CONTRACT TO SELL
Exhibit 4.13
KNOW ALL MEN BY THESE PRESENTS:
This Contract, made and entered into this 28th day of January 2005, by and between:
PSI TECHNOLOGIES LAGUNA, INC., a corporation duly organized and existing under the laws of the Philippines, with principal place of business and address at Electronics Ave., FTI Complex, Taguig, Metro Manila, Philippines, represented herein by its President, XXXXXX X. XXXXX, XX, and hereinafter known as the “SELLER”;
- and -
ILO LAND, INC., a corporation duly organized and existing under the laws of the Philippines, with principal office at the 3rd Floor, ILO Building 000 X. Xxxxxxx Xxxxxx, Xxxxxx Xxxx, Xxxxx Xxxxxx, Xxxxxxxxxxx duly represented herein by its Chairman, MR, XXXXXXX X. XXX, and hereinafter known as the “BUYER”.
SETS FORTH THAT:
WHEREAS, the SELLER is the absolute owner in fee simple of a factory building located on a parcel of land located inside the Carmelray Industrial Park II in Calamba City, Province of Laguna, Philippines registered under and more particularly described in Transfer Certificate of Title No. T-487038 of the Register of Deeds of Calamba City, a certified true copy of which is hereto attached as Annex “A” hereof;
WHEREAS, the SELLER has offered to sell to the BUYER, and the BUYER is willing to purchase from the SELLER, said factory building under certain terms and conditions:
NOW, THEREFORE, the parties have come together to agree as follows
SECTION 1. Agreement To Purchase And To Sell; Possession
For and in consideration of the purchase price specified in Section 2, and in further consideration of the SELLER’s representations, warranties and covenants as well as its performance of the conditions precedent as specified hereunder, the SELLER agrees to sell, transfer and convey to the BUYER, and the BUYER agrees to purchase and receive from the SELLER, all the SELLER’s rights, title and interest in and to the factory building.
The BUYER shall be entitled to possess and utilize the factory building immediately upon execution of this Contract.
SECTION 2. Purchase Price
2.1 The purchase price for the sale of the factory building to the BUYER and which shall be due to the SELLER under the terms and conditions specified hereunder shall be United States Dollars: TWO MILLION ONE HUNDRED FIFTY THOUSAND (USD 2,150,000), inclusive of VAT, if any. The purchase price shall be due and payable from the BUYER on the dates and in the manner as follows:
| (a) | the amount of United States Dollars: EIGHT HUNDRED SIXTY THOUSAND (USD 860,000) shall be due and payable upon the execution of this Contract, receipt in full of which is hereby acknowledged by the SELLER; and |
| (b) | the balance of United States ONE MILLION TWO HUNDRED NINETY THOUSAND (USD 1,290,000) shall be due and payable in six (6) equal instalments of United States Dollars: TWO HUNDRED FIFTEEN THOUSAND (USD 215,000) every six (6) months. The first instalment shall be payable on the fifth (5th) day of the sixth month following the month of execution of this Contract. |
2.4 The BUYER shall deduct from the payment due to the SELLER by an amount equal to the income tax and other taxes required to be withheld by the BUYER from the payments due hereunder as provided in Section 3.
2.5 The BUYER is entitled to a grace period of ten (10) working days within which to pay any of the amounts due under Section 2.1 (b) above. Amounts owed to the SELLER beyond this grace period of ten (10) working days shall earn an interest of LIBOR + 10% until fully paid.
SECTION 3. Taxes and Other Costs
3.1 All income, capital gains and other taxes which shall be due by reason of the receipt of the SELLER of the payments due from the BUYER shall be for the account of the SELLER. The BUYER shall withhold from the amounts due hereunder to the SELLER the income tax, VATcapital gains taxes and other taxes due to the Government and/or required to be withheld therefrom under current or future law or regulation (but then only to the extent applicable to the payment then falling due) and shall remit such taxes directly to the Bureau of Internal Revenue. The BUYER, at its sole option (but not the obligation), may assume and shall pay the documentary stamp taxes due by reason of the execution of the Deed of Absolute Sale transferring and conveying the factory building to the BUYER.
3.2. The costs and expenses to be incurred in effecting the transfer and/or registration of the factory building in the name of the BUYER shall be for the account of the BUYER.
3.3 All real property taxes and assessments accruing on the factory building up to and until the date of this Contract shall be for the account of the SELLER. Real property taxes and assessments accruing on the factory building after the date of this Contract shall be for the account of the BUYER. In the event, however, that title over the factory building cannot be transferred to the BUYER through no fault of its own, all real property taxes and assessments paid on the factory building by the BUYER after the date of this Contract shall be reimbursed by the SELLER; provided, however, that the amount of real property taxes and assessments pertaining to the period when the factory building is in the actual possession of the BUYER shall not be reimbursed.
SECTION 4. Conditions Precedent for this Contract
The obligation of the BUYER to execute and deliver this Contract and to pay to the SELLER the amount specified in Section 2.1 (a) of this Contract is subject to the fulfilment of the conditions precedent that -
| (a) | the owner of the land parcel registered under Transfer Certificate of Title No. T-487038 (Annex “A”) as well as the land parcel registered under Transfer Certificate of Title No. T-531139 (a certified true copy of which is hereto attached as Annex “B”) shall have executed a contract to sell the said lots to the BUYER; |
| (b) | the original copy of the owner’s duplicate of Transfer Certificate of Title Nos. T-487038 and T-531139 shall have been deposited in escrow with Banco De Oro main office as attested to by the manager of the said bank in a sworn certification issued and submitted to the BUYER; |
The following Transfer Certificate of Title shall be deposited in escrow with Banco de Oro main office according to the following time period:
| (ii) | Transfer Certificate of Title No. T-487038 within thirty (30) days upon signing of this contract to sell. |
| (iii) | Transfer Certificate of Title No. T-531139 within ninety (90) days upon signing of this contract to sell. |
| (c) | AMI Semiconductor Philippines, Inc. shall have executed a lease contract with the BUYER over the Land Parcels and the factory building. |
SECTION 5. Conditions Precedent For Closing
The obligation of the BUYER to pay the SELLER the purchase price under Section 2 and to execute the Deed of Absolute Sale covering the sale and transfer to the BUYER of the factory building and all rights, title and interest of the SELLER in and to the same is subject to the fulfilment of all the following conditions precedent:
| (a) | Execution of the Deed of Absolute Sale over the Land Parcels by the |
| owner | in favor of the BUYER. |
| (b) | All the representations and warranties of the SELLER shall be true and in effect as of the date of the Deed of Absolute Sale. |
| (c) | The SELLER shall have submitted to the BUYER the following documents on or before the date of the Deed of Absolute Sale: (i) clearance from the Provincial Treasurer’s Office that all real property taxes and assessments due on the factory building have been paid as of the date of the Deed of Absolute Sale; and (ii) Declaration of Real Property in the original and in the name of the SELLER corresponding to the factory building. |
Upon the fulfilment of the foregoing conditions precedent, the closing of the transaction covered hereby shall take place, and the Deed of Absolute Sale shall be executed by the parties hereto, on the third working day from the date all the foregoing conditions have been fulfilled. The closing date may, however, be extended upon the mutual agreement of the parties.
SECTION 6. Representations and Warranties
The SELLER represents and warrants to the BUYER as follows:
| (a) | The SELLER is the absolute and registered owner in fee simple of the factory building subject of this Contract. There is no other person or entity holding any title, claim or interest in and to the factory building, whether by inheritance, donation or operation of law. The SELLER has valid and good title to transfer the factory building to the BUYER. |
| (b) | The factory building subject tot this Contract is free from all liens, encumbrances, adverse claims or security retention arrangements, and is not subject to any claim, set-off, or defense, which will prevent the BUYER from obtaining full and absolute ownership in fee simple over the building. |
| (e) | The SELLER has paid, settled, and/or made adequate arrangements to be responsible for all association dues, construction penalties, utility bills or other amounts outstanding as of the date of this Contract whether payable to Carmelray – JTCI Corporation or other parties. |
| (d) | The SELLER has full power, authority and legal right to execute, deliver and perform this Contract, and this Contract constitutes the legal, valid and binding obligation of the SELLER enforceable against it in accordance with its terms. |
| (e) | The execution, delivery or performance of this Contract will not violate or contravene any provision of law, regulation, order, decree, judgment or award of any governmental authority affecting the SELLER, or any agreement to which the SELLER is a party or under which any of the SELLER’s properties or assets is bound. |
| (f) | There is no litigation or any administrative proceeding before any court or any other governmental authority, pending or, to the best of the SELLER’s knowledge, threatened against the SELLER or the factory building which will prevent the BUYER from obtaining full and absolute ownership in fee simple over the said building. |
SECTION 7. Termination
7.1 This Contract may be terminated by any of the following causes:
| (c) | By mutual agreement of the parties; or |
| (d) | Default under, or breach of, this Contract. |
7.2 All the terms, provisions and agreements contained in this contract shall be deemed conditions as well as covenants. Accordingly, unless otherwise provided for, any violation or failure by a party to comply with any of its obligations shall be considered a default. In case of such default or breach:
| (c) | The party in default or in breach (the “Defaulting Party”) shall be given a period of sixty (60) days after written notice thereof by the other party (the “Non-Defaulting Party”) to cure or remedy its default or breach, subject to any extension which may be granted in writing by the Non-Defaulting Party; |
| (d) | If the Defaulting Party fails to remit or cure the default or breach within the original or extended period, the Non-Defaulting Party shall be entitled to terminate this Contract by giving thirty (30) days written notice to the Defaulting Party, with the consequences of termination caused by default as set forth in Section 7.3 and 7.4 below. |
7.3 If the Seller is the Non-Defaulting Party:
| (c) | The Seller shall have the right to immediately take full and vacant possession of the factory building; |
| (d) | Collect from the Buyer liquidated damages equivalent to ten percent (10%) of the purchase price of the factory building as set forth in Section 2; |
| (c) | Forfeit an aggregate amount, as and by way of rent for the factory building, for the use and occupancy of the factory building based on the prevailing rental rates in the area at the time of the termination; provided that the period to be covered by the rental payment shall commence from the date of this Contract to the date of its termination; and |
| (e) | Refund to the Buyer the aggregate amount paid by the buyer on the purchase price net of the amount specified in Section 7.3(b) and 7.3(c) above within ninety (90) days from termination date. |
7.4 If the Buyer is the Non-Defaulting Party:
| (b) | The Seller shall reimburse the Buyer the aggregate amount paid by the Buyer on the factory building plus ten percent (10%) of the purchase price of the factory building by way of liquidated damages. |
| (b) | Buyer shall have the right to remove all improvements introduced inside the Land Parcels/factory building, provided, that it can do so without defacing or in any manner damaging the Land Parcels/factory building. If Buyer cannot remove such improvements without defacing or damaging the Land Parcels/factory building, it’s only recourse with respect thereto is to claim reimbursement for the fair market value of the same. The fair market value of the improvements shall be determined by a reputable appraisal company mutually acceptable to the parties. Seller shall reimburse the value of the improvements to the Buyer upon sale of the Land Parcels/factory building to a third party or the lapse of a period of one (1) year, whichever comes first. |
SECTION 8. General Provisions
8.1 This Contract and the Deed of Absolute Sale to be executed pursuant hereto constitute the entire agreement of the parties concerning the sale, transfer and conveyance of the factory building to BUYER.
8.2 All notices required or necessary to be given hereunder shall be sent by personal delivery or by registered mail (with registry return card) at the respective addresses of the parties hereinabove set forth, or at the addresses as may be designated in writing by either party.
8.3 The titles of the provisions of this Contract are for convenience only and shall not in anyway affect the interpretation of any paragraph hereof. The Annexes of this Contract are considered integral parts hereof.
8.4 BUYER may assign all its rights and obligations hereunder to a subsidiary corporation or affiliate upon prior written notice to the SELLER.
IN WITNESS WHEREOF, the parties have hereunto signed these presents in the place and on the date first above-written
| PSI TECHNOLOGIES LAGUNA, INC. (Seller) | ||
| By: | /s/ XXXXXX X. XXXXX, XX. | |
| Xxxxxx X. Xxxxx, Xx. Chairman & Chief Executive Officer | ||
| ILO LAND, INC. (Buyer) | ||
| By: | /s/ XXXXXXX X. XXX. | |
| Xxxxxxx X. Xxx Chairman | ||
