OPTION AGREEMENT
THIS OPTION AGREEMENT (the "Agreement") is made and entered into as of this
26th day of February, 1996 (the "Execution Date"), by and between RTI Inc., a
New York corporation ("RTI"), and Sterigenics International, a California
corporation ("Sterigenics").
RECITALS
A. RTI and Sterigenics are parties to an Asset Acquisition Agreement
dated February 26, 1996 (the "Acquisition Agreement"), pursuant to which
Sterigenics or its wholly-owned subsidiaries acquired the right to purchase from
RTI certain real property and tangible and intangible assets.
B. Pursuant to Section 12.4 of the Acquisition Agreement, RTI has granted
Sterigenics the exclusive right and option to purchase from RTI certain real
property located in Haw River, North Carolina, as more particularly described in
EXHIBIT "A" attached hereto (the "Real Property"), together with all
Improvements thereon and the Personal Property (as those terms are defined in
Paragraph 1 below).
C. RTI and Sterigenics desire to enter into this Agreement for the
purpose of setting forth the covenants, terms, conditions and price pursuant to
which Sterigenics shall have the right to purchase the Real Property, the
Improvements, and the Personal Property.
NOW THEREFORE, the parties agree as follows:
AGREEMENT
1. GRANT OF OPTION. RTI hereby grants to Sterigenics, within the time
period specified in Paragraph 3 below and upon the other terms and conditions
hereinafter set forth, the exclusive right and option (the "Option") to purchase
the following (all of which collectively is referred to as the "Property"): (a)
the Real Property; (b) all structures, buildings, improvements and fixtures
located on the Real Property (collectively, the "Improvements"); (c) all
tangible plant, property and equipment located on or used in connection with the
operation or occupancy of the Real Property and the Improvements, including all
heating and air-conditioning systems and facilities used to provide any utility
services, parking services, refrigeration, ventilation, and trash disposal or
other services (collectively, the "Equipment"); and (d) all right, title and
interest of RTI in (i) all plans, drawings, specifications, land surveys,
entitlements and approvals, engineering reports and other technical reports, if
any, in the possession of RTI or which are available to RTI without additional
cost and which were prepared in connection with the development of the Real
Property or the construction of the Improvements for such Real Property; (ii)
all hereditaments, privileges, tenements and appurtenances belonging to the Real
Property; (iii) all open or proposed xxxxxxxx, xxxxxxx, xxxxx, xxxxxxx, alleys,
easements, strips, gores and rights-of-way in, on, across, in front of,
contiguous to, abutting or adjoining the Real Property; (iv) all transferable
licenses, permits and warranties now in effect with respect to the Improvements;
and (v) all transferable warranties, guaranties, indemnities and claims relating
to
the construction, operation or maintenance of the Real Property and/or the
Improvements (the "Intangible Property"). The Equipment and the Intangible
Property collectively are referred to herein as the "Personal Property."
Personal Property expressly excludes any Cobalt 60.
2. CONSIDERATION.
2.1 OPTION CONSIDERATION. As the option consideration for the
granting of the Option and for other good and valuable consideration, the
receipt and adequacy of which hereby are acknowledged, Sterigenics has entered
into the Acquisition Agreement and has paid to RTI concurrently with the
execution and delivery of this Agreement the sum of One Thousand Dollars
($1,000.00) (the "Option Consideration"), the receipt of which hereby is
acknowledged by RTI. The Option Consideration shall be nonrefundable to
Sterigenics except as otherwise provided herein.
2.2 APPLICATION OF OPTION CONSIDERATION. If Sterigenics exercises
the Option as provided in Paragraph 4 below, the Option Consideration paid to
RTI shall be applied as a credit against the Purchase Price (as defined in
Paragraph 5 below).
3. OPTION TERM. The term of the Option (the "Option Term") shall
commence upon satisfaction of both of the Option Conditions (as hereinafter
defined) and shall expire on the first to occur of (a) January 1, 2000, or (b)
the date that is sixty (60) days after the satisfaction of the Option Conditions
or (c) November 27, 1996 if RTI has not received an Acquisition Proposal prior
to such date. For purposes of this Paragraph 3, the term "Option Conditions"
means that (i) the Acquisition Agreement shall have been terminated by
Sterigenics pursuant to Section 12.1(g) thereof and written notice of such
termination shall have been given by Sterigenics or RTI, as the case may be, to
the other party in accordance with the Acquisition Agreement, and (ii) RTI shall
have entered into a legally binding and enforceable agreement relating to an
"Acquisition Proposal" (as defined in Section 6.1(a) of the Acquisition
Agreement). RTI shall notify Sterigenics in writing immediately upon execution
of such agreement.
4. EXERCISE OF OPTION. The Option shall be exercised, if at all, prior
to the expiration of the Option Term by delivery to RTI of a written notice
executed by Sterigenics and specifying therein Sterigenics' election to exercise
the Option. If Sterigenics fails to exercise the Option in a timely manner as
herein provided, or if Sterigenics is in breach of its obligations to complete
the purchase of the Real Property as provided herein, then (i) all Option
Consideration shall be retained by RTI as earned consideration for the granting
of the Option, (ii) all instruments and documents deposited with the Closing
Agent (as defined in Paragraph 9.2 hereof) or delivered to the other party shall
be returned to the depositing parties, (iii) this Agreement shall terminate and
be of no further force or effect; and (iv) neither party shall have any further
obligation hereunder to the other.
5. PURCHASE PRICE. Upon exercise of the Option, Sterigenics shall be
obligated to purchase and RTI shall be obligated to sell the Property at a
purchase price equal to the book value of the Property as of the Closing plus
Four Hundred Thousand Dollars ($400,000.00) (the "Purchase Price"). The
Purchase Price shall be payable, at the option of RTI, by certified check
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or wire transfer of immediately available funds on the Closing Date (defined in
Paragraph 9.1), subject to credit to Sterigenics for payment of the Option
Consideration.
6. DOCUMENTS. To the extent not previously provided by RTI pursuant to
the Acquisition Agreement, within five (5) days after the commencement of the
Option Term, RTI shall deliver to Sterigenics all reports, tests, studies,
diagrams, maps, plans, specifications, and other documents, including soils,
geological and Hazardous Material (as defined in Paragraph 10.9 hereof) reports
in its possession or control, prepared for or provided to RTI with respect to
the environmental condition of the Real Property, the Improvements, and the soil
and ground water under or within 1,000 feet of the boundaries of the Real
Property.
7. INSPECTION. RTI hereby grants Sterigenics the right to enter upon and
to inspect the Real Property during the Option Term and to approve the
environmental risks and conditions (including the soil and groundwater) of the
Real Property. For the purpose of Sterigenics' physical inspections, RTI agrees
to provide Sterigenics and its authorized agents with reasonable access to the
Real Property during normal business hours during the Option Term upon at least
twelve (12) hours' prior notice to RTI, and Sterigenics shall use reasonable
good faith efforts to avoid disruption of the operation of the Real Property.
Without limiting the foregoing, Sterigenics and Sterigenics' agents may, at the
sole cost of Sterigenics and upon prior notice to RTI, perform engineering and
soils surveys, geological work or other studies desired by Sterigenics.
Sterigenics and Sterigenics' agents shall be entitled, at Sterigenics' own
expense, to conduct Phase I and Phase II environmental investigations of the
Real Property. Sterigenics agrees to hire as its contractor for such
environmental investigation a firm which maintains adequate liability insurance.
If the Closing does not occur, Sterigenics shall provide to RTI copies of all
environmental reports it caused to be prepared. If the Closing does not occur
Sterigenics promptly shall repair and restore any damage caused to the Real
Property by reason of Sterigenics' or Sterigenics' agents' entry on or
investigation of the Real Property. Sterigenics shall provide to RTI copies of
all invoices for work performed to repair and restore any damage to the Real
Property along with evidence that such invoices have been paid. Sterigenics
hereby agrees to indemnify RTI and to hold RTI, RTI's agents and employees and
the Real Property harmless from and against any and all losses, costs, damages,
claims or liabilities including, but not limited to, mechanic's and
materialmen's liens and reasonable attorneys' fees, arising out of or in
connection with Sterigenics' or its agent's access to or entry upon the Real
Property under this Paragraph 7 and the agreements, covenants and
indemnification of Sterigenics contained in this Paragraph 7 shall survive any
termination of the Option or this Agreement.
8. TITLE TO REAL PROPERTY.
8.1 APPROVAL OF TITLE. Sterigenics hereby approves the condition of
title of the Real Property, as shown on the title commitment (the "Title
Report") issued by Chicago Title Insurance Company (the "Title Company"), 000
Xxxxx Xxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxx, Xxxxx Xxxxxxxx 000000-0000, as its
Order Xx. 0000000, dated January 29, 1996, a copy of which is attached hereto as
EXHIBIT B; provided, however, that Sterigenics hereby disapproves Exception No's
1(b), 3, 4, 5 (items a through g inclusive), 6, and 7 thereof (the "Unpermitted
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Exceptions"). All exceptions to title shown in the Title Report (other than the
Unpermitted Exceptions) are referred to herein as the "Permitted Exceptions."
8.2 TITLE POLICIES. At the Closing for the Real Property the Title
Company shall issue to Sterigenics, at Sterigenics' expense, an ALTA owner's
policy of title insurance, form B (as amended 10-17-92) (the "Title Policy"), in
the amount of the Purchase Price, subject only to the Permitted Exceptions
therefor.
8.3 SURVEY. Sterigenics shall have the right to have an ALTA survey
the (the "ALTA Survey") prepared for the Real Property, the costs of which shall
be paid by Sterigenics.
9. CLOSING DATE; CLOSING MEETING; CLOSING COSTS.
9.1 CLOSING DATE. If Sterigenics timely exercises the Option, the
closing date (the "Closing Date") shall occur immediately prior to the closing
of the transaction that results in the satisfaction of the Option Conditions as
set forth in Section 3(b).
9.2 CLOSING. The parties shall meet at the offices of Parker, Poe,
Xxxxx & Xxxxxxxxx, 0000 Xxxxxxxxx Xxxxx, Xxxxxxxxx Xxxxx Xxxxxxxx 00000, or at
such other location in the State of North Carolina acceptable to the parties,
and shall execute such instruments and documents (specifically excluding any gap
indemnity or similar agreement) and deposit such funds with the Closing Agent as
are necessary to consummate on the Closing Date the purchase and sale of the
Property as contemplated by this Agreement. The Purchase Price shall be
delivered to Sterigenics' North Carolina legal counsel, Parker, Poe, Xxxxx &
Xxxxxxxxx, or other legal counsel designated by Sterigenics (the "Closing
Agent"), to be held by the Closing Agent in a trust account for the benefit of
Sterigenics and released to RTI at the Closing. The term "Closing" shall mean
the moment on the Closing Date at which the warranty deed conveying the Real
Property to Sterigenics is recorded in the Office of the Recorder of Alamance
County, subject only to the Permitted Exceptions.
9.3 CLOSING COSTS. Sterigenics shall pay all transfer taxes and all
costs for preparing, executing and acknowledging the deeds and other conveyance
documents due in connection with the conveyance to Sterigenics of the Real
Property and all other fees and costs of the Closing, together with the cost of
the Title Policy. Real property taxes, assessments, rents and other costs and
income items subject to proration shall be prorated as of the Closing.
9.4 POSSESSION. At the Closing, RTI shall deliver to Sterigenics
possession of the Real Property and the other Property.
10. REPRESENTATIONS AND WARRANTIES OF RTI.
10.1 GENERAL. RTI hereby represents and warrants to Sterigenics that
as of the date hereof the statements contained in this Section 10 are true and
correct, except as set forth in the RTI Disclosure Schedule attached to the
Asset Agreement or Closing Certificate (as referred to in Paragraph 13.9 below).
No fact or circumstance disclosed to Sterigenics shall constitute an
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exception to these representations and warranties unless such fact or
circumstance is set forth in the Closing Certificate. As used in this
Agreement, "knowledge" shall mean the actual knowledge of the executive officers
of RTI after reasonable inquiry.
10.2 ORGANIZATION. RTI is a corporation duly and validly existing and
in good standing under the laws of the State of New York. RTI is qualified to
do business as a foreign corporation in North Carolina.
10.3 AUTHORIZATION. This Agreement has been, and all deeds and other
conveyance documents used in order to consummate this Agreement, will prior to
the Closing be, duly and validly executed and delivered by RTI. This Agreement
constitutes valid and binding agreements of RTI, enforceable against RTI in
accordance with their terms. RTI has all requisite power and authority to
execute and deliver this Agreement and at the time of the Closing will have all
requisite power and authority to enable it to carry out the transactions
contemplated by this Agreement. All necessary corporate action on the part of
RTI has been taken to authorize the execution and delivery of this Agreement
and, subject to shareholder approval, consummation of the transactions
contemplated thereby.
10.4 NO CONFLICTS. The execution and the delivery of this Agreement
does not, and the consummation of the transactions contemplated hereby and
compliance with the provisions hereof will not, conflict with, result in a
breach of, constitute a default (with or without notice or lapse of time, or
both) under or violation of, or result in the creation of any lien, charge or
encumbrance pursuant to any provision of the Certificate of Incorporation or
Bylaws of RTI of any order, rule, law or regulation of any court or governmental
authority, foreign or domestic, or any provision of any material agreement,
instrument, understanding, order, judgment or decree to which RTI is a party or
by which RTI or any of its properties or assets is bound or affected, nor will
such actions give to any other person or entity any interests or rights of any
kind, including rights of termination, acceleration or cancellation, in or with
respect to any of the Property.
10.5 PERSONAL PROPERTY. The Personal Property is in good operating
condition and repair, ordinary wear and tear and routine maintenance excepted
and RTI will maintain the Personal Property in substantially the same condition
prior to the Closing Date.
10.6 COMPLIANCE WITH OTHER INSTRUMENTS. RTI is not a party to, or
bound by, any written or oral material contract, agreement, license, indenture,
mortgage, debenture, note or other instrument under the terms of which
performance by RTI according to the terms of this Agreement will be a default or
an event of acceleration, or whereby timely performance by RTI according to the
terms of this Agreement may be prohibited, prevented or delayed.
10.7 LITIGATION. Except as disclosed in the forms, reports and
documents required to be filed by RTI with the Securities and Exchange
Commission since January 1, 1995 (collectively, the "RTI SEC Reports"), there is
no material action, suit, proceeding or investigation in progress or pending
before any court or governmental agency, against or relating to the Property or
the assets or business of RTI conducted from the Real Property nor, to the
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knowledge of RTI, any threat thereof. RTI is not a party to any decree, order
or arbitration award (or agreement entered into in any administrative, judicial
or arbitration proceeding with any governmental authority) with respect to any
material portion of the Property, or the assets, personnel or business
activities of RTI's business conducted from the Real Property.
10.8 COMPLIANCE WITH LAWS AND REGULATIONS; GOVERNMENTAL LICENSES, ETC.
Except as set forth in the RTI SEC Reports, to RTI's knowledge, RTI, the Real
Property and the Improvements are in compliance in all material respects with
all statutes, laws, rules and regulations with respect to or affecting the Real
Property, the Improvements and Sterigenics' use and enjoyment of the Personal
Property, including, without limitation, laws, rules and regulations relating to
occupational health and safety, equal employment opportunities, fair employment
practices, and sex, race, religious and age discrimination, except where the
failure to comply would not have a material adverse effect on RTI. RTI is not
subject to any order, injunction or decree issued by any governmental body,
agency, authority or court which could impair the ability of RTI to consummate
the transactions contemplated hereby or which could materially adversely affect
Sterigenics' ownership, use and enjoyment of the Personal Property or the value
thereof. RTI possesses all licenses, permits and governmental or other
regulatory approvals and authorizations which are required in order for RTI to
operate the Real Property or to carry on its sterilization business from the
Real Property as presently conducted, including, without limitation, all
required licenses, permits and approvals of the Nuclear Regulatory Commission
("NRC"), the North Carolina Department of Radiological Health ("NCDRH") and the
Food and Drug Administration ("FDA"). RTI is in compliance in all material
respects with all such licenses, permits, approvals and authorizations relating
to its operations conducted from the Real Property, except where the failure to
comply would not have a material adverse effect on RTI.
10.9 ENVIRONMENTAL MATTERS.
(a) GENERAL. Except as separately and specifically disclosed in
the RTI SEC Reports, (i) RTI has obtained all Material Environmental Approvals
required in connection with its business conducted from the Real Property, and
all such Environmental Approvals are current, valid and in good standing in all
material respects, and there are no proceedings commenced or to RTI's knowledge
threatened to revoke or amend any Environmental Approvals; (ii) all operations
of the business on the Real Property while occupied by RTI have been and are now
in compliance in all material respects with all Environmental Laws;
(iii) neither RTI nor its operations conducted from the Real Property has been
or is now the subject of any Remedial Order, nor does RTI have any knowledge of
any investigation or evaluation commenced as to whether any such Remedial Order
is necessary nor has any threat of any such Remedial Order been made nor are
there any circumstances known to RTI which could result in the issuance of any
such Remedial Order; (iv) within the past 10 years, RTI has never been
prosecuted for or convicted of any offense under Environmental Laws, nor has RTI
been found liable in any proceeding to pay any fine or judgment to any Person as
a result of any Release or threatened Release from the Real Property of any
Hazardous Material into the Environment or the breach of any Environmental Law
and to the knowledge of RTI, there is no basis for any such proceeding; (v) all
material environmental data and studies (including, without limitation, the
results of any environmental audit) relating to the business conducted from the
6
Real Property have been delivered or made available to Sterigenics; (vi) RTI is
not aware of any Release which is now present in, on or under the Real Property
(including underlying soils and substrata, surface water and groundwater) at
levels which exceed any action levels or remediation standards under any
Environmental laws or standards published or administered by those Governmental
Authorities responsible for establishing or applying such standards; (vii) RTI
has no knowledge of any Hazardous Materials in, on, or under the Real Property
or any other assets relating to RTI's business conducted from the Real Property;
and (viii) RTI has no knowledge of any Hazardous Materials originating from any
neighboring or adjoining properties which has migrated onto, or is migrating
towards the Real Property.
(b) MATTERS DISCLOSED IN SEC REPORTS. With respect to
Environmental Matters separately and specifically disclosed in the RTI SEC
Reports relating to the Real Property: (i) RTI is in full compliance with all
Remedial Orders; (ii) RTI is current with respect to all charges, assessments,
or claims for which a lien against the Real Property or other assets of RTI's
business under any Environmental Law may be filed or asserted, and there are no
unpaid liens or assessments outstanding which are currently due; and (iii) RTI
is not in default of any obligation or demand from any Governmental Authority
with respect to investigations or remediation activities which RTI is obligated
to undertake.
(c) DEFINITIONS. As used herein, the following terms have these
meanings:
(i) "Environmental Laws" means all applicable statutes,
rules, regulations, ordinances, orders, decrees, judgments, permits, licenses,
consents, approvals, authorizations, and governmental requirements or directives
or other obligations lawfully imposed by governmental authority under federal,
state or local law pertaining to the protection of the environment, protection
of public health, protection of worker health and safety (excluding OSHA and
comparable state laws), the treatment, emission and/or discharge of gaseous,
particulate and/or effluent pollutants, and/or the Handling of Hazardous
Materials, including without limitation, the Clean Air Act, 42 U.S.C.
Section 7401, et seq., the Comprehensive Environmental Response, Compensation
and Liability Act of 1980 ("CERCLA"), 42 U.S.C. Section 9601, et seq., the
Federal Water Pollution Control Act, 33 U.S.C. Section 1321, et seq., the
Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et seq., the
Resource Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq.
("RCRA"), and the Toxic Substances Control Act, 15 U.S.C. Section 2601, et seq.
(ii) "Hazardous Material(s)" means any substance, waste,
material, chemical, compound or mixture which is (or which contains any
substance, waste, material, chemical, compound, or mixture which is) flammable,
ignitable, corrosive, reactive, radioactive, or explosive, or is defined,
listed, designated, described or characterized under Environmental Laws or under
any rules, guidances, policies, or regulations promulgated thereunder, as
hazardous, toxic, a contaminant, a pollutant or words of similar import, and
includes without limitation any "hazardous substance" under CERCLA, any
"hazardous waste" under RCRA, asbestos, petroleum (including crude oil or any
fraction or distillate thereof), natural gas, natural gas liquids, and liquified
natural gas.
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(iii) "Material" means anything that reasonably could be
expected to lead to the imposition of any significant penalties or fines, that
could reasonably be expected to require a capital expenditure of more than
$100,000, or that reasonably could be expected to interfere, interrupt or
threaten to interfere or interrupt in a significant manner the continued
operation of RTI's business as currently conducted from the Real Property.
(iv) "Person" means any natural person, corporation,
partnership, business trust or other business entity or enterprise.
(v) "Release" means any spilling, leaking, pumping,
pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping
or disposing.
(vi) "Environmental Approval(s)" means all permits,
certificates, licenses, authorizations, consents, instructions, registrations,
directions or approvals, issued or required by Governmental Authorities pursuant
to Environmental Laws with respect to the operations of RTI in connection with
the Real Property.
(vii) "Governmental Authorities" means any government,
regulatory authority, governmental department, agency, commission, board,
tribunal, or court or other law, rule or regulation-making entity having or
purporting to have jurisdiction over Environmental Laws on behalf of the
United States, or the state of North Carolina or other subdivision thereof, or
any municipality therein.
(viii) "Remedial Order(s)" means any judicial or
administrative order, directive, complaint or sanction issued, filed or imposed
by any Governmental Authority pursuant to any Environmental Laws, and includes,
without limitation, any order requiring any remediation or cleanup of any
Hazardous Materials, or requiring that any Release or any other activity be
reduced, modified, abated, or eliminated.
10.10 NO MISREPRESENTATION. No representation, warranty or
covenant by RTI in this Agreement, nor any statement, certificate or schedule
furnished or to be furnished by or on behalf of RTI pursuant to this Agreement,
when taken together with the foregoing, contains or shall contain any untrue
statement of material fact or omits or shall omit to state a material fact
required to be stated therein or necessary in order to make such statements, in
light of the circumstances under which they were made, not materially
misleading. RTI has delivered or otherwise made available true and complete
copies of all documents requested by Sterigenics and which are referred to in
this Agreement.
10.11 TRANSFERS. Except for this Agreement and the Acquisition
Agreement, RTI has not entered into any agreement to convey, sell, assign,
lease, transfer or encumber the Real Property or any material portion of the
other Property, and RTI shall not do so prior to the Closing Date without
Sterigenics' prior written consent, which may be granted or withheld in
Sterigenics' discretion reasonably exercised.
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10.12 TITLE TO REAL PROPERTY. Except as set forth in the RTI SEC
Reports or the Title Report, RTI owns the Real Property free and clear of all
liens, leases, occupancy agreements, licenses, encumbrances, covenants,
conditions, restrictions, rights-of-way, easements, and other matters affecting
title, except as to the Permitted Exceptions. To RTI's knowledge, except as
disclosed in the RTI SEC Reports or the Title Reports, no other person or entity
has claimed or is entitled to claim any legal or equitable interest in the Real
Property.
10.13 TITLE TO PERSONAL PROPERTY. RTI has good and marketable
title to the Personal Property and Improvements. Except as disclosed in the RTI
SEC Reports, the Personal Property and Improvements are and as of the Closing
shall be transferred to Sterigenics free and clear of restrictions on or
conditions to transfer or assignment, and free and clear of all claims,
liabilities, liens, pledges, mortgages, restrictions and encumbrances of any
kind, whether accrued, absolute, contingent or otherwise affecting the Personal
Property and Improvements.
10.14 NO CONDEMNATION. To RTI's knowledge, there is no
condemnation or other like proceeding pending or threatened against the Real
Property or any part thereof and no such proceeding is being contemplated.
10.15 GOVERNMENTAL COMMITMENTS. To RTI's knowledge, no commitment
to or agreement with any governmental or quasi-governmental authority exists
which could affect the Real Property, including but not limited to any formation
of any special assessment district or community facilities district, except as
disclosed in this Agreement.
10.16 EASEMENTS. To RTI's knowledge, all existing water,
drainage, sewage and utility facilities relating to the Real Property, from the
boundary thereof until entering the public right-of-way or other public
facility, are situated within valid easements granted by all persons or other
entities having any interest in or right or title to any property which is
subject to such easement and are referenced in the Title Reports.
10.17 MAINTENANCE OF REAL PROPERTY. Prior to the Closing Date and
the actual transfer to Sterigenics of title to the Real Property, RTI shall
maintain the Real Property and the Improvements in substantially their present
condition, reasonable wear and tear or loss due to the elements excepted.
10.18 CONDITION OF IMPROVEMENTS. To RTI's knowledge, the
Improvements (including the roof and roof membrane, exterior and structural
walls, foundations, floor slabs, and other load-bearing components of the
Improvements) are in operable condition and repair (as hereinafter defined). To
RTI's knowledge all elevators, heating, ventilation and air conditioning systems
("HVAC"), plumbing, electrical, wiring, life safety, and other equipment,
appurtenances, systems and improvements are in operable condition and repair.
For purposes of this paragraph, the term "operable condition and repair" means
that there are no material defects or state of disrepair that have a material
adverse effect on the operations of the business as currently conducted by RTI
from the Real Property.
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10.19 COMPLIANCE WITH LAWS. RTI has received no written notice
from any governmental authority that the Improvements fail to comply with any
applicable codes, statutes, ordinances, regulations, permits, orders,
directives, or other laws in any material respects. As of the Closing the
Improvements and all parts thereof shall be in a safe and habitable condition.
11. COOPERATION. RTI will take all reasonable actions necessary to comply
promptly with all legal requirements which may be imposed with respect to the
consummation of the transactions contemplated by this Agreement and will
promptly cooperate with and furnish information to Sterigenics in connection
with any such requirements imposed upon Sterigenics in connection with the
consummation of the transactions contemplated by this Agreement. RTI will take
all reasonable actions necessary to obtain (and will cooperate with Sterigenics
in obtaining) any consent, approval, order or authorization of, or any
registration, declaration or filing with, any governmental entity, domestic or
foreign, or other person, required to be obtained or made by RTI (or by
Sterigenics) in connection with the taking of any action contemplated by this
Agreement. Sterigenics shall reimburse RTI for all out-of-pocket costs incurred
pursuant to compliance with this Paragraph 11.
12. TERMINATION MEMORANDUM. Sterigenics agrees to promptly execute a
Termination of Memorandum of Option, duly executed and acknowledged and in
recordable form, pursuant to which Sterigenics shall relinquish all right, title
and interest arising under the Memorandum of Option (the "Termination
Memorandum"). The Termination Memorandum shall be held in escrow by Xxxxxxx
Xxxxxxxx Xxxxx Xxxxxxxxxxx & Kuh, LLP. Upon the expiration or prior termination
of the Option, RTI shall have the right to require release of the Termination
Option and to record the Termination Memoradum.
13. RISK OF LOSS. Until the Closing, all risk of loss, damage or
destruction to the Property shall be borne by RTI. In the event that prior to
the Closing all or any part of the Property is destroyed or damaged and the cost
to repair such damage exceeds Two Hundred Fifty Thousand Dollars ($250,000),
Sterigenics shall be entitled to terminate this Agreement (whether or not the
Option has been exercised) and to recover from RTI the Option Consideration paid
upon written notice to RTI within five (5) business days of receipt of notice
from RTI that such a loss has occurred. If Sterigenics does not have the right
to terminate this Agreement in accordance with this paragraph, or if Sterigenics
has the right to terminate this Agreement pursuant to this paragraph but elects
not to exercise (or does not timely exercise) such termination right, then RTI
shall assign to Sterigenics all insurance proceeds (whether or not such
insurance proceeds are sufficient to repair such damage or destruction and
whether or not such proceeds are paid before or after the Closing Date) and this
Agreement shall remain in full force and effect.
14. STERIGENICS' CONDITIONS PRECEDENT TO CLOSING. The obligations of
Sterigenics at the Closing are subject to satisfaction of the following
conditions (any or all of which may be waived by Sterigenics in its sole
discretion), all of which are for Sterigenics' sole benefit:
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14.1 REPRESENTATIONS AND WARRANTIES. The representations and
warranties of RTI contained in this Agreement shall be true and correct in all
material respects on the Closing Date with the same effect as though made on
that date.
14.2 RECEIPT OF REQUIRED PERMITS. Sterigenics shall have received all
licenses, permits and governmental or other regulatory approvals and
authorizations which are required in order for Sterigenics to operate the Real
Property and its business.
14.3 DELIVERY OF ALL ASSETS. RTI shall have delivered and conveyed
all of the Property free and clear of all encumbrances, other than the Permitted
Exceptions.
14.4 TITLE POLICY. The Title Company shall have committed in writing
to issue the Title Policy to Sterigenics for the Real Property, subject only to
the Permitted Exceptions.
14.5 FIRPTA. RTI shall have executed and delivered to the Title
Company a certificate satisfying the requirements of Section 1445 of the
Internal Revenue Code of 1986, as amended (the "FIRPTA Certificate").
14.6 NO INSOLVENCY EVENT. At the Closing there shall not be any
pending sequestration, attachment or foreclosure of or execution on any material
part of the Property or any proceeds from the sale thereof nor shall RTI have
been subject to a voluntary or involuntary petition to commence a proceeding
under the United States Bankruptcy Code to declare RTI to be bankrupt or
insolvent.
14.7 NO MATERIAL ADVERSE CHANGE. No change shall have occurred that
would have a material adverse effect on the Property.
14.8 NO LEGAL PROHIBITION. No temporary restraining order,
preliminary or permanent injunction or other order issued by any court of
competent jurisdiction or other legal or regulatory restraint or prohibition
preventing the consummation of this Agreement shall have been issued, nor shall
any action or suit related to the Agreement or its consummation be pending or
threatened, nor shall any proceeding brought by an administrative agency or
commission or other governmental entity, seeking any of the foregoing, be
pending; nor shall there be any action taken, or any statute, rule, regulation
or order enacted, entered, enforced or deemed applicable to the Agreement which
makes the consummation of the Agreement illegal.
14.9 CLOSING CERTIFICATE. RTI shall deliver to Sterigenics a
certificate dated the Closing Date and signed by the President of RTI confirming
that since the Execution Date, no action by RTI has resulted in a lien, pledge,
mortgage, restriction or encumbrance of any kind affecting the Real Property and
the Personal Property or Improvements.
14.10 RECORDABLE DOCUMENTS. RTI shall have provided the Closing
Agent or the Title Company issuing the Title Policy the warranty deed for the
Real Property, fully executed and notarized and in recordable form, at least two
(2) business days prior to the Closing so that
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the deed may be registered or recorded in the appropriate real estate records of
Alamance County immediately upon Closing.
14.11 CLOSING DELIVERIES. Sterigenics shall have received at or
prior to the Closing each of the following documents: (a) a xxxx of sale in a
form reasonably satisfactory to Sterigenics; (b) a special warranty deed in form
and content appropriate to convey, transfer and assign to, and to vest in,
Sterigenics, good, clear and marketable fee simple title to the Real Property,
subject only to the Permitted Exceptions therefor; (c) any other documents,
records or agreements called for hereunder that have not been previously
delivered to Sterigenics.
15. RTI'S CONDITIONS PRECEDENT TO CLOSING. The obligations of RTI at the
Closing are subject to satisfaction of the following conditions (any or all of
which may be waived by RTI in its sole discretion), all of which are for RTI's
sole benefit:
15.1 REPRESENTATIONS AND WARRANTIES. The representations and
warranties of Sterigenics contained in this Agreement shall be true and correct
in all material respects on the Closing Date with the same effect as though made
on that date.
15.2 NO INSOLVENCY EVENT. At the Closing Sterigenics shall not be
subject to a voluntary or involuntary petition to commence a proceeding under
the United States Bankruptcy Code to declare Sterigenics to be bankrupt or
insolvent.
15.3 NO LEGAL PROHIBITION. No temporary restraining order,
preliminary or permanent injunction or other order issued by any court of
competent jurisdiction or other legal or regulatory restraint or prohibition
preventing the consummation of this Agreement shall have been issued, nor shall
any proceeding brought by an administrative agency or commission or other
governmental entity, seeking any of the foregoing, be pending; nor shall there
be any action taken, or any statute, rule, regulation or order enacted, entered,
enforced or deemed applicable to the Agreement which makes the consummation of
the Agreement illegal.
16. DEFAULT; REMEDIES.
16.1 RTI'S REMEDIES. STERIGENICS AND RTI EACH AGREE THAT IN THE EVENT
OF A MATERIAL DEFAULT OR BREACH HEREUNDER BY STERIGENICS, THE DAMAGES TO RTI
WOULD BE EXTREMELY DIFFICULT AND IMPRACTICABLE TO ASCERTAIN, AND THAT THE OPTION
CONSIDERATION PAID BY STERIGENICS PLUS THE SUM OF TWENTY-FIVE THOUSAND DOLLARS
($25,000) ("STIPULATED SUM") SHALL SERVE AS LIQUIDATED DAMAGES FOR SUCH BREACH
OR DEFAULT BY STERIGENICS, AS A REASONABLE ESTIMATE OF THE DAMAGES TO RTI.
DELIVERY TO AND RETENTION OF THE OPTION CONSIDERATION AND THE STIPULATED SUM BY
RTI SHALL BE RTI'S SOLE AND EXCLUSIVE REMEDY AGAINST STERIGENICS IN THE EVENT OF
A DEFAULT OR BREACH BY STERIGENICS, AND RTI WAIVES ANY AND ALL RIGHT TO SEEK
OTHER RIGHTS OR REMEDIES AGAINST STERIGENICS WITH RESPECT TO STERIGENICS'
OBLIGATION TO PURCHASE THE PROPERTY, INCLUDING WITHOUT LIMITATION, SPECIFIC
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PERFORMANCE. THE PAYMENT AND RETENTION OF THE OPTION CONSIDERATION AND THE
STIPULATED SUM AS LIQUIDATED DAMAGES IS NOT INTENDED AS A FORFEITURE OR PENALTY
BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO RTI. UPON ANY SUCH BREACH OR
DEFAULT BY STERIGENICS HEREUNDER, THIS AGREEMENT SHALL BE TERMINATED AND THE
PARTIES SHALL HAVE NO FURTHER OBLIGATIONS TO EACH OTHER HEREUNDER.
16.2 STERIGENICS' REMEDIES. RTI acknowledges that the Property is
unique and, for that reason, among others, Sterigenics will be irreparably
damaged if this Agreement is not specifically enforced. Accordingly, in the
event of any breach or default of this Agreement or any of the covenants or
agreements contained in this Agreement by RTI, Sterigenics shall have the right
to demand and have specific performance of this Agreement. Provided that RTI
has not taken any action after the date of this Agreement to cause the
representations and warranties in Section 10 to be inaccurate as of the Closing,
RTI shall have no liability to Sterigenics' for any failure to meet the
condition set forth in Section 14.1 and Sterigenics shall have no right to xxx
RTI for any breach of the representations and warranties.
16.3 TERMINATION OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties contained in this Agreement shall terminate upon
the Closing.
17. GENERAL.
17.1 EXPENSES. Except as otherwise provided below in this Agreement,
the parties will each pay their own legal, accounting and other professional
expenses in connection with the transactions contemplated hereby.
17.2 BROKERS. Each party represents and warrants to the other that no
person has acted as a broker, a finder or in any similar capacity in connection
with the transactions contemplated hereby, except TM Capital Corporation who
shall be paid by Sterigenics. Each party shall indemnify the other against, and
agrees to hold the other harmless from, all liabilities and expenses (including
reasonable attorneys' fees and expenses) in connection with any claim by anyone
for compensation as a broker, a finder or in any similar capacity, other than TM
Capital Corporation, which is to be paid by Sterigenics at the Closing, by
reason of services allegedly rendered to the indemnifying party in connection
with the transactions contemplated hereby.
17.3 ENTIRE AGREEMENT. Except for that certain Confidentiality
Agreement by and between RTI and Sterigenics, dated October 3, 1995, and those
specific provisions and definitions expressly incorporated herein from the
Acquisition Agreement, this Agreement contains the entire agreement among the
parties with respect to the matters contemplated hereby and all prior
negotiations, understandings and agreements among them, are superseded by this
Agreement.
17.4 NOTICES. Any notice or other communication required or permitted
to be given under this Agreement shall be in writing and will be deemed
effective when delivered in
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person, first business day after sent by confirmed facsimile, if promptly
confirmed in writing, on the third business day after the day on which mailed by
first class mail from within the United States of America, or the business day
following delivery to a national overnight courier service to the following
addresses or to such other address as either party may specify in writing to the
other party in accordance with the provisions of this Paragraph 15.4.
If to Sterigenics: With a copy to:
Sterigenics International Xxxxxxxxx Xxxxxxx Xxxxxx
0000 Xxxxxxx Xxxxx Xxxxxxxxxx Xxxxxxxx & Xxxxxxxxx
Xxxxxxx, XX 00000-0000 000 Xxxxxx Xxx, 0xx Xxxxx
Xxxxxxxxx No.:(000) 000-0000 Xxxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx Facsimile No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxx
If to RTI: With a copy to:
RTI Inc. Xxxxxxx Xxxxxxxx Xxxxx
000 Xxxx Xxxxxxx Xxxx Xxxxxxxxxxx & Xxx, XXX
Xxxxxxxx, XX 00000 000 Xxxxx Xxxxxx
Attention: Xxxx Xxxxxx Xxx Xxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxx Xxxx
00. GOVERNING LAW. This Agreement will be governed by, and construed
under, the laws of the State of New York.
19. AMENDMENT. This Agreement may be amended only by a document in
writing signed by the parties.
20. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same agreement.
21. FURTHER ASSURANCES. Each party agrees to execute such further
instruments and documents and to do such further acts as may be reasonably
requested by any other party to carry out the transactions contemplated hereby.
22. NO RIGHTS CONFERRED UPON THIRD PARTIES. No provisions of this
Agreement are intended or shall be interpreted to provide or create any rights
of any kind in any third party unless specifically provided otherwise herein,
and, except as so provided, all provisions hereof shall be personal solely to
the parties to this Agreement.
23. ATTORNEYS' FEES. In any litigation relating to this Agreement,
including litigation with respect to any instrument, document or agreement made
under or in connection with this Agreement, the prevailing party shall be
entitled to recover its costs and reasonable attorneys' fees and expenses.
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24. HEADINGS. Captions and headings used herein are for convenience only
and are not a part of this Agreement and shall not be used in construing it.
25. NO ASSIGNMENT. The Agreement may not be assigned (including by
operation of law) by either party without the prior written consent of the other
party.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
Execution Date.
STERIGENICS INTERNATIONAL RTI INC.
By: /s/ Xxxxx X. Xxxxxxx By: /s/ Xxxx Xxxxxx
----------------------------- -------------------------------------
Xxxxx X. Xxxxxxx Xxxx Xxxxxx
Title: President Title: President
----------------------------- -------------------------------------
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