EXHIBIT 10.14
PURCHASE AND SALE AGREEMENT
PURCHASE AND SALE AGREEMENT dated as of March 17, 1997, by and between
MEDICAL STERILIZATION, INC., a New York corporation having its principal place
of business at 000 Xxxxxxxxx Xxxxxxxxx, Xxxxxxx, Xxx Xxxx 00000 ("MSI") and
SHAMROCK TECHNOLOGIES, INC., a New York corporation having its principal place
of business at Foot of Xxxxxxx Xxxxxx, Xxxxxx, Xxx Xxxxxx 00000 ("Shamrock").
WHEREAS, MSI currently performs for Shamrock irradiation of
polytetrafluroethylene and other services ("PTFE Services") pursuant to the Toll
Processing Agreement dated November 29, 1994 between MSI and Shamrock, as
amended (the "Toll Processing Agreement"); and
WHEREAS, MSI and Shamrock are parties to a certain Option and Right of
First Refusal Agreement dated November 29, 1994 (the "Option Agreement"); and
WHEREAS, MSI has received an offer from E-Beam Services, Inc. (the
"E-Beam Offer") to purchase MSI's electron beam accelerator and related
equipment, including spare parts thereto; and
WHEREAS, Shamrock has notified MSI that it will purchase MSI's electron
beam accelerator and related equipment on the same terms as the E-Beam Offer;
and
WHEREAS, the E-Beam Offer is subject to a definitive written agreement
between the parties, and Shamrock and MSI have agreed to certain additional and
different terms and wish to set forth the terms pursuant to which Shamrock will
purchase MSI's electron beam accelerator and spare parts thereto; and
WHEREAS, simultaneously with the execution of this Agreement, MSI and
Shamrock are entering into an Amendment to Toll Processing Agreement and to
Agreement Modifying and Extending the Toll Processing Agreement Between MSI and
Shamrock (the "Toll Processing Amendment") and a certain Release and Ancillary
Agreement (the "Ancillary Agreement") (the Toll Processing Amendment, The
Ancillary Agreement and each of the documents delivered or entered into in
furtherance thereof are hereinafter referred to as the "Related Agreements");
NOW, THEREFORE in consideration of the premises and in reliance upon
the mutual representations, warranties, covenants and agreements hereinafter set
forth and in further consideration of each of the Related Agreements, each of
which is an essential part hereof and a material inducement to Shamrock's and
MSI's entering into this Agreement, MSI and Shamrock agree as follows:
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1.1 Purchase and Sale of Accelerator and Spare Parts.
On the terms and subject to the conditions set forth herein,
at the Closing (as hereinafter defined) MSI will sell, assign,
transfer, grant, convey and deliver ("Transfer") to Shamrock and
Shamrock will purchase and accept from MSI, the electron beam
accelerator and related equipment listed on Schedule 1.1 hereto (the
"Accelerator"), together with all spare parts for the Accelerator (the
"Spare Parts") owned by MSI on the Closing Date (as hereinafter
defined) (collectively, the "Assets").
2. Purchase Price.
2.1 Base Purchase Price. The purchase price to be paid by Shamrock for
the Accelerator and the Spare Parts is $1,250,000 payable as follows:
(i) $1,000,000, less any adjustment required pursuant to
Section 2.2 hereof, shall be paid at the Closing;
(ii) $250,000 shall be paid upon completion of the removal of
the Accelerator as provided in Section 6 hereof;
2.2 Adjustment of Purchase Price. The purchase price for the
Accelerator as set forth in Section 2.1 assumes that the Value (as
hereinafter defined) of the Spare Parts on the Closing Date is not less
than $150,000. In the event that the Value of the Spare Parts is less
than $150,000, then the purchase price shall be reduced by the amount
by which the Value of the Spare Parts is less than $150,000.
2.3 Payment of Purchase Price. The Purchase Price to be paid hereunder
shall, at the option of MSI, be paid by Shamrock by certified check or
by wire transfer of immediately available federal funds.
2.4 Security for Payment of the Purchase Price. On the date hereof,
Shamrock shall deliver to Xxxxxx Xxxxx, Esq., as Escrow Agent a letter
of credit in the amount of $500,000 in the form attached as Exhibit I
to the Escrow Agreement which is attached as Exhibit A hereto, as
security for payment of the purchase price. Such letter of credit shall
be returned to Shamrock at the Closing upon payment by Shamrock to MSI
of the amount set forth in Section 2.1(i).
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3. Representations and Warranties of MSI. MSI hereby covenants,
represents and warrants to Shamrock as follows:
3.1 Organization of MSI. MSI is a duly organized corporation, validly
existing and in good standing under the laws of the State of New York
with full power and authority to own its assets and conduct its
business in the manner in which it is now conducted.
3.2 Authorization of Transaction. MSI has full corporate power and
authority to execute and deliver this Agreement and each of the Related
Agreements and to perform its obligations hereunder and thereunder.
This Agreement and each of the Related Agreements constitutes the valid
and legally binding obligation of MSI, enforceable in accordance with
its terms and conditions. MSI need not give any notice to, make any
filing with, or obtain any authorization, consent or approval of any
government or governmental agency in order to consummate the
transactions contemplated by this Agreement or the Related Agreements.
3.3 Noncontravention. Neither the execution and the delivery of this
Agreement and the Related Agreements nor the consummation of the
transactions contemplated hereby or thereby, will violate any
constitution, statute, regulation, rule, injunction, judgment, order,
decree, ruling, charge or other restriction of any government,
governmental agency or court to which MSI is subject, or any provision
of its charter or bylaws or conflict with or which result in a breach
of, constitute a default under, result in the acceleration of, create
in any party the right to accelerate, terminate, modify, or cancel, or
require any notice under any agreement, contract, lease, license,
instrument or other arrangement to which MSI is a party or by which it
is bound or to which any of its assets is subject.
3.4 Ownership. MSI is the owner of the Accelerator and the Spare Parts
and has full power to transfer the Accelerator and the Spare Parts free
and clear of all liens, encumbrances, security interests, equities,
options, claims, charges and restrictions except those listed on
Schedule 3.4, each of which shall be removed on or before the Closing.
3.5 Actions and Proceedings. Except as described in Schedule 3.5, there
are no actions, disputes, claims, suits, proceedings, arbitrations,
investigations, either administrative or judicial, pending or, to the
best knowledge of MSI, threatened or contemplated, by, against or
affecting or relating to MSI, the Accelerator or the Spare Parts, at
law or in equity or otherwise before or by any court or governmental
agency or body, domestic or foreign, or before an arbitrator of any
kind. MSI has not been charged with, nor to its best knowledge is MSI
under investigation with respect to, any charge concerning any
violation of any provisions of federal, state or local law or
administrative regulation.
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3.6 Brokerage. No brokers, finders or similar agents on behalf of MSI
are entitled to any brokerage commission, finder's fee or any similar
compensation, in connection with this Agreement or the transactions
contemplated hereby, except for fees payable solely by MSI.
3.7 Compliance With Laws. Except as disclosed on Schedule 3.7, MSI has
on the date hereof complied with all and will at all times through the
Closing Date remain in compliance with laws, rules, regulations and
orders applicable to the operation and sale of the Accelerator
including, but not limited to, environmental laws, rules, regulations
and orders.
3.8 Accelerator Specifications and Performance Standards. On the date
hereof the Accelerator meets, and on the Closing Date the Accelerator
will meet the specifications and performance standards set forth on
Schedule 3.8 hereto.
3.9 Spare Parts. Schedule 3.9 hereto sets forth a true, correct and
complete list and brief description of all Spare Parts owned on the
date hereof, together with the Radiation Dynamics, Inc. ("RDI") list
price for each such part on February 28, 1997 for each part acquired
from RDI and in the case of Spare Parts which were not acquired from
RDI, the manufacturer's list price of such part on February 28, 1997.
With respect to any Spare Part for which there is no RDI list price or
other manufacturer's list price, Schedule 3.9 sets forth the price paid
by MSI for such parts.
3.10. Complete Transfer. Schedule 1.1 hereto lists all equipment, parts
and fixtures which are a part of MSI's electron beam accelerator and no
piece of equipment presently used in the operation of such electron
beam accelerator is not listed on Schedule 1.1.
3.11. Assignment and Xxxx of Sale. The Assignment and Xxxx of Sale and
evidence of the filing of the Termination Statements to be delivered at
the Closing will be sufficient to deliver to Shamrock good and
marketable title to the Assets, free and clear from all liens and
encumbrances (other than those in favor of Shamrock).
3.12 Accuracy of Representations and Warranties. Each of the
representations and warranties of MSI contained in this Agreement will
be true and correct on the Closing Date as if made anew and as of such
date.
4. Representations and Warranties of Shamrock Shamrock hereby
covenants, represents and warrants to MSI as follows:
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4.1 Organization of Shamrock. Shamrock is duly organized, validly
existing and in good standing under the laws of the State of New York
with full power to conduct its operation as now conducted.
4.2 Authorization of Transaction. Shamrock has full corporate power and
authority to execute and deliver this Agreement and each of the Related
Agreements and to perform its obligations hereunder and thereunder.
This Agreement and each of the Related Agreements constitutes the valid
and legally binding obligation of Shamrock enforceable in accordance
with its terms and conditions. Shamrock need not give any notice to,
make any filing with, or obtain any authorization, consent or approval
of any government or governmental agency in order to consummate the
transactions contemplated by this Agreement or the Related Agreements.
4.3 Noncontravention. Neither the execution and the delivery of this
Agreement or the Related Agreements, nor the consummation of the
transactions contemplated hereby or thereby, will violate any
constitution, statute, regulation, rule, injunction, judgment, order,
decree, ruling, charge or other restriction of any government,
governmental agency or court to which Shamrock is subject, or any
provision of its charter or bylaws or conflict with or which result in
a breach of, constitute a default under, result in the acceleration of,
create in any party the right to accelerate, terminate, modify, or
cancel, or require any notice under any agreement, contract, lease,
license, instrument or other arrangement to which Shamrock is a party
or by which it is bound or to which any of its assets is subject.
4.4 Accuracy or Representations and Warranties. Each of the
representations and warranties of Shamrock contained in this Agreement
will be true and correct on the Closing Date as if made anew and as of
such date.
5. Spare Parts.
5.1 Value of Spare Parts. For the purpose of Section 2.2 hereof, the
"Value" of the Spare Parts shall mean 50% of the Radiation Dynamics,
Inc. ("RDI") list price for each such spare part acquired from RDI as
of the last day of the month prior to the month in which the Closing
Date occurs (the "RDI List Price"). In the event the Spare Parts
include any part which was not acquired from RDI, the "Value" of such
parts shall be 50% of the manufacturer's list price of such part on the
last day of the month prior to the month in which the Closing Date
occurs. With respect to any spare part for which there is no RDI List
Price or other manufacturer's list price, the "Value" of such part
shall be equal to 50% of the price paid by MSI for such part.
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5.2 Documentation of Spare Parts. Thirty days prior to the Closing
Date, MSI shall set aside all spare parts for inspection and assessment
of value by Shamrock and shall deliver to Shamrock a true, correct and
complete list identifying all Spare Parts to be delivered at the
Closing and the value thereof (the "Spare Parts Schedule"). In
addition, MSI shall make available to Shamrock documentation sufficient
to allow Shamrock to verify MSI's calculation of Value of the Spare
Parts, including copies of the RDI Price List as of the last day of the
month prior to the month in which the Closing Date occurs.
5.3 Representation Regarding Spare Parts. MSI represents and warrants
that each item listed on the Spare Parts Schedule will be of the type
normally useable as a part of the Accelerator, will be in good working
order and except as set forth in Schedule 3.9 will not have been
previously used or be refurbished or rebuilt parts.
6. Removal of the Accelerator.
6.1 Removal. Promptly after the Closing Date Shamrock shall commence
and diligently complete removal of the Accelerator and Spare Parts from
the MSI premises. Removal of the Accelerator shall be performed by
Shamrock or at Shamrock's direction in a workmanlike manner and at
Shamrock's sole cost and expense, provided that MSI shall make
available to assist Shamrock at no cost, (i) one supervisory-level MSI
employee at all times during scheduled removal activities for
coordination purposes and for hands-on participation and (ii)
approximately 50% of Xxxxxxxx Xxxxxxxx'x time or if Xxxxxxxx Xxxxxxxx
is not at such time employed by or otherwise obligated to perform
services for MSI, MSI shall (x) make available equivalent time of an
individual having technical knowledge and experience of Accelerator
operations sufficient to perform the services contemplated to be
performed by Xxxxxxxx Xxxxxxxx or (y) compensate Shamrock for its
actual out of pocket costs incurred in hiring an individual as
described in the preceding clause.
6.2 Access to Premises. From and after the Closing Date, and until
removal of the Accelerator is completed, MSI will, at no cost to
Shamrock, allow Shamrock, its employees and agents 24 hour per day
access to MSI's premises for the purpose of removing the Accelerator.
6.3 Restoration of Premises. Shamrock, its employees and agents shall
not be responsible for restoration of the MSI premises or for any
damage to the MSI premises resulting from removal of the Accelerator
except for damage caused by the gross negligence or willful misconduct
of Shamrock or its employees or agents.
6.4 Plan for Removal. Not later than June 30, 1997 MSI shall, in
consultation with Shamrock prepare and deliver to Shamrock a
preliminary plan for removal activities. MSI shall, in consultation
with Shamrock prepare and deliver to Shamrock
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a comprehensive recommendation for removal of the Accelerator not less
than 45 days prior to the Closing Date. Shamrock may modify or amend
the MSI proposal for removal activities in such manner as it deems
appropriate in its sole discretion, subject, however, to Shamrock's
obligations under Section 6.1 hereof.
7. Certain Additional Covenants of MSI.
7.1 Spare Parts. MSI covenants and agrees that from the date hereof
until the Closing Date it will maintain the quality, type and amount of
inventory of Spare Parts for the Accelerator consistent with its past
practices and will not sell, transfer or otherwise dispose of any of
the Spare Parts, except for use in the Accelerator in the ordinary
course of business.
7.2 No Liens. MSI covenants and agrees that from the date hereof until
the Closing Date, it will not mortgage, pledge, assign, grant a
security interest in or in any way encumber the Assets whether now
owned or hereafter acquired.
7.3. Accelerator Drawings, Specifications and Operating Information.
Within 30 days from the date hereof MSI covenants and agrees to provide
Shamrock with a complete set of maintenance records for the
Accelerator, and not later than June 30, 1997 MSI shall provide to
Shamrock Accelerator drawings and related facility drawings, equipment
specifications, software validation records and operator logs for at
lease three years prior to the date of such request. On the request of
Shamrock, MSI shall provide updated operating logs to Shamrock on a
monthly basis from the date hereof through the Closing Date.
7.4 Access to Premises. MSI shall allow Shamrock to inspect the
Accelerator from time to time upon reasonable notice from the date
hereof until completion of removal activities.
7.5 Insurance. MSI shall maintain sufficient property and liability
insurance covering the Assets until the Assets are transferred to
Shamrock. Property insurance shall be in an amount not less than the
replacement cost of the Assets.
8. The Closing
8.1 Conditions Precedent to the Obligations of Shamrock and MSI. The
obligations of Shamrock and MSI under this Agreement to consummate the
transactions
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contemplated hereby will be subject to the satisfaction, at or prior to
the Closing, of the condition that there shall not have been entered a
preliminary or permanent injunction, temporary restraining order or
other judicial or administrative order or decree in any jurisdiction
the effect of which prohibits the Closing.
8.2 Additional Conditions Precedent to the Obligations of Shamrock. The
obligations of Shamrock under this Agreement to consummate the
transactions contemplated hereby will be further subject to the
satisfaction, at or prior to the Closing, of all the following
conditions, any one or more of which may be waived by Shamrock at its
option:
8.2.1 Accuracy of Representations and Warranties. The representations
and warranties of MSI contained in this Agreement shall be true and
correct in all material respects both on and as of the date of this
Agreement and on and as of the Closing Date (with the same force and
effect as if made anew on and as of the Closing Date).
8.2.2 Compliance With Covenants. All terms, covenants and conditions of
MSI contained in this Agreement to be performed and complied with by
MSI on or before the Closing Date shall have been fully performed and
complied with.
8.2.3 No Litigation. Etc. No investigation, suit, action or other
proceeding shall be pending or threatened before any governmental
entity which, in the reasonable opinion of Shamrock or its counsel, is
likely to result in a restraint or prohibition on, or an award of
damages or other relief in connection with, this Agreement or the
consummation of the transactions contemplated hereby.
8.2.4 Delivery of Documents on Behalf of MSI. At or prior to the
Closing MSI shall have caused to be effected the deliveries required
pursuant to Section 8.4 (b).
8.3 Additional Conditions to the Obligations of MSI. The obligations of
MSI under this agreement to consummate the transactions contemplated
hereby will be further subject to the satisfaction, at or prior to the
Closing, of all of the following conditions, any one or more of which
may be waived by MSI at its option:
8.3.1 Accuracy of Representations and Warranties. The representations
and warranties of Shamrock contained in this Agreement will be true and
correct in all material respects both on and as of the date of this
Agreement and on and as of the Closing Date (with the same force and
effect as if made anew on and as of the Closing Date).
8.3.2 Compliance With Covenants. All terms, covenants and conditions
contained in this Agreement to be performed and complied with by
Shamrock on or before the Closing Date shall have been full performed
and complied with.
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8.3.3 No Litigation, Etc. No investigation, suit, action or other
proceeding shall be pending or threatened before any governmental
entity which, in the reasonable opinion of MSI or its counsel, is
likely to result in a restraint or prohibition on, or an award of
damages or other relief in connection with, this Agreement or the
consummation of the transactions contemplated hereby.
8.3.4 Delivery of Documents on Behalf of Shamrock. At or prior to the
Closing, Shamrock shall have effected the deliveries required pursuant
to Section 8.4(c).
8.4 The Closing. (a) Subject to the fulfillment or waiver of the other
conditions precedent specified in Sections 8.1, 8.2 and 8.3 hereof, the
consummation of the purchase and sale of the Assets contemplated hereby
(the "Closing") will take place on the date which is four months after
the termination of the Toll Processing Agreement, but not later than
April 30, 1998. The Closing will take place at the offices of Gibuey,
Xxxxxxx & Xxxxxxxx, 000 0xx Xxxxxx, Xxx Xxxx, Xxx Xxxx.
(b) At the Closing, MSI will deliver to Shamrock the
following:
(1) Certificate of MSI. A certificate of MSI, signed by an
authorized officer of MSI certifying that the conditions set
forth in Sections 8.2.1, 8.2.2 and 8.2.3 have been
satisfied;
(2) Transfer Documents. Such bills of sale, assignments, UCC
termination statements and other instruments of transfer
(the "Transfer Documents") as may be necessary or
appropriate to Transfer to Shamrock all right, Title and
interest in, to and under the Assets free and clear of all
liens and encumbrances, duly executed by MSI and in form and
substance reasonably satisfactory to Shamrock and its
counsel;
(3) Board of Directors Resolutions. Certified copies of
resolutions of the Board of Directors of MSI authorizing
this Agreement and each of the Related Agreements and each
of the transactions contemplated hereby and thereby; and
(4) Escrow Agent Direction Agreement. Authorization
directing the Escrow Agent to release the letter of credit
referred to in Section 2.4 hereof.
(c) At the Closing Shamrock will deliver to MSI the following:
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(1) Certificate of Shamrock. A certificate of Shamrock,
signed by an authorized officer of Shamrock certifying that
the conditions set forth in Sections 8.3. I, 8.3.2 and 8.3.3
have been satisfied; and
(2) Payment of the Purchase Price. An amount equal to the
portion of the Purchase Price to be paid at the Closing as
set forth in Section 2.1 (i) of this Agreement.
9. Further Assurances/Cooperation.
9.1.1 Further Assurances. After the Closing, MSI will, from time to
time, at Shamrock's request and at no charge to Shamrock, perform such
other acts and execute and deliver such other instruments as may be
required for the more effective conveyance of the Accelerator to
Shamrock.
9.1.2 Cooperation. Shamrock and MSI shall cooperate with each other and
shall act in good faith in performing their respective obligations
under this Agreement and each of the Related Agreements.
10. Expenses. Each party will pay its own expenses (including expenses of
counsel and accountants) incidental to the preparation and carrying out of this
Agreement and the Related Agreements.
11. Miscellaneous.
11.1 Successors and Assigns. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective
successors and assigns. This Agreement may not be assigned or
transferred by Shamrock or MSI without the written consent of the
non-assigning party. The representations, warranties and covenants of
Shamrock and MSI made hereunder will equally apply to any permitted
assignees.
11.2 Notices. Any notice or communication given pursuant hereto shall
be in writing and deemed given when delivered personally or when mailed
by certified mail, postage prepaid, as follows:
If to Shamrock:
Shamrock Technologies, Inc.
Foot of Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxx
Tel: (000) 000-0000
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with a copy to:
Xxxxxx, Xxxxxxx & Xxxxxxxx, LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxxxx X. Xxxxxxx, Esq.
Tel: (000) 000-X000
If to MSI:
Medical Sterilization, Inc.
000 Xxxxxxxxx Xxxxxxxxx
Xxxxxxx, XX 00000
Attn: D. Xxxxxxx Xxxxxxx, President & CEO
Tel: (000) 000-0000
with a copy to:
Xxxxxx Xxxxx, Esq.
Xxxxxxx, Xxxxx & Xxxxx
0000 Xxxxxxxx Xxxxxx
Xxxxxx Xxxx, XX 00000
Tel: (000) 000-0000
Any party may change the name or address of the persons designated to
receive notice by a written notice delivered to the other party.
11.3 Waiver; Remedies. No delays on the part of any party hereto in
exercising any right, power or privilege hereunder shall operate as a
waiver, nor shall any waiver on the part of any such party or any
right, power or privilege hereunder operate as a waiver of any other
right, power or privilege hereunder, nor shall any single or partial
exercise of any right, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, power
or privilege hereunder. The rights and remedies herein provided are
cumulative and are not exclusive of any rights or remedies which any
party hereto may otherwise have at law or in equity.
11.4 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original but all of
which together shall constitute a single instrument.
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11.5 Governing Law. This Agreement shall be construed in accordance
with the laws of the State of New York without giving effect to
conflict of laws that would result in the application of the laws of
another jurisdiction.
11.6 Effect of Invalidity. Should any part of this Agreement, for any
reason, be declared invalid, such decision shall not affect the
validity of any remaining portion, which remaining portion shall remain
in force and effect as if this Agreement had been executed with the
invalid portion thereof eliminated.
11.7 Arbitration. Any controversy or claim arising out of or relating
to this Agreement, or any breach thereof, shall be settled by
arbitration in accordance with the Commercial Rules of the American
Arbitration Association. Judgment upon an award rendered by the
arbitrator or arbitrators may be entered into in any court having
jurisdiction thereof. Each party shall bear its own costs of the
arbitration including, but not limited to, fees and disbursements of
counsel.
IN WITNESS WHEREOF, the parties have executed this Purchase and Sale
Agreement on the date first above written.
SHAMROCK TECHNOLOGIES, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------
Xxxxxxx X. Xxxxxxx
Title: President
MEDICAL STERILIZATION, INC.
By: /s/ Xxxxxxx Xxxxxxx
------------------------
D. Xxxxxxx Xxxxxxx
Title: President and CEO
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SCHEDULE 1.1
The Accelerator consists of the RDI 4.5 MeV industrial accelerator model
0000-00-0000 and all equipment and related components which enable normal
operation and maintenance, including but not limited to: controls and control
console; window blower and ducting; vacuum pumps and controllers; SF6 gas
handling system, gas, gas cylinders, and gas storage vessel; conveyor system,
including carts (including battery driven drum carts) and perforated trays;
water cooling system; all instrumentation, data recorders, and printers; ozone
exhaust fans and ductwork; ventilation fans; safety system equipment; video
monitoring system; radiochromic dosimetry readers; accelerator-related
diagnostic and maintenance equipment, including I-beam platform for vessel
openings, hoists, etc.; spare parts for all the above; and other
auxiliary-equipment related to the above items. In addition, the definition of
the "Accelerator" includes removable components of the electron beam processing
facility, such as major structural steel pieces, certain portions of the
radiation shielding, electrical components, etc., but does not include the
following equipment utilized by MSI that is not owned by MSI:
2 Fork Lift Trucks - Mitsubishi Model FBC15:
Serial No. AFB1-50750
Serial No. AFB1-50582
GE Credit is the Lessor
SCHEDULE 3.4
Liens on Accelerator and Spare Parts
Xxxxxxxxx & Xxxxxxxxx, Inc. ("Xxxxxxxxx") has a security interest in all
machinery, equipment and furniture and fixtures, accounts, contract rights and
general intangibles of MSI pursuant to a security agreement dated November 29,
1994. Apple Bank also has a security interest in the same assets. Pursuant to
Intercreditor Agreement dated the same date, Apple Bank subordinated its
security interest to Xxxxxxxxx, and Shamrock subordinated its security interest
to Xxxxxxxxx and Apple Bank.
SCHEDULE 3.5
Actions, Disputes, Etc.
NONE
SCHEDULE 3.7
Compliance with Laws
MSI has complied with all laws as of this date. The NYS Department of
Environmental Conservation operating through the Nassau County Department of
Health has issued certificates to operate for emission points subject to a final
expiration date of 12/31/97.
SCHEDULE 3.8
Performance Standards
A performance test will include: verification of voltage (MeV), maximum beam
output (milliamps), scan uniformity, and consistency of output (operation for an
8 hour period of time at full beam output with no more than 4 processing
interruptions). The Accelerator must deliver 4.5 MeV and at least 22 milliamps
of beam output.
SCHEDULE 3.9
Spare Parts
CONTRACT DEPARTMENT - SPARE PARTS
EPTEK 700 CARDS (SPARES)
95715-L1 C.P.U. CHASSIE INTERFACE $ 1,025.00
95778-L1 MEMORY BOARD OBSOLETE
95773-L1 MEMORY BOARD OBSOLETE
95717-L1 R.S. 232 INTERFACE 555.00
95744-L1 A/D CONVERTER MODULE 295.00
95750-L1 ANALOG INPUT 1,500.00
95757-L1 ANALOG OUTPUT 845.00
95711-L1 C.P.U. P.C. BOARD (OBSOLETE) 795.00
95713-L1 (3) LOAD TRACK DRIVER 1,025.00
95722-L1 BIT INPUT ASSY 815.00
95725-L1 PUSH BUTTON PAD P.C.B. (OBSOLETE) 325.00
95726-L1 DUAL BYTE I/O ASSY 1,025.00
95732-L1 BIT OUTPUT ASSY 815.00
95735-L1 DATA ENTRY KEYPAD ASSY (OBSOLETE) 1,050.00
95730-A6 (17) OUTPUT INTERFACE 120V BLOCK
($50 EACH) 850.00
95720-F1 (6) I/O BLOCK ($60 EACH) 360.00
95720-A6 (19) INPUT INTERFACE 120V BLOCK
($50 EACH) 950.00
95762-001 APTAK POWER SUPPLY (OBSOLETE) 1,050.00
95714-A6 (3) INTERFACE MODULE ASSY ($500 EACH) 1.500.00
----------
$14,780.00
All of the Above Items Were
Purchased from Ribble Engineering Corporation
SCHEDULE 3.9
Spare Parts
OSCILLATOR SPARE PARTS
RG 220 ANODE CABLE $ 1,000.00
X-00000-000 XXX POWER MODULE 1,780.00
R-90044-002 SCR LOGIC P.C.B. 981.00
R-90044-11 SCR FAULT DETECTION P.C.B. 500.00
M.S.I. DESIGN D.C. FILTER CHOCKE 8,168.00(1)
R-45004 R.F. GRID CHOCKE 1.2 M.H. 5A. 232.06
R-00011 GRID CHOCKE ASSY CAP. 39.22
R-72029 H.V. RESISTOR 40.03
R-87027 FILTER CAP 2.0 MFD 20KVDC 1,400.10
R-87052 FILTER CAP .25 MFD 15KVDC 432.50
R-87053 FILTER CAP .25 MFD 17.5 KVDC 375.48
R-74054-01 .10 100W. RESISTOR 91.48
R-03051 (20) 100 100W GRID RESISTOR 625.00
R-13098-004 GRID CURRENT METER 125.00
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$15,789.87
(1) Purchased from Tech-Xxxx Corp.
SCHEDULE 3.9
Spare Parts
VACUUM SYSTEM
R-51118-001 TURBO PUMP SIDE INLET $13,560.00 (1)*
R-83074-004 ROUGHING PUMP 2,350.00 (2)*
R-83078 ION GAUGE CONTROLLER 1,150.00
R-51120 TURBO PUMP CONTROLLER 3,150.OO (1)*
M.S.I. SCAN WINDOWS MATERIAL
C-00-09615-018 (6) WINDOW "O" RING 240.00
C-00-10459-004 (2) SCAN COILS 116 TURNS 1,909.44
D-00-10884-001 (4) DYNODE & GLASS ASSY 67,289.40
C-00-13256 ELECTRON GUN 3,950.00
R-83034-001 (11) ION GAUGE COPPER GASKET 30.00
R-83034-004 (8) PUMP COPPER GASKET 35.00
R-83034-005 (9) VALVE COPPER GASKET 45.00
VARION ION GAUGE
938-41 VARIAN LEACK DETECTOR 7,000.00 (3)
D-0013523 BEAM TUBE MANIFOLD 11,837.00
C-00-14435 FLANGE L.V. 8" B.T. TO B.T.
C-00-14434 FLANGE B.T. TO ELECTRON GUN
C-0014433 FLANGE B.T. TO B.T. H.V. END
C-00-14436 FLANGE 8" B.T. TO MANIFOLD
B-00-10464-001 (2)B. GUN "O~ RING
C-00-11267-003 (6)"O" RING PAIRED B.T.
C-00-11267-001 "O" RING PAIRED B.T. TO B.T.
B-00-10464-007 "O" RING B.T. TO MANIFOLD
R-50065-453 "O" RING INTERFACE FLANGE
XXXXXXX BLOWER CAT30104A 840CFM 3,600.00 (4)
6" VARIAN GATE VALVE 2.665.00 (3)
-----------
$118,810.84
(1) Purchased from Xxxxxx'x
(2) Purchased from Alcatel Pumps
(3) Purchased from Varian
(4) Purchased from Xxxxxxx Blower Inc.
* When the bearings on these items became bad they were rebuilt according to the
manufacturer~s specs.
SCHEDULE 3.9
SPARE PARTS
CONTROL CONSOLE
R-37103-005 4 - 15 VOLT P.S. $ 131.25
R-37114-006 5 VOLT P.S. 86.25
E-00-98002-001 BEAM CONTROL AMP, P.C.B. 2,294.66
E-00-98018 BEAM REGULATOR CARD 2,445.00
E-00-98014 SCAN FUNCTION GEN. 3,650.00
R-95092 C.P.U. VIDEO DISPLAY 865.00
SCAN AMP. (BULOVA) 8,000.00 (1)
----------
$17,472.16
ACCELERATOR
R-00-10395 R.F. SWITCH CONTACT $ 16.00
R-24021-003 R.F. SWITCH CAM 49.00
C-00-10416 (4) R.F. CHOCKE 3,403.80
D-00-11086 SOLID STATE RECTIFIERS (SPACE PARTS)
R-30054-001 PHOTOMULTIPLIER TUBE 272.56
R-75034 BEAM CONTROL POT 4.5KD 89.11
H.V. DEVIDER BOARD
(3 SECT NO. RESISTOR) 1,500.00
R-87039 (2) .028 MFD. CAP. 597.70
R-87040 (2) .037 MFD. CAP. 720.72
R-87041 (1) .047 MFD. CAP. 349.96
B-00-10711-002(10)H.V.D. RESISTOR STRING 810.75
C-00-11050 (4) ZENER DIODE ASSY 3,481.41
PHOTOCELL FEMLSEC SAFETY SYSTEM 400.00
5 H.P. MOTOR FOR CONVEYER SYSTEM 350.00
-----------
GRAND TOTAL $178,893.88
(1) Purchased from Bulova
EXHIBIT A
ESCROW AGREEMENT
among
SHAMROCK TECHNOLOGIES, INC.,
MEDICAL STERILIZATION, INC.
AND
XXXXXX XXXXX, ESQ.
Entered into
March 17, 1997
ESCROW AGREEMENT
ESCROW AGREEMENT dated March [ ], 1997 by and among Shamrock
Technologies, Inc. a New York corporation ("Shamrock"), Medical Sterilization,
Inc. a New York corporation ("MSI") and Xxxxxx Xxxxx, Esq. as escrow agent
("Escrow Agent").
WHEREAS, Shamrock and MSI are parties to a certain Purchase and Sale
Agreement of even date herewith (the"Purchase Agreement"); and
WHEREAS, the Purchase Agreement requires Sharurock to deliver a letter
of credit in the amount of $500,000 at the time of execution of the Purchase
Agreement;
NOW, THEREFORE, the parties hereto agree as follows:
1. Establishment of the Escrow Fund. Simultaneously with the execution
and delivery of this Escrow Agreement, Shamrock is delivering to the Escrow
Agent a clean, irrevocable standby letter of credit substantially in the form
attached hereto as Exhibit I in the amount of $500,000, issued by First Union
and having an expiration date of May 30, 1998 (the "Letter of Credit") to secure
the Buyer's obligation to pay the portion of the Purchase Price to be paid
pursuant to Section 2. l(i) of the Purchase Agreement.
The Letter of Credit shall be deposited with the Escrow Agent and any
amounts received by the Escrow Agent as a result of any drawings against the
Letter of Credit, less distributions provided for herein shall be known as the
"Escrow Fund." All amounts held in the Escrow Fund (other than the Letter of
Credit) shall be deposited by the Escrow Agent into an interest-bearing account
(the "Escrow Account") and such deposits shall be from time to time invested and
reinvested as herein provided. The Escrow Agent will hold, and dispose of the
Escrow Fund, and any accretions thereto or income with respect thereto, in
accordance with the terms and conditions hereof. Defined terms used but not
defined herein shall have the meanings
-2-
assigned to them in the Purchase Agreement. In the event of the death or
incapacity of the Escrow Agent, Shamrock and MSI shall mutually agree on a
successor escrow agent.
2. Investment of the Escrow Fund.
2.1 Investment. The Escrow Agent shall invest any or all of
the Escrow Account, and any undistributed accretions thereto or income with
respect thereto, as directed in writing by Shamrock, or in the absence of such
directions, as the Escrow Agent may from time to time determine, in any of the
following, in each case not maturing later than six months:
(i) interest-bearing savings accounts with national banks or
corporations endowed with trust powers having capital and surplus in excess of
$1,000,000,000;
(ii) obligations issued or guaranteed by the United States of
America or any agency or instrumentality thereof;
(iii) certificates of deposit of or accounts with national
banks or corporations endowed with trust powers having capital and surplus in
excess of $1,000 000,000; or
(iv) commercial paper at the time of investment rated A-1 by
Standard & Poor's Corporation or Pnme-l by Xxxxx'x Investor's Service, Inc. (the
Escrow Agent having no liability to determine or inquire into the rating of said
investment).
2.2 No Liability. The Escrow Agent shall not have any
liability for any loss sustained as a result of any investment made pursuant to
the instructions of Shamrock or as a result of any liquidation of any such
investment prior to its maturity or for the failure of Shamrock to give the
Escrow Agent any instruction to invest or reinvest the Escrow Fund or any
earnings thereon.
-3 -
2.3 Escrow Ledger. The Escrow Agent shall maintain a ledger
(the "Escrow Ledger") setting forth (i) the amount of the Letter of Credit held
by the Escrow Agent; (ii) the extent the Letter of Credit has been drawn upon;
and (iii) all income or other items added to and distributiors from or other
items charged against the Escrow Fund.
3. Procedure or drawing on the Letter of Credit. In the event that the
Closing has not occurred on or before May 10, 1998, MSI may give notice to the
Escrow Agent and Shamrock directing that the Escrow Agent draw upon the Letter
of Credit ("a Drawing Notice"); provided, however, in no event may MSI give the
Escrow Agent a Drawing Notice in the event that the Closing has not occurred as
a result of the failure of any of the conditions to Shamrock's obligation to
Close set forth in Sections 8.1, or 8.2 of the Purchase Agreement to have been
satisfied. The Drawing Notice shall certify that (i) the Closing has not taken
place and (ii) that each of the conditions set forth in Sections 8.1 and 8.2 of
the Purchase Agreement have been satisfied, and shall be signed by the President
of MSI. The Escrow Agent shall draw upon the Letter of Credit by delivery to the
issuer thereof a Drawing Certificate in the form attached hereto as Exhibit II.
4. Disposition of the Escrow Fund. After drawing upon the Letter of
Credit, the Escrow Agent shall disburse the Escrow Fund only (i) upon written
direction signed by Shamrock and MSI, (ii) upon written direction of the
Arbitrator appointed to resolve disputes under the Purchase Agreement or (iii)
upon direction of any court of competent jurisdiction. The Arbitrator shall
determine any actual damages of MSI (if any) incurred as a result of Shamrock's
failure to Close in breach of its obligations under the Purchase Agreement ("MSI
Damages") and shall direct that such damages be paid to MSI from the Escrow Fund
and that the balance of the Escrow Fund be promptly returned to Shamrock Nothing
herein shall prevent Shamrock from recovering from MSI its actual damages
resulting from any breach by MSI of any of its representations, warranties or
covenants under the Purchase Agreement.
5. Return of the Letter of Credit to Shamrock. The Escrow Agent shall
return the Letter of Credit to Shamrock on the earlier of (i) receipt of written
notice from MSI that the purchase
-4-
price to be paid pursuant to Section 2.1 (i) of the Purchase Agreement has been
paid, or (ii) 10 days after delivery by Shamrock to the Escrow Agent and to MSI
of a certificate of its President stating that the purchase price required to be
paid pursuant to Section 2.1 (i) of the Purchase Agreement has been paid, unless
the Escrow Agent has, prior to the expiration of such 10 day period received a
certificate from MSI stating that such amount has not been paid.
6. Termination. This Agreement shall terminate upon the return of the
Letter of Credit to Shamrock or the distribution of all of the Escrow Fund and
all other sums held by the Escrow Agent pursuant to this Agreement.
7. Duties of the Escrow Agent.
7.1 Duties. It is agreed that the duties and obligations of
the Escrow Agent are those herein specifically provided and no other. The Escrow
Agent shall not have any liability under, nor duty to inquire into, the terms
and provisions of any agreement or instrument, other than this Escrow Agreement.
The Escrow Agent's duties are ministerial in nature and the Escrow agent shall
not incur any liability whatsoever other than for his own willful misconduct or
gross negligence.
7.2 Right to Follow Instructions. The Escrow Agent shall not
incur any liability for following the instructions herein contained or expressly
provided for, or written instructions given by the parties hereto.
7.3 No Duty to Verify. In the absence of willful misconduct or
gross negligence, the Escrow Agent shall not have any responsibility for the
genuineness or validity of any document or other material presented to or
deposited with him nor any liability for any action taken, suffered or omitted
in accordance with any written instructions or certificates given to him
hereunder and believed by him to be signed by the proper party or parties.
-5-
7.4 Consu1tation with Counsel. The Escrow Agent may consult
with counsel of his choice, and shall not be liable for any action taken,
suffered or omitted by him in accordance with the advice of such counsel.
7 5 Conflicting Instructions. In the event that the Escrow
Agent shall be uncertain as to his duties or rights hereunder or shall receive
instructions, claims or demands from any party hereto which, in his opinion,
conflict with any of the provisions of this Escrow Agreement, he shall be
entitled to refrain from taking any action and his sole obligation shall be to
keep safely all property held in escrow until he shall be directed otherwise in
writing by all parties hereto (other than the Escrow Agent) or by a final order
or judgment of an arbitrator or a court of competent jurisdiction.
7.6 Legal Proceedings. The Escrow Agent shall not be required
to institute legal proceedings of any kind and shall not be required to initiate
or defend any legal proceedings which may be instituted against him in respect
of the subject matter of this Escrow Agreement. If the Escrow Agent does elect
to act, he will do so only to the extent that he is indemnified to his
satisfaction against the cost and expense of such defense or initiation.
7.7 Release of Escrow Agent. The Escrow Agent may at any time
resign by giving written notice of his resignation to the parties hereto at
their respective addresses set forth in this Escrow Agreement, at least twenty
(20) days prior to the date specified for such resignation to take effect and,
upon the effective date of such resignation, all property then held by the
Escrow Agent shall be delivered by him to such a person as may be designated in
writing by the other parties hereto, whereupon all of the Escrow Agent's duties
and obligations hereunder shall cease and terminate. If no such person shall
have been designated by such time, all duties and obligations of the Escrow
Agent shall nevertheless cease and terminate. The Escrow Agent's sole
responsibility thereafter shall be to keep safely all property then held by him
pursuant to this Escrow Agreement and to deliver the same to a person or persons
designated by all of the other
-6-
parties hereto or in accordance with the directions of a formal order or
judgment of a court of competent jurisdiction.
8. Termination of the Escrow Agent. Shamrock and MSI together may
terminate the appointment of the Escrow Agent hereunder upon notice specifying
the date upon which such termination shall take effect. In the event of such
termination, Shamrock and MSI shall within sixty (60) days of such notice
jointly appoint a successor Escrow Agent and the Escrow Agent shall turn over to
such successor Escrow Agent the Letter of Credit and all amounts in the Escrow
Fund held by him pursuant to this Escrow Agreement. Upon receipt of the Letter
of Credit, and any funds and other amounts, the successor Escrow Agent shall
thereupon be bound by all of the provisions hereof.
9. Miscellaneous.
9.1 Notices. Any notice or other communication required or
which may be given hereunder shall be in writing and shall be delivered
personally, telegraphed, telexed, sent by facsimile transmission, overnight
delivery service or sent by certified, registered or express mail, postage
prepaid and shall be deemed given when so delivered personally, telegraphed,
telexed, or sent by facsimile transmission or overnight delivery service or, if
mailed, tour days after the date of mailing, as follows:
If to Shamrock:
Shamrock Technologies, Inc.
Foot of Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxx, President
Tel: (000) 000-0000
-7-
with a copy to
Xxxxxx, Xxxxxxx & Xxxxxxxx, LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxxxx X. Xxxxxxx, Esq.
Tel: (000) 000-0000
If to MSI:
Medical Sterilization, Inc.
000 Xxxxxxxxx Xxxxxxxxx
Xxxxxxx, XX 00000
Attn: D. Xxxxxxx Xxxxxxx, President & CEO
Tel: (000) 000-0000
with a copy to:
Xxxxxx Xxxxx, Esq.
Xxxxxxx, Xxxxx & Xxxxx
0000 Xxxxxxxx Xxxxxx
Xxxxxx Xxxx, XX 00000
Tel: (000) 000-0000
If to the Escrow Agent:
Xxxxxx Xxxxx, Esq.
Xxxxxxx, Xxxxx & Xxxxx
0000 Xxxxxxxx Xxxxxx
Xxxxxx Xxxx, XX 00000
Tel: (000) 000-0000
Any party may change the name or address of the persons
designated to receive notice by a written notice delivered to
the other party.
9.2 Waivers and Amendments. This Escrow Agreement may be
amended, modified, superseded, cancelled, renewed or extended, and the terms and
conditions hereof may be waived, only by a written instrument signed by the
parties or, in the case of a waiver, the party waiving compliance. No delay on
the part of any party in exercising any right, power or privilege hereunder
shall operate as a waiver thereof, nor shall any waiver on the part of any party
of any
-8-
right, power or privilege hereunder, nor any single or partial exercise of any
right, power or privilege hereunder, preclude any other or further exercise
thereof or the exercise of any other right, power or privilege hereunder. The
Escrow Agent shall not be bound by any modification, amendment, termination,
cancellation, rescission or supersession of this Agreement unless the same shall
be in writing and signed by all of the other parties hereto and, if his rights,
duties, immunities or indemnities as Escrow agent are affected thereby, unless
he shall have given his prior written consent thereto.
9.3 Governing Law. This Escrow Agreement shall be governed
by and construed in accordance with the laws of the State of New York applicable
to agreements made and to be performed entirely within that State. The parties
hereto irrevocably consent to the jurisdiction of the courts at that State.
9.4 Assignment. The Escrow Agreement shall be binding upon the
successors and permitted assigns of the parties. Except as otherwise provided
herein, no assignment of any rights or delegation of any obligations provided
for herein may be made by any party without the express written consent of all
other parties hereto.
9.5 Further Assurances. Each of the parties shall execute such
documents and other papers and take such further actions as may be reasonably
required or desirable to carry out the provisions hereof and the transactions
contemplated hereby.
9.6 Variations of Pronouns. All pronouns and any variations
thereof refer to the masculine, feminine or neuter, singular or plural, as the
identity of the person or persons may require.
9.7 Counterparts. This Escrow Agreement may be executed in two
or more counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
9
9.8 Headings. The headings in this Escrow Agreement are for
reference, purposes only and shall not in any way affect the meaning or
interpretation of this Escrow Agreement.
IN WITNESS WHEREOF, the parties have executed this Escrow
Agreement on the date first above written.
SHAMROCK TECHNOLOGIES, INC.
By:
--------------------------
Xxxxxxx X. Xxxxxxx, President
MEDICAL STERILIZATION, INC.
By:
--------------------------
D. Xxxxxxx Xxxxxxx, President & CEO
ESCROW AGENT
By:
--------------------------
Xxxxxx Xxxxx, Esq.
-10-
EXHIBIT II
Drawing Certificate
Under First Union
Irrevocable Standby Letter of Credit No._________
I refer to the above-referenced Irrevocable Letter of Credit ("Letter
of Credit"). The terms defined in the Letter of Credit have the same meanings
when used herein.
Xxxxxx Xxxxx ("Escrow Agent") under that certain Escrow Agreement
dated March [ ], 1997 (the "Escrow Agreement") by and among the Escrow Agent,
Shamrock Technologies, Inc. ("Shamrock") and Medical Sterilization, Inc.
("MSI"), hereby certifies to First Union with reference to the Letter of Credit
that:
1. Escrow Agent has received a notice from MSI as provided in Section
3 of the Escrow Agreement that Shamrock has failed to pay the Purchase Price.
2. The Escrow Agent hereby draws upon your Letter of Credit No. in the
amount of $500,000.
3. You shall pay the amount referred to in the preceding paragraph by
transfer of same day funds to Account No. of the Escrow Agent.
IN WITNESS WHEREOF, the Escrow Agent has executed and delivered this
Certificate this _______ day of ________ , 19__.
XXXXXX XXXXX, ESQ.
as Escrow Agent
------------------------
- 11 -
EXHIBIT I
[FORM OF APPLICATION AND AGREEMENT FOR IRREVOCABLE STANDBY LETTER OF CREDIT]
EXHIBIT II
Drawing Certificate
Under First Union
Irrevocable Standby Letter of Credit No. _________
I refer to the above-referenced irrevocable Letter of Credit ("Letter
of Credit"). The terms defined in the Letter of Credit have the same meanings
when used herein.
Xxxxxx Xxxxx ("Escrow Agent") under that certain Escrow Agreement
dated March [ ], 1997 (the "Escrow Agreement") by and among the Escrow Agent,
Shamrock Technologies, Inc. ("Shamrock") and Medical Sterilization, Inc.
("MSI"), hereby certifies to First Union with reference to the Letter of Credit
that:
1. Escrow Agent has received a notice from MSI as provided in Section
3 of the Escrow Agreement that Shamrock has failed to pay the Purchase Price.
2. The Escrow Agent hereby draws upon your Letter of Credit No. ______
in the amount of $500,000.
3. You shall pay the amount referred to in the preceding paragraph by
transfer of same day funds to Account No. __________ of the Escrow Agent.
IN WITNESS WHEREOF, the Escrow Agent has executed and delivered this
Certificate this __________ day of______ , l9__.
XXXXXX XXXXX. ESQ.
as Escrow Agent
----------------------
-l1-
