EXHIBIT 10(A)
AGREEMENT OF SALE
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THIS AGREEMENT is made as of this 2nd day of December, 1998, by and between
OXIS INSTRUMENTS, INC., a Pennsylvania corporation with its registered office
located at 55 Steam Whistle Drive, Ivyland, Bucks County, Pennsylvania,
(hereinafter referred to as "SELLER" ), of the one part, and GIULIANO FAMILY
LIMITED PARTNERSHIP, a Pennsylvania limited partnership, with its registered
address c/o deGrouchy, Sifer & Company, 000 Xxxxxx Xxxxxx Xxxx, Xxxxxxxx,
Xxxxxxxxxxxx 00000 (hereinafter referred to as `BUYER"), of the other part.
W I T N E S S E T H:
WHEREAS, INNOVATIVE MEDICAL SYSTEMS CORP., (hereinafter referred to as
"IMS"), is the fee simple, record title owner, of all that certain lot or piece
of ground and the building thereon erected, situate 00 Xxxxx Xxxxxxx Xxxxx,
Xxxxxxx, Xxxxxxxx of, County of Bucks, Pennsylvania, being County Tax Map Parcel
No. 31-1-8-15 as more fully described in Exhibit "A" attached hereto and made a
part hereof, (hereinafter referred to as the "Premises"); and
WHEREAS, IMS filed Articles of Amendment to its Articles of Incorporation
with the Commonwealth of Pennsylvania, Department of State, on September 29,
1998, changing its name to "Oxis Instruments, Inc.", the SELLER herein; and
WHEREAS, BUYER desires to purchase and acquire the Premises upon certain
terms and conditions more fully set forth herein; and
WHEREAS, the parties hereto have agreed upon a purchase price together with
the terms of payment of the price and a date for settlement and consummation of
this Agreement
NOW THEREFORE, the parties hereto, intending to be legally bound hereby
under and pursuant to the Uniform Written Xxxxxxxxxxx Xxx, 00 X.X. (X)(X)0-0,
and in consideration of the mutual promises and undertakings herein set forth,
the parties do agree as follows:
ARTICLE 1. SALE AND PURCHASE PRICE
Amount of Purchase Price
1.01. On and subject to the terms and conditions set forth in this
Agreement, Seller hereby agrees to sell, convey, transfer, assign and deliver to
Buyer, and Buyer hereby agrees to purchase from Seller, the following properties
and assets:
(1) The Premises;
(2) All of Seller's right, title and interest in and to any
furniture, fixtures, equipment and other tangible personal
property located in or on the Premises used or useful in
connection with the operation of the Premises (the
"Personalty"), such items to be more particularly set forth
on the inventory annexed hereto as Exhibit "B"; and
(3) All of Seller's right, title and interest in, to and under
all contracts and agreements relating to the leasing, use,
occupancy and operation of the
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Premises (collectively, the "Service Contracts"), a schedule
of which Service Contracts is attached hereto as Exhibit
"C", to the extent that BUYER elects to assume or continue
any or all of the contracts or agreements.
The purchase price which BUYER agrees to pay to SELLER and SELLER agrees to
accept from BUYER ("Purchase Price") for the purchase and sale of the Premises
shall be Two Million Sixty Two Thousand Five Hundred and No/100 ($2,062,500.00)
Dollars.
PAYMENT OF PURCHASE PRICE
1.02. The Purchase Price for the Premises shall be paid by BUYER to SELLER
in the following manner:
(1) Within Five (5) days of the execution of this Agreement by
SELLER and
BUYER, BUYER shall deposit the sum of Fifty Thousand and No/l00
($50,000.00) Dollars with Xxxxxx Xxxxxxx Associates, Inc.,
agent for First
American Title Insurance Company, a duly licensed title company
in the
Commonwealth of Pennsylvania as escrowee ("Escrow Agent").
Escrow
Agent shall hold said fund in accordance with the requirements
of Subparagraph 1.03 and 1.04 infra.
(2) The balance of the Purchase Price, subject to the adjustments
set forth herein, shall be paid by BUYER to SELLER by wire
transfer of immediately available federal funds at the time of
Closing.
1.03 Escrow Agent shall deposit said sum in an interest-bearing account at
FDJC insured bank, until consummation or termination of this Agreement under
BUYER's tax identification number. All interest on said funds shall be credited
to BUYER, except in the event of s default. Said monies, together with all
interest earned thereon, shall be referred to herein as "Deposit Monies"). At
the time of consummation of the transaction evidenced by this Agreement
(hereinafter referred to as "Closing"), the Deposit Monies shall be paid by
Escrow Agent to SELLER and credited against the Purchase Price or paid to the
party entitled thereto upon cancellation pursuant to the provisions of this
Agreement. This Agreement shall constitute instructions to the Escrow Agent
1.04 SELLER and BUYER agree to release and hold harmless Escrow Agent upon
faithful tender of the Deposit Monies in accordance with Subparagraph 1.03
supra, or in the event of a dispute between SELLER and BUYER as to the
entitlement of the Deposit Monies, upon the payment of the Deposit Monies into
the Court of Common Pleas, Bucks County, Pennsylvania.
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ARTICLE 2. BUYER'S INSPECTIONS
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BUYER'S INSPECTIONS
2.01 Subject to the provisions of Paragraph 2.03, hereinafter, BUYER at
BUYER's sole cost and expense shall have the right to conduct all inspections of
the Premises as BUYER deems necessary and prudent, or as may be required by s
Lender, and, in addition, BUYER shall be permitted to conduct any and all
necessary tests provided that such tests do not damage, impair or alter any item
or component inspected. BUYER shall indemnify and hold SELLER harmless from any
damage for repair or replacement sustained by any component or item inspected
and any loss, damage or liability of the activities of BUYER or any of BUYER's
agents in connection with the performance of any inspection(s) or test(s).
2.02 SELLER authorizes and permits BUYER and/or BUYER's agents to enter
upon the Premise to conduct any inspection or test after reasonable notice to
SELLER and at reasonable times. BUYER agrees to use its best efforts not to
disrupt SELLER's operations in the conduct of any inspection(s) and/or test(s).
2.03 Within Fifteen (15) days of execution of this Agreement by SELLER and
BUYER, BUYER shall have the Premises, the improvements, and all components or
systems, including but not limited to the structural, mechanical, electrical,
plumbing, HVAC, water supply, septic disposal and/or environmental systems
inspected by a contractor, engineer and/or entity at BUYER's choice and sole
expense. (collectively, the "Inspections") BUYER shall obtain the results no
latter than Thirty (30) days following the Inspections. If the results of the
Inspections are unacceptable to BUYER, BUYER shall, within Five (5) days of
BUYER's receipt of the results: (a) Provide SELLER with a copy of the results
and request SELLER at SELLER's expense to remedy all or such items as BUYER may
request. SELLER shall notify BUYER within Five (5) days of the receipt of
BUYER's notice whether SELLER will undertake to remedy all of the items
identified by BUYER. In the event SELLER refuses to remedy all items or BUYER is
not satisfied with SELLER's response, BUYER at its option may elect to terminate
this Agreement and at that time receive all Deposit Monies, or, (b) Accept the
Premises without adjustment or abatement of the Purchase Price
2.04 Notwithstanding anything contained in this Agreement to the contrary
Seller makes no representation, either prior to or to Closing, with respect to
the condition or character of the Premises or the use or uses to which the
Premises may be put, except as herein provided.
BUYER HEREBY ACKNOWLEDGES and AGREES AN]) REPRESENTS THAT BUYER HAS HAD THE
OPPORTUNITY TO FULLY INSPECT THE PREMISES ANT) THAT BUYER IS PURCHASING THE
PREMISES "AS IS", "WHERE IS" ANT) "WITH ALL FAULTS" AND IN ITS PRESENT CONDITION
ANT) SUBJECT TO ALL USE, REASONABLE WEAR AND TEAR BETWEEN THE DATE HEREOF AND
THE DATE OF CLOSING. In making and executing this Agreement. Buyer has not
relied upon or been induced by any statements or representations of any person
(other than those, if any, set forth expressly in this Agreement or any Exhibit
hereto) in respect of the title to, or the physical or environmental condition
of, the Premises (including, without limitation, the zoning classification or
permitted use of the Premises) or income, expense, operation or other matter
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or thing affecting or relating to the Premises, or this transaction is general,
which might be pertinent or considered in the making or the execution of this
Agreement. Buyer has, on the contrary, relied solely on such representations, if
any, as are expressly made herein and on such investigations, examinations and
inspections as Buyer has chosen to make or have made and this Agreement shall
continue in full force and effect in accordance with its terms.
ARTICLE 3. WARRANTIES AND AGREEMENTS BY SELLER
SELLER'S WARRANTY AS TO LEASES
3.01 SELLER hereby warrants that no person, firm or corporation has any
title, interest, or right to possession of said property or any portion thereof
as a lessee, tenant, or concessionaire of SELLER.
WARRANTY AS TO INSURANCE
3.02. SELLER hereby warrants that the Premises are covered by policies of
property, casualty, and liability insurance maintained by the Seller and that
such policies will be maintained in full force and effect until Closing or
termination of this Agreement, for any covered claims, loss, cost or expense for
personal injury, and/or property damage arising during the period of Seller's
ownership of the Premises. SELLER shall, following Closing, indemnify and hold
BUYER harmless for any of the liability, loss, costs or expenses arising out of
SELLER's negligence or tortuous misconduct during the period of its ownership
and operation of the Premises, which obligation shall survive Closing.
WARRANTY AS TO SERVICE CONTRACTS
3.03. SELLER hereby warrants that attached hereto marked Exhibit "C" and
incorporated herein by reference is a true and complete list of the Service
Contracts. Upon execution of this Agreement, Seller will deliver true and
correct copies of the Service Contracts to Buyer which Buyer will return to
Seller in the event of any termination of this Agreement.
AGREEMENT AS TO SERVICE CONTRACTS
3.04. SELLER agrees that until Closing and delivery of possession of said
Premises to BUYER as herein provided, SELLER shall:
(1) Perform all obligations arising under the Service Contracts
through to Closing.
(2) Maintain the Premises in good repair and in the same condition,
reasonable wear and tear excepted, as it was at the time it was
inspected by BUYER.
(3) Continue to operate and manage the Premises in a reasonable,
diligent, and prudent manner; provided, however, SELLER shall not
enter into any additional leases or agreements or extensions of
any existing leases or agreements pertaining to the Premises.
SELLER shall not make or enter into any contract which cannot be
terminated without charge, cost, penalty or premium on or before
Closing and which would bind or be a charge against the Premises
or Buyer after Closing without
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BUYER's prior written consent which shall not be unreasonably
withheld, delayed or conditioned. SELLER shall not make or enter
into any contract for any improvement, alteration, addition,
demolition, or removal of or to the Premises or any portion
thereof without Buyer's prior written consent which shall not be
unreasonably withheld, delayed or conditioned.
INDEMNITY AGREEMENT
3.05. SELLER agrees to indemnify and hold BUYER, and the Premises free and
harmless for any liability arising because of a breach of lease, breach of
contract, or other matter related to the Premises which occurred or is alleged
to have occurred during SELLER's ownership, maintenance and control of the
Premises and prior to Closing as herein provided.
FIXTURES
3.06. SELLER agrees that the Personalty shall be free and clear of all
liens, security interests and encumbrances. Seller's interest in the Personalty
shall be conveyed to Buyer at Closing by Seller's duly executed Xxxx of Sale,
substantially in the form attached hereto as Exhibit "D" (the "Xxxx of Sale").
REPRESENTATIONS
3.07. SELLER represents and warrants to BUYER that:
(1) SELLER is not a "foreign person" within the meaning and for
purposes (S)897 and (S)1445 of the Internal Revenue Code;
(2) To the best of SELLER's knowledge and information, without the
benefit of any independent investigation by SELLER the facts
set forth in the Findings and Summary of the Phase I
Environmental Site Assessment performed by MAK Environmental,
Inc., dated September 19, 1996, Project No. 1346.86, are true
and correct as of that date and to the present, and SELLER
possesses no information, actual or constructive, to the
contrary.
(3) To the best of SELLER's knowledge and information, without the
benefit of any independent investigation by SELLER the facts
set forth in the Conclusions and Recommendations of the Phase
II Underground Storage Tank Removal and Potable Well Water
Sampling Report performed by MAK Environmental, Inc. for AT&T
Small Business Lending Corporation, dated October 17, 1996, MAK
Assessment No. 1396.96, are true and correct as of that date
and to present, and SELLER possesses no information, actual or
constructive, to the contrary.
(4) SELLER is in sole possession of the Premises, and no other
person or entity has any title, interest, right of possession,
lien or claim in or to the Premises, and/or fixtures.
(5) SELLER has no written or oral notice of any uncorrected
violations of any building, housing, fire, safety or similar
ordinance or regulation
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from any municipal, state and/or federal government or agency.
(6) SELLER is a corporation in good standing under the laws of the
Commonwealth of Pennsylvania.
(7) SELLER has full corporate power and authority to enter into
this Agreement and to consummate the contemplated transaction,
and has been duly authorized by all necessary corporate action
to execute and deliver this Agreement.
(8) To the actual knowledge of Seller, the execution and delivery
by SELLER of this Agreement and the consummation of this
contemplated transaction will not violate any law or conflict
with or result in any breach or violation of, or constitute a
default under, any agreement, instrument or obligation to which
SELLER is a party, or constitute an event or condition that
would permit termination or acceleration of the maturity of the
Articles of Incorporation or By-Laws,
(9) No approval, authorization, consent or order of court is
required for the execution, delivery and consummation of this
Agreement.
(10) The execution and delivery of this Agreement by SELLER will not
conflict with any order, judgment or decree of any court,
government, government agency or instrumentality by which
SELLER is bound or affected.
(11) To Seller's actual knowledge, no litigation or condemnation
proceedings are pending or threatened against SELLER with
respect to the Property.
(12) To the actual knowledge of SELLER, during s ownership and
operation of the Premises, no "hazardous materials" excluding
those used, handled and disposed in accordance with applicable
environmental laws and regulations in connection with Seller's
operation of its activities on the Premises, have been placed
on or under the Premises, which term shall mean any hazardous
or toxic substance, material or waster which is or becomes
regulated by any local, state or federal government; that would
result in the contamination of the Premises.
ARTICLE 4. WARRANTIES AND AGREEMENTS BY BUYER
ASSUMPTION OF SERVICE CONTRACTS
4.01. At Closing, if elected by BUYER, BUYER agrees to accept, assume, and
perform all the terms and conditions of the Service Contracts that were to be
kept or performed by SELLER. Seller's interest in the Service Contracts shall be
conveyed to Buyer at Closing by assignment and assumption agreement duly
executed by Buyer and Seller, substantially in the form attached hereto as
Exhibit "E" (the "Assignment").
INDEMNITY AGREEMENT
4.02. BUYER agrees that after the performance of the conditions specified
in Article 5 of this Agreement and the Closing as therein contemplated, he will
indemnify and hold
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SELLER and the property of SELLER free and harmless from any liability arising
because of a breach of lease, breach of contract, or other matter related to the
Premises which occurred or is alleged to have occurred after Closing.
4.03 Buyer hereby represents, warrants and covenants that as of the date of
this Agreement and as of Closing:
(1) Buyer is a limited partnership duly organized, validly existing
and in good standing under the laws of the Commonwealth of
Pennsylvania. It has full right, power and authority to enter
into and perform the terms and conditions of this Agreement.
(2) The persons executing and delivering this Agreement on behalf
of the Buyer have complete power and authority to so execute
and deliver this Agreement and to consummate the transactions
contemplated herein; all necessary consents of any other party
or parties to the execution and delivery of this Agreement and
the consummation of the transactions contemplated hereunder by
Buyer have been duly obtained; and this Agreement is binding
and enforceable against the Buyer and the partners thereof in
accordance with its terms.
(3) To Buyer's actual knowledge, there is no litigation or
adjudicatory proceeding pending or threatened against or
relating to the Buyer or the contemplated transaction which
would adversely affect the ability of Buyer to perform its
obligations under this Agreement.
(4) Seller's obligation to sell the Premises in connection with
this Agreement shall be conditioned upon receipt of the
Purchase Price at Closing, compliance of Buyer's obligations
hereunder and execution and delivery of the Lease (as
hereinafter defined) by Buyer as landlord.
ARTICLE 5. CLOSING
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ESTABLISHMENT OF CLOSING
5.01. Closing shall be made to consummate the sale of the Premises pursuant
to this Agreement at the law offices of Liederbach, Hahn, Xxx & Petri, P.C. at
000 Xxxxxx Xxxxxx Xxxx, Xxxxx X, Xxxxxxxx, Xxxxxxxxxxxx, 00000-0000 or such
other place and time as BUYER shall designate upon fifteen (15) days written
notice to Seller; provided, however, in no event shall Closing occur on or after
January 31, 1999.
CONDITIONS OF SETTLEMENT
5.02. The settlement and BUYER's obligations under this Agreement to
purchase said property are expressly conditioned on:
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(1) The conveyance to BUYER of good and marketable title to the
Premises, as evidenced by a standard form title insurance policy
issued by First American Title Insurance Company through its
representative Xxxxxx Xxxxxxx Associates, Inc., Xxxxxxxxxxx,
Xxxxxxxxxxxx 00000 in the full amount of the purchase price
herein agreed to be paid by BUYER for said property subject only
to the following:
(a) Any unknown, unrecorded easements, discrepancies or
conflicts in boundary lines, shortages in area and
encroachments which an
accurate and complete survey would disclose;
(b) Rights granted to utility companies for the provisions of
utilities, including but not limited to electric, water,
gas, telephone and/or cable;
(c) Easement over portion of the Premises for highway purposes;
(d) Building setback lines, easements for use of utility
companies for construction, operating and maintaining
facilities on the Premises;
(e) Terms and conditions set forth on the Plan for Northampton
Industrial Park II.
(f) Real estate taxes and assessments and sewer and water
charges not yet due and payable (subject to proration as
provided in this Agreement).
(g) Such other rights, restrictions and matters of record which
do not materially adversely effect Buyer's intended use of
the Premises.
(2) Delivery of the Xxxx of Sale and the Assignment together with the
Service Contracts at Closing.
(3) Delivery of possession of the Premises and all keys to BUYER
immediately at Closing free and clear of all uses and occupancies
except those which BUYER in this Agreement expressly agrees to
assume.
(4) BUYER' s receipt of a Building Permit, Occupancy Permit and such
other permits, certificates and licenses from Northampton
Township necessary to operate and occupy the Premises for the
dual occupancy of the Premises by BUYER and SELLER as a tenant of
SELLER. The cost of the preparation and submission of all
applications and plans, and payment of all costs, fees or
expenses shall be born solely by BUYER.
(5) Execution by SELLER of a Lease from BUYER for the rental of
approximately 14,760 square feet at the Premises (the "Lease") at
an initial annual rental of $6.00 per square foot, triple net,
for a term of
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One (1) year with Two (2) one-year renewals, with the renewal
terms rental to be annually adjusted according to the Consumer
Price Index, All Urban Consumers (CPI-U), Philadelphia Region,
published by the U.S. Department of Labor, Bureau of Labor
Statistics. In addition, the terms of the Lease shall include
BUYER's right to cancel the Lease with at least six (6) months
notice after the end of the first one year term; SELLER's right
to sublease to a sublessee that is as credit worthy as SELLER,
and BUYER to guarantee a lease term of at least one (1) year for
any sublessee. The Lease shall include such additional terms and
conditions as may be acceptable to SELLER and BUYER and shall be
in form and content acceptable to SELLER and BUYER.
(6) Delivery to BUYER prior to Closing of a Phase I Environmental
Assessment satisfactory to BUYER.
(7) Delivery to BUYER at Closing of a fully executed special warranty
deed by SELLER, in recordable form, sufficient to convey to BUYER
title to the Premises, substantially in the form attached hereto
as Exhibit "F".
(8) Delivery to BUYER during Due Diligence period of a
certification(s) from a licensed contractor(s) or engineer(s),
stating that the plumbing, HVAC, mechanical, roofing, structural,
septic and electrical systems are in satisfactory operating
condition.
(9) Delivery to BUYER prior to Closing a copy of any and all
blueprints, diagrams or schematics of the Premises and mechanical
systems in the Premises in Seller's possession, along with any
and all maintenance logs of the mechanical systems in Seller's
possession.
(10) Permit the BUYER, their representative or agent, not more than
five (5) days prior to Closing, to enter the premises to conduct
an inspection to verify and determine that the Premises and all
component systems have been maintained in the same operating
condition, wear and tear excepted, as at the time BUYER or its
agents originally inspected the Premises pursuant to Article 2
herein. In the event any component is not in such similar
condition at the time of the inspection. Buyer shall notify
Seller of the cost of such repair or restoration and SELLER shall
credit BUYER at Closing an amount equal to the cost to repair or
restore that item or component to good working order.
Notwithstanding any provision of this paragraph to the contrary,
in the event such cost to repair and restore the components of
the premises exceeds $50,000.00, Seller shall not be responsible
to pay for such excess cost over $50,000.00. In the event such
costs exceed $50,000.00, Buyer must notify Seller of its intent
either to: (i) pay for such excess cost above $50,000.00 and
agree to close or (ii)
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agree to terminate this Agreement whereupon the deposit monies
shall be returned to Buyer and neither party hereunder shall have
any right or remedy against the other.
(11) BUYER's receipt within Sixty (60) days of the execution of this
Agreement (the "Mortgage Contingency Period") of a written
mortgage commitment in an amount not less than $1,650,000.00 at
an interest rate no greater than 10% per annum and on such terms
and conditions acceptable to BUYER, who shall be the sole judge
of acceptability. Buyer agrees to make immediate application for,
and proceed with due diligence to obtain such mortgage
commitment. After proceeding with due diligence, if Buyer has not
been able to obtain financing pursuant to this paragraph, Buyer
shall have the right to terminate this Agreement by written
notice (the "Mortgage Notice") to Seller on or before the
expiration of the Mortgage, Contingency Period, in which event,
notwithstanding anything contained in this agreement to the
contrary, $25,000.00 of the Deposit Monies shall be returned to
Buyer and $25,000.00 shall be retained by Seller as liquidated
damages and neither party hereunder shall any right or remedy
against the other except as expressly set forth herein. In the
event Buyer does not deliver the Mortgage Notice, this Agreement
shall continue in full force and effect and the contingency set
forth in this subparagraph 5.03 (ii) shall be deemed waived by
Buyer.
(12) BUYER's satisfaction or fulfillment of any and all conditions,
terms and provisions contained in any financing commitment issued
by any Lender in conjunction with the mortgage financing under
Subparagraph (11) supra.
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FAILURE OF CONDITIONS
5.03 Should any of the conditions specified in Paragraph 5.02 of this
Agreement fail to occur, BUYER shall have the power exercisable by the giving
of written notice to the Escrow Agent and to SELLER, to cancel such Closing,
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terminate this Agreement, and recover all Deposit Monies (except as provided to
the contrary in 5.02 (11) above) paid by BUYER to SELLER or to the Escrow Agent
on account of the Purchase Price of the Premises, and upon such notice, the
parties obligations hereunder shall terminate without any further liability on
the part of either party. The Escrow Agent shall be and is hereby irrevocably
instructed by SELLER on any such failure of condition and receipt of such notice
from BUYER by it to immediately refund to BUYER all moneys and instruments
deposited by BUYER in the settlement account pursuant to this Agreement.
DEFAULT
5.04 (1) Should SELLER default in the performance of any duty or
obligation under this Agreement, which precludes or prevents Closing under this
Agreement. Buyer shall have the right, at Buyer's option, to (a) terminate this
Agreement, in which event the
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Deposit Monies shall be retained by Buyer as in for Buyer's liquidated and
agreed upon damages without any further loss, damage, right or remedy in favor
of either party against the other except as set froth in Paragraph 2.01 of this
Agreement and except as may be otherwise expressly provided herein; or (b) seek
to prosecute an action for specific performance hereunder and recover of all
fees, costs, and expenses incurred including attorney fees.
(2) Should BUYER default in the performance of any duty or
obligation under this Agreement and which results in BUYER's failure to proceed
to Closing under this Agreement, SELLER's sole remedy shall be the entitlement
to and retention of the Deposit Monies as liquidated damages. SELLER shall not
be entitled to pursue any other claim, right or remedy against BUYER, either at
law or in equity.
PRORATIONS
5.05. There shall be prorated between SELLER and BUYER as of Closing on
the basis of thirty (30) -day months:
(1) Real and personal property taxes for the current tax year levied
or assessed against said property (including any water tax or
water rate levied against said property for the furnishing of
water thereto) based on the latest available tax bills whether
for that year or the preceding tax year.
(2) Premiums on all insurance policies insuring said property against
damage or destruction that have been approved by and are being
transferred to BUYER.
(3) Charges accruing for the period in which Closing occurs on the
Service Contracts.
BONDS AND ASSESSMENTS
5.06. Any bonds or improvement assessments which are a lien on said
property shall, at Closing, be paid by SELLER.
BROKER'S COMMISSION
5.07. Except for CB Xxxxxxx Xxxxx, ("Broker") each party hereto represents
and warrants to the other that it has not employed or retained any broker or
finder in connection with the transaction contemplated by this Agreement which
would entitle such person to a fee or commission in connection with this
transaction. Seller agrees that if, as and when Closing takes place under this
Agreement Seller will pay to Broker a commission for services rendered pursuant
to a separate agreement entered into by and between Seller and Broker in full
satisfaction of all obligations to Broker for the services rendered by Broker in
connection with the transaction provided for by this Agreement and Buyer shall
have no liability therefor. Each party hereby agrees to indemnify and hold the
other harmless from and against any loss, cost, claim, demand or expense
(including attorney's fees) which may be incurred or sustained by such other
party by virtue of any claim for fee or commission made against it by any broker
or other person claiming through the other party to this Agreement, which
indemnification and hold harmless agreement shall survive Closing.
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EXPENSES OF SETTLEMENT
5.08. The expenses of settlement described in this Article shall be paid in
the following manner:
(1) BUYER shall pay:
(a) The full cost of securing the title insurance policy.
(b) The full cost of preparing, executing, and acknowledging
any deeds or other instruments required to convey to BUYER
good and marketable title to the Premises.
(c) Cost of Survey
(2) The SELLER shall pay:
(a) The full cost of preparing, executing and acknowledging
any mortgage satisfactions or other instruments required
to convey to BUYER good and marketable tile to the
Premises.
(3) Any transfer taxes imposed by any governmental body shall be
paid by BUYER and SELLER in equal proportions.
ARTICLE 6. MISCELLANEOUS
RISK OF LOSS
6.01. (1) Fire or Other Casualty. Except as herein provided, damage to
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the Premises by fire or other casualty between the date hereof and the date of
Closing shall not impair the obligations of either party under this Agreement.
In the event that the Premises is damaged by fire or other casualty the net
proceeds of any insurance collected prior to Closing together with the amount of
any deductible will be paid or credited to Buyer at Closing and all unpaid
claims and rights in connection therewith will be assigned to Buyer at Closing
and, as between Seller and Buyer, Buyer shall be responsible for the making of
any repairs which Buyer elects to have made. The amount of any unpaid claims
will not, however, be credited on account of the Purchase Price. Notwithstanding
the foregoing, in the event of a loss valued at more than $30,000.00, either
Seller or Buyer may within 10 days following such loss, terminate this Agreement
by notice to the other party, in which event the Deposit Monies shall be
returned to Buyer without any further right or remedy in favor of either party
against the other.
(2) Condemnation. Seller agrees to give Buyer written notice of any
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action or proceeding instituted or pending in eminent domain or
for condemnation affecting any part of the Premises promptly
after Seller's receipt thereof If prior to Closing all or a
substantial portion of the Premises (and, for the purposes of
this Agreement, a "substantial portion" shall be deemed to
include any portion of the Premises which includes a portion of
the building or which materially and adversely affects access
to the building, the parking or which otherwise
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materially and adversely affects the use and enjoyment of the
Premises) is taken by condemnation or eminent domain proceeding
or other transfer in lieu thereof (or in the event any notice
of any of the foregoing shall be delivered), Buyer shall have
the right to terminate this Agreement by notice to the other
party within 10 days after the receipt of notice of such
proceedings, in which event the Deposit Monies shall be
returned to Buyer and neither party shall have any further
liability or obligation hereunder. In the event of a partial
taking of less than a substantial portion of the Premises this
Agreement shall continue in full force and effect and Seller
shall, at Closing, credit or assign to Buyer all of Seller's
right, title and interest in the condemnation award and all
other rights or claims arising out of or in connection with any
such eminent domain or condemnation action or proceeding.
Venue & Jurisdiction
6.02 (1) SELLER and BUYER agree that in the event of any dispute,
disagreement or claim, legal and/or equitable venue shall lie with the Court of
Common Pleas of Bucks County and the parties by this Agreement submit to the
jurisdiction of the Court.
(2) Notwithstanding Subparagraph (I) supra, SELLER and BUYER may
-----
agree to submit any claim, controversy or dispute to arbitration pursuant to the
Commercial Arbitration Rules of the American Arbitration Association amended and
effective July 1996. Any decision or award of arbitration shall be final and
binding upon the parties, excepted as provided by law under the provisions of
the Uniform Arbitration Act, 42 Pa. C.S.A. Section 7301 et seq.
------
Notices
6.03. Whenever in this Agreement it shall be required or permitted that
notice or demand be given or served by either party hereto on the other, such
notice or demand shall be given or served and shall not have been deemed to have
been duly given or served, unless in writing, and forwarded by certified mail,
return receipt requested, addressed as follows, or to such other address as
changed hereunder, or by nationally-recognized private delivery service issuing
return receipts, such as Federal Express or via facsimile, addressed as follows,
or to such other address as changed by notice hereunder:
IF TO SELLER: Notices by nationally-recognized United State Mail and/or private
delivery service issuing return receipts shall be sent to:
Oxis Instruments, Inc
c/o Xxx Xxxxxxx
0000 X. XxxxxxXxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxx 972 17-3935
Facsimile -- 000-000-0000
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COPY TO: Xxxxxx X. Xxxxxx, Esquire
Mesirov, Gelman, Jaffe, Xxxxxx & Xxxxxxxx, LLP
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Facsimile -- 000-000-0000
IF TO BUYER Giuliano Family Limited Partnership
Attention: Xxxxxx Xxxxxxxx, General Partner
% deGrouchy, Sifer & Company
000 Xxxxxx Xxxxxx Xxxx
Xxxxxxxx, XX 00000-0000
Facsimile 000-000-0000
COPY TO: Xxxxxx X. Xxxxxx, Xxxxxxx
Xxxxxxxxxx, Xxxx, Xxx & Xxxxx, X.X.
000 Xxxxxx Xxxxxx Xxxx, Xxxxx X
Xxxxxxxx, XX 00000-0000
Facsimile -- 000-000-0000
If any such notice or demand required under this Agreement shall be
given in accordance with the foregoing requirements, said notice or demand shall
be deemed to have been given as of the date said notice was actually received by
the party to whom it is directed.
SELLER COOPERATION
6.04. SELLER agrees to cooperate with BUYER in order for BUYER to
fulfill all conditions or obligations under this Agreement, including but not
limited to executing all documents, applications, instruments or other
writings required before or subsequent to Closing.
ENTIRE AGREEMENT
6.05. This instrument contains the entire agreement between BUYER and
SELLER respecting said property, and any agreement or representation
respecting said property or the duties of either BUYER or SELLER in relation
thereto not expressly set forth in this instrument is null and void.
CAPTIONS
6.06. The captions contained herein are inserted only for the purposes
of convenient reference and in no way define, limit or describe the scope or
intent of this Agreement or any part thereof
NO RECORDING
6.07. This Agreement may not be recorded in any office of public record.
CONSTRUCTION OF AGREEMENT
6.08. This Agreement shall be construed and enforcement in accordance
with the laws of this Commonwealth of Pennsylvania.
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IN WITNESS WHEREOF BUYER has executed this Agreement the day and year
first above written.
SELLER:
Attest: OXIS INSTRUMENTS, INC.
/s/ Xxxxxx Xxxx /s/ Xxx X. Xxxxxxx
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Controller Secretary
BUYER:
GIULIANO FAMILY LIMITED PARTNERSHIP
Witness: A Pennsylvania Limited Partnership
/s/ Xxxxxx Xxxxxx /s/ Xxxxx Xxxxxxxx
-------------------------- ----------------------------------
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