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EXHIBIT 10(000)
NORTH TEXAS COMMERCIAL ASSOCIATION OF REALTORS(R)
COMMERCIAL CONTRACT OF SALE
IN CONSIDERATION of the mutual terms, provisions, covenants and agreements
contained in this Contract (the "Contract"), the parties hereto agree as follows
[Check all boxes applicable to this Contract, Boxes not checked do not apply to
this Contract]:
1. PARTIES. Cerprobe Corporation (the "Seller") shall sell and convey to
Assurance Capital, Inc. (the "Purchaser") and Purchaser shall buy and pay for
the Property (defined below).
2. PROPERTY. Being an approx. 34,336 SF masonry constructed single story
building on approx. 3.76 acres with an address of 00000 Xxxxxx Xxxxx xx xxx Xxxx
xx Xxxxxx, Xxxxxx Xxxxxx, Xxxxx, further described as: Xxxxxxx-Gateway, Blk.
B/8053, Lot 2B or as described in Exhibit A. SURVEY AND/OR LEGAL DESCRIPTION,
and/or as shown on Exhibit B, FLOOR PLAN AND/OR SITE PLAN, together with all and
singular, all improvements thereon and all rights and appurtenances pertaining
thereto, including any right, title and interest of Seller in and to adjacent
streets, alleys and rights-of-way. Such real estate, improvements, rights and
appurtenances are collectively referred to as the "Property."
[X} The Property also includes fixtures and articles of personal property
listed and described in Addendum A, PERSONAL PROPERTY.
3. PURCHASE PRICE. The purchase price for the Property is $2,800,000.00 (the
"Purchase Price"), payable as follows:
[ ] A. The Purchase Price shall be adjusted up or down based upon the
[strike one] gross land area/Net Land Area (as defined below) of the Property
determined by the Survey. The applicable land area shall be multiplied by $____
per square foot and the product thereof shall become the Purchase Price at
Closing.
[X] B. Cash payable at Closing: $2,800,000.00.
[ ] C. The balance of the Purchase Price shall be payable according to the
provisions in Addendum B, FINANCING.
4. XXXXXXX MONEY.
X. XXXXXXX MONEY DEPOSIT. Within two business days after the Effective Date of
this Contract, Purchaser shall deposit xxxxxxx money in the from of a certified
or cashier's check in the amount of $25,000.00 (the"Xxxxxxx Money") payable to
Ticor Title Company (the "Title Company"), in its capacity as escrow agent, to
be held in escrow pursuant to the terms of this Contract. Seller's acceptance of
this Contract is expressly conditioned upon Purchaser's timely deposit of the
Xxxxxxx Money with the Title Company. If Purchaser fails to timely deposit the
Xxxxxxx Money, Seller may, at Seller's option, terminate this Contract by
delivering a written termination notice to Purchaser. Notwithstanding anything
herein to the contrary, a portion of the Xxxxxxx Money in the amount of $100.00
shall be non-refundable and shall be distributed to Seller at Closing or other
termination of this Contract as full payment and independent consideration for
Seller's performance under this Contract. If this Contract is properly
terminated by Purchaser pursuant to a right of termination granted to Purchaser
by any provision of this Contract, or any attached Addenda, the Xxxxxxx Money,
less the non-refundable portion, shall be promptly refunded to Purchaser, and
the parties shall have no further rights or obligations under this Contract
(except for those which may expressly survive the termination). The Xxxxxxx
Money [X] shall [ ] shall not be placed in an interest-bearing account by the
Title Company, and any interest earned thereon shall become a part of the
Xxxxxxx Money. At Closing the Xxxxxxx Money shall be applied to the Purchase
Price.
B. ESCROW. The Xxxxxxx Money is deposited with the Title Company with the
understanding that the Title Company (1) is not responsible for the performance
or non-performance of any party to this Contract, and (2) is not liable for
interest on the funds held unless required in Paragraph 4A. The Title Company
shall deposit the Xxxxxxx Money in one or more fully insured accounts in one or
more Federally insured banking or savings institutions. If both parties make
demand for the payment of the Xxxxxxx Money, the Title Company has the right to
require from all parties and Broker(s) a written release of liability of the
Title Company which authorizes the disbursement of the Xxxxxxx Money. If only
one party makes demand for payment of the refundable portion of the Xxxxxxx
Money, the Title Company shall give notice to the other party of the demand. The
Title Company is authorized and directed to honor the demand unless the other
party delivers a written objection to the Title Company within ten (10) days
after the Title Company's notice to that party.
5. SURVEY AND TITLE DOCUMENTS.
A. SURVEY. As soon as reasonably possible, and in any event within twenty (20)
days after the Effective Date, Seller shall, at Seller's expense, deliver or
cause to be delivered to Purchaser a copy of a current or updated on-the-ground
perimeter survey (the "Survey") of the Property prepaid by a Registered
Professional Land Surveyor reasonably acceptable to the Purchaser. The Survey
shall show the location and size of all of the following on or adjacent to the
Property, if any: buildings, improvements, streets, pavements, easements,
rights-of-way, protrusions, encroachments, fences, building lines, 100-year
flood plain, apparent public utilities, and recording information of easements.
The Survey shall be in a form of a date acceptable to Purchaser and to the Title
Company, and in acceptable form in order to allow the Title Company to delete
the survey exception (except as to "shortages in area") from the Title Policy.
The area within the 100-year flood plain shall be as defined by the Federal
Emergency Management Agency or other applicable governmental authority. At
Closing, the metes and bounds description of the Property reflected in the
Survey shall be used in the warranty deed and any other documents requiring a
legal description of the Property.
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B. Title Commitment. As soon as reasonably possible, and in any event
within twenty (20) days after the Effective Date, Seller shall, at Seller's
expense, deliver or cause to be delivered to Purchaser (1) a title commitment
(the "Title Commitment") covering the Property binding the Title Company to
issue a Texas owner Policy of Title Insurance (the "Title Policy") on the
standard form prescribed by the Texas State Board of Insurance at the Closing,
in the full amount of the Purchase Price, insuring Purchaser's fee simple title
to the Property to be good and indefeasible, subject only to the Permitted
Exceptions as defined below, and (2) the following documents (collectively, the
"Title Documents")(a) true and legible copies to the extent available of all
recorded instruments affecting the Property and recited as exceptions in the
Title Commitment, (b) a current tax certificate, and (c) written notices as
required in Paragraph 5.C.
C. Special Assessment Districts. If the Property is situated within a
utility district or flood control district subject to the provisions of Section
50.301, Texas Water Code, then Seller shall give to Purchaser as part of the
Title Documents the required written notice. Xxxxxxxxx agrees to acknowledge
receipt of the notice in writing. The notice must set forth the current tax
rate, the current bonded indebtedness and the authorized indebtedness of the
district, and must comply with all other applicable requirements of the Texas
Water Code. If the Property is subject to mandatory membership in a property
owners' association, Seller shall notify Purchaser of the current annual budget
of the property owners' association and the current authorized fees, dues and/or
assessments relating to the Property.
D. Abstract. At the time of the execution of this Contract, Purchaser
acknowledges that the Broker(s)(defined below) have advised and hereby advise
Purchaser, by this writing, that Purchaser should have the abstract covering the
Property examined by an attorney of Purchaser's own selection or that Purchaser
should be furnished with or obtain a policy of title insurance.
6. REVIEW OF TITLE DOCUMENTS.
A. Review Period. Purchaser shall have forty five ( 45 ) days
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(the "Review Period") after Purchaser's receipt of the last of (i) the survey,
(ii) the Title Commitment, (iii) the Title Documents, and (iv) all other
documents required to be furnished by Seller as identified on Addendum A,
PERSONAL PROPERTY, and/or on Addendum C, INSPECTION, to review them. If
Purchaser has objections to the Survey, Title Commitment or Title Documents,
Purchaser may deliver the objections to Seller in writing within the Review
Period. Any item to which Purchaser does not object shall be deemed a "Permitted
Exception." Items that the Title Company identifies as to be released at closing
will be deemed objections by Purchaser. Purchaser's failure to object within the
time provided shall be a waiver of the right to object. If there are obligations
by Purchaser, or a third party lender, Seller shall make a good faith attempt to
satisfy the objections within ten (10) days after receipt of Purchaser's
objections (the "Cure Period"), but Seller is not required to incur any cost to
do so. Zoning ordinances and the lien for current taxes are deemed to be
Permitted Exceptions.
B. Cure Period. If Seller cannot or does not satisfy the objections within
the Cure Period, Seller shall deliver a written notice to Purchaser, prior to
expiration of the Cure Period, stating whether Seller is committed to cure the
objections at or before Closing. If Seller does not timely deliver the notice,
or does not commit in the notice to fully cure all of the objections at or
before Closing, then Purchaser may terminate this Contract by delivering a
written notice to Seller on or before the earlier to occur of: (i) the date
which is seven (7) days after the expiration of the Cure Period; or (ii) the
scheduled Closing Date. If Purchaser properly and timely terminates this
Contract, the refundable portion of the Xxxxxxx Money shall be immediately
returned to Purchaser and neither party shall have any rights or obligations
under this Contract (except for those which may expressly survive the
termination of this Contract). If Purchaser does not properly and timely
terminate this Contract, then Purchaser shall be deemed to have waived any
uncured objections and must accept such title as Seller is able to convey at
Closing. Such waived objections shall become Permitted Exception.
7. SELLER'S WARRANTIES AND REPRESENTATIONS.
A. Statements. Seller represents and warrants to Purchaser to the best of
Seller's knowledge the following:
(1) Title. At the Closing, Seller will have the right to, and will, convey
to Purchaser good and indefeasible fee simple title to the Property free and
clear of any and all liens, assessments, unrecorded easements, security
interests and other encumbrances except the Permitted Exceptions. Delivery of
the Title Policy pursuant to Paragraph 12 below will be deemed to satisfy the
obligation of Seller as to the sufficiency of title required under this
Contract. However, delivery of the Title Policy will not release Seller from the
warranties of title set forth in the warranty deed.
(2) Leases. There are no parties in possession of any portion of the
Property as leases, tenants at sufferance or trespassers except tenants under
written leases delivered to Purchaser pursuant to this Contract.
(3) Negative Covenants. Seller shall not further encumber the Property or
allow an encumbrance upon the title to the Property, or modify the terms or
conditions of any existing leases, contracts or encumbrances, if any, without
the written consent of Purchaser.
(4) Liens and Debts. There are no mechanic's liens, Uniform Commercial Code
liens or unrecorded liens against the Property, and Seller shall not allow any
such liens to attach to the Property prior to Closing, which will not be
satisfied out of the Closing proceeds. All obligations of Seller arising from
the ownership and operation of the Property and any business operated on the
Property, including, but not limited to, taxes, leasing commissions, salaries,
contracts, and similar agreements, have been paid or will be paid prior to
Closing. Except for obligations for which provisions are made in this Contract
for prorating at Closing and any indebtedness taken subject to or assumed,
there will be no obligations of Seller with respect to the Property outstanding
as of Closing.
(5) Litigation. There is no pending or threatened litigation, condemnation,
or assessment affecting the Property. Seller shall promptly advise Purchaser of
any litigation, condemnation or assessment affecting the Property which is
instituted after the Effective Date.
(6) Material Defects. Seller has disclosed to Purchaser any and all known
conditions of a material nature with respect to the Property which may affect
the health or safety of any tenant or occupant of the Property. Except as
disclosed in writing by Seller to Purchaser or discovered by Purchaser pursuant
to Purchaser's inspection of the property; the Property has no known latent
structural defects or construction defects of a material nature, and none of
the improvements have been constructed with materials known to be a potential
health hazard to occupants of the Property. Purchaser acknowledges that the
Broker(s) have not made any warranties or representations with respect to the
condition of the Property or otherwise, and Purchaser is relying solely upon
Purchaser's own investigations and the representations of Seller, if any.
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(7) HAZARDOUS MATERIALS. Except as otherwise disclosed in writing by
Seller to Purchaser or discovered by Purchaser pursuant to Purchaser's
inspection of the Property. Seller warrants and represents that the Property
(including the improvements located thereon) does not contain any Hazardous
Materials (defined below). Purchaser acknowledges that current and future
federal, state, and local laws and regulations may require any Hazardous
Materials to be removed at the expense of those persons who may have had or
continue to have any interest in the Property. The expense of such removal may
be substantial. Purchaser further acknowledges that the Broker(s) have no
expertise with respect to Hazardous Materials, although the Broker(s) will
disclose any actual knowledge the Broker(s) may have regarding the presence of
Hazardous Materials on the Property. Purchaser agrees to look solely to experts
and professionals selected or approved by Purchaser to advise Purchaser with
respect to the condition of the Property and will not hold the Broker(s)
responsible for any Hazardous Materials condition relating to the Property.
Seller and Xxxxxxxxx agree to indemnify, defend and hold the Broker(s) harmless
from and against any liability, claim, debt, damage, cost, or expense, including
but not limited to reasonable attorneys' fees and court costs, related to or
arising out of Hazardous Materials affecting the Property. For purposes of this
Contract, the term "Hazardous Materials" means any pollutants, toxic substances,
oils, hazardous wastes, hazardous materials or hazardous substances as defined
in or pursuant to the Resource Conservation and Recovery Act, as amended, the
Comprehensive Environmental Response, Compensation and Liability Act, as
amended, the Federal Clean Water Act, as amended, or any other federal, state or
local environmental law, regulation, ordinance, rule, or bylaw, whether existing
as of the Effective Date, or subsequently enacted.
(8) OPERATION OF THE PROPERTY. After the Effective Date until the
Closing Date, Seller shall (a) operate in all material respects the Property in
the same manner as the Property has been operated, and (b) maintain in all
material respects the Property in the same condition and in the same manner as
existed on the Effective Date, except for ordinary wear and tear and any
casualty loss.
B. REMEDIES. If Xxxxxxxxx discovers prior to Closing that any of Seller's
warranties or representations has been misrepresented or is inaccurate,
Purchaser may notify Seller promptly in writing, and Seller may attempt to
correct or remedy the misrepresentation or inaccuracy. If the misrepresentation
or inaccuracy is not remedied prior to Closing, upon written notice to Seller,
Purchaser may: (i) proceed to Closing and waive any claim for breach of warranty
or misrepresentation; or (ii) delay Closing, if Seller agrees to the delay,
until ten (10) days after the misrepresentation or inaccuracy is remedied; or
(iii) terminate this Contract and exercise Purchaser's remedies for default by
Seller under this Contract.
9. INSPECTION. [Check one]
[X] A. INSPECTION DESIRED. Purchaser desires to inspect the Property and
Seller grants to Purchaser the right to inspect the Property as described in
Addendum C. INSPECTION.
[ ] B. INSPECTION NOT NECESSARY. Purchaser acknowledges that Purchaser has
inspected the Property, including all buildings and improvements, and is
thoroughly familiar with its condition. Purchaser hereby accepts the Property in
its present condition, with such changes as may hereafter be caused by normal
wear and tear prior to Closing, but without waiving Purchaser's rights by virtue
of Seller's representations and warranties expressed in this Contract.
10. CASUALTY LOSS. All risk of loss to the Property shall remain upon Seller
prior to the Closing. If, prior to the Closing, the Property is condemned or
damaged or destroyed by fire or other casualty, to a Material Extent (defined
below), Purchaser may either terminate this Contract by delivering a written
termination notice to Seller within ten days after Seller gives Purchaser
written notice of the damage, or elect to close. If, prior to the Closing,
the Property is condemned or damaged by fire or other casualty to less than a
Material Extent, the parties shall proceed to Closing as provided herein. If the
transaction is to proceed to Closing, despite any damage or destruction, there
shall be no reduction in the Purchase Price and Seller shall, at Seller's
option: (i) fully repair the damage prior to Closing, at Seller's expense; or
(ii) reimburse Purchaser for the entire cost of repairing the Property by
allowing Purchaser to deduct the cost from the cash payable to Seller at the
Closing; or (iii) assign to Purchaser all of Seller's right and interest in any
condemnation or insurance proceeds resulting from the damage or destruction,
plus an amount equal to an insurance deductible and such condemnation or
insurance proceeds shall be applied by Purchaser pursuant to the provisions of
the Lease Agreement. The term "Material Extent" means damage or destruction if
the cost of repairing and fully restoring the Property to its previous
condition exceeds five percent (5%) of the Purchase Price. If the extent of
damage or the amount of condemnation or insurance proceeds to be made available
is not able to be determined prior to the Closing Date, or the repairs are not
able to be completed prior to the Closing Date, either party may postpone the
Closing Date by delivering a written notice to the other party specifying an
extended Closing Date which is not more than thirty (30) days after the
previously scheduled Closing Date.
11. ASSIGNMENT. [Check only one]
[ ] A. ASSIGNMENT PROHIBITED. Purchaser may not assign this Contract without
Seller's prior written consent.
[ ] B. ASSIGNMENT PERMITTED. Purchaser may assign this Contract provided the
assignee assumes in writing all obligations and liabilities of Purchaser under
this Contract, in which event Purchaser shall be relieved of any further
liability hereunder.
[X] C. LIMITED ASSIGNMENT. Purchaser may assign this Contract only to a
related party, defined as (i) an entity in which Purchaser, CEO, or shareholder
are an owner, partner or corporate officer, or (ii) a member(s) of the immediate
family of the Purchaser. Purchaser shall remain liable under this Contract after
any assignment to a related party.
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12. CLOSING
A. CLOSING DATE. The closing of the transaction described in this Contract
(the "Closing") shall be held at 10:00 a.m. on the later of [check one]: ; or
/X/ thirty (30) days after the expiration of the Review Period or Inspection
Period (whichever is later); or / / on ___________________________ (the
"Closing Date") at the offices of the Title Company at its address stated below.
However, if any objections which were properly and timely made by Purchaser and
not waived pursuant to this Contract have not been cured on the scheduled
Closing Date, then either party may postpone the date of the Closing by
delivering a written notice to the other party specifying an extended Closing
Date which is not more than ten (10) days after the previously scheduled Closing
Date.
B. SELLER'S CLOSING DOCUMENTS. At the Closing, Seller shall deliver to
Purchaser at Seller's expense:
(1) A duly executed [check one] / / GENERAL XXXXXXXX DEED /X/ SPECIAL
WARRANTY DEED (with Vendor's Lien retained if not a cash purchase) conveying the
Property in fee simple according to the legal description prepared by the
surveyor as shown on the Survey, subject only to the Permitted Exceptions;
(2) An updated Title Commitment committing the underwriter for the
Title Company to issue promptly after closing the Title Policy pursuant to the
Title Commitment, subject only to the Permitted Exceptions, in the full amount
of the Purchase Price, dated as of the date of Closing, and (at an additional
premium cost) [check only one if applicable] / / with the survey exception
deleted at SELLER'S expense but not as to "shortages in area") or /X/ with the
survey exception deleted at PURCHASER'S expense (but not as to "shortages in
area");
(3) A Bill of Sale conveying the personal property identified in
ADDENDUM A, PERSONAL PROPERTY, free and clear of liens, security interests and
encumbrances, subject only to the Permitted Exceptions (to the extent
applicable);
(4) Possession of the Property, subject to valid existing leases and
other applicable Permitted Exceptions;
(5) The Lease Agreement.
(6) Deleted.
(7) Evidence of Seller's authority and capacity to close this
transaction;
(8) All other documents reasonably required by the Title Company to
close this transaction.
C. PURCHASER'S CLOSING DOCUMENTS. At the Closing, Purchaser shall deliver
to Seller at Purchaser's expense:
(1) The cash portion of the Purchase Price, with the Xxxxxxx Money
being applied thereto;
(2) The Note and the Deed of Trust, if any;
(3) Deleted.
(4) Evidence of Purchaser's authority and capacity to close this
transaction;
(5) All other documents reasonably required by the Title Company to
close this transaction.
(6) The Lease Agreement.
D. CLOSING COSTS. Each party shall pay its share of the closing costs
which are customarily paid by a Seller or Purchaser in a transaction of this
character in the county where the Property is located, or as otherwise agreed.
E. PRORATIONS. Rents, lease commissions, interest, insurance premiums,
maintenance expenses, operating expenses, and ad valorem taxes for the year of
Closing shall be prorated at the Closing effective as of the date of Closing.
Any security deposits held by Seller shall be delivered to Purchaser at the
Closing. If the Closing occurs before the tax rate is fixed for the year of
Closing, the apportionment of the taxes shall be upon the basis of the tax rate
for the preceding year applied to the latest assessed valuation, but any
difference between estimated taxes for the year of Closing and the actual taxes
paid by Purchaser shall be adjusted equitably between the parties upon proof of
payment of the taxes by Purchaser. This provision shall survive the Closing.
F. DELETED.
G. ROLLBACK TAXES. If this sale or a change in use of the Property or
denial of a special use valuation on the Property claimed by Seller results in
the assessment after Closing of additional taxes for periods of Seller's
ownership, the additional taxes plus any penalties and interest shall be paid
by Seller to Purchaser immediately upon receipt by Seller of a statement for
the taxes, unless this box / / is checked in which case Purchaser shall pay the
additional taxes plus any penalties and interest. This obligation shall survive
the Closing.
H. FOREIGN PERSON NOTIFICATION. If Seller is a Foreign Person, as
defined by the U.S. Internal Revenue Code, or if Seller fails to deliver to
Purchaser a non-foreign affidavit pursuant to Section 1445 of the Internal
Revenue Code, then Purchaser may withhold from the sales proceeds an amount
sufficient to comply with applicable tax law and deliver the withheld proceeds
to the Internal Revenue Service, together with appropriate tax forms. The
required affidavit(s) from Seller(s) shall include (1) a statement that Seller
is not a foreign person, (2) the U.S. taxpayer identification number(s) of
Seller(s), and (3) other information required by Section 1445 of the Internal
Revenue Code.
13. DEFAULT
A. PURCHASER'S REMEDIES. If Seller fails to close this Contract for any
reason except Purchaser's default or the termination of this Contract pursuant
to a right to terminate set forth in this Contract, Seller shall be in default
and Purchaser may then elect one of the following, as Purchaser's sole remedy
[Check all that may apply]:
/X/ (1) Enforce specific performance of this Contract;
/ / (2) Bring suit for damages against Seller;
/ / (3) Enforce specific performance of this Contract and/or bring suit for
damages against Seller; or
/X/ (4) Terminated and release Seller from this Contract and immediately
receive the refundable portion of the Xxxxxxx Money and recover from
Seller Purchaser's actual out of pocket third party costs and
expenses incurred in connection with this contract and performance
hereunder, including without limitation legal fees and expenses, and
due diligence costs and expenses not to exceed $50,000. Seller's
failure to satisfy Purchaser's objections under Paragraph 6 above
shall not constitute a default by Seller.
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B. SELLER'S REMEDIES. If Purchaser fails to close this Contract for any
reason except Seller's default or the termination of this Contract pursuant to
a right to terminate set forth in this Contract. Purchaser shall be in default
and Seller may then elect one of the following, as Seller's sole remedy (Check
all that may apply):
/ / (1) Enforce specific performance of this Contract;
/ / (2) Bring suit for damages against Purchaser;
/ / (3) Enforce specific performance of this Contract and/or bring suit for
damages against Purchaser; or
/X/ (4) Have the Xxxxxxx Money paid to Seller as liquidated damages for the
Purchaser's breach of this Contract, thereby releasing Purchaser from
this Contract.
14. AGENCY DISCLOSURE.
A. AGENCY RELATIONSHIPS. The term "Broker(s)" refers to the Principal
Broker and/or the Cooperating Broker, if applicable, as set forth on the
signature page. Each Broker has duties only to the party(s) the Broker
represents as identified below. If either Xxxxxx is acting as an intermediary,
then that Broker will have only the duties of an intermediary, and the
intermediary disclosure and consent provisions apply as set forth below. (Each
Broker check only one)
(1) The Principal Broker is: / / agent for Seller only; or
/ / agent for Purchaser only; or
/X/ an intermediary.
(2) The Cooperating Broker is: / / agent for Seller only; or
/ / agent for Purchaser only; or
/ / an intermediary.
B. OTHER BROKERS. Seller and Purchaser each represent and warrant to the
other party that such party has had no dealings with any person, firm, agent or
finder in connection with the negotiation of this Contract and/or the
consummation of the purchase and sale contemplated herein, other than the
Broker(s) named in this Contract, and no real estate broker, agent, attorney,
person, firm or entity, other than the Broker(s) is entitled to any commission
or finder's fee in connection with this transaction as the result of any
dealings or acts of either Seller or Purchaser. Each party hereby agrees to
indemnify, defend, protect and hold the other party harmless from and against
any costs, expenses or liability for compensation, commission, fee, or charges
which may be claimed by any agent, finder or other similar party, other than the
named Xxxxxx(s), by reason of any dealings or acts of the indemnifying party.
C. FEE SHARING. Seller and Purchaser each acknowledge that the Principal
Broker may pay a portion of the Fee (defined below) to the Cooperating Broker.
Payment of a portion of the Fee by the Principal Broker to the Cooperating
Broker shall not alter the fiduciary relationships between the parties and the
Brokers. Seller is liable for payment of the Fee to the Principal Broker only.
The Cooperating Broker shall have no claims directly against Seller.
D. INTERMEDIARY RELATIONSHIP. If either of the Brokers has indicated in
Section 14.A above that Broker is acting as an intermediary in this
transaction, then Purchaser and Seller hereby consent to the intermediary
relationship, authorize the respective Broker(s) to act as an intermediary in
this transaction, and acknowledge that the source of any expected compensation
to the Broker(s) will be the Seller, and the Broker(s) may also be paid a fee by
Purchaser. A real estate broker who acts as an intermediary between parties in a
transaction:
(1) may not disclose to the Purchaser that Seller will accept a
price less than the asking price unless otherwise instructed in a separate
writing by Seller;
(2) may not disclose to Seller that Purchaser will pay a
price greater than the price submitted in a written offer to the Seller unless
otherwise instructed in a separate writing by the Purchaser;
(3) may not disclose any confidential information, or any information
a party specifically instructs the real estate broker in writing not to
disclose, unless otherwise instructed in a separate writing by the respective
party or required to disclose such information by the Texas Real Estate License
Act or a court order or if the information materially relates to the condition
of the property;
(4) shall treat all parties to the transaction honestly; and
(5) shall comply with the Texas Real Estate License Act.
APPOINTMENTS. Broker is authorized to appoint, by providing written
notice to the parties, one or more licensees associated with Broker to
communicate with and carry out instructions of one party, and one or more other
licensees associated with Broker to communicate with and carry out instructions
of the other party or parties. During negotiations, an appointed licensee may
provide opinions and advice to the party to whom the licensee is appointed.
15. PROFESSIONAL SERVICE FEE.
A. PAYMENT OF FEE. Xxxxxx agrees to pay the Principal Broker a
professional service fee in cash (the "Fee") for procuring the Purchaser and
for assisting in the negotiation of this Contract as follows: three percent
(3%) of the total purchase price. The Fee shall be payable by Seller to the
Principal Broker in the county in which the Property is located. Seller shall
pay any applicable sales taxes on the Fee. The Fee shall be paid at the Closing
of a sale of the Property by Seller pursuant to this Contract (as may be amended
or assigned), only if the closing is consummated within ten (10) days after the
Closing Date. The Title Company or other escrow agent is authorized and directed
to pay the Fee to the Principal Broker out of the closing proceeds, or,
B. CONSENT REQUIRED. Purchaser, Seller and Title Company agree that the
Broker(s) is/are a third party beneficiary(s) of this Contract with respect to
the Fee, and that no change may be made by Purchaser, Seller or the Title
Company as to the time of payment, amount of payment, or the conditions for
payment of the Fee without the written consent of the Broker(s).
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16. MISCELLANEOUS PROVISIONS.
A. EFFECTIVE DATE. The term "Effective Date" means the latter of the two
dates on which this Contract is signed by Seller and Purchaser, as indicated by
their signatures below. If the last party to execute this Contract fails to
complete the date of execution below that party's signature, the Effective Date
shall be the date this fully executed Contract is acknowledged by the Title
Company.
B. NOTICES. All notices and other communications required or permitted
under this Contract must be in writing and shall be deemed delivered, whether
actually received or not, on the earlier of: (i) actual receipt, if delivered in
person or by messenger with evidence of delivery; or (ii) receipt of an
electronic facsimile transmission ("Fax") with confirmation of delivery; or
(iii) upon deposit in the United States Mail as required below. Notices may be
transmitted by Fax to the Fax telephone numbers specified below, if any. Notices
delivered by mail must be deposited in the U.S. Postal Service, first class
postage prepaid, and properly addressed to the intended recipient at the address
set forth below. Any party may change its address for notice purposes by
delivering written notice of its new address to all other parties in the manner
set forth above.
C. MUTUAL TERMINATION. If this Contract is terminated by mutual agreement
of both parties at any time prior to Closing, the obligations of each party
under this Contract shall terminate, except that, (i) Purchaser shall pay the
costs to repair any damage to the Property caused by Purchaser or its agents,
(ii) Purchaser shall deliver to Seller any reports or documents in Purchaser's
possession concerning the Property, and (iii) each party shall perform any other
obligations which expressly survive the termination of this Contract. The
obligations under this paragraph shall survive the termination of this Contract.
The terms of any mutual termination agreement will supersede and control over
the provisions of this Section 16.C to the extent of any conflict. This Section
16.C does not apply if Purchaser unilaterally terminates this Contract by virtue
of a termination right set forth elsewhere in this Contract.
X. Xxxxxxx
E. ATTORNEYS FEES. The prevailing party in any legal proceeding brought in
relation to this Contract or transaction shall be entitled to recover from the
non-prevailing parties court costs, reasonable attorneys' fees and all other
reasonable litigation expenses.
F. INTEGRATION. This Contract contains the complete agreement between the
parties with respect to the Property and cannot be varied except by written
agreement. The parties agree that there are no oral or signed agreements,
understandings, representations or warranties made by the parties which are not
expressly set forth herein.
G. SURVIVAL. Any warranty, representation, covenant, condition or
obligation contained in this Contract not otherwise discharged at the Closing
will survive the Closing of this transaction for a period of twelve (12) months,
provided, however, Seller shall have no liability for any untruth or inaccuracy
of any representation or warranty contained herein if Purchaser received written
notice or otherwise had actual knowledge of such untruth or inaccuracy prior to
the Closing and nevertheless elected to close the purchase of the Property.
H. BINDING EFFECT. This Contract shall inure to the benefit of and be
binding upon the parties to this Contract and their respective heirs, legal
representatives, successors and assigns.
I. TIME FOR PERFORMANCE. Time is of the essence under each provision of
this Contract. Strict compliance with the times for performance is required.
K. BUSINESS DAY. If any date of performance under this Contract falls on a
Saturday, Sunday or Texas legal holiday, such date of performance shall be
deferred to the next day which is not a Saturday, Sunday or Texas legal holiday.
L. GOVERNING LAW. This Contract shall be construed under and governed by
the laws of the State of Texas, and unless otherwise provided herein, all
obligations of the parties created under this Contract are to be performed in
the county where the Property is located.
M. SEVERABILITY. If any provision of this Contract is held to be invalid,
illegal, or unenforceable by a court of competent jurisdiction, the invalid,
illegal or unenforceable provision shall not affect any other provisions, and
this Contract shall be construed as if the invalid, illegal, or unenforceable
provision is severed and deleted from this Contract.
N. DISCLAIMER. Purchaser understands that a real estate broker is qualified
to advise on matters concerning real estate and is not an expert in matters of
law, tax, financing, surveying, hazardous materials, engineering, construction,
safety, zoning, land planning, architecture, or the Americans with Disabilities
Act. However, the Broker(s) will disclose to Purchaser any material factual
knowledge which the Broker(s) may possess about the condition of the Property.
Purchaser acknowledges that Purchaser has been advised by the Broker(s) to seek
expert assistance on such matters. The Broker(s) do not investigate a property's
compliance with building codes, governmental ordinances, statutes and laws that
relate to the use or condition of the Property or its construction or that
relate to its acquisition. If the Broker(s) provide names of consultants or
sources for advice or assistance, the Broker(s) do not warrant the services of
the advisors or their products and cannot warrant the suitability of property to
be acquired. The Broker(s) do not warrant that the Seller will disclose any or
all property defects or other matters pertaining to the Property or its
condition. Both Seller and Xxxxxxxxx agree to indemnify, defend, and hold the
Broker(s) participating in this transaction harmless from and against any and
all liabilities, claims, debts, damages, costs, and expenses, including but not
limited to reasonable attorneys' fees and court costs, related to or arising out
of or in any way connected to representations about the Property or matters
analyzed by experts. In addition, to the extent permitted by applicable law,
Broker(s)' liability for errors and omissions, negligence, or otherwise, is
limited to the return of the Fee, if any, paid to the Broker(s) pursuant to this
Contract.
Page 6
7
O. COUNTERPARTS. This Contract may be executed in a number of identical
counterparts. Each counterpart is deemed an original and all counterparts shall
collectively, constitute one agreement.
P. GENDER: NUMBER. Unless the context requires otherwise, all pronouns
used in this Contract shall be construed to include the other genders, whether
used in the masculine, feminine or neuter gender. Words in the singular number
shall be construed to include the plural and words in the plural shall be
construed to include the singular.
S. CONSULT AN ATTORNEY. THIS DOCUMENT IS AN ENFORCEABLE, LEGALLY BINDING
AGREEMENT. READ IT CAREFULLY. The Broker(s) involved in the negotiation of the
transaction described in this Contract cannot give legal advice. By law, the
Broker(s) are limited to discussing factual and business details of the
transaction. The parties to this Contract acknowledge that they have been
advised by the Broker(s) to have this Contract reviewed by legal counsel before
signing this Contract to discuss the legal effects of its terms and provisions.
17. ADDITIONAL PROVISIONS.
(a) Lease Agreement: Upon the successful closing of the sale of the
Property, it is understood and agreed that Cerprobe Corporation and Purchaser
will execute a Lease Agreement by and between Seller and Purchaser and the form
of which is shown as Addendum E attached hereto and made a part hereof.
(b) Seller is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware. Seller is duly authorized to
transact business in Texas. This Contract has been duly authorized, executed
and delivered by Seller and constitutes the legal, valid and binding obligation
of Seller, enforceable against Seller in accordance with its terms.
(c) To the Seller's knowledge, all of the documents and instruments
delivered by Seller to Purchaser pursuant to Addendum A are and will be true,
complete and correct copies of what they purport to be and are in Seller's
possession. To Seller's knowledge, there are no agreements of any nature
whatsoever applicable to or binding on the Property other than the Title
Documents and the documents and instruments delivered by Seller to Purchaser
pursuant to Addendum A. To Seller's knowledge, each agreement delivered by
Seller to Purchaser pursuant to Addendum A is in full force and effect, and no
party is in any material default thereunder.
(d) Seller has not received written notice from any applicable
governmental authority, and Seller otherwise has no actual knowledge that the
Property fails to comply in any material respect with any applicable state,
federal or local law, statute, ordinance, rule or regulation.
(e) Purchaser acknowledges and agrees that, except as otherwise expressly
stated herein, Seller has not made, and Seller hereby specifically disclaims any
warranty, guaranty or representation, oral or written, past, present or future,
of, as to, or concerning the nature and condition of the property, including
without limitation, the water, soil and geology, and the suitability thereof and
of the property for any and all activities and uses which Purchaser may elect to
conduct thereon. Purchaser acknowledges that having been given the opportunity
to inspect the Property, Purchaser is relying solely on the express provisions
of this Contract and on its own investigation of the Property and not on any
information provided or to be provided by Seller. Xxxxxxxxx agrees to accept the
Property and acknowledges that the sale of the Property as provided for herein
is made by Seller on an "AS-IS, WHERE-IS AND WITH ALL FAULTS" basis, except as
otherwise expressly provided herein.
(f) The term "to Seller's knowledge" or similar phrase as used herein
shall mean the then actual current conscious knowledge to Xxxx Xxxxxx, Vice
President of Worldwide Facilities of Cerprobe Corporation, without any duty
of investigation or inquiry.
Page 7
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18. EXHIBITS AND ADDENDA. All Exhibits and Addenda attached to this Contract
are incorporated herein by reference and are made a part of this Contract for
all purposes. [Check all that apply.]
[X] Addendum A Personal Property
[ ] Exhibit A Survey and/or Legal [ ] Addendum B-1 Third Party Financing
Description of the [ ] Addendum B-2 Seller Financing
Property [X] Addendum C Inspection
[ ] Exhibit B Floor Plan and/or [ ] Addendum D Disclosure Notice
Site Plan [X] Addendum E Other Lease Agreement
[ ] Exhibit C Other________________
19. CONTRACT AS OFFER. The execution of this Contract by the first party to
do so constitutes an offer to purchase or sell the Property. Unless within five
(5) days from the date of execution of this Contract by the first party, this
Contract is accepted by the other party by signing the offer and delivering a
fully executed copy of the first party, the offer of this Contract shall be
deemed automatically withdrawn and terminated, and the Xxxxxxx Money, if any,
shall be promptly returned to Purchaser.
EXECUTED on the dates stated below,
to be effective on the Effective Date.
SELLER PURCHASER
Cerprobe Corporation Assurance Capital, Inc.
By [Signature]: /s/ XXXX X. XXXXXX By [Signature]: /s/ Xxx Xxxxxxx
Name: XXXX X. XXXXXX Name: Xxx Xxxxxxx
Title: VICE PRESIDENT, WORLDWIDE Title: President
FACILITIES
Address: 0000 X. Xxxxxx Xxxx. Address: 0000 Xxxxx Xxxxxxx
Xxxxxxx, XX 00000 Xxxxx 000
Xxxxxx, XX 00000
Telephone: 480/000-0000 Telephone: 214/000-0000
Fax: 480/000-0000 Xax: 214/000-0000
Tax I.D. No:______________________ Tax I.D. No:______________________
Date of Execution: June 2, 2000 Date of Execution: May 25th 2000
Final Execution Date: June 6/2000
SELLER PRINCIPAL BROKER
Xxxxx & Xxxxx Company
By [Signature]:_________________________
Name: Xxxx Xxxxxxx
Title: Regional Manager
Address: 00000 Xxxxxxx Xxxx
0000 Xxxxxxxxx Xxxxx XX
Xxxxxx, XX 00000
Telephone: 972/000-0000
Fax: 972/000-0000
TITLE COMPANY ACCEPTANCE. The Title Company acknowledges receipt of the
Xxxxxxx Money on ________________ (date) from __________________________________
in the amount of $_______________ in the form of _______________________________
and accepts the Xxxxxxx Money subject to the terms and conditions of this
Contract.
TITLE COMPANY
Ticor Land Title Company
By [Signature]:_______________________
Name: Xxxxxx Xxxxxx
Title:________________________________
Address: 0000 XxXxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, XX 00000
Telephone: 214/000-0000
Fax: 214/000-0000
Copyright Notice: This form is provided for the use of members of the North
Texas Commercial Association of Realtors, Inc. Permission is hereby granted to
make limited copies of this form for use in a particular Texas real estate
transaction. Contact the NTCAR office to confirm that you are using the current
version of this form.
Page 8
9
NORTH TEXAS COMMERCIAL ASSOCIATION OF REALTORS(R)
ADDENDUM A TO CONTRACT OF SALE
PERSONAL PROPERTY
Property Description/Address: 00000 Xxxxxx Xxxxx, Xxxxxx
-------------------------------------------------
A. Documents. Seller shall deliver to Purchase within ten (10) days after the
Effective Date complete and legible copies to the extent in Seller
possession of:
1. Deleted
2. Deleted
3. A current inventory of all tangible personal property and fixtures
owned by Seller and located on, attached to, or used in connection
with the Property.
4. Deleted
5. All service, maintenance, management, or other contracts relating to
the ownership and operation of the Property;
6. All warranties and guaranties relating to the Property, or any part
thereof, or to the tangible personal property and fixtures owned by
Seller and located on, attached to, or used in connection with the
Property, if available;
7. All fire, hazard, liability, and other insurance policies held by
Seller covering the Property;
8. All of the real estate and personal property tax statements with
respect to the Property for the previous two (2) years;
9. Deleted
10. The "as built" or other plans and specifications with respect to the
Property, if available;
11. Deleted
12. Property Financial Statements.
B. Review of Documents. Purchaser shall have until the end of the inspection
Period set forth in Addendum C to review the information identified above. If
Purchaser objects to any matters contained therein, in Purchaser's sole
discretion, no matter how arbitrary, Purchaser may: (i) terminate this Contract
by delivery of written notice to Seller prior to expiration of the inspection
Period, and the Xxxxxxx Money shall be promptly returned by the Title Company
to Purchaser and neither party shall have any further obligation to the other
under this Contract (except for those which may expressly strive the
termination of this Contract); or (ii) waive the objections and close the
transaction. If Purchaser does not deliver a written termination notice to
Seller prior to expiration of the inspection Period, any and all objections as
to the information provided by Seller pursuant to this Addendum shall be deemed
to be waived by Purchaser for all purposes.
C. Estoppel Certificates. Seller agrees to deliver to Purchaser estoppel
certificates executed by each of the tenants under all the leases of the
Property stating: (1) whether the tenant is an assignee or subtenant; (2) the
expiration date of the lease; (3) the number of renewal options under the lease
and the total period of time covered by the renewal option(s); (4) that none of
the terms or provisions of the lease have been changed since the original
execution of the lease, except as shown on attached amendments or
modifications; (5) that no default exists under the terms of the lease by
either landlord or tenant; (6) that the tenant has no claim against the
landlord under the lease and has no defense or right of offset against
collection of rent or other charges accruing under the lease; (7) the amount
and date of the last payment of rent; (8) the amount of any security deposits
and other deposits, if any, and (9) the identity and address of any guarantor
of the lease. Seller will cause the estoppel certificate(s) to be delivered to
Purchaser at least fifteen (15) days prior to the Closing Date, unless this box
[ ] is checked, in which case Seller will cause the estoppel certificates to be
delivered to Purchaser at least five (5) days prior to the end of the Review
Period. If any estoppel certificate is not timely delivered or is unacceptable
to Purchaser, then Purchaser shall immediately notify Seller in writing of
Purchaser's objections. Seller will promptly attempt to cure the unacceptable
matter without any obligation to incur any cost in connection with the attempt.
If Seller is unable to do so by the Closing Date, Purchaser may: (i) terminate
this Contract and the Xxxxxxx Money shall be promptly refunded to Purchaser,
and neither party shall have any further rights or obligations pursuant to this
Contract (except for those which may expressly survive the termination of this
Contract); or (ii) waive the objections and close the transaction.
D. Other Personal Property. Seller shall convey to Purchaser, as part of the
Property, all fixtures and articles of tangible personal property on the
Property and owned by Seller, including but not limited to [ATTACH SEPARATE
LISTS OF PERSONAL PROPERTY IF NECESSARY]:
1. Lighting fixtures, signs, decorative accessories, barriers, security
equipment, traffic control devices and similar equipment;
2. Refrigeration, heating, ventilating and air conditioning units and
equipment;
3. Electronic security equipment and remote transmitter devices;
4. Tools, equipment, parts and supplies used only for the maintenance of
the Property, i.e. hoses, ladders, mowers, scaffolds, and
---------------------------------------------------------------------;
5. Furnishing and decorations situated in common areas; i.e. rugs,
artwork, lamps, furniture, planters, trash containers, and
---------------------------------------------------------------------;
6. Operating manuals, service instructions and all records pertaining
to the installation, operation, maintenance and repair of equipment
and fixtures whether listed above as items of personal property
or affixed as part of the real property;
7.
---------------------------------------------------------------------;
8. Telephone number(s) of the management office of the Property,
including
-----------------------------------------------------------;
9. Licenses, permits, maintenance agreements, management agreements,
plans and specifications, as-built drawings, show drawings,
warranties, guarantees, and any other agreements relating to the
Property or any part thereof, if available.
10. Other items:
--------------------------------------------------------
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NORTH TEXAS COMMERCIAL ASSOCIATION OF REALTORS(R)
ADDENDUM C TO CONTRACT OF SALE
INSPECTION
Property Description/Address: 00000 Xxxxxx Xxxxx, Xxxxxx
A. INSPECTION PERIOD. Purchaser shall have a period of forty-five (45) days
after the Effective Date (the "Inspection Period") to inspect the Property and
to conduct feasibility studies regarding Purchaser's intended use of the
Property. Purchaser's studies may include without limitation: (i) core borings;
(ii) environmental and architectural tests and investigations; (iii) physical
inspections of all improvements, fixtures, equipment, subsurface soils,
structural members, and personal property; and (iv) examination of plans,
specifications, manuals, and other documents relating to the construction and
condition of the Property. Purchaser and Purchaser's agents, employees,
consultants and contractors shall have the right of reasonable entry onto the
Property during normal business hours, and upon reasonable advance notice to
Seller and/or Seller's tenants, for purposes of the inspections, studies, tests
and examinations deemed necessary by Purchaser. All inspections, studies, tests
and examinations performed hereunder shall be at Purchaser's expense.
B. REPORTS.
/X/ 2. Within ten (10) days after the Effective Date, Seller shall deliver to
Purchaser copies of all reports in Seller's possession of engineering
investigations, tests and/or environmental studies which have been made with
respect to the Property within the two year period prior to the Effective Date.
/ / 3. If Purchaser terminates this Contract, Purchaser shall deliver to
Seller, at Purchaser's expense and contemporaneously with the termination,
copies of all written reports, inspections, plats, drawings and studies made by
Purchaser and Purchaser's agents, consultants and contractors. This provision
shall survive the termination of this Contract.
C. TERMINATION. If Purchaser determines, in Purchaser's sole discretion, no
matter how arbitrary, that the Property is not in satisfactory condition or is
not suitable for Purchaser's intended use or purpose, then Purchaser may
terminate this Contract by delivering a written notice to Seller on or before
the last day of the Inspection Period, and the refundable portion of the
Xxxxxxx Money shall be promptly returned by the Title Company to Purchaser and
neither party shall have any further rights or obligations under this Contract
(except for those which may expressly survive the termination of this Contract).
D. ACCEPTANCE. If Purchaser does not properly and timely terminate this
Contract before the expiration of the Inspection Period or if Purchaser
accepts the Property in writing) then Purchaser will be deemed to have waived
all objections to the Property under this Contract, except for any title
objections which may be outstanding pursuant to Section 6 of this Contract. In
that event, Purchaser agrees to purchase the Property in its current condition
without any further representations or warranties of Seller other than those
provided in Section 7 of the Contract, except any objections which Seller may
expressly agree in writing to cure, and this Contract shall continue in full
force and effect and the parties shall proceed to Closing. However, this
provision does not waive or otherwise limit or invalidate any express
representations or warranties Seller has made in this Contract.
E. RESTORATION. If the transaction described in this Contract does not close,
through no fault of Seller, and the condition of the Property was altered due to
tests and inspections performed by Purchaser or on Purchaser's behalf. Purchaser
must restore the Property to its original condition. Purchaser shall indemnify,
hold harmless and defend Seller and its affiliates against any loss, damage,
liability or claim for personal injury or property damage and any other loss,
damage, liability, claim or lien arising from the acts upon the Property by
Purchaser or any agents, contractors or employees of Purchaser, INCLUDING ANY
SUCH LOSS, DAMAGE OR CLAIM TO WHICH THE NEGLIGENCE OF SELLER MAY HAVE
CONTRIBUTED, but excluding any such loss, damage or claim if and to the extent
caused by the gross negligence or willful misconduct of Seller. Seller shall
have the right to have a representative present during any such inspections. If
Purchaser desires to do any invasive testing at the Property, Purchaser shall do
so only after notifying Seller and obtaining Seller's consent thereto, which
consent shall not be unreasonably withheld or delayed and may be subject to
reasonable terms and conditions as may be proposed by Seller. Purchaser shall be
responsible for and pay and not permit to attach to the Property any and all
liens by contractors, subcontractors, materialmen, or laborers performing the
inspections or any other work for Purchaser on or related to the Property.
Purchaser and all contractors and others performing any tests and studies on the
Property shall first present to Seller reasonably satisfactory evidence that
such party is adequately insured in order to reasonably protect Seller from any
loss, liability, or damage arising out of the performance of such tests or
studies.
Page 10
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ADDENDUM E
NORTH TEXAS COMMERCIAL ASSOCIATION OF REALTORS
COMMERCIAL LEASE AGREEMENT
TABLE OF CONTENTS
Article Page
1. Defined Terms 1
2. Lease and Lease Term 2
3. Rent and Security Deposit 2
4. Taxes 3
5. Insurance and Indemnity 3
6. Use of Demised Premises 4
7. Property Condition, Maintenance, Repairs and Alterations 5
8. Damage or Destruction 6
9. Condemnation 7
10. Assignment and Subletting 7
11. Default and Remedies 7
12. Landlord's Contractual Lien 9
13. Protection of Lenders 9
14. Environmental Representations and Indemnity 10
15. Professional Service Fees 10
16. Miscellaneous 11
17. Additional Provisions 13
EXHIBITS AND ADDENDA. Any exhibit or addendum [illegible] to this Lease is
incorporated as a part of this Lease for ad purposes. Any term not specifically
defined in the Addenda shall have the same meaning given to it in the body of
this Lease. To the extent any provisions in the body of this Lease conflict
with the Addenda, the Addenda shall control.
[Check all boxes which apply. Boxes not checked do not apply.]
[ ] Exhibit A Survey and/or Legal Description of the Property
[ ] Exhibit B Floor Plan and/or Site Plan
[X] Addendum A Expense Reimbursement
[X} Addendum B Renewal Options
[ ] Addendum C Right of First Refusal for Additional Space
[ ] Addendum D Percentage Rental/Gross Sales Reports
[ ] Addendum E Guarantee
[ ] Addendum F Construction of Improvements
[ ] Addendum G Rules and Regulations
[ ] Addendum H Other_________________________________________
IN CONSIDERATION of the terms, provisions and agreements contained in this
Lease, the parties agree as follows:
ARTICLE ONE: DEFINED TERMS. As used in this Commercial Lease Agreement (the
"Lease"), the terms set forth in this Article One have the following respective
meanings:
1.01. Effective Date: The last date beneath the signatures of Landlord and
Tenant on page 13 below.
1.02. Landlord: Assurance Capital, Inc.
Address: 0000 Xxxxx Xxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000
Telephone: 214/000-0000 Fax: [illegible]
1.03. Tenant: Cerprobe Corporation
Address: 0000 X. Xxxxxx Xxxx.,
Xxxxxxx, XX 00000-0000 Telephone: 214/000-0000 Fax: 214/000-0000
1.04. Demised Premises: 00000 Xxxxxx Xxxxx
A. Street address: 00000 Xxxxxx Xxxxx
Xxxxxx xx Xxxxxx Xxxxxx, Xxxxx
B. Legal description: The property on which the Demised Premises is situated
(the "Property") is more particularly described as Xxxxxxx - Gateway, BLK
B/8053, Lot 2B Acs 3.7569. Vol. 96253/0914 00122796 Dallas Country or is
described on Exhibit A, SURVEY AND/OR LEGAL DESCRIPTION.
C. Floor Plan or Site Plan: Being a floor area of approximately 34,336 square
feet and being approximately ________ feet by ________ feet (measured to the
exterior of outside walls and to the center of the interior walls) and being
more particularly shown in outline form on Exhibit B. FLOOR PLAN AND/OR SITE
PLAN.
X. Xxxxxx's pro rata share of the Property is 100%. [See Addendum A. EXPENSE
REIMBURSEMENT, if applicable]
1.05. Lease Term: Ten (10) years and 0 months beginning on ____________(the
"Commencement Date") and ending on ______________(the "Expiration Date").
1.06. Base Rent: $3,947,681.00 total Base Rent for the Lease Term payable in
monthly installments of $30,004.00** per month in advance. (The total
amount of Rent is defined in Section 3.01.)
1.07. Percentage Rental Rate: 0%. [See Addendum D, PERCENTAGE RENTAL/GROSS
SALES REPORTS, if applicable]
1.08. Security Deposit: $30,044.00 (due upon execution of this Lease). [See
Section 3.04]
1.09. Permitted Use: General office and administrative use, and all uses being
made of the Demised Premises by Tenant on and prior to the Effective Date,
together with all similar and ancillary uses thereto. [See Section 6.01]
Page 1
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1.10. Party to whom Xxxxxx is to deliver payments under this Lease, [check one]:
[] Landlord [] Principal Broker or [] Other ___________________. Landlord
may designate in [Illegible] party authorized to act on behalf of
[Illegible] to enforce this Lease. Any such authorization will remain in
effect until it is revoked by Landlord in writing.
1.14. Acceptance: The number of days for acceptance of this offer is _________
days. (See Section 16.14)
ARTICLE TWO: LEASE AND LEASE TERM
2.01. Lease of Demised Premises for Lease Term. Landlord leases the Demised
Premises to Tenant and Tenant leases the Demised Premises from Landlord for the
Lease Term stated in Section 1.05. The Commencement Date is the date specified
in Section 1.05, unless advanced or delayed under any provision of this Lease.
2.04. Holding Over. Tenant shall vacate the Demised Premises immediately upon
the expiration of the Lease Term or earlier termination of this Lease. Tenant
shall reimburse Landlord for any indemnify Landlord against all direct and
actual damages incurred by Landlord as a result of any delay by Tenant in
vacating the Demised Premises. If Tenant does not vacate the Demised Premises
upon the expiration of the Lease Term or earlier termination of this Lease,
Tenant's occupancy of the Demised Premises shall be a day-to-day tenancy,
subject to all of the terms of this Lease, except that the Base Rent during the
holdover period shall be increased to an amount which is one-and-one-half
(1 1/2) times the Base Rent in effect on the expiration or termination of this
Lease, computed on a daily basis for each day of the holdover period, plus all
additional sums due under this Lease. This paragraph shall not be construed as
Landlord's consent for Tenant to hold over or to extend this Lease.
ARTICLE THREE: RENT AND SECURITY DEPOSIT
3.01. Manner of Payment. All sums payable under this Lease by Tenant (the
"Rent") shall be made to the Landlord at the address designated in Section 1.02,
unless another person is designated in Section 1.10, or to any other party or
address as Landlord may designate in writing. Any and all payments made to a
designated third party for the account of the Landlord shall be deemed made to
Landlord when received by the designated third party. All sums payable by Tenant
under this Lease, whether or not expressly denominated as rent, shall constitute
rent for the purposes of Section 502(b)(6) of the Bankruptcy Code and for all
other purposes. The Base Rent is the minimum rent for the Demised Premises and
is subject to the terms and conditions contained in this Lease, together with
the attached Addenda, if any.
3.02. Time of Payment. Upon execution of this Lease, Tenant shall pay the
installment of Base Rent for the first month of the Lease Term. On or before the
first day of the second month of the Lease Term and of each month thereafter,
the installment of Base Rent and other sums due under this Lease shall be due
and payable, in advance, without off-set, deduction or prior demand Tenant shall
cause payments to be properly mailed or otherwise delivered so as to be actually
received by the party identified in 1.10 above on or before the due date (and
not merely deposited in the mail). If the Lease Term commences or ends on a day
other than the first or last day of a calendar month, the rent for any
fractional calendar month following the Commencement Date or preceding the end
of the Lease Term shall be prorated by days.
Page 2
13
3.03. Late Charges. Xxxxxx's failure to promptly pay sums due under this Lease
may cause the landlord to incur unanticipated costs. The exact amount of those
costs is impractical or extremely difficult to ascertain. The costs may include
[ILLEGIBLE] not limited to processing and accounting charges and late charges
which may be imposed on Landlord by any ground lease or deed of trust
encumbering the Demised Premises. Payments due to Landlord under this Lease are
not an extension of credit. Therefore, if any payment under the Lease is not
actually received on or before three (3) days after the due date (and not merely
deposited in the mail) applicable, Landlord may, at Landlord's option and to the
extend allowed by applicable law; impose a Late Charge on any late payments in
an amount equal to one-half of one percent (0.5%) of the amount of the past due
payment the ("Late Charge") per day for each day after the due date, until the
past due amount in Good Funds is received by Landlord up to a maximum of ten
percent (10%) of the past due amount. A Late Charge may be imposed only once on
each past due payment. Any Late Charge will be in addition to Xxxxxxxx's other
remedies for nonpayment of rent [if any check tendered to Landlord by Tenant
under this Lease is dishonored for any reason, Tenant shall pay to the party
receiving payments under this Lease a fee of twenty-five dollars ($25.00), plus
(at Landlord's option) a Late Charge as provided above until good funds are
received by Landlord. The parties agree that any Late Charge and dishonored
check fee represent a fair and reasonable estimate of the costs Landlord will
incur by reason of the late payment or dishonored check. Payments received from
Tenant shall be applied first to any Late Charges, second to Base Rent, and last
to other unpaid charges or reimbursements due to Landlord. Notwithstanding the
foregoing, Landlord will not impose a Late Charge as to the first late payment
in any calendar year, unless Tenant fails to pay the late payment to Landlord
within three (3) business days after the delivery of a written notice from
Landlord to Tenant demanding the late payment be paid. However, Landlord may
impose a Late Charge without advance notice to Tenant on any subsequent late
payment in the same calendar year.
3.04. Security Deposit. Upon execution of this Lease, Tenant shall deposit with
Landlord a cash Security Deposit in the amount stated in Section 1.08. Landlord
may apply all or part of the Security Deposit to any unpaid Rent or other
charges due from Tenant or to cure any other defaults of Tenant. If Landlord
uses any part of the Security Deposit, Tenant shall restore the Security Deposit
to its full amount within ten (10) days after Landlord's written demand.
Tenant's failure to restore the full amount of the Security Deposit within the
time specified shall be a default under this Lease. No interest will be paid on
the Security Deposit. Landlord will not be required to keep the Security Deposit
separate from its other accounts and no trust relationship is created with
respect to the Security Deposit. Upon any termination of this Lease not
resulting from Xxxxxx's default, and after Xxxxxx has vacated the Property and
cleaned and restored the Demised Premises in the manner required by this Lease,
Landlord shall refund the unused portion of the Security Deposit to Tenant
within thirty days after the Termination Date or thirty days after Tenant fully
complies with the conditions of termination as required in Section 7.05,
whichever is later.
3.05. Good Funds Payments. If, for any reason whatsoever, any two or more
payments by check from Tenant to Landlord for Rent are dishonored and returned
unpaid, thereafter Landlord may, at Landlord's sole option, upon written notice
to Tenant, require that all future payments of Rent for the remaining term of
the Lease must be made by cash, certified check, cashier's check, or money order
("Good Funds") and that the delivery of Tenant's personal or corporate check
will no longer constitute payment of Rent under this Lease provided, however, if
after twelve (12) consecutive timely payments of Rent in Good Funds as provided
herein, Tenant is not in Default hereunder, Tenant may resume paying Rent by
personal or corporate check so long as any such check thereafter is not
dishonored and returned unpaid. Any acceptance by Landlord of a payment for Rent
by Xxxxxx's personal or corporate check thereafter shall not be construed as a
waiver of Landlord's right to insist upon payment by Good Funds as set forth
herein.
ARTICLE FOUR: TAXES
4.01. Payments by Landlord. Tenant shall pay the real estate taxes on the
Demised Premises accruing during the Lease Term.
4.02. Tenant shall pay such real estate taxes and, upon request, furnish
Landlord with written evidence of payment before the same becomes delinquent.
If Tenant fails to timely pay such real estate taxes, Landlord may pay the
taxes, whereupon Tenant shall, upon demand, reimburse Landlord for the amount
thereof, plus 5% of the amount.
4.03. Joint Assessment. If the real estate taxes are assessed against the
Demised Premises jointly with other property not constituting a part of the
Demised Premises, the real estate taxes applicable to the Demised Premises shall
be equal to the amount bearing the same proportion to the aggregate assessment
that the total square feet of building area in the Demised Premises bears to the
total square feet of building area included in the joint assessment.
4.04. Personal Property Taxes. Tenant shall pay all taxes assessed against
trade fixtures, furnishings, equipment, inventory, products, or any other
personal property belonging to Tenant. Tenant shall use reasonable efforts to
have Tenant's property taxed separately from the Demised Premises. If any of
Tenant's property is taxed with the Demised Premises, Tenant shall pay the
taxes for its property to Landlord within fifteen (15) days after Xxxxxx
receives a written statement from Landlord for the property taxes.
ARTICLE FIVE: INSURANCE AND INDEMNITY
5.01. Property Insurance. During the Lease Term, Tenant shall maintain policies
of property insurance covering loss of or damage to the Demised Premises in an
amount or percentage of replacement value as Landlord deems reasonable in
relation to the age, location, type of construction and physical condition of
the Demised Premises and the availability of insurance at reasonable rates. The
policies shall provide protection against all perils included within the
classification of special causes, which includes fire and extended coverage and
providing such coverage and insuring against such perils as reasonably required
by Landlord, including, without limitation, business income and rental insurance
naming Landlord as the additional insured. Landlord may, at Landlord's option,
obtain insurance coverage for Tenant's fixtures, equipment or building
improvements installed by Tenant in or on the Demised Premises. Tenant shall, at
Tenant's expense, maintain insurance on its fixtures, equipment and building
improvements as Tenant deems necessary to protect Xxxxxx's interest. Tenant
shall not do or permit to be done anything which invalidates any insurance
policies. Tenant shall deliver a copy of the policy or certificate of insurance
(or a renewal) to Landlord prior to the Commencement Date and prior to the
expiration of the policy during the Lease Term. If Tenant fails to maintain the
policy, Landlord may elect to maintain the insurance at Tenant's expense which
Tenant shall reimburse to Landlord upon demand.
5.02. Increase in Premiums. Tenant shall not permit any operation or activity
to be conducted, or storage or use of any volatile or any other materials, on or
about the Demised Premises that would cause suspension or cancellation of any
fire and extended coverage insurance policy without the prior written consent of
Landlord. If Xxxxxx's use and occupancy of the Demised Premises causes an
increase in the premiums for any fire and extended coverage insurance policy,
Tenant shall pay the amount of the increase.
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5.04. INDEMNITY. Landlord shall not be liable to Tenant or to Tenant's
employees, agents, invitees or visitors, or to any other person, for any injury
to persons or damage to property on or about the Demised Premises or any
adjacent area owned by Landlord caused by the negligence or misconduct of
Tenant, Tenant's employees, subtenants, agents, licensees or concessionaires or
any other person entering the Demised premises under express or implied
invitation of Tenant, or arising out of the use of the Demised Premises by
Xxxxxx and the conduct of Xxxxxx's business, or arising out of any breach or
default by Tenant in the performance of Tenant's obligations under this Lease;
and Xxxxxx hereby agrees to indemnify and hold Landlord harmless from any loss,
expense or claims arising out of such damage or injury. Tenant shall not be
liable for any injury or damage caused by the negligence or misconduct of
Landlord, or Landlord's employees or agents, and Xxxxxxxx agrees to indemnify
and hold Tenant harmless from any loss, expense or damage arising out of such
damage or injury.
5.06 WAIVER OF SUBROGATION. Each party to this Lease waives any and every
claim which arises or may arise in its favor against the other party during the
term of this Lease or any renewal or extension of this Lease for any and all
loss of, or damage to, any of its property located within or upon, or
constituting a part of, the Demised Premises, which loss or damage is covered by
valid and collectible property insurance policies, to the extent that such loss
or damage is recoverable under such insurance policies. These mutual waivers
shall be in addition to, and not in limitation or derogation of, any other
waiver or release contained in this Lease with respect to any loss of, or damage
to, property of the parties. Inasmuch as these mutual waivers will preclude the
assignment of any aforesaid claim by way of subrogation or otherwise to an
insurance company (or any other person), each party hereby agrees to give
immediately to each insurance company (which has issued to such party policies
of fire and extended coverage insurance) written notice of the terms of such
mutual waivers, and to cause such policies to be properly endorsed to prevent
the invalidation of the insurance coverage by reason of these waivers.
ARTICLE SIX: USE OF DEMISED PREMISES
6.01 PERMITTED USE. Tenant may use the Demised Premises only for the Permitted
Use stated in Section 1.09. The parties to this Lease acknowledge that the
current use of the Demised Premises or the improvements located on the Demised
Premises, or both, may or may not conform to the city zoning ordinance with
respect to the permitted use, height, setback requirements, minimum parking
requirements, coverage ratio of improvements to total area of land, and other
matters which may have a significant economic impact upon the Tenant's intended
use of the Demised Premises. Tenant acknowledges that Xxxxxx has or will
independently investigate and verify to Xxxxxx's satisfaction the extent of any
limitations or non-conforming uses of the Demised Premises. Tenant further
acknowledges that Tenant is not relying upon any warranties or representations
of Landlord or the Brokers who are participating in the negotiation of this
Lease concerning the Permitted Use of the Demised Premises, or with respect to
any uses of the improvements located on the Demised Premises.
6.02 COMPLIANCE WITH LAW. Tenant shall comply with all governmental laws,
ordinances and regulations applicable to the use of the Demised Premises, and
shall promptly comply with all governmental orders and directives for the
correction, prevention and abatement of nuisances and other activities in or
upon, or connected with the Demised Premises, all at Tenant's sole expense,
including any expense or cost resulting from the construction or installation of
fixtures and improvements or other accommodations for handicapped or disabled
persons required for compliance with governmental laws and regulations,
including but not limited to the Texas Architectural Barriers Act (Article 9102
and any successor statute) and the Americans with Disabilities Act (the "ADA").
To the extent any alterations to the Demised Premises are required by the ADA or
other applicable laws or regulations, Tenant shall bear the expense of the
alterations. To the extent any alterations to areas of the Property outside the
Demised Premises are required by Title III of the ADA or other applicable laws
or regulations (for "path of travel" requirements or otherwise), Landlord shall
bear the expense of the alterations.
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6.04. Signs. Without the prior written consent of Landlord, not to be
unreasonably withheld, Tenant may not place any signs, ornaments or other
objects upon the Demised Premises or on the Property, (other than signs existing
as of the Commence Date) including but not limited to the roof or exterior of
the building or other improvements on the Property, or paint or otherwise
decorate or deface the exterior of the building. Any signs installed by Tenant
must conform with applicable laws, deed restrooms on the Property, and other
applicable requirements. Tenant must remove all signs, decorations and ornaments
at the expiration or termination of this Lease and must repair any damages and
close any holes caused by the removal.
6.05. Utility Services. Tenant shall pay the cost of all utility services,
including but not limited to rural connection charges, all charges for gas,
water, sewerage, storm water disposal, communications and electricity used on
the Demised Premises, and for replacing all broken or burned-out electric
lights, lamps and tubes.
6.06. Landlord's Access. Landlord and Landlord's agents shall have the right
to, during normal business hours and upon reasonable advance notice, and without
unreasonably interfering with Xxxxxx's business, enter the Demised Premises: (a)
to inspect the general condition and state of repair of the Demised Premises,
(b) to make repairs required or permitted under this Lease, (c) to show the
Demised Premises or the Property to any prospective tenant or purchaser, and (d)
for any other reasonable purpose. If Tenant changes the locks on the Demised
Premises, Tenant must provide Landlord with a copy of each separate key. During
the final one hundred fifty (150) days of the Lease Term, Landlord and
Landlord's agents may erect and maintain on or about the Demised Premises signs
advertising the Demised Premises for lease or for sale.
6.07. Possession. If Tenant pays the rent, properly maintains the Demised
Premises, and complies with all other terms of this Lease, Tenant may occupy and
enjoy the Demised Premises for the full Lease Term, subject to the provisions of
this Lease.
6.08. Exemptions from Liability. Landlord shall not be liable for any damage
or injury to the persons, business (or any loss of income), goods, inventory,
furnishings, fixtures, equipment, merchandise or other property of Tenant,
Tenant's employees, invitees, customers or any other person in or about the
Demised Premises, whether the damage or injury is caused by or results from: (a)
fire, steam, electricity, water, gas or wind; (b) the breakage, leakage,
obstruction or other defects of pipes, sprinklers, wires, appliances, plumbing,
air conditioning or lighting fixtures or any other cause; (c) conditions arising
on or about the Demised Premises or upon other portions of any building of which
the Demised Premises is a part, or from other sources or places; or (d) any act
or omission of any other tenant of any building on the Property. Landlord shall
not be liable for any damage or injury even though the cause of or the means of
repairing the damage or injury are not accessible to Tenant. The provisions of
this Section 6.08 shall not, however, exempt Landlord from liability for
Landlord's gross negligence or willful misconduct.
ARTICLE SEVEN: PROPERTY CONDITION, MAINTENANCE, REPAIRS AND ALTERATIONS
7.02. Acceptance of Demised Premises. Tenant acknowledges that: (a) a full
and complete inspection of the Demised Premises and adjacent common areas has
been made by Tenant, and (b) as a result of such inspection, Tenant has taken
possession of the Demised Premises and accepts the Demised Premises in its "As
Is" condition.
7.03. Maintenance and Repair. Landlord shall be under no obligation to
perform any repair, maintenance or management service in the Demised Premises or
adjacent common areas. Tenant shall be fully responsible, at its expense, for
all repair, maintenance and management services.
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B. Tenant's Obligation.
(1) Subject to the provisions of Article Eight (Damage or Destruction) and
Article Nine: [ILLEGIBLE], Tenant shall, at all times, keep all portions of the
Demised Premises in good order, condition and repair, ordinary wear and tear
excepted, including but not limited to maintenance, repairs and all necessary
replacements of the windows, plate glass, doors, overhead doors, heating
systems,ventilating equipment, air conditioning equipment, electrical and
lighting systems, fire protection sprinkler system, dock levelers, elevators,
interior and exterior plumbing, the interior of the Demised Premises in general,
pest control and extermination, down spouts, gutters, paving, railroad siding,
care of landscaping and regular mowing of grass, the roof, skylights,
foundation, or structural components and exterior of the Demised Premises. If
Tenant fails to maintain and repair the Property as required by this Section
after notice and 30-days opportunity to cure, Landlord may, on ten (10) days'
prior written notice, enter the Demised Premises and perform the maintenance or
repair on behalf of Tenant, except that no [ILLEGIBLE] required in case of
emergency, and Tenant shall reimburse Landlord immediately upon demand for all
costs incurred in performing the maintenance or repair, plus a reasonable
service charge.
(2) HVAC Service. Tenant shall, at Tenant's own cost and expense, enter into a
regularly scheduled preventative maintenance and service contract for all
refrigeration, heating, ventilating, and air conditioning systems and equipment
within the Demised Premises during the Lease Term. If Xxxxxx fails to enter into
such a service contract reasonably acceptable to Landlord, after notice and
30-days opportunity to cure, Landlord may do so on Xxxxxx's behalf and Xxxxxx
agrees to pay Landlord the cost and expense thereof, plus a reasonable service
charge, regularly upon demand.
7.04. Alterations, Additions and Improvements. Tenant shall not make any
structural alterations, additions or improvements to the Demised Premises
without the prior written consent of Landlord, which consent shall not be
unreasonably withheld and which consent shall not be withheld for any such
structural alterations, additions or improvements which cost in the aggregate no
more than $50,000 in any given lease year, Consent for non-structural
alterations, additions or improvements shall not be unreasonably withheld by
Landlord. Tenant may erect or install trade fixtures, shelves, bms. machinery,
heating, ventilating and air conditioning equipment and, provided that Tenant
complies with all applicable governmental laws, ordinances, codes, and
regulations. At the expiration or termination of this Lease, Tenant shall,
subject to the restrictions of Section 7.05 below, have the right to remove
items installed by Tenant, provided Tenant is not in default at the time of the
removal of the items, repair in a good and workmanlike manner any damage caused
by the installation or removal. Tenant shall pay for all costs incurred or
arising out of alterations, additions or improvements in or to the Demised
Premises and shall not permit any mechanic's or materialman's lien to be filed
against the Demised Premises or the Property. Upon request by Xxxxxxxx, Xxxxxx
shall deliver to Landlord proof of payment reasonably satisfactory to Landlord
of all costs incurred or arising out of any alterations, additions or
improvements.
7.05. Condition upon Termination. Upon the expiration or termination of this
Lease, Xxxxxx shall surrender the Demised Premises to Landlord broom clean and
as good a same condition as received, except for ordinary wear and tear which
Tenant is not otherwise obligated to remedy under any provision of this Lease.
Tenant shall not be obligated to repair any damage which Landlord is required to
repair under Article Eight (Damage or Destruction). In addition, Landlord may
require Tenant to remove any structural alterations, additions or improvements
(whether or not made with Landlord's consent) prior to the expiration or
termination of this Lease and to restore the Demised Premises to its prior
condition, all at Tenant's expense. All alterations, additions and improvements
which Xxxxxxxx has not required Tenant to remove shall become Landlord's
property and shall be surrendered to Landlord upon the expiration or termination
of this Lease. In no event, however, shall Tenant remove any of the following
materials or equipment without Landlord's prior written consent: (i) electrical
wiring or power panels; (ii) lighting or lighting fixtures; (iii) wall
coverings, drapes, blinds or other window coverings; (iv) carpets or other floor
coverings; (v) heating, ventilating, or air conditioning equipment; (vi) fencing
or security gates; or (vii) any other fixtures, equipment or items which, if
removed, would affect the operation or the appearance of the Property.
ARTICLE EIGHT: DAMAGE OR DESTRUCTION
8.01. Notice. If any buildings or other improvements situated on the property
are damaged or destroyed by fire, flood, windstorm, tornado or other casualty,
Tenant shall immediately give written notice of the damage or destruction to
Landlord.
8.02. Partial Damage. If the building or other improvements situated on the
Demised Premises are damaged by fire, tornado, or other casualty, but not to
such an extent that rebuilding or repairs cannot reasonably be completed within
one hundred eighty (180) days from the date Landlord receives written
notification by Tenant of the occurrence of the damage, this Lease shall not
terminate, but Landlord shall, to the extent of insurance proceeds available for
such rebuilding and restoration, proceed with reasonable diligence to rebuild or
repair the building and other improvements on the Demised Premises (other than
leasehold improvements made by Tenant or any assignee, subtenant or other
occupant of the Demised Premises) to substantially the condition in which they
existed prior to the damage. If the casualty occurs during the final eighteen
(18) months of the Lease Term, Landlord shall not be required to rebuild or
repair the damage unless Tenant exercises Tenant's renewal option (if any)
within fifteen (15) days after the date of receipt by Landlord of the
notification of the occurrence of the damage. If Tenant does not exercise its
renewal option, or if there is no remaining renewal option, Landlord may, at
Landlord's option, terminate this Lease by promptly delivering a written
termination notice to Tenant, in which event the Rent shall be abated for the
unexpired portion of the Lease Term, effective from the date of receipt by
Landlord of the written notification of the damage. To the extent the Demised
Premises cannot be occupied (in whole or in part) following the casualty, the
Rent payable under this Lease during the period in which the Demised Premises
cannot be fully occupied shall be
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8.03. Substantial or Total Destruction to the building or other improvements
situated in the Demised Premises are substantially or totally destroyed by fire,
tornado, or other casualty, and so damaged that rebuilding or repairs cannot
reasonably be completed within one hundred days from the date Landlord receives
written notification by Tenant of the occurrence of the damage either Landlord
or Tenant may terminate this Lease by promptly delivering a written termination
notice to the other party, in which event the monthly installment of Rent shall
be calculated for the unexpired portion of the Lease Term, effective from the
date of the damage or destruction, if neither party terminates this Lease shall
to the extent of insurance proceeds available for such rebuilding and
restoration proceed with reasonable diligence to rebuild and repair the building
and other improvements except that Tenant shall rebuild and repair Tenant's
fixtures and improvements in the Demised Premises). To the extent the Demised
Premises cannot be occupied in whole or in part following the casualty, the Rent
payable under this Lease during the period in which the Demised Premises cannot
be fully occupied shall be adjusted equitably. Notwithstanding the foregoing, if
Landlord elects to terminate this Lease pursuant to this Section 8.03, Tenant
may provide written notice to Landlord within ten (10) business days thereafter
of Tenant's election to rebuild the Demised Premises, in which event (i) this
Lease shall not terminate, (ii) Landlord shall rebuild the Demised Premises in
accordance with Section 8.03 as if Landlord had not elected to terminate, and
(iv) Rent payable under this Lease during the period in which the Demised
Premises cannot be fully occupied shall be adjusted equitably. If the damage or
destruction occurs during the last 18 months of the Term or of the first
Extension, Tenant may not make the foregoing election unless it first exercises
the next renewal option. Tenant may not make such election during the last 18
months of the final Extension.
ARTICLE NINE: CONDEMNATION
If, during the Lease Term or any extension thereof, all or a substantial part of
the Demised Premises are taken for any public or quasi-public use [ILLEGIBLE]
any governmental law, ordinance or regulation or by right of eminent domain, or
are conveyed to the condemning authority under threat of condemnation, this
Lease shall terminate and the monthly installments of Rent shall be abated
during the unexpired portion of the Lease Term, effective from the date of the
taking. If less than a substantial part of the Demised Premises is taken for
public or quasi-public use under any governmental law ordinance or regulation,
or by right of eminent domain, or is conveyed to the condemning authority under
threat of concentration, Landlord shall promptly, at Landlord's expense, restore
and reconstruct the buildings and improvements (other than leasehold
improvements made by Tenant or any assignee, subtenant or other occupant of the
Demised Premises) situated on the Demised Premises in order to make the same
reasonably tenantable and suitable for the use for which the Demised Premises is
leased as defined in Section 6.01. The monthly installments of Rent payable
under this Lease during the unexpired portion of the Lease Term shall be
adjusted equitably. Landlord and Tenant shall each be entitled to receive and
retain such separate awards and portions of lump sum awards as may be allocated
to their respective interests in any condemnation proceeding. The termination of
this Lease shall not affect the rights of the parties to such awards. As used
herein, the phrase "less than a substantial part of the Demised Premises" shall
mean a part of the Demised Premises that, if taken or after being restored or
reconstructed by Landlord, will not prevent Tenant from fully occupying the
Demised Premises and conducting its normal business operations therein.
ARTICLE TEN: ASSIGNMENT AND SUBLETTING
Tenant shall not, without the prior written consent of Landlord not to be
unreasonably withheld, assign this Lease or sublet the Demised Premises or any
portion thereof. Any assignment or subletting shall be expressly subject to all
terms and provisions of this Lease, including the provisions of Section 6.01
pertaining to the use of the Demised Premises. In the event of any assignment or
subletting, Cerprobe Corporation shall remain fully liable for the full
performance of all Tenants obligations under this Lease. Tenant shall not assign
its rights under this Lease or sublet the Demised Premises without first
obtaining a written agreement from the assignee or sublessee whereby the
assignee or sublessee agrees to assure the obligations of Tenant under this
Lease and to be bound by the terms of this Lease. If an event of default occurs
while the Demised Premises is assigned or sublet, Landlord may, at Landlord's
option, in addition to any other remedies provided in this Lease or by law,
collect directly from the assignee or subtenant all rents becoming due under the
terms of the assignment or subletting and apply the rent against any sums due to
Landlord under this Lease. No direct collection by Landlord from any assignee or
subtenant will release Tenant from Tenant's obligations under this Lease. The
following shall be deemed to be reasonable under Paragraph 10 of this Lease
hereunder and shall be permitted without the consent of the Landlord: (i) any
merger, consolidation or other combination of Tenant with or into another
entity, (ii) a sale, assignment, pledge, transfer, exchange or other disposition
in a single transaction or in a series of transactions of the stock of Tenant or
any entity which directly or indirectly controls Tenant, or (iii) any direct or
indirect change in control of Tenant, provided, the surviving entity in any
merger, consolidation or other combination or the purchase or other transfer of
the stock of Tenant shall assume and agree in writing to perform the obligations
of Tenant under this Lease as if it were an assignee or sublessee, and (iv) any
assignment or sublease of all or any portion of the Demised Premises to an
entity which controls, is controlled by or is under common control with Tenant.
As used herein, "control" shall mean the possession, directly or indirectly, of
the power to direct or cause the direction of the management policies of such
person or entity whether through the ownership of voting securities, or other
interests, by contract or otherwise. Cerprobe Corporation shall remain fully
liable for the full performance of all Tenant's obligations under the Lease.
ARTICLE ELEVEN: DEFAULT AND REMEDIES
11.01. Default. Each of the following events is an event of default under
this Lease:
A. Failure of Tenant to pay any installment of the Rent on the day
that it is due or any other sum payable to Landlord under this Lease on the date
that it is due and the continuance of such failure for a period of five (5) days
after Xxxxxxxx delivers written notice of the failure to Tenant. This clause
shall not be construed to permit or allow a delay in paying Rent beyond the
due date and shall not affect Landlord's right to impose a Late Charge as
permitted in Section 3.03.
B. Failure of Tenant to comply with any term, condition or covenant of
this Lease, other than the payment of Rent or other sum of money, and the
continuance of that failure for a period of thirty (30) days after Landlord
delivers written notice of the failure to Tenant; provided, if the nature of the
default is such that it cannot reasonably be cured within such thirty (30) day
period, then so long as Tenant has commenced the cure within such thirty (30)
days period and is diligently pursuing the same, the cure period shall be
extended for such additional time as is reasonably necessary to complete the
cure, up to, but not exceeding, an additional thirty (30) days after the end of
the initial thirty (30) day cure period.
C. Failure of Tenant or any guarantor of Tenant's obligations under
this Lease to pay its debts as they become due or an admission in writing of
inability to pay its debts, or the making of a general assignment for the
benefit of creditors;
D. The commencement by Tenant or any guarantor of Tenant's obligations
under this Lease of any case, proceeding or other action seeking reorganization,
arrangement, adjustment, liquidation, dissolution or composition of it or its
debts under any law relating to bankruptcy, insolvency, reorganization or relief
of debtors, or seeking appointment of a receiver, trustee, custodian or other
similar official for it or for all or any substantial part of its property;
E. The commencement of any case, proceeding or other action against
Tenant or any guarantor of Tenant's obligations under this Lease seeking to have
an order for relief entered against it as debtor, or seeking reorganization,
arrangement, adjustment, liquidation, dissolution or composition of it or its
debts under any law relating to bankruptcy, insolvency, reorganization or relief
of debtors, or seeking appointment of a receiver, trustee, custodian or other
similar official for it or for all or any substantial part of its property, and
Tenant or any guarantor: (i) fails to obtain a dismissal of such case,
proceeding, or other action within sixty (60) days of its commencement; or (ii)
converts the case from one chapter of the Federal Bankruptcy Code to another
chapter; or (iii) is the subject of an order of relief which is not fully stayed
within seven (7) business days after the entry thereof; and
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11.02. REMEDIES. Upon the occurrence of any of the events of default listed in
Section 11.01, Landlord shall have the option to pursue any one or more of the
following remedies without any [Illegible] or demand.
A. Terminate this Lease, in which event Xxxxxx shall immediately surrender
the Demised Premises to Landlord. If Tenant fails to so surrender the Demised
Premises, Landlord may, without prejudice to any other remedy contained herein
which it may have for possession of the Demised Premises or Rent in arrears,
enter upon and take possession of the Demised Premises and expel or remove
Xxxxxx and any other person who may be occupying the Demised Premises or any
part thereof, by force if necessary, without being liable for prosecution or any
claim for damages. Tenant shall pay to Landlord on demand the amount of
all loss and damage which Landlord may suffer by reason of the termination,
whether through inability to re-let the Demised Premises on satisfactory terms
or otherwise.
B. Enter upon and take possession of the Demised Premises, by force if
necessary, without terminating this Lease and without being liable for
prosecution or for any claim for damages, and expel or remove Tenant and any
other person who may be occupying the Demised Premises or any part thereof.
Landlord may re-let the Demised Premises and receive the rent therefor. Xxxxxx
agrees to pay to Landlord monthly or on demand from time to time any deficiency
that may arise by reason of any such re-letting. In determining the amount of
the deficiency, the professional service fees, attorneys' fees, court costs,
remodeling expenses and other costs of re-letting shall be subtracted from the
amount of rent received under the re-letting.
C. Enter upon the Demised Premises, by force if necessary, without
terminating this Lease and without being liable for prosecution or for any
claim for damages, and do whatever Tenant is obligated to do under the terms of
this Lease. Xxxxxx agrees to pay Landlord on demand for expenses which Landlord
may incur in thus effecting compliance with Xxxxxx's obligations under this
Lease, together with interest thereon at the rate of twelve percent (12%) per
annum from the date expended until paid. Unless caused by the gross negligence
or willful misconduct of Landlord, Landlord shall not be liable for any damages
resulting to Tenant from such action, whether caused by negligence of Landlord
or otherwise.
E. In addition to the foregoing remedies, Landlord shall have the right
to change or modify the locks on the Demised Premises in the event Tenant fails
to pay the monthly installment of Rent when due. Landlord shall not be
obligated to provide another key to Tenant or allow Tenant to regain entry to
the Demises Premises unless and until Tenant pays Landlord all Rent which is
delinquent. Xxxxxx agrees that Landlord shall not be liable for any damages
resulting to the Tenant from the lockout. At such time that Landlord changes or
modifies the lock, Landlord shall post a "Notice of Change of Locks" on the
front of the Demised Premises. Such Notice shall state that:
(1) Tenant's monthly installment of Rent is delinquent, and therefore,
under authority of Section 11.02.E of Tenant's Lease, the Landlord has
exercised its contractual right to change or modify Tenant's door locks;
(2) The Notice has been posted on the Tenant's front door by a
representative of Landlord and Xxxxxx should make arrangements with the
representative to pay the delinquent installments of Rent when Xxxxxx picks up
the key; and
(3) The failure of Tenant to comply with the provisions of the Lease and
the Notice and/or tampering with or changing the door lock(s) by Tenant may
subject Tenant to legal liability.
F. No re-entry or taking possession of the Demised Premises by Landlord
shall be construed as an election to terminate this Lease, unless a written
notice of that intention is given to Tenant. Notwithstanding any such re-letting
or re-entry or taking possession, Landlord may, at any time thereafter, elect to
terminate this Lease for a previous default. Pursuit of any of the foregoing
remedies shall not preclude pursuit of any other remedies provided by law, nor
shall pursuit of any remedy provided in this Lease constitute a forfeiture or
waiver of any monthly installment of Rent due to Landlord under this Lease or of
any damages accruing to Landlord by reason of the violation of any of the terms,
provisions and covenants contained in this Lease. Failure of Landlord to declare
any default immediately upon its occurrence, or failure to enforce one or more
of Landlord's remedies, or forbearance by Landlord to enforce one or more of
Landlord's remedies upon an event of default shall not be deemed or construed to
constitute a waiver of default or waiver of any violation or breach of the terms
of this Lease. Pursuant of any one of the above remedies shall not preclude
pursuit by Landlord of any of the other remedies provided in this Lease. The
loss or damage that Landlord may suffer by reason of termination of this Lease
or the deficiency from any re-letting as provided for above shall include the
expense of repossession and any repairs or remodeling undertaken by Landlord
following possession. If Landlord terminates this Lease at any time for any
default, in addition to other Landlord's remedies, Landlord may recover from
Tenant all damages Landlord may incur by reason of the default, including the
cost of recovering the Demised Premises and the Rent then remaining unpaid.
11.03. NOTICE OF DEFAULT. Tenant shall give written notice of any failure by
Landlord to perform any of Landlord's obligations under this Lease to Landlord
and to any ground lessor, mortgagee or beneficiary under any deed of trust
encumbering the Demised Premises whose name and address have been furnished to
Tenant in writing. Landlord shall not be in default under this Lease unless
Landlord (or such ground lessor, mortgagee or beneficiary) fails to cure the
nonperformance within thirty (30) days after receipt of Tenant's notice.
However, if the nonperformance reasonably requires more than thirty (30) days
to cure, Landlord shall not be in default if the cure is commenced within the
30-day period and is thereafter diligently pursued to completion.
11.04. LIMITATION OF LANDLORD'S LIABILITY. As used in this Lease, the term
"Landlord" means only the current owner or owners of the fee title to the
Demised Premises or the leasehold estate under a ground lease of the Demised
Premises at the time in question. Each Landlord is obligated to perform the
obligations of Landlord under this Lease only during the time such Landlord
owns such interest or title. Any Landlord who transfers its title or interest
is relieved of all liability with respect to the obligations of Landlord under
this Lease accruing on or after the date of transfer, and Xxxxxx agrees to
recognize the transferee as Landlord under this Lease subject to Article 10
hereof. However, each Landlord shall deliver to its transferee the Security
Deposit held by Landlord if such Security Deposit has not then been applied
under the terms of this Lease.
Page 8
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ARTICLE TWELVE: LANDLORD'S CONTRACTUAL LIEN
In addition to the statutory Landlord's lien, Tenant hereby grants to Landlord a
security interest to secure payment of all Rent and other sums of money becoming
due under this Lease from Tenant upon all inventory, goods, wares, equipment,
fixtures, furniture and all other personal property of Tenant situated in or
upon the Demised Premises, together with the proceeds from the sale or lease
thereof. Tenant may not remove such property without the consent of Landlord
until all Rent in arrears and other sums of money then due to Landlord under
this Lease have first been paid and discharged. Upon the occurrence of an event
of default, Landlord may, in addition to any other remedies provided in this
Lease or by law, enter upon the Demised Premises and take possession of any and
all goods, wares, equipment, fixtures, furniture and other personal property of
Tenant situated on the Demised Premises without liability for trespass or
conversion and sell the property at public or private sale, with or without
having the property at the sale, after giving Tenant reasonable notice of the
time and place of any such sale. Unless otherwise required by law, notice to
Tenant of the sale shall be deemed sufficient if given in the manner prescribed
in this Lease at least ten (10) days before the time of the sale. Any public
sale made under this Article shall be deemed to have been conducted in a
commercially reasonable manner if held on the Demised Premises or where the
property is located, after the time, place and method of sale and a general
description of the types of property to be sold have been advertised in a daily
newspaper published in the county where the Demised Premises is located for five
(5) consecutive days before the date of the sale. Landlord or its assigns may
purchase at a public sale and, unless prohibited by law, at a private sale. The
proceeds from any disposition dealt with in this Article, less any and all
expenses connected with the taking of possession, holding and selling of the
property (including reasonable attorneys' fees and legal expenses), shall be
applied as a credit against the indebtedness secured by the security interest
granted herein. Any surplus shall be paid to Tenant or as otherwise required by
law, and Tenant shall promptly pay any deficiencies. The statutory lien for rent
is expressly reserved; the security interest herein granted is in addition and
supplementary thereto. Provided Tenant is not in default under any of the terms
of this Lease, upon written request by Tenant Landlord shall deliver a written
subordination of Landlord's statutory and contractual liens to any liens and
security interests securing any financing of Tenant. Landlord shall not
unreasonably withhold or delay the delivery of Landlord's written subordination.
ARTICLE THIRTEEN: PROTECTION OF LENDERS
13.01. SUBORDINATION AND ATTORNMENT. Landlord shall have the right to
subordinate this Lease to any existing future ground Lease, deed of trust or
mortgage encumbering the Demised Premises (a "mortgage") and advances made on
the security thereof and any renewals, modifications, consolidations,
replacements or extensions thereof, whenever made or recorded. Xxxxxxxx's right
to obtain such a subordination is subject to Landlord's providing Tenant with a
written Subordination, Non-disturbance and Attornment Agreement from the ground
lessor, beneficiary or mortgagee wherein Xxxxxx's right to peaceable possession
of the Demised Premises during the Lease Term shall not be disturbed if Tenant
pays the Rent and performs all of Tenant's obligations under this Lease and is
not otherwise in default, in which case Tenant shall attorn to the transferee of
or successor to Xxxxxxxx's interest in the Demised Premises and recognize the
transferee or successor as Landlord under this Lease, and further providing that
such lessor, beneficiary or mortgagee shall at all times recognize Xxxxxx's
rights under this Lease, including making insurance and condemnation proceeds
available to Landlord and/or Tenant for reconstruction or repair of the Demised
Premises after a casualty or condemnation so long as this Lease is not
terminated by Landlord or Tenant as provided in Articles 8 or 9 hereof. If any
ground lessor, beneficiary or mortgagee elects to have this Lease superior to
the lien of its ground lease, deed of trust or mortgage and gives Tenant written
notice thereof, this Lease shall be deemed superior to the ground lease, deed of
trust or mortgage whether this Lease is dated prior or subsequent to the date of
the ground lease, deed of trust or mortgage or the date of recording thereof.
13.02. SIGNING OF DOCUMENTS. Tenant shall sign and deliver any reasonable
instruments or documents necessary or appropriate to evidence any attornment or
subordination or any agreement to attorn or subordinate.
13.03. ESTOPPEL CERTIFICATES.
A. Upon Landlord's written request, Xxxxxx shall execute and deliver to
Landlord a written statement certifying (to the extent accurate); (1) whether
Tenant is an assignee or subtenant; (2) the expiration date of the Lease; (3)
the number of renewal options under the lease and the total period of time
covered by the renewal option(s); (4) that none of the terms or provisions of
the Lease have been changed since the original execution of the Lease, except as
shown on attached amendments or modifications; (5) that no default by Landlord
exists under the terms of the Lease (or if Landlord is claimed to be in default,
stating why); (6) that the Tenant has no claim against the landlord under the
Lease and has no defense or right of offset against collection of rent or other
charges accruing under the Lease; (7) the amount and date of the last payment of
Rent; (8) the amount of any security deposits and other deposits, if any; and
(9) the identity and address of any guarantor of the lease. Tenant shall deliver
the statement to Landlord within ten (10) days after Xxxxxxxx's request.
Landlord may forward any such statement to any prospective purchaser or lender
of the Demised Premises. The purchaser or lender may rely conclusively upon the
statement as true and correct.
B. If Tenant does not deliver the written statement to Landlord within the
twenty (20) day period, Landlord, and any prospective purchaser or lender, may
conclusively presume and rely upon the following facts: (1) that the terms and
provisions of this Lease have not been changed except as otherwise represented
by Landlord; (2) that this Lease has not been canceled or terminated except as
otherwise represented by Landlord; (3) that not more than one monthly
installment of Base Rent and other charges have been paid in advance; (4) there
are no claims against Landlord nor any defenses or rights of offset against
collection of Rent or other charges; and (5) that Landlord is not in default
under this Lease. In such event, Tenant shall be estopped from denying the truth
of the presumed facts.
13.04. TENANT'S FINANCIAL CONDITION. Within ten (10) days after written request
from Landlord and no more frequently than once every twelve months, Tenant shall
deliver to Landlord financial statements as are reasonably required by Landlord
in Tenant's possession to verify the net worth of Tenant, or any assignee,
subtenant, or guarantor of Tenant. In addition, Tenant shall deliver to any
lender designated by Landlord any financial statements required by the lender to
facilitate the financing or refinancing of the Demised Premises. All financial
statements shall be confidential and shall be used only for the purposes set
forth in this lease.
Page 9
20
ARTICLE FOURTEEN: ENVIRONMENTAL REPRESENTATION AND INDEMNIFICATION
14.01 Xxxxxx's Compliance with Environmental Laws. Tenant, at Tenant's
expense, shall comply with all laws, rules, orders, ordinances, directions,
regulations and requirements of Federal, State, county and municipal authorities
pertaining to Tenant's use of the Property, and with the recorded covenants,
conditions and restrictions, regardless of when they become effective, including
without limitation, all applicable Federal, State and local laws, regulations or
ordinances pertaining to air and water quality. Hazardous Materials (as defined
in Section 14.05), waste disposal, air emissions and other environmental
matters, all zoning and other land use matters, and with any direction of any
public officer or officers, pursuant to law, which impose any duty upon Landlord
or Tenant with respect to the use or occupancy of the Property.
14.02 Tenant's Indemnification. If the presence of Hazardous Materials on
the Property caused or permitted by Tenant results in contamination of the
Property or any other property, or if contamination of the Property or any other
property by Hazardous Materials otherwise occurs for which Tenant is legally
liable to Landlord for damage resulting therefrom, then Tenant shall indemnify,
defend and hold Landlord harmless from any and all claims, judgements, damages,
penalties, fines, costs, liabilities or losses (including, without limitation,
diminution in value of the Property, damages for the loss or restriction on use
of rentable or unusable space or of any amenity or appurtenance of the Property,
damages arising from any adverse impact on marketing of building space or land
area, sums paid in settlement of claims, reasonable attorneys' fees, court
costs, consultant fees and expert fees) which arise during or after the Lease
Term as a result of the contamination. This indemnification of Landlord by
Tenant includes, without limitation, costs incurred in connection with any
investigation of site conditions or any clean-up, remedial work, removal or
restoration work required by any Federal, State or local government agency
because of Hazardous Materials present in the soil or ground water on or under
the Property. Without limiting the foregoing, if the presence of any Hazardous
Materials on the Property (or any other property) caused or permitted by Tenant
results in any contamination of the Property, Tenant shall promptly take all
actions at Tenant's sole expense as are necessary to return the Property to the
condition existing prior to the introduction of any such Hazardous Materials,
provided that Landlord's approval of such actions is first obtained. The
foregoing indemnity shall survive the expiration or termination of this Lease.
14.05 Definition. For purposes of this Lease, the term "Hazardous
Materials" means any one or more pollutant, toxic substance, hazardous waste,
hazardous material, hazardous substance, solvent or oil as defined in or
pursuant to the Resource Conservation and Recovery Act, as amended, the
Comprehensive Environmental Response, Compensation and Liability Act, as
amended, the Federal Clean Water Act, as amended, or any other Federal, State
or local environmental law, regulation, ordinance, or rule, whether existing as
of the date of this Lease or subsequently enacted.
14.06 Survival. The representations and indemnities contained in this
Article 14 shall survive the expiration or termination of this Lease.
Page 10
21
ARTICLE SIXTEEN: MISCELLANEOUS
16.01. Disclosure. Xxxxxxxx and Xxxxxx understand that a real estate broker
is qualified to advise on matters concerning real estate and is not expert in
matters of law, tax, financing, surveying, hazardous materials, engineering,
construction, safety, zoning, land planning, architecture or the ADA. The
Brokers hereby advise Tenant to seek expert assistance on such matters. Brokers
do not investigate a property's compliance with building codes, governmental
ordinances, statutes and laws that relate to the use or condition of a property
and its construction, or that relate to its acquisition. If Brokers provide
names of consultants or sources for advice or assistance, Tenant acknowledges
that the Brokers do not warrant the services of the advisors or their products
and cannot warrant the suitability of property to be acquired or leased.
Furthermore, the Brokers do not warrant that the Landlord will disclose any or
all property defects, although the Brokers will disclose to Tenant any actual
knowledge possessed by Xxxxxxx regarding defects of the Demised Premises and
the Property. In this regard, Xxxxxx agrees to make all necessary and
appropriate inquiries and to use diligence in investigating the Demised
Premises and the Property before consummating this Lease. Landlord and Xxxxxx
hereby agree to indemnify, defend, and hold the Brokers harmless of and from
any and all liabilities, claims, debts, damages, costs, or expenses, including
but not limited to reasonable attorneys' fees and court costs, related to or
arising out of or in any way connected to representations concerning matters
properly the subject of advice by experts. In addition, to the extent permitted
by applicable law, the Brokers' liability for errors or omissions, negligence,
or otherwise, is limited to the return of the Fee, if any, paid to the Brokers
pursuant to this Lease.
Page 11
22
16.02. FORCE MAJEURE. If performance by Landlord or Tenant of any term,
condition or covenant in this Lease is delayed or prevented by any act of God,
strike, lockout, shortage of material or labor, restriction by any governmental
authority, civil riot or any other cause not within the control of landlord or
Tenant, the period for performance of the term, condition or covenant shall be
extended for a period equal to the period Landlord or Tenant is so delayed or
prevented.
16.03. INTERPRETATION. The captions of the Articles or Sections of this Lease
are to assist the parties in reading this Lease and are not a part of the terms
or provisions of this Lease. Tenant shall be responsible for the conduct, acts
and omissions of Tenant's agents, employees, customers, contractors, invitees,
agents, successors or others using the Demised Premises with Xxxxxx's expressed
or implied permission. Whenever required by the context of this Lease, the
singular shall include the plural and the plural shall include the singular, and
the masculine, feminine and neuter genders shall each include the other.
16.04. WAIVERS. All waivers to provisions of this Lease must be in writing and
signed by the waiving party. Landlord's delay or failure to enforce any
provisions of this Lease or its acceptance of late installments of Rent shall
not be a waiver and shall not prevent Landlord from enforcing that provision or
any other provision of this Lease in the future. No statement on a payment check
from Tenant or in a letter accompanying a payment check shall be binding on
Landlord. Landlord may, with or without notice to Tenant, negotiate, cash, or
endorse the check without being bound to the conditions of any such statement.
16.05. SEVERABILITY. A determination by a court of competent jurisdiction that
any provision of this Lease is invalid or unenforceable shall not cancel or
invalidate the remainder of that provision or this Lease, which shall remain in
full force and effect.
16.06. JOINT AND SEVERAL LIABILITY. All parties signing this Lease as Tenant
shall be jointly and severally liable for all obligations of Tenant.
16.07. AMENDMENTS OR MODIFICATIONS. This Lease is the only agreement between
the parties pertaining to the lease of the Demised Premises and no other
agreements are effective unless made a part of this Lease. All amendments to
this Lease must be in writing and signed by all parties. Any other attempted
amendment shall be void.
16.08. NOTICES. All notices and other communications required or permitted
under this Lease must be in writing and shall be deemed delivered, whether
actually received or not, on the earlier of (i) actual receipt if delivered in
person or by messenger with evidence of delivery; or (ii) receipt of an
electronic facsimile transmission ("Fax") with confirmation of delivery; or
(iii) upon deposit in the United States Mail as required below. Notices may be
transmitted by Fax to the Fax telephone numbers specified in Article One on the
first page of this Lease, if any. Notices delivered by mail must be deposited in
the U.S. Postal Service, first class postage prepaid, and properly addressed to
the intended recipient as set forth in Article One. After possession of the
Demised Premises by Xxxxxx, Xxxxxx's address for notice purposes will be the
address of the Demised Premises unless Tenant notifies Landlord in writing of a
different address to be used for that purpose. Any party may change its address
for notice by delivering written notice of its new address to all other parties
in the manner set forth above.
16.09. ATTORNEYS' FEES. If on account of any breach or default by any party to
this Lease in its obligations to any other party to this Lease becomes necessary
for a party to employ an attorney to enforce or defend any of its rights or
remedies under this Lease, the non-prevailing party agrees to pay the prevailing
party its reasonable attorneys' fees and court costs, if any, whether or not
suit is instituted in connection with the enforcement or defense.
16.10. VENUE. All obligations under this Lease shall be performed and payable
in the county in which the Property is located. The laws of the State of Texas
shall govern this Lease.
16.11. SURVIVAL. All obligations of any party to this Lease which are not
fulfilled at the expiration or the termination of this Lease shall survive such
expiration or termination as continuing obligations of the party.
16.12. BINDING EFFECT. This Lease shall inure to the benefit of, and be
binding upon, each of the parties to this Lease and their respective heirs,
representatives, successors and assigns. However, Landlord shall not have any
obligation to Tenant's successors or assigns unless the rights or interests of
the successors or assigns are acquired in accordance with the terms of this
Lease.
16.13. CONSULT AN ATTORNEY. THIS LEASE IS AN ENFORCEABLE, LEGALLY BINDING
AGREEMENT. READ IT CAREFULLY. The brokers involved in the negotiation of this
Lease cannot give you legal advice. The parties to this Lease acknowledge that
they have been advised by the Brokers to have this Lease reviewed by competent
legal counsel of their choice before signing this Lease. By executing this
Lease, Landlord and Tenant each agree to the provisions, terms, covenants and
conditions contained in this Lease.
Page 12
23
5.03 Liability Insurance. During the Lease Term, Tenant shall maintain, at
Tenant's expense, comprehensive general liability insurance (including
personal injury liability, premises/operation, property damage,
independent contractors and broad form contractual in support of the
indemnifications of Landlord by Tenant under this Lease), business
interruption insurance, contractual liability insurance, worker's
compensation and employer's liability insurance and comprehensive
catastrophe liability, all maintained with companies, on forms and in
such amounts as Landlord may, from time to time, reasonably require
and endorsed to include Landlord as an additional insured, with the
premiums being fully paid on or before the due dates, insuring
Landlord against liability arising out of the ownership, use,
occupancy, or maintenance of the Demised Premises. The initial amounts
of the insurance must be at least $1,000,000 for Each Occurrence,
$2,000,000 General Aggregate per policy year, $100,000 Property Damage
for the Demised Premises, and $10,000 Medical Expense; plus a
$5,000,000 commercial general liability umbrella; and shall be subject
to periodic increases based upon economic factors as Landlord may
determine, in Landlord's discretion, exercised in good faith. However,
the amounts of the insurance shall not limit Tenant's liability nor
relieve Tenant of any obligation under this Lease. The policies must
contain cross-liability endorsements, if applicable, and must insure
Tenant's performance of the indemnity provisions of Section 5.04. The
policies must contain a provision which prohibits cancellation or
modification of the policy except upon thirty (30) days' prior written
notice to Landlord. Tenant shall deliver a copy of the policy or
certificate (or a renewal) to Landlord prior to the Commencement Date
and prior to the expiration of the policy during the Lease Term. If
Tenant fails to maintain the policy, Landlord may elect to maintain
the insurance at Tenant's expense, which Tenant shall reimburse to
Landlord upon demand. Tenant may, at Xxxxxx's expense, maintain other
liability insurance as Tenant deems necessary.
The rental rate shall increase at 2% as follows:
1, 2001 $367,738.56 ($30,644.88 per month)
1, 2002 $375,093.33 ($31,257.78 per month)
1, 2003 $382,595.20 ($31,882.93 per month)
1, 2004 $390,247.10 ($32,520.59 per month)
1, 2005 $398,052.04 ($33,171.00 per month)
1, 2006 $406,013.00 ($33,834.42 per month)
1, 2007 $414,133.35 ($34,511.11 per month)
1, 2008 $422,416.01 ($35,201.33 per month)
1, 2009 $430,864.33 ($35,905.36 per month)
2010 SAME "
2011 SAME "
LANDLORD TENANT
Assurance Capital, Inc. Cerprobe Corporation
-------------------------------------- --------------------------------------
By [Signature]: /s/ Xxxxxx X. Xxxxxxx By [Signature]: /s/ Xxxx Xxxxxx
---------------------- ----------------------
Name: Xxxxxx X. Xxxxxxx Name: Xxxx Xxxxxx
--------------------------------- --------------------------------
Title: Title: Vice President / Facilities
-------------------------------- --------------------------------
Date of Execution: Date of Execution:
-------------------- --------------------
PRINCIPAL BROKER COOPERATING BROKER
N/A N/A
-------------------------------------- --------------------------------------
By [Signature]: By [Signature]:
---------------------- ----------------------
Name: Broker Name: Broker
--------------------------------- --------------------------------
Title: Title:
-------------------------------- --------------------------------
Copyright Notice: This form is provided for the use of members of the North
Texas Commercial Association of Realtors, Inc. Permission is hereby granted to
make limited copies of this form for use in a particular Texas real estate
transaction. Contact the NTCAR office to confirm that you are using the current
version of this form.
Page 13
24
NORTH TEXAS COMMERCIAL ASSOCIATION OF REALTORS(R)
ADDENDUM B TO LEASE
RENEWAL OPTIONS
Demised Premises/Address: 00000 Xxxxxx Xxxxx, Xxxxxx, Xxxxxx Xxxxxx, Xxxxx
A. OPTION TO EXTEND TERM. Landlord grants to Tenant two (2) option(s) (the
"Option") to extend the Lease Term for an additional term of five (5) years
each (the "Extension"), on the same terms, conditions and covenants set forth
in this Lease, except as provided below. Each Option may be exercised only by
written notice delivered to the Landlord no later than one hundred eighty (180)
days before, the expiration of the Lease Term or the preceding Extension of the
Lease Term, whichever is applicable. If Tenant fails to deliver Landlord
written notice of the exercise of an Option within the prescribed time period,
such Option and any succeeding Options shall lapse, and there shall be no
further right to extend the Lease Term. Each Option may only be exercised by
Tenant on the express condition that, at the time of the exercise, Tenant is
not in default under any of the provisions of this Lease. The foregoing Options
are personal to Tenant and may not be exercised by an assignee or subtenant
without Xxxxxxxx's written consent.
B. CALCULATION OF RENT. The Base Rent during the Extension(s) shall be
determined by one of the following methods [check one]:
[ ] 1. Consumer Price Index Adjustment. The monthly Base Rent during the
Extension shall be determined by multiplying the monthly installment of Base
Rent during the last month of the Lease Term by a fraction determined as
follows:
a. The numerator shall be the Latest Index which means either [check
one]:
[ ] (1) the Index published for the nearest calendar month preceding
the first day of the Extension, or
[ ] (2) the Index for the month of _______________ preceding the
Extension.
b. The denominator shall be the Initial Index which means either [check
one]:
[ ] (1) the Index published for the nearest calendar month preceding
the Commencement Date, or
[ ] (2) the Index for the month of _________________ preceding the
Commencement Date.
[If no blanks are filled in above, the choice (1) including the phrase, "the
nearest calendar month preceding," shall apply.]
c. The Index means the Consumer Price Index (CPI) for All Urban Consumers
(All Items) U.S. City Average (unless this box is checked [ ] in which case the
CPI for the Dallas/Fort Worth Consolidated Metropolitan Statistical Area shall
be used) published by the U.S. Department of Labor, Bureau of Labor Statistics
(Base Index of 1982-84 = 100). If the Index is discontinued or revised, the new
index or computation which replaces the Index shall be used in order to obtain
substantially the same result as would have been obtained if it had not been
discontinued or revised. If such computation would reduce the Rent for the
particular Extension, it shall be disregarded, and the Rent during the
immediately preceding period shall apply instead.
[ ] 2. FAIR MARKET RENTAL VALUE. The Base Rent during the Extension shall be
the Fair market Rental determined as follows:
a. The "Fair Market Rental" of the Demised Premises means the price that
a ready and willing tenant would pay as of the commencement of the Extension as
monthly rent to a ready and willing landlord of demised premises comparable to
the Demised Premises if the property were exposed for lease on the open market
for a reasonable period of time, and taking into account the term of the
Extension, the amount of improvements made by Tenant at its expense, the
creditworthiness of the Tenant, and all of the purposes for which the property
may be used and not just the use proposed to be made of the Demised Premises by
Xxxxxx. Upon proper written notice by Tenant to Landlord of Tenant's election
to exercise the renewal Option, Landlord shall within fifteen (15) days
thereafter notify Tenant in writing of Landlord's proposed Fair Market Rental
amount and Tenant shall thereupon notify Landlord of Tenant's acceptance or
rejection of Xxxxxxxx's proposed amount. Failure of Tenant to reject Landlord's
Fair Market Rental amount within fifteen (15) days after receipt of Landlord's
notice shall be deemed Xxxxxx's acceptance of Landlord's proposed Fair Market
Rental amount.
b. If Landlord and Tenant have not been able to agree on the Fair Market
Rental amount prior to the date the option is required to be exercised, the
rent for the Extension shall be determined as follows: Within thirty (30) days
following the exercise of the option, Landlord and Tenant shall endeavor in
good faith to agree upon a single Appraiser (defined below). If Landlord and
Xxxxxx are unable to agree upon a single Appraiser within the thirty day
period, each shall then appoint one Appraiser by written notice to the other,
given within ten (10) days after the thirty day period. Within ten (10) days
after the two Appraisers are appointed, the two Appraisers shall appoint a
third Appraiser. If either Landlord or Tenant fails to appoint its Appraiser
within the prescribed time period the single Appraiser appointed shall
determine the Fair Market Rental amount of the Demised Premises. Each party
shall bear the cost of the appraiser appointed by it and the parties shall
share equally the cost of the third appraiser. The term "Appraiser" means a
State Certified Real Estate Appraiser licensed by the State of Texas to value
commercial property.
c. The Fair Market Rental Value of the Demised Premises shall be the
average of two of the three appraisals which are closest in amount as described
below, and the third appraisal shall be disregarded. In no event shall the Rent
be reduced by reason of such computation. If the Fair Market Rental is not
determined prior to the commencement of the Extension, then Tenant shall
continue to pay to Landlord the Rent applicable to the Demised Premises
immediately prior to the Extension until the Fair Market Rental amount is
determined, and when it is determined, Tenant shall pay to Landlord within ten
(10) days after receipt of such notice the difference between the Rent actually
paid by Tenant to Landlord and the new Rent determined under this Lease.
[ ] C. FIXED RENTAL ADJUSTMENTS. The monthly Base Rent shall be increased
beginning on the following dates to these amounts:
Date: 1, 2012 Amount: Fair market value with 2% annual increases.
---------------- -------------------------------------------
Date: 1, 2017 Amount: Fair market value with 2% annual increases.
---------------- -------------------------------------------
Date: Amount:
---------------- -------------------------------------------
Date: Amount:
---------------- -------------------------------------------
Page 14
25
FIRST AMENDMENT TO COMMERCIAL CONTRACT OF SALE
This FIRST AMENDMENT TO COMMERCIAL CONTRACT OF SALE (this "Amendment") is
made as of June 6, 2000, by and between Cerprobe Corporation ("Seller"') and
Assurance Capital, Inc. ("Buyer").
WHEREAS, Seller and Buyer entered into that certain Commercial Contract of
Sale (the "Contract") for the purchase and sale of that certain real property
located in Dallas County, Texas, and commonly known as 00000 Xxxxxx Xxxxx,
Xxxxxx, Xxxxx (the "Property");
WHEREAS, the parties hereto desire to amend the Contract; and
WHEREAS all capitalized terms used and not defined herein shall have the
meanings ascribed to such terms in the Contract;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties, it is agreed:
1 . Section 19 of the Contract is hereby deleted. Seller and Xxxxx hereby
agree that the Contract is in full force and effect as of the date hereof and
that the Effective Date for all purposes shall be June 6, 2000.
2.Except as modified by this Amendment, the Contract shall remain unchanged
and in full force and effect.
3. The parties hereto may execute this Amendment in one or more identical
counterparts, all of which when taken together will constitute one and the same
instrument. Copied or telecopied signatures may be attached hereto and shall
have the same binding and legal effect as original signatures.
26
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first written above.
SELLER:
Cerprobe Corporation
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Vice President, Worldwide Facilities
BUYER:
Assurance Capital, Inc.
By:
Name:
Title:
27
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first written above.
SELLER:
Cerprobe Corporation
By:
Name:
Title:
BUYER:
Assurance Capital, Inc.
By: /s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Sec-Treasurer
28
SECOND AMENDMENT TO COMMERCIAL CONTRACT OF SALE
This SECOND AMENDMENT TO COMMERCIAL CONTRACT OF SALE (this "Amendment") is
made as of August 10, 2000, by and between Cerprobe Corporation ("Seller") and
Assurance Capital, Inc. ("Buyer").
WHEREAS, Xxxxxx and Xxxxx entered into that certain Commercial Contract of
Sale, as amended by that certain First Amendment to Commercial Contract of Sale
dated as of June 6, 2000 (collectively, the "Contract") for the purchase and
sale of that certain real property located in Dallas County, Texas, and commonly
known as 00000 Xxxxxx Xxxxx, Xxxxxx, Xxxxx (the "Property");
WHEREAS, the Contract provides that on the Closing Date, the parties shall
execute a lease agreement in the form attached as Exhibit E to the Contract (the
"Lease Form");
WHEREAS, the parties hereto desire to amend the Contract;
WHEREAS, all capitalized terms used and not defined herein shall have the
meanings ascribed to such terms in the Contract;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties, it is agreed:
1. The Lease Term set forth in Section 1.05 of the Lease Form shall be
changed from ten (10) years to twelve (12) years (each such year in the Lease
Term, a "Lease Year"). The parties acknowledge and agree that the first (1st)
Lease Year of the Lease Term shall commence on the Closing Date and shall expire
on September 30, 2001. Each Lease Year thereafter shall commence on October 1 of
such year and expire on September 30 of the following year. The Expiration Date
shall be September 30, 2012.
2. The Base Rent payable for Lease Years 11 and 12 of the Lease Term shall
be the same Base Rent payable for Lease Year 10 of the Lease Term.
3. The parties acknowledge and agree that the first Extension Option, if
applicable, shall commence on October 1, 2012 and shall expire September 30,
2017, and the second Extension Option, if applicable, shall commence on October
1, 2017 and shall expire September 30, 2022.
4. Notwithstanding the signatures of the parties appearing on the Lease
Form, no landlord/tenant relationship shall be formed between the parties
unless and until the Closing of the transaction contemplated by the Contract is
consummated, and a lease agreement in the form of the Lease Form (as amended
hereby) is executed by the parties at Closing.
5. Except as modified by this Amendment, the Contract shall remain
unchanged and in full force and effect.
1
29
6. The parties hereto may execute this Amendment in one or more identical
counterparts, all of which when taken together will constitute one and the same
instrument. Copied or telecopied signatures may be attached hereto and shall
have the same binding and legal effect as original signatures.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first written above.
SELLER:
Cerprobe Corporation
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Vice President, Worldwide Facilities
BUYER:
Assurance Capital, Inc.
By:
Name:
Title:
2
30
6. The parties hereto may execute this Amendment in one or more identical
counterparts, all of which when taken together will constitute one and the same
instrument. Copied or telecopied signatures may be attached hereto and shall
have the same binding and legal effect as original signatures.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first written above.
SELLER:
Cerprobe Corporation
By:
Name:
Title:
BUYER:
Assurance Capital, Inc.
By: /s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Sec-Treasurer
2
31
XXXXX XXXXXXX & XXXX LLP
ATTORNEYS & COUNSELORS
0000 Xxxx Xxxxxx (000) 000-0000
Suite 2200 FAX (000) 000-0000
Dallas, Texas 75201-6776 xxx.xxxxxxxxxxxx.xxx
AUSTIN - DALLAS - HOUSTON - NEW ORLEANS
August 11, 2000
Cerprobe Corporation
0000 Xxxxx Xxxxxx Xxxx.
Gilbert, Arizona 85233
Attention: Xx. Xxxx Xxxxxx
Re: Commercial Contract of Sale dated effective as of June 6, 2000, as
amended, by and between Cerprobe Corporation ("Seller") and Assurance
Capital, Inc., as assigned to SJS Xxxxxx X.X. ("Buyer")
Gentlemen:
On behalf of Buyer, we hereby request that the Closing Date be extended so
that the Closing occurs on or before Tuesday, September 12, 2000.
Please indicate your agreement to the extension of the Closing Date by
executing a copy of this letter in the space provided below and telecopying the
executed letter to Xxx Xxxxxxx at (000) 000-0000 ,to Xxxxx X. Xxxxxx at (214)
954-5502, with a copy to me at (000) 000-0000. Please also send a hard copy to
follow to my attention.
If you have any questions or comments regarding this letter, please contact
me at the number listed above.
Very truly yours,
/s/ Xxxxxxx X. Xxxx
Xxxxxxx X. Xxxx
For the firm
32
Cerprobe Corporation
August 11, 2000
Page 2
Acknowledged and Agreed this
11th day of September, 2000
CERPROBE CORPORATION
By:/s/ Xxxx X. Xxxxxx
Xxxx X. Xxxxxx
Vice President
cc: Xxx Xxxxxxx
Xxxx Xxxxxx
Xxxxxx X. Xxxxxx
Xxx Xxxxx
Xxxx Xxxxxxx
33
ASSIGNMENT OF CONTRACT OF SALE
THIS ASSIGNMENT OF CONTRACT OF SALE (the "Assignment") is dated effective
this 12th day of September 2000, by and among ASSURANCE CAPITAL, INC.
("Assignor"), and SJS XXXXXX X.X. ("Assignee").
W I T N E S S E T H:
--------------------
WHEREAS, Assignor, as Purchaser, and Cerprobe Corporation, as Seller, have
entered into that certain Commercial Contract of Sale dated effective as of June
6, 2000, (said Commercial Contract of Sale, as the same may have been amended,
the "Contract"), pursuant to which Seller has agreed to sell to Assignor and
Assignor has agreed to purchase from Seller all of Seller's right, title and
interest in that certain tract of real property located in Dallas, Dallas
County, Texas, more particularly described therein;
WHEREAS, Assignor desires to assign its right, title and interest in and to
the Contract to Assignee, as more particularly set forth herein, and. Assignee
desires to accept such assignment and is willing to assume and agree to perform
all of Assignor's obligations under the Contract.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements herein contained, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
(i) Assignor hereby GRANTS, TRANSFERS and ASSIGNS to Assignee, all of
Assignor's right, title and interest in and to the Contract and
in and to any leases, agreements, licenses, permits or approvals
entered into or obtained in the name of Assignor relating to the
property covered by the Contract ("Related Rights");
(ii) Assignee does hereby accept such assignment of the rights and
interests of Assignor under the Contract, and assumes and agrees
to keep, observe and perform all of the duties, liabilities and
obligations of Assignor under the Contract and the Related
Rights;
(iii) The Contract is hereby ratified and confirmed and shall remain
in full force and effect as originally written. Any capitalized
terms used herein which are not otherwise defined herein shall
have the meaning ascribed to them in the Contract.
REMAINDER OF THIS PAGE
LEFT BLANK INTENTIONALLY
34
EXECUTED as of the day and year first above written.
ASSIGNOR:
ASSURANCE CAPITAL, INC.
By: /s/ Xxxxx X.X. Xxxxxxx
Name: Xxxxx X.X. Xxxxxxx
Title:Secretary / Treasurer
ASSIGNEE:
SJS XXXXXX X.X., a Texas limited partnership
BY.: SJS XXXXXX XX LLC, a Texas
limited liability company, its general
partner
By: /s/ Xxxxx X.X. Xxxxxxx
Name: Xxxxx X.X. Xxxxxxx
Title: Vice President
SIGNATURE PAGE TO
ASSIGNMENT OF CONTRACT OF SALE
35
SPECIAL WARRANTY DEED
STATE OF TEXAS Section
Section KNOW ALL MEN BY THESE PRESENTS THAT:
COUNTY OF DALLAS Section
CERPROBE CORPORATION, a Delaware corporation (hereinafter called
"Grantor"), for and in consideration of the sum of TEN AND NO/100 Dollars
($10.00) and other good and valuable consideration in hand paid by SJS XXXXXX,
X.X. (hereinafter called "Grantee"), whose mailing address is 0000 Xxxxx
Xxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx, 00000, the receipt and sufficiency of which
are hereby acknowledged, has GRANTED, SOLD AND CONVEYED and by these presents
does XXXXX, SELL AND CONVEY unto Grantee that certain real property situated in
Dallas County, Texas and more particularly described on Exhibit A attached
hereto and made a part hereof for all purposes, together with all improvements,
structures and fixtures located thereon, and all rights, titles, privileges,
hereditaments, easements, licenses, rights-of-way, appurtenances and interests
of Grantor appurtenant thereto (all of the above-described properties being
hereinafter collectively referred to as the "Property"). This conveyance is made
and accepted subject to (a) general real estate taxes on the Property for the
current year which Grantee assumes and agrees to pay, (b) zoning laws and
regulations and ordinances of municipal and other governmental authorities, if
any, affecting the Property, and (c) the matters set forth on Exhibit B attached
hereto and made a part hereof for all purposes (all of the foregoing being
hereinafter collectively referred to as the "Permitted Encumbrances").
For the same consideration, Grantor has GRANTED, BARGAINED, SOLD and
CONVEYED, and by these presents does GRANT, BARGAIN, SELL and CONVEY unto
Grantee, without warranty, express or implied, all interest of Grantor, if any,
in (i) strips and gores, if any, between the Property and any abutting
properties, whether owned or claimed by deed, limitations, or otherwise, and
whether located inside or outside the Property; and (ii) any land lying in or
under the bed of any creek, stream, or waterway or any highway, avenue, street,
road, alley, easement, right-of-way or sidewalk, open or proposed, in, or
across, abutting or adjacent to the Property.
TO HAVE AND TO HOLD the Property, together with all and singular the rights
and appurtenances thereto in any wise belonging unto Grantee, its successors
and assigns forever and subject to the Permitted Encumbrances, Grantor does
hereby bind itself, its successors and assigns, to WARRANT AND FOREVER DEFEND
all and singular the Property unto Grantee, its successors and assigns, against
every person whomsoever lawfully claiming or to claim the same or any part
thereof, by, through or under Grantor, but not otherwise, subject to the
Permitted Encumbrances.
Except as otherwise provided in that certain Commercial Contract of Sale
dated as of June 6, 2000 by and between Grantor and Assurance Capital, Inc. as
assigned to Grantee, pertaining to the sale of the property, and except as
otherwise provided herein, the sale of the Property is made by Grantor on an
"AS-IS, WHERE-IS AND WITH ALL FAULTS" basis.
36
EXECUTED this 7th day of September, 2000, to be effective for all purposes
as of the 12 day of September, 2000.
GRANTOR:
CERPROBE CORPORATION, a Delaware corporation
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: VP Worldwide Facilities
STATE OF ARIZONA Section
Section
COUNTY OF MARICOPA Section
This instrument was acknowledged before me on this 7th day of September,
2000, by Xxxx X. Xxxxxx, VP Worldwide Facilities of Cerprobe Corporation, known
to me to be the person whose name is subscribed to the foregoing instrument,
and acknowledged to me that he executed the same for the purposes and
consideration therein expressed, in the capacity therein stated and as the act
and deed of said corporation
/s/ Xxxxx X. Back
Notary Public, State of Arizona
[NOTARY STAMP]
My commission expires: Xxxxx X. Back
Printed Name of Notary Public
7-14-01
XXXXXXX'S ADDRESS:
SJS Xxxxxx, X.X.
0000 Xxxxx Xxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000 AFTER RECORDING
PLEASE RETURN TO:
ALLEGIANCE TITLE COMPANY
0000 XxXXXXXX XXXXXX, XXXXX 0000
XXXXXX, XXXXX 00000
37
EXHIBIT A
DESCRIPTION OF REAL PROPERTY
BEING a 3.7569 acre tract of land situated in the X. X. XXXXXXX SURVEY,
ABSTRACT NO. 329, Dallas County, Texas and being all of Lot 2B, Block B/8053,
Xxxxxxx-Gateway Addition, an addition to the City of Dallas, Texas as recorded
in Volume 94145, Page 1467, Deed Records, Dallas County, Texas and being more
particularly described as follows:
BEGINNING at a 5/8" iron rod found for corner in the westerly right-of-way line
of Xxxxxx Drive (a 60 foot R.O.W.) and being the northeast corner of said Lot 2B
and also being in the center of a 60 foot wide drainage easement;
THENCE S 00 deg. 17 min. 23 sec. W, along the westerly right-of-way line of said
Xxxxxx Drive, a distance of 427.66 feet to a 1/2" iron rod found for corner
being the southeast corner of Lot 2B and also being the northeast corner of Lot
2A of said Block B/8053;
THENCE N 89 deg. 42 min. 37 sec. W, along the north line of said Lot 2A, a
distance of 486.64 feet to a 5/8" iron rod found for corner and being the
southwest corner of said Lot 2B and also being the northwest corner of said Lot
2A;
THENCE N 01 deg. 22 min. 28 sec. E, along the west line of said Lot 2B, a
distance of 291.06 feet to a 1/2" iron rod set for corner, being the northwest
corner of said Lot 2B and also being in the center of said 60 foot wide drainage
easement;
THENCE S 88 deg. 37 min. 32 sec. E, along the north line of said Lot 2B and
along the center of said 60 foot wide drainage easement, a distance of 158.19
feet to a 1/2" iron rod set for corner and being at the beginning of a curve to
the left having a central angle of 51 deg. 51 min. 22 sec., a radius of 190.00
feet and a chord which bears N 65 deg. 26 min. 47 sec. E, a distance of 166.15
feet;
THENCE northeasterly, along the center of said 60 foot wide drainage easement
and along said curve, a distance of 171.96 feet to a 1/2" iron rod set for
corner and being a point of reverse curve having a central angle of 50 deg. 46
min. 17 sec. a radius of 190.00 feet and a chord which bears N 64 deg. 54 min.
14 sec. E, a distance of 162.91 feet;
THENCE northeasterly, along the center of said 60 foot wide drainage easement
and along said curve, a distance of 168.36 feet to a 1/2" iron rod set for
corner at the end of said curve;
THENCE S 89 deg. 42 min. 37 sec. E, continuing along the center of said 60 foot
wide drainage easement and the north line of said Lot 2B, a distance of 25.01
feet to the POINT OF BEGINNING and containing 163,652 sq. ft. or 3.7569 acres of
land.
38
EXHIBIT B
PERMITTED ENCUMBRANCES
The following restrictive covenants of record
Volume 94172, Page 6280, Deed Records, Dallas County, Texas
All of the oil, gas and other minerals and all other elements not considered a
part of the surface estate are excepted herefrom, not insured herein nor
guaranteed hereunder, all having been reserved in instrument recorded in Volume
94172, Page 6280, Deed Records, Dallas County, Texas.
Thirty foot drainage easement over the North line of subject property, as shown
on plat recorded in Volume 94145, Page 1467, Map Records, Dallas County, Texas,
and as shown on survey dated June 20, 2000, prepared by Xxxxxx X. Xxxx,
Registered Professional Land Surveyor #4813.
Variable width water, sanitary sewer and telephone easement over the East line
of subject property, as shown on plat recorded in Volume 94145, Page 1467, Map
Records, Dallas County, Texas, and as shown on survey dated June 20, 2000,
prepared by Xxxxxx X. Xxxx, Registered Professional Land Surveyor #4813.
39
BILL OF SALE
THE STATE OF TEXAS Section
Section
COUNTY OF DALLAS Section
THAT CERPROBE CORPORATION, a Delaware corporation ("Seller"), for and in
consideration of the sum of Ten and No/100 Dollars ($10.00) and other good and
valuable consideration to Seller in hand paid by SJS XXXXXX, X.X. ("Buyer") the
receipt of which is hereby acknowledged, has Bargained, Sold, Delivered and
Assigned, and by these presents does Bargain, Sell, Deliver and Assign, unto
Buyer all fixtures and articles of tangible personal property owned by Seller
which are situated in the improvements constructed on that certain tract of land
situated in Dallas County, Texas, said tract of land being described on Exhibit
A, attached hereto and made a part hereof for all purposes (the "Building"),
including the personal property described on Exhibit B attached hereto and made
a part hereof, but excluding Seller's trade fixtures or personal property used
in connection with Seller's business and/or manufacturing processes at the
Building (all such fixtures and articles of tangible personal property conveyed
herein being referred to as the "Property").
Except as otherwise provided in that certain Commercial Contract of Sale
dated as of June 6, 2000 by and between Seller and Assurance Capital, Inc., as
assigned to Buyer, pertaining to the sale of the Property, and except as
otherwise provided herein, the sale of the Property is made by Seller on an
"AS-IS, WHERE-IS AND WITH ALL FAULTS" basis.
EXECUTED this 7th day of September, 2000, to be effective on the 12 day
of September, 2000.
CERPROBE CORPORATION, a Delaware
corporation
By: /s/Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: VP Worldwide Facilities
40
EXHIBIT A
DESCRIPTION OF REAL PROPERTY
BEING a 3.7569 acre tract of land situated in the X. X. XXXXXXX SURVEY, ABSTRACT
NO. 329, Dallas County, Texas and being all of Lot 2B, Block B/8053,
Xxxxxxx-Gateway Addition, an addition to the City of Dallas, Texas as recorded
in Volume 94145, Page 1467, Deed Records, Dallas County, Texas and being more
particularly described as follows:
BEGINNING at a 5/8" iron rod found for corner in the westerly right-of-way line
of Xxxxxx Drive (a 60' R.O.W.) and being the northeast corner of said Lot 2B and
also being in the center of a 60 foot wide drainage easement;
THENCE S 00 deg. 17 min. 23 sec. W, along the westerly right-of-way line of said
Xxxxxx Drive, a distance of 427.66 feet to a 1/2" iron rod found for corner
being the southeast corner of Lot 2B and also being the northeast corner of Lot
2A of said Block B/8053;
THENCE N 89 deg. 42 min. 37 sec. W, along the north line of said Lot 2A, a
distance of 486.64 feet to a 5/8' iron rod found for corner and being the
southwest corner of said Lot 2B and also being the northwest corner of said Lot
2A;
THENCE N 01 deg. 22 min. 28 sec. E, along the west line of said Lot 2B, a
distance of 291.06 feet to a 1/2" iron rod set for corner, being the northwest
corner of said Lot 2B and also being in the center of said 60 foot wide drainage
easement;
THENCE S 88 deg. 37 min. 32 sec. E, along the north line of said Lot 2B and
along the center of said 60 foot wide drainage easement, a distance of 158.19
feet to a 1/2" iron rod set for corner and being at the beginning of a curve to
the left having a central angle of 51 deg. 51 min. 22 sec., a radius of 190.00
feet and a chord which bears N 65 deg. 26 min. 47 sec. E, a distance of 166.15
feet;
THENCE northeasterly, along the center of said 60 foot wide drainage easement
and along said curve, a distance of 171.96 feet to a 1/2" iron rod set for
corner and being a point of reverse curve having a central angle of 50 deg. 46
min. 17 sec. a radius of 190.00 feet and a chord which bears N 64 deg. 54 min.
14 sec. E, a distance of 162.91 feet;
THENCE northeasterly, along the center of said 60 foot wide drainage easement
and along said curve, a distance of 168.36 feet to a 1/2" iron rod set for
corner at the end of said curve;
THENCE S 89 deg. 42 min. 37 sec. E, continuing along the center of said 60 foot
wide drainage easement and the north line of said Lot 2B, a distance of 25.01
feet to the POINT OF BEGINNING and containing 163,652 sq. ft. or 3.7569 acres of
land.
41
All fixtures and articles of tangible personal property on the Property and
owned by Seller, including but not limited to:
1. Lighting fixtures, sips, barriers, decorative accessories attached to the
Building, security equipment, traffic control, devices and similar
equipment;
2. Refrigeration, heating, ventilating and air conditioning units and
equipment;
3. Electronic security equipment and remote transmitter devices;
4. Tools, equipment, parts and supplies used only for the maintenance of the
Property; i.e., hoses, ladders, mowers and scaffolds;
5. Furnishings and decorations situated in common areas: i.e., rugs, artwork,
lamps, furniture, planters and trash containers;
6. Operating manuals, service instructions and all records pertaining to the
installation, operation, maintenance and repair of equipment and fixtures
whether listed above as items of personal property or affixed as part of
the real property;
7. Licenses and permits related to the ownership (as opposed to the use and
occupancy) of the real property, plans and specifications, as-built
drawings, shop drawings, warranties, guarantees, and any other agreements
relating to the ownership (as opposed to the use and occupancy) of the
Property or any part thereof, if available.
