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EXHIBIT 10(r)
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this "Agreement") is entered into this
27th day of July, 2000, by and between X. X. XXXX, INC., a New Jersey
corporation, having an address of 000 Xxxxxxx Xxxxxx, Xxxxxx Xxxx, Xxx Xxxxxx
00000 (the "SELLER"), and ALPHA INDUSTRIES, INC., a Delaware corporation,
having an address of 00 Xxxxxx Xxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 or its
nominee (the "BUYER").
R E C I T A L S:
Seller is the owner of certain Premises, as hereinafter defined, which it
desires to sell to Buyer. Buyer desires to purchase the Premises on the terms
and conditions set forth herein.
A G R E E M E N T S:
NOW, THEREFORE, in consideration of the foregoing, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Buyer and Seller hereby agree as follows:
1. PURCHASE AND SALE AND DESCRIPTION OF PROPERTY. Seller shall sell and
Buyer shall purchase, upon and subject to the terms, conditions, stipulations
and agreements hereinafter set forth, all of Seller's right, title and interest
in the following (collectively, the "PROPERTY"):
(a) all that certain real property consisting of approximately 41.5
acres of land together with the building thereon containing approximately
125,000 square feet of space and the other improvements thereon located at 00
Xxxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx, as more particularly described on
EXHIBIT A attached hereto, together with all right, title and interest of Seller
if any in and to any land lying in the bed of any streets (open or proposed)
adjacent or abutting or adjoining such property, together with all rights,
privileges, rights of way and easements appurtenant to such property, including,
without limitation, all minerals, oil or gas on or under such property,
development rights, air rights, water rights, and any easements, rights of way
or other interests in, on or under any lands, highways, alleys, streets,
marshes, marshlands, waterways or rights of way abutting or adjoining such
property (the "PREMISES"); and
(b) all fixtures, equipment and appliances, including, without
limitation, all electrical light fixtures, heating equipment, air conditioning
equipment, air compressors, and other personal property of every nature and
description attached or pertaining to, or otherwise used in connection with, the
Premises, owned by Seller and located at the Premises (the "PERSONALTY").
(c) all studies, surveys, plans, specifications, reports, approvals,
licenses, permits, certificates, special permits, site plan approvals and
variances benefiting, owned or caused to be prepared by Seller relating to the
Property which are currently in Seller's actual possession.
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2. PURCHASE PRICE. The purchase price for the Premises shall be Eight
Million Seven Hundred Fifty Thousand Dollars ($8,750,000.00) (the "Purchase
Price") payable in the following manner:
(a) Three Hundred Thousand Dollars ($300,000.00) has been paid to the
Escrow Agent (as defined in Section 13) as a deposit (such amount, together with
all interest earned thereon, shall be referred to herein as the "DEPOSIT") as of
the date of this Agreement.
(b) The balance of the Purchase Price, i.e., Eight Million Four
Hundred Fifty Thousand Dollars ($8,450,000.00), shall be paid by Buyer to Seller
at the time of the delivery of the Deed (as defined in Section 3.1) by Federal
funds wire transfer as directed by Seller or by certified or cashier's check
payable directly to Seller without any intervening endorsement.
3. CONDITION OF TITLE AND PROPERTY.
3.1. TITLE SUBJECT TO. Seller shall convey the Premises to Buyer (or
to a nominee of Buyer, which nominee shall be designated in writing by Buyer to
Seller not later than ten (10) days prior to the Closing) by quitclaim deed (the
"DEED"), conveying good and clear record and marketable title, free from
encumbrances, except the following and any Title Defects (as defined in Section
3.5) to which Buyer has waived its rights (collectively the "PERMITTED
ENCUMBRANCES"):
(a) Any state of facts that would be disclosed by an accurate survey;
(b) Covenants, restrictions, easements, reservations and agreements of
record;
(c) Building and zoning restrictions, ordinances, and regulations
affecting the Premises adopted by the city, town or village in which the
Premises lies or by any other governmental authority having jurisdiction
thereof, and all amendments or additions thereto now or which will be in force
and effect on the Closing Date, or any extension thereof;
(d) Any and all assessments for municipal betterments becoming liens
subsequent to the date hereof; and
(e) All real and personal property taxes, water charges and sewer
rents, which are not due and payable as of the date of the Closing.
3.2. REGISTERED TITLE. If title to all or a portion of the Premises is
registered, the Deed shall be in a form sufficient to entitle Buyer to a
certificate of title to all or such portion of the Premises, and Seller shall
deliver with the Deed all instruments, if any, necessary to enable Buyer to
obtain such certificate of title.
3.3. MASSACHUSETTS CONVEYANCING STANDARDS. Title matters shall be
governed by customary Massachusetts title standards or practices, to the extent
the same are applicable.
3.4. CONDITION OF PROPERTY. The Property is to be purchased and sold
in its "as is" condition as of the date of this Agreement, reasonable wear and
tear excepted, without representation or warranty by Seller, and free of all
claims of and possession by tenants and
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occupants. Buyer hereby expressly agrees that the Due Diligence Period set forth
in Section 6 below will afford Buyer sufficient access to the Property and
opportunity to conduct such physical inspections of the Property as Buyer
desires. Buyer acknowledges and agrees that, except as expressly set forth in
this Agreement, no representations or warranties have been made or are made by
Seller or by any officer, person, firm, agent or representative acting or
purporting to act on behalf of Seller, as to the condition or repair of the
Property, fitness of the Property for any particular purpose, compliance of the
Property with any laws, or the value, expense of operating, or income potential
of the Property, or as to any other fact or condition which has or might affect
the Property or the condition, repair, fitness for a particular purpose,
compliance with laws, value, expense of operation or income potential of the
Property or any portion thereof. The provisions of this Section shall survive
indefinitely, including the Closing and delivery of the Deed, or earlier
termination of this Agreement.
3.5. BUYER'S TITLE REVIEW PERIOD. Buyer shall order, at its sole cost
and expense, an owner's title insurance commitment to insure fee simple title to
the Premises. If the title insurance commitment indicates the existence of any
liens or encumbrances, which would impair the title or Buyer's intended use of
the Premises for light manufacturing purposes (collectively the "TITLE DEFECTS")
then Buyer shall give written notice thereof to Seller and provide Seller with a
copy of the title insurance commitment and document creating the Title Defect on
or before 5:00 p.m. on the date which is forty-five (45) days from the date
hereof ("BUYER'S TITLE NOTICE"). Buyer waives any right to object to any liens
or encumbrances that are not set forth in Buyer's Title Notice unless such lien
or encumbrance first appears of record after the date of Buyer's title insurance
commitment, in which event it shall be considered a Title Defect to which Buyer
has not waived its rights. Seller shall use reasonable efforts to cure all Title
Defects other than those listed in Section 3.1 above, before the Closing Date,
as such date may be extended in accordance with Section 3.6 below, provided
however that in no event shall Seller be obligated to spend in excess of
$25,000.00 to cure Title Defects. Notwithstanding and in addition to the
foregoing $25,000.00 limitation on Seller's Title Defect cure obligations,
Seller shall satisfy mortgages, mechanics liens and voluntary liens and any
involuntary liens which exist as of the date hereof and any involuntary liens
which arise after the effective date of Buyer's title insurance commitment.
3.6. EXTENSION TO PERFECT TITLE OR MAKE PREMISES CONFORM. In the event
that Seller is unable to eliminate all Title Defects to which Buyer has not
waived its rights, or is unable to arrange for title insurance satisfactory to
Buyer over such matters, or shall fail to deliver possession of the Property in
accordance with the terms, conditions and provisions contained in this
Agreement, Seller may by written notice to the Buyer, delivered at or before the
time for performance hereunder, extend the time for performance hereof for a
period of thirty (30) days.
3.7. FAILURE TO PERFECT TITLE OR MAKE PROPERTY CONFORM. If, at the
Closing or the expiration of the extended time as provided in Section 3.6 hereof
(if any), Seller shall have failed to remove any Title Defects, deliver
possession, satisfy the Seller's obligations or make the Property conform, as
the case may be, all as herein agreed, the sole liability and obligation of the
Seller at law or in equity shall be to return the Deposit (along with any
interest which accrued under the escrow account) and all other obligations of
all parties hereto shall cease, except for
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those obligations which specifically survive the Closing or earlier termination
of this Agreement, and this Agreement shall terminate and be void, without
recourse by the parties hereto.
3.8. BUYER'S ELECTION TO ACCEPT THE PROPERTY, TITLE. Buyer shall have
the election, at either the original or any extended time for performance, to
accept such title as Seller can deliver and such performance as Seller has
achieved and to accept the Property in its then condition and to pay therefor
the Purchase Price without deduction, in which case Seller shall convey such
title, except that in the event of such conveyance in accordance with the
provisions of this Section, if the Property shall have been damaged by fire or
casualty insured against, then Seller shall, unless Seller has previously
restored the Property to their former condition, (a) pay over or assign to the
Buyer, on delivery of the Deed, all amounts recovered or recoverable on account
of any available insurance, less any amounts reasonably expended by the Seller
for any partial restoration (provided Seller has obtained Buyer's reasonable
approval of said restorations), or (b) if a holder of a mortgage on the Premises
shall not permit the insurance proceeds or a part thereof to be used to restore
the Premises to their former condition or to be so paid over or assigned, give
Buyer a credit against the Purchase Price at the Closing equal to the amount so
recovered or recoverable and retained by the holder of the mortgage less any
amounts expended by Seller for any partial restoration (provided Seller has
obtained Buyer's reasonable approval of said restorations).
3.9. QUALITY OF TITLE. Title to the Premises shall be deemed to be
satisfactory and in compliance with the provisions of Section 3.1 hereof and
with other applicable provisions of this Agreement if a nationally-recognized
title insurance company is willing to issue to the Buyer, upon delivery from
Seller to Buyer of the Deed contemplated by this Agreement and upon recordation
of such Deed, at normal title insurance premium rates, an owner's title
insurance policy (on the then-current ALTA form) insuring fee title in the
Buyer, free from all exceptions other than standard preprinted exclusions from
coverage (except with the standard survey exception deleted if Buyer obtains a
survey and with the standard exceptions for parties in possession and mechanics
liens deleted based upon affidavits of Seller), and those permitted by Section
3.1 hereunder.
3.10. ACCEPTANCE OF DEED. The acceptance of the Deed by the Buyer
shall be deemed to be a full performance and discharge of every agreement and
obligation herein contained or expressed, except such as are, by the terms
hereof, to be performed after the delivery of the Deed.
3.11. USE OF PURCHASE MONEY TO CLEAR TITLE. To enable the Seller to
convey the Premises as herein provided, the Seller may, at the time of the
delivery of the Deed, use the purchase money or any portion thereof to clear the
title of any or all encumbrances or interests, provided that all instruments so
procured are recorded simultaneously with the delivery of the Deed.
4. BUYER'S FAILURE TO PERFORM. If Buyer shall fail or refuse to perform
any obligations hereunder, Seller shall retain the Deposit, along with any
interest which may have accrued under the escrow account, as liquidated damages
as its sole and exclusive remedy at law or in equity, it being agreed that
Seller's damages are impossible to ascertain. Buyer and Seller shall thereafter
be released from further liability hereunder, except for those obligations, if
any,
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which expressly survive the Closing or earlier termination of this Agreement
including, without limitation, the obligations of Buyer described in Section 6
hereof.
5. DELIVERY OF RECORDS. If Seller has not already done so, Seller shall
deliver to Buyer, not later than five (5) days after execution of this
Agreement, copies of all plans, drawings, specifications and surveys of the
Premises, maintenance and service contracts and inspection, environmental and
other reports relating to the Premises, including the environmental reports
listed on EXHIBIT B attached hereto (collectively, the "ENVIRONMENTAL REPORTS"),
which, to the best of Seller's knowledge, exist and are in its possession or
under its control (collectively, the "RECORDS").
6. BUYER'S DUE DILIGENCE PERIOD. Buyer and its duly licensed agents and
engineers shall have the right, from and after the date of this Agreement, until
5:00 p.m. on the date which is forty-five (45) days from the date hereof, or the
earlier termination of this Agreement (the "DUE DILIGENCE PERIOD"), to enter
upon the Premises to perform, at Buyer's sole cost and expense, tests,
inspections and investigations of the Property including but not limited to
surveys, environmental studies and examination of all structural and mechanical
systems, a review of the Records and an analysis of applicable zoning laws to
determine compliance of the Property with such laws for Buyer's intended use of
the Property. If Buyer wishes to engage in any engineering investigations which
will damage or disturb any portion of the Premises, Buyer shall obtain Seller's
prior consent thereto, which shall not be unreasonably withheld. Buyer hereby
agrees to indemnify Seller against any and all claims, liabilities or penalties
on account of or based upon any injury to any person or loss of or damage to any
property arising out of or in connection with Buyer's entry onto the Premises
for the performance of such due diligence investigations (except if the injury,
loss or damage is directly attributable to an existing condition or some
negligent act or omission of Seller), and Buyer agrees to promptly restore the
Premises, at Buyer's sole cost and expense, to substantially its condition
before Buyer's entry onto the Premises. The provisions to this paragraph shall
survive the Closing or earlier termination of this Agreement.
Buyer shall maintain, at Buyer's expense, a policy of commercial general
liability insurance, with a broad-form contractual liability endorsement
covering Buyer's indemnification obligations under this Agreement, with a
combined single limit of not less that $2,000,000 per occurrence for bodily
injury and property damage, insuring Buyer and Seller as additional insured
against any injuries or damages to persons or property that may result from or
are related to (i) Buyer's and/or Buyer's agents or contractors entry upon the
Premises, (ii) any investigations or other activities conducted thereon, and
(iii) any and all other activities undertaken by Buyer and/or Buyer's
representatives, all of which insurance shall be on an "occurrence form" and
otherwise in such forms and with an insurance company acceptable to Seller, and
deliver a certificate of such insurance policy to Seller prior to the first
entry on the Premises;
If Buyer is dissatisfied, in its sole discretion, with its tests,
inspections and investigations, Buyer may, upon written notice to Seller, elect
to terminate this Agreement, provided such notice is delivered on or before 5:00
p.m. on the last day of the Due Diligence Period and, with respect to a
termination due to environmental conditions, such notice is accompanied by a
written report
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documenting Buyer's determination prepared by an engineer licensed as a licensed
site professional. Any matter or issue discovered by Buyer during the Due
Diligence Period shall be disclosed to Seller who shall comply with any
notification requirement relating thereto. In the event Buyer elects to
terminate this Agreement in accordance with this Section 6, the Deposit shall be
refunded to Buyer, along with any interest which accrued thereunder, and
thereafter all other obligations of the parties hereto shall cease (excluding
those obligations which expressly survive the Closing or earlier termination of
this Agreement). If Buyer fails to deliver written notice terminating this
Agreement and any accompanying material required by this Section 6 on or before
5:00 p.m. on the last day of the Due Diligence Period in accordance herewith,
Buyer shall be deemed to have waived its right to terminate the Agreement under
this Section 6.
7. THE CLOSING.
7.1. CLOSING DATE. The closing of the purchase and sale of the
Premises contemplated hereunder (the "CLOSING") shall be held at the offices of
Xxxxxx & Dodge LLP, Xxx Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx (or another
location agreed to in writing by Buyer and Seller), on the date which is fifteen
(15) days after the end of the Due Diligence Period, unless otherwise agreed to
by the parties hereto (the "CLOSING DATE").
7.2. DOCUMENTS OF TRANSFER. The Premises shall be conveyed and
transferred on the Closing Date, as the same may be extended in accordance with
the terms of this Agreement, to Buyer, or to a nominee of Buyer, pursuant to the
following documents of transfer:
(a) PREMISES. Seller shall convey title to the Premises to Buyer by
the Deed as defined in Section 3.1, which shall conform to customary
Massachusetts conveyancing standards and shall be in a form reasonably
satisfactory to Buyer's title insurance company.
(b) PERSONALTY. Seller shall convey title to the Personalty to Buyer
by a xxxx of sale in form and substance satisfactory to Buyer and Seller,
together with an assignment to Buyer of any guarantees and warranties benefiting
the Personalty.
(c) TITLE DOCUMENTS. Seller shall deliver a certificate of non-foreign
status, a parties-in-possession and mechanics' lien affidavit, and such other
certificates as are customary and are reasonably required by Buyer's title
insurance company.
(d) AUTHORITY DOCUMENTS. Seller shall deliver such legal existence
certificates, clerk's certificates and corporate votes as may be necessary to
provide evidence of Seller's authority to execute and deliver the Deed.
7.3. APPORTIONMENT AND ADJUSTMENT. On the Closing Date, Buyer and Seller
shall apportion, adjust and prorate the following items in the manner
hereinafter set forth:
(a) TAXES AND OPERATING EXPENSES. All real estate taxes, charges and
assessments affecting the Premises ("TAXES"), all charges for water,
electricity, sewer rental, gas, telephone and all other utilities ("OPERATING
EXPENSES"), shall be prorated on a per diem basis as of the date of Closing. If
any Taxes have not been finally assessed as of the date of Closing for the
current fiscal year of the taxing authority, then the same shall be adjusted at
Closing based upon the most recently issued bills therefor, and shall be
re-adjusted when and if final bills are
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issued. If any Operating Expenses cannot conclusively be determined as of the
date of Closing, then the same shall be adjusted at Closing based upon the most
recently issued bills thus far and shall be re-adjusted within one hundred
twenty (120) days after the end of the calendar year in which the Closing occurs
after final Operating Expenses are determined. Buyer hereby agrees to assume all
non-delinquent assessments affecting the Premises, whether special or general.
(b) CLOSING PAYMENTS. On the Closing Date, Seller shall each pay the
cost of all deed stamps, transfer taxes and conveyance fees. On the Closing
Date, Seller shall pay the cost of all recording fees attributable to title
clearing documents and any other costs or fees incurred by Seller. On the
Closing Date, Buyer shall pay in immediately available funds all recording or
filing fees in connection with the filing of the Deed; and the costs associated
with any title insurance policies obtained by Buyer, any mortgage application
and financing fees, and any other costs and fees incurred by Buyer including
survey costs.
The provisions of this Section 7.3 shall survive the Closing.
8. BROKERAGE INDEMNIFICATION WARRANTY. Buyer warrants and represents to
Seller and Seller represents and warrants to Buyer that it has dealt with no
real estate broker, salesperson, finder or other person entitled to a commission
or fee in connection with the negotiation or execution of this Agreement or the
consummation of the transaction contemplated hereby except for CB Xxxxxxx
Xxxxx/Whittier Partners and Xxxxxxxx Xxxx Company (collectively, the "BROKERS"),
and each agrees to hold the other harmless from and indemnify the other against
all damages, claims, losses and liabilities, including legal fees, incurred by
the other arising out of or resulting from the breach of its representation and
warranty set forth in this Section 8. Seller agrees to pay the Brokers an amount
equal to four percent (4%) of the Purchase Price to be shared equally by the
Brokers, which amount constitutes all brokerage fees and commissions earned by
the Brokers with respect to the transactions contemplated by this Agreement,
provided that this amount shall be paid if and only if Seller delivers and Buyer
accepts the Deed and the full Purchase Price is tendered to Seller. The
representations and warranties of this Section 8 shall survive the Closing or
earlier termination of this Agreement.
9. REPRESENTATIONS AND WARRANTIES.
9.1. SELLER'S REPRESENTATIONS. Seller represents and warrants the
following are true and correct as of the date of this Agreement and shall be
true and correct at the Closing.
(a) Seller is a corporation duly organized and validly existing in
good standing under the laws of the State of New Jersey, has the legal right,
power and authority to enter into this Agreement and to perform all of its
obligations hereunder, and the execution and delivery of this Agreement and the
performance by Seller of its obligations hereunder: (i) have been duly
authorized by all requisite corporate action, and (ii) will not conflict with,
or result in a breach of, any of the terms and provisions of any law,
regulation, order, judgment, writ, injunction or decree of any court or
governmental authority having jurisdiction over Seller or the Premises, or any
agreement or instrument to which Seller is a party or by which it is bound which
would have an adverse effect upon this Agreement or the Premises.
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(b) To the best of Seller's knowledge there is no litigation or
proceeding pending or threatened, which would prevent Seller from complying with
any of its obligations under this Agreement.
(c) Seller has not been adjudicated insolvent or bankrupt, or
petitioned or applied to any tribunal for the appointment of any receiver or
trustee; nor has Seller commenced any proceeding relative to the reorganization,
dissolution or liquidation of Seller.
(d) Seller has not received any notice of any moratorium, condemnation
proceeding or proceedings or agreement in the nature of eminent domain or for
the dedication of any part of the Premises to any public or quasi-public agency
("Taking") in connection with the Premises; and to the best knowledge of Seller,
no such proceeding or agreement is contemplated.
(e) To the best of Seller's knowledge, there are no assessments or
special assessments (including, without limitation, assessments for municipal
improvements) filed, pending or proposed against the Property or any portion
thereof, including, without limitation, any street improvement or special
district assessments.
(f) To the best of Seller's knowledge, no part of the Premises has
been used as a cemetery or burial ground.
(g) Seller has not received any notice that any default or breach
exists under any covenant, condition, restriction, right of way, easement or
other encumbrance affecting any part of the Premises and has no knowledge of any
fact or condition which would constitute such default or breach.
(h) There is not now pending, nor to the best knowledge of Seller has
there been threatened, any action, suit, or proceeding against or affecting
Seller or the Premises before or by any federal or state court, commission,
regulatory body, administrative agency or other governmental body, domestic or
foreign, wherein an unfavorable ruling, decision or finding may reasonably be
expected to have a material adverse affect on the Premises (including the use
and development of the Premises for multi-family residential purposes), or would
interfere with Buyer's or Seller's ability to consummate the transactions
contemplated by this Agreement or would in any case or in the aggregate have a
material adverse affect, financial or otherwise, on the business or affairs of
Seller.
(i) Seller is not a "foreign person", as defined under Internal
Revenue Code Section 1445.
(j) There are no management service, supply, maintenance or other
contracts with respect to or affecting the Premises and which would be binding
upon Buyer or the Property after the Closing.
(k) To Seller's actual knowledge, there are no underground storage
tanks in, on, under or about the Premises.
(l) Seller has not entered into any presently effective contracts or
contracts regarding the sale, conveyance, transfer or disposition of the
Property (except for the within
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Agreement). Seller has not granted to anyone and no one possesses any option to
purchase or right of first refusal to purchase the Property. Seller has not
entered into any occupancy contract, leases or the like with respect to the
Property and no one has any right to use or occupy the Property.
9.2. BUYER'S REPRESENTATIONS. Buyer represents and warrants the
following are true and correct on the date of this Agreement and shall be true
and correct at the Closing.
(a) Buyer is a corporation duly organized, validly existing and in
good standing under the laws of Delaware, is qualified to do business in The
Commonwealth of Massachusetts and has the legal right, power and authority to
enter into this Agreement and to perform all of its obligations hereunder, and
the execution and delivery of this Agreement and the performance by Buyer of its
obligations hereunder: (i) have been duly authorized by all requisite corporate
action, and (ii) will not conflict with, or result in a breach of, any of the
terms and provisions of any law, regulation, order, judgment, writ, injunction
or decree of any court or governmental authority having jurisdiction over Buyer,
or any agreement or instrument to which Buyer is a party or by which it is bound
which would have an adverse effect upon this Agreement.
(b) To the best of Buyer's knowledge there is no litigation or
proceeding pending or threatened, which would prevent Buyer from complying with
any of its obligations under this Agreement.
(c) Buyer has not been adjudicated insolvent or bankrupt, or
petitioned or applied to any tribunal for the appointment of any receiver or
trustee; nor has Buyer commenced any proceeding relative to the reorganization,
dissolution or liquidation of Buyer.
9.3. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. Except as otherwise
provided herein, all of Seller's and Buyer's warranties, covenants and
representations made in this Agreement shall survive delivery of the Deed for a
period of sixty (60) days and it shall be a condition of the obligation of
either party to close under this Agreement that all warranties and
representations made by the other are true both as of the date hereof and as of
the Closing in all material respects.
9.4. NO OTHER REPRESENTATIONS. Neither Buyer nor Seller shall be
liable or bound for any verbal or written statements, representation, or
information pertaining to the Premises furnished by any real estate broker,
agent, employee, servant, or any other person, unless the same are specifically
set forth herein. All oral or written prior statements, representations, or
promises, if any, and all prior negotiations and agreements are superseded by
this Agreement and merged herein.
10. NOTICES. Unless and until changed by written notice as provided
herein, all notices, demands and requests which may or are required to be given
by either party to the other shall be in writing, and shall be sent by (i)
personal delivery, (ii) reputable overnight carrier or (iii) United States
registered or certified mail, postage prepaid, return receipt requested, to the
addresses set forth below:
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To Seller: To Buyer:
X. X. Xxxx, Inc. Alpha Industries, Inc.
000 Xxxxxxx Xxxxxx 00 Xxxxxx Xxxx
Xxxxxx Xxxx, XX 00000 Xxxxxx, XX 00000
Attention: Xxxx X. Xxxxx, Esq. Attention: Xxxxx Xxxxxx, Esq.
Associate General Counsel General Counsel
WITH A COPY TO: WITH A COPY TO:
Xxxxxx & Dodge LLP Xxxxxx & Xxxxxxxxxx LLP
Xxx Xxxxxx Xxxxxx 0 Xxx Xxxxxxx Xxxxxxxxx Xxxx
Boston, MA 02108-3190 Xxxxxxxxxx, XX 00000
Attention: Xxxxxxxxx X. Xx Xxxx, Esq. Attention: Xxxx X. Xxxxxxx, Esq.
To Escrow Agent: Xxxxxxxx Xxxx Company
000 Xxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
All notices, demands and requests which shall be served upon either party
in the manner aforesaid shall be deemed sufficiently served or given for all
purposes hereunder at the times such notice, demand or request shall be duly
mailed to the other party, or if personally delivered or sent by telecopier or
reputable overnight carrier, upon receipt.
11. AUTHORITY. Buyer and Seller represent and warrant to each other that
each has the requisite authority to enter into this Agreement and that upon
execution by both Buyer and Seller, this Agreement shall be binding upon Buyer
and Seller.
12. CONFIDENTIALITY. Buyer agrees to keep confidential and not to use,
other than in connection with its determination whether to proceed with the
purchase of the Premises and its financing thereof, any of the Records or other
documents, material or information regarding the Premises supplied to Buyer by
Seller or by any third party at Seller's request, including, without limitation,
the Environmental Reports furnished to Buyer, and Buyer shall not disclose the
Records or such other documents, materials or information to any persons other
than to Buyer's consultants on a "need to know" basis, and then only upon making
such persons aware of the confidentiality restrictions and procuring the
agreement of such persons to abide by this confidentiality obligation, unless
Buyer is compelled to disclose the Records or such other documents, material or
information by law or by subpoena. Buyer agrees to indemnify and hold harmless
Seller from and against any and all losses, damages, claims and liabilities of
any kind (including, without limitation, reasonable attorneys' fees) arising out
of Buyer's breach of this Section 13. In the event that the Closing does not
occur in accordance with the terms of this Agreement, Buyer shall return
promptly to Seller all of the Records and the documents, material or information
regarding the Premises supplied to Buyer by Seller at no cost or expense to
Seller. The provisions of this Section 12 shall survive indefinitely, including
the termination of this Agreement, but shall no longer be applicable following
Closing in accordance with the terms of this Agreement.
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13. DEPOSIT. The Deposit shall be delivered to Xxxxxxxx Xxxx Company, as
escrow agent (the "ESCROW AGENT"), in accordance with Section 2 hereof. The
Deposit shall be held by the Escrow Agent in a federally-insured, interest
bearing escrow account. The Deposit shall be paid to Seller at Closing, and
shall be nonrefundable, except in the event of a default by Seller hereunder or
a cancellation of this Agreement by Buyer in accordance with the provisions of
this Agreement. The duties of the Escrow Agent and the rights and obligations of
Buyer and Seller with respect to the Escrow Agent are as set forth in that
certain Escrow Agreement of even date herewith in the form of EXHIBIT C hereto.
14. Miscellaneous.
(a) This Agreement shall not be altered, amended, changed, waived,
terminated or otherwise modified in any respect or particular unless the same
shall be in the writing and signed by or on behalf of the party to be charged
therewith.
(b) This Agreement shall be interpreted and enforced in accordance
with the laws of The Commonwealth of Massachusetts. If any provisions of this
Agreement shall be unenforceable or invalid, the same shall not affect the
remaining provisions of this Agreement and to this end the provisions of this
Agreement are intended to be and shall be severable.
(c) Except as otherwise provided in this Agreement, this Agreement
shall be binding upon and shall inure to the benefit of the parties hereto and
to their respective heirs, executors, administrators, successors and assigns.
(d) All prior understandings and agreements between the parties are
merged in this Agreement which alone fully and completely expresses the
agreement between them, and which is entered into after full investigation,
neither party relying upon any statement or representation made by the other not
embodied in this Agreement, and without regard to or aid of canons requiring
construction against the grantor, Seller or party drawing this Agreement.
(e) This Agreement shall not be recorded by Buyer and any recordation
or attempted recordation by Buyer hereof shall be void and shall constitute a
default by Buyer hereunder.
(f) No failure or delay of either party in the exercise of any right
given to such party hereunder or the waiver by any party of any condition
hereunder for its benefit shall constitute a waiver of any other or further
right nor shall any single or partial exercise of any right preclude other or
further exercise thereof or any other right. The waiver of any breach hereunder
shall not be deemed to be a waiver of any other or any subsequent breach hereof.
(g) Each party hereto shall from time to time exercise, acknowledge
and deliver such further instruments and perform such additional acts as the
other party may reasonably request to effectuate the intent of this Agreement.
(h) Each of the exhibits and schedules referred to herein and attached
hereto is incorporated herein by this reference.
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(i) If suit or action is filed to interpret or enforce this Agreement,
the prevailing party shall be entitled to be awarded its reasonable attorneys'
fees in addition to other costs and disbursements allowed by law, including the
same with respect to an appeal.
(j) This Agreement may be executed and delivered in any number of
counterparts, each of which so executed and delivered shall be deemed to be an
original and all of which shall constitute one and the same instrument.
15. PERFORMANCE. Time is of the essence of this Agreement. If any outside
date for the performance of any obligation or giving of any notice under this
Agreement shall occur on a weekend or legal holiday, then the date for such
performance or notice shall be extended until the next succeeding business day.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
SELLER:
X. X. XXXX, INC.
Taxpayer ID# 00-0000000
By: /s/ Xxxxx X. Xxxxx
-------------------------------------
Name: XXXXX X. XXXXX
Title: Vice President
BUYER:
ALPHA INDUSTRIES, INC.
Taxpayer ID# 00-0000000
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------
Name: XXXXX X. XXXXXX
Title: Corporate Counsel
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EXHIBIT A
---------
PROPERTY DESCRIPTION
A certain parcel of land and improvements thereon situated in Haverhill, Essex
County, Massachusetts, shown as Lot 4B on the plan referred to below and bounded
and described according to said plan as follows:
Beginning at the Southwest corner of Lot 4B at Computer Drive and thence running
N12(degree)-22'-40"E 49.63 feet;
thence running along a curve to the left with a radius of 1030.00 feet, 327.66
feet;
thence running N05(degree)-50'-56"W 282.90 feet;
thence running along a curve to the right with a radius of 470.00 feet, 424.55
feet;
thence running N45(degree)-54'-24"E 750.93 feet;
thence running on a curve to the right with a radius of 470.00 feet, 301.39
feet;
thence running N82(degree)-38'-51"E 101.81 feet;
thence running along a curve to the right with a radius of 45.02 feet, 70.72
feet;
thence running S78(degree)-42'-31"W 200.00 feet;
thence running S33(degree)-02'-04"W 341.43 feet;
thence running S18(degree)-07'-11"E 165.00 feet;
thence running S48(degree)-07'-11"E 130.00 feet;
thence running S84(degree)-00'-37"E 154.13 feet;
thence running S35(degree)-44'-09"E 768.65 feet;
thence running S68(degree)-18'-23"W 507.90 feet;
thence running S27(degree)-00'-01"E 449.46 feet;
thence running S28(degree)-55'-24"W 228.00 feet;
thence running along a curve to the right with a radius of 191.00 feet, 196.02
feet;
thence running S87(degree)-43'-30"W 189.17 feet;
thence running along a curve to the left with a radius of 283.00 feet, 243.59
feet;
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thence running N29(degree)-43'-52"W 568.48 feet;
thence running N78(degree)-37'-37'W 252.30 feet; to the point of beginning.
Lot 4B contains approximately 1,808,136 square feet of land according to a
plan entitled "PLAN OF LAND IN HAVERHILL, MASS" dated May, 1987, prepared by
Merrimack Engineering Services, 00 Xxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000
(the "Plan"), recorded as Plan No. ______.
Together with any right Grantor may have of access to Lot 4B on Computer
Drive and any other rights Grantor may have in Computer Drive, in common with
Grantor, Computer Drive having been conveyed to the City of Haverhill by Grantor
by deed dated December 2, 1985 and recorded with the Essex South District
Registry of Deeds at Book 8167, Page 594, and subject to and together with the
benefit of rights, restrictions, easements and agreements of record, whether
imposed prior to or during the period of Grantor's ownership of the property.
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EXHIBIT B
---------
Environmental Reports
---------------------
Site Assessment Relative to Oil and Hazardous Material, Xxx 0 Xxxxxxxx Xxxxx,
Xxxxxxxxx Technology Park, Haverhill, MA June 1987 prepared by The BSC Group,
Inc.
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ESCROW AGREEMENT
THIS ESCROW AGREEMENT (this "AGREEMENT") is entered into this 27th day of
July, 2000, by and among X.X. Xxxx, Inc. (the "SELLER"), Alpha Industries,
Inc. (the "BUYER") and Xxxxxxxx Xxxx Company (the "ESCROW AGENT").
RECITALS
Seller and Buyer have entered into a Purchase and Sale Agreement dated as
of July 27, 2000 (the "PURCHASE AGREEMENT") for the purchase of certain
Property (as defined in the Purchase Agreement);
Seller and Buyer desire the Escrow Agent to serve as escrow agent in
connection with the Purchase Agreement; and
The Escrow Agent is willing to administer the escrow under the terms and
conditions of this Agreement.
AGREEMENTS
NOW, THEREFORE, in consideration of the foregoing, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. There is herewith deposited with the Escrow Agent the amount of
$300,000.00 (such amount, together with all interest earned thereon, shall be
referred to herein as the "DEPOSIT"), receipt of which deposit is hereby
acknowledged by the Escrow Agent. The Deposit shall be held by the Escrow Agent
in a federally-insured, interest bearing escrow account. The Deposit shall be
paid to Seller at Closing or otherwise in accordance with Section 4 of the
Purchase Agreement, and shall be nonrefundable, except in the event of a default
by Seller under the Purchase Agreement or a cancellation of the Purchase
Agreement by Buyer in accordance with the provisions of the Purchase Agreement.
2. The Escrow Agent shall be obligated to perform only such duties as are
specifically set forth in this Agreement and shall not be liable for any act
done or step taken or omitted by it in good faith, or for any mistake of fact or
law, or for anything which it may do or refrain from doing in connection
herewith, except for actions taken in bad faith or in a grossly negligent
manner. In the event of a disagreement between Buyer and Seller, the Escrow
Agent shall be entitled in its sole discretion to refuse to comply with any
claims or demands on it with respect to the funds held by it until such matter
is resolved, and in so refusing such Escrow Agent shall make no delivery or
other disposition thereof and shall not be or become liable in any way to the
other parties hereto for its failure or refusal to comply with such claims or
demands. The parties hereto hereby agree not to make any claim or institute any
legal proceeding against the Escrow Agent, and agree to indemnify, defend and
hold Escrow Agent harmless against any claim or liability, arising out of this
Agreement, the Purchase Agreement or resulting from the Escrow Agent's
performance of its obligations under this Agreement, except such claims as may
arise from Escrow Agent's action taken in bad faith or in a grossly negligent
manner. Without limiting the generality of the foregoing, the Escrow Agent may
conclusively
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rely and shall be protected in acting or refraining from acting in reliance
upon an opinion of independent counsel selected by the Escrow Agent or upon any
order, notice, instruction, certificate, request or other document or
endorsement thereon believed by it to be genuine and to have been signed or
presented by the proper party or parties. The Escrow Agent shall not be bound by
any modification of this Agreement unless such modification is in writing and
signed by Buyer, Seller and Escrow Agent.
3. If a controversy arises between any of the parties hereto, or between
any person not a party hereto and any of the parties hereto, as to whether or
not or to whom the Escrow Agent shall deliver all or any portion of the Deposit,
or in the event that the Escrow Agent shall be uncertain as to its duties or
rights hereunder or shall receive instructions with respect to the Deposit which
in its opinion are in conflict with any of the provisions of this Agreement, the
Escrow Agent shall refrain from taking any action other than to keep safely the
Deposit until it shall have been directed otherwise by a writing signed by the
parties hereto or by final order of a court of competent jurisdiction. The
Escrow Agent shall not be responsible in any manner whatsoever for any failure
or inability of Buyer or Seller to honor or comply with any provisions of this
Agreement.
4. The Escrow Agent may resign at any time upon not less than ten (10)
days' prior written notice to Buyer and Seller, provided that a successor Escrow
Agent shall have been appointed prior to the effective date of such resignation.
If a successor Escrow Agent shall not have been appointed by Buyer and Seller
within seven (7) days after the giving of such notice of resignation, the
resigning Escrow Agent may (i) itself appoint as successor Escrow Agent any bank
or trust company having a principal place of business in the City of Boston,
(ii) petition any court of competent jurisdiction for the appointment of a
successor Escrow Agent or (iii) deposit all funds and documents held by the
Escrow Agent with any court of competent jurisdiction. Every successor Escrow
Agent appointed hereunder shall execute and deliver to Buyer, Seller and the
resigning Escrow Agent an instrument accepting such appointment, and thereupon
(or upon such deposit of funds and documents with a court of competent
jurisdiction) such resignation shall become effective and the successor Escrow
Agent, without further act or execution of any further document, shall become
vested with all the rights, powers and duties of the resigning Escrow Agent.
Upon transfer of all funds and documents held by the Escrow Agent to such
successor Escrow Agent, or the deposit thereof with a court of competent
jurisdiction, the resigning Escrow Agent shall be relieved of all further
responsibilities.
5. This Agreement shall not be altered, amended, changed, waived,
terminated or otherwise modified in any respect or particular unless the same
shall be in the writing and signed by or on behalf of the party to be charged
therewith. This Agreement shall be interpreted and enforced in accordance with
the laws of The Commonwealth of Massachusetts. If any provisions of this
Agreement shall be unenforceable or invalid, the same shall not affect the
remaining provisions of this Agreement and to this end the provisions of this
Agreement are intended to be and shall be severable. This Agreement may be
executed and delivered in any number of counterparts, each of which so executed
and delivered shall be deemed to be an original and all of which shall
constitute one and the same instrument. Notices delivered hereunder shall be
given in the manner and to the addresses as described in Section 10 of the
Purchase and Sale Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
SELLER:
X. X. XXXX, INC.
Taxpayer ID# 00-0000000
By: /s/ Xxxxx X. Xxxxx
-------------------------------------
Name: XXXXX X. XXXXX
Title: Vice President
BUYER:
ALPHA INDUSTRIES, INC.
Taxpayer ID# 00-0000000
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------
Name: XXXXX X. XXXXXX
Title: Corporate Counsel
ESCROW AGENT:
XXXXXXXX XXXX COMPANY
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------
Name: XXXXXXX X. XXXXXX
Title: Senior Associate
