EXHIBIT 10.1
PURCHASE AND SALE AGREEMENT
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Lots 1 and 2
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Tanasbourne Commerce Center
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1. Summary of Terms.
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1.1 Date of this Agreement: August 13, 1997
1.2 Parties: PURCHASER: Etec Systems, Inc., a Nevada Corporation
c/o Xx. Xxxxx Xxxxx, Director of Facilities
00000 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Telephone: (000) 000-0000 Facsimile: (000) 000-0000
SELLER: Standard Insurance Company, an Oregon corporation
c/o Xxx Xxxx
0000 XX Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
Telephone: (000) 000-0000
Property/Location: Lots 1 and 2
(Paragraph 3) Tanasbourne Commerce Center
Hillsboro, Oregon
Purchase Price: $3.64 per net usable square foot, as surveyed
(Paragraph 4) $2,398,065.00
Terms: (a) Xxxx xxxxxxx money, cash at close of escrow
(Paragraph 4) (b) Purchase is approximately 15.12 acres
Deposit: $50,000.00 cash at opening of escrow
(Paragraph 5.a)
Escrow Holder: First American Title Insurance Company
(Paragraph 6) 000 XX Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000-0000
Telephone: (000) 000-0000
Closing Date: Wednesday, November 12, 1997
(Paragraph 6)
Contingency Period: Tuesday, September 30, 1997
(Paragraph 8)
Option to Extend: One (1) Thirty day option to extend Contingency Period
(Paragraph 8) Additional Deposit of $25,000, cash, extend to
October 29, 1997
Right to Repurchase: SELLER Right to Repurchase if construction fails to
(Paragraph 25) commence within thirty-six (36) months
The summary of terms included in this paragraph is for reference purposes only,
and each term shall be construed in conjunction and limited by references
appearing in other provisions of this Purchase and Sale Agreement. In the event
of any conflict between the summary and the more specific description appearing
in the following paragraphs of the document, the detailed provisions which
follow shall apply.
2. PARTIES. THIS AGREEMENT is made and entered into by and between STANDARD
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INSURANCE COMPANY, an Oregon corporation, (hereinafter referred to as
"SELLER"), and ETEC SYSTEMS, INC., a Nevada corporation and/or assigns
(hereinafter referred to as "PURCHASER") as of the date specified in
Paragraph 1.1.
3. PROPERTY. PURCHASER will purchase from SELLER and SELLER will sell to
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PURCHASER the Property on the terms herein set forth. The term
"Property" means collectively the following: Xxx 0 xxx Xxx 0,
Xxxxxxxxxxx Xxxxxxxx Center in Hillsboro, Oregon, described on Exhibit
"A" attached hereto and all rights, privileges and appurtenances
thereunto belonging or appertaining, including all rights, title and
interest of SELLER in and to the streets, alleys and rights-of-way
adjacent thereto and any easements benefiting such land ("Real
Property"); all improvements and fixtures located on the Real Property
("Improvements"); all assignable continuing contracts, business
licenses, utility contracts, plans and specifications, warranties,
governmental approvals and development rights (if any) related to the
Real Property and/or the Improvements and/or any part thereof (the
"Intangible Property").
(a) REDUCTION OF LANDSCAPE AND SIGN EASEMENT. Prior to closing SELLER, at
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SELLER'S expense, shall construct a retaining wall and reduce the
Landscape and Sign Easement area at the southwest corner of Lot 1, to
increase the useable area of Lot 1 to approximately 5.457 acres.
4. PURCHASE PRICE. The total purchase price ("Purchase Price") shall be
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calculated by using the exact net usable square footage as surveyed,
multiplied by $4.00 per square foot for areas outside the Bonneville
Power Administration (BPA) easement areas, Landscape and Sign
Maintenance Areas and $2.50 per square foot for the land inside the
forgoing areas. The BPA Access roadway shall not be included in the
pricing. Sales price is approximately Two Million Thirty Thousand Four
Hundred Nineteen Dollars ($2,030,419) for the useable portions of Lots 1
and 2, and approximately Three Hundred Sixty Seven Thousand Six Hundred
Six Dollars ($367,646) for the BPA easement area, Landscape and Sign
Easement areas, for a total Purchase Price of approximately TWO MILLION
THREE HUNDRED NINETY EIGHT THOUSAND SIXTY FIVE DOLLARS ($2,398,065),
paid in cash at closing.
5. PAYMENT OF PURCHASE PRICE. Purchase Price shall be paid by PURCHASER to
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SELLER through "Escrow Holder" (as defined below) as follows:
(a) DEPOSIT. Upon execution of this Agreement, PURCHASER shall deposit in
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"Escrow" (as defined below) an xxxxxxx money deposit in the amount of
Fifty Thousand Dollars ($50,000.00) (the "Deposit"). The Escrow
Holder shall invest the Deposit held by it in a federally insured,
interest-bearing account. The accrued interest shall be treated as
part of the Deposit. If the Deposit is retained by the SELLER, the
SELLER shall receive the interest. If the Deposit is returned to the
PURCHASER, the PURCHASER shall receive the interest. At Closing, the
Deposit, together with interest on it, shall be credited toward
payment of the Purchase Price.
(b) BALANCE OF PURCHASE PRICE DUE ON CLOSING. At the "Close of Escrow" (as
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defined below), PURCHASER shall pay into Escrow, by certified or bank
check or wire transfer, for SELLER'S account the balance of the
Purchase Price, which, when added to the Deposit, shall be equal to
the Purchase Price referenced in Paragraph 4. PURCHASER shall also
pay into Escrow such additional amounts as are assessed against
PURCHASER as "Closing Costs" as defined in Paragraph 14 and
"Prorations" as described in Paragraph 15.
6. ESCROW AND CLOSING DATES. The "Escrow Holder" shall be First American Title
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Insurance Company, 000 XX Xxxxxx Xxxxxx, Xxxxxxxx, XX 00000-0000,
Attention: Xx. Xxxxxxxx Xxxxxxx, Vice President, telephone number (503-
795-7600). SELLER shall deliver a fully executed copy of this Agreement
to Escrow Holder within five (5) days of receipt of the Agreement
executed by PURCHASER. The "Opening of Escrow" shall be deemed to be
that date on which SELLER delivers to escrow the fully executed
documents. The "Close of Escrow" or "Closing Date" shall be no later
than WEDNESDAY, NOVEMBER 12, 1997, unless extended pursuant to the
terms of this Agreement. This Agreement shall serve as escrow instructions.
Supplementary instructions may be provided in writing and executed by both
SELLER and PURCHASER.
7. PRELIMINARY TITLE REPORT AND TITLE INSURANCE. The "Title Company" shall be
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First American Title Insurance Company, 000 XX Xxxxxx Xxxxxx, Xxxxxxxx,
XX 00000-0000, telephone number (000-000-0000). SELLER will cause the
Title Company to issue its commitment to insure PURCHASER'S title in an
amount equal to the Purchase Price ("Commitment"), and shall cause the
same, with copies of all documents referred to therein, to be delivered
to PURCHASER within ten business (10) days from Opening of Escrow. At
the Close of Escrow, SELLER shall cause the Title Company, at SELLER'S
sole expense, to issue to PURCHASER an ALTA extended coverage owners'
policy of title insurance showing good and marketable fee title to the
Property vested in PURCHASER (the "Title Policy"). PURCHASER shall pay
for any endorsements to the Title Policy. The issued Title Policy shall
contain a liability limit in an amount equal to the Purchase Price and
shall contain only those exceptions approved by PURCHASER as provided in
Paragraph 6(c) ("Permitted Exceptions").
8. CONDITIONS PRECEDENT. In addition to any other requirements or conditions to
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Close of Escrow, PURCHASER'S obligations hereunder to purchase and pay
for the Property shall be subject to the conditions precedent set forth
in this Paragraph 8, which shall be satisfied or waived on or before the
time and date specified below or before Closing if no time is specified.
If they are not so satisfied or waived, this Agreement and the Escrow
shall, at PURCHASER'S option, terminate; and Escrow Agent shall return
the Deposit to PURCHASER.
(a) PHYSICAL AND ECONOMIC SUITABILITY. PURCHASER shall have until 5:00 PM,
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TUESDAY, SEPTEMBER 30, 1997 (the "Inspection Period") to inspect the
Property and make whatever other inquiry it deems appropriate to
determine the physical and economic suitability of the Property for
PURCHASER'S intended use and the environmental condition of the
Property. PURCHASER may engage consultants or engineers of the
PURCHASER'S choosing to conduct studies of the Property as the
PURCHASER deems necessary. The PURCHASER or its agents shall have the
right to enter the Property at reasonable times to make such tests,
inspections, studies, and other investigations as the PURCHASER may
require, at the PURCHASER'S expense and risk. The PURCHASER shall
indemnify and hold the SELLER harmless from any loss, damage, or
claim arising out of the PURCHASER'S access to the Property for the
purpose of making tests, inspections, studies, and other
investigations. PURCHASER shall notify SELLER in writing on or before
the end of the Inspection Period whether or not the results of
PURCHASER'S inspection satisfy PURCHASER that the Property is
suitable for its intended use. In the event PURCHASER elects to
terminate this Agreement, PURCHASER shall provide SELLER with copies
of any such tests, studies and other investigations conducted by
PURCHASER under the provisions of this paragraph. PURCHASER may, upon
deposit of an additional Twenty Five Thousand Dollars ($25,000.00) in
cash and not later than Tuesday, September 30, 1997, extend this
contingency period by an additional thirty (30) days to 5:00 PM,
Wednesday, October 29, 1997. Said additional deposit and the Deposit
shall be non-refundable in the event this transaction fails to close
through no fault of SELLER, but shall be fully applicable to the
Purchase Price at Close of Escrow.
(b) SURVEY AND LOT SIZE. No later than fifteen (15) business days after the
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Opening of Escrow, SELLER, at its expense, shall deliver to PURCHASER
four (4) copies of an ALTA survey of the Property prepared by and
certified by a licensed surveyor or engineer.
(i) PURCHASER shall notify SELLER in writing of any objections to the
survey within fifteen (15) business days of receipt of the survey.
Failure of PURCHASER to so notify SELLER shall constitute
PURCHASER'S acceptance of the survey; and election to proceed with
the purchase.
(ii) The Purchase Price will be determined by multiplying the land prices
described in Paragraph 3 by the net usable square footage of the
Property. Net usable square footage means total square footage
less portions below the 100 year flood plain.
(c) REVIEW OF COMMITMENT. PURCHASER shall have fifteen (15) business days
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after receipt of the Commitment and copies of all documents mentioned
therein within which to notify SELLER and Escrow Holder in writing of
PURCHASER'S approval or disapproval of any exceptions shown therein. All
approved exceptions shall be permitted exceptions
("Permitted Exceptions"). Prior to Closing, SELLER shall satisfy all
exceptions not accepted by PURCHASER which can be removed at Closing by
the payment of money. In the event of disapproval of any other
exceptions, SELLER shall have ten (10) business days within which to
advise PURCHASER whether or not it will eliminate any disapproved
exceptions from the policy of title insurance to be issued in favor of
PURCHASER. If SELLER fails to notify PURCHASER within such ten (10)
business day period or notifies PURCHASER that it elects not to
eliminate any disapproved exception, or if PURCHASER is not satisfied,
in its discretion, with SELLER S means of eliminating all exceptions,
PURCHASER may determine on or before the end of the Inspection Period
whether or not it elects to proceed with the purchase. PURCHASER shall
notify SELLER and Escrow Holder in writing if it elects not to purchase
the Property.
(d) NO MATERIAL CHANGES. At the Closing Date, there shall have been no
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material adverse changes related to or connected to the Property since
the end of the Inspection Period.
(e) SELLER DELIVERIES. Within ten (10) business days after the Opening of
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Escrow, SELLER shall provide to PURCHASER without any warranty or
representation complete copies of any of the following in SELLER'S
possession relating to the Property:
(i) Environmental reports on the Property, if available.
(ii) Wetlands reports or flood plain analysis performed on the Property.
(iii) Soils or geotechnical reports performed on the Property.
(iv) All applicable governmental permits, approvals, orders, and related
documents.
9. SELLER'S REPRESENTATIONS AND WARRANTIES. SELLER makes the following
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representations and warranties to PURCHASER:
(a) SELLER is the owner of all right, title and interest in the Property and
has the absolute right, power and authority to sell, transfer and
assign the Property to PURCHASER. All requisite action (corporate,
trust, partnership, or otherwise) has been taken by the SELLER in
connection with entering into this Agreement, the instruments
referred to herein, and the consummation of the transactions
contemplated herein. No further consent of any partner, shareholder,
creditor, investor, judicial or administrative body, governmental
authority, or other party is required.
(b) The persons executing this Agreement and the instruments referred to
herein on behalf of the SELLER and the partners, officers, or
trustees of the SELLER, if any, have the legal power, right, and
actual authority to bind the SELLER to the terms and conditions of
this Agreement.
(c) This Agreement and all documents required to be executed by the SELLER
are and shall be valid, legally binding obligations of and
enforceable against the SELLER in accordance with their terms.
(d) Neither the execution and delivery of this Agreement and documents
referred to herein, nor the incurring of the obligations set forth
herein, nor the consummation of the transactions herein contemplated,
nor compliance with the terms of this Agreement and the documents
referred to herein conflict with or result in the material breach of
any terms, conditions, or provisions of, or constitute a default
under any bond, note, or other evidence of indebtedness, or any
contract, indenture, mortgage, deed of trust, loan, partnership
agreement, lease, or other agreements or instruments to which the
SELLER is a party or affecting the Property.
(e) The SELLER represents and warrants that, to the best of SELLER'S
knowledge and belief, there is:
(i) No current or proposed action by any governmental body to condemn or
acquire through eminent domain any portion of the Property;
(ii) SELLER has received no notice from any governmental body that the
Property is in violation of any applicable law, ordinance or
regulation, nor does SELLER know of any facts which constitute a
violation; and
(iii) There is no litigation pending or threatened against SELLER or any
other facts known to SELLER that would have any material adverse
impact on the value of the Property or prevent SELLER from engaging
in this transaction.
(f) The information contained in the recitals is true and correct.
(g) The SELLER represents that, to the best of SELLER'S knowledge and belief
but without undertaking any inspection, no Hazardous Substance has
been placed , stored, spilled, leaked, released or in any way allowed
to contaminate the Property during SELLER'S ownership of the
Property. The SELLER further represents and warrants that during the
term of SELLER'S ownership of the Property, SELLER has not placed,
stored, spilled, leaked, or released any Hazardous Substance on the
Property. Hazardous Substance shall be defined, for purposes of this
Agreement, as any hazardous, toxic, infectious or radioactive
substance, waste or material as defined or listed by any
Environmental Law and shall include, without limitation, petroleum
oil and its fractions. Environmental Law shall be defined, for
purposes of this Agreement, as any federal, state or local statute,
regulation or ordinance or any judicial or other governmental order
pertaining to the protection of health, safety or the environment
(h) The SELLER is the legal and beneficial fee simple titleholder of the
Property and has good, marketable, and insurable title to the
Property, free and clear of all liens, encumbrances, claims,
covenants, conditions, restrictions, easements, rights of way,
options, judgments, or other matters, except as disclosed by the
preliminary title report. There shall be no change in the ownership,
operation, or control of the SELLER from the date of this Agreement
until the Closing Date.
(i) The SELLER'S representations and warranties contained herein are true
and accurate, and are not misleading. The SELLER'S representations
and warranties contained herein shall be continuing and shall be true
and correct as of the Closing Date with the same force and effect as
if remade by the SELLER in a separate certificate at that time. The
SELLER S representations and warranties contained herein shall
survive the close of escrow and shall not merge into the deed and the
recordation of the deed in the official records. SELLER agrees to
indemnify, defend, protect and hold harmless PURCHASER from and
against any claims, demands, lawsuits, liabilities, costs and
expenses (including attorney's fees) arising out of any inaccuracy in
or breach of any representation or warranty of SELLER under this
Paragraph 9, provided that a claim by PURCHASER arising from breach
of representation or warranty under this Paragraph 9 shall be barred
unless PURCHASER gives SELLER notification of such claim within one
year following the closing date.
10. PURCHASER'S REPRESENTATIONS AND WARRANTIES. In addition to any express
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agreements of the PURCHASER contained herein, the following constitute
representations and warranties of the PURCHASER to the SELLER:
(a) The PURCHASER has the legal power, right, and authority to enter into
this Agreement and the instruments referred to herein and to
consummate the transactions contemplated herein.
(b) All requisite action (corporate, trust, partnership, or otherwise)
has been taken by the PURCHASER in connection with entering into
this Agreement and the instruments referred to herein and the
consummation of the transactions contemplated herein. No further
consent of any partner, shareholder, creditor, investor, judicial
or administrative body, governmental authority, or other party is
required.
(c) The persons executing this Agreement and the instruments referred to
herein on behalf of the PURCHASER have the legal power, right, and
actual authority to bind the PURCHASER to the terms and conditions of
this Agreement.
(d) This Agreement and all documents required by it to be executed by the
PURCHASER are and shall be valid, legally binding obligations of, and
enforceable against the PURCHASER in accordance with their terms.
(e) Neither the execution and delivery of this Agreement and documents
referred to herein, nor the incurring of the obligations set forth
herein, nor the consummation of the transactions contemplated, nor
compliance with the terms of this Agreement and the documents
referred to herein conflicts with or results in the material breach
of any terms, conditions, or provisions of or constitute a default
under any bond, note, or other evidence of indebtedness, or any
contract, indenture, mortgage, deed of trust, loan, partnership
agreement, lease, or other agreements or instruments to which the
PURCHASER is a party.
11. FORFEITABILITY OF DEPOSIT. Upon the passage of the Inspection Period with
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PURCHASER'S satisfaction of the conditions in Paragraph 8 or waiver of any
objections, and if the sale and purchase of the Property fails to Close, and
such failure is not due to a default under the terms of this Agreement by
SELLER, or failure of any condition to Closing, the Deposit and any option
fees shall be paid to SELLER and PURCHASER authorizes and instructs Escrow
Agent to deliver the Deposit to SELLER. SELLER and PURCHASER acknowledge
that SELLER S damage would be difficult or impossible to ascertain in the
event of PURCHASER S default under its obligation to purchase the Property
and that the Deposit is a reasonable estimate of those damages. SELLER and
PURCHASER intend the Deposit to be liquidated damages and not a penalty.
SELLER and PURCHASER acknowledge that the amount of the Deposit has been set
taking into account various factors, including the potential for change in
value of the Property. The estimate of damages that could result from a
breach by PURCHASER, as reflected in the amount of the Deposit, is not
intended to be adjusted because of future increase or decrease in the value
of the Property. If PURCHASER objects to title exceptions and such
objections are not satisfied by SELLER or accepted by PURCHASER in the time
provided or if PURCHASER objects to any aspect of the Property during the
Inspection Period, or if the sale and purchase of the Property fails due to
SELLER S default, or failure of any condition to Closing, the Deposit and
the option fees shall be returned to PURCHASER.
12. ITEMS TO BE DELIVERED TO ESCROW HOLDER ON OR BEFORE CLOSE OF ESCROW:
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(a) By SELLER:
(i) DEED. An Oregon Statutory Warranty Deed to the Property (the "Deed")
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in the form of Exhibit "B" in favor of PURCHASER with title
vesting in PURCHASER, duly executed and acknowledged by SELLER,
conveying fee title to the Subject Property subject only to
Permitted Exceptions.
(ii) CERTIFICATION OF NON-FOREIGN STATUS. A certificate dated as of the
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Closing Date, addressed to PURCHASER, duly executed by SELLER
under penalty of perjury, regarding SELLER'S non-foreign status,
in the form of Exhibit "C", hereunto annexed and made a part
hereof.
(iii) CERTIFICATION AS TO REPRESENTATIONS. A certificate dated as of the
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Closing Date, addressed to PURCHASER, duly executed by SELLER,
stating that the representations and warranties made by SELLER in
this Agreement are true and complete on the Closing Date as if
made again on the Closing Date.
(iv) ASSIGNMENT OF EASEMENTS AND AGREEMENTS. Specific assignment in favor
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of PURCHASER of the Property not conveyed by the Deed duly
executed and acknowledged by SELLER in the form of Exhibit "D",
hereto annexed and made a part hereof.
(b) By PURCHASER:
(i) PURCHASE PRICE. The Purchase Price as provided in Paragraph 4 and
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PURCHASER'S share of the Closing Costs and Prorations as defined
in Paragraphs 14 and 15.
13. CLOSING PROCEDURE. At the Close of Escrow, when Escrow Holder has
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received the funds and the items to be delivered by SELLER and PURCHASER
described in Paragraph 12 above, and is prepared to issue and deliver the
Title Policy in the form required by this Agreement, Escrow shall:
(a) Collect from PURCHASER the Closing Costs described in Paragraph 14, and
such additional amounts, if any, as are assessed against PURCHASER as
a result of Prorations pursuant to Paragraph 15;
(b) Record the Deed;
(c) Deliver to SELLER the Cash Payment Due on Closing after deducting the
Closing Costs pursuant to Paragraph 14, any portion of the Deposit
previously released to SELLER, and such additional amounts
attributable to SELLER as a result of Prorations pursuant to
Paragraph 15;
(d) Deliver to PURCHASER its title policy.
(e) Deliver to SELLER and to PURCHASER the items each is to receive at Close
of Escrow as listed in Paragraph 12.
14. CLOSING COSTS. SELLER and PURCHASER shall each pay one-half of the escrow
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fees of Escrow Holder. If the Escrow is terminated because of failure of any
of the conditions set forth herein, Escrow Holder's cancellation fee, if
any, shall be equally divided by SELLER and PURCHASER; provided that if
Escrow is terminated because of the failure of either party to perform its
duties as required hereunder, the nonperforming party shall pay the entire
cancellation fee, if any, of Escrow Holder. SELLER shall pay all documentary
and transfer taxes and the cost of the Title Policy. PURCHASER shall pay the
cost of any endorsements for the Title Policy. SELLER shall pay the real
estate commission described in Paragraph 19.
15. PRORATIONS. Real property taxes and assessments shall be prorated at
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Closing. SELLER shall pay any deferred taxes or charges due as a result of
the Property having been classified as farm use property, whether assessed
before or after Closing.
16. CONDITION OF PROPERTY AND IMPROVEMENTS. SELLER is conveying, and PURCHASER
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shall accept, the Property "AS IS" except for the representations and
warranties contained herein and in the Deed. As of the Closing, PURCHASER
shall have inspected the Property to determine if it is physically and
economically suited for its intended use. PURCHASER acknowledges that
PURCHASER S inspection shall consider but not be limited to soils and
environmental assessment and any other aspect of the Property as reasonably
required for PURCHASER to evaluate the Property. PURCHASER further
acknowledges that, except as provided in this Agreement, SELLER has made no
other representations, warranties or agreements relating to the condition of
the Property, or the Improvements, including without limitation, the
development potential of the Property, the present status of zoning or other
governmental requirements affecting the Property, the availability of water
or other services, or compliance with environmental laws and regulations.
THIS AGREEMENT WILL NOT ALLOW USE OF THE PROPERTY IN VIOLATION OF APPLICABLE
LAND USE OR ZONING LAWS AND REGULATIONS. BEFORE SIGNING OR ACCEPTING THIS
AGREEMENT, PURCHASER SHOULD CHECK WITH THE APPROPRIATE CITY OR COUNTY PLANNING
DEPARTMENT TO VERIFY APPROVED USES.
17. SELLER'S ARCHITECTURAL APPROVAL AND SITE PLAN APPROVAL. PURCHASER shall
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submit, not later than thirty (30) days prior to application for a building
permit, to SELLER, or the then in effect Declarant defined by the CC&R's,
for SELLER'S written approval, which shall not be unreasonably withheld,
plans for PURCHASER'S exterior design of improvements and development of the
Property, consisting of at least site elevations, landscapes, signage
location, exterior lighting, building setbacks, parking including parking
spaces, building ratio, curbs,
sidewalks and building exteriors including colors, material and roof-top
mechanical. SELLER will give PURCHASER its written approval or disapproval
of PURCHASER'S design within five (5) business days of their receipt. SELLER
shall act in its capacity as Declarant under any CC&Rs now or hereafter
adopted when approving the plans submitted hereunder, all to the end that
the improvements to be constructed shall be deemed to be in compliance with
any such CC&Rs if the same are constructed substantially in accordance with
the plans approved by SELLER.
18. RISK OF LOSS. The risk of loss or damage to the Property until closing
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shall be borne by the SELLER. If, prior to closing, the Property shall be
destroyed or damaged by any occurrence, or any action with respect to the
Property shall be instituted or threatened for condemnation pursuant to any
power of eminent domain, SELLER shall promptly notify PURCHASER thereof and
PURCHASER shall have the option to terminate this Agreement by delivering
written notice of its election to terminate to SELLER within ten (10) days
after PURCHASER is so notified by SELLER. If PURCHASER elects to terminate
this Agreement, any sums paid by PURCHASER hereunder shall be refunded in
full and the Agreement shall thereafter be null and void and of no further
force and effect. If PURCHASER does not so elect to terminate this
Agreement and closing is held and the Purchase Price has been paid,
PURCHASER shall be entitled to any award pursuant to any condemnation or
eminent domain proceedings and to settle any loss with insurance carriers
and to receive the proceeds of all insurance applicable to the loss.
19. COMMISSIONS.
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(a) At the Close of Escrow, SELLER shall pay any brokerage commission and
fees owed to National Properties. SELLER hereby represents and warrants
that other than as provided in the Listing Agreement with National
Properties, SELLER has not incurred any obligation for the payment of
any real estate broker's commission, finder's fee or like sum in
connection with the sale of the Property to PURCHASER.
(b) PURCHASER hereby represents and warrants to SELLER that other than
Corporate Realty Advisors, PURCHASER has not incurred any obligation for
the payment of any real estate broker's commission, finder's fee or
other like sum in connection with the sale of the Property to PURCHASER,
and PURCHASER hereby agrees to indemnify and hold SELLER harmless from
and against any and all claims, demands, causes of action and costs,
including attorneys' fees and costs, made, brought or sought against or
from SELLER arising out of any agreement for the payment of a real
estate broker's commission, finder's fee or other like sum entered into
between PURCHASER and any other third party in connection with the sale
of the Property to PURCHASER.
(c) At Closing, SELLER shall pay to National Properties and Corporate Realty
Advisors each fifty percent (50%) of the total commission due pursuant
to SELLER S listing agreement with National.
20. DEVELOPMENT APPROVALS. SELLER will cooperate with and assist PURCHASER in
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obtaining governmental approvals necessary for development of the Property
and will execute all plats, applications, instruments and documents
requested by PURCHASER in connection with obtaining governmental approvals.
SELLER will not be obligated to expend any funds in connection with
obtaining governmental approvals except that SELLER shall complete all lot
line adjustments or other proceedings necessary to make the Real Property
legal lots of record at SELLER S expense on or before closing.
21. EFFECT OF ACCEPTANCE. Upon acceptance, this offer will become an Agreement
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binding upon and inuring to the benefit of PURCHASER and SELLER and their
respective heirs, legal representatives, successors and assigns, and will be
deemed to contain all the terms and conditions agreed upon, it being agreed
that there are no conditions, representations, warranties, covenants, or
agreements not contained herein or in the Exhibits hereto. Any subsequent
conditions, representations, warranties, covenants or agreements will not be
valid and binding upon the parties unless in writing and signed by both
parties.
22. NO WAIVER. Except as herein expressly provided, no waiver by a party of any
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breach of this Agreement or of any warranty or representation hereunder by
the other party shall be deemed to be a waiver of any other breach by such
other party (whether preceding or succeeding and whether or not of the same
or similar nature), and no acceptance of payment or performance by
a party after any breach of this Agreement or of any representation or
warranty hereunder by such other party, whether or not the first party knows
of such breach at the time it accepts such payment or performance shall be a
waiver of any preceding breach other than the failure to pay the amount so
accepted or the failure to perform the tasks accepted. No failure or delay
by a party to exercise any right it may have by reason of the default of the
other party shall operate as a waiver of default or modification of this
Agreement or shall prevent the exercise of any right by the first party
while the other party continues to be so in default.
23. NOTICES. All notices, requests, demands and other communications hereunder,
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shall be in writing and shall be delivered by hand, transmitted by facsimile
transmission (provided sender obtains an electronic confirmation and also
delivers a copy by mail or overnight delivery service), sent prepaid by
Federal Express (or a comparable overnight delivery service), or sent by the
United States Mail, certified, postage prepaid, return receipt requested, at
the addresses and with such copies designated below. Any notice, request,
demand or other communication delivered or sent in the manner aforesaid,
shall be deemed given or made (as the case may be), when actually delivered
to the intended recipient:
If to SELLER: Standard Insurance Company
Attention: Xx. Xxx Xxxx, Standard RE Investors, L.L.C.
0000 XX 0xx Xxxxxx
Xxxxxxxx, Xxxxxx 00000
With a Copy to: Xxxxxx X. Xxxxxx
McEwen, Gisvold, Xxxxxx, Xxxxxx & Xxxxxxx
0000 Xxxxxxxx Xxxxx
0000 XX Xxxxx Xxxxxx Xxxxxxxx, XX 00000
Telephone: (000) 000-0000 Facsimile: (000) 000-0000
If to PURCHASER: Etec Systems, Inc.
Attention: Xxxxx Xxxxx, Director of Facilities
00000 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Telephone: (000) 000-0000 Facsimile: (000) 000-0000
With a Copy to: Etec Systems, Inc.
Director, Legal and Corporate Services
Attention: Xxxx Xxxxxx
00000 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Telephone: (000) 000-0000 Facsimile: (000) 000-0000
Either party may, by written notice as aforesaid, designate a different address
for notices.
24. ASSIGNMENT. In the event PURCHASER should desire to assign this Agreement,
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PURCHASER shall have the right to assign only to a developer, owner, or
financing entity specifically designated by Etec Systems, Inc., for the sole
purpose of developing a building or buildings to be 100% occupied by Etec
Systems, Inc. For an assignment other than the foregoing, PURCHASER shall
give SELLER written notice of such desire at least fifteen (15) days prior
to the date of on which PURCHASER wishes to make such assignment. PURCHASER
shall provide the name of the proposed assignee together with such other
information regarding the proposed assignees financial status and experience
as SELLER may request. SELLER shall then have the right, in its sole
discretion, within fifteen (15) days of receipt of PURCHASER'S notice, to
terminate this Agreement. Should SELLER consent to an assignment of this
Agreement the assignee shall assume all of the obligations of PURCHASER
under this Agreement and the Escrow, and no such assignment shall release or
relieve PURCHASER from its obligations under this Agreement.
25. SELLER'S POST CLOSING RIGHT TO REPURCHASE AND RIGHT OF FIRST REFUSAL.
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(a) SELLER'S Right to Repurchase. PURCHASER shall commence construction of
a building or buildings on the Property within thirty-six (36) months of
the Close of Escrow. In the event PURCHASER fails to commence construction
within such thirty-six (36) -month period, SELLER shall have an option to
repurchase the Property for the same price and financial terms
as provided in this Agreement provided however, that the price shall be
increased by an amount equal to eighteen percent (18%) of the Purchase
Price. SELLER'S option to repurchase may be exercised only by notice (a
"Repurchase Notice") to PURCHASER within thirty (30) days following
PURCHASER'S failure to commence construction within the thirty-six (36)
month period described in this paragraph; and if exercised shall be closed
within thirty (30) days of delivery of SELLER'S Repurchase Notice to
PURCHASER. The term "commence construction" as used herein, shall mean the
completion of footings and slab for the improvements.
(b) The thirty-six (36)-month period described in Paragraph 25 (a) shall be
extended for the period of time that one of the following events has
rendered impossible or reasonably impracticable such commencement of
construction by PURCHASER: strikes, lockouts, labor disputes, natural
disasters or acts of God, inability to obtain labor, materials or
reasonable substitutes therefor; governmental restrictions, regulations or
controls; judicial orders; enemy or hostile governmental action; civil
commotions; fire or other casualty; any failure or defect in the supply,
quantity or character of electricity, gas, water or other utilities
furnished to the Property; the failure of SELLER to perform its obligations
under this Agreement when required to do so; and causes beyond the
reasonable control of PURCHASER (excluding financial inability). Should the
work performed by PURCHASER or its contractor result in a strike, lockout
or labor dispute, such strike, lockout or labor dispute shall not excuse
PURCHASER performance.
(c) SELLER's Right of First Refusal. Purchaser agrees not to sell,
transfer, exchange, grant an option to purchase, lease, or otherwise
dispose of the Property or any part of, or interest in, the Property for a
purpose other than one hundred percent (100%) occupancy by Purchaser
without first offering the Property to SELLER on the terms and conditions
set forth in this Paragraph 25(c). As used in this paragraph, the term
"sell" includes a ground lease of the Property with primary and renewal
terms of more than 15 years in the aggregate.
(i) If Purchaser desires to sell the Property for a purpose other than
its own exclusive use it shall notify SELLER of any offer ("Offer") it
receives and provide SELLER with a copy of the Offer. SELLER shall have
the prior and preferential right to purchase the Property (or the part
of or interest in the Property covered by the Offer, as the case may be)
at the same price and on the same terms and conditions as are contained
in the Offer, except that if SELLER exercises the right of first refusal
by electing to purchase the Property then (1) the closing of the
transaction contemplated by the Offer shall take place no later than 90
days after the date that SELLER elects to exercise the right of first
refusal, and
(2) SELLER shall receive a credit against the sale price of the
Property in an amount equal to any brokerage commission that Purchaser may
save by selling the Property to SELLER rather than the Third-Party
Offeror.
(ii) SELLER shall have 15 days from the date SELLER receives the notice
and a copy of the Offer to notify Purchaser whether SELLER elects to
purchase the Property pursuant to the terms of the Offer. If SELLER
elects to exercise its right to purchase the Property, then, in addition
to giving Purchaser written notice of its election within the 15-day
period, SELLER also shall tender an amount equal to the xxxxxxx money
deposit, if any, specified in the Offer, which will be held and used in
accordance with the terms of the Offer.
(iii) If SELLER fails to timely exercise its right to purchase the
Property pursuant to the terms of this Agreement, then Purchaser shall be
entitled to sell the Property according to the terms of the Offer to the
Third-Party Offeror, subject to the terms of subparagraph (iv) below.
(iv) If SELLER fails to timely exercise its right to purchase the
Property pursuant to the terms of this Agreement, and for any reason
Purchaser shall not sell or convey the Property to the Third-Party Offeror
on the terms contained in the Offer within six months of SELLER's election
not to purchase, then Purchaser must resubmit the Offer as well as any
other offer to SELLER before selling the Property, and such offers shall
be subject to SELLER's right of first refusal under this Agreement;
however, notwithstanding the foregoing, if Seller and Purchaser enter into
a binding xxxxxxx money agreement on the terms contained in the Offer and
are diligently attempting to close the sale six (6) months after Seller's
election not to purchase, the time for closing before resubmitting the
offer to Seller shall be extended three (3) more months for a total of
nine (9) months in which to close.
(v) The term of this Right of First Refusal commences as of the date of
this Agreement and terminates on the earlier to occur of (1) SELLER's
occupancy of the completed improvements on the Property, (2) the
expiration of five (5) years after the Effective Date, or (3) the
consummation of a sale of the Property to a third party as provided in
subparagraph (iv) above. SELLER shall subordinate its right of first
refusal to the first lien of SELLER's construction and/or permanent
lenders and cooperate in providing Purchaser with any instruments that
Purchaser reasonably may require for the purpose of removing from the
public record any cloud on title to the Property attributable in any
manner to the grant or existence of this right of first refusal.
26. ATTORNEY FEES. In the event action is instituted to enforce any term of
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this Agreement, the prevailing party shall recover from the losing party
reasonable attorney fees incurred in such action as set by the trial court
and, in the event of an appeal, as set by the appellate courts.
27. SELLER DEFAULT. In the event of any default in performance of SELLER'S
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obligations under this Agreement, PURCHASER shall be entitled to all of its
remedies under this Agreement, at law and in equity, including the right to
specific performance and injunctive relief as a matter of right.
28. GOVERNING LAW. This Agreement is governed by and will be construed in
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accordance with the laws of the State of Oregon.
29. DEFINITION OF "CLOSING". The word "Closing" or words of similar import as
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used in this Agreement will be construed to mean the originally fixed time
and Closing Date specified herein or any earlier or adjourned date agreed to
in writing by the parties.
30. TIME OF ESSENCE. Time is of the essence of each of the obligations of each
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party hereunder.
31. INVALIDITY OF PROVISIONS. If any provision of this Agreement is found to be
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invalid or unenforceable, the invalidity or unenforceability of such
provision shall not affect the validity of and enforceability of the
remaining provisions of this Agreement.
THE PROPERTY DESCRIBED IN THIS INSTRUMENT MAY NOT BE WITHIN A FIRE PROTECTION
DISTRICT PROTECTING STRUCTURES. THE PROPERTY IS SUBJECT TO LAND USE LAWS AND
REGULATIONS, WHICH, IN FARM OR FOREST ZONES, MAY NOT AUTHORIZE CONSTRUCTION OR
SITING OF A RESIDENCE AND WHICH LIMIT LAWSUITS AGAINST FARMING OR FOREST
PRACTICES AS DEFINED IN ORS 30.930 IN ALL ZONES. BEFORE SIGNING OR ACCEPTING
THIS INSTRUMENT, THE PERSON ACQUIRING FEE TITLE TO THE PROPERTY SHOULD CHECK
WITH THE APPROPRIATE CITY OR COUNTY PLANNING DEPARTMENT TO VERIFY APPROVED USES
AND EXISTENCE OF FIRE PROTECTION FOR STRUCTURES.
IN WITNESS WHEREOF, the parties have caused their duly authorized
representatives to execute this Agreement in four duplicate originals as of the
date first above written.
"PURCHASER" "SELLER"
ETEC SYSTEMS, INC., A NEVADA CORPORATION STANDARD INSURANCE COMPANY,
AND/OR ASSIGNS AN OREGON CORPORATION
By: /s/ Xxxxxxx X. Xxxx By: /s/ Xxxx X. Xxxxxxx
Its: Treasurer Vice President
ATTEST:
By: /s/ Xxxx X. Xxxxxx By:/s/ Xxxxx Xxxxxxxxxx
Its: Assistant Secretary Assistant Secretary
Exhibit List:
"A" Legal Description of Property
"B" Oregon Statutory Warranty Deed
"C" Certificate of Non-Foreign Status
"D" Assignment of Easements and Agreements
