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EXHIBIT 10.1
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this "Agreement") is made by and
between IPEC PLANAR PHOENIX, INC., a Delaware corporation formerly known as
Westech Systems, Inc. ("Seller"), and CONTINENTAL CIRCUITS CORP., a Delaware
corporation ("Purchaser").
In consideration of the mutual covenants and representations herein
contained, Seller and Purchaser agree as follows:
1.
PURCHASE AND SALE
1.1 Purchase and Sale. Subject to the terms and conditions of this
Agreement, Seller hereby agrees to sell and convey to Purchaser, and Purchaser
hereby agrees to purchase from Seller, all of the Seller's assignable and
transferable right, title and interest in and to the following described
property (herein collectively called the "Property"):
(a) Land. That certain tract of land (the "Land") located in the
City of Phoenix, Maricopa County, Arizona, being more particularly
described on Exhibit A attached hereto and made a part hereof.
(b) Easements. All easements, if any, benefiting the Land or the
Improvements (as hereinafter defined).
(c) Rights and Appurtenances. All rights and appurtenances
pertaining to the Land, including any right, title and interest of
Seller in and to adjacent streets, alleys or rights-of-way.
(d) Improvements. All improvements and related amenities known
as "Building One" (the "Improvements") in and on the Land, and having
an address of 3502 East Atlanta Avenue, Phoenix, Arizona 85040.
(e) Personal Property. All appliances, fixtures, equipment,
machinery, furniture, carpet, drapes and other personal property, if
any, owned by Seller and located on or about the Land and the
Improvements, and any transferable equipment leases (the "Personal
Property").
2.
PURCHASE PRICE
2.1 Purchase Price. The purchase price (the "Purchase Price") for the
Property shall be ONE MILLION ONE HUNDRED THOUSAND AND NO/100 DOLLARS
($1,100,000) and shall be paid in cash by Purchaser to Seller at the Closing (as
defined herein)
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by wire transfer in accordance with the following wire transfer instructions
(the "Wiring Instructions"):
First Interstate Bank of Arizona, N.A.
ABA #122100011
For the Account of Integrated Process Equipment Corp.
Account #082020328
Re: 3502 East Atlanta Avenue
Telephone notification to: John S. Hodgson (602) 517-7216
3.
EARNEST MONEY; EFFECTIVE DATE
3.1 Earnest Money. Purchaser shall deliver to the Title Company (as
defined in Section 6.1) within two (2) business days after the date this
Agreement is delivered to the Title Company by Seller, by check (subject to
collection) or by wire transfer, the amount of FIFTY THOUSAND AND NO/100 DOLLARS
($50,000.00) (which amount, together with all interest accrued thereon, if any,
is herein called the "Earnest Money") to be invested by the Title Company in an
interest-bearing account as Purchaser and Seller shall direct. Seller shall have
the option of terminating this Agreement if the full amount of Earnest Money is
not delivered to the Title Company as prescribed in this Section 3.1. Purchaser
agrees to promptly deliver or cause the Title Company to deliver written
acknowledgement by the Title Company that the executed copy of this Agreement
and the Earnest Money have been received by and are being held by the Title
Company pursuant to the terms of this Agreement. If the sale of the Property is
consummated under this Agreement, the Earnest Money shall be paid to Seller and
applied to the payment of the Purchase Price at Closing (as hereinafter
defined). If Purchaser terminates this Agreement in accordance with any right to
terminate granted to Purchaser by the terms of this Agreement, the Earnest Money
shall be immediately returned to Purchaser, and no party hereto shall have any
further obligations under this Agreement except for such obligations which by
their terms expressly survive the termination of this Agreement (the "Survival
Obligations"). Purchaser agrees to deliver to Seller copies of all Reports (as
defined in Section 4.2 hereof) at the time the notice to terminate this
Agreement is given. The obligations to deliver the Reports shall survive the
termination of this Agreement. In no event shall any Earnest Money be returned
to Purchaser hereunder until all Reports have been delivered to Seller.
3.2 Effective Date. As used herein, the term "Effective Date" means the
first date the Title Company is in receipt of both this Agreement executed by
both Purchaser and Seller (whether in counterparts or not) and the Earnest
Money.
4.
CONDITIONS TO CLOSING
4.1 Seller's Obligations. Seller shall promptly deliver to Purchaser
(at Seller's expense) a Commitment for Owner's Policy of Title Insurance (the
"Title Commitment") with respect to the Property, issued by the Title Company,
and copies of any restrictive covenants,
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easements, and other items listed as title exceptions therein. Seller's failure
to promptly deliver to Purchaser the Title Commitment shall not result in the
extension of the Closing Date and Purchaser's sole remedy therefor shall be
Purchaser's right to terminate this Agreement by delivering written notice
thereof to Seller on or before 3:00 p.m. Phoenix, Arizona time on Monday, July
22, 1996 (such date and time being the "Approval Deadline"), and receive a
return of the Earnest Money, in which event neither party shall have any
obligation hereunder except for the Survival Obligations.
4.1.1 Purchaser's Satisfaction. Prior to the Approval Deadline,
the following matters shall be conditions precedent to Purchaser's obligations
under this Contract:
(a) Purchaser's being satisfied, in Purchaser's sole discretion,
with the updated survey of the Property (the "Survey").
(b) Purchaser's being satisfied, in Purchaser's sole discretion,
with the Title Commitment, including the information reflected therein.
(c) Purchaser's being satisfied, in Purchaser's sole discretion,
with the results of its environmental investigation (the "Environmental
Report").
(d) Purchaser's being satisfied, in Purchaser's sole discretion,
with the results of its structural investigation (the "Structural
Report").
(e) Purchaser's being satisfied, in Purchaser's sole discretion,
with the review of the Property, pursuant to 36 CFR Part 800,
investigating the potential for "cultural resources" located thereupon
(the "Other Reports").
If Purchaser is not satisfied in its sole discretion as to any of the items
listed above in Sections 4.1.1(a) through 4.1.1(e) above, Purchaser may give
notice thereof to Seller before the Approval Deadline whereupon this Agreement
shall terminate, and upon such termination, Purchaser shall be entitled to the
return of the Earnest Money (subject to Purchaser's delivery of the Reports to
Seller as required by Section hereof), and neither party shall have any further
obligation hereunder except for the Survival Obligations. If Purchaser fails to
give notice to Seller before the Approval Deadline that Purchaser is not
satisfied with any of the items listed in Sections 4.1.1(a) through 4.1.1(e)
above, Purchaser shall be deemed to be satisfied with such matters and the
conditions precedent in this Section 4.1.1 shall be deemed to be satisfied.
4.1.2 Title Commitment and Survey.
(a) In the event (i) the Survey shows any easement,
right-of-way, encroachment, conflict, protrusion or other matter
affecting the Property that is unacceptable to Purchaser, or (ii) any
exceptions appear in the Title Commitment other than the standard
printed exceptions set forth in the standard form of Commitment for
Title Insurance, that are unacceptable to Purchaser, Purchaser shall,
prior to the Approval Deadline, notify Seller in writing of such facts
and the reasons therefor ("Purchaser's Objections"). Following the
Approval Deadline, except for Purchaser's Objections if same are timely
raised, Purchaser shall be deemed to have
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accepted the form and substance of the Survey, all matters shown
thereon, all exceptions to the Title Commitment and other items shown
thereon. Notwithstanding anything to the contrary contained herein,
Seller shall have no obligations to take any steps or bring any action
or proceeding or otherwise to incur any effort or expense whatsoever to
eliminate or modify any of the Purchaser's Objections. In the event
Seller is unable or unwilling to eliminate or modify Purchaser's
Objections to the reasonable satisfaction of Purchaser, Purchaser may
(as its sole and exclusive remedy) terminate this Agreement by
delivering notice thereof in writing to Seller on or before 9:00 a.m.
Phoenix, Arizona time on the Closing Date, in which event neither party
shall have any obligations hereunder other than the Survival
Obligations. Notwithstanding anything contained in this Section 4.1.2
to the contrary, in the event Purchaser does not receive all items to
be delivered to Purchaser under Section 4.1(a) and (b) in the time
frame set forth therein, Purchaser's rights shall be to terminate this
Agreement as set forth in Section 4.1, and such rights shall not be
modified or extended by the terms of this Section 4.1.2.
(b) The term "Permitted Exceptions" as used herein includes: (i)
any easement, right of way or other matter or record, any encroachment,
conflict, discrepancy, overlapping of improvements, protrusion, lien,
encumbrance, restriction, condition, covenant or other matter with
respect to the Property that an inspection of the Property would reveal
and/or is reflected or addressed on the Survey or the Title Commitment
to which Purchaser fails to timely object pursuant to Section 4.1.2(a)
of this Agreement; and (ii) any Purchaser's Objection that remains
uncured after 9:00 a.m. Phoenix, Arizona time on the Closing Date.
4.1.3 Limitations of Seller's Obligations. Notwithstanding
anything contained herein to the contrary, Seller shall have no obligation to
take any steps, bring any action or proceeding or incur any effort or expense
whatsoever to eliminate, modify or cure any objection Purchaser may have
pursuant to Section 4.1.1, Section 4.1.2 or Section 4.2.
4.2 Inspection. Purchaser may inspect the Property at any reasonable
time during business hours at any time prior to the Approval Deadline. If either
of the Environmental Report, the Structural Report or the Other Reports (but
only those reports, and no others) reveals any fact or condition unacceptable to
Purchaser, Purchaser shall notify Seller in writing prior to the Approval
Deadline of such unacceptable fact or condition and Seller shall have the right
(without any obligation to do so) to correct same by the Closing Date. If Seller
does not correct such unacceptable fact or condition by the Closing Date,
Purchaser may terminate this Agreement and neither party shall have any further
right or obligation hereunder other than the Survival Obligations. If Purchaser
does not give such notification to Seller in writing prior to the Approval
Deadline, the inspection of the Property shall be deemed satisfactory to
Purchaser and Purchaser shall be deemed to have agreed to assume all obligations
from and after the Closing Date with respect to the Contracts in accordance with
the terms of the Bill of Sale Assignment and Assumption Agreement attached
hereto as Exhibit C. All information provided by Seller to Purchaser or obtained
by Purchaser relating to the Property in the course of Purchaser's review,
including, without limitation, any environmental assessment or audit,
(collectively, the "Reports") shall be treated as confidential information by
Purchaser and Purchaser shall instruct all of its employees, agents,
representatives and contractors as to the
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confidentiality of all such information, other than, with respect to the
Environmental Report, information required to be disclosed to governmental
agencies. To the extent Purchaser disturbs the Property, Purchaser shall return
the Property as closely as possible to the condition in which it existed prior
to such disturbance. Purchaser shall obtain the written consent of Seller to the
scope and method of any investigation of Purchaser that materially alters the
condition of the Property or any environmental assessment or audit other than a
Phase I. The consent of Seller shall not be unreasonably withheld. Purchaser
shall be liable for all damage or injury to any person or property resulting
from, relating to or arising out of any inspection of the Property, whether
occasioned by the acts of Purchaser or any of its employees, agents,
representatives or contractors, and Purchaser shall indemnify and hold harmless
Seller and its respective agents, employees, officers, directors, affiliates,
attorneys and asset managers from any liability resulting therefrom. This
indemnification by Purchaser shall survive the Closing or the termination of
this Agreement, as applicable.
4.3 Purchaser's Representations and Warranties. Purchaser represents
and warrants to Seller that (a) Purchaser is a corporation, duly organized and
in good standing under the laws of the State of Delaware, is qualified to do
business in the State of Arizona and has the power to enter into this Agreement
and to execute and deliver this Agreement and to perform all duties and
obligations empowered upon it hereunder, and Purchaser has obtained all
necessary corporate authorizations required in connection with the execution,
delivery and performance contemplated by this Agreement and has obtained the
consent of all entities and parties necessary to bind Purchaser to this
Agreement, and (b) neither the execution nor the delivery of this Agreement, nor
the consummation of the purchase and sale contemplated hereby, nor the
fulfillment of or compliance with the terms and conditions of this Agreement
conflict with or will result in the breach of any of the terms, conditions, or
provisions of any agreement or instrument to which Purchaser, or any partner or
related entity or affiliate of Purchaser, is a party or by which Purchaser, any
partner or related entity or affiliate of Purchaser, or any of Purchaser's
assets is bound. Purchaser's representations and warranties set forth in this
Section 4.3 shall survive the Closing or termination of this Agreement, as
applicable.
4.4 Seller's Representations and Warranties. Seller represents and
warrants to Purchaser that (a) Seller is a corporation, duly organized and in
good standing under the laws of the State of Delaware, is qualified to do
business in the State of Arizona and Seller has the full corporate right, power
and authority, without the joinder of any other person or entity, to enter into,
execute and deliver this Agreement, and to perform all duties and obligations
imposed on Seller under this Agreement, and Seller has obtained all necessary
corporate authorizations required in connection with the execution, delivery and
performance contemplated by this Agreement and has obtained the consent of all
entities and parties necessary to bind Seller to this Agreement, and (b) neither
the execution nor the delivery of this Agreement, nor the consummation of the
purchase and sale contemplated hereby, nor the fulfillment of or compliance with
the terms and conditions of this Agreement conflict with or will result in the
breach of any of the terms, conditions, or provisions of any agreement or
instrument to which Seller is a party or by which Seller or any of Seller's
assets is bound. Seller's representations and warranties set forth in this
Section 4.4 shall survive the Closing or termination of this Agreement, as
applicable.
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5.
NO REPRESENTATIONS OR WARRANTIES BY SELLER;
ACCEPTANCE OF PROPERTY
5.1 Disclaimer. PURCHASER ACKNOWLEDGES AND AGREES THAT SELLER HAS NOT
MADE, DOES NOT MAKE AND SPECIFICALLY NEGATES AND DISCLAIMS ANY REPRESENTATIONS,
WARRANTIES (OTHER THAN THE SPECIAL WARRANTY OF TITLE AS SET OUT IN THE DEED, AS
DEFINED BELOW), PROMISES, COVENANTS, AGREEMENTS OR GUARANTIES OF ANY KIND OR
CHARACTER WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT
OR FUTURE, OF, AS TO, CONCERNING OR WITH RESPECT TO (A) THE VALUE, NATURE,
QUALITY OR CONDITION OF THE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE WATER,
SOIL AND GEOLOGY, (B) THE INCOME TO BE DERIVED FROM THE PROPERTY, (C) THE
SUITABILITY OF THE PROPERTY FOR ANY AND ALL ACTIVITIES AND USES WHICH PURCHASER
OR ANY TENANT MAY CONDUCT THEREON, (D) THE COMPLIANCE OF OR BY THE PROPERTY OR
ITS OPERATION WITH ANY LAWS, RULES, ORDINANCES OR REGULATIONS OF ANY APPLICABLE
GOVERNMENTAL AUTHORITY OR BODY, (E) THE HABITABILITY, MERCHANTABILITY,
MARKETABILITY, PROFITABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE
PROPERTY, (F) THE MANNER OR QUALITY OF THE CONSTRUCTION OR MATERIALS, IF ANY,
INCORPORATED INTO THE PROPERTY, (G) THE MANNER, QUALITY, STATE OF REPAIR OR LACK
OF REPAIR OF THE PROPERTY, OR (H) COMPLIANCE WITH ANY ENVIRONMENTAL PROTECTION,
POLLUTION OR LAND USE LAWS, RULES, REGULATIONS, ORDERS OR REQUIREMENTS,
INCLUDING WITHOUT LIMITATION THE EXISTENCE IN OR ON THE PROPERTY OF HAZARDOUS
MATERIALS (AS DEFINED BELOW) OR THE EXISTENCE, CONDITION OR LEGAL COMPLIANCE OF
ANY DRY WELLS OR (I) ANY OTHER MATTER WITH RESPECT TO THE PROPERTY.
ADDITIONALLY, NO PERSON ACTING ON BEHALF OF SELLER IS AUTHORIZED TO MAKE, AND BY
EXECUTION HEREOF OF PURCHASER ACKNOWLEDGES THAT NO PERSON HAS MADE, ANY
REPRESENTATION, AGREEMENT, STATEMENT, WARRANTY, GUARANTY OR PROMISE REGARDING
THE PROPERTY OR THE TRANSACTION CONTEMPLATED HEREIN; AND NO SUCH REPRESENTATION,
WARRANTY, AGREEMENT, GUARANTY, STATEMENT OR PROMISE IF ANY, MADE BY ANY PERSON
ACTING ON BEHALF OF SELLER SHALL BE VALID OR BINDING UPON SELLER UNLESS
EXPRESSLY SET FORTH HEREIN. PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT
HAVING BEEN GIVEN THE OPPORTUNITY TO INSPECT THE PROPERTY, PURCHASER IS RELYING
SOLELY ON ITS OWN INVESTIGATION OF THE PROPERTY AND NOT ON ANY INFORMATION
PROVIDED OR TO BE PROVIDED BY SELLER AND AGREES TO ACCEPT THE PROPERTY AT THE
CLOSING AND WAIVE ALL OBJECTIONS OR CLAIMS AGAINST SELLER (INCLUDING, BUT NOT
LIMITED TO, ANY RIGHT OR CLAIM OF CONTRIBUTION) ARISING FROM OR RELATED TO THE
PROPERTY OR TO ANY HAZARDOUS MATERIALS ON THE PROPERTY. PURCHASER FURTHER
ACKNOWLEDGES AND AGREES THAT ANY INFORMATION PROVIDED OR TO BE PROVIDED WITH
RESPECT TO THE PROPERTY WAS OBTAINED FROM A VARIETY OF SOURCES AND THAT SELLER
HAS NOT MADE ANY INDEPENDENT INVESTIGATION OR VERIFICATION OF SUCH INFORMATION
6.
CLOSING
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AND MAKES NO REPRESENTATIONS AS TO THE ACCURACY, TRUTHFULNESS OR COMPLETENESS OF
SUCH INFORMATION. SELLER IS NOT LIABLE OR BOUND IN ANY MANNER BY ANY VERBAL OR
WRITTEN STATEMENT, REPRESENTATION OR INFORMATION PERTAINING TO THE PROPERTY, OR
THE OPERATION THEREOF, FURNISHED BY ANY REAL ESTATE BROKER, CONTRACTOR, AGENT,
EMPLOYEE, SERVANT OR OTHER PERSON. PURCHASER FURTHER ACKNOWLEDGES AND AGREES
THAT TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SALE OF THE PROPERTY AS
PROVIDED FOR HEREIN IS MADE ON AN "AS IS" CONDITION AND BASIS WITH ALL FAULTS.
IT IS UNDERSTOOD AND AGREED THAT THE PURCHASE PRICE HAS BEEN ADJUSTED BY PRIOR
NEGOTIATION TO REFLECT THAT ALL OF THE PROPERTY IS SOLD BY SELLER AND PURCHASED
BY PURCHASER SUBJECT TO THE FOREGOING. THE PROVISIONS OF THIS SECTION 5 SHALL
SURVIVE THE CLOSING OR ANY TERMINATION HEREOF.
5.2 Hazardous Materials. "Hazardous Materials" shall mean any substance
which is or contains (i) any "hazardous substance" as now or hereafter defined
in Section 101(14) of the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980, as amend (42 U.S.C. Section 9601 et seq.) ("CERCLA")
or any regulations promulgated under CERCLA; (ii) any "hazardous waste" as now
or hereafter defined in the Resource Conservation and Recovery Act (42 U.S.C.
Section 6901 et seq.) ("RCRA") or regulations promulgated under RCRA; (iii) any
substance regulated by the Toxic Substances Control Act (15 U.S.C. Section 2601
et seq.); (iv) gasoline, diesel fuel, or other petroleum hydrocarbons; (v)
asbestos and asbestos containing materials, in any form, whether friable or
non-friable; (vi) polychlorinated biphenyls; (vii) radon gas; and (viii) any
additional substances or materials which are now or hereafter classified or
considered to be hazardous or toxic under Environmental Requirements (as
hereinafter defined) or the common law, or any other applicable laws relating to
the Property. Hazardous Materials shall include, without limitation, any
substance, the presence of which on the Property, (A) requires reporting,
investigation or remediation under Environmental Requirements; (B) causes or
threatens to cause a nuisance on the Property or adjacent property or poses or
threatens to pose a hazard to the health or safety of persons on the Property or
adjacent property; or (C) which, if it emanated or migrated from the Property,
could constitute a trespass.
5.3 Environmental Requirements. "Environmental Requirements" shall mean
all laws, ordinances, statutes, codes, rules, regulations, agreements,
judgments, orders, and decrees, now or hereafter enacted, promulgated, or
amended, of the United States, the states, the counties, the cities, or any
other political subdivisions in which the Property is located, and any other
political subdivision, agency or instrumentality exercising jurisdiction over
the owner of the Property, the Property, or the use of the Property, relating to
pollution, the protection or regulation of human health, natural resources, or
the environment, or the emission, discharge, release or threatened release of
pollutants, contaminants, chemicals, or industrial, toxic or hazardous
substances or waste or Hazardous Materials into the environment (including,
without limitation, ambient air, surface water, ground water or land or soil).
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6.
CLOSING
6.1 Closing. The Closing (the "Closing") shall be held at the offices
of Quarles & Brady, One East Camelback Road, Suite 400, Phoenix, Arizona 85012,
and shall be conducted by Transnation Title Insurance Company (the "Title
Company"), 4647 North 32nd Street, Suite 135, Phoenix, Arizona 85018, Attention:
Ms. Pamela Hannappel, on Thursday, August 1, 1996 (the "Closing Date"), unless
the parties mutually agree in writing upon another place, time or date.
6.2 Possession. Possession of the Property shall be delivered to
Purchaser at the Closing, subject to the Permitted Exceptions.
6.3 Proration. All income, utilities and all other operating expenses
with respect to the Property for the month in which the Closing occurs, and real
estate and personal property taxes and other assessments with respect to the
Property for the year in which the Closing occurs, shall be prorated to the date
Seller receives the Purchase Price in immediately available funds with Seller
receiving the benefits and burdens of ownership on the Closing Date.
(a) If the Closing shall occur before income from the Property
has actually been paid for the month in which the Closing occurs, the
apportionment of such income shall be upon the basis of such income
actually received by Seller. Subsequent to the Closing, if any such
income is actually received by Purchaser, all such amounts shall first
be applied to post-closing income due to Purchaser which is past due
and the balance shall be immediately paid by Purchaser to Seller.
Purchaser shall make a good faith effort and attempt to collect any
such income not apportioned at the Closing for the benefit of Seller,
however, Purchaser shall not be required to expend any funds or
institute any litigation in its collection efforts.
(b) If the Closing shall occur before the tax rate or the
assessed valuation of the Property is fixed for the then current year,
the apportionment of taxes shall be upon the basis of the tax rate for
the preceding year applied to the latest assessed valuation. Subsequent
to the Closing, when the tax rate and the assessed valuation of the
Property is fixed for the year in which the Closing occurs, the parties
agree to adjust the proration of taxes and, if necessary, to refund or
repay such sums as shall be necessary to effect such adjustment. If the
Property is not assessed as a separate parcel for tax or assessment
purposes, then such taxes and assessments attributable to the Property
shall be determined by Purchaser and Seller. If, as of the Closing, the
Property is not being treated as a separate tax parcel, then within
thirty (30) days after the Closing, Purchaser shall, at its sole cost
and expense, have the Property assessed separately for tax and
assessment purposes.
(c) If the Closing shall occur before the actual amount of
utilities and all other operating expenses with respect to the Property
for the month in which the Closing occurs are determined, the
apportionment of such utilities and other operating expenses shall be
upon the basis of an estimate by Seller of such utilities and other
operating expenses for such month. Subsequent to the Closing, when the
actual amount of such utilities and other operating expenses with
respect to the Property for the month in which the Closing occurs are
determined, the parties agree to adjust the
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proration of such utilities and other operating expenses and, if
necessary, to refund or repay such sums as shall be necessary to effect
such adjustment.
The agreements of Seller and Purchaser set forth in this Section 6.3 shall
survive the Closing.
6.4 Closing Costs. Except as otherwise expressly provided herein,
Seller shall pay, on the Closing Date, the title insurance premium for the
Owner's Policy (as defined in Section 6.5(a)), one-half (1/2) of the cost of the
updated Survey described in Section 4.1.1(a) and one-half (1/2) of any escrow
fees and other customary charges of the Title Company, and Purchaser shall pay,
on the Closing Date, all recording costs, one-half (1/2) of the cost of the
updated Survey described in Section 4.1.1(a) and one-half (1/2) of any escrow
fees and other customary charges of the Title Company. Except as otherwise
provided herein, each party shall pay its own attorneys' fees. Seller and
Purchaser have hired Quarles & Brady to document this transaction. Seller and
Purchaser shall each pay one-half (1/2) of fees of Quarles & Brady except that
as to fee of Roger K. Spencer, Esq. of Quarles & Brady shall be paid one-third
(1/3) by Seller and two-thirds (2/3) by Purchaser.
6.5 Seller's Obligations at the Closing. At the Closing, Seller shall
deliver to Purchaser the following:
(a) Title Policy. Owner's Policy of Title Insurance in the
standard form (the "Owner's Policy"), naming Purchaser as insured, in
the amount of the Purchase Price, subject to the Permitted Exceptions.
(b) Evidence of Authority. Such organizational and authorizing
documents of Seller as shall be reasonably required by the Title
Company to evidence Seller's authority to consummate the transactions
contemplated by this Agreement.
(c) Foreign Person. An affidavit of Seller certifying that
Seller is not a "foreign person," as defined in the federal Foreign
Investment in Real Property Tax Act of 1980, and the 1984 Tax Reform
Act, as amended, in the form attached to this Agreement as Exhibit E.
6.6 Purchaser's Obligations at the Closing. At the Closing, Purchaser
shall deliver to Seller the following:
(a) Purchase Price. The Purchase Price by wire transfer of
immediately available funds in accordance with the Wiring Instructions.
(b) Evidence of Authority. Such organizational and authorizing
documents of Purchaser as shall be reasonably required by Seller and/or
the Title Company authorizing Purchaser's acquisition of the Property
pursuant to this Agreement and the execution of this Agreement and any
documents to be executed by Purchaser at the Closing.
6.7 Documents to be Executed by Seller and Purchaser. At the Closing,
Seller and Purchaser shall also execute and deliver the following:
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(a) Deed. Special Warranty Deed (the "Deed") in the form
attached to this Agreement as Exhibit B.
(b) Bill of Sale, Assignment and Assumption Agreement. Bill of
Sale and Assignment and Assumption Agreement in the form attached to
this Agreement as Exhibit C.
(c) Affidavit. Affidavit of Property Value in the form attached
to this Agreement as Exhibit D.
7.
RISK OF LOSS
7.1 Condemnation. If, prior to the Closing, action is initiated to take
any of the Property by eminent domain proceedings or by deed in lieu thereof,
Purchaser may either at or prior to Closing (a) terminate this Agreement, or (b)
consummate the Closing, in which latter event all of Seller's assignable right,
title and interest in and to the award of the condemning authority shall be
assigned to Purchaser at the Closing and there shall be no reduction in the
Purchase Price.
7.2 Casualty. Except as provided in Sections 4.2 and 5.1 of this
Agreement, Seller assumes all risks and liability for damage to or injury
occurring to the Property by fire, storm, accident, or any other casualty or
cause until the Closing has been consummated. If the Property, or any part
thereof, suffers any damage equal to or in excess of $100,000 prior to the
Closing from fire or other casualty, which Seller, at its sole option, does not
elect to repair, Purchaser may either at or prior to Closing (a) terminate this
Agreement, or (b) consummate the Closing, in which latter event all of Seller's
right, title and interest in and to the proceeds of any insurance covering such
damage (less an amount equal to any expenses and costs incurred by Seller to
repair or restore the Property and any portion of such proceeds paid or to be
paid on account of the loss of rents or other income from the Property for the
period prior to and including the Closing Date, all of which shall be payable to
Seller), to the extent the amount of such insurance does not exceed the Purchase
Price, shall be assigned to Purchaser at the Closing. If the Property, or any
part thereof, suffers any damage less than $100,000 prior to the Closing,
Purchaser agrees that it will consummate the Closing and accept the assignment
of the proceeds of any insurance covering such damage plus an amount equal to
Seller's deductible under its insurance policy and there shall be no reduction
in the Purchase Price.
8.
DEFAULT
8.1 Breach by Seller. In the event that Seller shall fail to consummate
this Agreement for any reason except Purchaser's default or a termination of
this Agreement by Purchaser or Seller pursuant to a right to do so under the
provisions hereof, Purchaser, as its sole and exclusive remedy, may terminate
this Agreement and pursue Seller for actual damages; provided, however, in no
event shall Seller be liable to Purchaser for any punitive, speculative
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or consequential damages. In no event shall Purchaser be entitled to the remedy
of specific performance. The provisions of this Section 8.1 shall not limit or
affect any of Seller's indemnities that may be provided in other Sections of
this Agreement.
8.2 Breach by Purchaser. In the event that Purchaser shall fail to
consummate this Agreement for any reason except Seller's default or a
termination of this Agreement by Purchaser or Seller pursuant to a right to do
so under the provisions hereof, Seller, as its sole and exclusive remedy, may
terminate this Agreement and pursue Purchaser for actual damages; provided,
however, in no event shall Purchaser be liable to Seller for any punitive,
speculative or consequential damages. In no event shall Seller be entitled to
the remedy of specific performance. The provisions of this Section 8.2 shall not
limit or affect any of Purchaser's indemnities as provided in other Sections of
this Agreement.
9.
FUTURE OPERATIONS
9.1 Future Operations.
(a) From the date of this Agreement until the Closing or earlier
termination of this Agreement, Seller will keep and maintain the Property in
substantially its condition as of the date of this Agreement.
(b) From the Approval Deadline until the Closing or earlier termination
of this Agreement, Seller will not lease any space in the Improvements except on
terms and conditions generally accepted in like transactions and otherwise
approved in writing by Purchaser.
10.
MISCELLANEOUS
10.1 Notices. All notices, demands and requests which may be given or
which are required to be given by either party to the other, and any exercise of
a right of termination provided by this Agreement, shall be in writing and shall
be deemed effective either: (a) on the date personally delivered to the address
below, as evidenced by written receipt therefor, whether or not actually
received by the person to whom addressed; (b) on the third (3rd) business day
after being sent, by certified or registered mail, return receipt requested,
addressed to the intended recipient at the address specified below; or (c) on
the first (1st) business day after being deposited into the custody of a
nationally recognized overnight delivery service such as Federal Express
Corporation or United Parcel Service, addressed to such party at the address
specified below. For purposes of this Section 10.1, the addresses of the parties
for all notices are as follows (unless changed by similar notice in writing
given by the particular person whose address is to be changed):
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If to Seller: IPEC Planar Phoenix, Inc.
4717 East Hilton Avenue
Phoenix, Arizona 85034
Attention: John S. Hodgson
Tel: (602) 517-7216
Fax: (602) 517-6016
If to Purchaser: Continental Circuits Corp.
3502 East Roeser Road
Phoenix, Arizona 85040
Attention: Anaya Vardya
Tel: (602) 268-3461
Fax: (602) 268-8956
If to Title
Company: Transnation Title Insurance Company
4647 North 32nd Street, Suite 135
Phoenix, Arizona 85018
Attention: Pamela Hannappel
Tel: (602) 956-5568
Fax: (602) 957-2261
10.2 Real Estate Commissions. Seller shall pay to Lee & Associates
(hereinafter called "Agent" whether one or more) upon the Closing of the
transaction contemplated hereby, and not otherwise, a cash commission in the
amount agreed on in a separate listing agreement between Seller and Agent. Said
commission shall in no event be payable unless and until the transaction
contemplated hereby is closed in accordance with the terms of this Agreement; if
such transaction is not closed for any reason, including, without limitation,
failure of title or default by Seller or Purchaser or termination of this
Agreement pursuant to the terms hereof, then such commission will be deemed not
to have been earned and shall not be due or payable. Except as set forth above
with respect to Agent, neither Seller nor Purchaser has authorized any broker or
finder to act on Purchaser's behalf in connection with the sale and purchase
hereunder and neither Seller nor Purchaser has dealt with any broker or finder
purporting to act on behalf of any other party. Purchaser agrees to indemnify
and hold harmless Seller from and against any and all claims, losses, damages,
costs or expenses of any kind or character arising out of or resulting from any
agreement, arrangement or understanding alleged to have been made by Purchaser
or on Purchaser's behalf with any broker or finder in connection with this
Agreement or the transaction contemplated hereby. Seller agrees to indemnify and
hold harmless Purchaser from and against any and all claims, losses, damages,
costs or expenses of any kind or character arising out of or resulting from any
agreement, arrangement or understanding alleged to have been made by Seller or
on Seller's behalf with any broker or finder in connection with this Agreement
or the transaction contemplated hereby. Notwithstanding anything to the contrary
contained herein, this Section 10.2 shall survive the Closing or any earlier
termination of this Agreement.
10.3 Entire Agreement. This Agreement embodies the entire agreement
between the parties relative to the subject matter hereof, and there are no oral
or written agreements
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between the parties, nor any representations made by either party relative to
the subject matter hereof, which are not expressly set forth herein.
10.4 Amendment. This Agreement may be amended only by a written
instrument executed by the party or parties to be bound thereby.
10.5 Headings. The captions and headings used in this Agreement are for
convenience only and do not in any way limit, amplify, or otherwise modify the
provisions of this Agreement.
10.6 Time of Essence. Time is of the essence of this Agreement;
however, if the final date of any period which is set out in any provision of
this Agreement falls on a Saturday, Sunday or legal holiday under the laws of
the United States or the State of Arizona, then, in such event, the time of such
period shall be extended to the next day which is not a Saturday, Sunday or
legal holiday.
10.7 Governing Law. This Agreement shall be governed by the laws of the
State of Arizona and the laws of the United States pertaining to transactions in
such State.
10.8 Successors and Assigns; Assignment. This Agreement shall bind and
inure to the benefit of Seller and Purchaser and their respective heirs,
executors, administrators, personal and legal representatives, successors and
permitted assigns. Purchaser shall not assign Purchaser's rights under this
Agreement without the prior written consent of Seller, which consent may be
withheld absolutely. Any subsequent assignment may be made only with the prior
written consent of Seller. No assignment of Purchaser's rights hereunder shall
relieve Purchaser of its liabilities under this Agreement. This Agreement is
solely for the benefit of Seller and Purchaser; there are no third party
beneficiaries hereof. Any assignment of this Agreement in violation of the
foregoing provisions shall be null and void.
10.9 Invalid Provision. If any provision of this Agreement is held to
be illegal, invalid or unenforceable under present or future laws, such
provision shall be fully severable; this Agreement shall be construed and
enforced as if such illegal, invalid or unenforceable provision had never
comprised a part of this Agreement; and, the remaining provisions of this
Agreement shall remain in full force and effect and shall not be affected by
such illegal, invalid, or unenforceable provision or by its severance from this
Agreement.
10.10 Attorneys' Fees. In the event it becomes necessary for either
party hereto to file suit to enforce this Agreement or any provision contained
herein, the party prevailing in such suit shall be entitled to recover, in
addition to all other remedies or damages, as provided herein, reasonable
attorneys' fees incurred in such suit.
10.11 Multiple Counterparts. This Agreement may be executed in a number
of identical counterparts which, taken together, shall constitute collectively
one (1) agreement; in making proof of this Agreement, it shall not be necessary
to produce or account for more than one such counterpart with each party's
signature.
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14
10.12 Expiration. The execution of this Agreement by Purchaser and the
delivery hereof to Seller shall constitute an offer which shall be automatically
withdrawn, revoked and terminated unless Seller accepts the same by executing
this Agreement and delivering one fully executed counterpart hereof to the Title
Company prior to 3:00 p.m. Phoenix, Arizona time on Friday, July 12, 1996.
10.13 Exhibits. The following exhibits are attached to this Agreement
and are incorporated into this Agreement by this reference and made a part
hereof for all purposes:
(a) Exhibit A, the legal description of the Land.
(b) Exhibit B, the form of the Deed.
(c) Exhibit C, the form of the Bill of Sale, Assignment
and Assumption Agreement.
(d) Exhibit D, the form of the Affidavit of Property Value.
(e) Exhibit E, the form of Non-Foreign Affidavit.
(f) Exhibit F, the form of Taxpayer I.D. Certificate.
10.14 No Recordation. Seller and Purchaser hereby acknowledge that
neither this Agreement nor any memorandum or affidavit thereof shall be recorded
of public record in Maricopa County, Arizona or any other county. Should
Purchaser ever record or attempt to record this Agreement, or a memorandum or
affidavit thereof, or any other similar document, then, notwithstanding anything
herein to the contrary, said recordation or attempt at recordation shall
constitute a default by Purchaser hereunder, and, in addition to the other
remedies provided for herein, Seller shall have the express right to terminate
this Agreement by filing a notice of said termination in the county in which the
Land is located, in which case the Earnest Money shall be delivered to Seller.
10.15 [Intentionally Omitted.]
10.16 Jury Waiver. PURCHASER AND SELLER DO HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE THEIR RIGHT TO A TRIAL BY JURY IN RESPECT OF
ANY LITIGATION BASED HEREON, OR ARISING OUT OF, OR UNDER OR IN CONNECTION WITH
THIS AGREEMENT, THE DOCUMENTS DELIVERED BY PURCHASER AT CLOSING OR SELLER AT
CLOSING, OR ANY COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS (WHETHER
VERBAL OR WRITTEN) OR ANY ACTIONS OF EITHER PARTY ARISING OUT OF OR RELATED IN
ANY MANNER WITH THIS AGREEMENT OR THE PROPERTY (INCLUDING WITHOUT LIMITATION,
ANY ACTION TO RESCIND OR CANCEL THIS AGREEMENT AND ANY CLAIMS OR DEFENSES
ASSERTING THAT THIS AGREEMENT WAS FRAUDULENTLY INDUCED OR IS OTHERWISE VOID OR
VOIDABLE). THIS WAIVER IS A MATERIAL INDUCEMENT FOR SELLER TO ENTER INTO AND
ACCEPT THIS
14
15
AGREEMENT AND THE DOCUMENTS DELIVERED BY PURCHASER AT CLOSING AND SHALL SURVIVE
THE CLOSING OR TERMINATION OF THIS AGREEMENT.
[SIGNATURE PAGE FOLLOWS]
15
16
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the date
first above written.
PURCHASER: CONTINENTAL CIRCUITS CORP.,
a Delaware corporation
Date of execution
by Purchaser:
July 10, 1996 By:/s/ Frederick G. McNamee, III
__________________________________________________
Frederick G. McNamee, III, its Chairman of the
Board, President and Chief Executive Officer
SELLER: IPEC PLANAR PHOENIX, INC.,
a Delaware corporation formerly known
as Westech Systems, Inc.
Date of execution
by Seller:
July 10, 1996 By:/s/ John S. Hodgson
__________________________________________________
John S. Hodgson, its Vice President and Chief
Financial Officer
The undersigned Title Company hereby acknowledges receipt of the Earnest Money
and a copy of this Agreement, and agrees to hold and dispose of the Earnest
Money in accordance with the provisions of this Agreement.
TITLE COMPANY: TRANSNATION TITLE INSURANCE COMPANY,
an Arizona corporation
Date of execution
by Title Company:
July 10, 1996 By:/s/ Pamela Hannapel
__________________________________________________
Assistant Manager and Closing Officer
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EXHIBIT A
TO PURCHASE AND SALE AGREEMENT
LEGAL DESCRIPTION
The Land described the Purchase and Sale Agreement is located in
Maricopa County, Arizona, and is legally described as follows:
Lot 15, EL DORADO INDUSTRIAL PLAZA UNIT
THREE, according to Book 167 of Maps, Page
6, records of Maricopa County, EXCEPT the
East 277.19 feet thereof.
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EXHIBIT B
TO PURCHASE AND SALE AGREEMENT
SPECIAL WARRANTY DEED
When recorded return to:
Roger K. Spencer, Esq.
Quarles & Brady
One East Camelback Road, Suite 400
Phoenix, Arizona 85012-1649
SPECIAL WARRANTY DEED
STATE OF ARIZONA )
) ss.
COUNTY OF MARICOPA )
IPEC PLANAR PHOENIX, INC., a Delaware corporation formerly known as
Westech Systems, Inc., having its address at 4717 East Hilton Avenue, Phoenix,
Arizona 85034 ("Grantor"), for and in consideration of the sum of Ten and No/100
Dollars ($10.00) and other valuable consideration, the receipt and sufficiency
of which consideration are hereby acknowledged, has granted, sold, and conveyed,
and by these presents does grant, sell, and convey, unto Continental Circuits
Corp., a Delaware corporation having its principal place of business at 3502
East Roeser Road, Phoenix, Arizona 85040 ("Grantee"), all of Seller's right,
title and interest in and to all that real property situated in the County of
Maricopa, State of Arizona, and more particularly described on Exhibit A
attached hereto and made a part hereof for all purposes, together with all of
Seller's right, title and interest in all improvements now or hereafter situated
thereon, and the lessor's or landlord's interest in all space leases or
occupancy agreements covering all or any portion of such real property and the
improvements situated thereon (collectively, the "Property"), subject to all
matters of record and subject to all taxes and assessments, reservations in
patents and all easements, zoning laws, regulations and ordinances of municipal
and other governmental authorities, rights-of-way, encumbrances, liens,
covenants, conditions, restrictions, obligations and liabilities as may appear
of record, all leases, all matters which an accurate survey of the Property or
physical inspection of the Property would disclose, and all exceptions,
exclusions and limitations contained in the Title Policy issued to Grantee in
connection with this Deed (the "Permitted Exceptions").
TO HAVE AND TO HOLD the Property, together with all and singular the
rights and appurtenances belonging in any way to the Property, unto the said
Grantee, its successors and assigns forever, and Grantor binds itself and its
successors and assigns, subject to the Permitted Exceptions, to warrant and
forever defend all and singular the Property to Grantee, its
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successors and assigns against every person lawfully claiming or to claim all or
any part of the Property, by, through, or under Grantor, but not otherwise.
GRANTEE ACKNOWLEDGES AND AGREES THAT GRANTOR HAS NOT MADE, DOES NOT
MAKE AND SPECIFICALLY NEGATES AND DISCLAIMS ANY REPRESENTATIONS, WARRANTIES
(OTHER THAN THE SPECIAL WARRANTY OF TITLE AS SET OUT IN THIS DEED), PROMISES,
COVENANTS, AGREEMENTS OR GUARANTIES OF ANY KIND OR CHARACTER WHATSOEVER, WHETHER
EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT OR FUTURE, OF, AS TO,
CONCERNING OR WITH RESPECT TO (A) THE VALUE, NATURE, QUALITY OR CONDITION OF THE
PROPERTY, INCLUDING, WITHOUT LIMITATION, THE WATER, SOIL AND GEOLOGY, (B) THE
INCOME TO BE DERIVED FROM THE PROPERTY, (C) THE SUITABILITY OF THE PROPERTY FOR
ANY AND ALL ACTIVITIES AND USES WHICH GRANTEE MAY CONDUCT THEREON, (D) THE
COMPLIANCE OF OR BY THE PROPERTY OR ITS OPERATION WITH ANY LAWS, RULES,
ORDINANCES OR REGULATIONS OF ANY APPLICABLE GOVERNMENTAL AUTHORITY OR BODY, (E)
THE HABITABILITY, MERCHANTABILITY, MARKETABILITY, PROFITABILITY OR FITNESS FOR A
PARTICULAR PURPOSE OF THE PROPERTY, (F) THE MANNER OR QUALITY OF THE
CONSTRUCTION OR MATERIALS, IF ANY, INCORPORATED INTO THE PROPERTY, (G) THE
MANNER, QUALITY, STATE OF REPAIR OR LACK OF REPAIR OF THE PROPERTY, (H) ANY
OTHER MATTER WITH RESPECT TO THE PROPERTY, AND SPECIFICALLY, THAT GRANTOR HAS
NOT MADE, DOES NOT MAKE AND SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS REGARDING
COMPLIANCE WITH ANY ENVIRONMENTAL PROTECTION, POLLUTION OR LAND USE LAWS, RULES,
REGULATIONS, ORDERS OR REQUIREMENTS, INCLUDING WITHOUT LIMITATION THE EXISTENCE
IN OR ON THE PROPERTY OF HAZARDOUS MATERIALS OR SUBSTANCES OR THE EXISTENCE,
CONDITION OR LEGAL COMPLIANCE OF ANY DRY WELLS. GRANTEE FURTHER ACKNOWLEDGES AND
AGREES THAT HAVING BEEN GIVEN THE OPPORTUNITY TO INSPECT THE PROPERTY, GRANTEE
IS RELYING SOLELY ON ITS OWN INVESTIGATION OF THE PROPERTY AND NOT ON ANY
INFORMATION PROVIDED OR TO BE PROVIDED BY GRANTOR AND ACCEPTS THE PROPERTY AND
WAIVES ALL OBJECTIONS OR CLAIMS AGAINST GRANTOR (INCLUDING, BUT NOT LIMITED TO,
ANY RIGHT OR CLAIM OF CONTRIBUTION) ARISING FROM OR RELATED TO THE PROPERTY OR
TO ANY HAZARDOUS MATERIALS ON THE PROPERTY. GRANTEE FURTHER ACKNOWLEDGES AND
AGREES THAT ANY INFORMATION PROVIDED OR TO BE PROVIDED WITH RESPECT TO THE
PROPERTY WAS OBTAINED FROM A VARIETY OF SOURCES AND THAT GRANTOR HAS NOT MADE
ANY INDEPENDENT INVESTIGATION OR VERIFICATION OF SUCH INFORMATION AND MAKES NO
REPRESENTATIONS AS TO THE ACCURACY OR COMPLETENESS OF SUCH INFORMATION. GRANTOR
IS NOT LIABLE OR BOUND IN ANY MANNER BY ANY VERBAL OR WRITTEN STATEMENTS,
REPRESENTATIONS OR INFORMATION PERTAINING TO THE PROPERTY, OR THE OPERATION
THEREOF, FURNISHED BY ANY REAL ESTATE BROKER, AGENT, EMPLOYEE, SERVANT OR OTHER
PERSON. GRANTEE FURTHER ACKNOWLEDGES AND AGREES THAT TO THE MAXIMUM EXTENT
PERMITTED BY LAW, THE SALE OF THE PROPERTY AS PROVIDED FOR HEREIN IS MADE ON AN
"AS IS" CONDITION AND BASIS WITH ALL FAULTS. IT IS
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20
UNDERSTOOD AND AGREED THAT THE PURCHASE PRICE FOR THE PROPERTY HAS BEEN ADJUSTED
BY PRIOR NEGOTIATION TO REFLECT THAT ALL OF THE PROPERTY IS SOLD BY GRANTOR AND
PURCHASED BY GRANTEE SUBJECT TO THE FOREGOING.
[SIGNATURE PAGE FOLLOWS]
3
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This Special Warranty Deed may be executed in counterparts and any
counterpart containing original signatures of all parties shall constitute an
original Special Warranty Deed for all purposes.
IN WITNESS WHEREOF, Grantor and Grantee have executed this Deed on
July, 1996, to be effective as of the ______ day of July, 1996.
GRANTOR: IPEC PLANAR PHOENIX, INC.,
a Delaware corporation formerly known as
Westech Systems, Inc.
By:_________________________________________________
John S. Hodgson, its Vice President and Chief
Financial Officer
GRANTEE: CONTINENTAL CIRCUITS CORP.,
a Delaware corporation
By:_________________________________________________
Frederick G. McNamee, III, its Chairman of the
Board, President and Chief Executive Officer
4
22
STATE OF ARIZONA )
) ss.
COUNTY OF MARICOPA )
This instrument was acknowledged before me on July , 1996, by JOHN S.
HODGSON, the Vice President and Chief Financial Officer of IPEC PLANAR PHOENIX,
INC., a Delaware corporation formerly known as Westech Systems, Inc., on behalf
of such corporation.
(SEAL) ______________________________________________
Notary Public in and for
the State of Arizona
______________________________________________
Print name of notary
My Commission Expires:________________________
STATE OF ARIZONA )
) ss.
COUNTY OF MARICOPA )
This instrument was acknowledged before me on July , 1996, by FREDERICK
G. MCNAMEE, III, the Chairman of the Board, President and Chief Executive
Officer of CONTINENTAL CIRCUITS CORP., a Delaware corporation, on behalf of such
corporation.
(SEAL) ______________________________________________
Notary Public in and for
the State of Arizona
______________________________________________
Print name of notary
______________________________________________
My Commission Expires:
5
23
EXHIBIT A
TO SPECIAL WARRANTY DEED
LEGAL DESCRIPTION
The Land described the Purchase and Sale Agreement is located in
Maricopa County, Arizona, and is legally described as follows:
Lot 15, EL DORADO INDUSTRIAL PLAZA UNIT
THREE, according to Book 167 of Maps, Page
6, records of Maricopa County, EXCEPT the
East 277.19 feet thereof.
1
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EXHIBIT C
TO PURCHASE AND SALE AGREEMENT
BILL OF SALE
When recorded return to:
Roger K. Spencer, Esq.
Quarles & Brady
One East Camelback Road, Suite 400
Phoenix, Arizona 85012-1649
BILL OF SALE, ASSIGNMENT
AND ASSUMPTION AGREEMENT
STATE OF ARIZONA )
) ss.
COUNTY OF MARICOPA )
IPEC PLANAR PHOENIX, INC., a Delaware corporation formerly known as
Westech Systems, Inc. ("Grantor"), for and in consideration of the sum of Ten
and No/100 Dollars ($10.00) and other good and valuable consideration to it in
hand paid by CONTINENTAL CIRCUITS CORP., a Delaware corporation ("Grantee"), the
receipt and sufficiency of which are hereby acknowledged, has granted, sold,
assigned, transferred, conveyed, and delivered and does by these presents grant,
sell, assign, transfer, convey, and deliver unto Grantee, all of Grantor's
rights, titles, and interests in and to the following described properties
located in, affixed to, and/or arising or used in connection with the improved
property with parking and other amenities (the "Project") situated on the land
in the County of Maricopa, State of Arizona, more particularly described on
Exhibit A attached hereto and made a part hereof for all purposes (the "Land,"
which together with the Project is sometimes hereinafter called the "Property"):
(a) All appliances, fixtures, equipment, transferable equipment
leases, machinery, furniture, carpet, drapes and other personal property, if
any, owned by Grantor, including the name "Building One" (the "Personal
Property"), and located on, attached to, or used in connection with the
operation and maintenance of the Property;
(b) Any leases for space in the Project (the "Leases"), together
with security and other deposits owned or held by Grantor pursuant to the
Leases;
(c) The assignable service, maintenance, or management contracts
relating to the ownership and operation of the Property (the "Service
Contracts"); and
1
25
(d) Any assignable warranties and guarantees relating to the
Property or any portion thereof (collectively, the "Warranties").
Grantor and Grantee hereby covenant and agree as follows:
(i) Grantee accepts the aforesaid assignment and Grantee
assumes and agrees to be bound by and timely perform, observe,
discharge, and otherwise comply with each and every one of the
agreements, duties, obligations, covenants, and undertakings upon
the lessor's part to be kept and performed under the Leases and any
obligations of Grantor under the Service Contracts.
(ii) Grantee hereby indemnifies and agrees to hold harmless
Grantor from and against any and all liabilities, claims, demands,
obligations, assessments, losses, costs, damages, and expenses of
any nature whatsoever (including, without limited the generality of
the foregoing, reasonable attorneys' fees and court costs) which
Grantor may incur, sustain, or suffer, or which may be asserted or
assessed against Grantor on or after the date hereof, arising out
of, pertaining to or in any way connected with the obligations,
duties, and liabilities under the Leases and the Service Contracts,
or any of them, arising from and after the date hereof.
(iii) The burden of the indemnity made in paragraph (iii)
hereof shall not be assigned. Except as aforesaid, this Agreement
shall bind and inure to the benefit of the parties and their
respective successors, legal representatives and assigns.
(iv) Neither this Agreement nor any term, provision, or
condition hereof may be changed, amended or modified, and no
obligation, duty or liability or any party hereby may be released,
discharged, or waived, except in a writing signed by all parties
hereto.
GRANTEE ACKNOWLEDGES AND AGREES THAT GRANTOR HAS NOT MADE, DOES NOT
MAKE AND SPECIFICALLY NEGATES AND DISCLAIMS ANY REPRESENTATIONS, WARRANTIES
(OTHER THAN AS EXPRESSLY SET FORTH HEREIN), PROMISES, COVENANTS, AGREEMENTS OR
GUARANTIES OF ANY KIND OR CHARACTER WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL
OR WRITTEN, PAST, PRESENT OR FUTURE, OF, AS TO, CONCERNING OR WITH RESPECT TO
(A) THE VALUE, NATURE, QUALITY OR CONDITION OF THE PROPERTY, (B) THE INCOME TO
BE DERIVED FROM THE PROPERTY, (C) THE SUITABILITY OF THE PROPERTY FOR ANY AND
ALL ACTIVITIES AND USES WHICH GRANTEE MAY CONDUCT THEREON OR THEREWITH, (D) THE
COMPLIANCE OF OR BY THE PROPERTY OR ITS OPERATION WITH ANY LAWS, RULES,
ORDINANCES OR REGULATIONS OF ANY APPLICABLE GOVERNMENTAL AUTHORITY OR BODY, (E)
THE HABITABILITY, MERCHANTABILITY, MARKETABILITY, PROFITABILITY OR FITNESS FOR A
PARTICULAR PURPOSE OF THE PROPERTY, (F) THE MANNER OR QUALITY OF THE
CONSTRUCTION OR MATERIALS, IF ANY, INCORPORATED INTO THE PROPERTY, (G) THE
MANNER, QUALITY, STATE OF REPAIR OR LACK OF REPAIR OF THE PROPERTY, (H) ANY
OTHER MATTER WITH RESPECT TO THE
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26
PROPERTY, AND SPECIFICALLY, THAT GRANTOR HAS NOT MADE, DOES NOT MAKE AND
SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS REGARDING COMPLIANCE WITH ANY
ENVIRONMENTAL PROTECTION, POLLUTION OR LAND USE LAWS, RULES, REGULATIONS, ORDERS
OR REQUIREMENTS, INCLUDING WITHOUT LIMITATION THE EXISTENCE IN OR ON THE
PROPERTY OF HAZARDOUS MATERIALS OR SUBSTANCES OR THE EXISTENCE, CONDITION OR
LEGAL COMPLIANCE OF ANY DRY WELLS. GRANTEE FURTHER ACKNOWLEDGES AND AGREES THAT
HAVING BEEN GIVEN THE OPPORTUNITY TO INSPECT THE PROPERTY, GRANTEE IS RELYING
SOLELY ON ITS OWN INVESTIGATION OF THE PROPERTY AND NOT ON ANY INFORMATION
PROVIDED OR TO BE PROVIDED BY GRANTOR AND ACCEPTS THE PROPERTY AND WAIVES ALL
OBJECTIONS OR CLAIMS AGAINST GRANTOR (INCLUDING, BUT NOT LIMITED TO, ANY RIGHT
OR CLAIM OF CONTRIBUTION) ARISING FROM OR RELATED TO THE PROPERTY OR TO ANY
HAZARDOUS MATERIALS ON THE PROPERTY. GRANTEE FURTHER ACKNOWLEDGES AND AGREES
THAT ANY INFORMATION PROVIDED OR TO BE PROVIDED WITH RESPECT TO THE PROPERTY WAS
OBTAINED FROM A VARIETY OF SOURCES AND THAT GRANTOR HAS NOT MADE ANY INDEPENDENT
INVESTIGATION OR VERIFICATION OF SUCH INFORMATION AND MAKES NO REPRESENTATIONS
AS TO THE ACCURACY OR COMPLETENESS OF SUCH INFORMATION. GRANTOR IS NOT LIABLE OR
BOUND IN ANY MANNER BY ANY VERBAL OR WRITTEN STATEMENTS, REPRESENTATIONS OR
INFORMATION PERTAINING TO THE PROPERTY, OR THE OPERATION THEREOF, FURNISHED BY
ANY REAL ESTATE BROKER, AGENT, EMPLOYEE, SERVANT OR OTHER PERSON. GRANTEE
FURTHER ACKNOWLEDGES AND AGREES THAT TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE
SALE OF THE PROPERTY AS PROVIDED FOR HEREIN IS MADE ON AN "AS IS" CONDITION AND
BASIS WITH ALL FAULTS. IT IS UNDERSTOOD AND AGREED THAT THE PURCHASE PRICE FOR
THE PROPERTY HAS BEEN ADJUSTED BY PRIOR NEGOTIATION TO REFLECT THAT ALL OF THE
PROPERTY IS SOLD BY GRANTOR AND PURCHASED BY GRANTEE SUBJECT TO THE FOREGOING.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, Grantor and Grantee have executed this Bill of
Sale, Assignment and Assumption Agreement, on July ______, 1996 to be effective
as of the ______ day of July, 1996.
GRANTOR: IPEC PLANAR PHOENIX, INC.,
a Delaware corporation formerly known as Westech Systems, Inc.
By:_________________________________________________________
John S. Hodgson, its Vice President and Chief Financial
Officer
GRANTEE: CONTINENTAL CIRCUITS CORP.,
a Delaware corporation
By:_________________________________________________________
Frederick G. McNamee, III, its Chairman of the Board,
President and Chief Executive Officer
4
28
STATE OF ARIZONA )
) ss.
COUNTY OF MARICOPA )
This instrument was acknowledged before me on July , 1996, by JOHN S.
HODGSON, the Vice President and Chief Financial Officer of IPEC PLANAR PHOENIX,
INC., a Delaware corporation formerly known as Westech Systems, Inc., on behalf
of such corporation.
(SEAL) __________________________________________
Notary Public in and for
the State of Arizona
__________________________________________
Print name of notary
My Commission Expires:____________________
STATE OF ARIZONA )
) ss.
COUNTY OF MARICOPA )
This instrument was acknowledged before me on July , 1996, by FREDERICK G.
MCNAMEE, III, the Chairman of the Board, President and Chief Executive Officer
of CONTINENTAL CIRCUITS CORP., a Delaware corporation, on behalf of such
corporation.
(SEAL) __________________________________________
Notary Public in and for
the State of Arizona
__________________________________________
Print name of notary
My Commission Expires:____________________
5
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EXHIBIT A
TO BILL OF SALE, ASSIGNMENT AND ASSUMPTION AGREEMENT
LEGAL DESCRIPTION
The Land described the Purchase and Sale Agreement is located in Maricopa
County, Arizona, and is legally described as follows:
Lot 15, EL DORADO INDUSTRIAL PLAZA UNIT THREE,
according to Book 167 of Maps, Page 6, records of
Maricopa County, EXCEPT the East 277.19 feet thereof.
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EXHIBIT D
TO PURCHASE AND SALE AGREEMENT
AFFIDAVIT OF PROPERTY VALUE
[Arizona Department of Revenue Affidavit of Property Value attached]
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EXHIBIT E
TO PURCHASE AND SALE AGREEMENT
NON-FOREIGN AFFIDAVIT
Section 1445 of the Internal Revenue Code of 1986, as amended (the "Code")
provides that a transferee of a U.S. Real property interest must withhold tax if
the transferor is a foreign person. To inform the transferee that withholding of
tax is not required upon the disposition of a U.S. real property interest by
IPEC PLANAR PHOENIX, INC., a Delaware corporation formerly known as Westech
Systems, Inc. (the "Transferor"), the undersigned hereby certifies the following
on behalf of the Transferor.
1. The Transferor is not a foreign corporation, foreign partnership,
foreign trust or foreign estate (as those terms are defined in the
Code and treasury regulations promulgated pursuant thereto);
2. The Transferor's U.S. employer identification number is 86-0282167;
and
3. The Transferor's office address is:
4717 East Hilton Avenue
Phoenix, Arizona 85034
The Transferor understands that this certification may be disclosed to the
Internal Revenue Service by the transferee and that any false statement
contained herein could be punished by fine, imprisonment, or both.
Under penalty or perjury I declare that I have examined this certification
and to the best of my knowledge and belief it is true, correct and complete, and
I further declare that I have authority to sign this document on behalf of the
Transferor.
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This Non-Foreign Affidavit may be executed in counterparts and any
counterpart containing original signatures of all parties shall constitute an
original Non-Foreign Affidavit for all purposes.
IPEC PLANAR PHOENIX, INC.,
a Delaware corporation formerly known as Westech Systems, Inc.
By:______________________________________________
John S. Hodgson, its Vice President and
Chief Financial Officer
STATE OF ARIZONA )
) ss.
COUNTY OF MARICOPA )
This instrument was acknowledged before me on July , 1996, by JOHN S.
HODGSON, the Vice President and Chief Financial Officer of IPEC PLANAR PHOENIX,
INC., a Delaware corporation formerly known as Westech Systems, Inc., on behalf
of such corporation.
(SEAL) ___________________________________________
Notary Public in and for
the State of Arizona
___________________________________________
Print name of notary
My Commission Expires:_____________________
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EXHIBIT F
TO PURCHASE AND SALE AGREEMENT
TAXPAYER I.D. CERTIFICATE
In connection with certain Internal Revenue Service reporting requirements
imposed upon the Seller IPEC PLANAR PHOENIX, INC., a Delaware corporation
formerly known as Westech Systems, Inc. (the "Seller"), the Purchaser
CONTINENTAL CIRCUITS CORP., a Delaware corporation (the "Purchaser") hereby
certifies that listed below is Purchaser's address and taxpayer I.D. number,
true and correct as of the Closing Date.
Address: 3502 East Roeser Road
Phoenix, Arizona 85040
Taxpayer I.D. No.: 86-0267198
Purchaser hereby consents to Seller's release of the above information in
connection with any reporting requirements imposed upon Seller by any
governmental authority.
CONTINENTAL CIRCUITS CORP.
a Delaware corporation
By:________________________________________
Name: Frederick G. McNamee, III
Title: Chairman of the Board, President and
Chief Executive Officer
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