<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
(Mark One)
[ X ] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15 (d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the Quarterly Period Ended November 2, 1996
--------------------------
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15 (d)
OF THE SECURITIES AND EXCHANGE ACT OF 1934
For the transition period from to
------------ ----------
Commission file number 0-25554
-------------------
CONTINENTAL CIRCUITS CORP.
- --------------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
Delaware 86-0267198
-------------------------- -------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
3502 East Roeser Road, Phoenix, Arizona 85040
- --------------------------------------- ------------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (602) 268-3461
- ------------------------
No Change
- --------------------------------------------------------------------------------
(Former name, former address and former fiscal year,
if changed since last report.)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15 (d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes X No
----- -----
The number of shares outstanding of each of the issuer's classes of common
stock was 7,195,325 shares common stock, par value $.01, as of December 1, 1996.
<PAGE> 2
CONTINENTAL CIRCUITS CORP.
PART I - FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
CONTINENTAL CIRCUITS CORP.
CONDENSED STATEMENTS OF INCOME
(Unaudited)
(In thousands, except per share data)
<TABLE>
<CAPTION>
Three months ended
November 2, October 31,
-------- --------
1996 1995
---- ----
<S> <C> <C>
Net sales $ 27,123 $ 28,508
Cost of products sold 22,660 22,775
-------- --------
Gross profit 4,463 5,733
Selling, general and administrative
expenses 2,030 1,913
-------- --------
Income from operations 2,433 3,820
Other (income) expense:
Interest expense 64 110
Other 4 (13)
-------- --------
Income before income taxes 2,365 3,723
Income taxes 932 1,475
-------- --------
Net income $ 1,433 $ 2,248
======== ========
Net income per share $ 0.19 $ 0.30
======== ========
Number of shares used in computing
net income per share 7,424 7,430
======== ========
</TABLE>
See notes to condensed financial statements.
<PAGE> 3
CONTINENTAL CIRCUITS CORP.
CONDENSED BALANCE SHEETS
(In thousands, except share data)
<TABLE>
<CAPTION>
November 2, July 31,
1996 1996
---- ----
Assets (Unaudited)
Current assets:
<S> <C> <C>
Cash and cash equivalents $ 5,584 $ 3,851
Accounts receivable, less allowance of $39 at
November 2, 1996 and $167 at July 31, 1996 15,935 15,114
Inventories 5,981 4,796
Prepaid expenses, income taxes and other 265 499
Deferred income taxes 714 714
------- -------
Total current assets 28,479 24,974
Property, plant, and equipment:
Land 3,171 2,899
Buildings and improvements 19,267 18,353
Machinery & equipment 54,923 53,065
------- -------
77,361 74,317
Accumulated depreciation 41,600 40,200
------- -------
35,761 34,117
Other assets 518 495
------- -------
Total assets $64,758 $59,586
======= =======
Liabilities and shareholders' equity Current liabilities:
Accounts payable $ 8,746 $ 7,193
Accrued vacation 818 720
Other accrued expenses 1,994 1,332
Income taxes 673 -
Current portion of long-term debt 1,000 1,000
------- -------
Total current liabilities 13,231 10,245
Long-term debt, less current portion 4,083 3,333
Deferred income taxes 1,976 1,976
Commitments and contingencies
Total shareholders' equity 45,468 44,032
------- -------
Total liabilities and shareholders' equity $64,758 $59,586
======= =======
</TABLE>
See notes to condensed financial statements.
<PAGE> 4
CONTINENTAL CIRCUITS CORP.
STATEMENTS OF CASH FLOWS
(Unaudited)
(In thousands)
<TABLE>
<CAPTION>
Three months ended
November 2, October 31,
---------------------
1996 1995
---- ----
<S> <C> <C>
Operating activities
Net income $ 1,433 $ 2,248
Adjustments to reconcile net income to net
cash provided by operating activities:
Depreciation 1,400 1,528
Deferred income taxes - 1
Provision for doubtful accounts 6 6
Changes in operating assets and liabilities:
Accounts receivable (827) (2,887)
Inventories (1,185) (443)
Prepaid expenses, income taxes and other 234 (152)
Other assets (23) 13
Accounts payable 1,553 507
Accrued expenses 760 141
Income taxes payable 673 867
------- --------
Net cash provided by operating activities 4,024 1,829
Investing activities
Purchases of property, plant, and equipment (3,044) (3,285)
Financing activities
Principal payments on long-term debt (250) (536)
Borrowings under long-term debt and line of credit 1,000 2,036
Proceeds from issuance of common stock, net
of issuance costs 3 18
------- --------
Net cash provided (used) by financing activities 753 1,518
------- --------
Net increase in cash and cash equivalents 1,733 62
Cash and cash equivalents at beginning of period 3,851 2,038
------- --------
Cash and cash equivalents at end of period $ 5,584 $ 2,100
======= ========
</TABLE>
See notes to condensed financial statements
<PAGE> 5
CONTINENTAL CIRCUITS CORP.
Notes to Condensed Financial Statements
(Unaudited)
November 2, 1996
Note 1. Basis of Presentation
The accompanying unaudited condensed financial statements have been prepared in
accordance with generally accepted accounting principles for interim financial
information and with the instructions to Form 10-Q and Article 10 of Regulation
S-X. Accordingly, they do not include all of the information and footnotes
required by generally accepted accounting principles for complete financial
statements. In the opinion of management, all adjustments (consisting of normal
recurring accruals) considered necessary for a fair presentation have been
included. Operating results for the three month period ended November 2, 1996
are not necessarily indicative of the results that may be expected for the year
ended July 31, 1997.
Note 2. Inventories
The components of inventory consist of the following:
<TABLE>
<CAPTION>
November 2, July 31,
1996 1996
---- ----
(In thousands)
<S> <C> <C>
Raw material $ 636 $ 649
Work in process 3,676 2,487
Finished goods 1,669 1,660
------- -------
$ 5,981 $ 4,796
======= =======
</TABLE>
<PAGE> 6
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
INTRODUCTION
Except for historical information contained herein, the information in
this document contains forward-looking statements which are made pursuant to the
safe harbor provisions of the Private Securities Litigation Reform Act of 1995.
These forward-looking statements involve risks and uncertainties that could
cause the Company's actual performance to differ materially from the
forward-looking material. Factors which could cause or contribute to such
differences include, but are not limited to, the general economic and business
conditions affecting the volatile electronics industry, accuracy of customer
forecasts and communications with the Company, competitive pressures from other
independent and captive circuit board manufacturers, the Company's manufacturing
efficiency, the "Risk Factors" set forth in the Company's preliminary prospectus
dated September 8, 1995, and the Company's regular financial filings with the
Securities and Exchange Commission. The forward-looking statements should be
considered in light of these risks and uncertainties.
LIQUIDITY AND CAPITAL RESOURCES
The Company has historically financed its operations primarily through
cash generated from operations, although such funds have been supplemented by
borrowings under a line of credit and term notes as needed. The Company's
principal uses of cash historically have been to pay operating expenses, make
capital expenditures and service debt.
Cash generated from operations totaled $4.0 million and $1.8 million
for the three months ended November 2, 1996 and October 31, 1995 respectively.
Major cash uses include inventory growth of $1.2 million and accounts receivable
of $800,000 for the three months ended November 2, 1996 and accounts receivable
of $2.9 million for the three months ended October 31, 1995. In both periods,
the Company experienced an increase in overall business activity from the
corresponding prior quarter ended July 31. Net sales growth from the previous
quarter ended July 31 was 10.6% and 11.6% for the three months ended November 2,
1996 and October 31, 1995 respectively. For the quarter ended November 2, 1996,
total inventories grew by 24.7% from the quarter ended July 31, 1996 to support
the sales increase noted above and anticipated requirements for the quarter
ending February 1, 1997. All inventory growth was in manufacturing work in
process. The accounts receivable increase noted above for the three months ended
November 2, 1996 and October 31, 1995 was primarily a result of sales increases
from their respective prior periods.
Capital expenditures totaled $3.0 million and $3.3 million for the
three months ended November 2, 1996 and October 31, 1995 respectively. Capital
expenditures for the three months ended November 2, 1996 were for routine
replacements and purchase of an adjacent building for $1.1 million. Capital
expenditures for the three months ended October 31, 1995 were for routine
replacements and the execution of the fiscal 1995 capital expansion plan. All
purchases were financed through cash generated from operations.
The Company believes that funds generated from operations and borrowing
availability under the existing line of credit agreement will be sufficient
through fiscal 1997. At November 2, 1996, there was no outstanding balance on
the $10 million line of credit.
On December 3, 1996, the Company completed the purchase of an
additional adjacent building for $1.7 million for enhanced manufacturing
capability. The funds for the additional building were provided from operations.
As previously announced, the Company has signed a letter of intent in
connection with the acquisition by the Company of Sigma Circuits, Inc. by an
exchange of stock. The Company is conducting due diligence on the acquisition,
and does not believe that the closing will occur in early calendar year 1997 as
previously anticipated.
<PAGE> 7
RESULTS OF OPERATIONS
Comparison of Three Months ended November 2, 1996 and October 31, 1995
Net sales decreased 4.9 % to $27.1 million for the three months ended
November 2, 1996 from $28.5 million for the three months ended October 31, 1995.
This decrease was the result of a unit volume decrease offset by a continuing
mix shift toward higher layer count, more complex products. Overall, price per
layer dropped from period to period. The Company's principal customers are
manufacturers and contract manufacturers of electronic devices that are subject
to rapid technological change, product obsolescence and economic cycles.
Gross profit as a percent of net sales decreased to 16.4 % for the
three months ended November 2, 1996 from 20.1% for the three months ended
October 31, 1995. This decrease was the result of additional labor costs and
overtime associated with the rapid increase in business activity and the
training activity for the new employees. Overhead was expensed from inventory as
internal capacity exceeded the business level during the three months ended
November 2, 1996.
Selling, general and administrative expenses increased 6.1% to $2.0
million for the three months ended November 2, 1996 from $1.9 million for the
three months ended October 31, 1995. This increase was primarily the result of
administrative salaries and advertising.
Income from operations decreased 36.3% to $2.4 million, or 9.0% of net
sales, for the three months ended November 2, 1996 from $3.8 million, or 13.4 %
of net sales, for the three months ended October 31, 1995 as a result of the
above factors.
Interest expense decreased 41.8 % to $64,000 for the three months ended
November 2, 1996 from $110,000 for the three months ended October 31, 1995.
Interest expense is net of interest earned on cash balances and interest expense
on long-term debt obligations. This decrease was a result of higher interest
earned during the three months ended November 2, 1996 due to a larger average
cash balance than during the three months ended October 31, 1995.
Income taxes decreased 36.8 % to $900,000 for the three months ended
November 2, 1996 from $1.5 million for the three months ended October 31, 1995.
The decrease was a result of the decrease in income before taxes.
<PAGE> 8
PART II - OTHER INFORMATION
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
The Company's annual meeting of stockholders was held on December 13,
1996 in Phoenix, Arizona. The election of three directors for three year terms,
the approval of the Continental Circuits Corp. Employee Stock Purchase Plan
("ESOP") and the approval of the Continental Circuits Corp. 1996 Stock Option
Plan ("Stock Option Plan") were the matters before the security holders. Results
of the shareholder action are set forth in the following table:
<TABLE>
<CAPTION>
With- Non-
To elect: For %* Against %* Held %* Votes %*
--- -- ------- -- ---- -- ----- --
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Angelo A. DeCaro, Jr 5,648,981 78.5 0 0.0 102,283 1.4 0 0.0
Albert A. Irato 5,727,481 79.6 0 0.0 23,783 0.3 0 0.0
John W. Nance 5,699,981 79.2 0 0.0 51,283 0.7 0 0.0
ESOP 4,050,831 56.3 50,459 0.7 26,935 0.4 1,623,039 22.6
Stock Option Plan 2,457,990 34.2 1,611,137 22.4 32,955 0.5 1,649,182 22.9
Total Shares Voted 5,751,264 79.9
Total Shares Unvoted 1,443,461 20.1
Total Shares Outstanding 7,194,725
</TABLE>
* Percentages are stated in terms of total shares outstanding.
ITEM 5. OTHER INFORMATION
On November 4, 1996, the Company announced that it had recently signed
an interim, non-exclusive sub-licensing agreement with Hewlett-Packard Company
that grants the Company the rights to use DYCOstrate(R), an advanced
interconnect substrate production technology. DYCOstrate(R) is a plasma etching
process used to produce extremely small (under .006-inch) diameter holes, or
"microvias" in interconnect products. With it, the Company can produce the
smaller form factors, higher circuit densities, and more effectively manage the
heat requirements of advanced, high-performance computer, telecommunication,
instrumentation and aerospace applications.
The Company has adopted a 4-4-5 calendar with thirteen weeks in each
quarter, with each quarter ending on a Saturday, except for the last quarter of
the fiscal year, which will still end on July 31 of each calendar year. For the
fiscal year ended July 31, 1997, the quarters will end on November 2, 1996,
February 1, 1997, May 3, 1997 and July 31, 1997.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits
See Exhibit Index following the signature page, which is
incorporated herein by this reference.
(b) Reports on Form 8-K
One report on Form 8-K was filed during the quarter ended
November 2, 1996. The report on Form 8-K was filed on October
15, 1996. The report announced the signing of a letter
of intent by the Company pertaining to the acquisition of
Sigma Circuits, Inc. No financial statements were filed
with the report.
<PAGE> 9
FORM 10-Q
a letter of intent by the Company pertaining to the
acquisition of Sigma Circuits, Inc. No financial statements
were filed with the report.
<PAGE> 10
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
CONTINENTAL CIRCUITS CORP.
(Registrant)
Date: December 17, 1996 By: /s/ Frederick G. McNamee, III
-----------------------------
Frederick G. McNamee, III
Chairman of the Board, President
and Chief Executive Officer
Date: December 17, 1996 By: /s/ Joseph G. Andersen
----------------------
Joseph G. Andersen
Vice-President of Finance, Chief Financial
Officer, Secretary and Treasurer
<PAGE> 11
EXHIBIT INDEX
TO
CONTINENTAL CIRCUITS CORP.
FORM 10-Q
QUARTERLY REPORT FOR THE QUARTER ENDED NOVEMBER 2, 1996
(Commission File 0-25554)
Exhibit Description
- ------- -----------
3.1 Certificate of Incorporation of Registrant, as amended (1)
3.2 Bylaws of Registrant, as amended (1)
10.1 Purchase and Sale Agreement between IPEC Planar Phoenix, Inc.
and Registrant dated August 2, 1996.
10.2 Purchase and Sale Agreement between Arizona Refrigeration
Supplies, Inc. and Registrant dated December 3, 1996.
11 Statement re: computation of net income per share
27 Financial Data Schedule
- ----------------------
(1) Incorporated by reference to identically numbered exhibit in Registrant's
registration statement on Form S-1 (SEC File No. 33-88368), as amended,
initially filed on January 9, 1995.
<PAGE> 1
EXHIBIT 10.1
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this "Agreement") is made by and
between IPEC PLANAR PHOENIX, INC., a Delaware corporation formerly known as
Westech Systems, Inc. ("Seller"), and CONTINENTAL CIRCUITS CORP., a Delaware
corporation ("Purchaser").
In consideration of the mutual covenants and representations herein
contained, Seller and Purchaser agree as follows:
1.
PURCHASE AND SALE
1.1 Purchase and Sale. Subject to the terms and conditions of this
Agreement, Seller hereby agrees to sell and convey to Purchaser, and Purchaser
hereby agrees to purchase from Seller, all of the Seller's assignable and
transferable right, title and interest in and to the following described
property (herein collectively called the "Property"):
(a) Land. That certain tract of land (the "Land") located in the
City of Phoenix, Maricopa County, Arizona, being more particularly
described on Exhibit A attached hereto and made a part hereof.
(b) Easements. All easements, if any, benefiting the Land or the
Improvements (as hereinafter defined).
(c) Rights and Appurtenances. All rights and appurtenances
pertaining to the Land, including any right, title and interest of
Seller in and to adjacent streets, alleys or rights-of-way.
(d) Improvements. All improvements and related amenities known
as "Building One" (the "Improvements") in and on the Land, and having
an address of 3502 East Atlanta Avenue, Phoenix, Arizona 85040.
(e) Personal Property. All appliances, fixtures, equipment,
machinery, furniture, carpet, drapes and other personal property, if
any, owned by Seller and located on or about the Land and the
Improvements, and any transferable equipment leases (the "Personal
Property").
2.
PURCHASE PRICE
2.1 Purchase Price. The purchase price (the "Purchase Price") for the
Property shall be ONE MILLION ONE HUNDRED THOUSAND AND NO/100 DOLLARS
($1,100,000) and shall be paid in cash by Purchaser to Seller at the Closing (as
defined herein)
<PAGE> 2
by wire transfer in accordance with the following wire transfer instructions
(the "Wiring Instructions"):
First Interstate Bank of Arizona, N.A.
ABA #122100011
For the Account of Integrated Process Equipment Corp.
Account #082020328
Re: 3502 East Atlanta Avenue
Telephone notification to: John S. Hodgson (602) 517-7216
3.
EARNEST MONEY; EFFECTIVE DATE
3.1 Earnest Money. Purchaser shall deliver to the Title Company (as
defined in Section 6.1) within two (2) business days after the date this
Agreement is delivered to the Title Company by Seller, by check (subject to
collection) or by wire transfer, the amount of FIFTY THOUSAND AND NO/100 DOLLARS
($50,000.00) (which amount, together with all interest accrued thereon, if any,
is herein called the "Earnest Money") to be invested by the Title Company in an
interest-bearing account as Purchaser and Seller shall direct. Seller shall have
the option of terminating this Agreement if the full amount of Earnest Money is
not delivered to the Title Company as prescribed in this Section 3.1. Purchaser
agrees to promptly deliver or cause the Title Company to deliver written
acknowledgement by the Title Company that the executed copy of this Agreement
and the Earnest Money have been received by and are being held by the Title
Company pursuant to the terms of this Agreement. If the sale of the Property is
consummated under this Agreement, the Earnest Money shall be paid to Seller and
applied to the payment of the Purchase Price at Closing (as hereinafter
defined). If Purchaser terminates this Agreement in accordance with any right to
terminate granted to Purchaser by the terms of this Agreement, the Earnest Money
shall be immediately returned to Purchaser, and no party hereto shall have any
further obligations under this Agreement except for such obligations which by
their terms expressly survive the termination of this Agreement (the "Survival
Obligations"). Purchaser agrees to deliver to Seller copies of all Reports (as
defined in Section 4.2 hereof) at the time the notice to terminate this
Agreement is given. The obligations to deliver the Reports shall survive the
termination of this Agreement. In no event shall any Earnest Money be returned
to Purchaser hereunder until all Reports have been delivered to Seller.
3.2 Effective Date. As used herein, the term "Effective Date" means the
first date the Title Company is in receipt of both this Agreement executed by
both Purchaser and Seller (whether in counterparts or not) and the Earnest
Money.
4.
CONDITIONS TO CLOSING
4.1 Seller's Obligations. Seller shall promptly deliver to Purchaser
(at Seller's expense) a Commitment for Owner's Policy of Title Insurance (the
"Title Commitment") with respect to the Property, issued by the Title Company,
and copies of any restrictive covenants,
2
<PAGE> 3
easements, and other items listed as title exceptions therein. Seller's failure
to promptly deliver to Purchaser the Title Commitment shall not result in the
extension of the Closing Date and Purchaser's sole remedy therefor shall be
Purchaser's right to terminate this Agreement by delivering written notice
thereof to Seller on or before 3:00 p.m. Phoenix, Arizona time on Monday, July
22, 1996 (such date and time being the "Approval Deadline"), and receive a
return of the Earnest Money, in which event neither party shall have any
obligation hereunder except for the Survival Obligations.
4.1.1 Purchaser's Satisfaction. Prior to the Approval Deadline,
the following matters shall be conditions precedent to Purchaser's obligations
under this Contract:
(a) Purchaser's being satisfied, in Purchaser's sole discretion,
with the updated survey of the Property (the "Survey").
(b) Purchaser's being satisfied, in Purchaser's sole discretion,
with the Title Commitment, including the information reflected therein.
(c) Purchaser's being satisfied, in Purchaser's sole discretion,
with the results of its environmental investigation (the "Environmental
Report").
(d) Purchaser's being satisfied, in Purchaser's sole discretion,
with the results of its structural investigation (the "Structural
Report").
(e) Purchaser's being satisfied, in Purchaser's sole discretion,
with the review of the Property, pursuant to 36 CFR Part 800,
investigating the potential for "cultural resources" located thereupon
(the "Other Reports").
If Purchaser is not satisfied in its sole discretion as to any of the items
listed above in Sections 4.1.1(a) through 4.1.1(e) above, Purchaser may give
notice thereof to Seller before the Approval Deadline whereupon this Agreement
shall terminate, and upon such termination, Purchaser shall be entitled to the
return of the Earnest Money (subject to Purchaser's delivery of the Reports to
Seller as required by Section hereof), and neither party shall have any further
obligation hereunder except for the Survival Obligations. If Purchaser fails to
give notice to Seller before the Approval Deadline that Purchaser is not
satisfied with any of the items listed in Sections 4.1.1(a) through 4.1.1(e)
above, Purchaser shall be deemed to be satisfied with such matters and the
conditions precedent in this Section 4.1.1 shall be deemed to be satisfied.
4.1.2 Title Commitment and Survey.
(a) In the event (i) the Survey shows any easement,
right-of-way, encroachment, conflict, protrusion or other matter
affecting the Property that is unacceptable to Purchaser, or (ii) any
exceptions appear in the Title Commitment other than the standard
printed exceptions set forth in the standard form of Commitment for
Title Insurance, that are unacceptable to Purchaser, Purchaser shall,
prior to the Approval Deadline, notify Seller in writing of such facts
and the reasons therefor ("Purchaser's Objections"). Following the
Approval Deadline, except for Purchaser's Objections if same are timely
raised, Purchaser shall be deemed to have
3
<PAGE> 4
accepted the form and substance of the Survey, all matters shown
thereon, all exceptions to the Title Commitment and other items shown
thereon. Notwithstanding anything to the contrary contained herein,
Seller shall have no obligations to take any steps or bring any action
or proceeding or otherwise to incur any effort or expense whatsoever to
eliminate or modify any of the Purchaser's Objections. In the event
Seller is unable or unwilling to eliminate or modify Purchaser's
Objections to the reasonable satisfaction of Purchaser, Purchaser may
(as its sole and exclusive remedy) terminate this Agreement by
delivering notice thereof in writing to Seller on or before 9:00 a.m.
Phoenix, Arizona time on the Closing Date, in which event neither party
shall have any obligations hereunder other than the Survival
Obligations. Notwithstanding anything contained in this Section 4.1.2
to the contrary, in the event Purchaser does not receive all items to
be delivered to Purchaser under Section 4.1(a) and (b) in the time
frame set forth therein, Purchaser's rights shall be to terminate this
Agreement as set forth in Section 4.1, and such rights shall not be
modified or extended by the terms of this Section 4.1.2.
(b) The term "Permitted Exceptions" as used herein includes: (i)
any easement, right of way or other matter or record, any encroachment,
conflict, discrepancy, overlapping of improvements, protrusion, lien,
encumbrance, restriction, condition, covenant or other matter with
respect to the Property that an inspection of the Property would reveal
and/or is reflected or addressed on the Survey or the Title Commitment
to which Purchaser fails to timely object pursuant to Section 4.1.2(a)
of this Agreement; and (ii) any Purchaser's Objection that remains
uncured after 9:00 a.m. Phoenix, Arizona time on the Closing Date.
4.1.3 Limitations of Seller's Obligations. Notwithstanding
anything contained herein to the contrary, Seller shall have no obligation to
take any steps, bring any action or proceeding or incur any effort or expense
whatsoever to eliminate, modify or cure any objection Purchaser may have
pursuant to Section 4.1.1, Section 4.1.2 or Section 4.2.
4.2 Inspection. Purchaser may inspect the Property at any reasonable
time during business hours at any time prior to the Approval Deadline. If either
of the Environmental Report, the Structural Report or the Other Reports (but
only those reports, and no others) reveals any fact or condition unacceptable to
Purchaser, Purchaser shall notify Seller in writing prior to the Approval
Deadline of such unacceptable fact or condition and Seller shall have the right
(without any obligation to do so) to correct same by the Closing Date. If Seller
does not correct such unacceptable fact or condition by the Closing Date,
Purchaser may terminate this Agreement and neither party shall have any further
right or obligation hereunder other than the Survival Obligations. If Purchaser
does not give such notification to Seller in writing prior to the Approval
Deadline, the inspection of the Property shall be deemed satisfactory to
Purchaser and Purchaser shall be deemed to have agreed to assume all obligations
from and after the Closing Date with respect to the Contracts in accordance with
the terms of the Bill of Sale Assignment and Assumption Agreement attached
hereto as Exhibit C. All information provided by Seller to Purchaser or obtained
by Purchaser relating to the Property in the course of Purchaser's review,
including, without limitation, any environmental assessment or audit,
(collectively, the "Reports") shall be treated as confidential information by
Purchaser and Purchaser shall instruct all of its employees, agents,
representatives and contractors as to the
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<PAGE> 5
confidentiality of all such information, other than, with respect to the
Environmental Report, information required to be disclosed to governmental
agencies. To the extent Purchaser disturbs the Property, Purchaser shall return
the Property as closely as possible to the condition in which it existed prior
to such disturbance. Purchaser shall obtain the written consent of Seller to the
scope and method of any investigation of Purchaser that materially alters the
condition of the Property or any environmental assessment or audit other than a
Phase I. The consent of Seller shall not be unreasonably withheld. Purchaser
shall be liable for all damage or injury to any person or property resulting
from, relating to or arising out of any inspection of the Property, whether
occasioned by the acts of Purchaser or any of its employees, agents,
representatives or contractors, and Purchaser shall indemnify and hold harmless
Seller and its respective agents, employees, officers, directors, affiliates,
attorneys and asset managers from any liability resulting therefrom. This
indemnification by Purchaser shall survive the Closing or the termination of
this Agreement, as applicable.
4.3 Purchaser's Representations and Warranties. Purchaser represents
and warrants to Seller that (a) Purchaser is a corporation, duly organized and
in good standing under the laws of the State of Delaware, is qualified to do
business in the State of Arizona and has the power to enter into this Agreement
and to execute and deliver this Agreement and to perform all duties and
obligations empowered upon it hereunder, and Purchaser has obtained all
necessary corporate authorizations required in connection with the execution,
delivery and performance contemplated by this Agreement and has obtained the
consent of all entities and parties necessary to bind Purchaser to this
Agreement, and (b) neither the execution nor the delivery of this Agreement, nor
the consummation of the purchase and sale contemplated hereby, nor the
fulfillment of or compliance with the terms and conditions of this Agreement
conflict with or will result in the breach of any of the terms, conditions, or
provisions of any agreement or instrument to which Purchaser, or any partner or
related entity or affiliate of Purchaser, is a party or by which Purchaser, any
partner or related entity or affiliate of Purchaser, or any of Purchaser's
assets is bound. Purchaser's representations and warranties set forth in this
Section 4.3 shall survive the Closing or termination of this Agreement, as
applicable.
4.4 Seller's Representations and Warranties. Seller represents and
warrants to Purchaser that (a) Seller is a corporation, duly organized and in
good standing under the laws of the State of Delaware, is qualified to do
business in the State of Arizona and Seller has the full corporate right, power
and authority, without the joinder of any other person or entity, to enter into,
execute and deliver this Agreement, and to perform all duties and obligations
imposed on Seller under this Agreement, and Seller has obtained all necessary
corporate authorizations required in connection with the execution, delivery and
performance contemplated by this Agreement and has obtained the consent of all
entities and parties necessary to bind Seller to this Agreement, and (b) neither
the execution nor the delivery of this Agreement, nor the consummation of the
purchase and sale contemplated hereby, nor the fulfillment of or compliance with
the terms and conditions of this Agreement conflict with or will result in the
breach of any of the terms, conditions, or provisions of any agreement or
instrument to which Seller is a party or by which Seller or any of Seller's
assets is bound. Seller's representations and warranties set forth in this
Section 4.4 shall survive the Closing or termination of this Agreement, as
applicable.
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<PAGE> 6
5.
NO REPRESENTATIONS OR WARRANTIES BY SELLER;
ACCEPTANCE OF PROPERTY
5.1 Disclaimer. PURCHASER ACKNOWLEDGES AND AGREES THAT SELLER HAS NOT
MADE, DOES NOT MAKE AND SPECIFICALLY NEGATES AND DISCLAIMS ANY REPRESENTATIONS,
WARRANTIES (OTHER THAN THE SPECIAL WARRANTY OF TITLE AS SET OUT IN THE DEED, AS
DEFINED BELOW), PROMISES, COVENANTS, AGREEMENTS OR GUARANTIES OF ANY KIND OR
CHARACTER WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT
OR FUTURE, OF, AS TO, CONCERNING OR WITH RESPECT TO (A) THE VALUE, NATURE,
QUALITY OR CONDITION OF THE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE WATER,
SOIL AND GEOLOGY, (B) THE INCOME TO BE DERIVED FROM THE PROPERTY, (C) THE
SUITABILITY OF THE PROPERTY FOR ANY AND ALL ACTIVITIES AND USES WHICH PURCHASER
OR ANY TENANT MAY CONDUCT THEREON, (D) THE COMPLIANCE OF OR BY THE PROPERTY OR
ITS OPERATION WITH ANY LAWS, RULES, ORDINANCES OR REGULATIONS OF ANY APPLICABLE
GOVERNMENTAL AUTHORITY OR BODY, (E) THE HABITABILITY, MERCHANTABILITY,
MARKETABILITY, PROFITABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE
PROPERTY, (F) THE MANNER OR QUALITY OF THE CONSTRUCTION OR MATERIALS, IF ANY,
INCORPORATED INTO THE PROPERTY, (G) THE MANNER, QUALITY, STATE OF REPAIR OR LACK
OF REPAIR OF THE PROPERTY, OR (H) COMPLIANCE WITH ANY ENVIRONMENTAL PROTECTION,
POLLUTION OR LAND USE LAWS, RULES, REGULATIONS, ORDERS OR REQUIREMENTS,
INCLUDING WITHOUT LIMITATION THE EXISTENCE IN OR ON THE PROPERTY OF HAZARDOUS
MATERIALS (AS DEFINED BELOW) OR THE EXISTENCE, CONDITION OR LEGAL COMPLIANCE OF
ANY DRY WELLS OR (I) ANY OTHER MATTER WITH RESPECT TO THE PROPERTY.
ADDITIONALLY, NO PERSON ACTING ON BEHALF OF SELLER IS AUTHORIZED TO MAKE, AND BY
EXECUTION HEREOF OF PURCHASER ACKNOWLEDGES THAT NO PERSON HAS MADE, ANY
REPRESENTATION, AGREEMENT, STATEMENT, WARRANTY, GUARANTY OR PROMISE REGARDING
THE PROPERTY OR THE TRANSACTION CONTEMPLATED HEREIN; AND NO SUCH REPRESENTATION,
WARRANTY, AGREEMENT, GUARANTY, STATEMENT OR PROMISE IF ANY, MADE BY ANY PERSON
ACTING ON BEHALF OF SELLER SHALL BE VALID OR BINDING UPON SELLER UNLESS
EXPRESSLY SET FORTH HEREIN. PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT
HAVING BEEN GIVEN THE OPPORTUNITY TO INSPECT THE PROPERTY, PURCHASER IS RELYING
SOLELY ON ITS OWN INVESTIGATION OF THE PROPERTY AND NOT ON ANY INFORMATION
PROVIDED OR TO BE PROVIDED BY SELLER AND AGREES TO ACCEPT THE PROPERTY AT THE
CLOSING AND WAIVE ALL OBJECTIONS OR CLAIMS AGAINST SELLER (INCLUDING, BUT NOT
LIMITED TO, ANY RIGHT OR CLAIM OF CONTRIBUTION) ARISING FROM OR RELATED TO THE
PROPERTY OR TO ANY HAZARDOUS MATERIALS ON THE PROPERTY. PURCHASER FURTHER
ACKNOWLEDGES AND AGREES THAT ANY INFORMATION PROVIDED OR TO BE PROVIDED WITH
RESPECT TO THE PROPERTY WAS OBTAINED FROM A VARIETY OF SOURCES AND THAT SELLER
HAS NOT MADE ANY INDEPENDENT INVESTIGATION OR VERIFICATION OF SUCH INFORMATION
6.
CLOSING
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AND MAKES NO REPRESENTATIONS AS TO THE ACCURACY, TRUTHFULNESS OR COMPLETENESS OF
SUCH INFORMATION. SELLER IS NOT LIABLE OR BOUND IN ANY MANNER BY ANY VERBAL OR
WRITTEN STATEMENT, REPRESENTATION OR INFORMATION PERTAINING TO THE PROPERTY, OR
THE OPERATION THEREOF, FURNISHED BY ANY REAL ESTATE BROKER, CONTRACTOR, AGENT,
EMPLOYEE, SERVANT OR OTHER PERSON. PURCHASER FURTHER ACKNOWLEDGES AND AGREES
THAT TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SALE OF THE PROPERTY AS
PROVIDED FOR HEREIN IS MADE ON AN "AS IS" CONDITION AND BASIS WITH ALL FAULTS.
IT IS UNDERSTOOD AND AGREED THAT THE PURCHASE PRICE HAS BEEN ADJUSTED BY PRIOR
NEGOTIATION TO REFLECT THAT ALL OF THE PROPERTY IS SOLD BY SELLER AND PURCHASED
BY PURCHASER SUBJECT TO THE FOREGOING. THE PROVISIONS OF THIS SECTION 5 SHALL
SURVIVE THE CLOSING OR ANY TERMINATION HEREOF.
5.2 Hazardous Materials. "Hazardous Materials" shall mean any substance
which is or contains (i) any "hazardous substance" as now or hereafter defined
in Section 101(14) of the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980, as amend (42 U.S.C. Section 9601 et seq.) ("CERCLA")
or any regulations promulgated under CERCLA; (ii) any "hazardous waste" as now
or hereafter defined in the Resource Conservation and Recovery Act (42 U.S.C.
Section 6901 et seq.) ("RCRA") or regulations promulgated under RCRA; (iii) any
substance regulated by the Toxic Substances Control Act (15 U.S.C. Section 2601
et seq.); (iv) gasoline, diesel fuel, or other petroleum hydrocarbons; (v)
asbestos and asbestos containing materials, in any form, whether friable or
non-friable; (vi) polychlorinated biphenyls; (vii) radon gas; and (viii) any
additional substances or materials which are now or hereafter classified or
considered to be hazardous or toxic under Environmental Requirements (as
hereinafter defined) or the common law, or any other applicable laws relating to
the Property. Hazardous Materials shall include, without limitation, any
substance, the presence of which on the Property, (A) requires reporting,
investigation or remediation under Environmental Requirements; (B) causes or
threatens to cause a nuisance on the Property or adjacent property or poses or
threatens to pose a hazard to the health or safety of persons on the Property or
adjacent property; or (C) which, if it emanated or migrated from the Property,
could constitute a trespass.
5.3 Environmental Requirements. "Environmental Requirements" shall mean
all laws, ordinances, statutes, codes, rules, regulations, agreements,
judgments, orders, and decrees, now or hereafter enacted, promulgated, or
amended, of the United States, the states, the counties, the cities, or any
other political subdivisions in which the Property is located, and any other
political subdivision, agency or instrumentality exercising jurisdiction over
the owner of the Property, the Property, or the use of the Property, relating to
pollution, the protection or regulation of human health, natural resources, or
the environment, or the emission, discharge, release or threatened release of
pollutants, contaminants, chemicals, or industrial, toxic or hazardous
substances or waste or Hazardous Materials into the environment (including,
without limitation, ambient air, surface water, ground water or land or soil).
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<PAGE> 8
6.
CLOSING
6.1 Closing. The Closing (the "Closing") shall be held at the offices
of Quarles & Brady, One East Camelback Road, Suite 400, Phoenix, Arizona 85012,
and shall be conducted by Transnation Title Insurance Company (the "Title
Company"), 4647 North 32nd Street, Suite 135, Phoenix, Arizona 85018, Attention:
Ms. Pamela Hannappel, on Thursday, August 1, 1996 (the "Closing Date"), unless
the parties mutually agree in writing upon another place, time or date.
6.2 Possession. Possession of the Property shall be delivered to
Purchaser at the Closing, subject to the Permitted Exceptions.
6.3 Proration. All income, utilities and all other operating expenses
with respect to the Property for the month in which the Closing occurs, and real
estate and personal property taxes and other assessments with respect to the
Property for the year in which the Closing occurs, shall be prorated to the date
Seller receives the Purchase Price in immediately available funds with Seller
receiving the benefits and burdens of ownership on the Closing Date.
(a) If the Closing shall occur before income from the Property
has actually been paid for the month in which the Closing occurs, the
apportionment of such income shall be upon the basis of such income
actually received by Seller. Subsequent to the Closing, if any such
income is actually received by Purchaser, all such amounts shall first
be applied to post-closing income due to Purchaser which is past due
and the balance shall be immediately paid by Purchaser to Seller.
Purchaser shall make a good faith effort and attempt to collect any
such income not apportioned at the Closing for the benefit of Seller,
however, Purchaser shall not be required to expend any funds or
institute any litigation in its collection efforts.
(b) If the Closing shall occur before the tax rate or the
assessed valuation of the Property is fixed for the then current year,
the apportionment of taxes shall be upon the basis of the tax rate for
the preceding year applied to the latest assessed valuation. Subsequent
to the Closing, when the tax rate and the assessed valuation of the
Property is fixed for the year in which the Closing occurs, the parties
agree to adjust the proration of taxes and, if necessary, to refund or
repay such sums as shall be necessary to effect such adjustment. If the
Property is not assessed as a separate parcel for tax or assessment
purposes, then such taxes and assessments attributable to the Property
shall be determined by Purchaser and Seller. If, as of the Closing, the
Property is not being treated as a separate tax parcel, then within
thirty (30) days after the Closing, Purchaser shall, at its sole cost
and expense, have the Property assessed separately for tax and
assessment purposes.
(c) If the Closing shall occur before the actual amount of
utilities and all other operating expenses with respect to the Property
for the month in which the Closing occurs are determined, the
apportionment of such utilities and other operating expenses shall be
upon the basis of an estimate by Seller of such utilities and other
operating expenses for such month. Subsequent to the Closing, when the
actual amount of such utilities and other operating expenses with
respect to the Property for the month in which the Closing occurs are
determined, the parties agree to adjust the
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<PAGE> 9
proration of such utilities and other operating expenses and, if
necessary, to refund or repay such sums as shall be necessary to effect
such adjustment.
The agreements of Seller and Purchaser set forth in this Section 6.3 shall
survive the Closing.
6.4 Closing Costs. Except as otherwise expressly provided herein,
Seller shall pay, on the Closing Date, the title insurance premium for the
Owner's Policy (as defined in Section 6.5(a)), one-half (1/2) of the cost of the
updated Survey described in Section 4.1.1(a) and one-half (1/2) of any escrow
fees and other customary charges of the Title Company, and Purchaser shall pay,
on the Closing Date, all recording costs, one-half (1/2) of the cost of the
updated Survey described in Section 4.1.1(a) and one-half (1/2) of any escrow
fees and other customary charges of the Title Company. Except as otherwise
provided herein, each party shall pay its own attorneys' fees. Seller and
Purchaser have hired Quarles & Brady to document this transaction. Seller and
Purchaser shall each pay one-half (1/2) of fees of Quarles & Brady except that
as to fee of Roger K. Spencer, Esq. of Quarles & Brady shall be paid one-third
(1/3) by Seller and two-thirds (2/3) by Purchaser.
6.5 Seller's Obligations at the Closing. At the Closing, Seller shall
deliver to Purchaser the following:
(a) Title Policy. Owner's Policy of Title Insurance in the
standard form (the "Owner's Policy"), naming Purchaser as insured, in
the amount of the Purchase Price, subject to the Permitted Exceptions.
(b) Evidence of Authority. Such organizational and authorizing
documents of Seller as shall be reasonably required by the Title
Company to evidence Seller's authority to consummate the transactions
contemplated by this Agreement.
(c) Foreign Person. An affidavit of Seller certifying that
Seller is not a "foreign person," as defined in the federal Foreign
Investment in Real Property Tax Act of 1980, and the 1984 Tax Reform
Act, as amended, in the form attached to this Agreement as Exhibit E.
6.6 Purchaser's Obligations at the Closing. At the Closing, Purchaser
shall deliver to Seller the following:
(a) Purchase Price. The Purchase Price by wire transfer of
immediately available funds in accordance with the Wiring Instructions.
(b) Evidence of Authority. Such organizational and authorizing
documents of Purchaser as shall be reasonably required by Seller and/or
the Title Company authorizing Purchaser's acquisition of the Property
pursuant to this Agreement and the execution of this Agreement and any
documents to be executed by Purchaser at the Closing.
6.7 Documents to be Executed by Seller and Purchaser. At the Closing,
Seller and Purchaser shall also execute and deliver the following:
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<PAGE> 10
(a) Deed. Special Warranty Deed (the "Deed") in the form
attached to this Agreement as Exhibit B.
(b) Bill of Sale, Assignment and Assumption Agreement. Bill of
Sale and Assignment and Assumption Agreement in the form attached to
this Agreement as Exhibit C.
(c) Affidavit. Affidavit of Property Value in the form attached
to this Agreement as Exhibit D.
7.
RISK OF LOSS
7.1 Condemnation. If, prior to the Closing, action is initiated to take
any of the Property by eminent domain proceedings or by deed in lieu thereof,
Purchaser may either at or prior to Closing (a) terminate this Agreement, or (b)
consummate the Closing, in which latter event all of Seller's assignable right,
title and interest in and to the award of the condemning authority shall be
assigned to Purchaser at the Closing and there shall be no reduction in the
Purchase Price.
7.2 Casualty. Except as provided in Sections 4.2 and 5.1 of this
Agreement, Seller assumes all risks and liability for damage to or injury
occurring to the Property by fire, storm, accident, or any other casualty or
cause until the Closing has been consummated. If the Property, or any part
thereof, suffers any damage equal to or in excess of $100,000 prior to the
Closing from fire or other casualty, which Seller, at its sole option, does not
elect to repair, Purchaser may either at or prior to Closing (a) terminate this
Agreement, or (b) consummate the Closing, in which latter event all of Seller's
right, title and interest in and to the proceeds of any insurance covering such
damage (less an amount equal to any expenses and costs incurred by Seller to
repair or restore the Property and any portion of such proceeds paid or to be
paid on account of the loss of rents or other income from the Property for the
period prior to and including the Closing Date, all of which shall be payable to
Seller), to the extent the amount of such insurance does not exceed the Purchase
Price, shall be assigned to Purchaser at the Closing. If the Property, or any
part thereof, suffers any damage less than $100,000 prior to the Closing,
Purchaser agrees that it will consummate the Closing and accept the assignment
of the proceeds of any insurance covering such damage plus an amount equal to
Seller's deductible under its insurance policy and there shall be no reduction
in the Purchase Price.
8.
DEFAULT
8.1 Breach by Seller. In the event that Seller shall fail to consummate
this Agreement for any reason except Purchaser's default or a termination of
this Agreement by Purchaser or Seller pursuant to a right to do so under the
provisions hereof, Purchaser, as its sole and exclusive remedy, may terminate
this Agreement and pursue Seller for actual damages; provided, however, in no
event shall Seller be liable to Purchaser for any punitive, speculative
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or consequential damages. In no event shall Purchaser be entitled to the remedy
of specific performance. The provisions of this Section 8.1 shall not limit or
affect any of Seller's indemnities that may be provided in other Sections of
this Agreement.
8.2 Breach by Purchaser. In the event that Purchaser shall fail to
consummate this Agreement for any reason except Seller's default or a
termination of this Agreement by Purchaser or Seller pursuant to a right to do
so under the provisions hereof, Seller, as its sole and exclusive remedy, may
terminate this Agreement and pursue Purchaser for actual damages; provided,
however, in no event shall Purchaser be liable to Seller for any punitive,
speculative or consequential damages. In no event shall Seller be entitled to
the remedy of specific performance. The provisions of this Section 8.2 shall not
limit or affect any of Purchaser's indemnities as provided in other Sections of
this Agreement.
9.
FUTURE OPERATIONS
9.1 Future Operations.
(a) From the date of this Agreement until the Closing or earlier
termination of this Agreement, Seller will keep and maintain the Property in
substantially its condition as of the date of this Agreement.
(b) From the Approval Deadline until the Closing or earlier termination
of this Agreement, Seller will not lease any space in the Improvements except on
terms and conditions generally accepted in like transactions and otherwise
approved in writing by Purchaser.
10.
MISCELLANEOUS
10.1 Notices. All notices, demands and requests which may be given or
which are required to be given by either party to the other, and any exercise of
a right of termination provided by this Agreement, shall be in writing and shall
be deemed effective either: (a) on the date personally delivered to the address
below, as evidenced by written receipt therefor, whether or not actually
received by the person to whom addressed; (b) on the third (3rd) business day
after being sent, by certified or registered mail, return receipt requested,
addressed to the intended recipient at the address specified below; or (c) on
the first (1st) business day after being deposited into the custody of a
nationally recognized overnight delivery service such as Federal Express
Corporation or United Parcel Service, addressed to such party at the address
specified below. For purposes of this Section 10.1, the addresses of the parties
for all notices are as follows (unless changed by similar notice in writing
given by the particular person whose address is to be changed):
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If to Seller: IPEC Planar Phoenix, Inc.
4717 East Hilton Avenue
Phoenix, Arizona 85034
Attention: John S. Hodgson
Tel: (602) 517-7216
Fax: (602) 517-6016
If to Purchaser: Continental Circuits Corp.
3502 East Roeser Road
Phoenix, Arizona 85040
Attention: Anaya Vardya
Tel: (602) 268-3461
Fax: (602) 268-8956
If to Title
Company: Transnation Title Insurance Company
4647 North 32nd Street, Suite 135
Phoenix, Arizona 85018
Attention: Pamela Hannappel
Tel: (602) 956-5568
Fax: (602) 957-2261
10.2 Real Estate Commissions. Seller shall pay to Lee & Associates
(hereinafter called "Agent" whether one or more) upon the Closing of the
transaction contemplated hereby, and not otherwise, a cash commission in the
amount agreed on in a separate listing agreement between Seller and Agent. Said
commission shall in no event be payable unless and until the transaction
contemplated hereby is closed in accordance with the terms of this Agreement; if
such transaction is not closed for any reason, including, without limitation,
failure of title or default by Seller or Purchaser or termination of this
Agreement pursuant to the terms hereof, then such commission will be deemed not
to have been earned and shall not be due or payable. Except as set forth above
with respect to Agent, neither Seller nor Purchaser has authorized any broker or
finder to act on Purchaser's behalf in connection with the sale and purchase
hereunder and neither Seller nor Purchaser has dealt with any broker or finder
purporting to act on behalf of any other party. Purchaser agrees to indemnify
and hold harmless Seller from and against any and all claims, losses, damages,
costs or expenses of any kind or character arising out of or resulting from any
agreement, arrangement or understanding alleged to have been made by Purchaser
or on Purchaser's behalf with any broker or finder in connection with this
Agreement or the transaction contemplated hereby. Seller agrees to indemnify and
hold harmless Purchaser from and against any and all claims, losses, damages,
costs or expenses of any kind or character arising out of or resulting from any
agreement, arrangement or understanding alleged to have been made by Seller or
on Seller's behalf with any broker or finder in connection with this Agreement
or the transaction contemplated hereby. Notwithstanding anything to the contrary
contained herein, this Section 10.2 shall survive the Closing or any earlier
termination of this Agreement.
10.3 Entire Agreement. This Agreement embodies the entire agreement
between the parties relative to the subject matter hereof, and there are no oral
or written agreements
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between the parties, nor any representations made by either party relative to
the subject matter hereof, which are not expressly set forth herein.
10.4 Amendment. This Agreement may be amended only by a written
instrument executed by the party or parties to be bound thereby.
10.5 Headings. The captions and headings used in this Agreement are for
convenience only and do not in any way limit, amplify, or otherwise modify the
provisions of this Agreement.
10.6 Time of Essence. Time is of the essence of this Agreement;
however, if the final date of any period which is set out in any provision of
this Agreement falls on a Saturday, Sunday or legal holiday under the laws of
the United States or the State of Arizona, then, in such event, the time of such
period shall be extended to the next day which is not a Saturday, Sunday or
legal holiday.
10.7 Governing Law. This Agreement shall be governed by the laws of the
State of Arizona and the laws of the United States pertaining to transactions in
such State.
10.8 Successors and Assigns; Assignment. This Agreement shall bind and
inure to the benefit of Seller and Purchaser and their respective heirs,
executors, administrators, personal and legal representatives, successors and
permitted assigns. Purchaser shall not assign Purchaser's rights under this
Agreement without the prior written consent of Seller, which consent may be
withheld absolutely. Any subsequent assignment may be made only with the prior
written consent of Seller. No assignment of Purchaser's rights hereunder shall
relieve Purchaser of its liabilities under this Agreement. This Agreement is
solely for the benefit of Seller and Purchaser; there are no third party
beneficiaries hereof. Any assignment of this Agreement in violation of the
foregoing provisions shall be null and void.
10.9 Invalid Provision. If any provision of this Agreement is held to
be illegal, invalid or unenforceable under present or future laws, such
provision shall be fully severable; this Agreement shall be construed and
enforced as if such illegal, invalid or unenforceable provision had never
comprised a part of this Agreement; and, the remaining provisions of this
Agreement shall remain in full force and effect and shall not be affected by
such illegal, invalid, or unenforceable provision or by its severance from this
Agreement.
10.10 Attorneys' Fees. In the event it becomes necessary for either
party hereto to file suit to enforce this Agreement or any provision contained
herein, the party prevailing in such suit shall be entitled to recover, in
addition to all other remedies or damages, as provided herein, reasonable
attorneys' fees incurred in such suit.
10.11 Multiple Counterparts. This Agreement may be executed in a number
of identical counterparts which, taken together, shall constitute collectively
one (1) agreement; in making proof of this Agreement, it shall not be necessary
to produce or account for more than one such counterpart with each party's
signature.
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10.12 Expiration. The execution of this Agreement by Purchaser and the
delivery hereof to Seller shall constitute an offer which shall be automatically
withdrawn, revoked and terminated unless Seller accepts the same by executing
this Agreement and delivering one fully executed counterpart hereof to the Title
Company prior to 3:00 p.m. Phoenix, Arizona time on Friday, July 12, 1996.
10.13 Exhibits. The following exhibits are attached to this Agreement
and are incorporated into this Agreement by this reference and made a part
hereof for all purposes:
(a) Exhibit A, the legal description of the Land.
(b) Exhibit B, the form of the Deed.
(c) Exhibit C, the form of the Bill of Sale, Assignment
and Assumption Agreement.
(d) Exhibit D, the form of the Affidavit of Property Value.
(e) Exhibit E, the form of Non-Foreign Affidavit.
(f) Exhibit F, the form of Taxpayer I.D. Certificate.
10.14 No Recordation. Seller and Purchaser hereby acknowledge that
neither this Agreement nor any memorandum or affidavit thereof shall be recorded
of public record in Maricopa County, Arizona or any other county. Should
Purchaser ever record or attempt to record this Agreement, or a memorandum or
affidavit thereof, or any other similar document, then, notwithstanding anything
herein to the contrary, said recordation or attempt at recordation shall
constitute a default by Purchaser hereunder, and, in addition to the other
remedies provided for herein, Seller shall have the express right to terminate
this Agreement by filing a notice of said termination in the county in which the
Land is located, in which case the Earnest Money shall be delivered to Seller.
10.15 [Intentionally Omitted.]
10.16 Jury Waiver. PURCHASER AND SELLER DO HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE THEIR RIGHT TO A TRIAL BY JURY IN RESPECT OF
ANY LITIGATION BASED HEREON, OR ARISING OUT OF, OR UNDER OR IN CONNECTION WITH
THIS AGREEMENT, THE DOCUMENTS DELIVERED BY PURCHASER AT CLOSING OR SELLER AT
CLOSING, OR ANY COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS (WHETHER
VERBAL OR WRITTEN) OR ANY ACTIONS OF EITHER PARTY ARISING OUT OF OR RELATED IN
ANY MANNER WITH THIS AGREEMENT OR THE PROPERTY (INCLUDING WITHOUT LIMITATION,
ANY ACTION TO RESCIND OR CANCEL THIS AGREEMENT AND ANY CLAIMS OR DEFENSES
ASSERTING THAT THIS AGREEMENT WAS FRAUDULENTLY INDUCED OR IS OTHERWISE VOID OR
VOIDABLE). THIS WAIVER IS A MATERIAL INDUCEMENT FOR SELLER TO ENTER INTO AND
ACCEPT THIS
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AGREEMENT AND THE DOCUMENTS DELIVERED BY PURCHASER AT CLOSING AND SHALL SURVIVE
THE CLOSING OR TERMINATION OF THIS AGREEMENT.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the date
first above written.
PURCHASER: CONTINENTAL CIRCUITS CORP.,
a Delaware corporation
Date of execution
by Purchaser:
July 10, 1996 By:/s/ Frederick G. McNamee, III
__________________________________________________
Frederick G. McNamee, III, its Chairman of the
Board, President and Chief Executive Officer
SELLER: IPEC PLANAR PHOENIX, INC.,
a Delaware corporation formerly known
as Westech Systems, Inc.
Date of execution
by Seller:
July 10, 1996 By:/s/ John S. Hodgson
__________________________________________________
John S. Hodgson, its Vice President and Chief
Financial Officer
The undersigned Title Company hereby acknowledges receipt of the Earnest Money
and a copy of this Agreement, and agrees to hold and dispose of the Earnest
Money in accordance with the provisions of this Agreement.
TITLE COMPANY: TRANSNATION TITLE INSURANCE COMPANY,
an Arizona corporation
Date of execution
by Title Company:
July 10, 1996 By:/s/ Pamela Hannapel
__________________________________________________
Assistant Manager and Closing Officer
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EXHIBIT A
TO PURCHASE AND SALE AGREEMENT
LEGAL DESCRIPTION
The Land described the Purchase and Sale Agreement is located in
Maricopa County, Arizona, and is legally described as follows:
Lot 15, EL DORADO INDUSTRIAL PLAZA UNIT
THREE, according to Book 167 of Maps, Page
6, records of Maricopa County, EXCEPT the
East 277.19 feet thereof.
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EXHIBIT B
TO PURCHASE AND SALE AGREEMENT
SPECIAL WARRANTY DEED
When recorded return to:
Roger K. Spencer, Esq.
Quarles & Brady
One East Camelback Road, Suite 400
Phoenix, Arizona 85012-1649
SPECIAL WARRANTY DEED
STATE OF ARIZONA )
) ss.
COUNTY OF MARICOPA )
IPEC PLANAR PHOENIX, INC., a Delaware corporation formerly known as
Westech Systems, Inc., having its address at 4717 East Hilton Avenue, Phoenix,
Arizona 85034 ("Grantor"), for and in consideration of the sum of Ten and No/100
Dollars ($10.00) and other valuable consideration, the receipt and sufficiency
of which consideration are hereby acknowledged, has granted, sold, and conveyed,
and by these presents does grant, sell, and convey, unto Continental Circuits
Corp., a Delaware corporation having its principal place of business at 3502
East Roeser Road, Phoenix, Arizona 85040 ("Grantee"), all of Seller's right,
title and interest in and to all that real property situated in the County of
Maricopa, State of Arizona, and more particularly described on Exhibit A
attached hereto and made a part hereof for all purposes, together with all of
Seller's right, title and interest in all improvements now or hereafter situated
thereon, and the lessor's or landlord's interest in all space leases or
occupancy agreements covering all or any portion of such real property and the
improvements situated thereon (collectively, the "Property"), subject to all
matters of record and subject to all taxes and assessments, reservations in
patents and all easements, zoning laws, regulations and ordinances of municipal
and other governmental authorities, rights-of-way, encumbrances, liens,
covenants, conditions, restrictions, obligations and liabilities as may appear
of record, all leases, all matters which an accurate survey of the Property or
physical inspection of the Property would disclose, and all exceptions,
exclusions and limitations contained in the Title Policy issued to Grantee in
connection with this Deed (the "Permitted Exceptions").
TO HAVE AND TO HOLD the Property, together with all and singular the
rights and appurtenances belonging in any way to the Property, unto the said
Grantee, its successors and assigns forever, and Grantor binds itself and its
successors and assigns, subject to the Permitted Exceptions, to warrant and
forever defend all and singular the Property to Grantee, its
1
<PAGE> 19
successors and assigns against every person lawfully claiming or to claim all or
any part of the Property, by, through, or under Grantor, but not otherwise.
GRANTEE ACKNOWLEDGES AND AGREES THAT GRANTOR HAS NOT MADE, DOES NOT
MAKE AND SPECIFICALLY NEGATES AND DISCLAIMS ANY REPRESENTATIONS, WARRANTIES
(OTHER THAN THE SPECIAL WARRANTY OF TITLE AS SET OUT IN THIS DEED), PROMISES,
COVENANTS, AGREEMENTS OR GUARANTIES OF ANY KIND OR CHARACTER WHATSOEVER, WHETHER
EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT OR FUTURE, OF, AS TO,
CONCERNING OR WITH RESPECT TO (A) THE VALUE, NATURE, QUALITY OR CONDITION OF THE
PROPERTY, INCLUDING, WITHOUT LIMITATION, THE WATER, SOIL AND GEOLOGY, (B) THE
INCOME TO BE DERIVED FROM THE PROPERTY, (C) THE SUITABILITY OF THE PROPERTY FOR
ANY AND ALL ACTIVITIES AND USES WHICH GRANTEE MAY CONDUCT THEREON, (D) THE
COMPLIANCE OF OR BY THE PROPERTY OR ITS OPERATION WITH ANY LAWS, RULES,
ORDINANCES OR REGULATIONS OF ANY APPLICABLE GOVERNMENTAL AUTHORITY OR BODY, (E)
THE HABITABILITY, MERCHANTABILITY, MARKETABILITY, PROFITABILITY OR FITNESS FOR A
PARTICULAR PURPOSE OF THE PROPERTY, (F) THE MANNER OR QUALITY OF THE
CONSTRUCTION OR MATERIALS, IF ANY, INCORPORATED INTO THE PROPERTY, (G) THE
MANNER, QUALITY, STATE OF REPAIR OR LACK OF REPAIR OF THE PROPERTY, (H) ANY
OTHER MATTER WITH RESPECT TO THE PROPERTY, AND SPECIFICALLY, THAT GRANTOR HAS
NOT MADE, DOES NOT MAKE AND SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS REGARDING
COMPLIANCE WITH ANY ENVIRONMENTAL PROTECTION, POLLUTION OR LAND USE LAWS, RULES,
REGULATIONS, ORDERS OR REQUIREMENTS, INCLUDING WITHOUT LIMITATION THE EXISTENCE
IN OR ON THE PROPERTY OF HAZARDOUS MATERIALS OR SUBSTANCES OR THE EXISTENCE,
CONDITION OR LEGAL COMPLIANCE OF ANY DRY WELLS. GRANTEE FURTHER ACKNOWLEDGES AND
AGREES THAT HAVING BEEN GIVEN THE OPPORTUNITY TO INSPECT THE PROPERTY, GRANTEE
IS RELYING SOLELY ON ITS OWN INVESTIGATION OF THE PROPERTY AND NOT ON ANY
INFORMATION PROVIDED OR TO BE PROVIDED BY GRANTOR AND ACCEPTS THE PROPERTY AND
WAIVES ALL OBJECTIONS OR CLAIMS AGAINST GRANTOR (INCLUDING, BUT NOT LIMITED TO,
ANY RIGHT OR CLAIM OF CONTRIBUTION) ARISING FROM OR RELATED TO THE PROPERTY OR
TO ANY HAZARDOUS MATERIALS ON THE PROPERTY. GRANTEE FURTHER ACKNOWLEDGES AND
AGREES THAT ANY INFORMATION PROVIDED OR TO BE PROVIDED WITH RESPECT TO THE
PROPERTY WAS OBTAINED FROM A VARIETY OF SOURCES AND THAT GRANTOR HAS NOT MADE
ANY INDEPENDENT INVESTIGATION OR VERIFICATION OF SUCH INFORMATION AND MAKES NO
REPRESENTATIONS AS TO THE ACCURACY OR COMPLETENESS OF SUCH INFORMATION. GRANTOR
IS NOT LIABLE OR BOUND IN ANY MANNER BY ANY VERBAL OR WRITTEN STATEMENTS,
REPRESENTATIONS OR INFORMATION PERTAINING TO THE PROPERTY, OR THE OPERATION
THEREOF, FURNISHED BY ANY REAL ESTATE BROKER, AGENT, EMPLOYEE, SERVANT OR OTHER
PERSON. GRANTEE FURTHER ACKNOWLEDGES AND AGREES THAT TO THE MAXIMUM EXTENT
PERMITTED BY LAW, THE SALE OF THE PROPERTY AS PROVIDED FOR HEREIN IS MADE ON AN
"AS IS" CONDITION AND BASIS WITH ALL FAULTS. IT IS
2
<PAGE> 20
UNDERSTOOD AND AGREED THAT THE PURCHASE PRICE FOR THE PROPERTY HAS BEEN ADJUSTED
BY PRIOR NEGOTIATION TO REFLECT THAT ALL OF THE PROPERTY IS SOLD BY GRANTOR AND
PURCHASED BY GRANTEE SUBJECT TO THE FOREGOING.
[SIGNATURE PAGE FOLLOWS]
3
<PAGE> 21
This Special Warranty Deed may be executed in counterparts and any
counterpart containing original signatures of all parties shall constitute an
original Special Warranty Deed for all purposes.
IN WITNESS WHEREOF, Grantor and Grantee have executed this Deed on
July, 1996, to be effective as of the ______ day of July, 1996.
GRANTOR: IPEC PLANAR PHOENIX, INC.,
a Delaware corporation formerly known as
Westech Systems, Inc.
By:_________________________________________________
John S. Hodgson, its Vice President and Chief
Financial Officer
GRANTEE: CONTINENTAL CIRCUITS CORP.,
a Delaware corporation
By:_________________________________________________
Frederick G. McNamee, III, its Chairman of the
Board, President and Chief Executive Officer
4
<PAGE> 22
STATE OF ARIZONA )
) ss.
COUNTY OF MARICOPA )
This instrument was acknowledged before me on July , 1996, by JOHN S.
HODGSON, the Vice President and Chief Financial Officer of IPEC PLANAR PHOENIX,
INC., a Delaware corporation formerly known as Westech Systems, Inc., on behalf
of such corporation.
(SEAL) ______________________________________________
Notary Public in and for
the State of Arizona
______________________________________________
Print name of notary
My Commission Expires:________________________
STATE OF ARIZONA )
) ss.
COUNTY OF MARICOPA )
This instrument was acknowledged before me on July , 1996, by FREDERICK
G. MCNAMEE, III, the Chairman of the Board, President and Chief Executive
Officer of CONTINENTAL CIRCUITS CORP., a Delaware corporation, on behalf of such
corporation.
(SEAL) ______________________________________________
Notary Public in and for
the State of Arizona
______________________________________________
Print name of notary
______________________________________________
My Commission Expires:
5
<PAGE> 23
EXHIBIT A
TO SPECIAL WARRANTY DEED
LEGAL DESCRIPTION
The Land described the Purchase and Sale Agreement is located in
Maricopa County, Arizona, and is legally described as follows:
Lot 15, EL DORADO INDUSTRIAL PLAZA UNIT
THREE, according to Book 167 of Maps, Page
6, records of Maricopa County, EXCEPT the
East 277.19 feet thereof.
1
<PAGE> 24
EXHIBIT C
TO PURCHASE AND SALE AGREEMENT
BILL OF SALE
When recorded return to:
Roger K. Spencer, Esq.
Quarles & Brady
One East Camelback Road, Suite 400
Phoenix, Arizona 85012-1649
BILL OF SALE, ASSIGNMENT
AND ASSUMPTION AGREEMENT
STATE OF ARIZONA )
) ss.
COUNTY OF MARICOPA )
IPEC PLANAR PHOENIX, INC., a Delaware corporation formerly known as
Westech Systems, Inc. ("Grantor"), for and in consideration of the sum of Ten
and No/100 Dollars ($10.00) and other good and valuable consideration to it in
hand paid by CONTINENTAL CIRCUITS CORP., a Delaware corporation ("Grantee"), the
receipt and sufficiency of which are hereby acknowledged, has granted, sold,
assigned, transferred, conveyed, and delivered and does by these presents grant,
sell, assign, transfer, convey, and deliver unto Grantee, all of Grantor's
rights, titles, and interests in and to the following described properties
located in, affixed to, and/or arising or used in connection with the improved
property with parking and other amenities (the "Project") situated on the land
in the County of Maricopa, State of Arizona, more particularly described on
Exhibit A attached hereto and made a part hereof for all purposes (the "Land,"
which together with the Project is sometimes hereinafter called the "Property"):
(a) All appliances, fixtures, equipment, transferable equipment
leases, machinery, furniture, carpet, drapes and other personal property, if
any, owned by Grantor, including the name "Building One" (the "Personal
Property"), and located on, attached to, or used in connection with the
operation and maintenance of the Property;
(b) Any leases for space in the Project (the "Leases"), together
with security and other deposits owned or held by Grantor pursuant to the
Leases;
(c) The assignable service, maintenance, or management contracts
relating to the ownership and operation of the Property (the "Service
Contracts"); and
1
<PAGE> 25
(d) Any assignable warranties and guarantees relating to the
Property or any portion thereof (collectively, the "Warranties").
Grantor and Grantee hereby covenant and agree as follows:
(i) Grantee accepts the aforesaid assignment and Grantee
assumes and agrees to be bound by and timely perform, observe,
discharge, and otherwise comply with each and every one of the
agreements, duties, obligations, covenants, and undertakings upon
the lessor's part to be kept and performed under the Leases and any
obligations of Grantor under the Service Contracts.
(ii) Grantee hereby indemnifies and agrees to hold harmless
Grantor from and against any and all liabilities, claims, demands,
obligations, assessments, losses, costs, damages, and expenses of
any nature whatsoever (including, without limited the generality of
the foregoing, reasonable attorneys' fees and court costs) which
Grantor may incur, sustain, or suffer, or which may be asserted or
assessed against Grantor on or after the date hereof, arising out
of, pertaining to or in any way connected with the obligations,
duties, and liabilities under the Leases and the Service Contracts,
or any of them, arising from and after the date hereof.
(iii) The burden of the indemnity made in paragraph (iii)
hereof shall not be assigned. Except as aforesaid, this Agreement
shall bind and inure to the benefit of the parties and their
respective successors, legal representatives and assigns.
(iv) Neither this Agreement nor any term, provision, or
condition hereof may be changed, amended or modified, and no
obligation, duty or liability or any party hereby may be released,
discharged, or waived, except in a writing signed by all parties
hereto.
GRANTEE ACKNOWLEDGES AND AGREES THAT GRANTOR HAS NOT MADE, DOES NOT
MAKE AND SPECIFICALLY NEGATES AND DISCLAIMS ANY REPRESENTATIONS, WARRANTIES
(OTHER THAN AS EXPRESSLY SET FORTH HEREIN), PROMISES, COVENANTS, AGREEMENTS OR
GUARANTIES OF ANY KIND OR CHARACTER WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL
OR WRITTEN, PAST, PRESENT OR FUTURE, OF, AS TO, CONCERNING OR WITH RESPECT TO
(A) THE VALUE, NATURE, QUALITY OR CONDITION OF THE PROPERTY, (B) THE INCOME TO
BE DERIVED FROM THE PROPERTY, (C) THE SUITABILITY OF THE PROPERTY FOR ANY AND
ALL ACTIVITIES AND USES WHICH GRANTEE MAY CONDUCT THEREON OR THEREWITH, (D) THE
COMPLIANCE OF OR BY THE PROPERTY OR ITS OPERATION WITH ANY LAWS, RULES,
ORDINANCES OR REGULATIONS OF ANY APPLICABLE GOVERNMENTAL AUTHORITY OR BODY, (E)
THE HABITABILITY, MERCHANTABILITY, MARKETABILITY, PROFITABILITY OR FITNESS FOR A
PARTICULAR PURPOSE OF THE PROPERTY, (F) THE MANNER OR QUALITY OF THE
CONSTRUCTION OR MATERIALS, IF ANY, INCORPORATED INTO THE PROPERTY, (G) THE
MANNER, QUALITY, STATE OF REPAIR OR LACK OF REPAIR OF THE PROPERTY, (H) ANY
OTHER MATTER WITH RESPECT TO THE
2
<PAGE> 26
PROPERTY, AND SPECIFICALLY, THAT GRANTOR HAS NOT MADE, DOES NOT MAKE AND
SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS REGARDING COMPLIANCE WITH ANY
ENVIRONMENTAL PROTECTION, POLLUTION OR LAND USE LAWS, RULES, REGULATIONS, ORDERS
OR REQUIREMENTS, INCLUDING WITHOUT LIMITATION THE EXISTENCE IN OR ON THE
PROPERTY OF HAZARDOUS MATERIALS OR SUBSTANCES OR THE EXISTENCE, CONDITION OR
LEGAL COMPLIANCE OF ANY DRY WELLS. GRANTEE FURTHER ACKNOWLEDGES AND AGREES THAT
HAVING BEEN GIVEN THE OPPORTUNITY TO INSPECT THE PROPERTY, GRANTEE IS RELYING
SOLELY ON ITS OWN INVESTIGATION OF THE PROPERTY AND NOT ON ANY INFORMATION
PROVIDED OR TO BE PROVIDED BY GRANTOR AND ACCEPTS THE PROPERTY AND WAIVES ALL
OBJECTIONS OR CLAIMS AGAINST GRANTOR (INCLUDING, BUT NOT LIMITED TO, ANY RIGHT
OR CLAIM OF CONTRIBUTION) ARISING FROM OR RELATED TO THE PROPERTY OR TO ANY
HAZARDOUS MATERIALS ON THE PROPERTY. GRANTEE FURTHER ACKNOWLEDGES AND AGREES
THAT ANY INFORMATION PROVIDED OR TO BE PROVIDED WITH RESPECT TO THE PROPERTY WAS
OBTAINED FROM A VARIETY OF SOURCES AND THAT GRANTOR HAS NOT MADE ANY INDEPENDENT
INVESTIGATION OR VERIFICATION OF SUCH INFORMATION AND MAKES NO REPRESENTATIONS
AS TO THE ACCURACY OR COMPLETENESS OF SUCH INFORMATION. GRANTOR IS NOT LIABLE OR
BOUND IN ANY MANNER BY ANY VERBAL OR WRITTEN STATEMENTS, REPRESENTATIONS OR
INFORMATION PERTAINING TO THE PROPERTY, OR THE OPERATION THEREOF, FURNISHED BY
ANY REAL ESTATE BROKER, AGENT, EMPLOYEE, SERVANT OR OTHER PERSON. GRANTEE
FURTHER ACKNOWLEDGES AND AGREES THAT TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE
SALE OF THE PROPERTY AS PROVIDED FOR HEREIN IS MADE ON AN "AS IS" CONDITION AND
BASIS WITH ALL FAULTS. IT IS UNDERSTOOD AND AGREED THAT THE PURCHASE PRICE FOR
THE PROPERTY HAS BEEN ADJUSTED BY PRIOR NEGOTIATION TO REFLECT THAT ALL OF THE
PROPERTY IS SOLD BY GRANTOR AND PURCHASED BY GRANTEE SUBJECT TO THE FOREGOING.
[SIGNATURE PAGE FOLLOWS]
3
<PAGE> 27
IN WITNESS WHEREOF, Grantor and Grantee have executed this Bill of
Sale, Assignment and Assumption Agreement, on July ______, 1996 to be effective
as of the ______ day of July, 1996.
GRANTOR: IPEC PLANAR PHOENIX, INC.,
a Delaware corporation formerly known as Westech Systems, Inc.
By:_________________________________________________________
John S. Hodgson, its Vice President and Chief Financial
Officer
GRANTEE: CONTINENTAL CIRCUITS CORP.,
a Delaware corporation
By:_________________________________________________________
Frederick G. McNamee, III, its Chairman of the Board,
President and Chief Executive Officer
4
<PAGE> 28
STATE OF ARIZONA )
) ss.
COUNTY OF MARICOPA )
This instrument was acknowledged before me on July , 1996, by JOHN S.
HODGSON, the Vice President and Chief Financial Officer of IPEC PLANAR PHOENIX,
INC., a Delaware corporation formerly known as Westech Systems, Inc., on behalf
of such corporation.
(SEAL) __________________________________________
Notary Public in and for
the State of Arizona
__________________________________________
Print name of notary
My Commission Expires:____________________
STATE OF ARIZONA )
) ss.
COUNTY OF MARICOPA )
This instrument was acknowledged before me on July , 1996, by FREDERICK G.
MCNAMEE, III, the Chairman of the Board, President and Chief Executive Officer
of CONTINENTAL CIRCUITS CORP., a Delaware corporation, on behalf of such
corporation.
(SEAL) __________________________________________
Notary Public in and for
the State of Arizona
__________________________________________
Print name of notary
My Commission Expires:____________________
5
<PAGE> 29
EXHIBIT A
TO BILL OF SALE, ASSIGNMENT AND ASSUMPTION AGREEMENT
LEGAL DESCRIPTION
The Land described the Purchase and Sale Agreement is located in Maricopa
County, Arizona, and is legally described as follows:
Lot 15, EL DORADO INDUSTRIAL PLAZA UNIT THREE,
according to Book 167 of Maps, Page 6, records of
Maricopa County, EXCEPT the East 277.19 feet thereof.
1
<PAGE> 30
EXHIBIT D
TO PURCHASE AND SALE AGREEMENT
AFFIDAVIT OF PROPERTY VALUE
[Arizona Department of Revenue Affidavit of Property Value attached]
1
<PAGE> 31
EXHIBIT E
TO PURCHASE AND SALE AGREEMENT
NON-FOREIGN AFFIDAVIT
Section 1445 of the Internal Revenue Code of 1986, as amended (the "Code")
provides that a transferee of a U.S. Real property interest must withhold tax if
the transferor is a foreign person. To inform the transferee that withholding of
tax is not required upon the disposition of a U.S. real property interest by
IPEC PLANAR PHOENIX, INC., a Delaware corporation formerly known as Westech
Systems, Inc. (the "Transferor"), the undersigned hereby certifies the following
on behalf of the Transferor.
1. The Transferor is not a foreign corporation, foreign partnership,
foreign trust or foreign estate (as those terms are defined in the
Code and treasury regulations promulgated pursuant thereto);
2. The Transferor's U.S. employer identification number is 86-0282167;
and
3. The Transferor's office address is:
4717 East Hilton Avenue
Phoenix, Arizona 85034
The Transferor understands that this certification may be disclosed to the
Internal Revenue Service by the transferee and that any false statement
contained herein could be punished by fine, imprisonment, or both.
Under penalty or perjury I declare that I have examined this certification
and to the best of my knowledge and belief it is true, correct and complete, and
I further declare that I have authority to sign this document on behalf of the
Transferor.
1
<PAGE> 32
This Non-Foreign Affidavit may be executed in counterparts and any
counterpart containing original signatures of all parties shall constitute an
original Non-Foreign Affidavit for all purposes.
IPEC PLANAR PHOENIX, INC.,
a Delaware corporation formerly known as Westech Systems, Inc.
By:______________________________________________
John S. Hodgson, its Vice President and
Chief Financial Officer
STATE OF ARIZONA )
) ss.
COUNTY OF MARICOPA )
This instrument was acknowledged before me on July , 1996, by JOHN S.
HODGSON, the Vice President and Chief Financial Officer of IPEC PLANAR PHOENIX,
INC., a Delaware corporation formerly known as Westech Systems, Inc., on behalf
of such corporation.
(SEAL) ___________________________________________
Notary Public in and for
the State of Arizona
___________________________________________
Print name of notary
My Commission Expires:_____________________
2
<PAGE> 33
EXHIBIT F
TO PURCHASE AND SALE AGREEMENT
TAXPAYER I.D. CERTIFICATE
In connection with certain Internal Revenue Service reporting requirements
imposed upon the Seller IPEC PLANAR PHOENIX, INC., a Delaware corporation
formerly known as Westech Systems, Inc. (the "Seller"), the Purchaser
CONTINENTAL CIRCUITS CORP., a Delaware corporation (the "Purchaser") hereby
certifies that listed below is Purchaser's address and taxpayer I.D. number,
true and correct as of the Closing Date.
Address: 3502 East Roeser Road
Phoenix, Arizona 85040
Taxpayer I.D. No.: 86-0267198
Purchaser hereby consents to Seller's release of the above information in
connection with any reporting requirements imposed upon Seller by any
governmental authority.
CONTINENTAL CIRCUITS CORP.
a Delaware corporation
By:________________________________________
Name: Frederick G. McNamee, III
Title: Chairman of the Board, President and
Chief Executive Officer
3
<PAGE> 1
EXHIBIT 10.2
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this "Agreement") is made by and
between ARIZONA REFRIGERATION SUPPLIES, INC., an Arizona corporation ("Seller")
and CONTINENTAL CIRCUITS CORP., a Delaware corporation ("Purchaser").
In consideration of the mutual covenants and representations herein
contained, Seller and Purchaser agree as follows:
1.
PURCHASE AND SALE
1.1 Purchase and Sale. Subject to the terms and conditions of this
Agreement, Seller hereby agrees to sell and convey to Purchaser, and Purchaser
hereby agrees to purchase from Seller, all of Seller's right, title and interest
in and to the following described property (herein collectively called the
"Property"):
(a) Land. That certain tract of land (the "Land") located in the
City of Phoenix, Maricopa County, Arizona, being more particularly
described on Exhibit A attached hereto and made a part hereof.
(b) Easements. All easements, if any, benefiting the Land or the
Improvements (as hereinafter defined).
(c) Rights and Appurtenances. All rights and appurtenances
pertaining to the Land, including any right, title and interest of
Seller in and to adjacent streets, alleys or rights-of-way.
(d) Improvements. All improvements and related amenities (the
"Improvements") in and on the Land, and having an address of 5020 South
36th Street, Phoenix, Arizona 85040.
(e) Tangible Property. All fixtures, furnishings, equipment,
building materials, carpet, drapes and other personal property, if any,
owned by Seller and located on or about the Land and the Improvements,
and any transferable equipment leases, but specifically excluding the
halon fire suppression system (the "Tangible Personal Property").
(f) Contracts. All contracts pertaining to the Property, and not
cancelable on thirty (30) days notice without penalty or premium (the
"Contracts"), including, but not limited to, management contracts,
service contracts, equipment leases and maintenance contracts.
(g) Intangible Property. All intangible property (the
"Intangible Personal Property", and together with the Tangible Personal
Property, the "Personal
<PAGE> 2
Property"), if any, and pertaining to the Land, the Improvements, the
Contracts or the Tangible Personal Property including, without
limitation, transferable utility contracts, plans and specifications,
engineering plans and studies, floor plans and landscape plans.
2.
PURCHASE PRICE
2.1 Purchase Price. The purchase price (the "Purchase Price") for the
Property shall be ONE MILLION SIX HUNDRED AND NINETY-FIVE THOUSAND AND NO/100
DOLLARS ($1,695,000) and shall be paid in cash by Purchaser to Seller at the
Closing (as defined in Section 6.1) by wire transfer in accordance with the
following wire transfer instructions (the "Wiring Instructions"):
BANK OF AMERICA
ABA # 1221 01706
For the Account of Arizona Refrigeration Supplies, Inc.
Account # 412 711 769
Re: 5020 South 36th Street, Phoenix, Arizona
Telephone notification to: Bruce Jannasch 602/243-2792
3.
EARNEST MONEY; EFFECTIVE DATE
3.1 Earnest Money. Purchaser shall deliver to the Title Company (as
defined in Section 6.1) within two (2) business days after the date this
Agreement is delivered to the Title Company by Seller, by check (subject to
collection) or by wire transfer, the amount of FIFTY THOUSAND AND NO/100 DOLLARS
($50,000.00) (which amount, together with all interest accrued thereon, if any,
is herein called the "Earnest Money") to be invested by the Title Company in an
interest-bearing account as Purchaser and Seller shall direct. Seller shall have
the option of terminating this Agreement if the full amount of Earnest Money is
not delivered to the Title Company as prescribed in this Section 3.1. Purchaser
agrees to promptly deliver or cause the Title Company to deliver written
acknowledgement by the Title Company that the executed copy of this Agreement
and the Earnest Money have been received by and are being held by the Title
Company pursuant to the terms of this Agreement. If the sale of the Property is
consummated under this Agreement, the Earnest Money shall be paid to Seller and
applied to the payment of the Purchase Price at the Closing. If Purchaser
terminates this Agreement in accordance with any right to terminate granted to
Purchaser by the terms of this Agreement, the Earnest Money shall be immediately
returned to Purchaser, and no party hereto shall have any further obligations
under this Agreement except for such obligations which by their terms expressly
survive the termination of this Agreement (the "Survival Obligations").
Purchaser agrees to deliver to Seller copies of all Reports (as defined in
Section 4.2) at the time the notice to terminate this Agreement is given. The
obligations to deliver the Reports shall survive the termination of this
Agreement. In no event shall any Earnest Money be returned to Purchaser
hereunder until all Reports have been delivered to Seller.
2
<PAGE> 3
3.2 Effective Date. As used herein, the term "Effective Date" means the
first date the Title Company is in receipt of both this Agreement executed by
both Purchaser and Seller (whether in counterparts or not) and the Earnest
Money.
4.
CONDITIONS TO CLOSING
4.1 Seller's Obligations. Seller shall make reasonable efforts to cause
to be delivered to Purchaser (at Seller's sole expense), within ten (10) days
after the Effective Date, the following:
(a) Title Commitment. Commitment for Owner's Policy of Title
Insurance (the "Title Commitment") with respect to the Property, issued
by the Title Company, and copies of any restrictive covenants,
easements, and other items listed as title exceptions therein.
(b) Survey. An as-built survey of the Property dated within 15
days of the Effective Date (the "Survey"), showing the location of all
of the Improvements and any restrictive covenants, easements and other
title exceptions, prepared by a licensed surveyor.
(c) Contracts. Copies of all Contracts.
4.1.1 Purchaser's Satisfaction. During the thirty- (30-) day
period commencing on the later of (a) the date Seller delivers to Purchaser the
items listed in Section 4.1(a) through 4.1(c), or (b) the Effective Date (the
"Approval Period"), the following matters shall be conditions precedent to
Purchaser's obligations under this Agreement:
(a) Purchaser's being satisfied in Purchaser's sole discretion
that the Property is suitable for Purchaser's intended uses;
(b) Purchaser's being satisfied in Purchaser's sole discretion
with the results of Purchaser's investigations as provided for in
Section 4.2; and
(c) Purchaser's being satisfied, in Purchaser's sole discretion,
with the items listed in Section 4.1(a) through Section 4.1(c),
including the information reflected therein.
If Purchaser in its sole discretion is satisfied as to the suitability of the
Property for Purchaser's intended uses, the results of Purchaser's
investigations as provided in Section 4.2 and the items listed in Section 4.1(a)
through Section 4.1(c), Purchaser shall give notice thereof to Seller on or
before the expiration of the Approval Period. If Purchaser fails to give such
notice, then this Agreement shall terminate, and upon such termination,
Purchaser shall be entitled to the return of the Earnest Money (subject to
Purchaser's delivery of the Reports to Seller as required by Section 3.1), and
neither party shall have any further obligation hereunder except for the
Survival Obligations.
3
<PAGE> 4
4.1.2 Title Commitment and Survey.
(a) In the event (i) the Survey shows any easement,
right-of-way, encroachment, conflict, protrusion or other matter
affecting the Property that is unacceptable to Purchaser, or (ii) any
exceptions appear in the Title Commitment other than the standard
printed exceptions set forth in the standard form of Commitment for
Title Insurance, that are unacceptable to Purchaser, Purchaser may
within ten (10) business days after receipt of the Survey, the Title
Commitment and copies of all documents referred to as exceptions in the
Title Commitment, notify Seller in writing of such facts and the
reasons therefor ("Purchaser's Objections"). Upon the expiration of
said ten (10) business-day period, except for Purchaser's Objections if
same are timely raised, and upon the further condition that Purchaser
has delivered a notice otherwise in accordance with Section 4.1.1
accepting the condition of the Property, Purchaser shall be deemed to
have accepted the form and substance of the Survey, all matters shown
thereon, all exceptions to the Title Commitment and other items shown
thereon. Notwithstanding anything to the contrary contained herein,
Seller shall have no obligations to take any steps or bring any action
or proceeding or otherwise to incur any effort or expense whatsoever to
eliminate or modify any of the Purchaser's Objections. In the event
Seller is unable or unwilling to eliminate or modify Purchaser's
Objections to the reasonable satisfaction of Purchaser, Purchaser may
(as its sole and exclusive remedy) terminate this Agreement by
delivering notice thereof in writing to Seller by the earlier to occur
of (i) the Closing Date (as defined in Section 6.1) or (ii) five (5)
business days after Seller's written notice to Purchaser of Seller's
intent not to cure one or more of such Purchaser's Objections, in which
event neither party shall have any obligations hereunder other than the
Survival Obligations.
(b) The term "Permitted Exceptions" as used herein includes: (i)
any easement, right of way or other matter of record, any encroachment,
conflict, discrepancy, overlapping of improvements, protrusion, lien,
encumbrance, restriction, condition, covenant or other matter with
respect to the Property that an inspection of the Property would reveal
and/or is reflected or addressed on the Survey or the Title Commitment
to which Purchaser fails to timely object pursuant to Section 4.1.2(a)
of this Agreement; and (ii) any Purchaser's Objection that remains
uncured, for whatever reason, at the earlier to occur of (A) the
Closing or (B) five (5) business days after Seller notifies Purchaser
that Seller is unwilling or unable to cure or modify Purchaser's
Objections to the reasonable satisfaction of Purchaser.
4.1.3 Limitations of Seller's Obligations. Notwithstanding
anything contained herein to the contrary, Seller shall have no obligation to
take any steps, bring any action or proceeding or incur any effort or expense
whatsoever to eliminate, modify or cure any objection Purchaser may have
pursuant to Section 4.1.1, Section 4.1.2 or Section 4.2.
4.2 Inspection. At any reasonable time during business hours, Purchaser
may inspect: (a) the Property, (b) all financial records pertaining to operation
of the Property, and (c) copies of all Contracts. All information provided by
Seller to Purchaser or obtained by Purchaser relating to the Property in the
course of Purchaser's review, including, without
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limitation, any environmental assessment or audit, (collectively, the "Reports")
shall be treated as confidential information by Purchaser and Purchaser shall
instruct all of its employees, agents, representatives and contractors as to the
confidentiality of all such information, other than, with respect to the
Environmental Report, information required to be disclosed to governmental
agencies. To the extent Purchaser disturbs the Property, Purchaser shall return
the Property as closely as possible to the condition in which it existed prior
to such disturbance. Purchaser shall obtain the written consent of Seller to the
scope and method of any investigation of Purchaser that materially alters the
condition of the Property or any environmental assessment or audit other than a
Phase I. The consent of Seller shall not be unreasonably withheld. Purchaser
shall be liable for all damage or injury to any person or property resulting
from, relating to or arising out of any inspection of the Property, whether
occasioned by the acts of Purchaser or any of its employees, agents,
representatives or contractors, and Purchaser shall indemnify and hold harmless
Seller and its respective agents, employees, officers, directors, affiliates,
attorneys and asset managers from any liability resulting therefrom. This
indemnification by Purchaser shall survive the Closing or the termination of
this Agreement, as applicable.
4.3 Purchaser's Representations and Warranties. Purchaser represents
and warrants to Seller that (a) Purchaser is a corporation, duly organized and
in good standing under the laws of the State of Delaware, is qualified to do
business in the State of Arizona and has the power to enter into this Agreement
and to execute and deliver this Agreement and to perform all duties and
obligations empowered upon it hereunder, and Purchaser has obtained all
necessary corporate authorizations required in connection with the execution,
delivery and performance contemplated by this Agreement and has obtained the
consent of all entities and parties necessary to bind Purchaser to this
Agreement, and (b) neither the execution nor the delivery of this Agreement, nor
the consummation of the purchase and sale contemplated hereby, nor the
fulfillment of or compliance with the terms and conditions of this Agreement
conflict with or will result in the breach of any of the terms, conditions, or
provisions of any agreement or instrument to which Purchaser, or any partner or
related entity or affiliate of Purchaser, is a party or by which Purchaser, any
partner or related entity or affiliate of Purchaser, or any of Purchaser's
assets is bound. Purchaser's representations and warranties set forth in this
Section 4.3 shall survive the Closing or termination of this Agreement, as
applicable.
4.4 Seller's Representations and Warranties. Seller represents and
warrants to Purchaser that (a) Seller is a corporation, duly organized and in
good standing under the laws of the State of Arizona and Seller has the full
corporate right, power and authority, without the joinder of any other person or
entity, to enter into, execute and deliver this Agreement, and to perform all
duties and obligations imposed on Seller under this Agreement, and Seller has
obtained all necessary corporate authorizations required in connection with the
execution, delivery and performance contemplated by this Agreement and has
obtained the consent of all entities and parties necessary to bind Seller to
this Agreement, and (b) neither the execution nor the delivery of this
Agreement, nor the consummation of the purchase and sale contemplated hereby,
nor the fulfillment of or compliance with the terms and conditions of this
Agreement conflict with or will result in the breach of any of the terms,
conditions, or provisions of any agreement or instrument to which Seller is a
party or by which Seller or any of Seller's assets is bound. Seller's
representations and warranties set forth in this Section 4.4 shall survive the
Closing or termination of this Agreement, as applicable.
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5.
REPRESENTATIONS OR WARRANTIES BY SELLER REGARDING PROPERTY
5.1 Seller's General Representations, Warranties, and Covenants. Seller
warrants, represents, and covenants (with the understanding that Purchaser is
relying on these warranties, representations, and covenants) that:
(a) To the best of Seller's knowledge, and except as reflected
in the Title Commitment, there are no claims, actions, suits, or other
proceedings pending or threatened by any governmental department or
agency or any other corporation, partnership, entity, or person
whomsoever, nor any voluntary actions or proceedings contemplated by
Seller, which in any manner or to any extent may detrimentally affect
Purchaser's right, title, or interest in and to the Property or the
value of the Property or Seller's ability to perform Seller's
obligations under this Agreement.
(b) To the best of Seller's knowledge, there is no pending or
threatened condemnation or similar proceeding affecting any part of the
Property, and Seller has not received any notice of any such proceeding
and has no knowledge that any such proceeding is contemplated.
(c) No work has been performed or is in progress at the Property
and no materials have been furnished to the Property which might give
rise to mechanic's, materialman's, or other liens against any part of
the Property.
(d) Seller is not prohibited from consummating the transactions
contemplated by this Agreement by any law, regulation, agreement,
instrument, restriction, order or judgment.
(e) There are no parties in adverse possession of the Property;
there are no parties in possession of the Property except Seller; and
no party has been granted any license, lease, or other right relating
to the use or possession of the Property.
(f) There are no attachments, executions, assignments for the
benefit of creditors, receiverships, conservatorships, or voluntary or
involuntary proceedings in bankruptcy or pursuant to any other laws for
relief of debtors contemplated or filed by Seller or pending against
Seller or, to the best of Seller's knowledge, affecting or involving
the Property.
(g) There is no default, nor has any event occurred which, with
the passage of time or the giving of notice or both, would constitute a
default in any contract, security agreement, mortgage, deed of trust,
lease, or other instrument which relates to the Property or which
affects the Property in any manner whatsoever.
(h) There are no contracts or other obligations outstanding for
the sale, exchange, or transfer of all or any part of the Property.
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(i) To the best of Seller's knowledge, there are no violations
of laws, rules, regulations, ordinances, codes, covenants, conditions,
restrictions, instructions, or agreements applicable to the Property or
any part thereof. Seller has not received notices from any insurance
companies, governmental agencies, or any other person with respect to
violations concerning the Property or any part thereof. If any notices
of violations are received prior to the date of Closing, Seller shall
immediately submit copies to Purchaser and Purchaser's review and
acceptance shall be a condition precedent to the Closing.
(j) To the best of Seller's knowledge, there are no
"grandfathered" water rights with respect to the Land.
(k) To the best of Seller's knowledge, there are no sites of
historical or archaeological importance on the Property that in any way
would impede, curtail, limit, or restrict the use or development of the
Property.
(l) To the best of Seller's knowledge, no improvement district
is planned that would include the Property, and there are no assessment
liens against the Property except as disclosed in the Title Commitment.
(m) Seller has not at any time prior to the Closing granted to
any person an interest in the Property or any part thereof.
5.2 Seller's Environmental Representations and Warranties and
Indemnity.
(a) Except as set forth in Schedule 5.2 :
(i) Neither Seller nor, to the best of Seller's
knowledge, any other person has ever caused or permitted any
Hazardous Material (as defined in Section 5.2(c)) to be (A)
disposed of on, under, or at the Property or any part thereof,
or from the Property or any part thereof into the atmosphere or
any watercourse, body of water, or wetlands, or (B) placed, held
or located on, under, or at the Property or any part thereof, or
from the Property or any part thereof into the atmosphere or any
watercourse, body of water, or wetlands except in accordance
with Environmental Requirements (as defined in Section 5.2(d));
(ii) Neither the Property nor any part thereof nor any
adjoining real property has ever been used (whether by Seller
or, to the best of Seller's knowledge, by any other person) as
(A) a treatment, or disposal site (whether permanent or
temporary) for any Hazardous Material, or (B) a storage site
(whether permanent or temporary) for any Hazardous Material
except in accordance with Environmental Requirements (as defined
in Section 5.2(d));
(iii) Seller has not conducted and has no knowledge that
others have conducted any activity on the Property which could
have toxic results
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(and Seller has not received any notice of any proceeding or
any inquiry by any governmental agency with respect thereto);
(iv) Seller has received no notice of any violations of
any Environmental Requirements governing the generation,
treatment, storage, disposal, or clean-up of Hazardous
Materials; and
(v) The Property does not contain and never has contained
any underground tanks.
(b) Seller hereby indemnifies Purchaser and agrees to pay,
defend, and hold Purchaser harmless from and against any and all
losses, liabilities, damages, injuries, costs, expenses, and claims of
any and every kind whatsoever, including reasonable attorneys' fees
paid, incurred or suffered by, or asserted against, Purchaser for, with
respect to, or as a direct or indirect result of, the presence on or
under the Property, as of the Closing, of any Hazardous Material, or
the escape, seepage, leakage, spillage, discharge, emission, or release
from the Property into or upon any land, the atmosphere, or any
watercourse, body of water, or wetland of Hazardous Material present on
the Property as of the Closing, including, without limitation, any
losses, liabilities, damages, injuries, costs, expenses, or claims
asserted or arising under any Environmental Requirement.
(c) "Hazardous Materials" as used in this Agreement means any
substance which is or contains (i) any "hazardous substance" as now or
hereafter defined in Section 101(14) of the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amend (42 U.S.C.
Section 9601 et seq.) ("CERCLA") or any regulations promulgated under
CERCLA; (ii) any "hazardous waste" as now or hereafter defined in the
Resource Conservation and Recovery Act (42 U.S.C. Section 6901 et seq.)
("RCRA") or regulations promulgated under RCRA; (iii) any substance
regulated by the Toxic Substances Control Act (15 U.S.C. Section 2601
et seq.); (iv) gasoline, diesel fuel, or other petroleum hydrocarbons;
(v) asbestos and asbestos containing materials, in any form, whether
friable or non-friable; (vi) polychlorinated biphenyls; (vii) radon
gas; and (viii) any additional substances or materials which are now or
hereafter classified or considered to be hazardous or toxic under
Environmental Requirements or the common law, or any other applicable
laws relating to the Property. Hazardous Materials shall include,
without limitation, any substance, the presence of which on the
Property, (A) requires reporting, investigation or remediation under
Environmental Requirements; (B) causes or threatens to cause a nuisance
on the Property or adjacent property or poses or threatens to pose a
hazard to the health or safety of persons on the Property or adjacent
property; or (C) which, if it emanated or migrated from the Property,
could constitute a trespass.
(d) "Environmental Requirements" as used in this Agreement means
all laws, ordinances, statutes, codes, rules, regulations, agreements,
judgments, orders, and decrees, now or hereafter enacted, promulgated,
or amended, of the United States, the states, the counties, the cities,
or any other political subdivisions in which the Property is located,
and any other political subdivision, agency or instrumentality
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exercising jurisdiction over the owner of the Property, the Property,
or the use of the Property, relating to pollution, the protection or
regulation of human health, natural resources, or the environment, or
the emission, discharge, release or threatened release of pollutants,
contaminants, chemicals, or industrial, toxic or hazardous substances
or waste or Hazardous Materials into the environment (including,
without limitation, ambient air, surface water, ground water or land or
soil).
5.3 Seller's representations and warranties set forth in this
Agreement, including without limitation those set forth in Section and Section ,
shall survive the Closing or termination of this Agreement, as applicable, but
shall expire after twenty-four (24) months thereafter.
6.
CLOSING
6.1 Closing. The Closing (the "Closing") shall be held at the offices
of Quarles & Brady, One East Camelback Road, Suite 400, Phoenix, Arizona 85012,
and shall be conducted by Transnation Title Insurance Company (the "Title
Company"), 4647 North 32nd Street, Suite 135, Phoenix, Arizona 85018, Attention:
Ms. Pamela Hannappel on Monday, December 2, 1996 (the "Closing Date"), unless
the parties mutually agree in writing upon another place, time or date.
6.2 Possession. Possession of the Property shall be delivered to
Purchaser at the Closing, subject to the Permitted Exceptions.
6.3 Proration. All income, utilities and all other operating expenses
with respect to the Property for the month in which the Closing occurs, and real
estate and personal property taxes and other assessments with respect to the
Property for the year in which the Closing occurs, shall be prorated to the date
Seller receives the Purchase Price in immediately available funds with Seller
receiving the benefits and burdens of ownership on the Closing Date.
(a) If the Closing shall occur before the tax rate or the
assessed valuation of the Property is fixed for the then current year,
the apportionment of taxes shall be upon the basis of the tax rate for
the preceding year applied to the latest assessed valuation. Subsequent
to the Closing, when the tax rate and the assessed valuation of the
Property is fixed for the year in which the Closing occurs, the parties
agree to adjust the proration of taxes and, if necessary, to refund or
repay such sums as shall be necessary to effect such adjustment. If the
Property is not assessed as a separate parcel for tax or assessment
purposes, then such taxes and assessments attributable to the Property
shall be determined by Purchaser and Seller. If, as of the Closing, the
Property is not being treated as a separate tax parcel, then within
thirty (30) days after the Closing, Purchaser shall, at its sole cost
and expense, have the Property assessed separately for tax and
assessment purposes.
(b) If the Closing shall occur before the actual amount of
utilities and all other operating expenses with respect to the Property
for the month in which the
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Closing occurs are determined, the apportionment of such utilities and
other operating expenses shall be upon the basis of an estimate by
Seller of such utilities and other operating expenses for such month.
Subsequent to the Closing, when the actual amount of such utilities and
other operating expenses with respect to the Property for the month in
which the Closing occurs are determined, the parties agree to adjust
the proration of such utilities and other operating expenses and, if
necessary, to refund or repay such sums as shall be necessary to effect
such adjustment.
The agreements of Seller and Purchaser set forth in this Section 6.3 shall
survive the Closing.
6.4 Closing Costs. Except as otherwise expressly provided herein,
Seller shall pay, on the Closing Date, the title insurance premium for the
Owner's Policy (as defined in Section 6.5(a)), the cost of the Survey, the cost
of recording the Deed and any other documents relating to Seller or the Property
and one-half (1/2) of any escrow fees and other customary charges of the Title
Company, and Purchaser shall pay, on the Closing Date, all other recording costs
and one-half (1/2) of any escrow fees and other customary charges of the Title
Company. Except as otherwise provided herein, each party shall pay its own
attorneys' fees.
6.5 Seller's Obligations at the Closing. At the Closing, Seller shall
deliver to Purchaser the following:
(a) Title Policy. An Owner's Policy of Title Insurance in the
standard form (the "Owner's Policy"), naming Purchaser as insured, in
the amount of the Purchase Price, insuring that Purchaser owns good and
indefeasible fee simple title to the Property, subject only to the
Permitted Exceptions.
(b) Evidence of Authority. Such organizational and authorizing
documents of Seller as shall be required by the Title Company to
evidence Seller's authority to consummate the transactions contemplated
by this Agreement.
(c) Foreign Person. An affidavit of Seller certifying that
Seller is not a "foreign person," as defined in the federal Foreign
Investment in Real Property Tax Act of 1980, and the 1984 Tax Reform
Act, as amended, in the form attached to this Agreement as Exhibit E.
(d) Affidavit Regarding Parties in Possession. An affidavit of
Seller certifying that no parties other than Seller have a right to
occupy or use the Property or any part thereof, in the form attached to
this Agreement as Exhibit G.
(e) Estoppel Regarding Mechanics' Liens. An estoppel of Seller
certifying there is no unpaid work or materials furnished to the
Property or any part thereof within the 120-day period preceding the
Closing, in the form attached to this Agreement as Exhibit H.
6.6 Purchaser's Obligations at the Closing. At the Closing, Purchaser
shall deliver to Seller the following:
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(a) Purchase Price. The Purchase Price by wire transfer of
immediately available funds in accordance with the Wiring Instructions.
(b) Evidence of Authority. Such organizational and authorizing
documents of Purchaser as shall be reasonably required by Seller and/or
the Title Company authorizing Purchaser's acquisition of the Property
pursuant to this Agreement and the execution of this Agreement and any
documents to be executed by Purchaser at the Closing.
(c) Taxpayer Identification Certificate. A Taxpayer
Identification Certificate, in the form attached to this Agreement as
Exhibit F.
6.7 Documents to be Executed by Seller and Purchaser. At the Closing,
Seller and Purchaser shall also execute and deliver the following:
(a) Deed. Special Warranty Deed (the "Deed") in the form
attached to this Agreement as Exhibit B.
(b) Bill of Sale, Assignment and Assumption Agreement. Bill of
Sale and Assignment and Assumption Agreement in the form attached to
this Agreement as Exhibit C.
(c) Affidavit. Affidavit of Property Value in the form attached
to this Agreement as Exhibit D.
7.
RISK OF LOSS
7.1 Condemnation. If, prior to the Closing, action is initiated to take
any material part of the Property by eminent domain proceedings or by deed in
lieu thereof, Purchaser may either at or prior to Closing (a) terminate this
Agreement, or (b) consummate the Closing, in which latter event all of Seller's
assignable right, title and interest in and to the award of the condemning
authority shall be assigned to Purchaser at the Closing and there shall be no
reduction in the Purchase Price. As used in this Section , "material" means an
amount greater than $25,000. If taking in an amount less than $25,000 occurs,
then Purchaser's sole remedy shall be to consummate the Closing and accept the
assignment of the proceeds of any condemnation proceeds, and there shall be a
reduction in the Purchase Price equal to the shortfall, if any, between such
condemnation proceeds and the amount of the taking.
7.2 Casualty. Except as provided in Section 4.2 and Section 5.1, Seller
assumes all risks and liability for damage to or injury occurring to the
Property by fire, storm, accident, or any other casualty or cause until the
Closing has been consummated. If the Property, or any part thereof, suffers any
damage equal to or in excess of $100,000 prior to the Closing from fire or other
casualty, which Seller, at its sole option, does not elect to repair, Purchaser
may either at or prior to Closing (a) terminate this Agreement, or (b)
consummate the Closing, in which latter event all of Seller's right, title and
interest in and to the proceeds of any insurance
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covering such damage (less an amount equal to any expenses and costs incurred by
Seller to repair or restore the Property and any portion of such proceeds paid
or to be paid on account of the loss of rents or other income from the Property
for the period prior to and including the Closing Date, all of which shall be
payable to Seller), to the extent the amount of such insurance does not exceed
the Purchase Price, shall be assigned to Purchaser at the Closing. If the
Property, or any part thereof, suffers any damage less than $100,000 prior to
the Closing, Purchaser agrees that it will consummate the Closing and accept the
assignment of the proceeds of any insurance covering such damage plus an amount
equal to Seller's deductible under its insurance policy and there shall be no
reduction in the Purchase Price.
8.
DEFAULT
8.1 Breach by Seller. In the event that Seller shall fail to consummate
this Agreement for any reason except Purchaser's default or a termination of
this Agreement by Purchaser or Seller pursuant to a right to do so under the
provisions hereof, Purchaser may, without limiting or excluding any other remedy
at law or in equity, terminate this Agreement or seek specific performance of
this Agreement. The provisions of this Section 8.1 shall not limit or affect any
of Seller's indemnities that may be provided in other Sections of this
Agreement.
8.2 Breach by Purchaser. In the event that Purchaser shall fail to
consummate this Agreement for any reason except Seller's default or a
termination of this Agreement by Purchaser or Seller pursuant to a right to do
so under the provisions hereof, Seller as its sole and exclusive remedy and
relief under this Agreement may terminate this Agreement and thereupon shall be
entitled to retain the Earnest Money as liquidated damages (and not as a
penalty). Seller and Purchaser have made this provision for liquidated damages
because it would be difficult to calculate, on the date hereof, the amount of
actual damages for such breach, and Seller and Purchaser agree that these sums
represent reasonable compensation to Seller for such breach. The provisions of
this Section 8.2 shall not limit or affect any of Purchaser's indemnities as
provided in other Sections of this Agreement.
9.
FUTURE OPERATIONS
9.1 Future Operations. From the date of this Agreement until the
Closing or earlier termination of this Agreement:
(a) Seller will keep and maintain the Property in substantially
its condition as of the date of this Agreement;
(b) Seller will perform all Seller's obligations under the
Contracts and will not, without the prior written consent of Purchaser,
modify, enter into, or renew any Contract which cannot be canceled upon
thirty (30) days prior written notice; and
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(c) Seller shall not lease any space in on the Property or in
the Improvements.
10.
MISCELLANEOUS
10.1 Notices. All notices, demands and requests which may be given or
which are required to be given by either party to the other, and any exercise of
a right of termination provided by this Agreement, shall be in writing and shall
be deemed effective either: (a) on the date personally delivered to the address
below, as evidenced by written receipt therefor, whether or not actually
received by the person to whom addressed; (b) on the third (3rd) business day
after being sent, by certified or registered mail, return receipt requested,
addressed to the intended recipient at the address specified below; or (c) on
the first (1st) business day after being deposited into the custody of a
nationally recognized overnight delivery service such as Federal Express
Corporation or United Parcel Service, addressed to such party at the address
specified below. For purposes of this Section 10.1, the addresses of the parties
for all notices are as follows (unless changed by similar notice in writing
given by the particular person whose address is to be changed):
If to Seller: Arizona Refrigeration Supplies, Inc.
2632 E. Chambers
P.O. Box 21127
Phoenix, Arizona 85036
Attention: Stephen Martin, President
Tel: (602) 243-2792
Fax: (602) 243-2893
with a copy to: Carson Messinger Elliott Laughlin & Ragan, P.L.L.C.
1900 Norwest Tower
3300 North Central Avenue
Phoenix, Arizona 85012
Attention: James A. Burns, Esq.
Tel: (602) 264-2261
Fax: (602) 277-4507
If to Purchaser: Continental Circuits Corp.
3502 East Roeser Road
Phoenix, Arizona 85040
Attention: Joseph Andersen, Chief Financial Officer
Tel: (602) 268-3461
Fax: (602) 232-9157
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with a copy to: Quarles & Brady
One East Camelback Road, Suite 400
Phoenix, Arizona 85012
Attention: Roger K. Spencer, Esq.
Tel: (602) 230-5500
Fax: (602) 230-5598
If to Title
Company: Transnation Title Insurance Company
4647 North 32nd Street, Suite 135
Phoenix, Arizona 85018
Attention: Pamela Hannappel
Tel: (602) 956-5568
Fax: (602) 957-2261
10.2 Real Estate Commissions. Neither Seller nor Purchaser has
authorized any broker or finder to act on Purchaser's behalf in connection with
the sale and purchase hereunder and neither Seller nor Purchaser has dealt with
any broker or finder purporting to act on behalf of any other party. Purchaser
agrees to indemnify and hold harmless Seller from and against any and all
claims, losses, damages, costs or expenses of any kind or character arising out
of or resulting from any agreement, arrangement or understanding alleged to have
been made by Purchaser or on Purchaser's behalf with any broker or finder in
connection with this Agreement or the transaction contemplated hereby. Seller
agrees to indemnify and hold harmless Purchaser from and against any and all
claims, losses, damages, costs or expenses of any kind or character arising out
of or resulting from any agreement, arrangement or understanding alleged to have
been made by Seller or on Seller's behalf with any broker or finder in
connection with this Agreement or the transaction contemplated hereby.
Notwithstanding anything to the contrary contained herein, this Section 10.2
shall survive the Closing or any earlier termination of this Agreement.
10.3 Entire Agreement. This Agreement embodies the entire agreement
between the parties relative to the subject matter hereof, and there are no oral
or written agreements between the parties, nor any representations made by
either party relative to the subject matter hereof, which are not expressly set
forth herein.
10.4 Amendment. This Agreement may be amended only by a written
instrument executed by the party or parties to be bound thereby.
10.5 Headings; Sections . The captions and headings used in this
Agreement are for convenience only and do not in any way limit, amplify, or
otherwise modify the provisions of this Agreement. References to a "Section"
when used without further attribution refer to the particular section of this
Agreement.
10.6 Time of Essence. Time is of the essence of this Agreement;
however, if the final date of any period which is set out in any provision of
this Agreement falls on a Saturday, Sunday or legal holiday under the laws of
the United States or the State of Arizona, then, in
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such event, the time of such period shall be extended to the next day which is
not a Saturday, Sunday or legal holiday.
10.7 Governing Law. This Agreement shall be governed by the laws of the
State of Arizona and the laws of the United States pertaining to transactions in
such State.
10.8 Successors and Assigns; No Third Party Beneficiaries. This
Agreement shall bind and inure to the benefit of Seller and Purchaser and their
respective heirs, executors, administrators, personal and legal representatives,
successors and permitted assigns. This Agreement is solely for the benefit of
Seller and Purchaser; there are no third party beneficiaries hereof.
10.9 Invalid Provision. If any provision of this Agreement is held to
be illegal, invalid or unenforceable under present or future laws, such
provision shall be fully severable; this Agreement shall be construed and
enforced as if such illegal, invalid or unenforceable provision had never
comprised a part of this Agreement; and, the remaining provisions of this
Agreement shall remain in full force and effect and shall not be affected by
such illegal, invalid, or unenforceable provision or by its severance from this
Agreement.
10.10 Attorneys' Fees. In the event it becomes necessary for either
party hereto to file suit to enforce this Agreement or any provision contained
herein, the party prevailing in such suit shall be entitled to recover, in
addition to all other remedies or damages, as provided herein, reasonable
attorneys' fees incurred in such suit.
10.11 Multiple Counterparts. This Agreement may be executed in a number
of identical counterparts which, taken together, shall constitute collectively
one (1) agreement; in making proof of this Agreement, it shall not be necessary
to produce or account for more than one such counterpart with each party's
signature. A telecopied signature of a party hereof shall be valid and binding
upon such party for all purposes herein.
10.12 Expiration. The execution of this Agreement by Purchaser and the
delivery hereof to Seller shall constitute an offer which shall be automatically
withdrawn, revoked and terminated unless Seller accepts the same by executing
this Agreement and delivering one fully executed counterpart hereof to the Title
Company prior to 3:00 p.m. Phoenix, Arizona time on Thursday, October 24, 1996.
10.13 Exhibits & Schedules. The following exhibits and schedules are
attached to this Agreement and are incorporated into this Agreement by this
reference and made a part hereof for all purposes:
15
<PAGE> 16
(a) Exhibit A, the legal description of the Land.
(b) Exhibit B, the form of the Deed.
(c) Exhibit C, the form of the Bill of Sale, Assignment
and Assumption Agreement.
(d) Exhibit D, the form of the Affidavit of Property Value.
(e) Exhibit E, the form of Non-Foreign Affidavit.
(f) Exhibit F, the form of Taxpayer Identification
Certificate.
(g) Exhibit G, the form of Affidavit Regarding Parties in
Possession.
(h) Exhibit H, the form of Estoppel Regarding Mechanics'
Liens.
(i) Schedule 5.2, Disclosures Regarding Hazardous Materials.
10.14 No Recordation. Seller and Purchaser hereby acknowledge that
neither this Agreement nor any memorandum or affidavit thereof shall be recorded
of public record in Maricopa County, Arizona or any other county. Should
Purchaser ever record or attempt to record this Agreement, or a memorandum or
affidavit thereof, or any other similar document, then, notwithstanding anything
herein to the contrary, said recordation or attempt at recordation shall
constitute a default by Purchaser hereunder, and, in addition to the other
remedies provided for herein, Seller shall have the express right to terminate
this Agreement by filing a notice of said termination in the county in which the
Land is located, in which case the Earnest Money shall be delivered to Seller.
10.15 No Assumption of Seller's Liabilities. Purchaser is acquiring
only the Property from Seller and is not the successor of Seller. Purchaser does
not assume or agree to pay, and shall not indemnify Seller or any other person
against, any liability, obligation, or expense of Seller or relating in any way
to the Property except to the extent, if any, expressly and specifically
provided for in this Agreement.
10.16 Jury Waiver. PURCHASER AND SELLER DO HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE THEIR RIGHT TO A TRIAL BY JURY IN RESPECT OF
ANY LITIGATION BASED HEREON, OR ARISING OUT OF, OR UNDER OR IN CONNECTION WITH
THIS AGREEMENT, THE DOCUMENTS DELIVERED BY PURCHASER AT CLOSING OR SELLER AT
CLOSING, OR ANY COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS (WHETHER
VERBAL OR WRITTEN) OR ANY ACTIONS OF EITHER PARTY ARISING OUT OF OR RELATED IN
ANY MANNER WITH THIS AGREEMENT OR THE PROPERTY (INCLUDING WITHOUT LIMITATION,
ANY ACTION TO RESCIND OR CANCEL THIS AGREEMENT AND ANY CLAIMS OR DEFENSES
ASSERTING THAT THIS AGREEMENT WAS FRAUDULENTLY INDUCED OR IS OTHERWISE VOID OR
VOIDABLE). THIS WAIVER IS A MATERIAL INDUCEMENT FOR EACH OF SELLER AND SELLER TO
ENTER INTO
16
<PAGE> 17
AND ACCEPT THIS AGREEMENT AND SHALL SURVIVE THE CLOSING OR TERMINATION OF THIS
AGREEMENT.
[SIGNATURE PAGE FOLLOWS]
17
<PAGE> 18
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the date
first above written.
PURCHASER: CONTINENTAL CIRCUITS CORP.,
a Delaware corporation
Date of execution
by Purchaser:
December 3, 1996 By:/s/ Joseph Andersen
___________________________________________
Joseph Andersen, its Chief Financial Officer
SELLER: ARIZONA REFRIGERATION SUPPLIES, INC.,
an Arizona corporation
Date of execution
by Seller:
December 3, 1996 By:/s/ Stephen Martin
___________________________________________
Stephen Martin, its President
The undersigned Title Company hereby acknowledges receipt of the Earnest Money
and a copy of this Agreement, and agrees to hold and dispose of the Earnest
Money in accordance with the provisions of this Agreement.
TITLE COMPANY: TRANSNATION TITLE INSURANCE COMPANY,
an Arizona corporation
Date of execution
by Title Company:
December 3, 1996 By:/s/ Pamela Hannapel
___________________________________________
Assistant Manager and Closing Officer
SIGNATURE PAGE TO PURCHASE AND SALE AGREEMENT
<PAGE> 19
EXHIBIT A
TO PURCHASE AND SALE AGREEMENT
LEGAL DESCRIPTION
The Land described the Purchase and Sale Agreement is located in
Maricopa County, Arizona, and is legally described as follows:
PARCEL NO. 1:
The North 274.00 feet of Lot 17, EL DORADO INDUSTRIAL PLAZA UNIT THREE, as
measured along the West boundary line, according to Book 167 of Maps, page 6,
records of Maricopa County, Arizona.
PARCEL NO. 2:
That part of the South 226.65 feet, as measured at the West boundary property
line of Lot 17, EL DORADO INDUSTRIAL PLAZA, UNIT THREE, according to Book 167 of
Maps, page 6, records of Maricopa County, Arizona, more particularly described
as follows:
BEGINNING at the Northwest corner of the above described parcel of
land;
thence North 88(degree) 51' 01" East, along the North line of said
parcel, 197.56 feet;
thence South 01(degree) 08' 59" East, 20.00 feet;
thence South 88(degree) 51' 01" West, 197.93 feet, to a point on the
West line of the above-described parcel;
thence North 00(degree) 05' 27" West, along said West line, 20.00 feet,
to the POINT OF BEGINNING.
1
<PAGE> 20
EXHIBIT B
TO PURCHASE AND SALE AGREEMENT
SPECIAL WARRANTY DEED
When recorded return to:
Roger K. Spencer, Esq.
Quarles & Brady
One East Camelback Road, Suite 400
Phoenix, Arizona 85012-1649
SPECIAL WARRANTY DEED
STATE OF ARIZONA )
) ss.
COUNTY OF MARICOPA )
ARIZONA REFRIGERATION SUPPLIES, INC., an Arizona corporation, having
its address at 2632 East Chambers, P.O. Box 21127, Phoenix, Arizona 85036
("Grantor"), for and in consideration of the sum of Ten and No/100 Dollars
($10.00) and other valuable consideration, the receipt and sufficiency of which
consideration are hereby acknowledged, has granted, sold, and conveyed, and by
these presents does grant, sell, and convey, unto CONTINENTAL CIRCUITS CORP., a
Delaware corporation having its principal place of business at 3502 East Roeser
Road, Phoenix, Arizona 85040 ("Grantee"), all of Seller's right, title and
interest in and to all that real property situated in the County of Maricopa,
State of Arizona, and more particularly described on Exhibit A attached hereto
and made a part hereof for all purposes, together with all of Seller's right,
title and interest in all improvements now or hereafter situated thereon, and
the lessor's or landlord's interest in all space leases or occupancy agreements
covering all or any portion of such real property and the improvements situated
thereon (collectively, the "Property"), subject to all matters of record and
subject to all taxes and assessments, reservations in patents and all easements,
zoning laws, regulations and ordinances of municipal and other governmental
authorities, rights-of-way, encumbrances, liens, covenants, conditions,
restrictions, obligations and liabilities as may appear of record, all leases,
all matters which an accurate survey of the Property or physical inspection of
the Property would disclose, and all exceptions, exclusions and limitations
contained in the Title Policy issued to Grantee in connection with this Deed
(the "Permitted Exceptions").
TO HAVE AND TO HOLD the Property, together with all and singular the
rights and appurtenances belonging in any way to the Property, unto the said
Grantee, its successors and assigns forever, and Grantor binds itself and its
successors and assigns, subject to the Permitted Exceptions, to warrant and
forever defend all and singular the Property to Grantee, its
<PAGE> 21
successors and assigns against every person lawfully claiming or to claim all or
any part of the Property, by, through, or under Grantor, but not otherwise.
This Special Warranty Deed may be executed in counterparts and any
counterpart containing original signatures of all parties shall constitute an
original Special Warranty Deed for all purposes.
IN WITNESS WHEREOF, Grantor and Grantee have executed this Special
Warranty Deed on , 1996, to be effective as of the ______ day of
, 1996.
GRANTOR: ARIZONA REFRIGERATION SUPPLIES, INC.,
an Arizona corporation
By:_______________________________________________
Stephen Martin, its President
GRANTEE: CONTINENTAL CIRCUITS CORP.,
a Delaware corporation
By:_______________________________________________
Joseph Andersen, its Chief Financial Officer
2
<PAGE> 22
STATE OF ARIZONA )
) ss.
COUNTY OF MARICOPA )
This instrument was acknowledged before me on ________________________,
1996, by Stephen Martin, the President of ARIZONA REFRIGERATION SUPPLIES, INC.,
an Arizona corporation, on behalf of such corporation.
(SEAL) _________________________________________________
Notary Public in and for
the State of Arizona
_________________________________________________
Print name of notary
My Commission Expires:___________________________
STATE OF ARIZONA )
) ss.
COUNTY OF MARICOPA )
This instrument was acknowledged before me on , 1996, by Joseph
Andersen, the Chief Financial Officer of CONTINENTAL CIRCUITS CORP., a Delaware
corporation, on behalf of such corporation.
(SEAL) _________________________________________________
Notary Public in and for
the State of Arizona
_________________________________________________
Print name of notary
My Commission Expires:___________________________
3
<PAGE> 23
EXHIBIT A
TO SPECIAL WARRANTY DEED
LEGAL DESCRIPTION
The Land described the Purchase and Sale Agreement is located in
Maricopa County, Arizona, and is legally described as follows:
PARCEL NO. 1:
The North 274.00 feet of Lot 17, EL DORADO INDUSTRIAL PLAZA UNIT THREE, as
measured along the West boundary line, according to Book 167 of Maps, page 6,
records of Maricopa County, Arizona.
PARCEL NO. 2:
That part of the South 226.65 feet, as measured at the West boundary property
line of Lot 17, EL DORADO INDUSTRIAL PLAZA, UNIT THREE, according to Book 167 of
Maps, page 6, records of Maricopa County, Arizona, more particularly described
as follows:
BEGINNING at the Northwest corner of the above described parcel of
land;
thence North 88(degree) 51' 01" East, along the North line of said
parcel, 197.56 feet;
thence South 01(degree) 08' 59" East, 20.00 feet;
thence South 88(degree) 51' 01" West, 197.93 feet, to a point on the
West line of the above-described parcel;
thence North 00(degree) 05' 27" West, along said West line, 20.00 feet,
to the POINT OF BEGINNING.
<PAGE> 24
EXHIBIT C
TO PURCHASE AND SALE AGREEMENT
BILL OF SALE
When recorded return to:
Roger K. Spencer, Esq.
Quarles & Brady
One East Camelback Road, Suite 400
Phoenix, Arizona 85012-1649
BILL OF SALE, ASSIGNMENT
AND ASSUMPTION AGREEMENT
STATE OF ARIZONA )
) ss.
COUNTY OF MARICOPA )
ARIZONA REFRIGERATION SUPPLIES, INC., an Arizona corporation
("Grantor"), for and in consideration of the sum of Ten and No/100 Dollars
($10.00) and other good and valuable consideration to it in hand paid by
CONTINENTAL CIRCUITS CORP., a Delaware corporation ("Grantee"), the receipt and
sufficiency of which are hereby acknowledged, has granted, sold, assigned,
transferred, conveyed, and delivered and does by these presents grant, sell,
assign, transfer, convey, and deliver unto Grantee, all of Grantor's rights,
titles, and interests in and to the following described properties located in,
affixed to, and/or arising or used in connection with the improved property with
parking and other amenities (the "Improvements") situated on the land in the
County of Maricopa, State of Arizona, more particularly described on Exhibit A
attached hereto and made a part hereof for all purposes (the "Land," which
together with the Improvements is sometimes hereinafter called the "Property"):
(a) Grantor's right, title and interest in and to all fixtures,
furnishings, equipment, building materials, transferable equipment leases,
carpet, drapes and other personal property and located on, attached to, or used
in connection with the operation and maintenance of the Property, and any
intangible property pertaining to or used in connection with the Property but
specifically excluding the halon fire suppression system (the "Personal
Property");
(b) The assignable service, maintenance, or management contracts
relating to the ownership and operation of the Property (the "Contracts"); and
(c) Any assignable warranties and guarantees relating to the
Property or any portion thereof (collectively, the "Warranties").
<PAGE> 25
Grantor and Grantee hereby covenant and agree as follows:
(i) Grantee accepts the aforesaid assignment and Grantee
assumes and agrees to be bound by and timely perform, observe,
discharge, and otherwise comply with and any obligations of Grantor
under the Contracts.
(ii) Grantee hereby indemnifies and agrees to hold harmless
Grantor from and against any and all liabilities, claims, demands,
obligations, assessments, losses, costs, damages, and expenses of
any nature whatsoever (including, without limited the generality of
the foregoing, reasonable attorneys' fees and court costs) which
Grantor may incur, sustain, or suffer, or which may be asserted or
assessed against Grantor on or after the date hereof, arising out
of, pertaining to or in any way connected with the obligations,
duties, and liabilities under the Leases and the Contracts, or any
of them, arising from and after the date hereof.
(iii) The burden of the indemnity made in paragraph (iii)
hereof shall not be assigned. Except as aforesaid, this Agreement
shall bind and inure to the benefit of the parties and their
respective successors, legal representatives and assigns.
(iv) Other than as set forth in that certain Purchase and Sale
Agreement having an Effective Date (as defined therein) of October
_____, 1996, by and between Grantor, as Seller and Grantee, as
Buyer, the aforesaid assignment is made as-is, where is, and without
warranty or representation of any kind.
(v) Neither this Agreement nor any term, provision, or
condition hereof may be changed, amended or modified, and no
obligation, duty or liability or any party hereby may be released,
discharged, or waived, except in a writing signed by all parties
hereto.
[SIGNATURE PAGE FOLLOWS]
2
<PAGE> 26
IN WITNESS WHEREOF, Grantor and Grantee have executed this Bill of Sale,
Assignment and Assumption Agreement, on , 1996, to be effective as of
the ______ day of , 1996.
GRANTOR: ARIZONA REFRIGERATION SUPPLIES, INC.,
an Arizona corporation
By:________________________________________________
Stephen Martin, its President
GRANTEE: CONTINENTAL CIRCUITS CORP.,
a Delaware corporation
By:________________________________________________
Joseph Andersen, its Chief Financial Officer
3
<PAGE> 27
STATE OF ARIZONA )
) ss.
COUNTY OF MARICOPA )
This instrument was acknowledged before me on , 1996, by
Stephen Martin, the President of ARIZONA REFRIGERATION SUPPLIES, INC., an
Arizona corporation, on behalf of such corporation.
(SEAL) ___________________________________________
Notary Public in and for
the State of Arizona
___________________________________________
Print name of notary
My Commission Expires:_____________________
STATE OF ARIZONA )
) ss.
COUNTY OF MARICOPA )
This instrument was acknowledged before me on , 1996, by
Joseph Andersen, the Chief Financial Officer of CONTINENTAL CIRCUITS CORP., a
Delaware corporation, on behalf of such corporation.
(SEAL) ___________________________________________
Notary Public in and for
the State of Arizona
___________________________________________
Print name of notary
My Commission Expires:_____________________
4
<PAGE> 28
EXHIBIT A
TO BILL OF SALE, ASSIGNMENT AND ASSUMPTION AGREEMENT
LEGAL DESCRIPTION
The Land described the Purchase and Sale Agreement is located in Maricopa
County, Arizona, and is legally described as follows:
PARCEL NO. 1:
The North 274.00 feet of Lot 17, EL DORADO INDUSTRIAL PLAZA UNIT THREE, as
measured along the West boundary line, according to Book 167 of Maps, page 6,
records of Maricopa County, Arizona.
PARCEL NO. 2:
That part of the South 226.65 feet, as measured at the West boundary property
line of Lot 17, EL DORADO INDUSTRIAL PLAZA, UNIT THREE, according to Book 167 of
Maps, page 6, records of Maricopa County, Arizona, more particularly described
as follows:
BEGINNING at the Northwest corner of the above described parcel of
land;
thence North 88(degree) 51' 01" East, along the North line of said
parcel, 197.56 feet;
thence South 01(degree) 08' 59" East, 20.00 feet;
thence South 88(degree) 51' 01" West, 197.93 feet, to a point on the
West line of the above-described parcel;
thence North 00(degree) 05' 27" West, along said West line, 20.00 feet,
to the POINT OF BEGINNING.
<PAGE> 29
EXHIBIT D
TO PURCHASE AND SALE AGREEMENT
AFFIDAVIT OF PROPERTY VALUE
[Arizona Department of Revenue Affidavit of Property Value attached]
<PAGE> 30
EXHIBIT E
TO PURCHASE AND SALE AGREEMENT
NON-FOREIGN AFFIDAVIT
Section 1445 of the Internal Revenue Code of 1986, as amended (the "Code")
provides that a transferee of a U.S. real property interest must withhold tax if
the transferor is a foreign person. To inform the transferee that withholding of
tax is not required upon the disposition of a U.S. real property interest by
ARIZONA REFRIGERATION SUPPLIES, INC., an Arizona corporation (the "Transferor"),
the undersigned hereby certifies the following on behalf of the Transferor.
1. The Transferor is not a foreign corporation, foreign partnership,
foreign trust or foreign estate (as those terms are defined in the
Code and treasury regulations promulgated pursuant thereto);
2. The Transferor's U.S. employer identification number is 86-0067585;
and
3. The Transferor's office address is:
2632 East Chambers
Phoenix, Arizona 85040
The Transferor understands that this certification may be disclosed to the
Internal Revenue Service by the transferee and that any false statement
contained herein could be punished by fine, imprisonment, or both.
Under penalty or perjury I declare that I have examined this certification
and to the best of my knowledge and belief it is true, correct and complete, and
I further declare that I have authority to sign this document on behalf of the
Transferor.
<PAGE> 31
This Non-Foreign Affidavit may be executed in counterparts and any
counterpart containing original signatures of all parties shall constitute an
original Non-Foreign Affidavit for all purposes.
ARIZONA REFRIGERATION SUPPLIES, INC.,
an Arizona corporation
By:_____________________________________________
Stephen Martin, its President
STATE OF ARIZONA )
) ss.
COUNTY OF MARICOPA )
This instrument was acknowledged before me on , 1996, by
Stephen Martin, the President of ARIZONA REFRIGERATION SUPPLIES, INC., an
Arizona corporation, on behalf of such corporation.
(SEAL) ________________________________________
Notary Public in and for
the State of Arizona
________________________________________
Print name of notary
My Commission Expires:__________________
2
<PAGE> 32
EXHIBIT F
TO PURCHASE AND SALE AGREEMENT
TAXPAYER IDENTIFICATION CERTIFICATE
In connection with certain Internal Revenue Service reporting requirements
imposed upon the Seller ARIZONA REFRIGERATION SUPPLIES, INC., an Arizona
corporation (the "Seller"), the Purchaser CONTINENTAL CIRCUITS CORP., a Delaware
corporation (the "Purchaser") hereby certifies that listed below is Purchaser's
address and taxpayer identification number, true and correct as of the Closing
Date.
Address: 3502 East Roeser Road
Phoenix, Arizona 85040
Taxpayer Identification No.: 86-0267198
Purchaser hereby consents to Seller's release of the above information in
connection with any reporting requirements imposed upon Seller by any
governmental authority.
CONTINENTAL CIRCUITS CORP.
a Delaware corporation
By:_____________________________________________
Joseph Andersen, its Chief Financial Officer
<PAGE> 33
EXHIBIT G
TO PURCHASE AND SALE AGREEMENT
AFFIDAVIT REGARDING PARTIES IN POSSESSION
Escrow No.
State of Arizona )
) ss.
County of Maricopa )
The undersigned, being the _____________ of ARIZONA REFRIGERATION SUPPLIES,
INC., an Arizona corporation, being first duly sworn upon oath, deposes and
says,
THAT this Affidavit has to do with certain real property situated in Maricopa
County, Arizona, described on Attachment"A" attached hereto (the "Property").
THAT to Affiant's best knowledge there are no tenants in possession or other
parties having rights of tenancy under any leases, recorded or otherwise of the
subject property.
Further Affiant sayeth not.
IN WITNESS WHEREOF, the above Affiant has executed this Affidavit in the
capacity set forth herein, on this the ______ of ____________, 1996.
ARIZONA REFRIGERATION SUPPLIES, INC.,
an Arizona corporation
By:___________________________________________________
Name:_________________________________________________
Its:__________________________________________________
<PAGE> 34
STATE OF ARIZONA )
) ss.
COUNTY OF MARICOPA )
This instrument was acknowledged before me on ___________________,
1996, by _____________________________, the _______________________________ of
ARIZONA REFRIGERATION SUPPLIES, INC., an Arizona corporation, on behalf of such
corporation.
(SEAL) ___________________________________________
Notary Public in and for
the State of Arizona
___________________________________________
Print name of notary
My Commission Expires:_____________________
2
<PAGE> 35
EXHIBIT A TO AFFIDAVIT
Legal Description of Property
PARCEL NO. 1:
The North 274.00 feet of Lot 17, EL DORADO INDUSTRIAL PLAZA UNIT THREE, as
measured along the West boundary line, according to Book 167 of Maps, page 6,
records of Maricopa County, Arizona.
PARCEL NO. 2:
That part of the South 226.65 feet, as measured at the West boundary property
line of Lot 17, EL DORADO INDUSTRIAL PLAZA, UNIT THREE, according to Book 167 of
Maps, page 6, records of Maricopa County, Arizona, more particularly described
as follows:
BEGINNING at the Northwest corner of the above described parcel of
land;
thence North 88(degree) 51' 01" East, along the North line of said
parcel, 197.56 feet;
thence South 01(degree) 08' 59" East, 20.00 feet;
thence South 88(degree) 51' 01" West, 197.93 feet, to a point on the
West line of the above-described parcel;
thence North 00(degree) 05' 27" West, along said West line, 20.00 feet,
to the POINT OF BEGINNING.
<PAGE> 36
EXHIBIT H
TO PURCHASE AND SALE AGREEMENT
ESTOPPEL REGARDING MECHANICS' LIENS
[Estoppel Regarding Mechanics' Liens attached]
<PAGE> 37
SCHEDULE 5.2
TO PURCHASE AND SALE AGREEMENT
DISCLOSURES REGARDING HAZARDOUS MATERIALS
1. Two underground storage tanks that were located on the Land have
been removed.
2. Visible surface oil stains of unknown origin.
3. Matters disclosed by Buyer's Phase I environmental audit.
<PAGE> 1
EXHIBIT 11
CONTINENTAL CIRCUITS CORPORATION
STATEMENT RE: COMPUTATION OF NET INCOME PER SHARE
(Unaudited)
(In thousands, except per share data)
<TABLE>
<CAPTION>
Three months ended
November 2, October 31,
--------------------
1996 1995
---- ----
<S> <C> <C>
Weighted average shares outstanding (1) 7,424 7,430
Net Income $1,433 $2,248
Net income per share $ 0.19 $ 0.30
</TABLE>
- --------------------------
(1)Common stock equivalents, which were dilutive, were included in the
computation of weighted average number of shares outstanding.
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
REGISTRANT'S FORM 10-Q FOR THE QUARTERLY PERIOD ENDED NOVEMBER 2, 1996 AND IS
QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FORM 10-Q.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> JUL-31-1997
<PERIOD-END> NOV-02-1996
<CASH> 5,584
<SECURITIES> 0
<RECEIVABLES> 15,974
<ALLOWANCES> 39
<INVENTORY> 5,981
<CURRENT-ASSETS> 28,479
<PP&E> 77,361
<DEPRECIATION> 41,600
<TOTAL-ASSETS> 64,758
<CURRENT-LIABILITIES> 13,231
<BONDS> 4,083
0
0
<COMMON> 72
<OTHER-SE> 45,396
<TOTAL-LIABILITY-AND-EQUITY> 64,758
<SALES> 27,123
<TOTAL-REVENUES> 27,123
<CGS> 22,660
<TOTAL-COSTS> 22,660
<OTHER-EXPENSES> 2,030
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 64
<INCOME-PRETAX> 2,365
<INCOME-TAX> 932
<INCOME-CONTINUING> 1,433
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 1,433
<EPS-PRIMARY> .19
<EPS-DILUTED> .19
</TABLE>
