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EXHIBIT 2.7
FORM OF REAL ESTATE MATTERS AGREEMENT
between
EATON CORPORATION
and
AXCELIS TECHNOLOGIES, INC.
dated
June ____, 2000
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TABLE OF CONTENTS
PAGE
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ARTICLE I PROPERTY.............................................................................1
SECTION 1.1 LEASED PROPERTY......................................................1
SECTION 1.2 SHARED PROPERTY......................................................1
SECTION 1.3 OBTAINING THE CONSENTS TO ASSIGNMENT.................................2
SECTION 1.4 OCCUPATION BY AXCELIS................................................3
SECTION 1.5 OBLIGATION TO COMPLETE...............................................4
SECTION 1.6 FORM OF TRANSFER.....................................................4
SECTION 1.7 CASUALTY; LEASE TERMINATION..........................................4
SECTION 1.8 TENANT'S FIXTURES AND FITTINGS.......................................5
SECTION 1.9 COSTS................................................................5
SECTION 1.10 FEE PROPERTY.........................................................5
ARTICLE II MISCELLANEOUS.......................................................................5
SECTION 2.1 LIMITATION OF LIABILITY..............................................5
SECTION 2.2 GOVERNING LAW........................................................5
SECTION 2.3 TERMINATION..........................................................6
SECTION 2.4 NOTICES..............................................................6
SECTION 2.5 COUNTERPARTS.........................................................6
SECTION 2.6 BINDING EFFECT; ASSIGNMENT...........................................6
SECTION 2.7 SEVERABILITY.........................................................7
SECTION 2.8 FAILURE OR INDULGENCE NOT WAIVER; REMEDIES CUMULATIVE................7
SECTION 2.9 ENTIRE AGREEMENT; AMENDMENT..........................................7
SECTION 2.10 AUTHORITY............................................................7
SECTION 2.11 INTERPRETATION.......................................................8
ARTICLE III DEFINITIONS........................................................................8
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FORM OF REAL ESTATE MATTERS AGREEMENT
This Real Estate Matters Agreement (this "AGREEMENT") is made and
entered into on June ___, 2000 by and between Eaton Corporation, an Ohio
corporation ("EATON"), and Axcelis Technologies, Inc., a Delaware corporation
("AXCELIS"), to be effective on the Separation Date as defined in the Separation
Agreement (as defined below). Capitalized terms used herein and not otherwise
defined in Article III or elsewhere herein shall have the meanings ascribed to
such terms in the Separation Agreement.
RECITALS
WHEREAS, Eaton has transferred or will transfer to Axcelis effective as
of the Separation Date, substantially all of the business and assets of the
Axcelis Business owned by Eaton in accordance with the Master Separation and
Distribution Agreement dated as of June ___, 2000 between Eaton and Axcelis (the
"SEPARATION AGREEMENT"), and
WHEREAS, the parties desire to set forth certain agreements regarding
real estate matters.
NOW, THEREFORE, in consideration of the foregoing and the covenants and
agreements set forth below, Eaton and Axcelis, intending to be legally bound,
hereby agree as follows:
ARTICLE I
PROPERTY
SECTION 1.1 LEASED PROPERTY
Eaton shall assign or cause its applicable Subsidiary to assign, and
Axcelis shall accept and assume, or cause its applicable Subsidiary to accept
and assume, Eaton's or its Subsidiary's interest in the Leased Properties (as
hereinafter defined), subject to the other provisions of this Agreement and (to
the extent not inconsistent with the provisions of this Agreement) the terms of
the Separation Agreement and the other Ancillary Agreements. Such assignment
shall be completed on the Separation Date, except as provided otherwise in this
Agreement.
SECTION 1.2 SHARED PROPERTY
Eaton shall grant or cause its applicable Subsidiary to grant to
Axcelis or its applicable Subsidiary a license to occupy those parts of the
facility located in 3 Tai Seng Drive, #03-00 Marconi Building, Singapore 535216
(the "SHARED PROPERTY") and Axcelis shall accept or cause its applicable
Subsidiary to accept the same, as provided in a license agreement to be entered
into by the relevant parties prior to or on the Separation Date and subject to
the other provisions of this Agreement and (to the extent not inconsistent with
the provisions of this Agreement) the terms of the Separation Agreement and the
other Ancillary Agreements. Such license shall be effective on the Separation
Date.
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SECTION 1.3 OBTAINING THE CONSENTS TO ASSIGNMENT
(a) Eaton confirms that, with respect to each Leased Property, an
application has been made or will be made by the Separation Date to the Landlord
for a Consent to Assignment, if required, and a Release.
(b) Eaton will use its reasonable commercial efforts to obtain the
Consent to Assignment as to each Relevant Leased Property, but Eaton shall not
be required to commence judicial proceedings for a declaration that a Consent to
Assignment has been unreasonably withheld or delayed, nor shall Eaton be
required to pay any consideration in excess of that required by the Relevant
Lease. Axcelis shall cooperate as reasonably requested by Eaton to obtain the
Consents to Assignment and the Releases. Axcelis and Eaton will promptly satisfy
or cause their applicable Subsidiaries to satisfy the lawful requirements of the
Landlord.
(c) Axcelis will take or cause its applicable Subsidiary to take all
steps to assist Eaton in obtaining the Consent to Assignment, if required, and
the Release as to each Leased Property, including, without limitation:
(i) if properly required by the Landlord, entering into
an agreement with the relevant Landlord to observe and perform the tenant's
obligations contained in the Relevant Lease throughout the remainder of the term
of the Relevant Lease, subject to any statutory limitations of such liability;
(ii) if properly required by the Landlord, providing a
guarantee, surety or other security (including, without limitation, a security
deposit) for the obligations of Axcelis or its applicable Subsidiary as tenant
under the Relevant Lease, and otherwise taking all steps which are reasonably
necessary and which Axcelis or its applicable Subsidiary is reasonably capable
of doing to meet the lawful requirements of the Landlord so as to ensure that
the Lease Consents to Assignment are obtained; and
(iii) using all reasonable commercial efforts to assist
Eaton in obtaining the Release from the Landlord, and, if required, offering the
same or equivalent security (including, without limitation, a security deposit)
to the Landlord as that formerly provided by Eaton in order to obtain the
Release.
Notwithstanding the foregoing, (1) except with respect to guarantees, sureties
or other security referenced in Section 1.3(c)(iii) above, Axcelis shall not be
required to obtain a release of any obligation entered into by Eaton or its
Subsidiary with any Landlord or other third party with respect to any Property
and (2) Axcelis shall not communicate directly or permit its applicable
Subsidiary to communicate directly with any of the Landlords unless so requested
by Eaton or unless Axcelis can show Eaton reasonable grounds for doing so.
(d) If, with respect to any Leased Properties, Eaton and Axcelis are
unable to obtain a Release from the Landlord, Axcelis shall indemnify, defend,
protect and hold harmless Eaton and its Subsidiary from and after the Separation
Date against any and all losses, costs, claims, damages, or liabilities incurred
by Eaton or its Subsidiary in regard to the Leased Property.
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SECTION 1.4 OCCUPATION BY AXCELIS
(a) Subject to compliance with Section 1.4(b) below, in the event that
the Actual Completion Date for any Leased Property does not occur prior to or on
the Separation Date, Axcelis or its applicable Subsidiary shall, commencing on
the Separation Date, be entitled to occupy the relevant Property as a licensee
upon the terms and conditions contained in Eaton's Lease. Such license shall not
be revocable prior to the Actual Completion Date unless an enforcement action or
forfeiture by the relevant Landlord due to Axcelis' or its applicable
Subsidiary's occupation of the Property constituting a breach of Eaton's Lease
(a "LANDLORD ACTION") cannot, in the reasonable opinion of Eaton, be avoided
other than by requiring Axcelis or its applicable Subsidiary to immediately
vacate the relevant Property, in which case Eaton may by notice to Axcelis
immediately require Axcelis or its applicable Subsidiary to vacate the relevant
Property. Axcelis will be responsible for all costs, expenses and liabilities
incurred by Eaton or its applicable Subsidiary as a consequence of such
occupation; provided that Eaton may consent to Axcelis' continuing occupancy of
the relevant Property notwithstanding a threatened or pending Landlord Action,
in which event Axcelis shall be obligated as provided in Section 1.4(b) hereof
and shall indemnify, defend, protect and hold harmless Eaton and its applicable
Subsidiary from and against any and all losses, costs, claims, damages and
liabilities arising in connection with any Landlord Action. Neither Axcelis nor
its applicable Subsidiary shall be entitled to make any claim or demand against,
or obtain reimbursement from, Eaton or its applicable Subsidiary with respect to
any costs, losses, claims, liabilities or damages incurred by Axcelis or its
applicable Subsidiary as a consequence of being obliged to vacate the Property
or in obtaining alternative premises, including, without limitation, any
enforcement action which a Landlord may take against Axcelis or its applicable
Subsidiary.
(b) In the event that the Actual Completion Date for any Leased
Property does not occur by the Separation Date, whether or not Axcelis or its
applicable Subsidiary occupies a Property as licensee as provided in Section
1.4(a) above, Axcelis shall, effective as of the Separation Date, (i) pay or
cause its applicable Subsidiary to pay Eaton all rents, service charges,
insurance premiums and other sums payable by Eaton or its applicable Subsidiary
under any Relevant Lease, (ii) observe or cause its applicable Subsidiary to
observe the tenant's covenants, obligations and conditions contained in Eaton's
Lease and (iii) indemnify, defend, protect and hold harmless Eaton and its
applicable Subsidiary from and against all losses, costs, claims, damages and
liabilities arising on account of any breach thereof by Axcelis or its
applicable Subsidiary.
(c) Eaton shall supply promptly to Axcelis copies of all invoices,
demands, notices and other communications received by Eaton or its applicable
Subsidiaries or agents in connection with any of the matters for which Axcelis
or its applicable Subsidiaries may be liable to make any payment or perform any
obligation pursuant to Section 1.4 (a) or (b), and shall, at Axcelis' cost, take
any steps and pass on any objections which Axcelis or its applicable
Subsidiaries may have in connection with any such matters. Axcelis shall
promptly supply to Eaton any notices, demands, invoices and other communications
received by Axcelis or its applicable Subsidiaries or agents from any Landlord
while Axcelis or any of its applicable Subsidiaries occupies any Property
without the relevant Consent to Assignment.
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SECTION 1.5 OBLIGATION TO COMPLETE
(a) If, with respect to any Relevant Leased Property, at any time the
relevant Consent to Assignment is formally and unconditionally refused in
writing, Eaton shall use its reasonable commercial efforts to obtain the
relevant Landlord's Consent to Sublease all of the Relevant Leased Property to
Axcelis or its applicable Subsidiary for the remainder of Eaton's Lease term
less three (3) days at a rent equal to the rent from time to time under Eaton's
Lease, but otherwise on substantially the same terms and conditions as Eaton's
Lease. Until such time as the relevant Consent to Sublease is obtained and a
sublease is completed, the provisions of Section 1.4 will apply. On the grant of
the Consent to Sublease required to sublease the Relevant Leased Property, Eaton
shall sublease or cause its applicable Subsidiary to sublease to Axcelis or its
applicable Subsidiary the Relevant Leased Property which sublease shall be for
the remainder of Eaton's lease term less three (3) days at the rent set forth in
Eaton's Lease and otherwise on the terms of Eaton's Lease, and Axcelis or its
applicable Subsidiary will indemnify, defend, protect and hold harmless Eaton or
its applicable Subsidiary from any and all losses, costs, claims, damages and
liabilities arising under the Relevant Lease, including without limitation,
relating to the condition of the relevant Property at the termination of the
Relevant Lease term.
(b) If the Consent to Sublease is formally and unconditionally refused
in writing, Eaton may elect by written notice to Axcelis to require Axcelis or
its applicable Subsidiary to vacate the Relevant Leased Property immediately or
by such other date as may be specified in the notice served by Eaton (the
"NOTICE DATE"), in which case Axcelis shall vacate or cause its applicable
Subsidiary to vacate the Relevant Leased Property on the Notice Date but shall
indemnify Eaton and its applicable Subsidiary from and against any and all
costs, claims, losses, liabilities and damages arising from the Relevant Leased
Property. Neither Axcelis nor its applicable Subsidiary shall be entitled to
make any claim or demand against or obtain reimbursement from Eaton or its
applicable Subsidiary with respect to any costs, losses, claims, liabilities or
damages incurred by Axcelis or its applicable Subsidiary as a consequence of
being obliged to vacate the Relevant Leased Property or obtaining alternative
premises, including, without limitation, any enforcement action which a Landlord
may take against Axcelis or its applicable Subsidiary. Alternatively, Eaton may
consent to the continued occupancy of the Relevant Leased Property without the
Landlord's consent, in which event Axcelis shall be obligated as provided in
Section 1.4(b) hereof and shall indemnify, defend, protect and hold harmless
Eaton and its applicable Subsidiary from and against any and all losses, costs,
claims, damages and liabilities arising in connection with any Landlord Action.
SECTION 1.6 FORM OF TRANSFER
The assignment to Axcelis or its applicable Subsidiary of each relevant
Leased Property shall be in substantially the form attached as Schedule 2. Eaton
may amend such form with respect to a particular Property to the extent deemed
reasonably necessary by Eaton.
SECTION 1.7 CASUALTY; LEASE TERMINATION
The parties hereto shall grant and accept assignments, subleases or
licenses of the Properties as described in this Agreement, regardless of any
casualty, damage or other change in the condition of the Properties. In
addition, subject the obligations of the parties in Section 5.6
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of the Separation Agreement, in the event that Eaton's Lease with respect to a
Leased Property or the Shared Property is terminated prior to the Separation
Date, (a) Eaton or its applicable Subsidiary shall not be required to assign,
sublease or license such Property, (b) Axcelis or its applicable Subsidiary
shall not be required to accept an assignment, sublease or license of such
Property and (c) neither party shall have any further liability with respect to
such Property hereunder.
SECTION 1.8 TENANT'S FIXTURES AND FITTINGS
The provisions of the Separation Agreement and the other Ancillary
Agreements shall apply to any trade fixtures and personal property located at
each Property.
SECTION 1.9 COSTS
Eaton shall pay all reasonable costs and expenses incurred in
connection with obtaining the Consents to Assignments and Consents to Sublease,
including, without limitation, Landlord's consent fees if specifically required
by the provisions of a Lease and attorneys' fees and any costs and expenses
relating to re-negotiation of Eaton's Leases.
SECTION 1.10 FEE PROPERTY
Eaton shall take, at its sole cost and expense, all actions required in
order to confirm legal title to the Fee Properties in Axcelis effective on the
Separation Date, including without limitation the payment of any realty transfer
taxes applicable to the recording of any confirmatory deeds in the relevant
local recording offices.
ARTICLE II
MISCELLANEOUS
SECTION 2.1 LIMITATION OF LIABILITY.
IN NO EVENT SHALL ANY MEMBER OF THE EATON GROUP OR THE AXCELIS
TECHNOLOGIES GROUP BE LIABLE TO ANY OTHER MEMBER OF THE EATON GROUP OR THE
AXCELIS TECHNOLOGIES GROUP FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT, INCIDENTAL
OR PUNITIVE DAMAGES OR LOST PROFITS, HOWEVER CAUSED AND ON ANY THEORY OF
LIABILITY (INCLUDING NEGLIGENCE) ARISING IN ANY WAY OUT OF THIS AGREEMENT,
WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES;
PROVIDED, HOWEVER, THAT THE FOREGOING LIMITATIONS SHALL NOT LIMIT EACH PARTY'S
INDEMNIFICATION OBLIGATIONS FOR LIABILITIES TO THIRD PARTIES AS SET FORTH IN THE
INDEMNIFICATION AND INSURANCE MATTERS AGREEMENT.
SECTION 2.2 GOVERNING LAW.
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This Agreement shall be construed in accordance with, and all Disputes
hereunder shall be governed by, the local laws of the State of Ohio, excluding
its conflict of law rules. The United States District Court for the Northern
District of Ohio shall have jurisdiction and venue over, and shall be the sole
court used by the parties to initiate resolution of, all Disputes between the
parties. Notwithstanding the foregoing, the applicable Property transfers shall
be performed in accordance with the laws of the state in which the applicable
Property is located.
SECTION 2.3 TERMINATION.
Section 6.3 of the Separation Agreement is incorporated herein by
reference.
SECTION 2.4 NOTICES.
Notices, offers, instructions, consents, requests or other
communications required or permitted to be given by either party pursuant to the
terms of this Agreement shall be given in writing to the respective parties to
the following addresses:
if to Eaton:
Office of the Secretary
Eaton Corporation
Eaton Center
1111 Superior Avenue
Cleveland, Ohio 44114
Fax: (216) 479-7103
if to Axcelis:
Office of the Secretary
Axcelis Technologies, Inc.
55 Cherry Hill Drive
Beverly, Massachusetts 01915
Fax: (978) 232-4221
or to such other address as the party to whom notice is given may have
previously furnished to the other in writing as provided herein. Any notice
involving non-performance, termination, or renewal shall be sent by hand
delivery, recognized overnight courier or, within the United States, may also be
sent via certified mail, return receipt requested. All other notices may also be
sent by fax, confirmed by first class mail. All notices shall be deemed to have
been given and received on the earlier of actual delivery or three (3) days from
the date of postmark.
SECTION 2.5 COUNTERPARTS.
This Agreement, including the Schedules hereto, and the other documents
referred to herein, may be executed in counterparts, each of which shall be
deemed to be an original but all of which shall constitute one and the same
agreement.
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SECTION 2.6 BINDING EFFECT; ASSIGNMENT.
This Agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective successors and assigns, and nothing in this
Agreement, express or implied, is intended to confer upon any other Person any
rights or remedies of any nature whatsoever under or by reason of this
Agreement. This Agreement may be enforced separately by each member of the Eaton
Group and each member of the Axcelis Technologies Group. Neither party may
assign this Agreement or any rights or obligations hereunder, without the prior
written consent of the other party, and any such assignment shall be void. No
permitted assignment of any rights or obligations hereunder, in whole or in
part, by operation of law or otherwise, will release the assigning party as the
obligor, jointly and severally with the assignee, from any of its obligations
hereunder.
SECTION 2.7 SEVERABILITY.
If any term or other provision of this Agreement or the Schedules
attached hereto is determined by a court, administrative agency or arbitrator to
be invalid, illegal or incapable of being enforced by any rule of law or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible in an acceptable manner to
the end that transactions contemplated hereby are fulfilled to the fullest
extent possible.
SECTION 2.8 FAILURE OR INDULGENCE NOT WAIVER; REMEDIES
CUMULATIVE.
Any provision of this Agreement or any breach thereof may only be
waived if done specifically and in writing by the party which is entitled to the
benefits thereof. No failure or delay on the part of either party hereto in the
exercise of any right hereunder shall impair such right or be construed to be a
waiver of, or acquiescence in, any breach of any representation, warranty or
agreement herein, nor shall any single or partial exercise of any such right
preclude other or further exercise thereof or of any other right. All rights and
remedies existing under this Agreement or the Schedules attached hereto are
cumulative to, and not exclusive of, any rights or remedies otherwise available.
SECTION 2.9 ENTIRE AGREEMENT; AMENDMENT.
This Agreement, including all Schedules hereto and the documents
required for the Separation Closing, constitutes the sole and entire
understanding of the parties with respect to the matters contemplated hereby and
supersedes and renders null and void all prior negotiations, representations,
agreements and understandings (oral and written) between the parties with
respect to such matters. No change or amendment will be made to this Agreement
or the Schedules attached hereto except by an instrument in writing signed on
behalf of each of the parties.
SECTION 2.10 AUTHORITY.
Each of the parties hereto represents to the other that (a) it has the
corporate power and authority to execute, deliver and perform this Agreement,
(b) the execution, delivery and performance of this Agreement by it have been
duly authorized by all necessary corporate or
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other actions, (c) it has duly and validly executed and delivered this
Agreement, and (d) this Agreement is a legal, valid and binding obligation,
enforceable against it in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally and general equity principles.
SECTION 2.11 INTERPRETATION.
The headings contained in this Agreement or in any Schedule hereto and
in the table of contents to this Agreement are for reference purposes only and
shall not affect in any way the meaning or interpretation of this Agreement. Any
capitalized term used in any Schedule but not otherwise defined therein shall
have the meaning assigned to such term in this Agreement. When a reference is
made in this Agreement to an Article or a Section or Schedule, such reference
shall be to an Article or Section of, or a Schedule to, this Agreement unless
otherwise indicated. The language used in this Agreement will be deemed to be
the language chosen by the parties hereto to express their mutual intent and
agreement, and no rule of strict construction or canons or aids in
interpretation will be applied against either party.
ARTICLE III
DEFINITIONS
The following terms, as used herein, shall have the following meanings:
"Actual Completion Date" means, with respect to each of the Leased Properties,
the date upon which completion of the assignment, lease, license or sublease of
that Property actually takes place, including without limitation the receipt of
all required Consents to Assignment or Consents to Sublease.
"Consent to Assignment" means all consents, waivers or amendments required from
the Landlord or other third parties under the Relevant Lease to permit the
assignment by Eaton or a relevant Eaton Subsidiary of the Relevant Lease to
Axcelis or its applicable Subsidiary.
"Consent to Sublease" means all consents, waivers or amendments required from
the Landlord or other third parties under the Relevant Lease to permit a
sublease by Eaton or its relevant Subsidiary of the premises governed by the
Relevant Lease to Axcelis or its relevant Subsidiary.
"Eaton's Lease" means, in relation to each Leased Property, the lease(s) or
sublease(s) or license(s), including all amendments thereto, under which Eaton
or its applicable Subsidiary holds such Property and any other supplemental
document completed prior to the Actual Completion Date.
"Fee Properties" means those Properties identified in Section A of Schedule 1 of
this Agreement.
"Landlord" means the landlord under each of Eaton's Leases, and its successors
and assigns, and includes the holder of any other interest which is superior to
the interest of the landlord under Eaton's Lease.
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"Leased Properties" means those Properties identified in Section B of Schedule 1
of this Agreement.
"Property" means the Leased Properties, the Shared Property and the Fee
Properties.
"Release" means a written, enforceable release of any continuing obligation or
liability of Eaton or its Subsidiary under the relevant Lease, including without
limitation, the release or return of any guarantee, surety or other security
which Eaton or its Subsidiary may have previously provided to the Landlord.
"Relevant Leased Properties" means those of Eaton's Leased Properties with
respect to which the Landlord's consent is required for assignment, license or
sublease to a third party or which prohibit such assignments, licenses or
subleases.
"Relevant Leases" means those of Eaton's Leases with respect to which the
Landlord's consent is required for assignment, license or sublease to a third
party or which prohibit such assignments, licenses or subleases.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed on its behalf by its duly authorized officers or
representatives on the date first above written.
EATON CORPORATION
By:
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Name:
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Title:
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By:
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Name:
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Title:
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AXCELIS TECHNOLOGIES, INC.
By:
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Name:
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Title:
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By:
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Name:
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Title:
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[Schedules omitted. The registrant hereby agrees to furnish supplementally,
upon request, a copy of any omitted schedule to this agreement.]
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