EXHIBIT 10.23
AGREEMENT TO PURCHASE
---------------------
THIS AGREEMENT is made this 22nd day of May 1997, by and between ROYAL
NEIGHBORS OF AMERICA, an Illinois fraternal benefit society ("Seller"), and ETEC
SYSTEMS, INC., a Nevada corporation ("Purchaser").
RECITALS:
A. Seller is the fee owner of the land, building, and improvements
located on an approximately 4.2-acre parcel of land legally described on Exhibit
A attached hereto.
B. Seller desires to sell and Purchaser desires to purchase, the
"Property" (as hereinafter defined) upon and subject to the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained in this Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Seller and Purchaser
agree as follows:
ARTICLE 1
---------
DEFINITIONS
1.1 DEFINITIONS. When used herein, the following terms shall have
-----------
the respective meanings set forth opposite each such term:
AGREEMENT: This Agreement to Purchase including the Exhibits attached
hereto which are by this reference incorporated herein and made
a part hereof.
BROKER: Xxxxx & Xxxxx Company.
CLOSING That certain document provided by Seller to Purchaser at
CERTIFICATE: Closing under the terms of the Agreement reaffirming that the
warranties and representations provided to Purchaser by Seller
in this Agreement continue to remain valid in all material
respects unless otherwise noted therein.
CLOSING DATE: Thirty days after receipt of Notice of Completion of Demolition
or such later date as the Closing is extended pursuant to the
terms of this Agreement.
CLOSING: The date of recording of the Deed.
DEED: That certain recordable Grant Deed to be delivered by
Seller to Purchaser at the Closing conveying the Real
Property to Purchaser (or to Purchaser's designee)
subject only to the Permitted Title Exceptions.
DEPOSIT: The sum of $30,000 in the form of a check made payable
to Title Insurer, which will be deposited by Purchaser
with Title Insurer, to be held as xxxxxxx money subject
to the terms of this Agreement. Deposit also includes
the additional $120,000 deposited pursuant to paragraph
4.3 of this Agreement.
EFFECTIVE DATE: Date listed in the first unnumbered paragraph of this
Agreement.
IMPROVEMENTS: The building and all improvements located on the Real
Property as hereinafter defined.
NOTICE OF COMPLETION The notice given by Seller to Purchaser along with
OF DEMOLITION: certificate of completion from the city indicating that
all demolition work has been properly performed.
NOTICE OF INTENT A notice given by Purchaser to Seller indicating that it
TO PROCEED: has reviewed all necessary documentation, performed its
physical inspection, and has otherwise completed its
review of all necessary items and either is satisfied
with the results, or is willing to waive any objections
to proceeding with Closing.
PROPERTY: The Real Property.
PURCHASE The consideration payable by Purchaser to Seller for the
PRICE: Property, as provided in Article III.
PURCHASER: Etec Systems, Inc., a Nevada corporation.
REAL PROPERTY: The Real Property described on Exhibit A attached
hereto, the Improvements, all right, title and interest
of Seller in and to (l) all public and xxxxxxx xxxxxxx,
xxxxx, xxxxxxx, alleys, and passageways, opened or
proposed in front of or abutting said real property and
(ii) any strips or gores of land adjoining said real
property, and all and singular the estates, rights,
privileges, easements, and appurtenances owned by Seller
and in any way appurtenant to or related to the
properties described in this paragraph.
SELLER: Royal Neighbors of America, a fraternal benefit society
organized under the laws of the state of Illinois.
2
TITLE A commitment for an ALTA 1992 Owners Title Insurance Policy
COMMITMENT: for the Real Property issued by the Title Insurer in the full
amount of the Purchase Price, covering title to the Real
Property, dated on or after the date hereof, showing Seller as
owner of the Property in fee simple, and showing Purchaser as
the prospective named insured.
TITLE INSURER Chicago Title Insurance Company, or such other title insurer as
the parties may mutually agree upon.
ARTICLE II
----------
PURCHASE AND SALE
2.1 PURCHASE AND SALE. Subject to the conditions and on the terms
-----------------
contained in this Agreement, Purchaser agrees to purchase and acquire from
Seller, and Seller agrees to sell and transfer to Purchaser, the Real Property
by the Deed, and the Personal Property by the Xxxx of Sale.
ARTICLE III
-----------
PURCHASE PRICE
3.1 PURCHASE PRICE. The Purchase Price shall be NINE HUNDRED
--------------
THIRTY-THREE THOUSAND DOLLARS ($933,000) payable as hereinafter provided.
Purchaser agrees to pay to Seller and Seller agrees to accept payment of the
Purchase Price as follows:
(a) The Deposit shall be applied against the Purchase Price at
Closing.
(b) Purchaser shall provide at Closing such additional sums as is
necessary to pay to Seller the agreed upon Purchase Price.
ARTICLE IV
----------
CLOSING MATTERS
4.1 TITLE. No later then ten (10) business days from the Effective
-----
Date of this Agreement, Seller shall deliver the Title Commitment to Purchaser,
together with legible copies of all exceptions or conditions to title identified
therein.
3
4.2 FINANCING. Purchaser shall have (30) days from the Effective
---------
Date of this Agreement in which to obtain financing on terms and conditions
which meet its approval. However, unless Purchaser notifies Seller on or before
the thirtieth (30th) day after the Effective Date that it has not found
satisfactory financing, Purchaser shall be deemed to have waived this financing
requirement as a condition of Closing. Should Purchaser notify Seller within the
thirty-day time limit that it has not found satisfactory financing, then this
Agreement shall be declared null and void without further obligation of either
party, except that the Deposit delivered to the Title Insurer shall be returned
to Purchaser.
4.3 NOTICE OF INTENT. Purchaser shall have forty-five (45) days from
----------------
the Effective Date of this Agreement to review all matters related to its
decision as to whether it wishes to close this transaction. On or before the end
of business on the 45th day after the Effective Date of this Agreement,
Purchaser shall deliver to Seller either a Notice of Intent to Proceed or a
notice that it no longer wishes to consummate the transaction. Such notice shall
be in compliance with Section 9.1 of this Agreement. Should Purchaser elect to
deliver a Notice of Intent to Proceed, Purchaser shall contemporaneously
therewith deliver to Title Insurer the sum of $120,000 to be held as Deposit, as
that term is defined herein. Unless Purchaser delivers both the Notice of Intent
to Proceed and the $120,000 additional Deposit on or before the 45th day
following the Effective Date of this Agreement, this Agreement shall be declared
terminated without further obligation by either party, except that the Deposit
delivered to Title Insurer will be returned to Purchaser.
4.4 DEMOLITION.
----------
(a) Within fifteen (15) days of receipt of the Notice of Intent to
Proceed and payment of the additional deposit, Seller shall enter into a
contract for the demolition of the building under terms substantially similar to
the contract attached hereto, marked as Exhibit "B", and by this reference
incorporated herein. The demolition shall proceed in accordance with the terms
of the contract. When the demolition is completed, Seller shall be entitled to
submit to Title Insurer a request for payment. Upon receipt of such request,
along with appropriate lien waivers from the demolition contractor, Title
Insurer shall pay out of the Deposit sums due the demolition contractor.
(b) Seller shall deliver to Purchaser within ten days of receipt of
payment from Title Insurer a Notice of Completion of Demolition. Upon receipt of
such notice, Purchaser shall conduct such inspection of the Premises and records
concerning the demolition. Purchaser shall have fifteen (15) days within which
to notify Seller that it objects to the condition of the Property after
demolition. Only such items as affect the scope of the demolition work not being
performed in accordance with the Demolition Contract attached hereto as Exhibit
B, or which affect the environmental condition of the Property and were not
discovered or could not reasonably be discovered by Purchaser prior to
Purchaser's original delivery of its Notice of Intent to Proceed may be raised
by the Purchaser at this time. Unless Purchaser provides Seller with notice of
objection to the condition of Property within fifteen (15) days of its receipt
of Notice of Completion of Demolition from Seller, all matters which could have
been raised by Purchaser
4
after its receipt of Notice of Completion of Demolition shall be deemed to have
been waived by Purchaser and Parties shall proceed to closing.
(c) Should Purchaser notify Seller that it objects to the condition of
the Property after demolition, Purchaser shall provide a written notice to
Seller detailing the nature of the objection. Seller shall have ten days to
notify Purchaser whether it intends to cure the objection and proceed with
closing or declare this agreement null and void. Should Seller decide to cure
the objection, Seller may extend the Closing for up to 120 days if Seller is
diligently pursuing curing Purchaser's objection. If Seller determines that it
cannot or will not cure Purchaser's objection, then this agreement shall be
terminated without further rights by either party, except the full Deposit shall
be returned to Purchaser, including any funds drawn by Seller to pay for the
demolition.
4.5 POSSESSION, PRORATIONS AND EXPENSES.
-----------------------------------
(a) Sole and exclusive possession of the Property shall be delivered to
Purchaser on the Closing Date.
(b) General and special real estate and other ad valorem taxes and
assessments and other state or city taxes, fees, charges and assessments
affecting the Property, utility charges and deposits, if any, and all other
customarily proratable items shall be prorated as of Closing Date on the basis
of the most recent ascertainable amounts of or other reliable information in
respect to each such item of income and expense and the net credit to Purchaser
or Seller shall be paid in cash or as a credit against the Purchase Price. The
foregoing notwithstanding, any general or special assessment payable in
installments shall be paid by Seller in full at Closing. All prorations will be
calculated as of the end of the day immediately prior to the Closing Date.
(c) Seller shall pay one-half (1/2) of the closing charges, and all
state and county transfer taxes in connection with the transaction contemplated
hereby. Purchaser shall pay title charges for the Title Commitment, the owner's
title policy required, including any endorsements thereto, one-half (1/2) of the
closing charges, municipal transfer taxes, and all charges for recordation of
the Deed. The parties shall each be solely responsible for the fees and
disbursements of their respective counsel and other professional advisers.
4.6 CLOSING.
-------
(a) The transaction contemplated hereby shall close at 10:00 a.m. on the
30th day after Seller's delivery to Purchaser of the Notice of Completion of
Demolition ("Closing Date") at the offices of the Title Insurer in Hayward,
California, unless the parties agree to an earlier date.
(b) On the Closing Date, Seller shall deposit the Title Insurer the
following:
(i) The Deed;
5
(ii) An affidavit that Seller is not a foreign person as described
in the Foreign Investment in Real Property Tax Act, which shall include
Seller's tax identification number;
(iii) A California Form 590-RE Real Estate Witholding Exemption
Certificate.
(iv) An assignment of the indemnification provision relating to
environmental matters contained in the agreement between Seller and Criton
Technologies guaranteed by Xxxxx-Xxxxxxx-Xxxxx Corporation dated October
24, 1994.
(v) An extended coverage ALTA 1992 Policy of Title Insurance (the
"Owner's Title Policy") issued by the Title Insurer conforming to the
requirements of Section 4.1 insuring Purchaser's title in indefeasible
fee simple in the amount of the Purchase Price, containing no exceptions
other than those exceptions listed in the title commitment and not
objected to by Purchaser and excluding coverage for Survey.
(vi) A Closing Certificate.
(vii) Such other documents, instruments, certifications and
confirmations as may be reasonably required and designed by Purchaser to
fully effect and consummate the transaction contemplated hereby.
(c) On the Closing Date, Purchaser shall deposit with the Title Insurer
the following:
(i) The balance of the Purchase Price as provided in Section
3.1(b); and
(ii) Such other documents, instruments, certifications and
confirmations as may be reasonably required and designated by Seller to
fully effect and consummate the transaction contemplated hereby.
(d) Seller and Purchaser shall jointly deliver to each other at Closing
an agreed proration statement and certificates complying with the provisions of
state, county and local law applicable to the determination of documentary and
transfer taxes.
ARTICLE V
---------
BROKERAGE
5.1 BROKERAGE. Seller hereby agrees to pay to Broker for Seller a
---------
commission for such sale on condition that the sale is consummated as herein
provided. Commission shall be paid out of Seller's funds at the closing.
Seller hereby represents and warrants to Purchaser that Seller has not dealt
with any other broker or finder in respect to the transaction contemplated
hereby except Xxxx XxXxxxx, who was originally affiliated with Broker but
currently works for
6
White Commercial Real Estate. Xx. XxXxxxx has agreed to look solely to Broker
for payment. Purchaser hereby represents and warrants to Seller that Purchaser
has not dealt with any other broker or finder in respect to the transaction
contemplated hereby. Purchaser and Seller each hereby agree to indemnify the
other for any claim for brokerage commission or finder's fee asserted by a
person, firm, or corporation, claiming to have been engaged by them.
ARTICLE VI
----------
DESTRUCTION, DAMAGE OR CONDEMNATION
6.1 DESTRUCTION OR DAMAGE. The parties understand that Purchaser is
---------------------
buying the Property as vacant land. Therefore, Purchaser agrees to assume all
risk of loss associated with the destruction of the building or other
improvements on the Property and agrees to take the Property in its condition at
the time of Closing, subject to the Seller completing Demolition pursuant to
Section 4.4 hereof. Seller may elect to continue its insurance coverage on the
Property and will be entitled to receive any and all proceeds associated with
any damage or destruction between the Effective Date and the Closing Date.
6.2 CONDEMNATION. If, subsequent to the Effective Date and prior to the
------------
Closing Date, any proceeding, judicial, administrative or otherwise, which shall
relate to the proposed taking of any portion of the Real Property by
condemnation or eminent domain or any action in the nature of eminent domain, or
the taking or closing of any right of access to the Real Property, is
threatened, instituted or commenced, Purchaser shall have the right and opinion
to terminate this Agreement. Unless Purchaser notifies Seller within 20 days of
Purchaser's receipt of notice from Seller that the Property may be condemned
that it intends to accept the Property subject to the Condemnation, this
Agreement shall be declared terminated without further liability to either
party, except the Deposit shall be returned to Purchaser along with any funds
received by Seller from Purchaser for extending the Closing Date. If Purchaser
notifies Seller of its intent to accept the Property after Condemnation,
Purchaser shall be credited with or be assigned all Seller's right to any
proceeds therefrom. Seller agrees to furnish Purchaser written notification
with respect to any such proceedings within forty-eight hours of Seller's
receipt of any such notification or learning of the institution or threatened
institution of such proceedings.
ARTICLE VII
-----------
COVENANTS, REPRESENTATIONS, WARRANTIES
7.1 AFFIRMATIVE COVENANTS, REPRESENTATIONS AND WARRANTIES OF SELLER.
---------------------------------------------------------------
Seller took possession of this Property through default by its ground lessee
under a net lease transaction. Seller has not conducted a thorough inspection of
the property nor is it aware of all the activities that took place at the
Property prior to its taking possession of the Property.
7
(a) Seller hereby represents and warrants as of the Effective Date and
as of the Closing Date that, to its actual knowledge and without any
investigation or obligation or duty to so investigate, that:
(i) there are no leases with respect to the occupancy of the
Property and no party has any right to the use or occupancy of any part
thereof;
(ii) there is no pending condemnation or similar proceeding
affecting the Real Property or any portion thereof, and Seller has not
received any written notice and has no knowledge that any such proceeding
is contemplated;
(iii) except for the demolition proposal attached as Exhibit "B" to
this Agreement, there are no contracts of employment, management,
maintenance, service, supply, or rental outstanding which affect any
portion of the Property;
(iv) no work has been performed or is in progress and no materials
have been furnished, which might give rise to mechanic's, materialman's,
or other liens against the Property or any portion thereof;
(v) Seller is duly organized, validly existing, and in good
standing under the laws of the state of its origin and has full right,
title, authority, and capacity to execute and perform this Agreement and
to consummate all of the transactions contemplated herein, and the
individual of the Seller who executes and delivers this Agreement and all
documents to be delivered to Purchaser hereunder is and shall be duly
authorized to do so;
(vi) except for the items which are to be assumed by Purchaser or
to be prorated as hereinbefore or hereinafter set forth, Seller shall be
solely liable for payment of all costs and expenses, liabilities,
obligations, and claims arising out of Seller's ownership and Seller's
operation of the Property prior to Closing; and Seller hereby agrees to
defend, indemnify, and hold Purchaser (any designee) forever harmless
therefrom;
(vii) all information given to Purchaser or by or on behalf of
Seller and pertaining to the Property or the operations thereon is true
and correct in all respects, and fully and accurately depicts the matters
set forth therein; further, neither Seller nor any officer of Seller knows
of any facts, conditions, or other information which have not been
disclosed fully to Purchaser and which could reasonably be expected to
have a material bearing or effect upon Purchaser's decision to enter into
this Agreement and Purchaser's decision to consummate the transactions
contemplated hereby;
(viii) that except for such matters as are disclosed to the
Purchaser pursuant to Paragraph 7.1(d) of this Agreement, there are no
transactions, suits, proceedings (including zoning or other land use
regulation proceedings), litigation governmental actions, or
investigations pending or threatened against or affecting Seller or the
Property, which would prevent Seller from meeting any of its obligations
under this Agreement or
8
which would result in a material adverse change in the condition or
operation of the Property.
(ix) that since Seller took possession of the Property in August
1993, Seller has not placed or caused to be placed any hazardous materials
on the Property.
All of Seller's warranties and representations shall survive any inspection or
investigation made by or on behalf of Purchaser and shall not merge with
delivery of the Deed but shall survive for a period of eighteen months from
delivery of said Deed. Seller agrees to indemnify Purchaser for any damages
incurred by Purchaser as a result of a breach of the warranties and
representations given by Seller in this Agreement.
(b) From the Effective Date to the Closing Date or earlier termination
of this Agreement, Seller shall not do, suffer or permit or agree to do any of
the following:
(i) Enter into any transaction in respect to or affecting the
Property out of the ordinary course of business, except a contract for
demolition of the existing structure on the Property;
(ii) Sell, encumber, or grant any interest in the Property or any
part thereof in any form or manner whatsoever, or otherwise perform or
permit any act which will diminish or otherwise affect Purchaser's
interest under this Agreement or in the Property which will prevent
Seller's full performance of its obligations hereunder.
(c) Seller shall permit Purchaser and representatives, agents,
employees, lenders, contractors, appraisers, architects, and engineers
designated by Purchaser access to and entry upon the Real Property and the
Improvements to examine, inspect, measure and test the Property (the "Physical
Inspection"). Purchaser acknowledges that the improvements have been severely
damaged and are scheduled to be torn down as part of this Agreement. Purchaser
agrees to take the Property in an "as-is", "where-is" condition at time of
closing, subject to Seller completing the demolition pursuant to Section 4.4
hereof, and will have ample opportunity to conduct a full inspection of the
Property. In the event Purchaser elects not to proceed with this transaction,
Purchaser agrees to return the Property to the condition it was in prior to the
Purchaser conducting its inspection. Purchaser agrees to assume the risk of harm
in inspecting the Property and agrees to indemnify Seller for any third party
claims resulting from Purchaser's inspection of the Property. Purchaser's
obligations under this subsection shall survive any termination or nullification
of this Agreement.
(d) Seller shall deliver to Purchaser not later than ten (10) business
days following the Effective Date, true, correct and complete copies of the
following to the extent in Seller's possession:
(i) Real estate tax bills received by Seller pertaining to the
Real Property;
(ii) Any environmental studies and engineering reports in Seller's
possession;
9
(iii) A list of all known actions, suits, and legal or
administrative proceedings relating to the Property.
(e) Seller shall notify Purchaser promptly if Seller becomes aware of
any transactions or occurrence prior to the Closing Date which would have an
adverse impact on the Property or Seller's ability to Close this Agreement.
(f) At Closing Seller shall deliver the Property free and clear of all
debris, scrap material, oil drums, and other like material. Purchaser may
inspect the Property prior to Closing to insure Seller's compliance with this
requirement. Seller shall deliver to Purchaser evidence that any asbestos or
asbestos containing material contained in the Improvements have been removed
from the Property and disposed of properly by the Seller.
ARTICLE VIII
------------
CONDITIONS PRECEDENT AND TERMINATION
8.1 CONDITIONS TO PURCHASER'S OBLIGATIONS. The obligations of the
Purchaser under this Agreement are subject to satisfaction of all of the
conditions set forth in this Section 8.1. Purchaser may waive any or all of such
conditions in whole or in part but any such waiver shall be effective only if
made in writing. After the Closing, any such condition that has not been
satisfied shall be treated as having been waived in writing. Provided Purchaser
has not already terminated this Agreement pursuant to either Section 4.2,
Section 4.3, or Section 4.4(c), no such waiver shall constitute a waiver by
Purchaser of any of its rights or remedies if Seller defaults in the performance
of any material covenant or agreement to be performed by Seller or if Seller
breaches any representation or warranty made by Seller or in Seller's Closing
Certificate. If any condition set forth in this Section 8.1 is not fully
satisfied or waived in writing by Purchaser or by the applicable dates set forth
below, this Agreement shall, at Purchaser's option, terminate, but without
releasing Seller from liability if Seller defaults in the performance of any
such material covenant or agreement to be performed by Seller or if Seller
materially breaches any such representation or warranty made by Seller before
such termination.
(a) Before Closing Date Purchaser has not notified Seller of intent to
terminate due to lack of satisfactory financing pursuant to Paragraph 4.2 of
this Agreement.
(b) Before Closing Date Purchaser has notified Seller of Purchaser's
intent to proceed with this Agreement prior to the expiration of the 45-day
period referenced in paragraph 4.1 of this Agreement.
(c) On the Closing Date, Seller shall not be in default in the
performance of any material covenant or agreement to be performed by Seller
under this Agreement since Purchaser's acceptance of the Property after Seller
has provided its Notice of Completion of Demolition. Seller shall not have
given purchaser an Environmental Notice from any appropriate
10
Governmental Agency and there shall not have been a release of Hazardous
Materials or a violation of Environmental Laws at the Real Property since Seller
provided its Notice of Completion of Demolition.
(d) On the Closing Date, Purchaser shall have received written
confirmation from Broker that all leasing commissions owed to Broker as to any
leases entered into with respect to the Real Property shall have been paid or,
alternatively, that Broker acknowledges and agrees that Purchaser and its
successors shall have no obligation for payment of such pre-existing
commissions.
8.2 CONDITIONS TO SELLER'S OBLIGATIONS. The obligation of Seller to
----------------------------------
close the transaction contemplated hereby is, at Seller's option, subject to all
obligations of Purchaser which were to have been performed on or before the
Closing Date having been timely and duly performed. If any condition precedent
to Closing of Seller as set forth in this Section 8.2 has not been fulfilled and
satisfied on or before the Closing Date, Seller may elect by written notice
within 10 days of Closing Date, to extend the Closing Date for a period not to
exceed 30 days to permit Purchaser to fulfill such conditions, or may elect to
terminate this Agreement, provided that the Seller is not itself in default, and
shall be entitled, as its sole remedy, to retain the Deposit as full and
complete liquidated damages pursuant to Paragraph 8.3 (and not as a penalty or
forfeiture) and all other funds and documents theretofore delivered hereunder or
deposited in escrow by either party, except for such funds as may have been paid
to Seller as consideration for extending the Closing Date, shall be promptly
returned to such party.
8.3 LIQUIDATED DAMAGES. IF ESCROW FAILS TO CLOSE DUE TO BUYER'S
------------------
DEFAULT UNDER THIS AGREEMENT, SELLER WILL BE DAMAGED AND WILL BE ENTITLED TO
COMPENSATION FOR THOSE DAMAGES. SUCH DAMAGES WILL, HOWEVER, BE EXTREMELY
DIFFICULT AND IMPRACTICAL TO ASCERTAIN FOR THE FOLLOWING REASONS: (1) THE
DAMAGES TO WHICH SELLER WOULD BE ENTITLED IN A COURT OF LAW WILL BE BASED IN
PART ON THE DIFFERENCE BETWEEN THE ACTUAL VALUE OF THE PROPERTY AT THE TIME SET
FOR THE CLOSE OF ESCROW AND THE PURCHASE PRICE FOR THE PROPERTY AS SET FORTH IN
THIS AGREEMENT; (2) PROOF OF THE AMOUNT OF SUCH DAMAGES WILL BE BASED ON
OPINIONS OF VALUE OF THE PROPERTY, WHICH CAN VARY IN SIGNIFICANT AMOUNTS; AND
(3) IT IS IMPOSSIBLE TO PREDICT AS OF THE DATE ON WHICH THIS AGREEMENT IS MADE
WHETHER THE VALUE OF THE PROPERTY WILL INCREASE OR DECREASE AS OF THE DATE SET
FOR THE CLOSE OF ESCROW. BUYER DESIRES TO LIMIT THE AMOUNT OF DAMAGES FOR WHICH
BUYER MIGHT BE LIABLE SHOULD BUYER BREACH THIS AGREEMENT. BUYER AND SELLER WISH
TO AVOID THE COSTS AND LENGTHY DELAYS WHICH WOULD RESULT IF SELLER FILED A
LAWSUIT TO COLLECT ITS DAMAGES FOR A BREACH OF THIS AGREEMENT.
THEREFORE, IF ESCROW FAILS TO CLOSE DUE TO BUYER'S DEFAULT, THE SUM
REPRESENTED BY BUYER'S DEPOSIT AND EXTENSION DEPOSITS DELIVERED TO TITLE
INSURER, IF ANY, IF BUYER EXERCISES ITS RIGHT TO THE EXTENSION
11
PERIODS SHALL BE DEEMED TO CONSTITUTE A REASONABLE ESTIMATE OF SELLER'S DAMAGES
UNDER THE PROVISIONS OF SECTION 1671 OF THE CALIFORNIA CIVIL CODE, AND SELLER'S
SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF THE FAILURE TO CLOSE ESCROW RESULTING
FROM BUYER'S DEFAULT SHALL BE LIMITED TO SUCH SUM AND SUCH SUM SHALL BE PAID TO
SELLER AS LIQUIDATED DAMAGES UPON BUYER'S DEFAULT. BY INITIALING THIS PROVISION
IN THE SPACES BELOW, SELLER AND BUYER EACH SPECIFICALLY AFFIRM THEIR RESPECTIVE
AGREEMENTS CONTAINED IN THIS AGREEMENT AND AGREE THAT SUCH SUM IS A REASONABLE
SUM CONSIDERING THE CIRCUMSTANCES AS THEY EXIST ON THE DATE OF THIS AGREEMENT.
SELLER HEREBY WAIVES ANY RIGHT TO AN ACTION FOR SPECIFIC PERFORMANCE OF ANY
PROVISIONS OF THIS AGREEMENT.
/s/ R.E.S. /s/ M.J.M.
---------------- --------------------
Seller's Initials Purchaser's Initials
ARTICLE IX
----------
NOTICES
9.1 NOTICES. Any notice, request, demand, instrument or other
-------
document to be given or served hereunder shall be in writing and shall be
delivered personally or sent by registered or certified mail, return receipt
requested, postage prepaid, or by overnight express courier with next business
day delivery specified, or by facsimile transmission and addressed to the
parties at their respective addresses set forth below, and the same shall be
effective upon receipt if delivered personally, or five (5) business days after
deposit in the mails, if mailed, or upon receipt if deposited with an overnight
express courier or sent by facsimile transmission. A party may change its
address for receipt of notices by service of a notice of such change in
accordance herewith.
If to Purchaser:
---------------
Etec Systems, Inc.
Attention: Xxxx X. Xxxxxx, Esq.
00000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Facsimile (000) 000-0000
If to Seller:
------------
Royal Neighbors of America
Attention: Xxxxxxx X. Xxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxxx Xxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
12
Copy to:
-------
Xxxxx & Xxxxx Commercial Real Estate Services
Attention: _______________________
0000 Xxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxxxx 00000
Facsimile (000) 000-0000
ARTICLE X
---------
ADDITIONAL COVENANTS
10.1 ENTIRE AGREEMENT, AMENDMENTS AND WAIVERS. This Agreement contains
---------------------------------------
the entire agreement and understanding of the parties with respect to the
subject matter hereof, and the same may not be amended, modified or discharged
nor may any of its terms to waived except by an instrument in writing signed by
the party to be bound thereby.
10.2 FURTHER ASSURANCES. The parties each agree to do, execute,
------------------
acknowledge and deliver all such further acts, instruments and assurances and to
take all such further action before or after the Closing as shall be necessary
or desirable to fully carry out this Agreement and to fully consummate and
effect the transaction contemplated hereby.
10.3 SURVIVAL AND BENEFITS. All representations, warranties, agreements,
---------------------
obligations and indemnities of the parties shall, notwithstanding any
investigation made by any party hereto, survive Closing and the same shall inure
to the benefit of and be binding upon the Purchaser's designee and the
respective successors and assigns of the parties.
10.4 NO THIRD PARTY BENEFITS. This Agreement is for the sole and
-----------------------
exclusive benefit of the parties hereto, the designee of Purchaser herein
referred to, and their respective successors and assigns, and no third party is
intended to or shall have any rights hereunder. Purchaser reserves the right to
assign its rights under this Agreement and/or designate at Closing to accept
title to the Property.
10.5 INTERPRETATION.
--------------
(a) The headings and captions herein are inserted for convenient
reference only and the same shall not limit or construe the paragraphs or
sections to which they apply or otherwise affect the interpretation hereof.
(b) The terms "hereby", "hereof", "hereto", "herein", "hereunder" and
any similar terms shall refer to this Agreement, and the term "hereafter" shall
mean after, and the term "heretofore" shall mean before, the date of this
Agreement.
13
(c) Words of the masculine, feminine or neuter gender shall mean and
include the correlative words of other genders and words importing the singular
number shall mean and include the plural number and vice versa.
(d) Words importing persons shall include firms, associations,
partnerships (including limited partnerships), trusts, corporations and other
legal entities, including public bodies, as well as natural persons.
(e) The terms "include", "including", and similar terms shall be
construed as if followed by the phrase "without being limited to".
(f) This Agreement and any document or instrument executed pursuant
hereto may be executed in any number of counterparts each of which shall be
deemed an original, but all of which together shall constitute the same
instrument.
(g) Whenever under the terms of this Agreement the time for performance
of a covenant or condition falls upon a Saturday, Sunday or holiday, such time
for performance shall be extended to the next business day, otherwise all
references herein to "day" shall mean calendar days.
(h) This Agreement shall be governed by and construed in accordance with
the laws of the State of California.
(i) In any action to enforce or interpret any of the terms of this
Agreement, the prevailing party shall be entitled to recover its expenses,
including reasonable attorneys fees and costs of litigation.
(j) Time is of the essence of this Agreement.
IN WITNESS WHEREOF, this Agreement has been executed and delivered by
Seller and Purchaser on the date first above written.
Purchaser:
ETEC SYSTEMS, INC., a Nevada corporation
By: /s/ Xxxxxxx X. Xxxx
-------------------
Name: Xxxxxxx X. Xxxx
-------------------
Title: Treasurer
-------------------
14
Seller:
ROYAL NEIGHBORS OF AMERICA, an Illinois
fraternal benefit society
By: /s/ Xxxxxx X. Xxxxxx
---------------------
Name: Xxxxxx X. Xxxxxx
------------------
Title: Investment Manager
------------------
15
EXHIBIT A
Lots 19 and 20, as shown on the map of "Tract 2898, EDEN LANDING INDUSTRIAL
PARK, CITY OF HAYWARD, ALAMEDA COUNTY, CALIFORNIA", filed June 30, 1967, in Book
55 of Maps, Pages 25 to 29, inclusive, in the office of the County Recorder of
Alameda County.
Assessors Parcel No. 461-0001-021-01
ADDRESS OF PROPERTY: 00000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx
16
