EXHIBIT 10.36
PURCHASE AND SALE AGREEMENT
between
SPEEDFAM - IPEC, INC.,
AN ILLINOIS CORPORATION
and
▇▇▇▇ UNA MANAGEMENT COMPANY, INC.
A CALIFORNIA CORPORATION
TABLE OF CONTENTS
PAGE
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ARTICLE 1 GENERAL INFORMATION.................................................. 1
1.1. Buyer................................................................... 1
1.2. Buyer Tax ID. .......................................................... 1
1.3. Title Company. ......................................................... 1
1.4. Effective Date.......................................................... 1
1.5. Property................................................................ 1
1.6. Purchase Price.......................................................... 1
1.7. ▇▇▇▇▇▇▇ Money........................................................... 1
1.8. Closing Date............................................................ 2
1.9. Due Diligence Period.................................................... 2
1.10. Place of Closing. ...................................................... 2
1.11. Notices, Seller. ....................................................... 2
1.12. Notices, Buyer. ........................................................ 2
ARTICLE 2 DEFINITIONS.......................................................... 3
2.1. [Reserved.]............................................................. 3
2.2. "Agreement"............................................................. 3
2.3. "Broker and Consultant"................................................. 3
2.4. "Business Days"......................................................... 3
2.5. "Closing" or "Close".................................................... 3
2.6. "Contracts"............................................................. 3
2.7. "Current Funds"......................................................... 3
2.8. "Deed".................................................................. 3
2.9. "Due Diligence Period".................................................. 3
2.10. "Effective Date"........................................................ 3
2.11. "▇▇▇▇▇▇▇ Money"......................................................... 3
2.12. "Escrow"................................................................ 3
2.13. "Hazardous Materials"................................................... 3
2.14. "Lease"................................................................. 3
2.15. "Permitted Exceptions".................................................. 3
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2.16. "Property".............................................................. 3
2.17. "Property Inspection"................................................... 3
2.18. "Purchase Price"........................................................ 4
2.19. "Title Commitment"...................................................... 4
2.20. "Title Policy".......................................................... 4
ARTICLE 3 AGREEMENT OF PURCHASE AND SALE....................................... 4
ARTICLE 4 CONSIDERATION........................................................ 4
4.1. ▇▇▇▇▇▇▇ Money Deposit................................................... 4
4.2. [Reserved.]............................................................. 4
4.3. Payment of Purchase Price............................................... 4
4.4. ▇▇▇▇▇▇▇ Money........................................................... 4
ARTICLE 5 ESCROW AND ESCROW INSTRUCTIONS....................................... 4
5.1. Escrow.................................................................. 4
5.2. Escrow Instructions..................................................... 5
ARTICLE 6 TITLE AND INSPECTIONS................................................ 5
6.1. Title Commitment........................................................ 5
6.2. Title Objections........................................................ 5
6.3. Property Inspection..................................................... 6
ARTICLE 7 DISCLAIMER; HAZARDOUS MATERIALS...................................... 7
7.1. Disclaimer.............................................................. 7
7.2. Hazardous Materials..................................................... 7
ARTICLE 8 FUTURE OPERATIONS.................................................... 7
8.1. Maintenance, Litigation................................................. 7
8.2. Contracts and Leasing................................................... 8
ARTICLE 9 CLOSING.............................................................. 8
9.1. Date and Place of Closing............................................... 8
9.2. Escrow Hold-Back........................................................ 9
9.3. Items to be Delivered at Closing........................................ 9
9.4. Title Policy........................................................... 10
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(CONTINUED)
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9.5. Conditions to Close of Escrow.......................................... 10
9.6. Representations and Warranties......................................... 11
ARTICLE 10 CLOSING COSTS AND PRORATIONS........................................ 14
10.1. Closing Costs.......................................................... 14
10.2. Proration of Property Taxes............................................ 14
ARTICLE 11 DEFAULTS AND REMEDIES............................................... 14
11.1. Seller's Default....................................................... 14
11.2. Buyer's Default........................................................ 15
ARTICLE 12 MISCELLANEOUS PROVISIONS............................................ 15
12.1. Broker's Commission.................................................... 15
12.2. Assignment............................................................. 16
12.3. Condemnation and Casualty.............................................. 16
12.4. Notices................................................................ 17
12.5. Entire Agreement....................................................... 18
12.6. Headings............................................................... 18
12.7. Binding Effect......................................................... 18
12.8. Time of Essence........................................................ 18
12.9. Unenforceable or Inapplicable Provisions............................... 18
12.10. Counterparts........................................................... 18
12.11. Applicable Law......................................................... 18
12.12. Attorneys' Fees........................................................ 18
12.13. Authority.............................................................. 19
12.14. Further Assurances..................................................... 19
12.15. Time Periods........................................................... 19
12.16. No Recording........................................................... 19
12.17. Interpretation......................................................... 19
12.18. No Third Party Beneficiary............................................. 19
12.19. Provisions to Survive Closing.......................................... 19
12.20. WAIVER OF JURY TRIAL................................................... 19
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12.21. Confidential Agreement................................................. 20
12.22. Relationship of the Parties............................................ 20
12.23. No Transfer of Certain Rights.......................................... 20
12.24. Approvals and Consents................................................. 20
12.25. Title Company.......................................................... 21
EXHIBIT "A" LEGAL DESCRIPTION A-1
EXHIBIT "B" SPECIAL WARRANTY DEED ▇-▇
EXHIBIT "C" LEASE ▇-▇
▇▇
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT is dated as of the Effective Date
specified in Article 1 below by and between SPEEDFAM - IPEC, INC., AN ILLINOIS
CORPORATION ("Seller"), and the Buyer identified in Article 1 below.
RECITALS:
WHEREAS, Seller is the owner of certain real property as more
particularly described below; and
WHEREAS, Seller desires to sell to Buyer and Buyer desires to purchase
from Seller such real property on the terms and conditions hereinafter set
forth.
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants and agreements set forth herein, the parties hereto agree as follows:
ARTICLE 1
GENERAL INFORMATION
The following general information is used throughout this Agreement:
1.1. BUYER. ▇▇▇▇ Una Management Company, Inc., a
California corporation, or assignee.
1.2. BUYER TAX ID. ▇▇-▇▇▇▇▇▇▇
1.3. TITLE COMPANY. First American Title Insurance Company
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Escrow No.: ▇▇▇-▇▇▇-▇▇▇▇▇▇▇
1.4. EFFECTIVE DATE. May ____, 2002, which is the date the Title
Company acknowledges receipt of a
counterpart original of this Agreement
executed by both Seller and Buyer.
1.5. PROPERTY. That certain real property commonly known as
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, more particularly
described in Exhibit "A" to the Title
Commitment attached hereto and made a part
hereof, together with all buildings and
improvements located thereon and
appurtenances thereto.
1.6. PURCHASE PRICE. The sum of Twenty-Five Million Dollars
($25,000,000.00).
1.7. ▇▇▇▇▇▇▇ MONEY. The sum of Five Hundred Thousand Dollars
($500,000.00), payable on the Effective
Date.
Page 1 of 23
1.8. CLOSING DATE. That date which is no later than 5:00 p.m.,
California Time, June 21, 2002; provided,
however, Buyer may extend such to June 28,
2002, by providing Seller with written
notice of its election on or before June 20,
2002.
1.9. DUE DILIGENCE PERIOD. The period ending at 5:00 p.m., California
Time, May 31, 2002, time being of the
essence.
1.10. PLACE OF CLOSING. At the office of the Title Company.
1.11. NOTICES, SELLER. SpeedFam - IPEC, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: Mr. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
with a copy to: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P.
One Arizona Center
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
1.12. NOTICES, BUYER. ▇▇▇▇ Una Management Company, Inc.
▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Silicon Valley Law Group
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Page 2 of 23
ARTICLE 2
DEFINITIONS
The terms defined in Article 1 and this Article 2, whenever
capitalized, shall have the meanings set forth below and in Article 1, whenever
such terms are used in this Agreement and all Exhibits hereto, unless the
context clearly indicates a different meaning:
2.1. [RESERVED.]
2.2. "AGREEMENT". This instrument, together with all exhibits, addenda,
schedules, and proper amendments hereto.
2.3. "BROKER AND CONSULTANT". Shall have the meaning set forth in
Section 12.1 hereof.
2.4. "BUSINESS DAYS". Any day which is not a Saturday, Sunday or legal
holiday (state or federal) in the State of Arizona or California.
2.5. "CLOSING" OR "CLOSE". The consummation of the transactions
contemplated by this Agreement, including the transfer of the Property to Buyer,
the receipt of the Purchase Price by Seller, and the delivery of the executed
Lease by and between Seller and Buyer.
2.6. "CONTRACTS". Shall have the meaning set forth in Section 8.2
hereof.
2.7. "CURRENT FUNDS". Wire transfer of current federal funds in
accordance with wiring instructions to be provided by Seller, or such other
forms of immediately available funds as may be acceptable to Seller.
2.8. "DEED". The Special Warranty Deed to be delivered to Buyer at
Closing in the form attached hereto as Exhibit "B" and made a part hereof.
2.9. "DUE DILIGENCE PERIOD". Shall have the meaning set forth in
Section 1.9 hereof.
2.10. "EFFECTIVE DATE". As specified in Article 1 above.
2.11. "▇▇▇▇▇▇▇ MONEY". As defined in Section 1.7 hereof.
2.12. "ESCROW". Shall have the meaning set forth in Section 5.1 hereof.
2.13. "HAZARDOUS MATERIALS". Shall have the meaning set forth in
Section 7.2 hereof.
2.14. "LEASE". The executed Lease to be delivered at Closing by and
between Buyer, as Landlord, and Seller, as Tenant, a copy of which is attached
hereto as Exhibit "C" and made a part hereof.
2.15. "PERMITTED EXCEPTIONS". Those matters subject to which title to
the Property shall be conveyed to Buyer in accordance with Section 6.2 hereof.
2.16. "PROPERTY". As defined in Article 3 hereof.
2.17. "PROPERTY INSPECTION". Shall have the meaning set forth in
Section 6.3 hereof.
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2.18. "PURCHASE PRICE". The sum specified in Article 1 above, payable
in the manner set forth in Article 4 hereof.
2.19. "TITLE COMMITMENT". The commitment for title insurance, including
any supplements or revisions thereof, issued by the Title Company pursuant to
Section 6.1 hereof.
2.20. "TITLE POLICY". An owner's policy of title insurance to be issued
to Buyer in the full amount of the Purchase Price in accordance with Section 9.3
hereof.
ARTICLE 3
AGREEMENT OF PURCHASE AND SALE
Subject to the terms and conditions set forth in this Agreement, Seller
agrees to sell, transfer and assign to Buyer, and Buyer agrees to purchase and
accept from Seller, good and indefeasable fee simple title to the Property.
ARTICLE 4
CONSIDERATION
4.1. ▇▇▇▇▇▇▇ MONEY DEPOSIT. The ▇▇▇▇▇▇▇ Money will be deposited with
the Title Company on the Effective Date.
4.2. [RESERVED.]
4.3. PAYMENT OF PURCHASE PRICE. The balance of the Purchase Price
remaining due after the application of the ▇▇▇▇▇▇▇ Money, subject to adjustments
as provided herein, shall be paid to Seller at Closing in Current Funds.
4.4. ▇▇▇▇▇▇▇ MONEY. The Title Company is hereby instructed to deposit
the ▇▇▇▇▇▇▇ Money in a separate federally-insured money market account, subject
to immediate withdrawal by the Title Company, at a bank agreeable to Buyer. All
references in Section 4.3 and hereafter in this Agreement to the ▇▇▇▇▇▇▇ Money
shall include any interest earned thereon. All interest earned on the ▇▇▇▇▇▇▇
Money shall inure to the benefit of the Buyer. The ▇▇▇▇▇▇▇ Money shall be
applied to the Purchase Price at Closing. The ▇▇▇▇▇▇▇ Money shall be fully
refundable to Buyer if this Agreement is cancelled or terminated in accordance
with the terms hereof at any time prior to the end of the Due Diligence Period.
Notwithstanding any other term of this Agreement, after the expiration of the
Due Diligence Period, the ▇▇▇▇▇▇▇ Money shall be nonrefundable to Buyer except
as otherwise expressly provided in Section 9.5(b) (Buyer's Conditions to Close
of Escrow), Section 11.1 (Seller's Default) and Section 12.3 (Condemnation and
Casualty).
ARTICLE 5
ESCROW AND ESCROW INSTRUCTIONS
5.1. ESCROW. An escrow (the "Escrow") for this transaction shall be
established with the Title Company, and the Title Company is hereby engaged to
administer the Escrow.
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5.2. ESCROW INSTRUCTIONS. This Agreement constitutes escrow
instructions to the Title Company and a copy shall be deposited with the Title
Company for this purpose. Buyer and Seller may deliver additional escrow
instructions to the Title Company which do not contradict with the terms and
conditions of this Agreement. Buyer and Seller shall not be required to execute
the Title Company's standard form printed escrow instructions.
ARTICLE 6
TITLE AND INSPECTIONS
6.1. TITLE COMMITMENT. Prior to the Effective Date, Seller has caused
to be delivered to Buyer a title commitment issued by the Title Company,
covering the Property, together with legible copies of all documents referenced
therein and binding the Title Company to issue to Buyer at Closing an owner's
policy of title insurance on a standard ALTA form of policy in the full amount
of the Purchase Price. Seller acknowledges that Buyer will be obtaining a survey
of the Property ("SURVEY") in connection with its due diligence and title review
for the Property.
6.2. TITLE OBJECTIONS.
(a) During the Due Diligence Period, Buyer shall review title
to the Property as disclosed by the Title Commitment and the Survey.
Prior to the expiration of the Due Diligence Period or within three (3)
Business Days after the receipt of any supplement or modification to
the Title Commitment, but in no event prior to the expiration of the
Due Diligence Period, Buyer shall deliver to Seller written notice of
any items shown on the Title Commitment and/or the Survey of which
Buyer disapproves (individually "BUYER DISAPPROVED EXCEPTION" and
collectively, "BUYER'S DISAPPROVED EXCEPTIONS"). Buyer may not
disapprove of the standard printed exceptions in the Title Commitment
pursuant to this Section. If Buyer does not deliver the aforementioned
written notice prior to the expiration of the time provided, Buyer
shall be deemed to have disapproved of all matters shown on the Title
Commitment and the Survey. Seller shall have three (3) Business Days
after receipt of the aforementioned Buyer's notice, or deemed notice,
to notify Buyer in writing which, if any, of Buyer's Disapproved
Exceptions Seller elects to cure or bond over prior to the Closing. If
Seller does not notify Buyer in a timely fashion, Seller shall be
deemed to have elected not to cure or bond over any of Buyer's
Disapproved Exceptions. Seller shall not be obligated to so cure or
bond over Buyer's Disapproved Exceptions, except for monetary liens
which Seller shall be obligated to remove at or before the Closing.
Seller shall not be required to expend any effort or funds, or to
commence litigation to cure a Buyer Disapproved Exception, except for
monetary liens, which Seller shall be obligated to remove at or before
the Closing. Seller further agrees to remove any exceptions or
encumbrances to title that are created by Seller after April 11, 2002,
without Buyer's prior written consent.
(b) If Seller elects to cure, but is unable to cure any or all
of Buyer's Disapproved Exceptions at or prior to the expiration of the
Due Diligence Period, the Buyer may (i) elect to waive such uncured
title matter in writing; or (ii) terminate this Agreement in which
event Buyer shall, as its sole remedy, receive a refund of the ▇▇▇▇▇▇▇
Money and recover its verified out-of-pocket expenses.
(c) If Seller elects to cure none, or some, but not all, of
Buyer's Disapproved Exceptions, Buyer shall have three (3) Business
Days to provide Seller with written notice of Buyer's election, as its
sole remedy, to either waive its disapproval of the Buyer Disapproved
Exceptions which Seller has elected not to cure, or terminate this
Agreement and receive a refund
Page 5 of 23
of the ▇▇▇▇▇▇▇ Money. If Buyer does not provide Seller with written
notice as set forth in the preceding sentence, Buyer shall be deemed to
have elected to terminate this Agreement and shall receive a refund of
the ▇▇▇▇▇▇▇ Money.
(d) If the Title Company revises the Title Commitment after
the expiration of the Due Diligence Period to add or modify exceptions,
and if such additions or modifications are not acceptable to Buyer, in
Buyer's sole and absolute discretion, and are not removed on or before
the Closing, Buyer may, as its sole remedy, terminate this Agreement by
written notice to Seller and the Title Company, and the ▇▇▇▇▇▇▇ Money
shall be refunded to Buyer. From and after the April 11, 2002, Seller
shall not place or consent to any liens or easements against the
Property or take any action to alter the condition of title to the
Property without first obtaining Buyer's written consent, which may be
withheld in Buyer's sole and absolute discretion.
(e) The standard printed exceptions in the Title Commitment,
the Lease, and all matters shown on the Title Commitment, as well as
any additional matters not shown by the Title Commitment and which are
not Buyer's Disapproved Exceptions that the Seller is not required to
cure or bond over at or prior to the Closing pursuant to this Section
6.2, and items shown on the Survey which have not been removed as of
the end of the Due Diligence Period or which Seller is not required to
remove as provided above, shall constitute and are herein called
"PERMITTED EXCEPTIONS".
(f) Any other term of this Agreement notwithstanding,
following the expiration of the Due Diligence Period, Seller shall be
deemed to have waived all objections to all exceptions and matters
shown on the Title Commitment and/or the Survey, whether or not
previously designated as or deemed by this Agreement to be Buyer's
Disapproved Exception(s), all of which shall also be deemed Permitted
Exceptions.
6.3. PROPERTY INSPECTION. Buyer at its cost shall conduct such physical
inspections, environmental audits and studies of the Property as Buyer desires
in its sole and absolute discretion, including without limitation the physical
condition of the Property, the financial condition of Seller, and the investment
opportunity involved with the ownership and leasing of the Property
(collectively, the "PROPERTY INSPECTION"). Further, as part of the Property
Inspection, Seller shall deliver to, or make available to, Buyer, any and all
information related to the Property in Seller's possession or control. If the
Closing fails to occur for any reason other than Seller's default, Buyer shall,
without representation or warranty, provide Seller with a copy of each written
report of such Property Inspection. Such reports shall be for informational
purposes only and neither Seller, nor any successors, assigns, potential lender,
lender, potential purchaser or purchaser of the Property (other than Buyer),
shall be permitted to rely on such reports. Buyer agrees that the results of the
Property Inspection shall remain confidential in accordance with Section 12.21
hereof. If Buyer is not satisfied, in its sole and unfettered discretion, with
the results of the Property Inspection during the Due Diligence Period, Buyer
shall have the right to cancel this Agreement by giving written notice of
cancellation to Seller and the Title Company prior to the end of the Due
Diligence Period, in which event the ▇▇▇▇▇▇▇ Money shall be returned to Buyer
and neither party shall have any further rights or obligations under this
Agreement except for those expressly stated to survive such cancellation. In the
event Buyer wishes to approve of the Property pursuant to its due diligence
investigation, Buyer shall provide Seller with written notice of such prior to
the expiration of the Due Diligence Period. In the event Buyer does not provide
Seller with written notice of its approval of its due diligence review or of its
termination of this Agreement prior to the expiration of the Due Diligence
Period, Buyer shall be deemed to have disapproved of the Property and terminated
this Agreement. Except for conditions which are found to exist on the Property
by Buyer, Buyer shall indemnify, defend and hold Seller harmless from and
against any injury, loss, cost, liability, claim or
Page 6 of 23
expense to person or property arising out of or related to the Property
Inspection, and this indemnity shall survive the Closing or the cancellation or
termination of this Agreement.
ARTICLE 7
DISCLAIMER; HAZARDOUS MATERIALS
7.1. DISCLAIMER. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS
AGREEMENT, IN THE LEASE AND/OR OTHER CLOSING DOCUMENTS, BUYER ACKNOWLEDGES AND
AGREES THAT SELLER HAS NOT MADE, DOES NOT MAKE AND SPECIFICALLY NEGATES AND
DISCLAIMS ANY REPRESENTATIONS, WARRANTIES, PROMISES, COVENANTS, AGREEMENTS OR
GUARANTIES OF ANY KIND OR CHARACTER WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL
OR WRITTEN, OF, AS TO, CONCERNING OR WITH RESPECT TO THE PROPERTY, INCLUDING,
WITHOUT LIMITATION, (A) THE VALUE, NATURE, QUALITY OR CONDITION OF THE PROPERTY;
(B) THE WATER, SOIL AND GEOLOGY OF THE PROPERTY, (C) THE INCOME TO BE DERIVED
FROM THE PROPERTY, (D) THE SUITABILITY OF THE PROPERTY FOR ANY AND ALL
ACTIVITIES AND USES WHICH BUYER MAY CONDUCT THEREON, (E) THE COMPLIANCE OF OR BY
THE PROPERTY OR ITS OPERATION WITH ANY LAWS, RULES, ORDINANCES OR REGULATIONS OF
ANY APPLICABLE GOVERNMENTAL AUTHORITY OR BODY, (F) THE HABITABILITY,
MERCHANTABILITY, MARKETABILITY, PROFITABILITY OR FITNESS FOR A PARTICULAR
PURPOSE OF THE PROPERTY, (G) THE MANNER OR QUALITY OF THE CONSTRUCTION OR
MATERIALS, IF ANY, INCORPORATED INTO THE PROPERTY, (H) THE MANNER, QUALITY,
STATE OF REPAIR OR LACK OF REPAIR OF THE PROPERTY, OR (I) ANY OTHER MATTER WITH
RESPECT TO THE PROPERTY. EXCEPT AS OTHERWISE SET FORTH IN THIS AGREEMENT, IN THE
LEASE AND/OR OTHER CLOSING DOCUMENTS, SELLER HAS NOT MADE, DOES NOT MAKE AND
SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS REGARDING COMPLIANCE WITH ANY
ENVIRONMENTAL PROTECTION, POLLUTION OR LAND USE LAWS, RULES, REGULATIONS, ORDERS
OR REQUIREMENTS, INCLUDING THE EXISTENCE IN OR ON THE PROPERTY OF HAZARDOUS
MATERIALS.
7.2. HAZARDOUS MATERIALS. "Hazardous Materials" shall mean any
substance which is or contains (i) any "hazardous substance" as now or hereafter
defined in Section 101(14) of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended (42 U.S.C. Section 9601 et
seq.) ("CERCLA") or any regulations promulgated under CERCLA; (ii) any
"hazardous waste" as now or hereafter defined in the Resource Conservation and
Recovery Act (42 U.S.C. Section 6901 et seq.) ("RCRA") or regulations
promulgated under RCRA; (iii) any substance regulated by the Toxic Substances
Control Act (15 U.S.C. Section2601 et seq.); (iv) gasoline, diesel fuel, or
other petroleum hydrocarbons; (v) asbestos and asbestos containing materials, in
any form, whether friable or non-friable; (vi) polychlorinated biphenyls; (vii)
radon gas; and (viii) any additional substances or materials which are now or
hereafter classified or considered to be hazardous or toxic under any federal,
state or local environmental law, ordinance, rule or regulation, now or
hereinafter enacted, or the common law, or any other applicable laws relating to
the Property.
Page 7 of 23
ARTICLE 8
FUTURE OPERATIONS
From the date of this Agreement until the Closing or earlier
termination of this Agreement:
8.1. MAINTENANCE, LITIGATION. Seller will (i) keep and maintain the
Property in a first class condition throughout the term of this Agreement,
subject to Section 12.3, (ii) promptly advise Buyer in writing of any
litigation, arbitration, administrative hearing, condemnation action concerning
the Property arising or threatened of which Seller has notice, and (iii)
promptly notify Buyer in writing of any matter that occurs which would make any
representation or warranty of Seller's herein untrue.
8.2. CONTRACTS AND LEASING.
(a) Prior to Closing, Seller shall neither execute any lease
nor enter into any contract nor renew, modify, terminate or grant any
consent with respect to any existing contract with respect to the
Property which will survive Closing and bind Buyer thereunder or
otherwise affect the use, operation or enjoyment of the Property after
Closing without Buyer's prior written consent, which consent may be
withheld in Buyer's sole and absolute discretion. Where Buyer's consent
is required pursuant to this Section, it shall be deemed withheld
unless Seller is otherwise notified in writing within five (5) days of
Buyer's receipt of a proposed new or modified contract. Prior to the
date hereof, Seller has made available to Buyer copies of all written
contracts, agreements, and reports affecting the Property and/or which
would become binding on Buyer after Closing (the "CONTRACTS"). Prior to
Closing, Buyer shall provide Seller with written notice of the
Contracts, if any, that Buyer desires to assume, which Contracts shall
become the list of Service Contracts to be attached as Exhibit "C" to
the ▇▇▇▇ of Sale and Assignment of Contracts, attached hereto as
Exhibit "D". Failure to give such notice to Seller shall be deemed an
election by Buyer to terminate all Contracts and any Contract not
listed in the aforementioned notice shall be terminated by Seller;
provided, however, that Seller, as Tenant under the Lease, may continue
with the performance of any of the following Contracts: (i) Contracts
not directly binding Buyer after the Closing or in the event of a
termination of the Lease; (ii) Contracts that satisfies a requirement
of Section 8.2(b) hereof; and/or (iii) Contracts for which termination
would be a breach of the Contract or for which there would be a
termination fee or other expense; provided further, however, if such
Contracts would become binding on the Buyer after the Closing or in the
event of a termination of the Lease, such Contracts shall be terminated
by Seller, at Seller's sole cost and expense, if so required by Buyer.
Except for the Contracts which Seller elects to continue performance
under the preceding sentence, within five (5) days after receipt of
such notice, Seller shall send a notice of termination with respect to
each of the Contracts. Seller shall indemnify, defend, protect and hold
Buyer harmless from and against any and all claims, damages, losses,
costs and expenses (including attorneys' fees and expenses) related to
any Contract which is not expressly assumed by Buyer hereunder.
(b) Notwithstanding anything contained herein, at or prior to
the Closing, Seller shall have entered into any and all contracts,
agreements and insurance policies required to be entered into by Seller
pursuant to the terms of the Lease, including, but not limited to,
those set forth in Sections 9 and 19 of the Lease.
Page 8 of 23
ARTICLE 9
CLOSING
9.1. DATE AND PLACE OF CLOSING. Subject to the satisfaction or waiver
of all conditions to either party's obligation to consummate the purchase and
sale of the Property as set forth in Section 9.4 below, the Closing shall take
place on the Closing Date through the Title Company. The Title Company, shall
agree in writing with Seller and Buyer that (a) recordation of the Deed
constitutes its representation that it is holding the closing documents, closing
funds and closing statement and is prepared and irrevocably committed to
disburse the closing funds in accordance with the closing statements; and (b)
release of funds to the Seller shall irrevocably commit it to issue the Title
Policy in accordance with this Agreement. Upon satisfaction or completion of the
foregoing conditions and deliveries, the parties shall direct the Title Company
to immediately record and deliver the documents described above to the
appropriate parties and make disbursements according to the closing statements
executed by Seller and Buyer and in accordance with escrow instructions by each
party consistent with this Agreement.
9.2. ESCROW HOLD-BACK. Notwithstanding any other term of this
Agreement, at the closing, the Title Company shall retain in the escrow account
the sum of Forty Six Thousand Dollars ($46,000.00) (the "Hold-Back") to secure
completion of certain repairs by Seller in accordance with the repair and
maintenance provisions of the Lease, as follows: (a) parking lot pavements -
repair and reseal; (b) parking lot pavements - paint parking lot striping; (c)
300 building mechanical roof - install walking pads; and (d) 300 building
mechanical roof - repair leaking mechanical equipment. Upon receipt of notice of
the completion of all (or a portion) of such repairs from Buyer, the Title
Company shall pay all (or the portion specified in the notice) of the Hold-Back
to Seller. If any of the Hold-Back remains in escrow more than ninety (90) days
after the Closing, the Title Company shall pay the money to Buyer to be held by
Buyer pending completion of the aforementioned repairs by Seller. Buyer shall
pay any excess funds to Seller. Seller shall pay any shortfall in the amount of
the Hold-Back to complete the repairs.
9.3. ITEMS TO BE DELIVERED AT CLOSING.
(a) By Seller. At or prior to Closing, Seller shall deliver or
cause to be delivered to Buyer, through Escrow or directly to Buyer,
each of the following items:
(i) The Deed, suitable for recording, conveying good
and indefeasable, fee simple title to the Property to Buyer,
subject only to the Permitted Exceptions;
(ii) The Lease;
(iii) Evidence of Seller's authority to consummate
this transaction in form and substance reasonably satisfactory
to Buyer;
(iv) Any reasonable and customary certificates and
affidavits (including an Affidavit of Property Value) that may
be required in the normal course by the Title Company, in form
and substance reasonably satisfactory to Seller and Buyer,
duly executed by Seller;
(v) A Non-foreign Certification of Entity Transferor
from Seller or other evidence satisfying the requirements of
Section 1445 of the Internal Revenue Code;
Page 9 of 23
(vi) A ▇▇▇▇ of sale transferring good and
indefeasable fee simple title, free of all liens and
encumbrances, to Buyer of any and all personal property
related to the Property, in the form attached hereto as
Exhibit "D", but excluding Tenant's Equipment (as defined in
the Lease) and those items set forth on such Exhibit "D" or
other property that is to remain Tenant's property under the
Lease;
(vii) A certificate or certificates executed by J.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ or ▇▇▇ ▇▇▇▇▇▇▇▇, certifying that Seller's
representations and warranties are true, correct and complete,
as of the Closing, in all material respects;
(viii) Copies of all keys, security cards and card
keys for the Property, tagged for identification;
(ix) Possession of the Property, subject to the
Lease; and
(x) Copies of all contracts, agreements and insurance
policies required of Seller pursuant to Sections 9
(Maintenance and Repairs) and 19 (Insurance) of the Lease;
(xi) The completed Certificate (as defined in the
Lease); and
(xii) All sums due pursuant to the Lease, including,
but not limited to, Base Rent (as defined in the Lease),
Impositions (as defined in the Lease), if any, and Additional
Rent (as defined in the Lease), each, as due for the first
partial calendar month of the Lease Term (as defined in the
Lease) and for the first full calendar month of the Lease
Term, the Security Deposit (as defined in the Lease).
(b) By Buyer. At or prior to Closing, Buyer shall deliver or
cause to be delivered to Seller, through Escrow or directly to Seller,
each of the following items:
(i) The balance of the Purchase Price in Current
Funds;
(ii) The Lease;
(iii) Evidence of Buyer's authority to consummate
this transaction; and
(iv) Any customary certificates and affidavits
(including an Affidavit of Property Value) that may be
required in the normal course by the Title Company, in form
and substance reasonably satisfactory to the Buyer, duly
executed by Buyer.
(c) By Title Company. The Title Company shall deliver the net
proceeds of the Purchase Price to Seller at Closing.
(d) Closing Statements. At or prior to the Closing, Seller and
Buyer shall deposit with the Title Company executed closing statements
consistent with this Agreement in the form required by the Title
Company.
9.4. TITLE POLICY. As a condition to Buyer's obligation to close, the
Title Company shall be irrevocably committed to issue to Buyer the Title Policy,
issued by the Title Company as of the date and time of the recording of the
Deed, in the amount of the Purchase Price, insuring Buyer as owner of good
Page 10 of 23
and indefeasible fee simple title to the Property, and subject only to the
Permitted Exceptions. The Title Policy may be delivered after Closing if that is
customary in the locality.
9.5. CONDITIONS TO CLOSE OF ESCROW.
(a) Seller. Seller's obligation to sell the Property to Buyer
shall be subject to the occurrence, satisfaction and/or waiver of the
following conditions:
(i) As of the Closing, Buyer shall have performed all
of the obligations required to be performed by Buyer under
this Agreement; and
(ii) All representations and warranties made by Buyer
to Seller in this Agreement shall be true and correct in all
material respects as of the Closing.
So long as Seller is not in default hereunder, if any of the foregoing
is not satisfied or waived by Seller, Seller shall provide Buyer with
written notice setting forth the nature of the condition not so
satisfied and shall demand satisfaction thereof. Buyer shall then have
five (5) days to satisfy said condition and the Closing shall occur
within five (5) days thereafter. If Buyer does not perform such that
said condition is satisfied, Sellers shall have the right, as its sole
and exclusive remedy, to terminate this Agreement and the Escrow created
pursuant hereto, in which event the ▇▇▇▇▇▇▇ Money shall be paid to
Seller and neither party shall have any further obligations hereunder
other than as may be expressly and specifically stated otherwise in this
Agreement. If Seller elects to proceed with Closing despite the
non-satisfaction of the applicable condition, Seller shall be deemed to
have waived such non-satisfaction.
(b) Buyer. Buyer's obligation to purchase the Property from
Seller shall be subject to the occurrence, satisfaction and/or waiver
of the following conditions:
(i) The Title Insurer is unconditionally and
irrevocably prepared and committed to issue the Title Policy
in accordance with Section 9.3 above;
(ii) As of the Closing, Seller shall have performed
all of the obligations required to be performed by Seller
under this Agreement;
(iii) All representations and warranties made by
Seller to Buyer in this Agreement shall be true and correct in
all material respects as of the Closing; and
(iv) There are no significant change in the Property
from the expiration of the Due Diligence Period, including,
but not limited to, any matter governed by Section 12.3
herein, whether considered a "substantial portion" thereunder
or not.
(v) There shall be no litigation, actions or
proceedings affecting or threatened against Seller or the
Property, except for that certain property tax appeal filed by
Seller on or about April 9, 2002.
(vi) There shall have occurred no material adverse
change in the financial condition of Seller from the end of
the third quarter of Seller's fiscal year ending February 28,
2002.
If any of the foregoing is not satisfied or waived by Buyer, Buyer shall
provide Seller with written notice setting forth the nature of the
condition not so satisfied and shall demand
Page 11 of 23
satisfaction thereof. Seller shall then have five (5) days to satisfy
said condition and the Closing shall occur within five (5) days
thereafter. If Seller does not perform such that said condition is
satisfied and the failure of such condition is not the result of a
default by Seller hereunder, Buyer shall have the right, as its sole
remedy, to terminate this Agreement and the Escrow created pursuant
hereto, in which event the ▇▇▇▇▇▇▇ Money shall be refunded to Buyer and
neither party shall have any further obligations hereunder other than
as may be expressly and specifically stated otherwise in this
Agreement. If the failure of a condition of Buyer's obligation to close
Escrow is due to a default by Seller, the provisions of Section 11.1
shall apply.
9.6. REPRESENTATIONS AND WARRANTIES.
(a) Buyer's Representations and Warranties. In consideration
of Seller's entering into this Agreement and as an inducement to Seller
to sell the Property, Buyer represents and warrants to Seller as
follows:
(i) This Agreement has been, and all of the documents
to be delivered by Buyer at the Closing will be, duly and
validly authorized, executed and delivered by Buyer and no
other action is requisite to the valid and binding execution,
delivery and performance of this Agreement or the documents to
be delivered at the Closing by Buyer.
(ii) Buyer has been duly organized and is validly
existing as a corporation, in good standing in the State of
California and is, or will be at the Closing, qualified to do
business in the state in which the Property is located.
(iii) Buyer is ready, willing, and able to perform
subject to and pursuant to the terms and conditions of this
Agreement.
(b) Seller's Representations and Warranties. In consideration of
Buyer's entering into this Agreement and as an inducement to Buyer to purchase
the Property, Seller represents and warrants to Buyer as follows:
(i) This Agreement has been, and all of the documents
to be delivered by Seller at the Closing will be, duly and
validly authorized, executed and delivered by Seller and no
other action is requisite to the valid and binding execution,
delivery and performance of this Agreement or the documents to
be delivered at the Closing by Seller.
(ii) There are no actions, suits or proceedings
pending against, or to Seller's knowledge threatened against,
Seller or the Property, and Seller has not received any
written notice that there are any pending or threatened
proceedings in eminent domain or otherwise which would affect
the Property or any portion thereof in any material respect.
(iii) Seller has not received any written notice that
there are any violations of law or governmental regulation
with respect to the Property or its use including any
environmental law or regulation, nor any written notice that
the Property is in violation of any applicable building or
zoning code or ordinance, except for any such matters which
may have been previously cured by Seller.
(iv) Seller is not a "foreign person" within the
meaning of Section 1445 et seq. of the Federal Code.
Page 12 of 23
(v) Seller has been duly organized and is validly
existing as a corporation, in good standing in the State of
Illinois and is qualified to do business in the state in which
the Property is located.
(vi) No person has any title, interest or right to
possession of all or any portion of the Property as lessee,
sublessee, tenant or concessionaire of Seller.
(vii) The financial statements provided to Buyer by
Seller were prepared by or for Seller in the ordinary course
of its business in the same manner as it prepares or obtains
such statements for its own use and reporting to the
Securities and Exchange Commission.
(viii) To Seller's knowledge, the list of contracts,
agreements and insurance policies delivered or to be delivered
to Buyer pursuant to Section 9.2(a)(ix) of this Agreement is
or will be true, correct, and complete as of the date of its
delivery. Neither Seller nor, to Seller's knowledge, any other
party is in material default under any such contract,
agreement or insurance policy. To Seller's knowledge, no
present dispute or fact exists which might with notice,
passage of time or both, give rise to a material default under
any Contract.
(ix) All books, records and other information
prepared by or for Seller and provided to, or made available
to, Buyer were prepared by or for Seller in the ordinary
course of its business and are the same books, records and
other information used and relied upon by Seller in its use,
ownership, maintenance and operation of the Property.
(x) There are no unsatisfied written requests for
material repairs, restorations or improvements from any
insurance carrier or governmental authority. Seller has not
received any written notice from any insurer of any defects or
inadequacies in any part of the Property which would adversely
affect its insurability, or written notice of any claims of
any governmental agency to the effect that the construction,
operation or use of any of the Property is in violation of any
applicable law, ordinance, rule, regulation or order.
(xi) Seller has received no written notice and Seller
has no knowledge of any (1) currently existing violations of
federal, state, county or municipal environmental laws in
respect to the Property, or (2) past, pending or threatened
administrative or judicial litigation or other legal
proceedings including, without limitation, any enforcement
proceeding under any federal, state, county or municipal
statute, ordinance, rule or regulation concerning Hazardous
Materials, relating to the Property, or of any settlement
thereof.
(xii) Except for tanks, retention basins, and/or
vaults relating to storm water control, there are no
underground storage tanks located on or below the Property.
(xiii) Seller does not, use, nor has it used any
Hazardous Materials on the Property except for normal
quantities of consumer products and those Hazardous Materials
which are disclosed pursuant to Exhibit "C" to the Lease and
as may otherwise be allowed by the Lease.
(xiv) Seller has not, and shall not have prior to the
Closing (a) commenced a voluntary case, or had entered against
it a petition for relief, under any federal bankruptcy
Page 13 of 23
act or any similar petition, order or decree under any Federal
or State law or statue relative to bankruptcy, insolvency or
other relief for debtors; (b) caused, suffered or consented to
the appointment of a receiver, trustee, administrator,
conservator, liquidator or similar official in any federal,
state or foreign judicial or non-judicial proceeding, to hold,
administer and/or liquidate all or substantially all of
Seller's assets; or (c) made a general assignment for the
benefit of its creditors.
(xv) To Seller's knowledge, Seller has disclosed to
Buyer all known environmental conditions affecting the
Property.
(xvi) All due diligence materials delivered or made
available for inspection in furtherance of Buyer's inspection
of the Property have been prepared and assembled in the
ordinary course of Seller's business or were assembled at
Seller's request for purposes of the transaction contemplated
by this Agreement. To Seller's knowledge, the due diligence
materials delivered or made available to Buyer are complete
and responsive to Buyer's due diligence information request.
(xvii) ▇▇▇ ▇▇▇▇▇▇▇▇ (Facilities Manager) is the
person associated with Seller who is most knowledgeable about
the Property and the matters represented and warranted herein
concerning the condition of the Property and is the person
responsible for the day to day operation, repair and
maintenance of the Property. J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ is the person
associated with Seller who is most knowledgeable about Seller
and the matters represented and warranted herein concerning
Seller.
Except as expressly herein otherwise provided, the representations and
warranties of Seller set forth in this Agreement shall be true on and as of the
Effective Date and as of the Closing as if those same representations and
warranties were made on and as of such time. Such representations and warranties
shall survive the Closing for one (1) year. As used herein, "Seller's knowledge"
shall be limited to the knowledge of J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇ ▇▇▇▇▇▇▇▇, without
investigation or verification. If, at any time prior to Closing, Seller shall
discover that any representation or warranty contained herein has become
inaccurate in any respect, Seller shall notify Buyer in writing ("CORRECTION
NOTICE"), and Buyer shall have the right if the inaccuracy of such
representation and warranty is not the result of a default by Seller hereunder,
as its sole remedy, by written notice to Seller and the Title Company delivered
not later than the latter of (i) five (5) days after receipt of the Correction
Notice, or (ii) the expiration of the Due Diligence Period, to terminate this
Agreement and receive a refund of the ▇▇▇▇▇▇▇ Money. If the inaccuracy in such
representation and warranty is the result of a default by Seller, the provisions
of Section 11.1 shall apply.
ARTICLE 10
CLOSING COSTS AND PRORATIONS
10.1. CLOSING COSTS. Seller and Buyer shall each pay one-half (1/2) of
the Escrow fees and costs and one-half (1/2) of the recording fees charged on
all documents required to be recorded in connection with the conveyance of the
Property to Buyer; excepting therefrom, any documentary tax, transfer tax or
stamp tax on said conveyance which shall be paid by Seller. Seller and Buyer
each shall pay its own attorneys' and consultants' fees and expenses in
connection with the negotiation and consummation of this transaction; excepting
therefrom, a dispute, in which event Section 12.12 shall control. Any fees and
costs incurred as a result of any financing of the Purchase Price or subsequent
encumbering of the Property by Buyer shall be paid by Buyer (but not any fees of
Seller as "Tenant" under the Lease for compliance with the terms of the Lease),
but Buyer's obligations hereunder are not
Page 14 of 23
subject to any financing contingency. Seller shall pay for the Title Policy, but
Buyer shall pay for extended coverage and any special endorsements to the Title
Policy requested by Buyer (other than those to remove exceptions to title which
are not Permitted Exceptions), as well as for any title insurance policy
requested by Buyer insuring the interest of any lender of Buyer in connection
with the Property.
10.2. PRORATION OF PROPERTY TAXES. There shall be no prorations,
including, but not limited to, real property taxes and assessments, general or
special or fees under the Contracts, all of which Seller shall remain
responsible for under the Lease. At Closing, Seller shall pay the sums due
pursuant to Section 9.2(a)(xii) above.
ARTICLE 11
DEFAULTS AND REMEDIES
11.1. SELLER'S DEFAULT. If Seller fails to consummate this Agreement in
accordance with its terms (other than by reason of (i) Buyer's breach of any of
its representations or warranties contained in this Agreement; (ii) Buyer's
continuing default of any of its covenants hereunder after ten (10) days prior
written notice of such default; (iii) a failure of any condition to Seller's
obligation to sell the Property to be satisfied; (iv) a termination of this
Agreement by Seller or Buyer pursuant to a right to do so expressly provided for
in this Agreement, except by reason of a default by either party; or (v) failure
by Buyer to deliver the items required under Section 9.2), Buyer may make
written demand on Seller to so perform. If Seller fails to comply with Buyer's
written demand within five (5) days after receipt of such written demand for
performance, Buyer shall have the exclusive right to (i) waive such default,
(ii) seek specific performance of Seller's obligations under this Agreement and,
as an alternative remedy, all damages resulting from Seller's breach; or (iii)
terminate this Agreement, obtain a refund of the ▇▇▇▇▇▇▇ Money and be reimbursed
by Seller for its actual, verifiable out-of-pocket expenses plus attorneys' fees
and expenses incurred to obtain same. Seller agrees that the Property is unique
and that damages for failure by Seller to consummate the transaction
contemplated by this Agreement will be impracticable and extremely difficult to
determine. Therefore, in the event that Seller fails or refuses to consummate
the sale of the Property to Buyer and Buyer seeks specific performance, Seller
specifically agrees that the remedies of specific performance are appropriate
remedies for Buyer, and Seller waives and agrees not to assert any claim or
defense that specific performance is not an appropriate remedy for Buyer. UNDER
NO CIRCUMSTANCES MAY BUYER SEEK OR BE ENTITLED TO RECOVER ANY PUNITIVE DAMAGES,
ALL OF WHICH BUYER SPECIFICALLY WAIVES, FROM SELLER FOR ANY BREACH BY SELLER OF
ITS OBLIGATIONS UNDER THIS AGREEMENT OR OF ANY REPRESENTATION, WARRANTY OR
COVENANT OF SELLER HEREUNDER.
11.2. BUYER'S DEFAULT. If, after written demand, Buyer fails to
consummate this Agreement in accordance with its terms (other than by reason of
(i) Seller's breach of any of its representations or warranties contained in
this Agreement; (ii) Seller's continuing default of any of its covenants after
five (5) days prior written notice of such default; (iii) a failure of any
condition to Buyer's obligation to purchase the Property to be satisfied; (iv) a
termination of this Agreement by Seller or Buyer pursuant to a right to do so
expressly provided for in this Agreement other than as a result of a default by
Seller; or (v) failure by Seller to deliver the items required under Section
9.2), Seller may, as Seller's sole and exclusive remedies, Seller waiving any
other remedies available to it at law or in equity, terminate this Agreement and
receive the ▇▇▇▇▇▇▇ Money as liquidated damages (and not as a penalty) for
breach of this Agreement. Due to the difficulty and inconvenience of
ascertaining and measuring actual damages, and the uncertainty thereof, such
▇▇▇▇▇▇▇ Money is agreed upon by and between Seller and Buyer as a reasonable
estimate of just compensation for the harm caused by Buyer's default. In
addition, Buyer shall, at no cost to Seller, and without representation or
warranty, immediately deliver to Seller all information, data, studies and tests
regarding the Property in its possession or control, including, without
limitation, studies,
Page 15 of 23
tests and other results of the studies and tests prepared by or on behalf of
Buyer, and all copies or reproductions of any of the foregoing. THE LIQUIDATED
DAMAGES SET FORTH HEREIN IS THE SOLE AND EXCLUSIVE REMEDY OF SELLER FOR A BREACH
BY BUYER OF THIS AGREEMENT AND SELLER HEREBY WAIVES ANY OTHER REMEDIES AVAILABLE
TO IT AT LAW OR IN EQUITY.
ARTICLE 12
MISCELLANEOUS PROVISIONS
12.1. BROKER'S COMMISSION. Pursuant to separate agreements entered into
between Seller with ▇▇▇ & Associates (▇▇▇▇▇ ▇▇▇▇▇▇▇), ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, as broker, and with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇.▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, as consultant, (respectively, the
"Broker and Consultant"), Seller solely shall be obligated for all commissions
and fees owing to or claimed by the Broker and Consultant in connection with
this transaction. Except for the Broker and Consultant, Buyer represents to
Seller that Buyer has not authorized any broker or finder to act on Buyer's
behalf in connection with this transaction, and that Buyer has not dealt with
any other broker or finder purporting to act on behalf of any other party.
Except for the Broker and Consultant, Buyer shall indemnify, defend and hold
Seller harmless from and against any and all claims, losses, damages, costs or
expenses of any kind or character arising out of or resulting from any
agreement, arrangement or understanding alleged to have been made by Buyer or on
Buyer's behalf with any broker or finder in connection with this Agreement or
the transaction contemplated hereby. Except for the Broker and Consultant,
Seller represents to Buyer that Seller has not authorized any broker or finder
to act on Seller's behalf in connection with the sale and purchase hereunder and
that Seller has not dealt with any other broker or finder purporting to act on
behalf of any other party. Seller shall indemnify, defend and hold Buyer
harmless from and against any and all claims, losses, damages, costs or expenses
of any kind or character arising out of or resulting from any agreement,
arrangement or understanding alleged to have been made by Seller or on Seller's
behalf with the Broker and Consultant or any other broker or finder in
connection with this Agreement, the Lease and/or the transaction contemplated
hereby or in the Lease. Broker and Consultant shall have no third party rights
and under no circumstances, including, but not limited to, a breach by Buyer,
shall Buyer have any obligations to Broker and Consultant.
12.2. ASSIGNMENT. Buyer may assign all of Buyer's rights under this
Agreement to a corporation, partnership, limited liability company or trust
controlled by ▇▇▇▇ Una Management Company, Inc., ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇ and/or
▇▇▇▇▇ ▇▇▇▇, or any corporation, limited liability company, or trust, owned or
controlled by any of them, but otherwise Buyer may not assign Buyer's rights
under this Agreement without Seller's prior written consent, which may be
withheld in Seller's reasonable discretion. In no event shall Buyer be released
from its obligations under this Agreement.
12.3. CONDEMNATION AND CASUALTY.
(a) Condemnation. In the event that all or any portion of the
Property shall be taken in condemnation or by conveyance in lieu
thereof or under the right of eminent domain after the Effective Date
and before the Closing Date, Seller shall immediately notify Buyer in
writing ("SELLER'S CONDEMNATION NOTICE"), such writing to include all
information in Seller's possession or control regarding said
condemnation or conveyance in lieu thereof. In such event, either party
may elect to terminate this Agreement by written notice to the other
and, as Buyer's sole remedy, the ▇▇▇▇▇▇▇ Money shall be refunded to
Buyer. If neither party elects to terminate within thirty (30) days of
the delivery of Seller's Condemnation Notice, Buyer and Seller shall
meet at a mutually agreeable place and time after the Buyer's receipt
of Seller's Condemnation Notice to discuss the condemnation (or
conveyance in lieu thereof), any Base Rent reduction, if any, under
Page 16 of 23
the Lease and any and all other relevant matters. The Closing shall be
extended for so long as is reasonably necessary to determine the amount
of any condemnation award, but in no event longer than one hundred
eighty (180) days. If Buyer, in its sole and absolute discretion, is
unsatisfied with the condemnation award and/or determines that it no
longer desires to purchase the Property due to the effect of the
condemnation or conveyance in lieu thereof, Buyer may, at its option,
terminate this Agreement by written notice thereof to Seller at any
time after its receipt of Seller's Condemnation Notice, but prior to
the Closing (as such may have been extended), in which event the
▇▇▇▇▇▇▇ Money shall be refunded to Buyer and neither party shall have
any further obligations hereunder other than as may be specifically and
expressly stated otherwise in this Agreement. Provided Buyer hasn't
terminated this Agreement pursuant to its rights hereunder, the Closing
shall occur on such day as Buyer and Seller mutually agree, but in no
event later than two hundred ten (210) days after the Closing Date. If
Buyer elects to proceed with the Closing, there shall be no reduction
in the Purchase Price, the Base Rent shall be as so agreed by Buyer and
Seller and Seller shall assign all of its right, title and interest in
and to the condemnation award to Buyer.
(b) Casualty. In the event that all or any "substantial
portion" (as defined below) of the Property shall be damaged or
destroyed by fire or other casualty after the Effective Date and before
the Closing Date, Seller shall immediately notify Buyer in a detailed
writing of such damage. In such event, either party may elect to
terminate this Agreement by written notice to the other and, as Buyer's
sole remedy, the ▇▇▇▇▇▇▇ Money shall be refunded to Buyer. If neither
party elects to terminate within thirty (30) days of the delivery of
notice of the casualty, (i) Seller shall restore, prior to Closing, the
Property to its condition prior to such casualty; (ii) the Closing Date
shall be extended to the date which is thirty (30) days after the
issuance of a certificate of occupancy by the applicable governmental
authorities for Seller's restoration of the Property pursuant to
subsection (i) above, but in no event longer than two hundred ten (210)
days; and (iii) such Closing shall take place with no reduction in the
Purchase Price. If the casualty loss does not involve a substantial
portion of the Property then, (i) Seller shall restore, prior to
Closing, the Property to its condition prior to such casualty; (ii) the
Closing Date shall be extended to the date which is thirty (30) days
after the issuance of a certificate of occupancy by the applicable
governmental authorities for Seller's restoration of the Property
pursuant to subsection (i) above, but in no event longer than two
hundred ten (210) days; and (iii) such Closing shall take place with no
reduction in the Purchase Price. If the casualty loss involves a
substantial portion of the Property and the casualty loss is not
covered by Seller's insurance, Seller may terminate this Agreement by
providing Buyer with written notice of such election prior to the
Closing.
(c) Substantial Portion Defined. For the purposes of this
Section 12.3, a taking of or casualty loss to a "substantial portion"
of the Property shall be deemed to include any casualty loss which is
equal to or greater than (i) Five Hundred Thousand ($500,000.00)
Dollars, or (ii) any casualty loss which would provide Seller as Tenant
with the right to ▇▇▇▇▇ rent under the Lease or to terminate all or a
portion of the Lease.
(d) Risk of Loss. Risk of loss until Closing shall be borne by
Seller.
(e) Emergency Repairs. In the event the Property is damaged
prior to Closing and such damage creates any emergency requiring
immediate repair in order to prevent further damage to the Property,
Seller shall be entitled to immediately commence such repairs, and the
contractor and method of repair to be used shall be reasonably
determined by Buyer and Seller. Both parties agree to cooperate to
accomplish such repair in a timely manner. Casualty proceeds, if any,
paid as a result of damage requiring immediate repair shall be used in
paying the cost of
Page 17 of 23
such repairs. Seller shall be responsible for all costs and expenses
related to such repair, maintenance and restoration.
12.4. NOTICES. All notices and other communications to be given
hereunder by Buyer or Seller shall be in writing and shall be deemed to have
been given upon (i) personal delivery when personally delivered; (ii) upon the
earlier of receipt or the third Business Day following the date of deposit in
the mail (at the addresses specified below, whether or not received by the
person to whose attention notice is directed at such address) after having been
mailed by first class registered or certified mail, return receipt requested,
postage prepaid; (iii) the next Business Day when sent via nationally recognized
overnight courier; or (iv) upon receipt of confirmation of successful
transmission when sent by facsimile transmittal (with a copy sent via First
Class mail) as follows:
Buyer: Seller:
▇▇▇▇ Una Management Company, Inc. SpeedFam - IPEC, Inc.
▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇ Attn: J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: With a copy to:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esquire ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Silicon Valley Law Group ▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
12.5. ENTIRE AGREEMENT. This Agreement and the Exhibits attached hereto
constitute the entire agreement between Seller and Buyer, and there are no other
covenants, agreements, promises, terms, provisions, conditions, undertakings, or
understandings, either oral or written, between them concerning the Property
other than those herein set forth. No subsequent alteration, amendment, change,
deletion or addition to this Agreement shall be binding upon Seller or Buyer
unless in writing and signed by both Seller and Buyer.
12.6. HEADINGS. The headings, captions, numbering system, etc. are
inserted only as a matter of convenience and may under no circumstances by
considered in interpreting the provisions of this Agreement.
12.7. BINDING EFFECT. All of the provisions of this Agreement are
hereby made binding upon the personal representatives, heirs, successors, and
assigns of both parties hereto. Where required for proper interpretation, words
in the singular shall include the plural; the masculine gender shall include the
neuter and the feminine, and vice versa. The terms "heirs, executors,
administrators and assigns" shall include "successors, legal representatives and
assigns."
12.8. TIME OF ESSENCE. Time is of the essence in each and every
provision of this Agreement.
12.9. UNENFORCEABLE OR INAPPLICABLE PROVISIONS. If any provision hereof
is for any reason unenforceable or inapplicable, the other provisions hereof
will remain in full force and effect in the same manner as if such unenforceable
or inapplicable provision had never been contained herein, unless such
unenforceable provision materially affects any material covenants set forth
herein.
Page 18 of 23
12.10. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which will for all purposes be deemed to be an original,
and all of which are identical.
12.11. APPLICABLE LAW. This Agreement shall be construed under and in
accordance with the internal laws of the State of Arizona without regard to
principles of conflicts of laws.
12.12. ATTORNEYS' FEES. In the event any legal action or other
proceeding is brought for the enforcement of this Agreement, or because of an
alleged dispute, breach, default or misrepresentation in connection with any
provision of this Agreement, the successful or prevailing party or parties shall
be entitled to recover and the court is specifically empowered to award
reasonable attorneys' fees, sales and use taxes, court costs, expert witness
fees and expenses, and all expenses even if not taxable as court costs
(including, without limitation, all such fees, taxes, costs and expenses
incident to appellate, bankruptcy and post-judgment proceedings), incurred in
that action or proceeding, in addition to any other relief to which such party
or parties may be entitled. Attorneys' fees shall include, without limitation,
paralegal fees, investigative fees, administrative costs, sales and use taxes
and all other charges billed by the attorney to the prevailing party.
12.13. AUTHORITY. Each person executing this Agreement, by his
execution hereof, represents and warrants that he is fully authorized to do so,
however, the parties will cooperate in providing appropriate proof to the other
party of the authority of the signing person to bind the party.
12.14. FURTHER ASSURANCES. In addition to the acts and deeds recited
herein and contemplated to be performed at the Closing, Seller and Buyer agree
to perform such other acts, and to execute and deliver such other instruments
and documents as either Seller or Buyer, or their respective counsel, may
reasonably require in order to effect the intents and purposes of this
Agreement. Further, provided such do not change the obligations or liability of
the applicable party, Seller and Buyer each agree to deliver to the Title
Company such affidavits and other documents as may reasonably be necessary or
required to enable the Title Company to issue the Title Policy as contemplated
in this Agreement.
12.15. TIME PERIODS. Unless otherwise expressly provided herein, all
periods for delivery or review and the like shall be determined on a "calendar"
day basis. If any date for performance, approval, delivery or Closing falls on a
Saturday, Sunday or legal holiday (state or federal) in the State of Arizona or
the State of California, the time therefor shall be extended to the next
Business Day; excepting therefrom, if the Closing Date falls on a Saturday,
Sunday or legal holiday, the time therefor shall be extended two Business Days.
12.16. NO RECORDING. Seller and Buyer agree that neither this
Agreement, a copy of this Agreement nor any instrument describing or referring
to this Agreement (excepting therefrom a lis pendens, notice of pendency of
action or similar document) shall ever be filed of record in the public records
of the governmental jurisdiction in which the Property is located.
12.17. INTERPRETATION. The parties acknowledge that each party and its
counsel have reviewed and revised this Agreement and that the rule of
construction to the effect that any ambiguities are to be resolved against the
drafting party shall not be employed in the interpretation of this Agreement or
in any amendments or exhibits thereto.
12.18. NO THIRD PARTY BENEFICIARY. The provisions of this Agreement are
for the exclusive benefit of the Seller and Buyer hereto and no other party
shall have any right or claim against the Seller and Buyer, or either of them,
by reason of those provisions or be entitled to enforce any of those provisions
against the Seller and Buyer hereto, or either of them.
Page 19 of 23
12.19. PROVISIONS TO SURVIVE CLOSING. Any and all of the provisions of
this Agreement which require or provide for the performance or liability of
either party hereto following the Closing, including without limitation the
provisions of Sections 9.5(a) and (b), shall survive the Closing and the
delivery of the Deed to Buyer.
12.20. WAIVER OF JURY TRIAL. EACH OF THE UNDERSIGNED HEREBY KNOWINGLY,
VOLUNTARILY, AND INTENTIONALLY WAIVES THE RIGHT WHICH ANY OF THE UNDERSIGNED MAY
HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY LITIGATION BETWEEN ANY OF THE
PARTIES HERETO, INCLUDING, BUT NOT LIMITED TO, WITH RESPECT TO ANY AND ALL CAUSE
OR CAUSES OF ACTION, DEFENSES, COUNTERCLAIMS, CROSSCLAIMS, THIRD PARTY CLAIMS,
AND INTERVENOR'S CLAIMS, WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER
SOUNDING IN CONTRACT, TORT, EQUITY OR OTHERWISE, REGARDLESS OF THE CAUSE OR
CAUSES OF ACTION, DEFENSES OR COUNTERCLAIMS ALLEGED OR THE RELIEF SOUGHT BY ANY
PARTY, AND REGARDLESS OF WHETHER SUCH CAUSES OF ACTION, DEFENSES OR
COUNTERCLAIMS ALLEGED OR THE RELIEF SOUGHT BY ANY PARTY, AND REGARDLESS OF
WHETHER SUCH CAUSES OF ACTION, DEFENSES OR COUNTERCLAIMS ARE BASED ON, OR ARISE
OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, OUT OF
ANY ALLEGED CONDUCT OR COURSE OF CONDUCT, DEALING OR COURSE OF DEALING,
STATEMENTS (WHETHER VERBAL OR WRITTEN), OR OTHERWISE. ANY PARTY HERETO MAY FILE
A COPY OF THIS AGREEMENT WITH ANY COURT AS CONCLUSIVE EVIDENCE OF THE CONSENT OF
THE PARTIES HERETO TO THE WAIVER OF ANY RIGHT THEY MAY HAVE TO TRIAL BY JURY.
12.21. CONFIDENTIAL AGREEMENT. The terms and conditions of this
Agreement shall be treated as confidential by both parties, and neither any of
such terms or conditions nor any copy of this Agreement shall be divulged or
provided to any third party other than the parties' respective attorneys,
consultants, brokers, and Buyer's lenders and financial partners if any, by
either party hereto or any other person or entity assisting Buyer in evaluating
or consulting on this transaction, any loan in connection herewith or otherwise,
without the prior consent of the other party hereto. Buyer shall use its
commercially reasonable efforts to cause Buyer's lender to retain the
confidentiality required pursuant to this Section. Nothing herein shall require
a party to maintain said confidentiality if required to disclose such
information pursuant to applicable law or to enforce the terms of this Agreement
or the Lease.
12.22. RELATIONSHIP OF THE PARTIES. The transaction contemplated by
this Agreement and the Lease is a true sale with a leaseback and Buyer and
Seller are neither joint venturers, general partners nor lender and borrower.
12.23. NO TRANSFER OF CERTAIN RIGHTS. Notwithstanding any term of this
Agreement, the ▇▇▇▇ of Sale and Assignment of Contracts attached hereto as
Exhibit "D", or the Lease, Seller does not, shall not nor be deemed to sell,
convey, transfer, set over, or assign any rights, interests, patents,
copyrights, or other intellectual property related to Seller's design of the
Property, including, without limitation, the Clean Room Technology and design of
the clean room. As used in this Agreement, the term "Clean Room Technology"
shall include ideas, concepts, architectural drawings, information,
specifications, drawings, sketches, data, materials, layouts, processes,
methods, apparatus diagrams, building materials, inventions (whether or not
patentable), copyrights, trade secrets, know how, show how, works of authorship,
software, source code, machine code, products, methods of doing business,
proprietary information, confidential information, test results, reports,
descriptions, construction, or operation of any of the subject matter contained
in either U.S. patent application serial no. 09/391,113 (filed September 7, 1999
and entitled "Clean Room & Method"), U.S. patent application serial no.
09/975,600 (filed October 11, 2001 and entitled "Clean Room & Method"), U.S.
patent application serial no. 09/993,534 (filed
Page 20 of 23
November 14, 2001 and entitled "Clean Room & Method"), or any related
applications or patents issued thereon. Notwithstanding the foregoing, Buyer
shall be permitted the use and enjoyment of the clean room and shall be
permitted to lease the clean room to subsequent tenants of the Property;
provided, however, that nothing in this sentence shall grant any license or
other rights relating to the Clean Room Technology or in any manner affect or
limit Seller's ability to remove Tenant's Equipment (as defined in the Lease) as
provided for in the Lease.
12.24. APPROVALS AND CONSENTS. Unless a party's sole discretion is
otherwise expressly provided for in a particular provision of this Agreement,
all approvals and consents required of either party hereunder shall not be
unreasonably withheld or delayed, regardless of whether or not the provision in
question expressly so states.
12.25. TITLE COMPANY. The parties acknowledge and agree that in the
event of any dispute concerning the ▇▇▇▇▇▇▇ Money, the Title Company shall have
the right to interplead with the Superior Court in and for the County all or any
portion of the ▇▇▇▇▇▇▇ Money received by it pursuant to this Agreement. Buyer
and Seller mutually agree to indemnify, defend, and save the Title Company
harmless from and against any claims, damages, losses, costs or expenses
incurred by it (including reasonable attorneys' fees, paralegal and
paraprofessional charges and costs) arising from the performance of its duties
hereunder, except for such claims, damages, losses, costs or expenses as are
incurred by The Title Company through its own acts of negligence or willful and
intentional misconduct or its contractual obligations under the Title Policy.
This indemnification shall survive the Closing and any termination of this
Agreement. The Title Company shall have no liability with regard to any duty
under this Agreement nor be responsible for loss of any monies held by it except
in the event of negligence or willful and
[SIGNATURES APPEAR ON THE NEXT PAGE]
Page 21 of 23
intentional misconduct on the part of The Title Company or its contractual
obligations under the Title Policy.
DATED as of the Effective Date specified in Article 1 above.
BUYER: SELLER:
▇▇▇▇ Una Management Company, Inc. SpeedFam - IPEC, Inc.,
a California corporation an Illinois corporation
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇ By: /s/ J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------- --------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇ Name: J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------- --------------------------------
Title: President Title: Chief Financial Officer
--------------------- --------------------------------
Page 22 of 23
JOINDER OF TITLE COMPANY
The Title Company executes this Agreement for the sole purpose of
acknowledging receipt of the ▇▇▇▇▇▇▇ Money, subject to clearance, and to agree
to serve as escrow agent with respect to the ▇▇▇▇▇▇▇ Money and Closing in
accordance with this Agreement.
First American Title Insurance Company
By: ___________________________________
Name: __________________________________
Title: _________________________________
Date: __________________________________
Page 23 of 23
EXHIBIT "A"
LEGAL DESCRIPTION
[SEE ATTACHED]
Exhibit A
Page 1 of 1
EXHIBIT "B"
SPECIAL WARRANTY DEED
SpeedFam - IPEC, Inc., an Illinois corporation ("Grantor"), for and in
consideration of the sum of Ten Dollars ($10.00) in hand paid to Grantor by
___________________________, a ___________________ corporation ("Grantee"), and
other good and valuable consideration, the receipt and sufficiency of which
consideration are hereby acknowledged, hereby assigns, conveys, grants,
transfers and delivers to Grantee all that certain land situated in Maricopa
County, Arizona, and described on Exhibit "A" attached hereto and made a part
hereof for all purposes, together with all improvements attached thereto and any
and all appurtenances of Grantor pertaining thereto (collectively as the
"Property").
SUBJECT TO, the matters set forth on Exhibit "B" attached hereto and
made a part hereof.
GRANTOR hereby binds itself and its successors and assigns to warrant
and defend for the benefit of Grantee and its successors and assigns the title
against all acts of Grantor, and none other, subject to the matters set forth
above.
Exhibit B
Page 1 of 2
EXECUTED as of the ______ day of _____________, 2002
GRANTOR:
SPEEDFAM - IPEC, INC., an Illinois corporation
By: _____________________________________
Name: _____________________________________
Title: _____________________________________
STATE OF ARIZONA )
) ss.
County of Maricopa )
This instrument was acknowledged before me on this the _____ day of
_______________, 2002, by _________________________________________, the
___________ of SpeedFam - IPEC, Inc., an Illinois corporation, on behalf of the
corporation.
____________________________________
Notary Public
My commission expires:
______________________
Exhibit B
Page 2 of 2
EXHIBIT "A" TO SPECIAL WARRANTY DEED
PROPERTY
Exhibit A to Special Warranty Deed
Page 1 of 1
EXHIBIT "B" TO SPECIAL WARRANTY DEED
TITLE EXCEPTIONS
[SEE ATTACHED]
Exhibit B to Special Warranty Deed
Page 1 of 1
EXHIBIT "C"
LEASE
[SEE ATTACHED]
Exhibit C
Page 1 of 1
EXHIBIT "D"
▇▇▇▇ OF SALE
▇▇▇▇ OF SALE AND ASSIGNMENT OF CONTRACTS
This instrument is executed and delivered as of the ____ day of
_________, pursuant to that certain Purchase and Sale Agreement ("Agreement"),
dated ____________, by and between SpeedFam-IPEC, Inc., an Illinois corporation
("Seller"), and ▇▇▇▇ Una Management Company, Inc., a California corporation
("Buyer"), covering the real property described in Exhibit "A" attached hereto
("Real Property").
1. Sale of Personalty. For good and valuable consideration, Seller
hereby sells, transfers, sets over and conveys to Buyer the following (the
"Personal Property"):
(a) Tangible Personalty. All of Seller's right, title and interest in
and to all fixtures, furniture, equipment, inventory and other tangible personal
property, if any, owned by Seller presently located on such property, but
excluding Tenant's Equipment (as defined in the Lease) and those items set forth
on the attached Exhibit "B".
(b) Intangible Personalty. All the right, title and interest of Seller
in and to the following, to the extent assignable: (i) licenses, and permits
relating to the ownership and operation of the Property (as defined in the
Agreement), (ii) if still in effect, guaranties and warranties received by
Seller from any contractor, manufacturer or other person in connection with the
construction or operation of the Property; and (iii) any and all claims as they
relate to the Property.
2. Assignment of Contracts. For good and valuable consideration, Seller
hereby assigns, transfers, sets over and conveys to Buyer, and Buyer hereby
accepts such assignment of, the following (the "Assigned Property"):
(a) Files and Related Information. The files and correspondence
relating to the Property, plans and specifications with respect to the Property,
warranties and guaranties relating to any of the other property to be conveyed
pursuant to the Agreement, licenses and permits relating to said real property,
and the other property to be conveyed pursuant to the Agreement; and
(b) Service Contracts. All of the landlord's right, title and interest
in and to the service contracts described in Exhibit "C" attached hereto (the
"Service Contracts").
3. Assumption. Buyer hereby assumes the obligations of Seller under
Service Contracts arising from and after the Closing and shall defend, indemnify
and hold harmless Seller from and against any liability, damages, causes of
action, expenses, and attorneys' fees incurred by Seller by reason of the
failure of Buyer to fulfill, perform, discharge, and observe its obligations
with respect to the Service Contracts arising on and after the Closing. Seller
shall defend, indemnify and hold harmless Buyer from and against any liability,
damages, causes of action, expenses, and attorneys' fees incurred by Buyer by
reason of the failure of Seller to fulfill, perform, discharge, and observe its
obligations with respect to the Service Contracts arising before the Closing.
4. Agreement Applies. The covenants, agreements, representations,
warranties, indemnities and limitations provided in the Agreement with respect
to the property conveyed hereunder (including, without limitation, the
limitations of liability provided in the Agreement), are hereby incorporated
herein
Exhibit D
Page 1 of 2
by this reference as if herein set out in full and shall inure to the benefit of
and shall be binding upon Buyer and Seller and their respective successors and
assigns.
5. Representations Regarding Encumbrances. Seller represents and
warrants that the Personal Property and the Assigned Property is owned and
transferred free and clear from any and all encumbrances.
6. No Transfer of Intellectual Property Rights. Notwithstanding any
term of this ▇▇▇▇ of Sale and Assignment of Contracts, the Agreement or the
Lease, Seller does not, shall not nor be deemed to sell, convey, transfer, set
over, or assign any rights, interests, patents, copyrights, or other
intellectual property related to Seller's design of the Property, including,
without limitation, the Clean Room Technology and design of the clean room. As
used in this Agreement, the term "Clean Room Technology" shall include ideas,
concepts, architectural drawings, information, specifications, drawings,
sketches, data, materials, layouts, processes, methods, apparatus diagrams,
building materials, inventions (whether or not patentable), copyrights, trade
secrets, know how, show how, works of authorship, software, source code, machine
code, products, methods of doing business, proprietary information, confidential
information, test results, reports, descriptions, construction, or operation of
any of the subject matter contained in either U.S. patent application serial no.
09/391,113 (filed September 7, 1999 and entitled "Clean Room & Method"), U.S.
patent application serial no. 09/975,600 (filed October 11, 2001 and entitled
"Clean Room & Method"), U.S. patent application serial no. 09/993,534 (filed
November 14, 2001 and entitled "Clean Room & Method"), or any related
applications or patents issued thereon. Notwithstanding the foregoing, Buyer
shall be permitted the use and enjoyment of the clean room and shall be
permitted to lease the clean room to subsequent tenants of the Property;
provided, however, that nothing in this sentence shall grant any license or
other rights relating to the Clean Room Technology or in any manner affect or
limit Seller's ability to remove Tenant's Equipment (as defined in the Lease) as
provided for in the Lease.
IN WITNESS WHEREOF, the undersigned have caused this ▇▇▇▇ of Sale and
Assignment of Contracts to be executed as of the date written above.
Seller: Buyer:
SpeedFam-IPEC, Inc. ▇▇▇▇ Una Management Company, Inc.
an Illinois corporation a California corporation
By: ____________________ By: _____________________________
Name:___________________ Name: ___________________________
Its: ___________________ Its: ____________________________
Exhibit D
Page 1 of 2
EXHIBIT A TO ▇▇▇▇ OF SALE
PROPERTY DESCRIPTION
Exhibit A to ▇▇▇▇ of Sale
Page 1 of 1
EXHIBIT B TO ▇▇▇▇ OF SALE
EXCLUDED PROPERTY
BUILDING 305:
CDA Air Compressor Equipment
Air Scrubbers
DI Water System/Equipment
Waste Treatment Equipment
Cleanroom HVAC Equipment
Chemical Distribution/Storage Equipment
Cleanroom Vacuum Equipment
Cleanroom System (walls, partitions, air handlers, hepafilters,
chiller, other)
50 Hertz Generators
7.5 Ton Overhead Cranes
Trolley Mounted Cranes
Surveillance Cameras and Security Equipment
Cafeteria Equipment
BUILDING 300:
CDA Air Compressor Equipment
Cleanroom Vacuum Equipment
Air Scrubbers
Cleanroom Humidity Control Equipment (Kathobar)
Roof Boilers for Kathobar Units
Electrical Backup Power Generator
330KV Electrical Transfer Switch
50 Hertz Generators
DI Water System/Equipment
Waste Treatment Equipment
Chemical Distribution/Storage Equipment
Cleanroom System (walls, partitions, air handlers, hepafilters,
chiller, other)
Surveillance Cameras and Security Equipment
Acid Fume Safety Hood
Cleanroom Safety Showers
Exhibit B to ▇▇▇▇ of Sale
Page 1 of 1
EXHIBIT C TO ▇▇▇▇ OF SALE
SERVICE CONTRACTS
SERVICE PROVIDER SERVICE CONTRACT DATE
---------------- ------- -------------
Airnetics Engineering Co. Preventive Maintenance Program - Atlas 5/25/01
Copco Oil Free Compressors;
Oil-Injected Rotary Air Compressors
Air Products and Chemicals, Inc. Amendment II to the Liquid Nitrogen 11/10/98
Supply Agreement between SpeedFam
Corporation and Air Products and
Chemicals, Inc. dated 12/17/96
Corporate Cleaning, Inc. Janitorial Bid 300 Building 2/26/02
▇▇▇▇▇▇ Service HVAC Assured Maintenance Agreement 4/1/00
▇▇▇▇ Elevator Company Contract Addendum SO 5525 to add unit 6/1/01
to existing contract
Exhibit C to ▇▇▇▇ of Sale
Page 1 of 1
