIBIT C
Form of Confirmato. Deed

 

Confirmatory Deed

Property Address:
Ryan Read/Burts Pit Road, Northampton, MA

KNOW ALL MEN BY THESE PRESENTS, that I, Jonathan R. Goldsmith as Receiver
of Bill Willard, Incorporated, (pursuant to a Joint Motion to appoint Receiver in Book 12833,
Page 240 and assent to Motion for Authority to Sell by Private Sale.) of 1350, Main Street, Suite
1505, Springfield, Hampden County, Massachusetts.

For consideration paid and in full consideration of Seven Hundred Thousand and 00/100
($700,000.00) Dollars

grant(s) to GGB Massachusetts Land LLC, a Delaware Limited Liability Company having its
principal place of business located at c/o 4300 East Fifth Avenue, Columbus, Ohio 43219

WITH QUITCLAIM COVENANTS

The land in Northampton, Hampshire County, Massachusetts being known and designated as Lot
1, and Parcel 3 as shown on plan entitled “Approval Not Required Plan of Land located in
Northampton, Massachusetts (Hampshire County)”, owned by Bill Willard, Incorporated Scale:
1" = 100', Dated January 22, 2019 recorded in the Hampshire County Registry of Deeds in Book
of Plans 243, Page 78 and 79 (the “Land”).

Said Lot 1 contains 1,912,602.06 square feet/43.91 acres and Parcel 3 contains 1,127,781.90
square feet/25.89 acres.

THE LAND IS SUBJECT TO a permanent non-exclusive easement for ingress and egress to Lot
2. as shown on the Plan of Land in Northampton, Massachusetts, Access and Utility Easement
Plan prepared for CED Northampton Solar, LLC by Sherman & Fredryk, LLC., dated February
__, 2019, and recorded in the Hampshire Registry of Deeds in Plan Book , Page (the
“Plan”) to pass and repass on foot or with vehicles, for all purposes for which roads are used in
the municipality in which Lot 2 is located, and for the installation, construction, operation,
maintenance, repair, inspection, replacement, upgrade, modification, extension, removal and
relocation of utility poles, conduits, lines, cables, wires, pipes, junction boxes and the like, and
appurtenances thereto, as deemed necessary by the Owner of Lot 2 (“Access and Utility
Easement”) in a fifty foot wide easement area as shown on the Plan. The Access and UtilityEasement over Lot | is for the benefit of and appurtenant to Lot 2, and shall run with the title to
Lot 2, to allow free and complete access to and egress from Lot 2 and for access to utilities as
aforesaid, and subject to rights of the owner of Lot 1 to use said easement together with any
public access rights to the Access and Utility Easement granted by the owner of Lot 1 to the City
of Northampton, as shown on the Plan.

Either of the owners of Lot 1 or Lot 2 shall have the right, but not the obligation, to improve
and/or repair the Access and Utility Easement, including the grading and paving thereof, so long
as such improvements do not materially interfere with the other party’s use of the Access and
Utility Easement and no permanent structures, obstructions or vegetation are erected thereon.
Unless otherwise agreed, the full cost and expense of any such improvement and/or repair of the
Access and Utility Easement, including without limitation, construction costs, engineering fees
and permit filing fees, shall be borne by the party initiating such improvement(s) and/or repair(s).
Any of such work shall be done in a timely manner which minimizes disruption of the other
party’s use of the Access and Utility Easement. All improvements and/or repairs of the Access
and Utility Easement shall be performed in a good and workmanlike manner and in compliance
with all applicable laws, rules and regulations, The party performing such work shall promptly
restore and repair any property disturbed thereby substantially to its former condition, including,
without limitation, the restoration and repair of any landscaped, graded, paved or other area
which has been damaged or destroyed as a result of such work.

The Owner of Lot 1 shall maintain, repair and plow the drive within the Access and Utility
Easement from the intersection with Ryan Road to a point shown on the Plan as “Start of access
drive for Lot 2” (“Shared Easement Portion’). The Owner of Lot 2 shall maintain, repair and
plow the drive within the Access and Utility Easement after this point (“Exclusive Easement
Portion”). Upon the failure of either party to maintain, repair or plow the applicable portion of
the drive, the other party may do such maintenance, repairs or plowing as necessary and at the
expense of the other Lot Owner.

The Owner of Lot 2 is expressly granted the right to (i) install and maintain new poles for
overhead electrical lines and other wires, (ii) grant rights for the installation, construction,
operation, maintenance, repair, inspection, replacement, upgrade, modification, extension,
removal and relocation of utility poles, conduits, lines, cables, wires, pipes, junction boxes and
the like, and appurtenances thereto, as deemed necessary by the Owner of Lot 2 within the
Access and Utility Easement, and (iii) may use the existing poles for electrical lines and other
wires in the Shared Easement Portion. The Owners of Lot 1 and Lot 2 shall agree on the location
of any utilities or poles in the Shared Easement Portion and the sharing of the poles for electrical,
telephone, cable or other utilities.

If damage is caused to any improvements within the Access and Utility Easement by either the
Owner of Lot 1 or Lot 2 or their employees or invitees the damage shall be repaired by the
Owner or its employees or invitees causing the damage.

The Grantor, shall not be subject to the obligations in this Easement to maintain, repair and plow
the Access Easement until the Grantor has conveyed Lot 2.Subject to the Northampton Wetlands Protection Ordinance and/or Wetlands Protection Act. Any
construction or maintenance work performed on this property may require an Order of
Conditions and/or a Determination of Applicability from the Northampton Conservation
Commission.

Subject to the following:

a Provisions of existing building and zoning laws;

(ii) Existing rights and obligations in party walls, whether or not the same are
the subject of written agreement;

(iii) Such taxes for the then current period as are not due and payable on the
date of the delivery of such deed;

(iv) Any liens for municipal betterments assessed after the date of this
Agreement; and

(v) Easements, restrictions and reservations of record, if any, provided the
same do not affect the intended use of the Property.

Subject to restrictions, easements and covenants of record.

THIS CONVEYANCE DOES NOT CONSTITUTE A SALE OF ALL OR SUBSTANTIALLY
ALL OF THE ASSETS OF BILL WILLARD, INCORPORATED.

This confirmatory deed is given to correct language in a deed recorded in the Hampshire County
Registry of Deeds in Book 13193, Page 15 (the “Original Deed”), regarding the Access and
Utility Easement and the Plan describing the same. Transfer taxes were paid in connection with
the recording of the Original Deed.

BEING a portion of the same premises conveyed to the grantor(s) herein by deeds of Bill
Willard Incorporated dated December 31, 1952 and recorded in the Hampshire County Registry
of Deeds in Book 1134, Page 226 and by deed dated December 2, 1953 and recorded in said
Registry of Deeds in Book 1157, Page 444, and by deed dated October 13, 1979 and recorded in
said Registry of Deeds in Book 1583, Page 727 and by deed dated October 13, 1970 and
recorded in said Registry of Deeds in Book 1583, Page 729 and by deed dated June 22, 1999 and
recorded in said Registry of Deeds in Book 5844, Page 272.

By its signature below, Grantee, GGB Massachusetts Land LLC, hereby consents,
accepts and assents to the relocation of said Access and Utility Easement as described above and
shown on the above-referenced Plan.

Witness my/our hand(s) and seal(s) this day of February, 2019.

Jonathan R. Goldsmith as Receiver
of Bill Willard, IncorporatedCOMMONWEALTH OF MASSACHUSETTS .
Hampden, ss.

Onthis___ day of February, 2019, then personally appeared the above-named
Jonathan R. Goldsmith as Receiver of Bill Willard, Incorporated proved to me through
satisfactory evidence of identification being (check whichever applies): 0 driver’s license or
other state or federal governmental document bearing a photographic image, L oath or
affirmation of a credible witness known to me who knows the above signatory, or K] my own
personal knowledge of the identity of the signatory, to be the persons whose names are signed on
the preceding document, and acknowledged to me that he/she/they signed it voluntarily for its
stated purpose and his/her/their signature was his/her/their free act and deed.

. Notary Public
My Commission Exp:
Accepted to and assented to GGB Massachusetts Land LLC.
GGB Massachusetts Land LLC
_By:.

COMMONWEALTH OF MASSACHUSETTS .

SS.

 

Onthis___ day of February, 2019, then personally appeared the above-named
its duly authorized member of GGB Massachusetts

Land LLC proved to me through satisfactory evidence of identification being (check whichever
applies): 1 driver’s license or other state or federal governmental document bearing a
photographic image, U1 oath or affirmation of a credible witness known to.me who knows the
above signatory, or &] my own personal knowledge of the identity of the signatory, to be the
persons whose names are signed on the preceding document, and acknowledged to me that
he/she/they signed it voluntarily for its stated purpose and his/her/their signature was
his/her/their free act and deed.

Notary Public

My Commission Exp:
ACTIVE 41607723v2