PURCHASE AGREEMENT
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DATE:
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February
6,
2008
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SELLER:
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COLUMBIA
TUCSON LLC, an Arizona limited liability company
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Attention:
Xxxxx Xxxxxx
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Address:
000 Xxxx 00xx Xxxxxx, Xxxxxx Xxxxx
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Xxx
Xxxx, Xxx
Xxxx 00000
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Telephone:
000-000-0000
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Federal
Tax
Identification or
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BUYER:
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Ionatron,
Inc., a Delaware corporation
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Address:
0000
Xxxx Xxxxxxxx
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Xxxxxx, Xxxxxxx 00000
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Telephone:
000-000-0000
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Federal
Tax
Identification or
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ESCROW
AGENT:
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LAWYERS
TITLE
AGENCY OF ARIZONA, L.L.C.
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Address:
Xxx
Xxxxx Xxxxxx, Xxxxx 0000
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Xxxxxx, Xxxxxxx 00000
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Telephone:
(000) 000-0000
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Escrow
Officer: Xxx Xxxxx
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Escrow
No.
06154588
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| PROPERTY: |
The
property
described on Exhibit A
to this
Agreement, to be confirmed by the Title Report pursuant to ARTICLE
3,
including
all improvements and fixtures thereon and all rights and privileges
appurtenant thereto, and including all personal property located
upon the
real property or within the improvements (the “Property”).
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ARTICLE
1
AGREEMENT
OF THE
PARTIES
1.1 Agreement.
In consideration
of the mutual promises and covenants set forth in this Agreement, Seller agrees
to sell and Buyer agrees to buy the Property on the terms and conditions set
forth in this Agreement.
ARTICLE
2
SALES
PRICE AND
PAYMENT TERMS
2.1 Sales
Price.
The total
purchase price (the "Purchase
Price")
which Buyer
agrees to pay for Property is Two Million Two Hundred Thousand and No/100
Dollars ($2,200,000.00), subject to adjustment as provided below, payable in
cash or by wire transfer of good and available funds to the account of Escrow
Agent on or before 11:00 a.m. MST on the Closing.
2.2 Xxxxxxx
Money. Within
one (1)
business day after the mutual execution of this Agreement, Buyer shall deposit
with Escrow Agent by cash, cashier's check, or by wire transfer of good and
available funds the sum of $25,000.00 as an xxxxxxx money deposit ("Xxxxxxx
Money").
2.3 Xxxxxxx
Money
Provisions.
Escrow Agent is
hereby instructed to deposit all such payments in a federally-insured money
market or other similar account, subject to immediate withdrawal, at a bank
located in Tucson, Arizona.
If
the escrow
closes, all Xxxxxxx Money deposits in escrow shall be credited against the
Purchase Price, and any interest earned on the Xxxxxxx Money deposits shall
be
paid to Seller. If the Xxxxxxx Money deposits are forfeited to Seller as
provided by this Agreement, the Xxxxxxx Money deposits, with any interest earned
thereon, shall be paid immediately to Seller. If Buyer is entitled at any time
to a return of the Xxxxxxx Money deposits, any interest earned thereon shall
be
paid to Buyer.
2.4 Adjustments
to
Purchase Price.
Notwithstanding
the above, Buyer
shall at
Closing receive a credit against the Purchase Price equal to the lesser of
Ten
Thousand Dollars ($10,000.00) or the sum of Buyer’s closing costs hereunder,
including title insurance costs, if any, escrow costs, and actual attorneys
fees
incurred relating to this Agreement and the Closing hereof.
ARTICLE
3
TITLE
AND SURVEY
MATTERS
3.1 Preliminary
Title Report.
(a) Buyer
acknowledges
the receipt on January 25, 2008 of the current commitment for title insurance
(the “Report”)
on the Property
showing the status of title to the Property as of the date of the Report and
accompanied by legible copies of all documents referred to in the Report,
whether as exception or otherwise.
2
(b) Buyer
shall have
until February 7, 2008 at 5:00 p.m. Arizona time (the “Review
Period”)
to approve or
disapprove of the status of title as shown by the Report. If Escrow Agent issues
a supplemental or amended title report showing additional exceptions to title
(an “Amended
Report”),
Buyer shall
have three (3) business days (a “Supplemental
Review Period”)
from the date of
receipt of the Amended Report, including copies of each document referred to
in
the Amended Report, in which to give notice of dissatisfaction as to any
additional exceptions which materially and adversely affect the marketability
of
the title or value to the Property. If Buyer is dissatisfied in accordance
with
the paragraph with any exception to title as shown in the Report or an Amended
Report, then, at Buyer’s sole option, Buyer may within the Review Period or
Supplemental Review Period either cancel this Agreement by giving written notice
of cancellation to Seller and Escrow Agent within the Review Period, or
Supplemental Review Period, as appropriate, or Buyer may give notice that it
provisionally accepts the title subject to Seller’s removal of any disapproved
matters, exceptions or objections ("Objection
Notice").
Seller shall in
writing, within three (3) days of receipt of Buyer's Objection Notice, notify
Buyer that it elects to: a) cure the title or otherwise remove from the Report
the matters to which Buyer has stated an objection, or proffer protective
endorsements acceptable to Buyer in its sole discretion; or b) not to cure
title or to remove such exceptions (the “Objection
Rejection Notice”).
In the event
that Seller elects not to cure title or to remove such exceptions, elects to
do
so but fails to do so on or before the Closing, or in the event Buyer does
not
accept any endorsements proffered, Buyer may cancel this Agreement and all
Xxxxxxx Money deposits shall then be returned to Buyer upon demand and all
obligations of the parties hereunder shall terminate, or, alternatively, Buyer
may waive such objections and the transaction shall close as
scheduled.
(c) Notwithstanding
anything herein contained to the contrary, it is understood and agreed that
title to the Property shall be delivered to Buyer at the Close of Escrow free
and clear of all monetary liens and encumbrances, other than the lien for real
property taxes and assessments or any monetary lien resulting from an action
or
agreement of Buyer, and that such monetary liens and encumbrances shall be
released from the Property by Seller at Seller’s sole expense on or before the
Close of Escrow. It is further understood and agreed that the existing lease
of
the Property, being that certain "Lease" dated as of November 15, 2002, as
amended by that certain letter agreement of April 20, 2003 (the "Lease"),
is the only
lease impacting or affecting the Property. The parties agree that the Lease
shall be deemed cancelled and terminated at the Close of Escrow, but shall
remain in full force and effect should this transaction fail to
close.
(d) If
Buyer does not
object to an exception to title as disclosed by a Report or Amended Report
within the applicable time period, then except as provided in Section
3.1(c)
above, such matter
shall be deemed to have been approved by Buyer. If Seller does not timely elect
and deliver its response to Buyer's Objection Notice, Seller shall be deemed
to
have given the Objection Rejection Notice. On or before the date which is the
earlier of (i) 3 days after Seller’s delivery or deemed delivery of the
Objection Rejection Notice and (ii) the Closing, Buyer may elect to cancel
this
Agreement by delivery of written notice of such cancellation to Seller and
Escrow Agent (the “Cancellation
Notice”).
If Buyer fails
to timely deliver the Cancellation Notice, such matters shall be deemed to
have
been approved by Buyer. Exceptions in the Report which are approved or deemed
approved by Buyer pursuant to the provisions hereof shall be deemed to be
acceptable to Buyer and shall be referred to herein as the “Permitted
Exceptions.”
3
(e) Upon
a cancellation
in accordance with the provisions of this Section 3.1,
all Xxxxxxx Money
deposits shall be returned to Buyer, together with all documents deposited
in
escrow by Buyer. All documents deposited in escrow by Seller shall be returned
to Seller, and this Agreement shall terminate.
(f) Deed.
At the Close of
Escrow, Seller shall convey title to the Property to Buyer by special warranty
deed (the “Deed”),
in form
attached hereto as Exhibit
"B".
3.2 Title
Policy.
(a) At
the Close of
Escrow, Seller shall at its cost provide Buyer with a standard coverage owner’s
policy of title insurance issued by Lawyer's Title Insurance Corporation, a
Nebraska corporation (the “Title
Insurer”)
in the full
amount of the sales price (or the irrevocable commitment of the Title Insurer
to
issue such policy), effective as of the Close of Escrow, insuring Buyer that
fee
simple title to the Property is vested in Buyer, subject only to (i) the usual
printed exceptions and exclusions contained in such title insurance policies,
(ii) the Permitted Exceptions, and (iii) any other matters approved in writing
by Buyer or resulting from the acts of Buyer or Buyer’s agents.
(b) If
Buyer elects
extended coverage or any special title insurance endorsements not otherwise
provided by Seller in accordance with Section
3.1(b),
Buyer shall be
responsible for satisfying, at its cost, Escrow Agent's requirements therefor
and shall pay the difference between the premium for such policy and any special
endorsements and the premium for a standard coverage policy.
ARTICLE
4
ESCROW;
CLOSING;
AND PRORATIONS
4.1 Escrow.
An escrow for
this transaction shall be established with Escrow Agent, and Escrow Agent is
hereby engaged to administer the escrow. This Agreement constitutes escrow
instructions to the Escrow Agent and a copy shall be deposited with Escrow
Agent
for this purpose.
4.2 Opening
and
Closing Dates.
(a) Escrow
shall be
deemed open ("Opening
of Escrow")
on the date (the
“Opening
Date”)
when one (1)
fully executed copy of this Agreement, together with the Xxxxxxx Money deposit
of $25,000.00, has been delivered to Escrow Agent. Escrow Agent shall advise
Buyer and Seller in writing of the Opening Date.
4
(b) The
closing of this
transaction and escrow (referred to in this Agreement as the “Closing”
or
the
“Close
of
Escrow”)
shall occur as
soon as possible after expiration of the Feasibility Period in ARTICLE
7,
and after
expiration of the time periods in ARTICLE
3
for title review
and objection, with the parties cooperating to attempt to achieve a Closing
on
February 8, 2008. Should the Feasibility Period, other periods, or similar
issues cause a delay beyond such date, then the Closing shall be on or before
February 15, 2008.
4.3 Escrow
Cancellation Charges.
If the escrow
fails to close because of Seller’s default, Seller shall be liable for all
customary escrow cancellation charges. If the escrow fails to close because
of
Buyer’s default, Buyer shall be liable for all customary escrow cancellation
charges. If the escrow fails to close for any other reason, Seller and Buyer
shall each be liable for one-half (1/2) of all customary escrow cancellation
charges.
4.4 Closing
Costs
and Prorations.
(a) Upon
the Close of
Escrow, Seller agrees to pay one-half (1/2) of the escrow charges and the entire
cost of the standard coverage owner’s policy of title insurance.
(b) Upon
the Close of
Escrow, Buyer agrees to pay one-half (1/2) of the escrow charges and if Buyer
has elected to receive an ALTA extended owner’s title insurance policy and any
endorsements or the premium for such policy, less the premium for a standard
coverage policy in the same amount and the cost of any endorsements, shall
be
paid by Buyer.
(c) Real
estate taxes,
property owners’ association assessments, utility charges, irrigation
assessments, either existing or proposed, improvement liens and other special
assessments shall be paid by Buyer pursuant to the terms of the Lease. Any
other
closing costs shall be paid by Buyer and Seller according to the usual and
customary practice in Pima County, Arizona.
(d) Seller
agrees that
all closing costs payable by Seller shall be deducted from Seller’s proceeds at
the Close of Escrow. On or before the Close of Escrow, Buyer shall deposit
with
Escrow Agent in immediately available funds an amount sufficient to pay all
closing costs payable by Buyer.
(e) Any
and all
prepayments of rent under the Lease shall be credited to Buyer or refunded
to
Buyer from Seller, and rent for any current periods shall be prorated. Any
deposits, whether for rents, security, or otherwise shall be refunded to Buyer.
4.5 Recording
and
Filing of Documents.
At the Closing,
the following documents shall be recorded by Escrow Agent in the Pima County
Recorder’s Office, in the sequence listed below:
(a) Deed;
and
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(b) Such
other
documents as may be necessary or appropriate to transfer and convey all of
the
Property to Buyer and to otherwise consummate this transaction in accordance
with the terms of this Agreement.
ARTICLE
5
MATTERS
RELATING TO
THE ESCROW PERIOD
5.1 Possession.
Possession of the
Property shall remain in Buyer pursuant to the Lease, and shall be
unconditionally delivered to Buyer upon the Close of Escrow. Buyer may at any
time enter examine the Property, conduct soil tests and engineering feasibility
studies, and plan for any proposed development of the Property. Buyer agrees
to
indemnify Seller and hold Seller harmless from any injury, cost, liability
or
expense to person or property arising out of Buyer’s exercise of the rights
granted by this Section (unless resulting from Seller’s gross negligence or
intentional misconduct) and this indemnity shall survive the Close of Escrow
or
the cancellation of this Agreement.
5.2 Information.
Buyer hereby
acknowledges that, Seller has provided Buyer with the following:
(a) Copies
of all
surveys, site plans, studies, engineering plans or reports, architectural plans,
and other materials relating to the Property in Seller’s possession, if any. If
this Agreement is canceled, all of the information so provided shall be returned
to Seller; otherwise, Buyer may retain such information; and
(b) Copies
of all
existing warranties, guarantees and permits relating to the Property, and any
existing contracts relating in any way to the Property in Seller’s possession,
if any.
5.3 Condemnation.
In the event of
the condemnation (or sale in lieu thereof) of more than ten percent (10%) of
the
total square footage of the Property prior to the Close of Escrow, Buyer shall
have the right to cancel this Agreement by giving written notice of cancellation
to Seller, in which event all Xxxxxxx Money deposits shall be returned to Buyer
with any interest earned thereon, and the Agreement shall be cancelled. If
condemnation (or sale in lieu thereof) of less than ten percent (10%) of the
total square footage of the Property occurs prior to the Close of Escrow or
if
Buyer elects to close the escrow notwithstanding the taking of more than ten
percent (10%) of the Property prior to the close, Buyer shall receive all awards
or payments made therefor by the condemning authority to which Seller is
entitled and shall proceed to close the escrow and pay the total sales price
provided herein.
6
5.4 Risk
of
Loss.
In view of the
provisions of the Lease which require Buyer to insure the Property, the risk
of
loss or damage to the Property until the Close of Escrow shall be borne by
Buyer, but in the event of any insurable loss on or prior to Closing, due to
casualty or otherwise, all proceeds of insurance shall be used to repair and
restore the Property and improvements thereon and all insurance proceeds shall
be the property of Buyer. If Seller should, prior to Closing, fail to cooperate
in remitting insurance proceeds to Buyer, Buyer, at Buyer’s option, may
either:
(a) Cancel
this
Agreement without further liability to Buyer or Seller, whereupon the Escrow
Agent shall return to Buyer all Xxxxxxx Money deposits and the Escrow Agent
shall return to Buyer any documents delivered by Buyer to the Escrow Agent;
or
(b) Proceed
with the
closing of escrow, and, at Buyer’s option, either receive a mutually agreed
abatement of the purchase price or be entitled to pursue any right or remedy
to
recover such proceeds.
If
Seller should,
subsequent to Closing, fail to cooperate in remitting insurance proceeds to
Buyer, Buyer may pursue any action at law or in equity.
5.5 Maintenance
of
Property.
Buyer, pursuant
to the Lease, agrees to maintain the Property and all improvements and
landscaping thereon in good condition and repair until the Close of
Escrow.
5.6 Material
Changes.
Seller shall
report to Buyer any material changes in and otherwise to update and bring
current as of the Close of Escrow any and all information furnished by Seller
to
Buyer pursuant to this Agreement.
ARTICLE
6
LIMITED
REPRESENTATIONS OF SELLER AND BUYER
6.1 Buyer
acknowledges
that it has been the only occupant/tenant on the Property since March 2003
which
is the majority of xxxx Xxxxxx has owned the Property and is more familiar
and
has more knowledge and information about the Property than Seller and Buyer
represents and warrants to Seller (and on the Closing Date shall be deemed
to
represent and warrant) the following:
(a) Organizational
Status.
Buyer has the
full power and authority to enter into and perform it’s obligations under this
Agreement. Xx. Xxxx Xxxxxxxx, Chief Executive Officer on behalf of Buyer has
the
full power and authority on behalf of Buyer to perform every act and to execute
and deliver every document and instrument necessary or appropriate to consummate
the transaction contemplated hereby.
(b) Entity
Action.
All action on the
part of Buyer which is required for the execution, delivery and performance
by
Buyer of this Agreement and each of the documents and agreements to be delivered
by Buyer at the closing has been duly and affectively taken.
(c) Enforceable
Nature of Agreement.
This Agreement in
each of the documents and agreements to be delivered by Buyer at the closing,
constitute legal, valid and binding obligation of Buyer.
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(d) Violations,
Consent, Default.
Neither the
execution of this Agreement nor the performance hereof by Buyer will result
in
any breach or violation of the terms of any law, rule, ordinance or regulation
or of decree, judgment or order from any court or governmental body. There
are
no consents, waivers, authorizations or approvals from any third party necessary
to be obtained by Buyer in order to carry out the transaction contemplated
by
this agreement.
(e) Litigation.
To the actual
knowledge of Buyer, neither Buyer nor any of its officers or directors is a
party to any pending or threatened action, suit, proceeding or investigation
by
any court or governmental board, commission, agency, department or officer
arising from or relating to the Property. To the actual knowledge of Buyer,
Buyer is not subject to any order, judgment, decree or governmental restriction
which would adversely affect either the Property or the use thereof in the
manner presently being conducted by Buyer.
(f) Governmental
Restrictions.
To the actual
knowledge of Buyer, Buyer has not received, nor is aware of, any notifications,
restrictions, or stipulations from the United States of America, the State
of
Arizona, the County of Pima, the City of Tucson, or any governmental authority
requiring any work to be done on the Property or threatening the use of the
Property. To the actual knowledge of Buyer, there are no pending or threatened
condemnation proceedings affecting any portion of the Property.
6.2 Seller
makes the
following representations and warranties and which shall survive the Close
of
Escrow:
(a) Organizational
Status.
Seller has full
power and authority to enter into and to perform its obligations under this
Agreement. Xx. Xxxxxxxx Xxxxxx on behalf of Seller has full power and authority
on behalf of Seller to perform every act and to execute and deliver every
document and instrument necessary or appropriate to consummate the transactions
contemplated hereby.
(b) Entity
Action.
All action on the
part of Seller which is required for the execution, delivery and performance
by
Seller of this Agreement and each of the documents and agreements to be
delivered by Seller at the Closing has been duly and effectively
taken.
(c) Enforceable
Nature of Agreement.
This Agreement
and each of the documents and agreements to be delivered by Seller at the
closing, constitutes legal, valid and binding obligation of Seller.
(d) Violations;
Consents; Defaults.
Neither the
execution of this Agreement nor the performance hereof by Seller will result
in
any breach or violation of the terms of any law, rule, ordinance, or regulation
or of any decree, judgment or order from any court or governmental body. There
are no consents, waivers, authorizations or approvals from any third party
necessary to be obtained by Seller in order to carry out the transactions
contemplated by this Agreement.
8
(e) Litigation.
To the actual
knowledge of Seller, neither Seller nor any of its members is a party to any
pending or threatened action, suit, proceeding or investigation by any court
or
governmental board, commission, agency, department or officer arising from
or
relating to the Property. To the actual knowledge of Seller, Seller is not
subject to any order, judgment, decree or governmental restriction which would
adversely affect either the Property or the use thereof in the manner presently
being conducted by Seller.
(f) Governmental
Restrictions.
To the actual
knowledge of Seller, Seller has not received, nor is aware of, any
notifications, restrictions, or stipulations from the United States of America,
the State of Arizona, the County of Pima, the City of Tucson, or any other
governmental authority requiring any work to be done on the Property or
threatening the use of the Property. To the actual knowledge of Seller, there
are no pending or threatened condemnation proceedings affecting any portion
of
the Property.
(g) Leases
and
Agreements.
Other than the
Lease, there are no unrecorded leases, arrangements, agreements, understandings,
options, contracts, or rights of first refusal affecting or relating to the
Property.
ARTICLE
7
CANCELLATION
RIGHTS
Buyer
shall have
until 5:00 p.m. Arizona time on February 7, 2008 to study or investigate to
Buyer's satisfaction the feasibility and suitability of the Property for Buyer's
long term intended use (the “Feasibility
Period”).
During the
Feasibility Period, Buyer, at Buyer's expense, may cause to be prepared or
performed any and all reports and studies deemed appropriate by Buyer in order
to perform its due diligence investigation and analysis of the Property. Until
expiration of the Feasibility Period, Buyer shall have the right to cancel
this
Agreement for any reason whatsoever and shall be entitled to a return of all
Xxxxxxx Money by giving Seller written notice of cancellation on or prior to
expiration of the Feasibility Period. If written notice of cancellation is
not
given on or before the expiration of the Feasibility Period as set forth herein,
then Buyer shall be deemed to have waived Buyer's right to cancel this Agreement
under this ARTICLE
7.
ARTICLE
8
CERTIFICATION
AS TO
“NON-FOREIGN” STATUS
8.1 Certification.
At the Closing,
Seller shall deliver or cause to be delivered to Buyer, at Seller’s sole cost
and expense, a certification in a form approved by Buyer, signed and
acknowledged by Seller under penalties of perjury, certifying that Seller is
not
a nonresident alien, foreign corporation, foreign partnership, foreign trust,
foreign estate, or other foreign person within the meaning of Section 1445
and
7701 of the Internal Revenue Code of 1986 and the Treasury Regulations
thereunder (collectively the “IRC”).
9
8.2 Application
to
Purchase Price.
Any amount
withheld by Buyer and paid to the United States Treasury as required by Section
1445(a) of the IRC shall nevertheless be considered, for all purposes, as a
payment by Buyer to Seller on account of the Purchase Price.
ARTICLE
9
CLOSING
DOCUMENTS
9.1 Seller’s
Closing
Documents.
On or before the
Close of Escrow, Seller shall deposit into escrow the following documents for
delivery to Buyer at the Close of Escrow, each of which shall have been duly
executed and, where appropriate, acknowledged, and shall be in form and
substance satisfactory to Buyer and Buyer’s legal counsel (unless otherwise
noted):
(a) The
Deed in the
form required by Section
3.1;
(b) An
Affidavit of
Value as required by law;
(c) A
Xxxx of Sale in
the form of Exhibit
C
hereto conveying
to Buyer Seller’s interest, if any, in all personal property and fixtures
located on or within the improvements on the Property, which personal property
and fixtures shall include, without limitation, all furniture, telephone and
electrical systems, computers and computer systems, clean rooms and vaults,
ceiling tiles and suspensions, telephone systems, mechanical systems, window
and
wall coverings, flooring, and all other fixtures or improvements, and all other
rights and appurtenances;
(d) An
executed and
acknowledged Assignment in the form of Exhibit D
hereto
transferring to Buyer all assignable guarantees, warranties and permits issued
or made in connection with the construction, improvement, alteration or repair
of the Property or any part thereof;
(e) All
keys, and books
and records in Seller’s possession relating to the maintenance, operation and
leasing of the Property, if any; and
(f) Such
other
documents and items as may be necessary or appropriate to transfer and convey
all of the Property to Buyer and to otherwise consummate this transaction in
accordance with the terms of this Agreement.
9.2 Buyer’s
Closing
Documents.
On or before the
Close of Escrow, Buyer shall deposit into escrow the following documents for
delivery to Seller at the Close of Escrow, each of which shall have been duly
executed and, where appropriate, acknowledged and shall be in form and substance
reasonably satisfactory to Seller and Seller’s legal counsel (unless otherwise
noted):
(a) An
Affidavit of
Value so required by law; and
(b) Such
other
documents as may be necessary or appropriate to consummate this transaction
in
accordance with the terms of this Agreement.
10
ARTICLE
10
REMEDIES
10.1 Seller’s
Remedies.
If Buyer fails to
deposit the remainder of the sales price in the time and manner set forth in
this Agreement or to perform when due any other act required by this Agreement
provided Seller is not then in default, Seller’s sole and exclusive remedy shall
be to cancel this Agreement and the escrow, such cancellation to be effective
five (5) days after Seller gives written notice of cancellation to Buyer and
Escrow Agent. If Buyers default is not cured within such five (5) day period,
Seller shall be entitled to receive all Xxxxxxx Money deposits in escrow (and
Escrow Agent is hereby instructed to deliver such deposits to Seller), all
as
liquidated damages and not as a penalty, the parties agreeing and hereby
stipulating that the exact amount of damages would be extremely difficult to
ascertain and that the Xxxxxxx Money deposits constitute a reasonable and fair
approximation of such damages.
10.2 Buyer’s
Remedies.
If Seller fails
to perform when due any act required by this Agreement to be performed provided
Buyer is not then in default, then following a period of five (5) days after
a
Buyer has given written notice of Seller’s default to Seller and Escrow Agent
and Seller has not cured the Seller’s default within such five-day period,
Buyer’s sole and exclusive remedies shall be to, either (i) cancel this
Agreement by written notice to Seller and receive a full refund of the Xxxxxxx
Money deposits and terminate this agreement or (ii) bring an action to compel
specific performance of Seller’s obligation hereunder, thereby waiving any other
legal or equitable remedies against Seller; provided, however, that any action
for specific performance must be filed and served upon Seller within thirty
(30)
days after Seller’s alleged failure to perform, otherwise Buyer shall be deemed
to have elected in accordance with clause (i) above.
ARTICLE
11
GENERAL
PROVISIONS
11.1 Assignment.
At any time on or
before February 6, 2008, Buyer may assign its rights under this Agreement to
an
assignee of Buyer’s free choice. Upon execution by the assignee of a document
whereby the assignee assumes the obligations of Buyer and agrees to perform
such
obligations, Seller hereby agrees that the assignor shall be released from
all
obligation and liability as Buyer under this Agreement and that Seller will
accept performance of all of Buyer’s obligations by the assignee.
11.2 Cooperation.
Seller shall
cooperate fully with Buyer in obtaining any necessary governmental approvals
to
the transfer of any item of property being sold to Buyer pursuant to this
Agreement.
11.3 Binding
Effect.
The provisions of
this Agreement are binding upon and shall inure to the benefit of the parties
and their respective heirs, personal representatives, successors and
assigns.
11
11.4 Attorneys’
Fees.
If any action is
brought by either party in respect to its rights under this Agreement, the
prevailing party shall be entitled to reasonable attorneys’ fees and court costs
as determined by the court.
11.5 Waivers.
No waiver of any
of the provisions of this Agreement shall constitute a waiver of any other
provision, whether or not similar, nor shall any waiver be a continuing waiver.
Except as expressly provided in this Agreement, no waiver shall be binding
unless executed in writing by the party making the waiver. Either party may
waive any provision of this Agreement intended for its benefit; provided,
however, such waiver shall in no way excuse the other party from the performance
of any of its other obligations under this Agreement.
11.6 Construction.
This Agreement
shall be construed according to Arizona law. References in this Agreement to
“Sections” or “Articles” are to the Sections and Articles in this Agreement,
unless otherwise noted.
11.7 Knowledge
of
Seller.
Where a
representation or warranty is qualified by the phrase “to the actual knowledge
of Seller” or words of similar import, such phrase means that the representation
or warranty is made to the actual knowledge of Xx. Xxxxxx Xxxxxx with no duty
to
investigate. Notwithstanding anything hereto the contrary, Xx. Xxxxxx shall
not
have any personal liability or liability whatsoever with respect to any matters
set forth in this Agreement or Seller’s representations and/or warranties herein
being or becoming untrue, inaccurate or incomplete in any respect.
11.8 Knowledge
of
Buyer.
Where a
representation or warranty is qualified by the phrase “to the actual knowledge
of Buyer” or words of similar import, such phrase means that the representation
or warranty is made to the actual knowledge of Xx. Xxxx Xxxxxxxx with no duty
to
investigate. Notwithstanding anything hereto the contrary, Xx. Xxxx Xxxxxxxx
shall not have any personal liability or liability whatsoever with respect
to
any matters set forth in this Agreement or Buyer’s representations and/or
warranties herein being or becoming untrue, inaccurate or incomplete in any
respect.
11.9 Time.
Time is of the
essence of this Agreement.
11.10 Notices.
(a) Notices
shall be in
writing and shall be given by personal delivery to a responsible person, by
deposit in the United States mail, certified mail, return receipt requested,
postage prepaid, or by express delivery service, freight prepaid. Notices shall
be delivered or addressed to Seller and Buyer at the addresses set forth on
the
first page of this Agreement or at such other address as a party may designate
in writing. The date notice is deemed to have been given, received and become
effective shall be the date on which the notice is delivered.
| (b) |
A
copy of
each notice to Seller shall also be sent to:
Xxxxx
&
Xxxxxx, LLP
0000
Xxxxxxxxx Xxxxx
Xxx
Xxxxx
Xxxxxx
Xxxxxx,
Xxxxxxx 00000
Attn:
Xxxx X.
Xxxxx
|
12
| (c) |
A
copy of
each notice to Buyer shall also be sent to:
Xxxxx
and
Xxxx LLP
Xxx
Xxxxx
Xxxxxx, Xxxxx 000
Xxxxxx,
XX
00000
Attn:
Xxxxxxx
Xxxxx
|
Copies
of all
notices shall also be given to Escrow Agent. The copies of notices sent in
accordance with this Section
11.10(b)
and
(c)
are informational
and are not required in order for the notices given pursuant to Section
11.10(a)
to be
effective.
11.11 Further
Documentation.
Each party agrees
in good faith to execute such further or additional documents as may be
necessary or appropriate to fully carry out the intent and purpose of this
Agreement.
11.12 Authorization.
(a) Prior
to the Close
of Escrow, Seller shall provide Buyer and Escrow Agent with a certified copy
of
a resolution of the members of Seller, which resolution shall be in full force
and effect, approving this transaction and designating the person or persons
authorized to sign documents on behalf of Seller.
(b) Prior
to the Close
of Escrow, Buyer shall provide Seller and Escrow Agent with a certified copy
of
resolution of the Board of Directors of Buyer, which resolution shall be in
full
force and effect, approving this transaction and designating the person or
persons authorized to sign documents on behalf of Buyer.
11.13 Time
Periods.
Except as
expressly provided for herein, the time for performance of any obligation or
taking any action under this Agreement shall be deemed to expire at five o’clock
p.m. (Tucson time) on the last day of the applicable time period provided for
herein. If the time for the performance of any obligation or taking any action
under this Agreement expires on a Saturday, Sunday or legal holiday, the time
for performance or taking such action shall be extended to the next succeeding
day which is not a Saturday, Sunday or legal holiday.
11.14 Headings
and
Counterparts.
The headings of
this Agreement are for purposes of reference only and shall not limit or define
the meaning of any provision of this Agreement. This Agreement may be executed
in any number of counterparts, each of which shall be an original but all of
which shall constitute one and the same instrument.
11.15 Publicity.
Except as may be
required by law or any governmental authority, or to obtain any consents or
approvals required by this Agreement, Seller and Buyer shall not, without the
consent of the other party, make any public disclosure of the existence of
this
Agreement, the parties hereto, the terms hereof or any other matter related
hereto; and they shall use their best efforts to avoid such publicity in any
newspaper or magazine, or on any radio or television station, or through any
other medium of publication.
13
11.16 Entire
Agreement.
This Agreement,
including Exhibits attached hereto, constitutes the entire agreement between
the
parties pertaining to the subject matter contained in this Agreement. All prior
and contemporaneous agreements, representations and understandings of the
parties, oral or written, are superseded by and merged in this Agreement. No
supplement, modification or amendment of this Agreement shall be binding unless
in writing and executed by Buyer and Seller.
|
"Buyer"
Ionatron,
Inc.
By:
/s/
Xxxxxxx Xxxxxxx
Its:
Chief
Financial Officer
Print
Name:
Xxxxxxx Xxxxxxx
|
“Seller”
COLUMBIA
TUCSON LLC
By:/s/
Xxxxxxxx Xxxxxx
Its:
Managing
Member
Print
Name:
Xxxxxxxx Xxxxxx
|
14
