EXHIBIT 10.1
PURCHASE AND SALE AGREEMENT
BY AND BETWEEN
NASHUA CORPORATION
(SELLER)
AND
EQUITY INDUSTRIAL PARTNERS CORP. (BUYER)
DATED AS OF NOVEMBER 6, 2006
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TABLE OF CONTENTS
PAGE
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ARTICLE 1 PURCHASE AND SALE AGREEMENT................................... 6
1.1 Agreement to Purchase and Sell................................ 6
1.2 Definitions................................................... 6
ARTICLE 2 THE PROPERTY.................................................. 8
2.1 Description of the Property................................... 8
2.2 Lease-Back.................................................... 8
ARTICLE 3 PURCHASE PRICE; DEPOSIT; ADJUSTMENTS.......................... 9
3.1 Purchase Price................................................ 9
3.2 Deposit....................................................... 9
3.3 Balance of Purchase Price..................................... 9
3.4 Prorations of Taxes........................................... 9
3.5 Prorations of Contracts and Prepaid Expenses.................. 10
3.6 Utilities..................................................... 10
3.7 Rent Prorations............................................... 10
3.8 Uncollected Rents............................................. 10
3.9 Estimates..................................................... 11
3.10 Adjustment Payments........................................... 11
3.11 Calculation of Prorations..................................... 11
3.12 Seller's Closing Costs........................................ 11
3.13 Buyer's Closing Costs......................................... 11
3.14 Closing Statement............................................. 11
3.15 Survival...................................................... 11
ARTICLE 4 REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS......... 12
4.1 Seller's Representations and Warranties....................... 12
4.2 Seller's Covenants............................................ 13
4.3 Buyer's Representations and Warranties........................ 14
4.4 Hazardous Materials Indemnities............................... 14
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ARTICLE 5 ACCESS, INSPECTION, DILIGENCE................................. 15
5.1 Inspections................................................... 15
5.2 Property Investigations....................................... 15
5.3 Disclosure.................................................... 16
5.4 Indemnity/Insurance........................................... 16
5.5 Due Diligence Materials....................................... 16
5.6 Inspection Period............................................. 16
5.7 Extension of Inspection Period................................ 17
ARTICLE 6 TITLE AND SURVEY.............................................. 17
6.1 Title and Survey Review....................................... 17
6.2 Title Objection............................................... 17
6.3 Seller's Cure of Title Objections............................. 17
6.4 Required State of Title....................................... 17
6.5 Personal Property............................................. 18
ARTICLE 7 CONDITIONS TO SELLER'S AND BUYER'S PERFORMANCE................ 18
7.1 Conditions to Seller's Obligations............................ 18
7.2 Conditions to Buyer's Obligations............................. 18
ARTICLE 8 CLOSING....................................................... 19
8.1 Closing....................................................... 19
8.2 Seller's Closing Deliveries................................... 19
8.3 Buyer's Closing Deliveries.................................... 20
8.4 Delivery of Deposit........................................... 21
ARTICLE 9 CASUALTY AND CONDEMNATION..................................... 21
9.1 Damage or Destruction/Eminent Domain.......................... 21
9.2 Major Casualty................................................ 21
9.3 Material Condemnation......................................... 22
ARTICLE 10 BROKERAGE COMMISSIONS......................................... 22
10.1 Representations and Indemnity................................. 22
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ARTICLE 11 DEFAULT, TERMINATION AND REMEDIES............................. 22
11.1 Seller Default................................................ 22
11.2 Buyer Default................................................. 23
ARTICLE 12 MISCELLANEOUS................................................. 23
12.1 Assignment.................................................... 23
12.2 Notices....................................................... 24
12.3 Interpretation................................................ 25
12.4 Captions...................................................... 25
12.5 No Third-Party Beneficiaries.................................. 25
12.6 Amendments.................................................... 25
12.7 Integration................................................... 25
12.8 Choice of Law................................................. 25
12.9 Counterparts.................................................. 25
12.10 Business Day.................................................. 26
12.11 Time of the Essence........................................... 26
12.13 Use of Proceeds to Clear Title................................ 26
12.14 Submission not an Offer or Option............................. 26
ARTICLE 13 IRS FORM 1099-S DESIGNATION................................... 26
13.1 Designee...................................................... 26
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SCHEDULES
SCHEDULE 2.1(a) Description of the Real Property
SCHEDULE 2.1(g) Leases
SCHEDULE 2.1(e) Description of Personal Property
SCHEDULE 2.1(f) Description of Intangible Property
SCHEDULE 2.2 Nashua Lease
SCHEDULE 2.2(A) Collateral Access Agreement
SCHEDULE 3.2 Form of Deposit Escrow Agreement
SCHEDULE 4.1(b) List of Legal Proceedings
SCHEDULE 4.1(f) List of Contracts
SCHEDULE 4.2(f) Form of Tenant Estoppel Certificate
SCHEDULE 4.2(h) Form of Post-Closing Remediation Agreement
SCHEDULE 5.1 Access and Indemnity Agreement dated August 1, 2006
SCHEDULE 5.5 Due Diligence Materials
SCHEDULE 5.5(a) List of Additional Environmental Reports
SCHEDULE 8.1 Form of Escrow Closing Instructions
SCHEDULE 8.2(a) Form of Warranty Deed
SCHEDULE 8.2(b) Form of Bill of Sale and General Assignment
SCHEDULE 8.2(c) Form of Assignment of Leases
SCHEDULE 8.2(d) Form of Assignment and Assumption of Contracts
SCHEDULE 8.2(h) Form of FIRPTA Affidavit
SCHEDULE 8.2(j) Form of Tenant Notice Letter
SCHEDULE 13.1 Form of IRS Form 1099-S
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PURCHASE AND SALE AGREEMENT
This Purchase and Sale Agreement (this "Agreement") is entered into as of the
sixth day of November, 2006 by and between Nashua Corporation, a Massachusetts
corporation (the "Seller") having an address of 11 Trafalgar Square, Nashua, New
Hampshire 03063 and Equity Industrial Partners Corp., a Massachusetts
corporation (the "Buyer") having an address of 145 Rosemary Street, Suite E,
Needham, Massachusetts 02494.
RECITALS
Seller is the owner of the Property (as defined in Section 2.1 below). Seller
desires to sell the Property to Buyer and Buyer desires to buy the Property from
Seller, all on and subject to the terms and conditions hereinafter set forth.
ARTICLE 1
PURCHASE AND SALE AGREEMENT
1.1 AGREEMENT TO PURCHASE AND SELL.
In consideration of the mutual undertakings and covenants of the parties set
forth in this Agreement, and for other good and valuable consideration, the
receipt and legal sufficiency of which are hereby acknowledged, Seller agrees to
sell the Property to Buyer and Buyer agrees to buy the Property from Seller on
and subject to the terms and conditions contained in this Agreement.
1.2 DEFINITIONS.
"Additional Environmental Documents" shall mean the environmental reports and
other documents to be made available for inspection as set forth on Schedule
5.5(a).
"Agreement" shall have the meaning set forth in the introductory paragraph of
this Agreement.
"Appurtenances" shall have the meaning set forth in Section 2.1(b).
"Assigned Contracts" shall have the meaning set forth in Section 4.2(j).
"Assignment of Leases" shall have the meaning set forth in Section 8.2(c).
"Broker" shall have the meaning set forth in Section 10.1.
"Building Condition Report" [INTENTIONALLY DELETED]
"Buyer" shall have the meaning set forth in the introductory paragraph of this
Agreement.
"Closing" shall have the meaning set forth in Section 8.1.
"Closing Date" shall have the meaning set forth in Section 8.1.
"Cure Period" shall have the meaning set forth in Section 6.1.
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"Deposit" means Five Hundred Thousand Dollars ($500,000.00) to be paid into
escrow upon the execution and delivery hereof, plus any interest accrued
thereon.
"Deposit Escrow Agreement" shall have the meaning set forth in Section 3.2.
"Designee" shall have the meaning set forth in Section 13.1.
"Due Diligence Materials" shall have the meaning set forth in Section 5.5.
"Eminent Domain Taking" shall have the meaning set forth in Section 9.2.
"Environmental Reports" shall mean the reports to be delivered as set forth on
Schedule 5.5.
"Escrow Agent" shall mean First American Title Insurance Company.
"Hazardous Materials" shall have the meaning set forth in Section 4.1(q).
"Improvements" shall have the meaning set forth in Section 2.1(a).
"Inspection Period" [INTENTIONALLY DELETED]
"Intangible Property" shall have the meaning set forth in Section 2.1(f).
"Interim Lease" [INTENTIONALLY DELETED]
"IRS" shall have the meaning set forth in Section 13.1.
"Land" shall have the meaning set forth in Section 2.1(a).
"Leases" shall have the meaning set forth in Section 2.1(g).
"Legal Holiday" means a day that banks in New Hampshire are regularly closed.
"Monetary Liens" shall have the meaning set forth in Section 6.1.
"Permitted Exception" shall have the meaning set forth in Section 6.1.
"Property" shall have the meaning set forth in Section 2.1.
"Purchase Price" shall have the meaning set forth in Section 3.1.
"Real Property" shall have the meaning set forth in Section 2.1(d).
"Seller" shall have the meaning set forth in the introductory paragraph of this
Agreement.
"Seller's Knowledge" shall mean the actual, current knowledge, without
investigation, of John L. Patenaude, Seller's Vice President - Finance/CFO and
Treasurer.
"Survey" shall have the meaning set forth in Section 6.1.
"Survival Period" shall have the meaning set forth in Section 4.1.
"Title Company" shall mean First American Title Insurance Company.
"Title Evidence" shall have the meaning set forth in Section 6.1.
"Title Objections" shall have the meaning set forth in Section 6.1.
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ARTICLE 2
THE PROPERTY
2.1 DESCRIPTION OF THE PROPERTY.
The "Property" consists of the following:
(a) Approximately forty-eight (48) acres of land located at 57 and 59
Daniel Webster Highway, Merrimack, Hillsborough County, New Hampshire and more
particularly described in Schedule 2.1(a) attached hereto (the "Land");
(b) all rights, privileges and easements appurtenant to the Land owned
by Seller, including, without limitation, all minerals, oil, gas, and other
hydrocarbon substances on and under the Land, as well as all development rights,
air rights, water, water rights and water stock relating to the Land, any rights
to any land lying in the bed of any existing dedicated street, road or alley
adjoining the Land and to all strips and gores adjoining the Land, and any other
easements, rights-of-way, or appurtenances used in connection with the
beneficial use and enjoyment of the Land (collectively referred to as the
"Appurtenances");
(c) all improvements located on the Land, including primarily two
buildings (collectively, the "Improvements");
(d) The fixtures and equipment used in connection with the operation
of the Improvements (which fixtures and equipment, together with the Land,
Appurtenances and Improvements, is collectively referred to as the "Real
Property");
(e) the tangible personal property, if any, described in Schedule
2.1(e) attached hereto (the "Personal Property");
(f) all of the interest of Seller to the intangible personal property,
if any, described on Schedule 2.1(f) attached hereto (the "Intangible
Property");
(g) all of Seller's interest in the Leases listed on Schedule D (the
"Leases"); and
(h) all of Seller's interest in the contracts, if any, described in
Schedule 4.1(f) attached hereto (the "Contracts") to the extent consent of any
third party is not required.
2.2 LEASE-BACK.
At Closing, Seller and Buyer shall enter into a lease agreement (the "Nashua
Lease") for approximately 155,503 rentable square feet of the building located
on the Property at 59 Daniel Webster Highway, in substantially the form attached
hereto as Schedule 2.2. The Nashua Lease shall provide for a mutually-agreeable
division of facility and building system management between Buyer and Seller. At
Closing, Seller shall deliver a budget for operation of the Improvements
containing reasonable compensation for any management and maintenance activities
undertaken by Seller. Seller's lenders have conditioned their loans to Seller in
the course of its business activity on Buyer's entering into a Collateral Access
Agreement in the form hereto as Schedule 2.2(a), and Buyer shall execute such
agreement in final form acceptable
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to Buyer, Seller, and LaSalle Bank National Association as Administrative Agent
for said lenders.
ARTICLE 3
PURCHASE PRICE; DEPOSIT; ADJUSTMENTS
3.1 PURCHASE PRICE.
On the Closing Date, the Buyer agrees to pay EIGHTEEN MILLION FIVE HUNDRED
THOUSAND DOLLARS AND NO CENTS ($18,500,000.00) (the "Purchase Price"), subject
to adjustment and as otherwise provided herein.
3.2 DEPOSIT.
Seller's Attorney holds Buyer's check for $100,000.00. Upon the execution of
this Agreement, Buyer will deposit with the Escrow Agent the balance of the
Deposit to secure Buyer's obligations under this Agreement, upon doing which
Seller's Attorney will return Buyer's check. The Escrow Agent will maintain the
Deposit and disburse the Deposit pursuant to the terms and conditions of this
Agreement and the Deposit Escrow Agreement attached hereto as Schedule 3.2 (the
"Deposit Escrow Agreement").
3.3 BALANCE OF PURCHASE PRICE.
On the Closing Date Buyer shall pay the Purchase Price less the Deposit, subject
to the adjustments provided for herein, by wire transfer of immediately
available federal funds or by cashier's, treasurer's or bank certified check;
and direct the Escrow Agent to apply the Deposit towards the Purchase Price.
3.4 PRORATIONS OF TAXES.
All real and personal property taxes attributable to the year in which the
Closing occurs shall be prorated and adjusted as of the Closing Date as an
adjustment at the Closing (regardless of whether such taxes and special
assessments are then due and payable or delinquent). If the tax statements for
the fiscal year during which the Closing Date occurs are not finally determined,
then the tax figures for the immediately prior fiscal year will be used for the
purpose of prorating taxes on the Closing Date, with a further adjustment to be
made after the Closing Date as soon as such tax figures are finalized. All
special assessments which may be amortized over a number of years will be
prorated as of the Closing Date, with Seller responsible only for the period
ending on the day prior to the Closing Date. Any tax refunds or proceeds
(including interest thereon) on account of a favorable determination resulting
from a challenge, protest, appeal or similar proceeding relating to taxes and
assessments relating to the Property (i) for all tax periods occurring prior to
the applicable tax period in which the Closing occurs will be retained by and
paid exclusively to Seller and (ii) for the applicable tax period in which the
Closing occurs will be prorated as of the Closing Date after reimbursement to
Seller and Buyer, as applicable, for all fees, costs and expenses (including
reasonable attorneys' and consultants' fees) incurred by Seller or Buyer, as
applicable, in connection with such proceedings such that Seller will retain and
be paid that portion of such tax refunds or proceeds as is applicable to the
portion of the applicable tax period prior to the Closing Date and Buyer will
retain and be paid that portion of such tax refunds or proceeds as is applicable
to the portion of the applicable tax period from and after the Closing Date.
After the Closing, Buyer will be responsible for and control any tax protests or
proceedings for any period for which taxes are adjusted between the parties
under this
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Agreement and for any later period. Buyer and Seller will cooperate in pursuit
of any such proceedings and in responding to reasonable requests of the other
for information concerning the status of and otherwise relating to such
proceedings; provided, however, that neither party shall be obligated to incur
any out-of-pocket fees, costs or expenses in responding to the requests of the
other.
3.5 PRORATIONS OF CONTRACTS AND PREPAID EXPENSES.
To the extent contracts with respect to the Property are not terminated pursuant
to Section 4.2(g) below, prepaid or past due amounts under any Assigned
Contracts will be prorated and adjusted as of the Closing Date. Buyer will be
charged for those prepaid expenses allocable to any period after the Closing
Date, including, without limitation, annual permit and confirmation fees, fees
for licenses and all security or other deposits.
3.6 UTILITIES.
Seller will cause all meters for electricity, gas, water, sewer or other utility
usage at the Property to be read on the Closing Date. Seller will pay all
charges for such utility charges which have accrued on or prior to the Closing
Date provided, however, that if and to the extent such charges are paid directly
by tenants, no such reading or payment shall be required. If the utility
companies are unable or refuse to read the meters on the Closing Date, all
charges for such utility charges to the extent unpaid will be prorated and
adjusted as of the Closing Date based on the most recent bills.
3.7 RENT PRORATIONS.
Collected rents for the then current period; and security deposits; prepaid
rentals; common area maintenance charges; promotional charges; service charges;
tax charges; and all other incidental expenses and charges paid by tenants under
the Leases, in each case to the extent collected for the current period and any
future periods, will be apportioned and full value shall be adjusted and
prorated as of the Closing Date. Except for any Interim Leases, all lease
commissions, improvement allowances and improvement commitments payable or to be
performed, before or after the Closing Date, with respect to the Leases shall be
charged to Seller as an adjustment at the Closing. Buyer will be responsible for
lease commissions, improvement allowances and improvement commitments payable or
to be performed, before or after the Closing Date, with respect to the Interim
Leases.
3.8 UNCOLLECTED RENTS.
All rentals and other charges payable in arrears and uncollected and all other
uncollected rents (including common area maintenance charges, charges for
services provided by Seller as lessor under the Leases payable by the tenants
thereunder, and adjustments and reconciliations thereto) for the current and
prior rental periods, less the reasonable third party out-of-pocket expenses of
collection thereof, will be apportioned (if and when collected by either party),
but shall not be adjusted at Closing. As to any tenants that are delinquent in
the payment of rent on the Closing Date, Buyer shall use reasonable efforts (but
shall not be required to commence legal action) to collect or cause to be
collected such delinquent rents following the Closing Date. Any and all rents so
collected by Buyer following the Closing (less a deduction for all reasonable
collection costs and expenses incurred by Buyer) will be successively applied
(x) one-half to the rent then due and payable and (y) one-half to such unpaid
rent in order of decreasing delinquency. Any rent payment made by a tenant that
is identified or designated by such tenant as payment of any
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delinquent rent shall be applied to such delinquent rent. If all or part of any
rents or other charges received by Buyer following the Closing are allocable to
Seller pursuant to the foregoing sentence, then such sums will be promptly paid
to Seller. Seller reserves the right to collect delinquent rents owed to Seller
and to pursue any damages remedy Seller may have against any tenant with respect
to such delinquent rents, but will have no right to exercise any other remedy
under any Lease (including, without limitation, termination or eviction).
3.9 ESTIMATES.
In the event, on the Closing Date, the precise figures necessary for any of the
foregoing adjustments are not capable of determination, then, at Seller's
option, those adjustments will be made on the basis of good faith estimates of
Seller using currently available information, and final adjustments shall be
made within six (6) months after the Closing Date on the basis of such precise
figures as have been determined or become available.
3.10 ADJUSTMENT PAYMENTS.
The net amount of all adjustments to be made under this Article 3 will be paid
on the Closing Date in immediately available funds. All post-closing adjustments
will be made in immediately available funds.
3.11 CALCULATION OF PRORATIONS.
All apportionments and prorations made hereunder shall be made based on the
number of days of ownership of the Property in the period applicable to the
apportionment, with Buyer entitled to income and responsible for expenses for
the Closing Date. Prorations of annual payments will be made based on the number
of days of ownership in the applicable annual period.
3.12 SELLER'S CLOSING COSTS.
At the Closing, Seller shall pay and be responsible for the amount due for (i)
one-half of the real estate transfer tax imposed on the total consideration paid
for the Real Property by RSA 78-B or any other tax or charge substituted
therefor imposed in connection with the consummation of the transaction
contemplated hereby; (ii) recording charges for any instrument which releases or
discharges any lien as required by Article 6 hereto; one-half of the fees, if
any, charged by Escrow Agent; and (iii) Seller's counsel's fees and expenses.
3.13 BUYER'S CLOSING COSTS.
At the Closing, Buyer shall pay and be responsible for (i) one-half of the real
estate transfer tax imposed on the total consideration paid for the Real
Property by RSA 78-B; (ii) recording charges (other than as listed in Section
3.13 above); (iii) charges necessary to obtain the survey described in Section
6.1 below; (iv) charges necessary to obtain the title insurance policy and all
endorsements thereto described in Section 6.1.1 below; (v) one-half of the fees,
if any, charged by Escrow Agent; and (vi) Buyer's counsel's fees and expenses.
3.14 CLOSING STATEMENT.
Seller or Escrow Agent will prepare a draft closing statement at least two (2)
days prior to the Closing.
3.15 SURVIVAL.
The provisions of Article 3 will survive the Closing.
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ARTICLE 4
REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS
4.1 SELLER'S REPRESENTATIONS AND WARRANTIES.
Seller makes the representations and warranties to Buyer which are set forth
below, as of the date of this Agreement and as of the Closing Date. Buyer
acknowledges (i) that Buyer has entered into this Agreement with the intention
of making and relying upon its own investigation of the physical, environmental,
economic and legal condition of the Property, and (ii) that, other than as
specifically set forth below in this Section 4.1, Seller is not making and has
not at any time made any representation or warranty of any kind or nature,
either oral or written, directly or indirectly, expressed, implied, statutory or
otherwise, with respect to the Property, including, without limitation,
representations or warranties as to habitability, merchantability, fitness for a
particular purpose, title (other than Seller's limited warranty of title set
forth in the Warranty Deed), zoning, tax consequences, latent or patent physical
or environmental condition, health or safety matters, utilities, operating
history or projections, valuation, projections, the applicability of any laws,
rules or regulations or compliance therewith. Buyer shall purchase the Property
on the Closing Date in its "AS IS, WHERE IS AND WITH ALL FAULTS" condition,
without any representation or warranty whatsoever, including but not limited to
the condition of the roofs of all buildings in their current condition, with
equipment attached, as aforesaid, except as set forth in this Section 4.1.
(a) This Agreement has been duly authorized, executed and delivered by
Seller and all consents required under Seller's organizational documents or by
law have been obtained. All documents that are to be executed by Seller and
delivered to Buyer on the Closing Date have been, or on the Closing Date will
be, duly executed, authorized and delivered by Seller. This Agreement and all
such documents are, and on the Closing Date will be, legal, valid and binding
obligations of Seller, enforceable in accordance with their terms and do not,
and, at the time of the Closing Date will not, violate any provisions of any
agreement or judicial or administrative order to which Seller is a party or to
which Seller or the Property (or any portion thereof) is subject.
(b) To the best of Seller's Knowledge, except as set forth in Schedule
4.1(b) attached hereto, there are no actions, suits or proceedings (including
arbitration proceedings) pending or to the best of Seller's Knowledge,
threatened against Seller which could have a material adverse effect on any
portion of the Property, Seller's interest therein, or Seller's ability to
perform its obligations hereunder, at law or in equity or before or by any
federal, state, municipal or other governmental department, commission, board,
bureau, agency or instrumentality.
(c) To the best of Seller's Knowledge, there is no pending
condemnation action against the Property.
(d) There are no leases, licenses, occupancy or related agreements or
tenancies affecting the Property other than the Leases.
(e) The copies of the Leases Seller has delivered or shall deliver
hereunder are true, accurate and complete.
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(f) Except as listed on Schedule 4.1(f) there are no material
contracts or agreements related to the use, ownership or operation of the
Property. The copies of the contracts listed on Schedule 4.1(f) Seller has
delivered or shall deliver hereunder are true, accurate and complete;
(g) Except as described in the Environmental Reports listed on
Schedule 5.5 and the Additional Environmental Documents listed on Schedule
5.5(a), Seller's use of hazardous materials in its operations at the Property
have not, to the best of Seller's Knowledge, resulted in releases of
contaminants at the Property in violation of state or federal environmental
standards.
(h) Seller is not a foreign corporation, foreign partnership or
foreign estate (as such terms are defined in Section 1445 of the Internal
Revenue Code). Seller shall provide Buyer with an affidavit to this effect at
Closing in the form provided on Schedule 8.2(h).
(i) Except as described in the Environmental Reports listed on
Schedule 5.5 and the Additional Environmental Documents listed on Schedule
5.5(a), Seller has not received any notice of material violations of legal
requirements from any governmental authority.
The representations and warranties contained herein may be relied upon by
the party receiving the same and shall survive the Closing Date for a period of
twelve (12) months from and after the Closing Date (the "Survival Period"). In
the event a written claim is made within the Survival Period, the Survival
Period shall toll with respect to such claim while such claim is outstanding.
Buyer shall not make any claim on account of a breach of representations or
warranties unless and until the aggregate measure of such claims exceeds two
percent (2%) of the Purchase Price. In no event shall the aggregate liability
for Seller to Buyer for any breach of any representation or warranty set forth
in this Section 4.1 exceed the Purchase Price.
4.2 SELLER'S COVENANTS.
Seller hereby covenants and agrees with Buyer that:
(a) At all times from the execution of this Agreement to the Closing
Date, it shall maintain the Property in substantially the same condition as the
same is in as of the date of this Agreement, subject only to reasonable use and
wear and the terms of Article 9 hereof.
(b) At all times from the execution of this Agreement to the Closing
Date, it shall maintain such casualty insurance on the Improvements as is
presently carried.
(c) From and after the date hereof through the Closing Date, Seller
shall not (i) enter into any leases affecting the Property or any portion
thereof or (ii) cancel, terminate, extend or materially modify the terms of any
Lease or Permitted Exception, (iii) apply any security deposit; (iv) enter into
any other agreements with respect to the sale or long term lease of the Property
or any portion thereof, or (v) take any action that will encumber the Property
after Closing, in each case without the prior written consent of Buyer.
(d) From and after the date hereof through the Closing Date, Seller
shall not enter into any new contracts or agreements or place any encumbrance on
the Property, if such
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contract or encumbrance would survive the Closing hereunder, without the prior
written consent of Buyer.
(e) Seller agrees to terminate as of the Closing Date, any property
management, leasing brokerage and service contract or agreement relating to the
Property unless Buyer requests otherwise, by written notice to Seller prior to
the expiration of the Inspection Period. Any service contracts or agreements
which are designated by Buyer as contracts or agreements which should not be
terminated shall be assigned, which assignment shall be without recourse to
Seller, to Buyer at Closing (the "Assigned Contracts").
(f) Seller shall prepare tenant estoppel certificates for each tenant
in the form of Schedule 4.2(f) attached hereto and submit the same to all
tenants.
(g) Seller shall assign, which assignment shall be without recourse to
Seller, all warranties relating to the Property to Buyer at Closing.
(h) At Closing, Seller shall execute a Post-Closing Remediation
Agreement in the form attached as Schedule 4.2(h).
4.3 BUYER'S REPRESENTATIONS AND WARRANTIES.
Buyer hereby represents and warrants to Seller as of the date of this Agreement
and as of the Closing Date that this Agreement has been duly authorized,
executed and delivered by Buyer and all consents required under Buyer's
organizational documents or by law have been obtained. All documents that are to
be executed by Buyer and delivered to Buyer on the Closing Date have been, or on
the Closing Date will be, duly executed, authorized and delivered by Buyer. This
Agreement and all such documents are, and on the Closing Date will be, legal,
valid and binding obligations of Buyer, enforceable in accordance with their
terms and do not, and, at the time of the Closing Date will not, violate any
provisions of any agreement or judicial or administrative order to which Buyer
is a party or to which Buyer is subject.
4.4 HAZARDOUS MATERIALS INDEMNITIES.
Seller shall indemnify Buyer, Buyer's lenders and their respective successors
and assigns against all costs and damages (including reasonable attorney's fees)
resulting from (i) the environmental condition of the Real Property as of the
Closing Date; (ii) any environmental contamination of the Real Property after
the Closing Date to the extent the same is due to any act or omission of Seller
or any affiliate of Seller or any of their respective employees, contractors,
invitees, representatives or agents; or (iii) Seller's breach of the
Post-Closing Remediation Agreement to be executed pursuant to Section 4.2(h).
This indemnity is conditioned on Buyer:
(a) providing written notice to Seller of any claim or action within
the earlier of (1) thirty (30) days of the receipt of notice by Buyer of
any present or pending claim or action with respect to environmental
conditions at the Real Property, or the incurring of any cost related to
the same, or (2) fourteen (14) days prior to the due date of any required
filing or notice with a court or other governmental agency, including but
not limited to any appearance, answer or other pleading, related to such
claim or action;
Nashua-Equity P&S Page 14 of 55 November 6, 2006
(b) permitting Seller to control all communications with the proponent
of any such claim or action and to make all decisions, including (without
limitation) any decision on choice of counsel, settlement or compromise,
with respect to the defense of the same, provided that without limiting
Seller's discretion and control, Seller shall use reasonable efforts to
keep Buyer informed on the status of such claim or action and to consider
Buyer's timely-submitted views on settlement or compromise of such claim or
action;
(c) cooperating with Seller in the defense of any claim or action,
including (without limitation) providing any and all necessary access to
areas of the Real Property not leased by Seller; and
(d) providing notice of the provisions of this Section 4.4 in any
transfer of the Real Property.
The provisions of this Section 4.4 shall survive the Closing or any earlier
termination of this Agreement.
ARTICLE 5
ACCESS, INSPECTION, DILIGENCE
5.1 INSPECTIONS.
Seller agrees that Buyer and its authorized agents or representatives shall be
entitled to enter upon the Real Property and the Improvements during normal
business hours upon forty-eight (48) hours advance written notice to Seller to
make such investigations, studies and tests, including tenant interviews,
surveys, and engineering studies, as Buyer deems necessary or advisable, subject
to the conditions of this Article 5 and the Access and Indemnity Agreement
between the parties dated August 1, 2006 and attached as Schedule 5.1.
5.2 PROPERTY INVESTIGATIONS
All investigations made by Buyer will be at Buyer's sole cost and expense, will
be performed without causing any damage to the Property and without undue
interference with the normal business operations of the Premises, including
without limitation, the rights of tenants at the Property, and will be performed
in the presence of one or more of Seller's representatives. Buyer shall not
cause any adverse impact to the Property and will restore the Property in a
timely manner at Buyer's sole cost to the condition that existed immediately
prior to the Property Investigations. The investigations may consist of, without
limitation, (1) an update of the Survey; (2) a structural investigation of the
Improvements and a resulting Building Condition Report; and (3) a Phase I
Environmental Site Assessment satisfying ASTM standards and satisfactory to
Buyer (all investigations of the Property or any materials regarding the
ownership, management, use or operation of the Property are collectively called
the "Property Investigations"). With respect to any invasive Property
Investigations (e.g. Phase II environmental site assessments), Buyer will obtain
Seller's advance approval of the scope of any proposed activities, particularly
as they may involve the investigations of ground water or subsurface soil
conditions, and allow one or more of Seller's representatives to be present
during
Nashua-Equity P&S Page 15 of 55 November 6, 2006
any such activities. Buyer will promptly provide Seller, at Seller's request,
with a copy of any report, draft report or evaluation ("Reports") which
indicates the presence of hazardous substances on the Property or the violation
of any applicable law, or any other Report prepared in connection with the
Property investigations. Except as specifically provided below, Buyer agrees to
keep confidential and not to disclose the results of its Property Investigations
or the contents of any Reports.
5.3 DISCLOSURE. In the event that Buyer determines that Buyer is required by
applicable law to notify a federal, state or local governmental agency or any
other party with respect to the conditions at the Property as a result of any
Property Investigation, Buyer shall immediately notify Seller and Seller shall
make such disclosure as Seller determines appropriate. If Seller determines not
to notify such public agency or other party after such notice and Buyer feels
that Buyer is still required by law to make such disclosure and so notify
Seller, Seller will hire an independent consultant reasonably approved by Buyer
to make the determination for Seller of whether such public disclosure is
required and such determination will be binding upon both Buyer and Seller.
5.4 INDEMNITY/INSURANCE.
Buyer assumes all risks associated with the Property Investigations and
Indemnifies, defends and holds Seller, its members, principals, agents,
representatives, attorneys and employees harmless against any and all claims,
actions, suits, demands, losses, liabilities, damages, costs and/or expenses
(including without limitation attorneys' fees and costs) on account of any act,
omission or negligence by Buyer or Buyer's agents or employees in connection
with the Property Investigations. Buyer agrees at all times during the entries
onto the Property that Buyer will procure and maintain in effect commercial
general liability insurance on an occurrence basis (including contractual
liability, contractor's protective liability, personal injury and property
damage coverage) in a combined single limit of at least One Million Dollars
($1,000,000), with a deductible of no more than $50,000, employer's liability in
the amount of not less than One Million Dollars ($1,000,000) (each accident) and
the statutory limit with respect to workers compensation and will provide Seller
with evidence of such insurance coverage prior to the first entry onto the
Property. Such insurance may be maintained directly by Buyer or by Buyer's
members or contractors, provided that Buyer is named on any and all such
policies as either a named insured or an additional insured. The provisions of
this Section 5.4 shall survive Closing or earlier termination of this Agreement.
5.5 DUE DILIGENCE MATERIALS.
Seller has provided Buyer with the information and materials listed on Schedule
5.5 attached hereto (the "Due Diligence Materials"). All such materials have
been delivered in their "as-is" condition without any representations or
warranties to the accuracy thereof. Seller shall, during normal business hours,
upon advance written request by Buyer make all books, records, plans, building
specifications, contracts, agreements or other instruments or documents
contained in Seller's files relating to the construction, operation and
maintenance of the Property (including without limitation the Additional
Environmental Documents set forth on Schedule 5.5(a)) available to Buyer to
inspect and copy at Buyer's expense.
5.6 INSPECTION PERIOD.
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5.7 EXTENSION OF INSPECTION PERIOD.
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ARTICLE 6
TITLE AND SURVEY
6.1 TITLE AND SURVEY REVIEW.
Buyer will cause to be prepared for its benefit any title insurance commitments,
including such affirmative insurance and endorsements as Buyer may desire. Buyer
will also cause to be prepared an update of the ALTA survey provided by Seller
and listed on Schedule 5.2 (the "Survey") of the Real Property (any such title
commitment and the survey are referred to as the "Title Evidence").
6.2 TITLE OBJECTION.
Within fifteen days after the date hereof, Buyer shall make any written
objections ("Title Objections") to the form and/or contents of the Title
Evidence as Buyer may wish and provide the same to Seller along with copies of
the Title Evidence. Buyer's failure to make Title Objections with respect to a
particular matter within such time period will constitute a waiver of Title
Objections with respect to a particular matter. Any matter shown on such Title
Evidence and not objected to by Buyer shall be a "Permitted Exception"
hereunder.
6.3 SELLER'S CURE OF TITLE OBJECTIONS.
Seller may, in its sole discretion, attempt to cure any Title Objections raised
by Buyer, and any such attempt shall not obligate it to expend in excess of ten
thousand dollars ($10,000.00 (except with regard to Monetary Liens, below). If
Seller notifies Buyer in writing that it elects not to attempt to cure any title
objections raised by Buyer, then Buyer may within three (3) days of receipt of
such notice, terminate this Agreement and receive a refund of the Deposit in
accordance with the Deposit Escrow Agreement. If Buyer fails to give such notice
of termination, it shall proceed to Closing without any reduction in the
Purchase Price. Notwithstanding the foregoing, with respect to voluntary liens
securing payment of an ascertainable amount ("Monetary Liens"), Seller shall
remove or cure by payment of funds from Closing. The Closing shall be extended
for a period of up to thirty (30) days to permit Seller to cure any Title
Objections which it elects to attempt to cure (the "Cure Period"). Seller shall
remove any encumbrances or exceptions to title which are created by, through or
under Seller after the date of the Title Insurance Commitment and which are not
consented to by Buyer under the terms hereof. Buyer shall have the right to a
dollar-for-dollar adjustment under Article 3 in favor of Buyer in the amount of
any Monetary Liens which are unsatisfied on the Closing Date. If any Title
Objections remain uncured prior to Closing, Buyer will have the option as its
sole and exclusive remedies to (i) terminate this Agreement and receive a refund
of the Deposit in accordance with the Deposit Escrow Agreement or (ii) proceed
to close without any reduction in the Purchase Price. If Buyer elects the
latter, any uncured Title Objections shall be deemed Permitted Encumbrances.
6.4 REQUIRED STATE OF TITLE.
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At the Closing, Seller shall convey by warranty deed to Buyer (or to Buyer's
nominee) good and clear record and marketable fee simple title to all of the
Real Property free and clear of any and all tenancies and other occupancies,
liens, encumbrances, conditions, easements, assessments, restrictions and other
conditions, except for the following:
(a) The lien, if any, for real estate taxes not yet due and payable;
(b) The Leases;
(c) The Permitted Exceptions; and
(d) Provisions of existing building and zoning laws.
6.5 PERSONAL PROPERTY.
At the Closing, Seller shall convey to Buyer by bill of sale substantially in
the form attached hereto as Schedule 8.2(b) the Personal Property [and the
Intangible Property, if any].
ARTICLE 7
CONDITIONS TO SELLER'S AND BUYER'S PERFORMANCE
7.1 CONDITIONS TO SELLER'S OBLIGATIONS.
The obligations of Seller to consummate the transaction contemplated by this
Agreement are, in addition to the other terms and conditions of this Agreement,
subject to the following (any one or more of which may be waived in whole or in
part by Seller at its discretion):
(a) The representations and warranties made by Buyer in this Agreement
being true and correct in all material respects on and as of the Closing
Date with the same force and effect as though such representations and
warranties had been made as of the Closing Date, and Buyer shall deliver a
certificate to such effect at Closing;
(b) Buyer having performed in all material respects all monetary covenants
and all material obligations required by this Agreement to be performed by
Buyer on or prior to the Closing Date; and
(c) Buyer shall have paid, and Seller shall have received, the Purchase
Price, as adjusted and prorated hereunder;
7.2 CONDITIONS TO BUYER'S OBLIGATIONS.
The obligations of Buyer to consummate the transaction contemplated by this
Agreement are, in addition to the other terms and conditions of this Agreement,
subject to the following (any one or more of which may be waived in whole or in
part by Buyer at its discretion):
(a) The representations and warranties made by Seller in this Agreement
being true and correct in all material respects on and as of the Closing
Date with the same force and effect as though such representations and
warranties had been made as of the Closing Date, and Seller shall deliver a
certificate to such effect at Closing;
Nashua-Equity P&S Page 18 of 55 November 6, 2006
(b) Seller having performed in all material respects all covenants and
obligations in all material respects required by this Agreement to be
performed by Seller on or prior to the Closing Date;
(c) All service and maintenance contracts not approved by and being
assigned to Buyer shall have been terminated in accordance with Section
4.1(g) above;
(d) Receipt by Buyer at least five days prior to the Closing of estoppel
certificates in the form attached as Schedule 4.2(f), dated within thirty
(30) days of the Closing Date, from the tenants under the Leases; and
(e) Subject to Article 9 hereof, between the expiration of the Inspection
Period and the Closing Date there shall have occurred no material adverse
change in (i) the condition of the Property or (ii) title to the Property,
such as the appearance of title matters not previously disclosed in the
Title Commitment.
ARTICLE 8
CLOSING
8.1 CLOSING.
The consummation of the transaction contemplated in this Agreement (the
"Closing") shall occur at the offices of Title Company in escrow pursuant to
instructions in the form set forth on Schedule 8.1 at 10:00 a.m. on November 29,
2006 (the "Closing Date"). It is agreed that time is of the essence in this
Agreement.
8.2 SELLER'S CLOSING DELIVERIES.
On the Closing Date Seller shall deliver the Real Property free and clear of
occupants other than tenants under the Leases and the Nashua Lease, and the
Improvements (except for such areas as are leased to the tenants under the
Leases) free and clear of all of Seller's personal property not conveyed
hereunder and of all property of such tenants (except for such property as is
contemplated by the Leases and used in the ordinary course of such tenants'
businesses. Seller shall further deliver or cause to be delivered at its expense
each of the following items to Buyer:
(a) A duly executed and acknowledged warranty deed or deeds conveying the
Real Property to Buyer with title as provided in Section 6.3, such deed or
deeds to be in the form attached hereto as Schedule 8.2(a);
(b) A duly executed bill of sale and general assignment conveying the
Personal Property [and the Intangible Property, if any] to Buyer in the
form attached hereto as Schedule 8.2(b);
(c) A duly executed assignment and assumption agreement regarding the
Leases and associated rents, contracts, deposits, escrow accounts etc. (the
"Assignment of Leases") in the form attached hereto as Schedule 8.2(c);
(d) A duly executed assignment and assumption of the Assigned Contracts and
the Intangible Property (the "Assignment of Contracts") together with
original counterparts of the Assigned Contracts and any warranties and
guaranties and agreements governing the Intangible Property in the form
attached as Schedule 8.2(d).
Nashua-Equity P&S Page 19 of 55 November 6, 2006
(e) A certificate or certificates of non-foreign status from Seller in the
form attached hereto as Schedule 8.2(e);
(f) Customary affidavits sufficient for the Title Company to delete any
exceptions for parties in possession (other than tenants under Leases),
mechanic's or materialmen's liens from Buyer's title policy;
(g) Evidence reasonably satisfactory to Buyer and the Title Company of
Seller's authority to convey the Property pursuant to this Agreement in
form and substance satisfactory to Buyer and the Title Company;
(h) A counterpart original of the closing statement setting forth the
Purchase Price, the closing adjustments and the application of the Purchase
Price as adjusted;
(i) Fully-executed originals of the estoppel certificates provided for in
Section 7.2(d);
(j) Original executed notices to tenants regarding the transfer of the
Property in the form of Schedule 8.2(j) attached hereto;
(k) Any and all transfer tax returns, declarations of value or other
documents required to be signed by Seller under applicable law or necessary
for recordation of the deed;
(l) Evidence that all contracts relating to the Property (other than the
Assigned Contracts) have been terminated;
(m) All books, records, plans, specifications, contracts, agreements and
other instruments or documents to the extent requested by Buyer and in the
possession of Seller related to the construction, operation and maintenance
of the Property;
(n) Keys to all locks on the Property in Seller's possession or control,
other than those required by Seller as Tenant under the Nashua Lease; and
(o) A Certificate from Seller stating that all representations and
warranties set forth in Section 4.1 hereof remain true, accurate and
complete as of the Closing Date.
(p) The Nashua Lease, executed by Seller.
8.3 BUYER'S CLOSING DELIVERIES.
On the Closing Date Buyer shall deliver or cause to be delivered at its expense
each of the following to Seller:
(a) A counterpart original of the closing statement setting forth the
closing adjustments;
(b) Such other instruments as Seller may reasonably request to effectuate
the transaction contemplated by this Agreement without additional liability
or expense to Buyer;
(c) A duly executed counterpart of the Assignment of Leases;
(d) A duly executed counterpart of the Assignment of Contracts;
Nashua-Equity P&S Page 20 of 55 November 6, 2006
(e) The Nashua Lease, executed by Buyer; and
(f) The Collateral Access Agreement set forth on Schedule 2.2(a).
(g) The budget contemplated by Section 2.2.
8.4 DELIVERY OF DEPOSIT.
On the Closing Date the Escrow Agent will deliver or cause to be delivered the
Deposit pursuant to the terms of the Deposit Escrow Agreement.
ARTICLE 9
CASUALTY AND CONDEMNATION
9.1 DAMAGE OR DESTRUCTION/EMINENT DOMAIN.
Buyer is bound to purchase the Property as required by the terms of this
Agreement without regard to the occurrence or effect of any damage to or
destruction of the Property or condemnation of the Property by right of eminent
domain, provided that the occurrence of any damage or destruction to the
Property involves repair costs equal to or less than $1,000,000.00 ("Damage
Threshold Amount"), and any condemnation does not materially and adversely
affect the use and value of the Property ("Immaterial Condemnation"). If Buyer
is so bound to purchase the Property notwithstanding the occurrence of damage,
destruction or condemnation, then upon the Closing: (i) in the event of damage
covered by insurance or an Immaterial Condemnation occurring during the period
prior to Closing Date, Buyer shall receive a credit against the Purchase Price
for such Property in the amount (net of collection costs and costs of repair
reasonably incurred by the Seller and not then reimbursed) of any insurance
proceeds or condemnation award collected and retained by the Seller as a result
of any such damage, destruction or condemnation, plus (in the case of damage)
the amount of the deductible portion of the Seller's insurance policy, and the
Seller shall assign to Buyer all rights to such net insurance proceeds or
condemnation awards as shall not have been collected prior to the Closing; and
(ii) in the event of damage not covered by insurance, Buyer shall receive a
credit (up to the Damage Threshold Amount) in the amount of the estimated cost
to repair such damage.
9.2 MAJOR CASUALTY.
If any of the Improvements are damaged by fire or any other casualty (the cost
for repair of which is reasonably estimated to exceed $1,000,000.00 and are not
substantially restored to the condition immediately prior to such casualty
before the Closing Date, Buyer shall have the following elections:
(a) to acquire the Property in its then condition and pay the Purchase
Price without regard to the casualty, in which event Seller shall pay over
or assign to Buyer, on delivery of the deed, (i) all amounts recovered or
recoverable by Seller on account of any insurance as a result of such
casualty, less amounts reasonably expended by Seller for partial
restoration; and (ii) an amount of money equal to Seller's deductible or
Nashua-Equity P&S Page 21 of 55 November 6, 2006
(b) to terminate this Agreement in which event the Escrow Agent shall
return the Deposit pursuant to the terms of the Deposit Escrow Agreement,
this Agreement shall terminate and neither Seller nor Buyer shall have any
recourse against the other.
9.3 MATERIAL CONDEMNATION.
If any portion of or interest in the Property shall be taken or is in the
process of being taken by exercise of the power of eminent domain or if any
governmental authority notifies Seller prior to the Closing Date of its intent
to take or acquire any portion of or interest in the Property, and such
condemnation would materially and adversely affect the value of the Property
("Material Condemnation"), Seller shall give notice promptly to Buyer of such
event, and Buyer shall have the option to terminate this Agreement by providing
notice to Seller to such effect on or before the date which is ten (10) days
from such notice or on the Closing Date, whichever occurs first, in which event
the Escrow Agent shall return the Deposit pursuant to the terms of the Deposit
Escrow Agreement, this Agreement shall terminate, and neither Seller nor Buyer
shall have any recourse against the other. If Buyer does not timely notify
Seller of its election to terminate this Agreement, Buyer shall purchase the
Property and pay the Purchase Price, and Seller shall pay over or assign to
Buyer on delivery of the deed all awards recovered or recoverable by Seller on
account of such Material Condemnation, less any amounts reasonably expended by
Seller in obtaining such award.
ARTICLE 10
BROKERAGE COMMISSIONS
10.1 REPRESENTATIONS AND INDEMNITY.
Seller and Buyer each mutually represent and warrant to the other that they have
not dealt with, and are not obligated to pay, any fees or commissions to any
broker in connection with the transaction contemplated by this Agreement other
than CB Richard Ellis - New England (the "Broker"). Seller is responsible for
the compensation of the Broker pursuant to a separate agreement. Seller hereby
agrees to indemnify, defend and hold Buyer harmless from and against all
liabilities, costs, damages and expenses (including reasonable attorneys' fees)
arising from any claims for brokerage or finder's fees, commissions or other
similar fees in connection with the transaction covered by this Agreement
insofar as such claims (including without limitation any claim by Cushman &
Wakefield) shall be based upon alleged arrangements or agreements made by Seller
or on Seller's behalf. Buyer hereby agrees to indemnify, defend and hold Seller
harmless from and against all liabilities, costs, damages and expenses
(including reasonable attorneys' fees) arising from any claims for brokerage or
finders' fees, commissions or other similar fees in connection with the
transaction covered by this Agreement insofar as such claims shall be based upon
alleged arrangements or agreements made by Buyer or on Buyer's behalf,
including, but not limited to the Broker. The covenants and agreements contained
in this Article shall survive the termination of this Agreement or the Closing
of the transaction contemplated hereunder.
ARTICLE 11
DEFAULT, TERMINATION AND REMEDIES
11.1 SELLER DEFAULT.
Nashua-Equity P&S Page 22 of 55 November 6, 2006
In the event that Seller breaches its obligations hereunder, the Buyer may elect
the following as Buyer's sole and exclusive remedies: (i) elect to terminate
this Agreement and receive the Deposit, in which event this Agreement shall be
null and void without further recourse to either party hereto (other than with
respect to those specific provisions herein which, by their terms, expressly
survive termination), or (ii) take legal actions necessary to compel Seller's
specific performance hereunder (it being acknowledged that damages at law would
be an inadequate remedy), and to consummate the transaction contemplated by this
Agreement in accordance with the provisions of this Agreement. As a condition
precedent to Buyer exercising any right it may have to bring an action for
specific performance hereunder, Buyer must commence such an action within sixty
(60) days after the occurrence of Seller's default. Buyer agrees that its
failure to timely commence such an action for specific performance within such
sixty (60) day period shall be deemed a waiver by it of its right to commence an
action for specific performance as well as a waiver by it of any right it may
have to file or record a notice of lis pendens or notice of pendency of action
or similar notice against any portion of the Property. In no event shall Seller
be liable to Buyer for any other remedies, including any claims for any damages
(except as expressly provided under item (i) above), including, without
limitation, additional compensatory damages, special damages, consequential
damages (including, without limitation, damages for lost profits, delay, changes
in market conditions, etc.) or punitive damages, based upon any breach or
default under this Agreement or any other act, error or omission by Seller
(including lost profits) or punitive damages based upon any breach of this
Agreement, including, without limitation, breaches of representation or warranty
(the foregoing is not, however, intended to preclude Buyer from recovering, in
accordance herewith, its actual damages resulting from any breach of Seller's
representations and warranties after Closing). Buyer further agrees that
recourse for any liability of Seller under this Agreement or any document or
instrument delivered simultaneously or in connection with or pursuant to this
Agreement shall be limited as set forth herein, and solely to (i) the Property,
if Closing has not occurred, or (ii) following the Closing, the amount of the
Purchase Price allocated and distributed to Seller. In no event shall Buyer seek
satisfaction for any obligation from any partners, members, managers,
shareholders, officers, directors, employees, agents, legal representatives,
successors or assigns of Seller, nor shall any of the foregoing have any
personal liability for any such obligations of Seller.
11.2 BUYER DEFAULT.
Should Buyer default in its obligation to close hereunder, Seller shall be
entitled to receive the Deposit as liquidated damages, in lieu of all other
remedies available to Seller at law or in equity for such default. Seller and
Buyer agree that the damages resulting to Seller as a result of such default by
Buyer as of the date of this Agreement are difficult or impossible to ascertain
and the liquidated damages set forth in the preceding sentence constitute
Buyer's and Seller's reasonable estimate of such damages. The Deposit shall not,
however, constitute liquidated damages in lieu of any indemnification
obligations of the Buyer hereunder.
ARTICLE 12
MISCELLANEOUS
12.1 ASSIGNMENT.
Buyer may not assign any of Buyer's rights or duties hereunder without the prior
written consent of Seller, which consent may be withheld by Seller in its sole,
absolute discretion. The
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covenants and agreements contained in this Agreement shall extend to and be
obligatory upon the permitted successors and assigns of the respective parties
to this Agreement.
12.2 NOTICES.
Any notice required or permitted to be delivered under this Agreement shall be
in writing and shall be deemed given (i) when delivered or refused by hand
during regular business hours, (ii) three (3) days after being sent by United
States Postal Service, registered or certified mail, postage prepaid, return
receipt requested and first class mail, postage prepaid, (iii) the next day if
sent by a reputable national overnight express mail service that provides
tracing and proof of receipt or refusal of items mailed, or (iv) when sent by
facsimile during business hours, if and when acknowledged by the receiving
party. All notices shall be addressed to Seller or Buyer, as the case may be, at
the address or addresses or facsimile number set forth below or such other
addresses as the parties may designate in a notice similarly sent. Any notice
given by a party to Escrow Agent shall be simultaneously given to the other
party. Any notice given by a party to the other party relating to its
entitlement to the Deposit shall be simultaneously given to the Escrow Agent.
Notices to Seller, Buyer and/or Escrow Agent shall be delivered as follows:
If to Seller:
Nashua Corporation
Attn: John L. Patenaude, CFO
11 Trafalgar Square
Nashua, NH 03063
Phone: (603) 880-2145
FAX: (603) 880-2884
with a copy to:
Rath, Young & Pignatelli, P.C.
One Capital Plaza
Concord, NH 03302
Attn: William F. J. Ardinger, Esq.
Phone: (603) 226-2600
FAX: (603) 226-2700
If to Buyer:
Equity Industrial Partners Corp.
145 Rosemary Street, Suite E,
Needham, Massachusetts 02494
Attn: Donald A. Levine, President
Phone: (781) 449-9000
FAX: (781) 449-9050
with a copy to:
Nashua-Equity P&S Page 24 of 55 November 6, 2006
Dionne & Gass LLP
131 Dartmouth Street
Suite 501
Boston, MA 02116
Attn: Richard D. Gass, Esq.
Phone: (617) 723-3300
FAX: (617) 723-4151
If to Escrow Agent:
Rath, Young & Pignatelli, P.C.
One Capital Plaza
Concord, NH 03302
Attn: William F. J. Ardinger, Esq.
Phone: (603) 226-2600
FAX: (603) 226-2700
12.3 INTERPRETATION.
Words of any gender used in this Agreement shall be held and construed to
include any other gender, and words of a singular number shall be held to
include the plural and vice versa, unless the context requires otherwise.
12.4 CAPTIONS.
The captions used in connection with the Articles of this Agreement are for
convenience only and shall not be deemed to extend, limit or otherwise define or
construe the meaning of the language of this Agreement.
12.5 NO THIRD-PARTY BENEFICIARIES.
Nothing in this Agreement, express or implied, is intended to confer upon any
person, other than the parties hereto and their respective successors and
assigns, any rights or remedies under or by reason of this Agreement.
12.6 AMENDMENTS.
This Agreement may be amended only by a written instrument executed by Seller
and Buyer (or Buyer's permitted assignee or permitted transferee).
12.7 INTEGRATION.
This Agreement (including the schedules and exhibits) embodies the entire
agreement between Seller and Buyer with respect to the transactions contemplated
in this Agreement, and there have been and are no covenants, agreements,
representations, warranties or restrictions between Seller and Buyer with regard
thereto other than those set forth or provided for in this Agreement.
12.8 CHOICE OF LAW.
This Agreement shall be construed under and in accordance with the laws of the
State of New Hampshire.
12.9 COUNTERPARTS.
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This Agreement may be executed in two (2) or more counterparts, each of which
shall be an original but such counterparts together shall constitute one and the
same instrument notwithstanding that both Buyer and Seller are not signatory to
the same counterpart.
12.10 BUSINESS DAY.
In the event any date hereunder (including the Closing Date) falls on a
Saturday, Sunday or Legal Holiday, the date applicable shall be the next
business day.
12.11 TIME OF THE ESSENCE.
Time is of the essence of this Agreement.
12.13 USE OF PROCEEDS TO CLEAR TITLE.
To enable Seller to make conveyance as herein provided, Seller may, at the time
of Closing, use the Purchase Price or any portion thereof to clear the title of
any or all encumbrances or interests, provided that provision reasonably
satisfactory to Buyer's attorney is made for prompt recording of all instruments
so procured in accordance with conveyancing practice in the jurisdiction in
which the Property is located.
12.14 SUBMISSION NOT AN OFFER OR OPTION.
The submission of this Agreement or a summary of some or all of its provisions
for examination or negotiation by Buyer or Seller does not constitute an offer
by Seller or Buyer to enter into an agreement to sell or purchase the Property,
and neither party shall be bound to the other with respect to any such purchase
and sale until a definitive agreement satisfactory to the Buyer and Seller in
their sole discretion is executed and delivered by both Seller and Buyer.
ARTICLE 13
IRS FORM 1099-S DESIGNATION
13.1 DESIGNEE.
In order to comply with information reporting requirements of Section 6045(e) of
the Internal Revenue Code of 1986, as amended, and the Treasury Regulations
thereunder, the parties agree (i) to execute an IRS Form 1099-S Designation
Agreement in the form attached hereto as Schedule 13.1 at or prior to the
Closing to designate Escrow Agent (the "Designee") as the party who shall be
responsible for reporting the contemplated sale of the Property to the Internal
Revenue Service (the "IRS") on IRS Form 1099-S; (ii) to provide the Designee
with the information necessary to complete Form 1099-S; (iii) that the Designee
shall not be liable for the actions taken under this Agreement, or for the
consequences of those actions, except as they may be the result of gross
negligence or willful misconduct on the part of the Designee; and (iv) that the
Designee shall be indemnified by the parties for any costs or expenses incurred
as a result of the actions taken hereunder, except as they may be the result of
gross negligence or willful misconduct on the part of the Designee. The Designee
shall provide all parties to this transaction with copies of the IRS Forms
1099-S filed with the IRS and with any other documents used to complete IRS Form
1099-S.
Nashua-Equity P&S Page 26 of 55 November 6, 2006
[Remainder of Page Intentionally Left Blank]
Nashua-Equity P&S Page 27 of 55 November 6, 2006
IN WITNESS WHEREOF, the parties have executed this instrument as of the day
and year first set forth above.
SELLER:
By: /s/ John L. Patenaude
------------------------------------
John L. Patenaude,
Vice President-Finance /
CFO and Treasurer
BUYER:
By: /s/ Donald A. Levine
------------------------------------
Donald A. Levine, President
Nashua-Equity P&S Page 28 of 55 November 6, 2006
SCHEDULE 2.1(A)
DESCRIPTION OF LAND
[Intentionally Omitted]
Nashua-Equity P&S Page 29 of 55 November 6, 2006
SCHEDULE 2.1(E)
Personal Property
[Intentionally Omitted]
Nashua-Equity P&S Page 30 of 55 November 6, 2006
SCHEDULE 2.1(F)
Intangible Property
[Intentionally Omitted]
Nashua-Equity P&S Page 31 of 55 November 6, 2006
SCHEDULE 2.1(G)
LEASES
[Intentionally Omitted]
Nashua-Equity P&S Page 32 of 55 November 6, 2006
SCHEDULE 2.2
Nashua Lease
[Intentionally Omitted]
Nashua-Equity P&S Page 33 of 55 November 6, 2006
SCHEDULE 2.2(A)
COLLATERAL ACCESS AGREEMENT
[Intentionally Omitted]
Nashua-Equity P&S Page 34 of 55 November 6, 2006
SCHEDULE 3.2
FORM OF DEPOSIT ESCROW AGREEMENT
[Intentionally Omitted]
Nashua-Equity P&S Page 35 of 55 November 6, 2006
SCHEDULE 4.1(B)
LIST OF LEGAL PROCEEDINGS
[Intentionally Omitted]
Nashua-Equity P&S Page 36 of 55 November 6, 2006
SCHEDULE 4.1(F)
LIST OF CONTRACTS
[Intentionally Omitted]
Nashua-Equity P&S Page 37 of 55 November 6, 2006
SCHEDULE 4.2(F)
FORM OF TENANT ESTOPPEL CERTIFICATE
[Intentionally Omitted]
Nashua-Equity P&S Page 38 of 55 November 6, 2006
SCHEDULE 4.2(H)
POST-CLOSING REMEDIATION AGREEMENT
This Post-Closing Remediation Agreement is entered into by and between
Nashua Corporation, a Massachusetts corporation (the "Seller") and Equity
Industrial Partners Corp., a Massachusetts corporation (the "Buyer") pursuant to
that certain Purchase and Sale Agreement between Buyer and Seller dated as of
November 6, 2006. Capitalized terms used but not defined herein shall have the
meanings given them in the Purchase and Sale Agreement.
WITNESSETH:
WHEREAS, past releases of polychlorinated biphenyls ("PCBs") and toluene at
the Real Property (the "Environmental Conditions") have been identified at the
Real Property which will require ongoing monitoring and/or other corrective
action;
WHEREAS it is the intention of Buyer and Seller that the Buyer shall not be
responsible for nor bear any of the costs associated with monitoring or
remediating the Environmental Conditions; and
WHEREAS, the parties desire to proceed to Closing prior to the completion
of such monitoring and/or remediation.
NOW, THEREFORE, in consideration of the foregoing and to induce Buyer to
proceed with the closing, the parties agree as follows:
1. ENVIRONMENTAL REMEDIAL ACTION PROCEDURES. Seller shall undertake and
continue the remedial activities and groundwater monitoring obligations as
referenced in the attached, unsigned letter from Seller's attorney to Buyer's
attorney dated October 20, 2006 and entitled "Roberts Consulting Environmental
Liabilities Memo and Cost Estimates, Nashua Corp. Facility, Merrimack"
(hereinafter, the "Response Letter" and such activities, the "Remedial
Activities"). Seller shall implement the environmental control systems outlined
in the Response Letter, and shall provide the financial assurances outlined in
the Response Letter, including putting in place at Closing a policy of
environmental insurance reasonably satisfactory to the parties hereto as Exhibit
A. In the event of a conflict between the terms of this Post-Closing Remediation
Agreement or the Purchase and Sale Agreement and the Response Letter, the terms
of the Response Letter shall control.
a. Seller shall undertake the Remedial Activities until groundwater
concentrations have achieved Ambient Groundwater Quality Standards ("AGQSs") in
monitoring wells for at least two consecutive sampling rounds, or until the NH
Department of Environmental Services ("NHDES") provides a letter stating that no
further action is required (an "NFA Letter").
b. Seller will at its expense continue the groundwater monitoring and
reporting required at the site in accordance with the Groundwater Management
Permit (GWP-198711006-M-002), which will be maintained by Seller. Monitoring
will discontinue once groundwater achieves
Nashua-Equity P&S Page 39 of 55 November 6, 2006
AGQS for at least two consecutive sampling rounds or until the NHDES provides an
NFA Letter.
c. Buyer shall allow Seller to control all communications with NHDES and
EPA and make all decisions, including (without limitation) any decision on
choice of counsel, settlement or compromise, with respect to the Remedial
Activities, provided that without limiting Seller's discretion and control,
Seller shall keep Buyer reasonably informed of the progress of the Remedial
Activities. Buyer and Seller shall designate an individual responsible for
communication with each party and their environmental consultants with respect
to the Remedial Activities and notify each other of the identity of such
individual.
d. Seller shall provide Buyer with reasonable advance notice of all
Remedial Activities and reasonable opportunity to observe such activities. Buyer
shall be entitled at its cost to obtain splits of any samples obtained in the
course of conducting the Remedial Activities.
e. Seller shall agree to diligently and expeditiously perform or cause to
be performed all Remedial Activities to completion and in a commercially
reasonable manner. Seller agrees to use its best efforts to avoid and minimize
any damage to real or personal property or harm to any persons on the Real
Property as well as to minimize any interference with or disruption of the
Buyer's operations.
f. Buyer shall cooperate with Seller to minimize the costs associated with
the Remedial Activities, including (if necessary) providing reasonable access to
areas of the Real Property not leased by Seller, and making Buyer's personnel
available as may be reasonably required to review and prepare Remedial
Activities plans and to implement the Remedial Activities.
g. All Remedial Activities performed by or on behalf of Seller shall comply
with State and federal health and safety requirements.
h. If Seller fails to implement any Remedial Activity in accordance with
the time frames set forth herein, Buyer may implement the same on Seller's
behalf, and Seller shall promptly reimburse Buyer for costs incurred in doing
so, including reasonable attorneys' fees. This right to cure Seller's breach is
conditioned on Buyer having provided Seller with thirty (30) days' advance
written notice of Seller's alleged failure and Buyer's intent to cure. If Seller
has not begun to cure said failure within an additional thirty (30) days and to
prosecute said cure diligently to completion, Buyer may undertake the Remedial
Activity. However, Buyer will not be required to provide advance notice to
Seller where the Buyer is required by the EPA or NHDES to undertake Remedial
Activities that are necessary to prevent an imminent threat to public health or
safety or an imminent threat of injury to property. In such event, Buyer shall
notify Seller within two (2) business days after commencing such cure.
i. Seller's obligations under this Agreement shall be deemed completed upon
receipt of an NFA Letter. If for whatever reason the applicable governmental
authority does not issue or ceases as a practice to issue a NFA letter, then a
Remedial Activity shall be deemed completed upon receipt by Buyer of a
certification from the environmental consultant that implemented the
Nashua-Equity P&S Page 40 of 55 November 6, 2006
Remedial Activity stating that the Remedial Activity has been fully implemented
and the applicable cleanup standard (the "Cleanup Standard") has been achieved.
j. Seller shall, as soon as practicable upon completion of any Remedial
Activity, reasonably restore any adversely affected portion of the property such
that Buyer can continue its operation of the Real Property in the manner in
which such operation was conducted immediately prior to the commencement of the
Remedial Activity.
k. Seller shall report all releases or other environmental conditions
identified during or in connection with the implementation of the Remedial
Activities to the appropriate governmental authorities and respond to those
conditions to the extent required by applicable environmental law.
2. DISPUTE RESOLUTION
a. In the event of a dispute between Seller and Buyer regarding the
proposed Cleanup Standard or whether the Remedial Action has achieved the
Cleanup Standard, the parties shall have thirty (30) calendar days (the
"Negotiation Period") to negotiate in good faith and attempt to resolve the
dispute. The Negotiation Period shall commence upon the receipt by either side
of written notice from the other that a dispute has arisen.
b. In the event that the dispute cannot be resolved by the parties
upon the expiration of Negotiation Period, the parties shall select an
independent environmental professional mutually acceptable to both parties to
mediate the dispute (the "Mediator"). The Mediator shall have no prior or
existing financial interest in or relationship with either the Seller or the
Buyer or any of their affiliates and may not be retained by Seller or Buyer in
any capacity or at any time other than for dispute resolution.
c. In the event that the parties cannot agree on a Mediator within two
weeks following the expiration of the Negotiation Period, the parties shall
retain an impartial alternative dispute resolution ("ADR") firm to select the
Mediator. The ADR firm shall select a Mediator no later than ten (10) calendar
days after the expiration of the Negotiation Period.
d. The dispute shall be presented to the Mediator. The parties shall
have the opportunity to make written submittals to the Mediator within thirty
(30) calendar days of the appointment of the Mediator (the "Dispute Resolution
Period"). The parties may agree to extend the length of the Dispute Resolution
if there have been delays beyond the control of the parties in completing any
required investigation or if the investigation indicates additional technical
information is required.
e. The Mediator shall resolve the dispute in accordance with the terms
of this Agreement and shall issue a written decision setting forth the basis for
the resolution. The Mediator's decision shall become binding on the parties ten
(10) calendar days after the end of the Dispute Resolution Period.
f. The party whom the Mediator rules against shall incur the expense
of the Mediator.
Nashua-Equity P&S Page 41 of 55 November 6, 2006
g. In the event of a failure to comply with the decision of the
Mediator, a party may enforce the Mediator's decision in a court of law in
accordance with the Federal Arbitration Act, 9 U.S.C. Section 1 et seq. The
parties hereby waive any statutory notice requirements that are inconsistent
with the procedures set forth in this provision.
[Signature page(s) attached]
Nashua-Equity P&S Page 42 of 55 November 6, 2006
IN WITNESS WHEREOF, the parties have executed this Post-Closing Remediation
Agreement as of the day and year first set forth above.
SELLER:
By:
------------------------------------
John L. Patenaude,
Vice President-Finance /
CFO and Treasurer
BUYER:
By:
------------------------------------
Donald A. Levine, President
Nashua-Equity P&S Page 43 of 55 November 6, 2006
Exhibit A
RATH, YOUNG AND PIGNATELLI
One Capital Plaza, P.O. Box 1500
Concord, New Hampshire 03302-1500
BY FEDERAL EXPRESS AND ELECTRONIC MAIL
October 20, 2006
Richard D. Gass, Esq.
Dionne & Gass LLP
131 Dartmouth Street, Suite 501
Boston, MA 02216
RE: ROBERTS CONSULTING ENVIRONMENTAL LIABILITIES MEMO AND COST ESTIMATES,
NASHUA CORP. FACILITY, MERRIMACK
Dear Richard:
We have reviewed Nancy Roberts' memorandum (the "Roberts Memo") to you
dated September 29, 2006 regarding the environmental matters at the Merrimack
plant facility. While we are fundamentally in agreement with many of her
recommendations, we disagree on several of her assumptions, and find her cost
estimates to be unduly conservative. Here are our point-by-point responses,
corresponding to the various sections of the memo:
CURRENT OPERATIONAL LIABILITY
The Roberts Memo makes five specific recommendations for the lease between
Nashua Corp. and Equity:
1. "Upgrade the environmental control systems to prevent future releases
of hazardous materials from manufacturing operations."
Proposed Response: We agree. Nashua Corp., with the help of its consultants,
Haley & Aldrich, Inc., has identified and commenced the implementation of
specific physical and programmatic improvements to its environmental control
systems. These include:
- Use of a checklist for fuel oil deliveries requiring personnel
overseeing delivery to ensure that adequate capacity exists in
storage tanks to prevent overfilling and spillage
- Instituting an integrity testing regime for the Solvent
Recovery System piping, in order to detect internal corrosion
before leaks occur
- Verifying the integrity of the SRS drainage piping embedded in
the concrete slab between the surface and the secondary
containment vault
Attorney Richard D. Gass, Esquire
October 20, 2006
Page 2
- Installing splash guards or elevating existing berms on
concrete catch basin beneath the SRS, and renewing the
impermeable coating on the catch basin
- Locking certain SRS piping valves open to prevent inadvertent
closure and isolation of fluids which could expand in direct
sunlight and rupture pipe union
- Nashua Corp. has re-labeled SRS piping to indicate service and
flow direction
- Installing overhead clearance signs on outdoor SRS piping to
prevent damage from vehicles
- Implementing a system for documenting all maintenance done on
the SRS piping and limiting such maintenance to designated,
trained individuals
- Testing the integrity of the 20,000-gallon UST used for
emergency storage in the event of a release in Color Rooms #3
or #4
- Labeling process piping in the Color Rooms
- Unifying and standardizing current spill reporting/pollution
incident report forms
- Updating and obtaining third-party review of the SPCC plan
- Designating a timetable, responsible individuals, review
schedule and reporting chain for all of the foregoing measures
2. "Provide a periodic report to the owner of the state of the
environmental control systems."
Proposed Response: We Agree. Nashua Corp. will provide annual reports, during
the lease term, of the state of the environmental control systems. After the
termination or expiration of the lease, Nashua will continue to provide annual
reports on environmental control systems which it continues to operate, if any,
and shall provide copies of all reports which it is required to provide to
regulatory authorities. In addition, Seller will reasonably cooperate with
Buyer's requests to provide information to prospective lenders or purchasers.
3. "Provide a complete assessment of environmental conditions at the time
of shut-down of operations."
Proposed Response: We agree. Nashua Corp. will cooperate with Equity in
obtaining an assessment if and when Nashua Corp. vacates the leased premises or
ceases manufacturing operations.
4. "Provide for removal of all solvent and hazardous materials storage and
delivery systems when their use is terminated, unless the owner opts to
retain those systems."
Attorney Richard D. Gass, Esquire
October 20, 2006
Page 3
Proposed Response: Nashua Corp. will do so. Both sides should determine whether
removal of any system components would involve structural components of the
building, roof, etc. before Nashua Corp. commits to this unconditionally.
5. "Require some form of insurance or other financial instrument to
protect against the owner being held liable for any cleanup required
for releases during manufacturing operations."
Proposed Response: We agree. Nashua Corp. will provide an evergreen letter of
credit in an amount sufficient to cover agreed operation, maintenance, and
monitoring costs for current environmental conditions, as discussed below, and
is pricing environmental insurance to cover costs of cleanup related to any
future release.
PAST RELEASES
PCB RELEASE
Haley & Aldrich has advised that the risk of being required to do additional
characterization is small, and there is little risk of being required to
actively excavate the PCB contaminated soils. In 2002 Haley & Aldrich estimated
the cost of a worst-case scenario of soil excavation for the remediation of the
historical PCB releases. However, it was exactly that -- a worst-case, highly
unlikely alternative for remediation. Since then, substantive discussions that
Haley & Aldrich has had with EPA, based on the collection of additional
favorable data, lead us to conclude that EPA will approve the installation of a
cap over the PCB source area, continued monitoring of the groundwater, and the
imposition of an Activity and Use Restriction (deed restriction) as the final
remedy for PCB residuals. Therefore, the overall cost is projected to be minimal
(around $50,000). Groundwater monitoring of PCBs will be included in the toluene
monitoring program pursuant to the GMP.
UST PIPING RELEASE REMEDIATION AND GROUNDWATER MONITORING
Nashua Corp. agrees with the Roberts Memorandum that long-term (30 year)
sampling and monitoring, coupled with operation and maintenance of the Air
Sparge Barrier under a Groundwater Management Permit, would be necessary if no
further remedial work were undertaken to reduce residual contamination in the
former UST Piping Release area. Therefore, Nashua Corp. has agreed to relocate
and operate the Air Sparge/Soil Vapor Extraction [AS/SVE] system to this former
release area to accelerate removal and biodegradation of toluene, and meet
Ambient Groundwater Quality Standards (AGQS) sooner. This technology has proven
successful in the SRS area, and Nashua Corp is confident that this action will
reduce the time needed to bring the site into compliance. Cost projections for
this element of remediation and monitoring should be modified accordingly.
Attorney Richard D. Gass, Esquire
October 20, 2006
Page 4
In addition, Equity can and should assume that Nashua Corp. will undertake all
of the required remedial and monitoring programs pertaining to the environmental
site conditions for the five-year initial term of the lease, given Nashua
Corp.'s commitment under the lease, its liquidity, its pro-active stance toward
remediation, and its outstanding corporate reputation. Therefore, all
third-party consultant costs for operation and maintenance of remedial and
monitoring systems should be eliminated for the first five years.
Notwithstanding the foregoing, which is only intended to support Nashua's cost
estimates, Nashua reiterates its commitment to prosecute remedial activities and
groundwater monitoring, beyond any expiration or termination of the lease, until
no longer required to do so by State and federal environmental regulators.
As to the cost estimates and appropriate contingencies, please see the attached
Tables, prepared by Haley & Aldrich, using the cost factors recommended by the
NH Department of Environmental Services (NHDES) "Guidance Document for
Preparation of Remedial Action Plans", Page 3, December 1996. There is no basis
for applying cost factors that are more conservative than those required by
NHDES.
Capital costs for installing the AS/SVE system are projected to be $198,000.
Operation and maintenance is anticipated to cost $22,000 per year, yielding an
inflation-adjusted present value of the five-year cost of approximately
$100,000, and a total outlay of $300,000 [Table 1]. However, as noted above,
Nashua Corp. should be credited for the costs of remedial systems and monitoring
for the first five years, so the proposed letter of credit amount does not
include the cost of installing and operating this system.
As a result of its aggressive operation of the AS/SVE system in the historical
UST piping release area, Nashua Corp. expects groundwater concentrations to drop
sufficiently to eliminate the need for the air sparge barrier system within
fifteen years, rather than the thirty years currently projected. The expected
annual operating cost is $29,000, and, giving credit to Nashua for operating the
system for the first five years, the inflation-adjusted present value of the
cost for the last ten years of third-party operation and maintenance of the Air
Sparge Barrier (using the NHDES cost factors) is approximately $230,000 [Table
2].
Nashua acknowledges that PCB monitoring will have to continue for the full
thirty years, since the AS/SVE operations are not expected to affect residual
PCB concentrations. On the other hand, Nashua Corp.'s more aggressive cleanup
actions should reduce the extent and duration of groundwater monitoring for
residual toluene. Table 3 shows the expected annual costs, which reflect the
more aggressive cleanup schedule using AS/SVE in the former UST piping area.
This cost estimate also reflects a reduction of monitoring intensity over time,
as is typical with DES on sites with long-term monitoring data, eventually being
limited to testing and reporting for PCBs out to the 30 year period. The
projected present value of the cost of the entire groundwater monitoring
program, including GMP renewals, is approximately $342,000.
Attorney Richard D. Gass, Esquire
October 20, 2006
Page 5
SRS RELEASE
Given the limited nature of the 2000 spill at the SRS area and the site's rapid
response to cleanup actions, Nashua Corp. is confident that the NHDES will
concur with our recommendation to focus the AS/SVE operations on the much higher
concentrations of toluene in the former UST Piping area, even if there is some
groundwater rebound in the SRS area. Therefore, our cost projections above are
applicable for further AS/SVE costs in the former UST Piping area only.
SUMMARY
The major differences in cost estimates from the Roberts Memo generally arise
from differences in remedial scope [i.e., worst-case for the PCB remedy versus
most likely case], a credit for the first five years of Nashua's operation of
the remedial and monitoring systems at the site, and the discount factors
applied for long-term monitoring and operation/maintenance of sparge barrier.
The table below shows these general differences.
<Table>
<Caption>
- -------------------------------------------------------------------------------------------------------
REMEDIAL ELEMENT ROBERTS' COST ESTIMATE NASHUA COST ESTIMATE DRIVERS OF MAJOR COST DIFFERENCES
- -------------------------------------------------------------------------------------------------------
GW monitoring $3.5M - $4.6M $342,000 NHDES discount factoring used;
[VOCs & PCBs] [includes Air Sparge assumes monitoring reduced to 20
barrier] years for VOCs and remains 30 years
for PCBs; shortened monitoring due
to AS/SVE system operation in the
former UST Piping area
- -------------------------------------------------------------------------------------------------------
PCB remedy $50K -- 1.5M $0 Capping versus excavation
- -------------------------------------------------------------------------------------------------------
Sparge Barrier Included above in GW $230K Assumes Nashua Corp operates for
Operations monitoring costs first 5 years, consultant last 10
years; shortened operations due to
AS/SVE system operation in the former
UST Piping Area; NHDES factors used.
- -------------------------------------------------------------------------------------------------------
AS/SVE $150K - $200K [in SRS $0 Assumes 5 years of operations,
operations area] [in UST Piping area] maintenance, reporting by consultant
- -------------------------------------------------------------------------------------------------------
TOTALS $3.7M - $6.3M $572,000
- -------------------------------------------------------------------------------------------------------
</Table>
Attorney Richard D. Gass, Esquire
October 20, 2006
Page 6
Based on these estimates, Nashua Corp. proposes to provide Equity with an
evergreen letter of credit in the amount of $600,000 to secure the completion of
its monitoring and remediation obligations. This amount will be sufficient to
pay a third-party consultant beginning in the sixth year. In addition, the
letter of credit will step down annually to equal the present discounted value
of the remaining projected remediation and monitoring costs, as reasonably
determined by the parties. Finally, Nashua Corp. anticipates securing
environmental insurance for future release liability only. Such policy shall be
reasonably acceptable to the parties, and the terms agreed upon prior to
Closing.
Please call me or Donald Sienkewicz when you have had a chance to
review this with Ms. Roberts and your client. We are confident that we are close
to reaching an agreement on this matter and proceeding to closing.
Very truly yours,
Sherilyn Burnett Young
cc (by electronic mail): John L. Patenaude, Nashua Corp.
Andrew B. Albert, Nashua Corp.
Thomas G. Brooker, Nashua Corp.
Donna J. DiGiovine, Nashua Corp.
Suzanne L. Ansara, Nashua Corp.
Muriel S. Robinette, Haley & Aldrich
SCHEDULE 5.1
ACCESS AND INDEMNITY AGREEMENT
[Intentionally Omitted]
Nashua-Equity P&S Page 45 of 55 November 6, 2006
SCHEDULE 5.5
DUE DILIGENCE MATERIALS
[Intentionally Omitted]
Nashua-Equity P&S Page 46 of 55 November 6, 2006
SCHEDULE 8.1
FORM OF ESCROW CLOSING INSTRUCTIONS
[Intentionally Omitted]
Nashua-Equity P&S Page 47 of 55 November 6, 2006
Exhibit A: Wire Instructions into Title Company
Exhibit B: Warranty Deed
Exhibit C: Bill of Sale and Assignment
Exhibit D: Assignment of Leases
Exhibit E: Assignment of Contracts
Exhibit F: Non-Foreign Affidavit
Exhibit G: Title Commitment
Exhibit H: Instructions for Disbursement of Documents
Nashua-Equity P&S Page 48 of 55 November 6, 2006
SCHEDULE 8.2(A)
FORM OF WARRANTY DEED
[Intentionally Omitted]
Nashua-Equity P&S Page 49 of 55 November 6, 2006
SCHEDULE 8.2(B)
FORM OF BILL OF SALE AND GENERAL ASSIGNMENT
[Intentionally Omitted]
Nashua-Equity P&S Page 50 of 55 November 6, 2006
SCHEDULE 8.2(C)
FORM OF ASSIGNMENT OF LEASES
[Intentionally Omitted]
Nashua-Equity P&S Page 51 of 55 November 6, 2006
SCHEDULE 8.2(D)
FORM OF ASSIGNMENT AND ASSUMPTION OF CONTRACTS
[Intentionally Omitted]
Nashua-Equity P&S Page 52 of 55 November 6, 2006
SCHEDULE 8.2(H)
FORM OF FIRPTA AFFIDAVIT
[Intentionally Omitted]
Nashua-Equity P&S Page 53 of 55 November 6, 2006
SCHEDULE 8.2(J)
FORM OF TENANT NOTICE LETTER
[Intentionally Omitted]
Nashua-Equity P&S Page 54 of 55 November 6, 2006
SCHEDULE 13.1
1099 DESIGNATION AGREEMENT
[Intentionally Omitted]
Nashua-Equity P&S Page 55 of 55 November 6, 2006