Durham PS 5-16-07 Final AGREEMENT OF SALE AGREEMENT, made this ____ day of June 2007, by and between Town of Durham having an address of 15 Newmarket Road, Durham, New Hampshire 03824 (hereinafter called the “Seller”) and Chinburg Builders, Inc., a New Hampshire corporation, having an address of 8 Newmarket Road, Durham New Hampshire 03824, together with their nominees or assigns, are hereinafter jointly and severally called the (“Buyer”). WITNESSETH: WHEREAS, the Seller is the owner of a certain parcel of real property commonly known as the Durham Business Park located on Route 4 at Map 11 Lot 27-0 in the Town of Durham, Strafford County, New Hampshire, containing approximately 26 acres, as more particularly described in a deed to Seller recorded at Strafford County Registry of Deeds at Book _______, Page _______, (the “Property”); WHEREAS, the Buyer desires to purchase the Property upon and subject to the terms and conditions herein set forth and the Seller is willing to sell the Property upon such terms and conditions; WHEREAS, the Buyer intends to construct a project (the “Project”) in accordance with the purpose of the Durham Business Park District as defined by chapter 175-52 and include Permitted Uses listed in Chapter 175-53, such as high-quality office and research business uses, an eldercare facility and the possibility of complementary civic and recreational uses; WHEREAS, the Project shall be in accordance with the Durham Business Park Design Guidelines, the Durham Zoning Ordinance, applicable Dimensional Standards, Performance Standards, Overlay District Provisions, local and state building codes and regulations; and WHEREAS, the Buyer shall use all reasonable efforts to undertake design and permitting activities for the Project during 2007, with construction activities to commence in 2008; and WHEREAS, the Project shall be completed in one or more phases over a period of approximately ten years; and -2 – Durham PS 5-16-07 Final Whereas, the parties have agreed to structure the Purchase Price upon a formula based on the amount of net square feet of building area approved and permitted as defined in this Agreement; NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth, the parties hereto agree as follows: 1. Purchase and Sale. 1.01. The Seller hereby agrees to sell and convey to the Buyer and the Buyer agrees to purchase the Property from the Seller, upon and subject to the terms and conditions set forth herein, and the following described property, agreements, rights and interests (hereinafter, collectively, the “Property”): (a) The Property, including all improvements thereon, if any; (b) All right, title and interest of the Seller in and to all permits, certificates, variances, consents and approvals pertaining to the Property (as now existing or hereinafter amended, modified or supplemented), if any; and (c) All right, title and interest of the Seller in all other rights, privileges and appurtenances in any way related to the Property, including, without limitation, any easements and rights of ingress and egress whether in common with others or otherwise. 2. Purchase Price, Deposit and Mode of Payment. The total Purchase Price shall be the sum of the Base Purchase Price and Additional Purchase Price as defined below. 2.01. Base Purchase Price. The base purchase price to be paid for the Property shall be Three Hundred Fifty Thousand Dollars ($350,000.00) Dollars (the “Base Purchase Price) based on a formula price of $10 per net square feet of permitted and approved building area payable at the closing as stated in Section 2.03 below. For purposes herein the term “net square feet of building area” shall mean the area contained within the interior boundaries of a space excluding the perimeter and/or demising walls thereof and excluding common areas, such as hallways, stairways, landings and lobbies, basements and parking areas. 2.02. Additional Purchase Price. In addition to the Base Purchase Price, the Buyer shall pay an additional purchase price (the “Additional Purchase Price”) for any and all additional permitted and approved net square feet of building area in excess of 35,000 net square feet of building area, calculated as follows: (a) $10.00 per net square feet of building area from 35,001 to 50,000 net square feet of building area, and (b) $7.00 per net square feet of building area in excess of 50,000 square feet. 2.03. Mode of Payment. The Base Purchase Price shall be payable at closing as follows: -3 – Durham PS 5-16-07 Final (a) At least Fifty Thousand Dollars ($50,000.00) less the Deposit as defined below shall be paid by wire transfer or other acceptable means upon satisfaction of all Conditions to Close set forth in Section 4 of this Agreement, including but not limited to, obtaining final, non-appealable federal, state and local approvals and consents from all governmental authorities necessary for the construction (“Permits and Approvals”) of Phase I of the Project that shall contain at least 5,000 net square feet of buildable area. (b) The balance of the Base Purchase Price shall be evidenced by delivery of a promissory note to Seller (the “Note”). The Note shall be for a term of three years from the date of the closing (the “Maturity Date”) with an interest rate of Seven Percent (7%) on the unpaid balance. Interest payments shall be made quarterly in arrears. Principal payments shall commence upon the receipt of all Permits and Approvals for Phase II of the Project and continue during subsequent phases of the Project calculated in accordance with the formula set forth in Section 2.01. Any unpaid balance shall be due and payable on the Maturity Date. The Note shall be secured by a mortgage (“Seller’s First Mortgage”) on the Property. The mortgage shall be subordinated to Buyer’s infrastructure financing in an amount not to exceed Five Hundred Thousand Dollars ($500,000.00) on the Project, and shall require Seller to partially release portions of the Property secured by Seller’s First Mortgage upon receipt of a portion or all of the Base Purchase Price in accordance with the formula set forth in Section 2.01. (c) The Additional Purchase Price, if any, shall be due upon receipt of Permits and Approval of Phase II and subsequent phases of the Project in accordance with the formula set forth in Section 2.02 and paid by wire transfer or other acceptable means. The obligation to pay any Additional Purchase Price shall be evidenced by delivery of a second promissory note (the “Second Note”). . The Second Note shall be secured by a mortgage (“Seller’s Second Mortgage”) on the Property, subordinated to Buyer’s acquisition and construction financing of the Project. The Second Mortgage shall require Seller to partially release portions of the Property secured by the Second Mortgage upon receipt of a portion or all of the Base Purchase Price and/or Additional Purchase Price due in accordance with the formulas set forth in Sections 2.01 and Section 2.02 and the terms of Section 2.03. 2.04. Deposit. Upon execution and delivery of this Agreement, the Buyer shall deposit the sum of Ten Thousand ($10,000.00) Dollars in cash or current funds (the “Deposit”) with Seller to be held in an interest bearing escrow account by the Seller’s attorneys, Walter L, Mitchell, Esq., Mitchell & Bates, PA, 25 Beacon Street East, Suite 2, Laconia, NH 03246, as escrow agent (the “Escrow Agent”), to secure the Buyer’s obligations hereunder. All interest accruing in respect of the Deposit shall accrue for the benefit of and be payable to the Seller hereunder if the transaction contemplated hereby is consummated. In the event of the occurrence or non-occurrence of any event which requires the return of the Deposit to the Buyer pursuant to the terms of this Agreement, then, in such event, the Deposit shall be returned to the Buyer, together with all interest accrued thereon. -4 – Durham PS 5-16-07 Final 2.05. The Purchase Price hereunder shall be payable to the Seller at the Closing (as hereinafter defined), as follows: (a) The Deposit together with all interest earned thereon shall be released by the Escrow Agent and paid to the Seller; the Deposit shall be paid for the account of the Buyer; and (b) The Base Purchase Price plus any Additional Purchase Price due shall be payable at closing. 3. Closing. 3.01. The Closing hereunder shall take place at 10:00 a.m. on that date which is the later of: (i) sixty days (60) after the Due Diligence Period as defined in Section 4.01; or (ii) sixty days (60) after all of the Conditions to Close set forth in Section 4 shall have been satisfied, but not later than March 31, 2008, unless the parties shall agree upon a later date in writing (the “Closing”). The Closing shall take place at the offices of Buyer’s Lender’s Attorney on such date and at such time, or at such other place and time as the parties shall agree upon. The terms “Closing” and “Closing Date” shall include any permitted extensions thereof. 3.02. At the Closing, the Seller shall: (a) convey the Property to the Buyer (or Buyer’s nominee) by Warranty Deed, conveying good, clear record and marketable title to the Property, insurable for the benefit of the Buyer by a title insurer licensed in the State of New Hampshire and acceptable to the Buyer pursuant to an ALTA standard form title insurance policy in an amount equal to the purchase price insuring that the Buyer holds marketable fee simple title to the Property, free from all liens, municipal betterments, assessments, easements, restrictions, encumbrances, title and interest of others, and title insurance exceptions of any nature or description whatsoever, except as follows: (i) provisions of existing building and zoning laws; (ii) such real estate taxes for the then current tax year as are not yet due or payable on the day of the delivery of the deed; (iii) any lien for municipal betterments assessed after the day of the delivery of the deed; (iv) easements, conditions, restrictions, and other matters of record which are not raised as an objection by Buyer during the Due Diligence Period (as defined herein); and (b) deliver to the Buyer: (i) a Mechanics’ Lien /Parties in Possession Affidavit, dated the Closing Date, customary for transactions of this type and nature in the State of New Hampshire. -5 – Durham PS 5-16-07 Final (ii) possession of the Property, free from all tenants and other encumbrances, except those encumbrances permitted hereby; (iii) such other documents as the Buyer’s title insurance company may reasonably require in order to issue a title insurance policy in accordance with the provisions of this Agreement; (iv) such other documents and instruments as are customary for transactions of this type and nature in New Hampshire.; and (v) such other documents necessary to satisfy the requirements of Section 4.04. 3.03 At the Closing, the Buyer shall pay the Purchase Price as required by Section 2 above. 3.04 At the Closing, the Seller shall pay for the cost of recording any instruments required to clear title to the Property. Title examination and title insurance shall be at Buyer’s expense. The Seller shall pay the cost of preparing the deed. The Buyer shall pay for the recording of the deed and the Buyer and the Seller shall each pay one-half of any transfer stamp tax required to record the deed. Each of the Buyer and the Seller shall execute and file with the New Hampshire Department of Revenue Administration an appropriate Real Estate Transfer Tax Declaration of Consideration with respect to the transfer stamp tax payable hereunder. 4. Conditions to Close. Buyer’s and Seller’s obligations to close on the transactions contemplated herein are subject to the fulfillment of the following: 4.01. Due Diligence. The Buyer shall have a due diligence period (the “Due Diligence Period”) commencing on the date of this Agreement and terminating one hundred twenty (120) days thereafter to conduct any inspections and studies of the Property deemed reasonable or necessary by Buyer and its lenders, including, without limitation, surveys, physical and mechanical inspections, soil, subsurface and environmental and engineering studies, appraisals, marketing analysis and other testing, studies, engineering and reports of the Property as may be determined reasonably necessary by the Buyer or its lenders. The Seller will provide to the Buyer, within three (3) business days of the date of this Agreement, copies of all plans, surveys, reports, studies, permits, approvals, agreements and other documents relating to the Property in Seller’s possession or control (if any), including, without limitation, all deeds, easements, title reports, commitments and policies, any subdivision and site plans, all utility and construction plans and specifications relating to the Property, and all reports, test results and other instruments with respect to any and all borings, soil tests, percolation tests, and other tests and reports, site analyses and surveys with respect to the Property, if any (collectively, the “Reports”). During the Due Diligence Period, the Buyer shall review such documents and other information and make any and all physical and other inspections and determinations of and with respect to the Property, which Buyer may desire to make or have made at Buyer’s expense. In the event that any of the documents or information so provided or received by the Buyer, or the results of any such inspections made or caused to be made by the Buyer, or any other aspects of the Property, are, for any reason, in the Buyer’s sole discretion, unsatisfactory to the Buyer, the Buyer may terminate this Agreement by delivery of written notice so indicating (in general terms without having to specify which aspects, if any, are unsatisfactory) to the Seller within three (3) business days of the end of the Due Diligence -6 – Durham PS 5-16-07 Final Period. Upon delivery of such written notice by the Buyer, this Agreement will automatically terminate, the Deposit together with all interest earned thereon will be immediately refunded to the Buyer and thereafter the parties hereto will have no further rights or duties to each other under this Agreement. In the event such termination notice is not timely delivered, this Agreement will continue in full force and effect. Should the Closing not occur for any reason other than the Seller’s default, the Buyer shall promptly return the Reports to Seller and Buyer shall promptly forward to the Seller copies of any reports, studies, plans, surveys, and any and all data (including but not limited to environmental and engineering) that the Buyer has obtained during the Due Diligence Period. Notwithstanding the above, the Buyer shall provide Seller with a copy of Buyer’s title report/title commitment upon Buyer’s receipt of the same. 4.02 Approvals for Phase 1 of the Project. The Buyer shall have received all Approvals and Permits for Phase 1 of the Project which shall contain at least 5,000 net square feet of buildable area. The Buyer shall make reasonable efforts to obtain all of the Approvals and Permits for Phase 1 as expeditiously as possible. If the Buyer is unable to obtain the Approvals and Permits for Phase I by December 31, 2007, this Agreement shall become null and void and in such case the Deposit together with all interest earned thereon shall be automatically returned to the Buyer, unless the Buyer wishes to purchase the Property without the Approvals and Permits or unless the parties shall agree upon a later date in writing. 4.03 Buyer Financing. The receipt by Buyer of a commitment from a bank or institutional lender for acquisition and construction financing equal to Seventy-Five Percent (75%) of the Purchase Price and construction costs associated with Phase 1 of the Project. If Buyer is unable to obtain said financing within Two Hundred Seventy (270) days from the date of this Agreement, this Agreement shall become null and void and in such case the Deposit together with all interest earned thereon shall be automatically returned to the Buyer, unless Buyer wishes to purchase the Property without said financing. 4.04 Deed, Real Estate Taxes: PILOT, Public Access. Seller will deliver to Buyer at Closing a warranty deed acceptable to the Buyer in its sole discretion. The deed will contain a restriction that if any buyer or owner of the Property or a portion of the Property is a tax exempt organization, such buyer or owner shall be obligated to make a payment in lieu of taxes (a “PILOT”) equal to the amount of state, county, municipal and school district taxes that otherwise would be payable as real estate taxes, or an amount that is less than said taxes due if the Town Council deems it in the best interest of the Town of Durham. The Buyer shall provide for public access to the Oyster River in perpetuity over a portion of the area to be designated as an access easement for passive recreational use (the “Access Easement”) in a location to be determined in the Phase 1 planning and approval process; provided however that the Access Easement shall be located in restricted wetland buffer areas along the shore and not interfere with any developable building area. Each deed or other transfer document from the Buyer to any future transferee of any interests shall be subject to the Access Easement. 5. Possession. 5.01. Possession of the Property, free of all tenants and encumbrances except as otherwise contemplated hereby, shall be delivered to the Buyer at the time of the Closing. At the time of the Closing, the Property shall be (a) in the same condition as they are now in, reasonable wear and tear excepted, and (b) free of all property not being acquired by the Buyer hereunder, and (c) in compliance with the provisions of each instrument of conveyance referred to herein. -7 – Durham PS 5-16-07 Final 6. Seller’s Inability to Deliver Title; Buyer's Election. 6. 01. The Buyer shall notify the Seller in writing within thirty (30) days of the date of this Agreement of any defect in the title to the Property that it discovers. In the event that (i) Seller shall be unable to convey good, clear record and marketable title to the Property or to deliver possession of the Property to the Buyer, all as herein provided, or (ii) at the time of the Closing, the Property does not conform with the provisions hereof, then upon notice in writing (a) the Closing Date under this Agreement may be extended by the Seller for a single period up to sixty (60) days, during which time period the Seller shall use reasonable efforts to remove any defect in title or to deliver possession as provided herein, or to make the Property conform to the provisions hereof, as the case may be; or (b) Seller or Buyer may terminate this Agreement and the Deposit together with all interest earned thereon will be returned to Buyer. If the Seller chooses to attempt to remedy the title defect and at the end of any such extension period, the Seller shall have failed to remove any such defect in title, deliver possession, or make the Property conform, as the case may be, all as herein provided, then, at the Buyer’s option the Deposit shall be forthwith refunded to Chinburg Builders, Inc. 8 Newmarket Road, Durham, NH 03824 with interest earned thereon in accordance with the provisions hereof, and all other obligations of the parties hereunder shall cease and this Agreement shall be void without any further recourse to the parties or the Buyer can accept title as Seller can convey without deduction or offsetting the purchase price. 6.02. In order to enable the Seller to convey the Property as herein required, the Seller may at the Closing, use a portion of the purchase price to clear the title of any or all encumbrances or interests which are to be removed or eliminated by the terms hereof, provided that all instruments so procured are recorded at Seller’s sole cost and expense, prior to or simultaneously with the delivery of the deed. 7. Access to Property. 7.01 Access to Information and Property. The Seller shall allow Buyer, its agents, representatives and contractors access to the Property to undertake the tests, inspections and other activities contemplated by Section 4.01. Prior to Buyer or any other party entering the Property, Buyer shall deliver to Seller a certificate of comprehensive public liability insurance naming Seller as an additional insured and evidencing coverage with such insurers and limits as shall be reasonably satisfactory to Seller. Buyer agrees to indemnify and hold Seller harmless from any claim for liabilities, costs, expenses (including reasonable attorneys’ fees actually incurred), damages or injuries arising out of or resulting from such activities on the Property by Buyer or its agents. Notwithstanding anything to the contrary in this Agreement, such obligation to indemnify and hold harmless Seller and the other obligations of Buyer under this Section 7.01 shall survive Closing or any termination of this Agreement. All inspections shall occur at reasonable times and shall be conducted so as not to interfere unreasonably with use of the Property by Seller. Buyer may not, however, perform any invasive or destructive testing at the Property without having received the prior written consent of Seller, which shall be granted at Seller’s reasonable discretion, in each instance. Unless required by applicable federal, state or local laws, statutes, rules or regulations, Buyer may not contact any tenants, governmental agencies (except in connection with Buyer’s review of the zoning of the Property), or any third parties with respect to this transaction without the prior written consent of Seller, which shall not be unreasonably withheld, conditioned, or delayed. Buyer shall permit a representative of Seller to accompany Buyer on any interviews with tenants and/or governmental agencies. -8 – Durham PS 5-16-07 Final 8. Prorations and Adjustments. 8.01. Real estate and personal property taxes and assessments, if any, will be prorated at the Closing, effective as of the date of the Closing. In the event that the Closing occurs before the tax rate is fixed for the then current tax year, the apportionment of taxes at the Closing will be based upon the tax rate for the preceding tax year applied to the latest assessed valuation; provided, however, that when the actual taxes for the year of the Closing are determined, the parties shall adjust such prorations accordingly, between themselves by appropriate payments after the Closing, to the effect that such tax prorations will be based upon the actual taxes charged against the Property during the year of the Closing. 9. No Broker. 9.01 The Buyer and the Seller each represent to the other that no broker or realtor was involved in bringing about the transactions contemplated by this Agreement and that no such broker or realtor is entitled to any fee or commission as a result thereof. Each party shall indemnify and hold the other harmless from and against any cost, claim, liability or expense, including, without limitation, attorney’s fees, incurred by the indemnified party or asserted against the indemnified party or the Property, as the case may be by any such broker or realtor claiming a commission due as a result of representing the indemnifying party. 10. Damage by Fire or Casualty; Eminent Domain. 10.01. In the event that the Property shall be damaged by fire or other casualty, or shall be subject to an eminent domain proceeding, prior to the Closing hereunder, the Buyer at any time after the occurrence of such damage or other casualty or such taking up to the time of the Closing may elect to terminate this Agreement by written notice to the Seller, in which event the Deposit made by the Buyer hereunder together with all interest earned thereon shall be refunded promptly to the Buyer and all other obligations of the parties hereunder shall cease and this Agreement shall thereupon be void and of no further force or effect. 11. Liquidated Damages. 11.01. In the event that the Buyer shall default in the performance of its obligations hereunder, the Seller may retain the Deposit hereunder and the interest thereon as liquidated and inclusive damages and not as a penalty, as its sole and exclusive remedy. In the event that the Seller shall default in the performance of its obligations hereunder, the Buyer may elect to: (i) receive a return of the Deposit together with all interest earned thereon; or (ii) seek specific performance, plus (if successful) reimbursement of Purchaser’s costs and expenses, including reasonable attorneys fees, in connection with such specific performance action. 12. Representation and Warranties. 12.01. Representations and Warranties of the Seller. The Seller hereby represents and warrants that: (a) The execution and delivery of this Agreement and the performance of the Seller’s obligations hereunder have been duly authorized by such municipal action as necessary, and this Agreement constitutes the legal, valid and binding agreement of the Seller, enforceable against the Seller in -9 – Durham PS 5-16-07 Final accordance with its terms subject only to the conditions set out in this Agreement. (b) Subject to the conditions set out in this Agreement, neither the execution or delivery by the Seller of this Agreement, the performance by the Seller of its obligations in connection with the transactions contemplated hereby, nor the fulfillment by the Seller of the terms or conditions hereof conflicts with, violates or results in a breach of any constitution, law or governmental regulation applicable to the Seller, or conflicts with, violates or results in a breach of any term or condition of any judgment or decree, or any agreement or instrument, to which the Seller is a party or by which the Seller or any of its properties or assets are bound, or constitutes a default there under. (c) Except as set forth in this Agreement, no approval, authorization, order or consent of, or declaration, registration or filing with, any Governmental Authority is required for the valid execution and delivery of this Agreement by the Seller, except such as have been duly obtained or made or disclosed in this Agreement. (d) There is no action, suit or proceeding, at law or in equity, or official investigation before or by any court or Governmental Authority, pending or threatened against the Seller, wherein an unfavorable decision, ruling or finding would materially adversely affect the performance by the Seller of its obligations hereunder or the performance by the Seller of its obligations under the transactions contemplated hereby, or which, in any way, questions or may adversely materially affect the validity or enforceability of this Agreement, or any other agreement or instrument entered into by the Seller in connection with the transactions contemplated hereby. (e) If requested by the Buyer, the Seller shall provide the Buyer with a legal counsel’s opinion, in a form acceptable to the Buyer, with respect to the matters described in this Section. 12.02 Representation of the Buyer. The Buyer hereby represents and warrants to the best of its knowledge and belief that: (a) The Buyer is a corporation, duly organized, validly existing and in good standing under the laws of the State of New Hampshire, its formation, with all requisite authority to own its property and assets and to conduct its business as presently conducted or proposed to be conducted, and duly qualified or authorized to transact business and in good standing under the laws of the State of New Hampshire. (b) The Buyer has the power and authority to execute, deliver and carry out the terms and provisions of this Agreement and the Related Agreements, and all necessary action has been taken to authorize the execution, delivery and performance by it of this Agreement and any applicable Related Agreements. This Agreement and said Related Agreements will, upon execution and delivery thereof by the Buyer, constitute valid, legal and binding obligations of the Buyer enforceable against the Buyer in accordance with the respective terms thereof. -10 – Durham PS 5-16-07 Final 13. Escrow Agent. 13.01. The Escrow Agent shall hold the Deposit together with all interest earned thereon in escrow for the benefit of the parties hereunder and release the Deposit together with the interest earned thereon in accordance with the terms of this Agreement. In the event of disagreement between the parties as to whether the Deposit shall be released, the Escrow Agent may bring an interpleader action in any court having competent jurisdiction in order to determine all disputes with respect to the Deposit or any portion thereof. The Buyer and the Seller shall each, jointly and severally, indemnify and hold the Escrow Agent harmless from and against any loss, cost or expense (including, without limitation, reasonable attorney's fees) and from any other liability in connection with the Escrow Agent’s good faith performance under this Agreement. The Buyer and the Seller each waive all causes of action and other claims arising against the Escrow Agent under or connection with the Escrow Agent’s performance hereunder excepting, however, any liability arising out of the gross negligence or willful misconduct of the Escrow Agent. 14. Miscellaneous. 14.01. Notices. Any notice, demand or other communication required or permitted to be given hereunder will be deemed to have been given when delivered personally to the party designated to receive such notice, or on the date following the day sent by overnight courier, or on the third business day after it shall have been sent by certified mail, postage prepaid, return receipt requested, addressed as follows, or to such other address as a party may designate by written notice duly given hereunder: If to the Seller: Town of Durham Attention: Todd I. Selig, Town Administrator 15 Newmarket Road Durham, NH 03824 with a copy to: Walter L. Mitchell, Esq. Mitchell & Bates, PA 25 Beacon Street East, Suite 2 Laconia, NH 03246 If to the Buyer: Chinburg Builders, Inc. Attention: Eric J. Chinburg, President 8 Newmarket Road, Suite 2, Durham, NH 03824 with a copy to: AMC Law Group Attention: Anne M. Crotty, Esq. -11 – Durham PS 5-16-07 Final 216 Lafayette Road North Hampton, NH 03862 14.02. Entire Agreement. This instrument constitutes the entire agreement between the parties hereto relating to the subject matter hereof and there are no agreements, undertakings, warranties or representations between the parties except as set forth herein. This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors and permitted assigns. This Agreement may not be amended or modified, in any respect, except by an instrument in writing signed by each of the parties hereto which specifically references the Agreement and expressly provides that it is amending this Agreement. 14.03. Severability. If any provision of this Agreement shall be found to be invalid, inoperative or unenforceable in law or in equity, such finding shall not affect the validity of any other provisions of this Agreement but shall be construed to effect the purposes of this Agreement to the fullest extent permitted by law. 14.04. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New Hampshire, other than its choice of law rules. 14.05. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which taken together shall be deemed to be one and the same instrument. 14.06. Construction. The headings used in this Agreement are for convenience only and shall not be deemed to constitute a part hereof. Confirmation of execution of this Agreement by telefax or electronically shall be binding upon any party so confirming. 14.07. No Waiver. No delay or omission by any party hereto to exercise any right or power occurring upon any non-compliance or failure of performance by the other party under the provisions of this Agreement shall impair any such right or power or be construed to be a waiver thereof. A waiver by any party hereto of any of the terms, covenants, conditions or agreements to be performed by the other party shall not be construed to be a waiver of any succeeding breach thereof or of any other term, covenant, condition or agreement contained herein. 14.08. Post Closing. The parties hereto agree that up to and after the date of the Closing, they shall do such things and execute, acknowledge and deliver any and all additional agreements, instruments and documents as either party may reasonably request in order to effectuate the purposes of this Agreement. 14.09. Assignability. The Buyer may assign, transfer and convey all of its rights and responsibilities hereunder (i) to a nominee or other entity in which the Buyer owns at least 51 percent controlling interest, or (ii) to any other person or entity reasonably acceptable to the Seller. 14.10 Time of the Essence. Time is of the essence with respect to this agreement. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of the day and year first above written. -12 – Durham PS 5-16-07 Final SELLER: TOWN OF DURHAM _____________________________ By: _________ Witness Todd I. Selig, Town, Adminstrator BUYER: CHINBURG BUILDERS, INC. _____________________________ By: ________________________ Witness Eric J. Chinburg, President