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EXHIBIT 2.1
REAL ESTATE PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (the "AGREEMENT") is entered into as of
September 5, 2001, between SPACELABS MEDICAL, INC., a Delaware corporation
("SLMD-DE") and SPACELABS MEDICAL, INC., a California corporation ("SLMD-CA")
(collectively "SELLER") and USREA, INC., a Delaware corporation, or permitted
assigns ("BUYER").
R E C I T A L S:
A. Seller owns the Real Property described below located at 15120
and 00000 XX 00xx Xxxxxx, Xxxxxxx, Xxxxxxxxxx.
B. Buyer wishes to buy the Real Property and the other Property
described below, and Seller is willing to sell such Property to Buyer, on the
terms and conditions set forth below, including without limitation, a lease of
the Real Property to SLMD-CA pursuant to the Lease attached hereto as EXHIBIT B
(the "LEASE"), the obligations of SLMD-CA under such Lease to be guaranteed by
SLMD-DE.
In consideration of the mutual covenants set forth herein and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
SECTION 1. PURCHASE AND SALE.
SECTION 1.1 PROPERTY BEING SOLD.
Seller shall sell, convey and assign to Buyer, and Buyer shall purchase
and accept from Seller, for the Purchase Price (hereinafter defined) and on and
subject to the terms and conditions herein set forth, all of Seller's right,
title and interest in and to the following (collectively, the "PROPERTY"):
1.1.1 The land situated at 15120 and 00000 XX 00xx Xxxxxx,
Xxxxxxx, Xxxx Xxxxxx, Xxxxxxxxxx, described in EXHIBIT A attached hereto,
together with all of Seller's right, title, and interest in and to adjacent
streets, alleys, rights-of-way and any strips or gores of real estate adjoining
the land (the "LAND"); all buildings and other improvements located on the Land,
including subject to Section 1.2, all fixtures attached to or used exclusively
in connection with the ownership, maintenance or operation of the Land or other
improvements including without limitation all equipment and facilities used to
provide utility services, heating, ventilation and air conditioning, garbage
disposal or other services on the Land (collectively, the "IMPROVEMENTS"); and
all rights, titles, and interests appurtenant to the Land and Improvements
including without limitation all minerals, oil, gas and other hydrocarbon
substances appurtenant to the Land, all development rights, air rights, water,
water rights relating to the Land, and any and all easements, rights-of-way and
other appurtenances used in connection with the beneficial use and enjoyment of
the Land (collectively with the Land and Improvements, the "REAL PROPERTY"); and
1.1.2 To the extent they are assignable without consent,
notice, execution of documents or payment of fees (except as Buyer may elect to
obtain or provide any of the
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foregoing), are owned and in the possession of Seller, all permits, licenses,
warranties and guaranties relating to the Real Property. Except as otherwise
agreed by the parties, Buyer will not be assuming any leases, contracts or
agreements for possession or use by third parties, or for the provision of goods
or services at or in connection with operating the Real Property. In addition to
the foregoing items, Seller shall sell, convey and transfer to Buyer, to the
extent such items are material to the ownership, management and operation of the
Property and are readily identifiable and able to be located by Seller, and
subject to Seller's right under Section 6.5 to keep such items at the Property
during the term of the Lease, all of the books, records, architectural plans,
surveys, engineering plans and manuals and mechanical drawings kept at the
Property but are being made available, rather than delivered, to Buyer pursuant
to Section 4.1
SECTION 1.2 EXCLUDED ASSETS.
Notwithstanding anything in this Agreement or the Lease to the contrary,
the Property being sold to Buyer does not include (a) Seller's personal
property, equipment and trade fixtures located or on the Real Property or the
items that would otherwise constitute fixtures or facilities which are listed on
SCHEDULE 1.2 (collectively "SELLER'S PERSONAL PROPERTY AND FIXTURES") (but does
include those fixtures, equipment and facilities described in Section 1.1.1 to
the extent not listed on SCHEDULE 1.2) or (b) any permits, licenses, trademarks,
franchises or other intangible property used by Seller in the operation of its
business at the Property. Seller shall remove Seller's Personal Property and
Fixtures from the Real Property prior to expiration or termination of the Lease
as provided in and subject to terms and conditions of the Lease.
SECTION 2. PURCHASE PRICE; PAYMENT.
The total purchase price for the Property is Seventy-Four Million
Dollars and No/100 ($74,000,000.00) ("PURCHASE PRICE"). The Purchase Price shall
be paid in cash at Closing (which payment shall include application of the
Deposit described in Section 3).
SECTION 3. XXXXXXX MONEY.
Within one (1) business day after the mutual execution hereof by Buyer
and Seller, Buyer shall deliver to the Escrow Department ("ESCROW AGENT") of
First American Title Insurance Company, Bellevue, Washington ("TITLE COMPANY")
Three Million Seven Hundred Thousand Dollars ($3,700,000.00) in cash (the
"DEPOSIT"), which shall be presented in by wire transfer of same day funds to an
account designated by Escrow Agent.
Upon receipt of funds for the Deposit, Escrow Agent shall immediately
deposit such proceeds in an interest bearing account. Any interest earned on the
Deposit shall be added to the interest bearing account and shall be paid to the
party entitled to the Deposit. The Deposit and interest thereon shall be held in
escrow and delivered by the Escrow Agent in accordance with the provisions
hereof. If any portion of the Deposit is not delivered to Escrow Agent by the
deadlines specified, Seller may, at its option, at any time prior to actual
receipt of the Deposit by Escrow Agent, terminate this Agreement by giving
notice of such termination to Buyer.
Notwithstanding any other provision of this Agreement, Buyer shall have
the right to terminate this Agreement by written notice to Seller in the event
that Seller shall file a petition in
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bankruptcy prior to the Closing Date. In the event of such termination, the
Deposit shall be immediately returned to Buyer.
SECTION 4. DUE DILIGENCE.
SECTION 4.1 ACCESS; INDEMNITY.
Buyer shall have access to the Property upon reasonable prior notice to
Seller to conduct its due diligence review. Buyer's due diligence review shall
be conducted at Buyer's sole cost and expense and Buyer shall pay all such costs
as and when due and indemnify Seller from any claims for non-payment or
mechanics' liens. Buyer shall not conduct or permit to be conducted any invasive
tests or borings as part of its due diligence review. Buyer shall conduct its
due diligence review so as to not unreasonably interfere with the operation of
Seller's business. Buyer shall repair promptly any damage done to the Property
by Buyer or its officers, agents, employees, consultants or contractors (any of
the foregoing, including Buyer, shall be referred to singularly as a "BUYER
PARTY," and collectively with Buyer as the "BUYER PARTIES") in connection with
its inspection of the Property prior to Closing. Buyer shall hold Seller
harmless from and shall indemnify and defend Seller against any and all claims,
damage, loss, liability, cost or expense, including reasonable attorneys' fees
and costs (collectively, "CLAIMS"), suffered or incurred by Seller arising from
or related to the activities of the Buyer's Parties on the Property prior to
Closing, including in connection with conducting Buyer's due diligence and
inspection pursuant hereto; provided, however, that Buyer's indemnity under this
Section 4.1 shall not cover any Claims relating to the existence of Hazardous
Substances (as defined below) on the Property except to the extent any such
Claims result from (i) contamination caused by the activities of any of the
Buyer Parties; or (ii) the negligence or willful misconduct of any of the Buyer
Parties. Buyer's indemnity under this Section 4.1 shall survive the Closing or
earlier termination of this Agreement. If Buyer does not purchase the Property
for any reason other than Seller's default, Buyer shall promptly deliver to
Seller at Seller's cost (for copying and delivery costs) copies of all studies,
reports, surveys or other documentation generated by or on behalf of Buyer
relating to the Property, and if Seller requests, Buyer shall return all
materials received from Seller relating to the Property.
"HAZARDOUS SUBSTANCES" means any waste, pollutant, hazardous or toxic
substance or waste, petroleum, petroleum-based substance or waste, special
waste, polychlorinated biphenyls, asbestos, or any constituent of any such
substance or waste, including, without limitation, any of the foregoing as these
terms are defined in any laws, ordinances, rules, regulations, administrative
rulings or other requirements in effect as of the date hereof or the Closing
Date, that regulate or impose standards with respect to the environment,
including but not limited to the Washington Model Toxics Control Act, the
Washington Hazardous Waste Management Act, CERCLA, RCRA, the Federal Water
Pollution Control Act, the Hazardous Materials Transportation Act, the Toxic
Substances Control Act, the Refuse Act, the Emergency Planning and Community
Right-to-Know Act, and any federal, state or local equivalent thereof and
including any amendments or modifications to any of the foregoing, in effect as
of the date hereof or the Closing Date.
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SECTION 4.2 AS IS, WHERE IS.
Buyer acknowledges that, except as specifically provided in Section 8,
neither Seller nor any of its employees, agents, or attorneys, has made any
warranty or representation, express or implied, or arising by operation of law,
regarding the Property, including, but in no way limited to, any warranty of
quantity, quality, condition, habitability, merchantability, suitability or
fitness for a particular purpose of the Property, the Improvements, or soil or
environmental conditions, or specifically as to any of the following: (i) the
condition of the Property or any buildings, structures or Improvements on the
Real Property or the suitability of the Property for occupation or for Buyer's
intended use or for any use whatsoever, (ii) compliance with any applicable laws
or regulations, including any building, zoning, or fire laws or regulations,
(iii) the requirement of, existence of, or compliance with any permits or
approvals, if any, of any governmental entity, (iv) the availability or
existence of any water, sewer or other utilities or utility rights, (v) the
presence of any Hazardous Substances or underground tanks on or affecting the
Property or any other property, or (vi) compliance of the Property with the
terms of the Americans With Disabilities Act or similar access laws. Except as
provided in Section 8, Buyer agrees to accept the Property "AS IS, WHERE IS" and
with all defects, whether latent or not, in the condition existing on the
Closing Date, subject to reasonable use, wear, tear and natural deterioration of
the Property between the date hereof and the Closing Date.
The provisions of this Section 4.2 shall survive the Closing or
termination of this Agreement.
SECTION 4.3 DELIVERY OF INFORMATION BY SELLER.
Buyer acknowledges that Seller provided to Buyer copies of the following
documents, or made such documents available to Buyer at the Property:
4.3.1 The documents listed on SCHEDULE 4.3.1 attached to this
Agreement;
4.3.2 The Commitment (as defined below), together with the
exception documents referenced therein.
SECTION 4.4 TITLE INSURANCE.
Buyer acknowledges that Seller has provided it with (a) an ALTA owner's
extended coverage preliminary commitment for title insurance issued by Title
Company under its Order No. 847747-C-1 dated August 22, 2001 (as the same may be
supplemented from time to time, the "COMMITMENT") setting forth the status of
the title of the Real Property; (b) a copy of all documents and exceptions
referenced in the Commitment pertaining to the Property; and (c) a copy of
ALTA/ACSM Land Survey dated July 26, 2001 prepared by Triad Associates/Xxxxxxx
Xxxxxxx ("THE SURVEY").
4.4.1 PERMITTED EXCEPTIONS. The term "PERMITTED EXCEPTIONS"
shall mean (a) the printed general exclusions appearing in the ALTA Form B (1970
form with 1984 amendments) extended coverage owner's policy form, and general
exceptions A, E and G shown in the Commitment, (b) real estate taxes not yet due
and payable, (c) the exceptions listed on
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SCHEDULE 4.4.1 hereto, (d) the terms and conditions of the Lease, (e) those
matters shown on the Survey and (f) any exceptions created by Buyer (e.g.,
purchase money deed of trust).
4.4.2 TITLE SUPPLEMENTS. Buyer may order supplements to the
Commitment at any time prior to the Closing. Buyer shall have one (1) business
day after receipt of any supplements to the Commitment to provide a written
notice to Seller ("BUYER TITLE NOTICE") objecting to any matters shown in such
supplement. If Buyer does not deliver such notice to Seller within such period
then Buyer shall be deemed to have approved all of the exceptions shown in the
supplement.
4.4.3 SELLER'S RESPONSE. Seller shall have one (1) business
day after receipt of Buyer's Title Notice within which to commit in writing to
remove any disapproved exceptions from title. Alternatively, at Buyer's option,
Seller may cause Buyer's title policy to contain endorsements acceptable to
Buyer at Buyer's cost with respect to such disapproved exceptions. If, for any
reason, within the response period, Seller does not commit in writing to cause
such disapproved exceptions to be removed or Buyer does not consent to the
issuance by Title Company of an endorsement acceptable to Buyer to insure over
such disapproved exceptions, then Buyer may either, as its sole remedy (a)
terminate this Agreement in which case the provisions of Section 10 shall apply,
or (b) waive the defects and proceed to Closing in which case such defects shall
be deemed Permitted Exceptions. In no event shall mortgages, deeds of trust,
judgments and other monetary liens or encumbrances on title (except real estate
taxes not yet due and payable) be deemed to be Permitted Exceptions, and Seller
shall have the obligation to satisfy and remove the same from title at or before
Closing. With the exception of the items described in the immediately preceding
sentence, Seller shall not be required to expend more than $100,000.00 to cure
any disapproved exceptions from title. Seller may extend closing for a period
not to exceed thirty (30) days to remove or obtain an endorsement with respect
to any disapproved exception. Seller may apply a portion of the Purchase Price
to the payment of any monetary liens or the cure of any disapproved exception.
4.4.4 TITLE AFFIDAVIT. Seller shall provide to Title Company
an affidavit (the "TITLE AFFIDAVIT") in the customary form required by Title
Company in connection with the issuance of extended coverage title insurance.
SECTION 5. OPERATION PRIOR TO CLOSING.
Until Closing and unless this Agreement is terminated, Seller shall
continue to operate and maintain the Property in accordance with the following
and shall:
5.1 Promptly notify Buyer if and when the current officers of Seller
acquire actual knowledge of any fact or event that would make any of the
representations or warranties of Seller contained in this Agreement untrue or
misleading in any material respect or that would cause Seller to be in violation
of any of its covenants or other obligations hereunder.
5.2 Notify Buyer promptly if and when the current officers of Seller
acquire actual knowledge through receipt of written notice of a written claim or
lawsuit that would materially adversely affect the Property.
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5.3 Not convey, mortgage, grant a deed of trust, lease or contract
to do any of the foregoing or otherwise allow or consent to convey, abandon,
relinquish, cloud or encumber title to the Property or any interest therein or
part thereof or take any action that would adversely affect title to the
Property.
5.4 Maintain the Property at Seller's same maintenance and operation
standards and condition, all as in existence as of August 30, 2001, reasonable
wear and tear and casualty and condemnation excepted; provided however, that
Seller shall have no obligation to undertake any structural or nonstructural
repairs to correct any conditions at the Property that exist as of such date or
that occur prior to the Closing.
5.5 Maintain all casualty, liability and hazard insurance currently
in force with respect to the Property through the Closing without diminution in
coverage.
5.6 To the extent the current officers of Seller have actual
knowledge of and has received written notice from any governmental authorities
of any uncured material violations of any applicable laws relating to the
Property, and Seller is required under applicable law to remedy such violations,
Seller shall remedy such material violations, but only to the extent the
aggregate cost of remedying such violations does not exceed $100,000.00.
5.7 PROPERTY DEFICIENCIES. Seller and Buyer acknowledge that the
roof on the building known as the Manufacturing Building requires repair or
replacement (the "CORRECTION WORK"). At the Closing, an amount equal to
$250,000.00 shall be placed by Seller in an escrow, and the parties shall
execute an escrow agreement providing for the release of such funds to Buyer
upon presentation to escrow holder of letters of completion of the Correction
Work signed by Buyer's construction consultant. Buyer covenants to complete the
Correction Work within twelve (12) months after the Closing. In no event shall
Seller be responsible for any costs for the Correction Work in excess of
$250,000.00. Buyer shall use diligent efforts to minimize the cost of the
Correction Work, including making claims (other than bringing lawsuits) under
existing warranties (as assigned to Buyer) or "make goods". Upon completion of
the Correction Work, any amount remaining in the escrow shall be refunded to
Seller. The provisions of this Section 5.7 shall survive the Closing.
SECTION 6. CLOSING; PRORATIONS.
SECTION 6.1 TIME FOR CLOSING.
The closing of the sale of the Property by Seller to Buyer shall occur
in the manner set forth below (the "CLOSING") on a date selected by Buyer (the
"CLOSING DATE") not later than September 12, 2001 (TIME BEING OF THE ESSENCE).
SECTION 6.2 CLOSING COSTS.
The provisions of this Section 6.2 shall survive the Closing.
6.2.1 SELLER'S COSTS. Seller shall pay one-half of the escrow
fee and one-half of the escrow fee relating to the post-closing escrow pursuant
to Section 5.7. Seller shall also pay for the real estate excise tax, the
premium for an ALTA Owner's Form B (1970 form with 1984
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amendments) standard coverage title insurance policy with coverage in the amount
of the Purchase Price (the "TITLE POLICY"), and the brokerage fee to Xxxxxxxx
Xxxx Corporate Services ("TCCS") described in Section 13.
6.2.2 BUYER'S COSTS. Buyer shall pay one-half of the escrow
fee and one-half of the escrow fee relating to the post-closing escrow pursuant
to Section 5.7. Buyer shall also pay for the premiums for any endorsements to
the Title Policy, the additional cost of extended title insurance coverage
(including the cost of any survey in addition to the Survey required by the
Title Insurance Company) and recording fees. Because no personal property is
included in the sale, no use or sales tax shall be due.
6.2.3 LEGAL AND CONSULTANT FEES. Except as specifically set
forth herein, each of Buyer and Seller shall be responsible for and bear all of
its own costs and expenses incurred in connection with the transaction
contemplated by this Agreement, including expenses of its representatives,
incurred at any time in connection with pursuing or consummating the proposed
transaction.
SECTION 6.3 PRORATIONS.
Since the Lease is a net lease, there will be no prorations between
Seller and Buyer at Closing. Pursuant to the terms of the Lease, real estate
taxes paid in advance by SLMD-CA, as tenant, for any partial year shall be
prorated between SLMD-CA and Buyer upon the expiration of the term of the Lease.
SECTION 6.4 CLOSING DOCUMENTS.
6.4.1 SELLER'S DOCUMENTS. By 5:00 P.M. on the business day
prior to Closing, Seller shall deliver to Escrow Agent the following documents
and instruments ("SELLER'S CLOSING DOCUMENTS"):
6.4.1.1 Bargain and Sale Deeds, in the form of
EXHIBIT C attached hereto (the "DEED") executed and acknowledged by SLMD-CA and
SLMD-DE, as applicable, conveying the Real Property to Buyer subject to the
Permitted Exceptions, but excluding Seller's Personal Property and Fixtures;
6.4.1.2 Duplicate originals of the Lease in the form
attached hereto as EXHIBIT B, executed and acknowledged by SLMD-CA, together
with a Guaranty of Lease from SLMD-DE in the form attached as EXHIBIT B to the
Lease;
6.4.1.3 The Title Affidavit;
6.4.1.4 A non-foreign entity certificate meeting the
requirements of Section 1445 of the Internal Revenue Code, executed by Seller;
6.4.1.5 Evidence reasonably satisfactory to the Title
Company as to Seller's due formation and existence, and that the person(s)
executing the Seller's Closing Documents on behalf of Seller have full right,
power and authority to do so;
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6.4.1.6 Any real estate transfer tax, declarations or
other like governmental report required by any governmental authority having
jurisdiction over the Property, executed by Seller if so required by such
governmental authority;
6.4.1.7 The Seller's estimated closing statement,
executed and approved by Seller;
6.4.1.8 Escrow instructions as reasonably necessary to
close the sale described in this Agreement, executed by Seller or its attorneys;
6.4.1.9 Xxxx of Sale selling, conveying and
transferring to Buyer those items described in Section 1.1.2;
6.4.1.10 Duplicate originals of the escrow agreement
referred to in Section 5.7 of this Agreement; and
6.4.1.11 Such other documents as may be reasonably
required by the Title Company and are consistent with the terms of this
Agreement.
6.4.2 BUYER'S DOCUMENTS. By 5:00 P.M. on the business day
prior to Closing, Buyer shall deliver to Escrow Agent the following instruments,
documents and funds ("BUYER'S CLOSING DOCUMENTS"):
6.4.2.1 Duplicate originals of the Lease executed and
acknowledged by Buyer;
6.4.2.2 Evidence reasonably satisfactory to Seller and
the Title Company as to Buyer's due formation and existence, and that the
person(s) executing the Buyer's Closing Documents on behalf of Buyer have full
right, power and authority to do so;
6.4.2.3 Any real estate transfer tax, declarations or
other like governmental report required by any governmental authority having
jurisdiction over the Property, executed by Buyer if so required by such
governmental authority;
6.4.2.4 The Buyer's estimated closing statement,
executed and approved by Buyer;
6.4.2.5 Escrow instructions as reasonably necessary to
close the sale described in this Agreement, executed by Buyer or its attorneys;
6.4.2.6 Duplicate originals of the escrow agreement
referred to in Section 5.7 of this Agreement;
6.4.2.7 Such other documents as may be reasonably
required by the Title Company and are consistent with the terms of this
Agreement; and
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6.4.2.8 Wire transfer of immediately available federal
funds, made payable to the order of Seller, in the amount of the Purchase Price
as set out in Section 2 hereof, adjusted as provided for in Section 6.2 above,
due credit being given for the Deposit.
6.4.3 FURTHER ASSURANCES. Prior to and following Closing,
Buyer and Seller shall each execute and deliver such additional instruments,
documents and other writings as may be reasonably necessary or desirable to
confirm, carry out or effectuate fully the Closing.
SECTION 6.5 POSSESSION.
Buyer shall be entitled to possession of the Property on Closing,
subject only to the Permitted Exceptions and the rights of SLMD-CA as the tenant
under the Lease. Seller shall also deliver to Buyer all of the books, records,
architectural plans, surveys, engineering plans and manuals and mechanical
drawings kept at the Property but that were made available, rather than
delivered, to Buyer pursuant to Section 4.1; provided that Seller may maintain
such items at the Property until the expiration or earlier termination of the
term of the Lease if Seller reasonably determines that such items are necessary
for its use, occupancy and operation of the Property during the term of the
Lease, but Seller shall continue to make such items available to the landlord
under the Lease. The provisions of the second sentence of this Section 6.5 shall
survive the Closing.
SECTION 6.6 TITLE POLICY.
Prior to Closing, Seller shall cause the Title Company to provide to
Buyer a pro forma of the Title Policy, dated as of the Closing Date and signed
by an authorized representative of Title Company agreeing to insure Buyer in the
amount of the Purchase Price, subject only to the Permitted Exceptions. At
Closing, the Title Company shall be irrevocably committed to issue the Title
Policy in the form of the pro forma policy.
SECTION 7. DAMAGE OR CONDEMNATION PRIOR TO CLOSING.
SECTION 7.1 DAMAGE OR DESTRUCTION.
Before Closing, the entire risk of loss or damage by casualty to the
Property however caused shall be borne and assumed by Seller except as set forth
below. If, after the date of this Agreement but prior to Closing, the Real
Property is destroyed or damaged, then Seller shall promptly give written notice
to Buyer of such fact (the "DAMAGE NOTICE"), and the following provisions will
apply.
7.1.1 NO SUBSTANTIAL DAMAGE. For purposes of this Section, the
words "substantially damaged" mean damage that in Seller's reasonable judgment
would cost One Million Dollars ($1,000,000.00) or more to repair. In the event
the Property is not substantially damaged, (i) Buyer shall proceed with the
purchase of the Property (subject to the other conditions of this Agreement),
and there will be no reduction in the Purchase Price and (ii) Seller may elect
to either (A) retain the proceeds of all insurance related to such damage and
promptly commence to repair such damage or destruction; such repair to be
completed either before Closing or before the end of the Lease term pursuant to
the provisions of the Lease and Seller will be responsible for good, workmanlike
and lien-free completion of such repairs or (B) assign
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to Buyer Seller's claims as to the property insurance proceeds (and Buyer shall
be credited at closing with an amount equal to (1) or any proceeds received by
Seller prior to Closing and (2) any deductible or self-insured amounts) for
damage of the Real Property).
7.1.2 SUBSTANTIAL DAMAGE. If the Real Property is
substantially damaged, then Buyer shall have the option to either terminate this
Agreement (in which case the provisions of Section 10 will apply) or proceed to
closing. If Buyer elects to close, then on Closing Seller shall assign to Buyer
Seller's claims as to the property insurance proceeds (and Buyer shall be
credited at Closing with an amount equal (i) any proceeds received by Seller
prior to Closing, and (ii) any deductible or self-insured amounts) for damage of
the Real Property. The provisions of the Lease shall govern such repair and any
rent abatement. In no event will Buyer be required to repair any damage to
Seller's Personal Property.
7.1.3 CONDEMNATION. If, prior to Closing, condemnation
proceedings (or proceedings in lieu thereof) are commenced against all or any
part of the Real Property, Seller shall promptly give notice to Buyer of such
fact (the "Condemnation Notice"). Unless the taking is de minimis (which means
less than 5% of the square footage of the Property), Buyer shall not be
obligated to proceed with Closing, subject to the other provisions hereof. If
Buyer elects to proceed with the transaction, there shall be no reduction in the
Purchase Price. Seller shall assign to Buyer at the Closing Date all of Seller's
right, title and interest in and to any award made or to be made in the
condemnation proceedings as it relates to the Real Property taken, but Seller
shall retain any award for moving, relocation and other expenses or losses
suffered by Seller as to its personal property. Seller shall fully cooperate
with Buyer's efforts to obtain the condemnation proceeds due Buyer after
Closing, provided that Seller shall not be required to incur any material cost
or expense in connection with such cooperation.
SECTION 8. SELLER'S REPRESENTATIONS AND WARRANTIES.
SECTION 8.1 REPRESENTATIONS AND WARRANTIES.
Seller hereby makes the following representations and warranties to
Buyer:
8.1.1 CORPORATE AUTHORITY. SLMD-DE is a duly organized
Delaware corporation and is qualified to transact business in the State of
Washington. SLMD-CA is a duly organized California corporation and is qualified
to transact business in the State of Washington. Seller has the requisite power
and authority to enter into and perform this Agreement and Seller's Closing
Documents. This Agreement (and as of the Closing Date, each of Seller's Closing
Documents) (a) has been authorized by all necessary corporate action on the part
of Seller, (b) has been duly executed and delivered by Seller, and (c)
constitutes the legal, valid and binding obligation of Seller, subject to the
operation of bankruptcy or laws affecting creditor's rights.
8.1.2 CONFLICTS. Execution, delivery and performance by Seller
of this Agreement (and as of the Closing Date, Seller's Closing Documents),
shall not conflict with or result in a violation of (a) Seller's organizational
documents, or (b) to Seller's knowledge, any judgment, order, or decree of any
court or arbiter to which Seller is named as a party.
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8.1.3 NO BANKRUPTCY. (a) Seller is not in the hands of a
receiver, and, to Seller's knowledge, no application for a receiver is pending;
(b) Seller has not made a general assignment for the benefit of creditors; and
(c) Seller has not filed, or to Seller's knowledge had filed against it, any
petition in bankruptcy, for reorganization or in any other insolvency
proceeding. If any of such actions have been taken or brought against Seller,
then prior to the date hereof the same have been fully disclosed and Seller
discharged therefrom so that there are no prohibitions or conditions upon
Seller's sale or leaseback of the Property.
8.1.4 NOTICES. To Seller's knowledge, Seller has not received
any written notices from any governmental authorities of any uncured violations
of any applicable laws with respect to the Property.
8.1.5 LITIGATION. To Seller's knowledge, there is no pending
or judicial, municipal or administrative proceedings threatened in writing that
affect the ownership or use of the Property.
8.1.6 AGREEMENTS TO TRANSFER OR ENCUMBER. Except as previously
disclosed to Buyer in writing [e.g., iStar Financial, Inc.], Seller has not
committed nor obligated itself in any manner whatsoever to sell, lease or
encumber the Property or any interest therein to any party other than Buyer.
8.1.7 UNDERGROUND STORAGE TANKS. To the best of Seller's
knowledge, there are no cisterns, xxxxx or underground storage tanks on the
Property and underground storage tanks have not been removed from the Property,
except as disclosed in the due diligence materials listed on Schedule 4.3.1
hereto and by the environmental studies obtained by Buyer in its due diligence
review of the Property.
8.1.8 LIENS. Seller has received no written notice of any
intention to claim any mechanic's materialmen's or other statutory liens (other
than the lien of nondelinquent general taxes), and there are no parties owed
money the non-payment of which could result in a lien against the Property.
8.1.9 GOVERNMENTAL OBLIGATIONS. There are no obligations to
any governmental or quasi-governmental agency (e.g., water or sewer districts)
which could become a lien against the Property, except for the lien of
non-delinquent general taxes.
8.1.10 HAZARDOUS SUBSTANCES. To Seller's knowledge, no
Hazardous Substances are or have been used, stored on, or released from or onto
the Property except (i) immaterial quantities of Hazardous Substances used in
the ordinary course of operation or maintenance of the Property in compliance
with applicable laws, (ii) those disclosed in the environmental reports
delivered to Buyer and listed on SCHEDULE 4.3.1 hereto.
8.1.11 NO LEASES. There are no leases or occupancy agreements
affecting the Property and no parties have rights to possession, or will at the
Closing have rights to possession, of the Property other than Seller.
8.1.12 DOCUMENTS. The documents listed on SCHEDULE 4.3.1
constitute to Seller's knowledge all of the documents in the possession or
control of Seller in any of the
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following categories: (a) surveys of the Property, (b) building, architectural,
and engineering plans, soils reports, environmental assessment reports, tank
closure reports, seismic reports, spill reports, and topographical maps, (c)
service contracts, repair agreements, and structural and engineering reports.
SECTION 8.2 DISCLAIMER OF OTHER REPRESENTATIONS AND WARRANTIES.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR IN THE SELLER'S
CLOSING DOCUMENTS, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR
IMPLIED, OR ARISING BY OPERATION OF LAW, INCLUDING BUT NOT LIMITED TO, ANY
WARRANTY OF QUANTITY, QUALITY, CONDITION, HABITABILITY, MERCHANTABILITY,
SUITABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE PROPERTY, THE BUILDING,
ANY OTHER IMPROVEMENTS, OR SOIL AND ENVIRONMENTAL CONDITIONS.
SECTION 8.3 DEFINITIONS OF SELLER'S KNOWLEDGE.
When modifying a representation, warranty or other statement of Seller,
the term "knowledge" (e.g., "Seller acquires knowledge," "Seller has knowledge
of," "to Seller's knowledge," etc.) means that none of the current officers of
SLMD-CA or SLMD-DE have then-current actual knowledge with respect to the matter
in question.
SECTION 8.4 SURVIVAL.
The representations and warranties made by Seller in this Section 8
shall survive Closing for a period of twelve (12) months and shall not merge in
the Deed. Seller shall have no liability for breaches of such representations
below $50,000.00 or in excess of $500,000.00.
SECTION 9. BUYER'S REPRESENTATIONS AND WARRANTIES.
Buyer hereby makes the following representations and warranties to
Seller:
SECTION 9.1 REPRESENTATIONS AND WARRANTIES.
9.1.1 Corporate Authority. Buyer is a duly organized
Washington corporation and is qualified to transact business in the State of
Washington. Buyer has the requisite power and authority to enter into and
perform this Agreement and Buyer's Closing Documents (as defined above). This
Agreement (and as of the Closing Date, each of Buyer's Closing Documents) (a)
has been authorized by all necessary corporate action on the part of Buyer, (b)
has been duly executed and delivered by Buyer, and (c) constitutes the legal,
valid and binding obligation of Buyer.
9.1.2 CONFLICTS. Execution, delivery and performance by Buyer
of this Agreement, and as of the Closing Date, Buyer's Closing Documents, shall
not conflict with or result in a violation of (a) Buyer's organizational
documents, or (b) to Buyer's knowledge, any judgment, order, or decree of any
court or arbiter to which Buyer is named as a party.
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9.1.3 NO BANKRUPTCY. (a) Buyer is not in the hands of a
receiver, and, to Buyer's knowledge, no application for a receiver is pending;
(b) Buyer has not made a general assignment for the benefit of creditors; and
(c) Buyer has not filed, or to Buyer's knowledge had filed against it, any
petition in bankruptcy, for reorganization or in any other insolvency
proceeding. If any of such actions have been taken or brought against Buyer,
then prior to the date hereof the same have been fully disclosed and Buyer
discharged therefrom so that there are no prohibitions or conditions upon
Buyer's purchase or leaseback of the Property.
SECTION 9.2 SURVIVAL.
The representations and warranties made by Buyer in Section 9 shall
survive the Closing and shall not merge in the Deed.
SECTION 10. TERMINATION OTHER THAN FOR DEFAULT.
If Buyer terminates this Agreement pursuant to Section 4.4.3, then
except for Buyer's obligations under Sections 4.1, 13, 16 and 17, neither party
hereto shall have any further rights, duties or obligations hereunder, and Title
Company shall return the Deposit and all interest accrued therein to Buyer.
SECTION 11. DEFAULT; REMEDIES.
Time is of the essence of this Agreement.
SECTION 11.1 BUYER'S DEFAULT.
"Buyer's Event of Default" shall mean any of the following: (a) Buyer
fails without legal excuse to purchase the Property in accordance with its
obligations under this Agreement, or (b) Buyer is otherwise in default under
this Agreement and fails to cure such default within five (5) business days
after written notice from Seller. Upon a Buyer's Event of Default, Seller may
elect either (i) as Seller's exclusive remedy (except for enforcing Buyer's
obligations provided for in Sections 4.1, 13, 16 and 17 hereof, which
obligations shall survive termination of this Agreement) to terminate this
Agreement and retain the Deposit (and all interest accrued thereon) as
liquidated damages and not as a penalty, the parties agreeing that the damages
that would be incurred by Seller in such event would be difficult or impossible
to determine with precision and that such amounts are reasonable in light of all
applicable factors or (ii) direct the Escrow Agent to return the Deposit (and
all interest accrued thereon) to Buyer and pursue such remedies as are available
to Seller at law or in equity, including specific performance. In the event
Seller makes the election in clause (i), Escrow Agent, is hereby instructed to
deliver to Seller the Deposit and all interest accrued thereon.
SECTION 11.2 SELLER'S DEFAULT.
If Seller fails without legal excuse to sell the Property in accordance
with its obligations under this Agreement for any reason other than Buyer's
failure to tender performance of its obligations hereunder, or if Seller is
otherwise in default under this Agreement and fails to cure such default within
five (5) business days after written notice from Buyer, then Buyer shall have
all available legal and equitable remedies, including the remedy of specific
performance.
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SECTION 12. NOTICES.
All notices required or permitted to be given hereunder shall be in
writing, and shall be sent by one of the following means: by facsimile
transmission (with a hard copy sent by mail), by personal delivery (including by
means of professional messenger service) or registered, certified mail,
postage-prepaid, return-receipt requested, or nationally recognized overnight
courier guaranteed next day delivery. Notice shall be deemed to have been given
upon receipt if personally delivered or sent by overnight courier or if sent by
facsimile and received by 5:00 p.m. Seattle time (with the party giving notice
having evidence of confirmation of transmission), or if not so received then
upon the next business day, and if sent by mail, upon receipt or refusal by the
addressee. The parties' respective addresses for notices are as follows:
If to Seller, to: Spacelabs Medical, Inc.
00000 XX 00xx Xx.
Xxxxxxx, XX 00000
Attention: Xxxx XxXxxxxx
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
with a copy to: King & Spalding
1185 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxxxx X. Xxxxx
Telephone No.: 000-000-0000
Facsimile No.: 212-556-2222
If to Buyer, to: USREA, Inc.
c/o Microsoft Corporation
Xxx Xxxxxxxxx Xxx
Xxxxxxx, XX 00000
Attention: Xxxx Xxxxxx
Telephone No.:
-------------------------
Facsimile No.: 000-000-0000
with a copy to: Xxxxxxx Xxxxx & Xxxxx LLP
Suite 5000, 000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxxxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
SECTION 13. COMMISSIONS.
Seller has agreed to pay a commission of one percent (1%) of the
Purchase Price to TCCS, conditioned upon, earned at, and payable only upon
consummation of the Closing. Seller has also agreed to pay a commission of 0.6%
of the Purchase Price to The Xxxxxxxxx Group ("SELLER'S BROKER"). Seller hereby
agrees to defend, indemnify, and hold harmless Buyer, and
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Buyer hereby agrees to defend, indemnify, and hold harmless Seller, from and
against any claim by third parties for brokerage, commission, finders or other
fees relative to this Agreement, the sale of the Property or the leaseback of
the Property pursuant to the Lease, and any court costs, attorneys' fees or
other costs or expenses arising therefrom, and alleged to be due by
authorization of the indemnifying party.
SECTION 14. ASSIGNMENT.
Buyer may assign its interest under this Agreement subject to the prior
approval of Seller, which will not be unreasonably withheld or delayed, but only
if (a) Buyer and such assignee (the "ASSIGNEE") execute an assignment and
assumption agreement pursuant to which such Assignee assumes all of Buyer's
obligations under this Agreement and the Buyer's Closing Documents, and Buyer
remains liable for all such obligations as a principal and not as a surety; and
(b) within five days prior to Closing, Assignee executes and delivers to Seller
a certificate in form and substance reasonably acceptable to Seller in which
Assignee (i) provides its address for purposes of receiving notices; and (ii)
represents and warrants to Seller each of Buyer's representations and warranties
under Section 9, modified to reflect the type of entity Assignee is for purposes
of the representation in Section 9.1. Subject to the preceding sentence, this
Agreement shall inure to the benefit of and be binding on the parties hereto and
their respective successors and assigns. This Agreement is for the sole benefit
of Seller and Buyer, and no third party is intended to be a beneficiary hereof.
In the event of the sale or other transfer of all or substantially all of the
stock or assets of SLMD-DE, for purposes of this Section 14 the entity acquiring
such stock or assets shall be subject to the prior approval of Buyer, not to be
unreasonably withheld or delayed, which approval may be conditioned on such
transferee expressly assuming to obligations of Seller under this Agreement.
Notwithstanding the foregoing, however, in order to facilitate its synthetic
lease financing arrangement, Buyer hereby reserves the right, without Seller's
consent, but upon prior written notice to Seller, to direct Seller to convey
title to Xxxxx Fargo Bank Northwest, National Association, not in its individual
capacity, but solely as Trustee under MS Trust No. 2001-1 or any other cotrustee
or successor trustee. In the event Buyer elects to direct Seller to convey the
Property in accordance with the preceding sentence, Buyer shall remain fully
liable for performance of all of its obligations under this Agreement,
including, without limitation, payment of the Purchase Price.
SECTION 15. EXCLUSIVE DEALING.
Seller shall not market the Property, or negotiate with any other
potential buyers or tenants to sell or lease the Property, during the period
commencing the date hereof and terminating on September 5, 2001 or the sooner
termination of this Agreement. The foregoing restrictions shall not prohibit or
limit Seller's right to seek or negotiate a possible mortgage re-financing of
the Property, which Buyer acknowledges Seller may undertake prior to the
Closing.
SECTION 16. CONFIDENTIALITY.
Except as and to the extent required by law or provided in Section 17
below, neither Seller nor Buyer shall disclose or use, and each shall cause its
employees, agents, contractors, representatives assigns (collectively, the
"Representatives") not to disclose or use, any Confidential Information (as
defined below) with respect to the transaction contemplated by this
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Agreement, the Property or Seller that has been furnished, or is to be furnished
by Seller or its Representatives to Buyer, or its Representatives in connection
herewith at any time or in any manner other than in connection with (i) Buyer's
evaluation of the transaction contemplated by this Agreement, (ii) Buyer's
financing of the Property or (iii) following the closing, Buyer's transfer of
the Property. For purposes of this Section 16, "Confidential Information" means
any information about the transaction contemplated by this Agreement, the Seller
or the Property provided by Seller to Buyer or the Representatives or discovered
by Buyer or Buyer's Representatives as part of its due diligence; provided that
it does not include information which Buyer can demonstrate is generally
available to or known by the public other than as a result of improper
disclosure by Buyer. Under no circumstances shall Buyer contact or seek
information with respect to the Property or Seller from Seller's existing or
potential lenders, with whom Seller has been negotiating possible refinancing
transactions. If the sale of the Property does not close for any reason, then
Buyer shall promptly return to Seller any Confidential Information in its
possession. The provisions of this Section 16 shall survive termination of this
Agreement.
SECTION 17. DISCLOSURE.
Except as and to the extent required by law, and except in connection
with obtaining financing, without the prior written consent of the other party,
each party shall not, and shall cause it's Representatives not to, directly or
indirectly, make any public comments, statement or communication with respect
to, or otherwise disclose or permit the disclosure of the existence of
discussions regarding, a possible transaction between the parties or any of the
terms, conditions or other aspects of the transaction proposed in this
Agreement. Except as provided to the contrary in Section 16 above, information
contained in this Agreement shall be treated as confidential by both parties,
but Seller may make customary disclosures, filings or notifications to
government agencies, including without limitation the Securities and Exchange
commission and may engage in discussions with its customers, potential or actual
investors or employees with respect to the matters covered hereby. In addition,
the parties shall be entitled to make disclosures to their attorneys,
consultants and agents, and third parties involved in the transaction (such as
the Title Company) as needed to facilitate the transaction, but shall instruct
such parties as to the requirements of this Section 17. Without limiting the
foregoing, neither party to this Agreement shall cause or permit to be recorded
in the public land records this Agreement or any memorandum or short form
thereof.
SECTION 18. GOVERNING LAW.
This Agreement shall be governed and construed in accordance with the
laws of the State of Washington.
SECTION 19. ENTIRE AGREEMENT; SEVERABILITY.
This Agreement is the entire agreement between Seller and Buyer
concerning the sale of the Property and supersedes all prior term sheets,
letters of intent, agreements or understandings, written or oral, signed or
unsigned concerning sale of the Property. No modification hereof or subsequent
agreement relative to the subject matter hereof shall be binding on either party
unless reduced to writing and signed by Buyer and Seller. The invalidity or
unenforceability of any
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provision of this Agreement shall not affect the validity or enforceability of
any other provision hereof.
SECTION 20. MISCELLANEOUS.
The headings in this Agreement are for convenience only and do not in
any way limit or affect the terms and provisions hereof. Unless otherwise
specified, in computing any period of time described in this Agreement, "days"
means calendar days, and the day of the act or event after which the designated
period of time begins to run is not to be included and the last day of the
period so computed is to be included, unless such last day is a Saturday, Sunday
or legal holiday. "Business Days" means Mondays through Fridays, except legal
holidays on which banks are closed for business in Redmond, Washington. The
final day of any such period shall be deemed to end at 5 p.m., Pacific Standard
or Daylight time, as applicable. Wherever appropriate in this Agreement, the
singular shall be deemed to refer to the plural and the plural to the singular,
and pronouns of certain genders shall be deemed to include either or both of the
other genders. This Agreement may be executed in multiple counterparts, all of
which together shall constitute one agreement.
SECTION 21. WAIVER.
A party may, at any time or times, at its election, waive any of the
conditions to its obligations hereunder, but any such waiver shall be effective
only if contained in a writing signed by such party. No waiver shall reduce the
rights and remedies of such party by reason of any breach of any other party. No
waiver by any party of any breach hereunder shall be deemed a waiver of any
other or subsequent breach.
SECTION 22. FACSIMILE SIGNATURES; COUNTERPARTS.
Each party (i) has agreed to permit the use, from time to time and where
appropriate, of telecopied signatures and execution in counterparts in order to
expedite the transaction contemplated by this Agreement, (ii) intends to be
bound by its respective telecopied signature or the counterpart executed by it,
(iii) is aware that the other will rely on the telecopied signature or such
counterpart, and (iv) acknowledges such reliance and waives any defenses to the
enforcement of the documents effecting the transaction contemplated by this
Agreement based on the fact that a signature was sent by telecopy or a document
was executed in counterpart.
SECTION 23. EXHIBITS.
Exhibits A through D and all Schedules attached hereto are incorporated
herein by this reference for all purposes.
SECTION 24. ATTORNEYS' FEES.
In any suit, action, proceeding, or appeal therefrom, to enforce this
Agreement or any term or provision hereof, or to interpret this Agreement, the
prevailing party shall be entitled to recover its costs incurred therein,
including reasonable attorneys' fees and disbursements.
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SECTION 25. MICROSOFT GUARANTY.
The obligations of Buyer under this Agreement, including without
limitation, the obligation to pay the Purchase Price and the obligations under
Sections 4.1, 13, 16 and 17 (which latter obligations shall survive the Closing
or earlier termination of this Agreement) shall be guaranteed by Microsoft
Corporation, a Washington corporation, pursuant to a separate guaranty in favor
of Seller in the form attached hereto as EXHIBIT D.
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EXECUTED in duplicate original as of the date and year first above
written.
SELLER: SPACELABS MEDICAL, INC.
a Delaware corporation
By
----------------------------------------
----------------------------------------
Its
------------------------------------
and
SPACELABS MEDICAL, INC.,
a California corporation
By
----------------------------------------
----------------------------------------
Its
------------------------------------
BUYER: USREA INC., A DELAWARE CORPORATION
By
----------------------------------------
----------------------------------------
Its
------------------------------------
19
20
Exhibit A
Legal Description
21
Schedule 1.2
ITEMS THAT COULD BE CONSIDERED FIXTURES, BUT THAT SPACELABS WILL NOT CONVEY TO
BUYER AND SHALL REMOVE AT EXPIRATION OF THE LEASE TERM:
Equipment used in manufacturing and as part of Spacelabs' business
Reception Desks
Security system
Computer projection systems in conference rooms
Enclosed white boards
EMI test chamber
TM antennas
Clock system (both buildings)
Reader boards (both buildings)
TV's on mounts (both buildings)
Vent hoods above gas work benches (both buildings)
All telephone switch equipment (both buildings)
Air compressors (both buildings)
Wire cage systems throughout both buildings
Eye wash systems
Pallet Wrapper
Kitchens: (both buildings)
Refrigerators
Stoves (excluding vent hoods)
Grills
Fryers
Dishwashers
Stainless work counters
ITEMS THAT MIGHT BE CONSIDERED PERSONAL PROPERTY BUT THAT SPACELABS WILL NOT
REMOVE AT EXPIRATION OF THE LEASE:
Building supplies unique to these buildings (matching carpet, tiles and like
items)
Projection screens in demo rooms and ECR
Raised floor and tiles in computer room
Vent hoods above stoves in kitchens (both buildings)
22
Schedule 4.3.1
Due Diligence Deliveries by Seller
ALTA/ACSM Land Title Survey, Triad Associates, 7/26/01
Building, architectural and engineering plans and drawings
Site Map
Building Floor Plans Engineers
Northwest letter dated April 3, 2001
SERVICE AND MAINTENANCE CONTRACTS:
A-Deli II - foodservice
ADT - badge reader
Allied Janitorial Services
American Security Services - security guards
UPS - Computer Power and Service
XxXxxxxxx Service - HVAC
The Safety Team, Inc. - fire protection
Eden - pest control
TUTCO - landscaping
Sammamish Sweepers
Thyssen-Sound Elevators
Pacific Detroit Diesel-Xxxxxxx
ENVIRONMENTAL:
Phase 1 Environmental Site Assessment Xxxx Business Center, Phase VI, April 19,
1994
Level 1 Environmental Assessment for Network Real Estate Services, January, 1990
Phase 1 Environmental Site Assessment of Spacelabs Manufacturing, July 18, 2001
Phase 1 Environmental Site Assessment of Spacelabs Corporate, July 18, 2001
Spacelabs Environmental Notebook containing:
AIR QUALITY TESTING
GAS CERTIFICATE OF CALIBRATION
FLOW SOLDER TREATMENT
C PLATES
BACK FLOW DEVICE TESTING
EPA ID
DEPARTMENT OF ECOLOGY REPORT
WASTE STREAMS PROFILES 2001
WASTE STREAMS PROFILES 2000
HAZARDOUS WASTE MSDS
STERICYLCLE BFI
SAFETY KLEEN CORP
ORANGE CLEAN-UP 2/01
SMI HAZARDOUS WASTE REPORT
HAZARDOUS WASTE INSTRUCTION
HAZARDOUS WASTE CAGE
HAZARDOUS SHIP LOG REDMOND
HAZARDOUS MANIFEST 2001
HAZARDOUS MANIFEST 2000
HAZARDOUS MANIFEST 1999
HAZARDOUS MANIFEST 1998
23
HAZARDOUS MANIFEST 1997
XXXXXXXX WASTE MANIFEST 96/97
BIO-HAZARD MANIFEST BFI
XXXXX LANDSCAPING MSDS
2
24
Schedule 4.4.1
"Schedule B" Title Exceptions
25
Exhibit B
Lease with SLMD-DE and Guaranty as Exhibit B Thereto
26
Exhibit C
Form of Deed
--------------------------------------------
RETURN ADDRESS
King & Spalding
1185 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxxxx X. Xxxxx, Esq.
--------------------------------------------
--------------------------------------------------------------------------------
DOCUMENT TITLE(s) (or transactions contained therein):
1. Bargain and Sale Deed
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
REFERENCE NUMBER(s) OF DOCUMENTS ASSIGNED OR RELEASED:
(on page of documents(s))
-----
--------------------------------------------------------------------------------
GRANTOR(s) (Last name first, then first name and initials):
1.
-------------------------------------------
2. [ ] Additional names on page of document.
-----
--------------------------------------------------------------------------------
GRANTEE(s) (Last name first, then first name and initials):
1.
-------------------------------------------
2. [ ] Additional names on page of document.
-----
--------------------------------------------------------------------------------
LEGAL DESCRIPTION (abbreviated: i.e. lot, block, plat or section, township,
range)
_______________________, with an address at [15120] [15220] XX 00xx Xxxxxx,
Xxxxxxx, Xxxxxxxxxx
[X] Full legal is on page of document.
--------------------------------------------------------------------------------
ASSESSOR'S PROPERTY TAX PARCEL/ACCOUNT NUMBER
------------------------------------------
--------------------------------------------------------------------------------
27
BARGAIN AND SALE DEED
GRANTOR, SPACELABS MEDICAL, INC., a [Delaware] [California] corporation, for and
in consideration of Ten Dollars ($10) and other good and valuable consideration
in hand paid, receipt and sufficiency of which are acknowledged, bargains, sells
and conveys to ___________________________________, a ________________________
("Grantee"), that certain real estate situated in King County, Washington, as
more particularly described in EXHIBIT A attached to and incorporated in this
Deed;
DATED: August ___, 2001.
---------------------------------
---------------------------------
STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
On this _____ day of August, 2001, before me, a Notary Public in and for
the State of Washington, duly commissioned and sworn, personally appeared
___________________, to me known to be the individual who executed the within
and foregoing instrument, and acknowledged that she signed the same as her free
and voluntary act and deed, for the uses and purposes therein mentioned.
GIVEN UNDER my hand and official seal hereto affixed the day and year in this
certificate first above written.
------------------------------------
(Signature of Notary)
------------------------------------
(Print or stamp name of Notary)
NOTARY PUBLIC in and for the State
of Washington, residing at .
---------------
My appointment expires: .
------------------
28
Exhibit D
Form of Microsoft Corporation Guaranty
GUARANTY
In consideration of the execution of that certain Real Estate Purchase
and Sale Agreement between Spacelabs Medical, Inc., a Delaware corporation, and
Spacelabs Medical, Inc., a California corporation (collectively, "SELLER") , as
sellers, and USREA, Inc., a Dealware corporation ("BUYER"), as buyer (the "P&S
AGREEMENT") of even date herewith, affecting premises more particularly
described therein and commonly known as 15120 and 00000 X.X. 00xx, Xxxxxxx,
Xxxxxxxxxx, the undersigned ("GUARANTOR") hereby guarantees to Seller, and its
successors and assigns, the payment and performance of all obligations of the
Buyer under the P&S Agreement, including, without limitation, the payment of the
Purchase Price (as defined therein) and all costs and expenses payable by Buyer
under the P&S Agreement, as well as the payment and performance of all
obligations of Buyer under the P&S Agreement that survive Closing (as defined
therein) or the termination of the P&S Agreement. Guarantor shall also pay to
Seller all legal costs and expenses, including without limitation, Seller's
attorneys' fees and disbursements, incurred in connection with any claim or
action to enforce of this Guaranty.
This Guaranty is an absolute and unconditional guaranty of payment and
of performance. It shall be enforceable against Guarantor without the necessity
of any suit or proceedings on the Seller's part against the Buyer or its
successors and assigns, and without the necessity of any notice of non-payment,
non-performance, or non-observance, or of any notice of acceptance of this
Guaranty, or of any other notice or demand to which the Guarantor might
otherwise be entitled, all of which Guarantor hereby waives. Guarantor agrees
that this Guaranty and the obligations of the Guarantor hereunder shall not be
terminated, affected, diminished, or impaired by reason of (i) any failure by
Seller to assert against Buyer or its successors or assigns any right or remedy
Seller may have, (ii) any assignment, renewal, modification or extension of the
P&S Agreement, (iii) any waiver by Seller of any term or provision of the P&S
Agreement, (iv) any bankruptcy or insolvency of Buyer, or its successors or
assigns, or (v) any dealings or transactions between Seller and Buyer, whether
or not Guarantor has consented to or received notice of any of the foregoing.
Guarantor acknowledges that it will derive substantial benefit from the
consummation of the transactions contemplated by the P&S Agreement,
notwithstanding that Buyer is not an affiliate of Guarantor, and that the
delivery of this Guaranty by Guarantor is a material condition to Seller's
obligation to close such transaction.
DATED: SEPTEMBER 12, 2001
MICROSOFT CORPORATION, A WASHINGTON
CORPORATION
BY
---------------------------------
29
EXECUTION
COPY
REAL ESTATE PURCHASE AND SALE AGREEMENT
Between
SPACELABS MEDICAL, INC.
a Delaware corporation
and
SPACELABS MEDICAL, INC.
A CALIFORNIA CORPORATION
collectively as Seller,
and
USREA, INC.,
a Delaware corporation, or its permitted assigns
Buyer
Dated as of September 5, 2001
30
TABLE OF CONTENTS
PAGE
SECTION 1. PURCHASE AND SALE..................................................1
Section 1.1 Property Being Sold....................................1
Section 1.2 Excluded Assets........................................2
SECTION 2. PURCHASE PRICE; PAYMENT............................................2
SECTION 3. XXXXXXX MONEY......................................................2
SECTION 4. DUE DILIGENCE......................................................3
Section 4.1 Access; Indemnity......................................3
Section 4.2 AS IS, WHERE IS........................................4
Section 4.3 Delivery of Information by Seller......................4
Section 4.4 Title Insurance........................................4
SECTION 5. OPERATION PRIOR TO CLOSING.........................................5
SECTION 6. CLOSING; PRORATIONS................................................6
Section 6.1 Time for Closing.......................................6
Section 6.2 Closing Costs..........................................6
Section 6.3 Prorations.............................................7
Section 6.4 Closing Documents......................................7
Section 6.5 Possession.............................................9
Section 6.6 Title Policy...........................................9
SECTION 7. DAMAGE OR CONDEMNATION PRIOR TO CLOSING............................9
Section 7.1 Damage or Destruction..................................9
SECTION 8. SELLER'S REPRESENTATIONS AND WARRANTIES...........................10
Section 8.1 Representations and Warranties........................10
Section 8.2 Disclaimer of Other Representations and Warranties....12
Section 8.3 Definitions of Seller's Knowledge.....................12
Section 8.4 Survival..............................................12
SECTION 9. BUYER'S REPRESENTATIONS AND WARRANTIES............................12
Section 9.1 Representations and Warranties........................12
Section 9.2 Survival..............................................13
SECTION 10. TERMINATION OTHER THAN FOR DEFAULT................................13
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31
SECTION 11. DEFAULT; REMEDIES.................................................13
Section 11.1 Buyer's Default......................................13
Section 11.2 Seller's Default.....................................13
SECTION 12. NOTICES...........................................................14
SECTION 13. COMMISSIONS.......................................................14
SECTION 14. ASSIGNMENT........................................................15
SECTION 15. EXCLUSIVE DEALING.................................................15
SECTION 16. CONFIDENTIALITY...................................................15
SECTION 17. DISCLOSURE........................................................16
SECTION 18. GOVERNING LAW.....................................................16
SECTION 19. ENTIRE AGREEMENT; SEVERABILITY....................................16
SECTION 20. MISCELLANEOUS.....................................................17
SECTION 21. WAIVER............................................................17
SECTION 22. FACSIMILE SIGNATURES; COUNTERPARTS................................17
SECTION 23. EXHIBITS..........................................................17
SECTION 24. ATTORNEYS' FEES...................................................17
SCHEDULES AND EXHIBITS
Exhibit A Legal Description
Exhibit B Lease
Exhibit C Form of Bargain and Sale Deed
Exhibit D Form of Microsoft Guaranty
Schedule 1.2 Excluded Fixtures
Schedule 4.3.1 Due Diligence Deliveries by Seller
Schedule 4.4.1 Schedule B Title Exceptions
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