Exhibit 10.23
PURCHASE AGREEMENT
This Purchase Agreement is made as of the 4th day of February, 2005,
by and between FSI International, Inc., a Minnesota corporation ("Seller"), and
Finisar Corporation, a Delaware corporation ("Purchaser").
Purchaser desires to purchase certain property owned by Seller, and
Seller desires to sell such property to Purchaser, pursuant to the terms and
conditions set forth in this Agreement.
Accordingly, Seller and Purchaser agree as follows:
1. Definitions. The following terms shall have the meanings set forth
below:
Agreement. This Agreement, including the following exhibits attached
hereto and hereby made a part hereof:
Exhibit A: Legal Description of Original Parcel
Exhibit B: Pro Forma
Exhibit C: Personal Property
Exhibit D: Drawing Showing Approximate Location of Excluded
Parcel and Driveway
Exhibit E: FSI Sublease
Exhibit F: Termination Agreement
Exhibit G: Estoppel Certificate
Exhibit H: Survey Requirements
Exhibit I: Net Lease
Schedule 1: Licenses
Schedule 2: Warranties
Schedule 3: Form of Deed
Schedule 4: Excluded Personal Property
Schedule 5: Form of ▇▇▇▇ of Sale
Association. ▇▇▇▇▇ Central Business Park Property Owners Association.
Closing. Concurrently, the transfer of title to the Property to
Purchaser, the payment to Seller of the Purchase Price, and the performance by
each party of the other obligations on its part then to be performed, all in
accordance with Section 4.
Closing Date. The date on which the Closing shall occur as provided
in Section 4.1, subject to Section 5.3 and any other provision of this Agreement
that provides for postponement or extension of the Closing Date.
Commissions. All leasing commissions with respect to any leases or
other occupancy agreements with respect to any of the Property.
Commitment. The Commitment for Title Insurance for the Real Property
issued by the Title Company, covering the Land and Improvements, setting forth
the current status of the title to the Real Property.
Contingency Period. The period between the mutual execution and
delivery of this Agreement and the Closing Date.
Driveway. The driveway located on the Excluded Parcel and
approximately shown in Exhibit ▇.
▇▇▇▇▇▇▇ Money. The ▇▇▇▇▇▇▇ money deposit, together with any interest
earned thereon, made by Purchaser and held by Title Company as described in
Section 3.2.
EDC. The ▇▇▇▇▇ Economic Development Corporation.
Excluded Parcel. The parcel of land approximately shown in Exhibit D.
Excluded Personal Property. The items of personal property described
on Schedule 4.
Executory Period. The period between the mutual execution and
delivery of this Agreement and the Closing.
FSI Sublease. Sublease to be entered into by Purchaser, as
sublandlord, and Seller, as subtenant, concurrently with the execution of this
Agreement, attached as Exhibit E.
Improvements. All buildings, structures, fixtures and improvements
located on the Land, including, without limitation, the building containing
approximately one hundred sixty thousand one hundred twenty (160,120) square
feet, together with the parking areas and other improvements presently located
upon the Land.
Land. The real property situated at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇▇
▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ of Collin, State of Texas, said original parcel of real
property being legally described on Exhibit A, EXCLUDING the Excluded Parcel.
Net Lease. Lease Agreement, dated as of the Closing Date, to be
entered into between Proposed Assignee, as landlord, and Purchaser, as tenant,
with respect to the Property, in the form attached hereto as Exhibit I, and all
amendments thereto.
Option Consideration. The sum of One Hundred Dollars ($100).
Permitted Exceptions. The easements, restrictions, reservations and
other matters affecting title to the Real Property identified as "Exceptions
From Coverage" on Exhibit B, together with such other matters as may be
determined to be Permitted Exceptions pursuant to Section 5.3.
Personal Property. The equipment and other items of personal property
described on Exhibit C.
Property. The Real Property and the Personal Property, collectively.
Proposed Assignee. A third party triple-net landlord to be selected
by Purchaser.
Purchase Price. The purchase price for the Property described in
Section 3.
Purchaser's Broker. ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇
of The Staubach Company.
Real Property. The Land and the Improvements, collectively.
Seller's Broker. ▇▇▇ ▇▇▇▇▇▇▇▇ of The Staubach Company.
Survey. The updated as-built ALTA/ACSM survey for the Property and
the Excluded Parcel and certified by a professional land surveyor licensed in
Texas, which shall comply with the requirements set forth on Exhibit H attached
hereto and include a certification in the form attached hereto as Exhibit H.
Title Company. Republic Title of Texas, Inc. (as agent for First
American Title Insurance Company).
Title Policy. An ALTA Extended Owner's Policy of Title Insurance
(Form 1970B) for the Property issued in favor of Purchaser in the form attached
hereto as Exhibit B and in the full amount of the Purchase Price.
2. Purchase and Sale. Seller hereby agrees to sell, and Purchaser
hereby agrees to purchase, upon and subject to the terms and conditions
hereinafter set forth, the Property.
3. Purchase Price.
3.1 Amount. Purchaser shall pay to Seller as and for the Purchase
Price for the Property the sum of Fourteen Million Nine Hundred Thirty-Five
Thousand No/100 Dollars ($14,935,000.00).
3.2 Manner of Payment. The Purchase Price shall be payable as
follows:
3.2.1 Fifty Thousand Dollars ($50,000) as ▇▇▇▇▇▇▇ Money, which shall
be paid by Purchaser to Title Company on or before the date that is five
(5) business days after the mutual execution and delivery of this
Agreement, such ▇▇▇▇▇▇▇ Money to be held and disbursed pursuant to the
terms of this Agreement. If the ▇▇▇▇▇▇▇ Money is not so delivered to the
Title Company within the aforementioned period, this Agreement shall be
void and without further force or effect.
3.2.2 The balance of the Purchase Price by cashier's check or wire
transfer of immediately available funds on the Closing Date.
4. Closing.
4.1 Closing Date. Subject to the contingencies set out in Sections
6.1 and 6.2 and the other provisions of this Agreement, the Closing shall occur
on February 4, 2005. Purchaser shall have the option to extend the Closing Date
for a period of ten (10) business days. The Closing shall be held at 10:00 a.m.
on the Closing Date, at the offices of Title Company or at such other place,
date and time as Seller and Purchaser may agree. Purchaser shall have the right
to accelerate the Closing Date, upon written notice to Seller, to a date that is
no earlier than five (5) business days after the receipt of such notice.
4.2 Seller's Closing Documents. At Closing, Seller shall execute,
acknowledge (where appropriate), and deliver to Purchaser the following, each
dated as of the Closing Date:
4.2.1 A special warranty deed conveying to Purchaser the Real Property
in the form attached here to as Schedule 3, duly executed and acknowledged,
and subject only to Permitted Exceptions.
4.2.2 A ▇▇▇▇ of sale, in the form attached hereto as Schedule 5,
conveying to Purchaser the Personal Property free and clear of any liens,
claims and encumbrances.
4.2.3 Such affidavit(s) or certificate(s) of Seller, in form
reasonably acceptable to Purchaser and the Title Company, regarding due
authorization, execution and delivery, evidence of corporate authority,
liens, judgments, residence, tax liens, bankruptcies, parties in
possession, survey and mechanics' or materialmen's liens and other matters
affecting title to the Real Property.
4.2.4 A transferor's certification stating from Seller, in form and
substance acceptable to Purchaser and the Title Company, that Seller is not
a "foreign person," "foreign partnership," "foreign trust," "foreign
estate" or "disregarded entity" as those terms are defined in Section 1445
of the Internal Revenue Code.
4.2.5 All documents and instruments that may be required of Seller
under applicable law, including any revenue or tax certificates or
statements, or any affidavits, certifications or statements relating to the
environmental condition of any of the Real Property, the presence (or
absence) of ▇▇▇▇▇ about the Real Property, the presence (or absence) of
storage tanks about the Real Property, or the extent of compliance of any
of the Property with applicable law.
4.2.6 A settlement statement consistent with this Agreement executed
by Seller.
4.2.7 The FSI Sublease executed by Seller.
4.2.8 Lease termination agreements, in a form reasonably acceptable to
the Purchaser and in recordable form, if required, pursuant to which any
existing leases at the Property shall be terminated.
4.2.9 Evidence, reasonably acceptable to the Title Company, that the
transactions contemplated by this Agreement have been duly authorized by
Seller.
4.2.10 A waiver and a release executed by EDC, in the form attached
hereto as Exhibit F, with respect to EDC's right of first refusal, if any,
pursuant to that certain Option and Right of First Refusal Agreement by and
between Seller and EDC dated as of May 17, 1996.
4.2.11 An estoppel executed by the Association, in the form attached
hereto as Exhibit G, with respect to that certain ▇▇▇▇▇ Central Business
Park Declaration of Protective Covenants dated as of August 10, 1994.
4.2.12 A ▇▇▇▇ of sale, in form reasonably acceptable to Purchaser,
conveying to Purchaser (regardless of whether Purchaser's rights under this
Agreement have been assigned to Proposed Assignee) the Excluded Personal
Property free and clear of any liens, claims and encumbrances.
4.2.13 A set of access cards (which cards shall be properly tagged for
identification), all Plans and Specs in the possession and control of
Seller.
4.2.14 An assignment, in form reasonably acceptable to Purchaser,
conveying to Purchaser the Licenses, the Warranties, the Plans and Specs
and the Records, free and clear of any liens, claims and encumbrances.
4.2.15 A termination of agreement, in the form attached hereto as
Exhibit F, executed by the City of ▇▇▇▇▇, County of Collin, and Collin
County Community College District, with respect to that certain Ad Valorem
Tax Abatement Agreement last executed on May 16, 1996.
4.3 Purchaser's Closing Deliveries. At Closing, Purchaser shall cause
the following to be delivered to Seller:
4.3.1 The portion of the Purchase Price payable pursuant to Section
3.2.2, as adjusted pursuant to Section 4.5, by cashier's check or by wire
transfer of immediately available funds. The ▇▇▇▇▇▇▇ Money shall be applied
to and credited against the Purchase Price and shall be disbursed to Seller
by Title Company at Closing.
4.3.2 All documents and instruments, each executed and acknowledged
(where appropriate) by Purchaser, that may be required of Purchaser under
applicable law, including any purchaser's affidavits or revenue or tax
certificates or statements.
4.3.3 A settlement statement consistent with this Agreement executed
by Purchaser.
4.3.4 The FSI Sublease executed by Purchaser.
4.3.5 Such other documents and instruments as may be reasonably
required by Seller to consummate the transaction contemplated by this
Agreement
4.4 Closing Escrow. Purchaser and/or Seller at their option may
deposit the respective Closing deliveries described in Sections 4.2 and 4.3 with
Title Company (and/or with First American Title Insurance Company) with
appropriate instructions for recording and disbursement consistent with this
Agreement. Upon the deposit of funds or documents into escrow, anything herein
to the contrary notwithstanding, the party so depositing such funds or documents
may require that such funds and/or documents be released only pursuant to escrow
instructions from the party that deposited the same.
4.5 Closing Adjustments. The following adjustments shall be made at
Closing, SUBJECT TO THE PROVISIONS OF THE FSI SUBLEASE:
4.5.1 All real estate taxes applicable to any of the Real Property due
and payable in the year of Closing, together with all special assessments
payable therewith, shall be prorated between Seller and Purchaser on a
daily basis as of May 1, 2005 based upon a calendar fiscal year, with
Seller paying those allocable to the period prior to May 1, 2005, and
Purchaser being responsible for those allocable for the period from and
after May 1, 2005. Purchaser shall receive a credit from Seller at closing
for the estimated amount of real estate taxes due for the period prior to
May 1, 2005. Such calculation shall be made on the basis of the prior
year's taxes and shall be deemed final as between Seller and Purchaser.
Notwithstanding the foregoing,
Seller shall be responsible for any supplemental taxes assessed on or after
the Closing Date relating back to the period prior to the Closing Date. The
provision described in the immediately preceding sentence shall survive the
Closing.
4.5.2 Personal property taxes, if any, applicable to any of the
Personal Property and Excluded Personal Property due and payable in the
year of Closing shall be prorated between Seller and Purchaser on a daily
basis as of the Closing Date based upon a calendar fiscal year, with Seller
paying those allocable to the period prior to the Closing Date and
Purchaser being responsible for those allocable to the Closing Date and
thereafter. Seller shall be responsible for personal property taxes, if
any, applicable to any personal property retained by Seller.
4.5.3 Purchaser shall assume all special assessments (and charges in
the nature of or in lieu of such assessments) levied, pending or
constituting a lien with respect to any of the Real Property as of the
Closing Date.
4.5.4 Seller shall pay all sales tax due regarding this transaction,
if any.
4.5.5 Seller shall pay all state deed tax regarding the deed to be
delivered by Seller to Purchaser. Purchaser shall pay any mortgage registry
tax regarding any mortgage given by Purchaser on the Real Property in
connection with this transaction.
4.5.6 Seller shall pay the cost of recording all documents, including
the deed to be delivered by Seller to Purchaser.
4.5.7 Purchaser shall pay all service charges for and costs of the
Commitment.
4.5.8 Purchaser shall pay all premiums required for any owner's or
mortgagee's title insurance policy issued in connection with this
transaction.
4.5.9 Seller shall pay any Closing fee payable to Title Company with
respect to the transaction contemplated by this Agreement.
4.5.10 All utility expenses, including water, fuel, gas, electricity,
telephone, sewer, trash removal, heat and other services furnished to or
provided for the Property, and all other operating costs of the Property
(including, without limitation, dues payable to the Association and all
dues or associations fees attributable to any declarations of covenants,
conditions and restrictions or similar agreements that run with the land
relating to the Property to which Seller is a party or by which Seller or
the Property or any portion thereof may be bound), shall be paid by Seller,
pursuant to the provisions of the FSI Sublease.
4.5.11 Except as provided in Section 13, Seller and Purchaser shall
each pay their own attorneys' fees incurred in connection with this
transaction.
4.5.12 At Closing, (i) Seller shall pay to Seller's Broker a fee equal
to One Hundred Forty-Nine Thousand Three Hundred Fifty No/100 Dollars
($149,350.00); (ii) Seller shall pay to Purchaser's Broker a fee equal to
Two Hundred Seventeen Thousand No/100 Dollars ($217,000.00); and (iii)
Purchaser shall pay to Purchaser's Broker a fee equal to Twenty-Nine
Thousand Two Hundred Fifty No/100 Dollars ($29,250.00).
If any of the amounts allocated under this Section 4.5 cannot be calculated with
complete precision at Closing because the amount or amounts of one or more items
included in such calculation are not then known, then such calculation shall be
made on the basis of the reasonable estimates of Seller and Purchaser, subject
to prompt adjustment (by additional payment or refund, as necessary) when the
amount of any such item or items become known (the foregoing covenant to survive
the Closing).
4.6 Possession. Seller shall deliver possession of the Property to
Purchaser on the Closing Date, subject to the FSI Sublease. Purchaser shall
consummate a sale-leaseback transaction between Purchaser and Proposed Assignee
in accordance with the terms of the Net Lease, and Purchaser shall enter into
the FSI Sublease at Closing. The parties agree that the FSI Sublease shall be
subject and subordinate to the terms of the Net Lease to be executed by
Purchaser and Proposed Assignee at Closing.
5. Third Party Report Deliveries; Due Diligence Materials;
Examination.
5.1 Commitment. Promptly and in any event no later than ten (10) days
after the mutual execution and delivery of this Agreement, Purchaser shall
obtain, and cause to be delivered to Seller, Proposed Assignee and the surveyor
preparing the Survey, the Commitment. Purchaser shall deliver, or instruct Title
Company to deliver, to such parties copies of all instruments referenced in
Schedule B-2 of the Commitment, except any mortgages, security agreements, liens
or other encumbrances to be discharged at Closing.
5.2 Survey. Promptly and in any event no later than twenty (20) days
after the mutual execution and delivery of this Agreement, Purchaser shall use
commercially reasonable efforts to obtain the Survey.
5.3 Review Period. Purchaser shall have until the end of the
Contingency Period to notify Seller in writing of any objections the Purchaser
may have to matters reflected in or concerning the Commitment or the Survey
(each of the foregoing notices being hereafter referred to as the "Objections
Notice"); provided, however, Purchaser shall not be required to object to any
matters shown on Schedule B-1 to the Commitment and Purchaser shall not be
required to object to any mortgage lien, construction lien or other lien or
encumbrance which may be discharged by payment of a specified or ascertainable
amount of money, and all such liens or encumbrances shall not be or become
Permitted Exceptions and shall be discharged by Seller at or before Closing.
Purchaser shall not object to any of the Permitted Exceptions identified as of
the date hereof on Exhibit B attached hereto. If the Purchaser shall deliver the
Objections Notice, Seller may elect to cure such objections within thirty (30)
days from the date on which Seller receives the Objections Notice. If the
Purchaser is not satisfied with the results of any cure efforts by Seller, the
Purchaser may terminate this Agreement by giving written notice of termination
to Seller within ten (10) days after the end of Seller's thirty (30) day cure
period in which event the ▇▇▇▇▇▇▇ Money shall be returned to and retained by
Purchaser and neither party hereto shall have any further rights or obligations
hereunder other than those which are expressly provided to survive the
termination hereof. Any title or survey exceptions to which the Purchaser does
not object in accordance with this Section 5.3 and any title or survey
exceptions to which the Purchaser objects that are not cured and which the
Purchaser is deemed to have accepted and approved in accordance with this
Section 5.3 shall be herein referred to as Permitted Exceptions.
5.4 Real Estate Documents. Within five (5) days after the mutual
execution and delivery of this Agreement, Seller, at Seller's sole cost and
expense, will simultaneously deliver to Purchaser and Proposed Assignee true,
correct and complete copies (or where specifically indicated, original
counterparts) of the following (collectively, the "Due Diligence Materials")
together with all amendments, modifications, renewals or extensions thereof, to
the extent such copies, if any, are in the possession or control of Seller:
5.4.1 All Warranties which are still in effect.
5.4.2 All Licenses.
5.4.3 All agreements relating to the operation of the Improvements
(including leases of adjacent land or facilities).
5.4.4 All of the Plans and Specs.
5.4.5 All existing leases.
5.4.6 All agreements for Commissions, brokerage fees, finder's fees or
other compensation payable by Seller in connection therewith.
5.4.7 All notices received from governmental authorities related to
the Property that relate to any purported or potential violations of any
laws, rules, or regulations.
5.4.8 All existing environmental studies, surveys, and reports with
respect to the physical condition, use or operation of the Property. All
other non-confidential additional information as reasonably requested by
Purchaser and related to the operation of the Property to the extent such
documents are in the physical possession or control of Seller.
Seller shall advise Purchaser and Proposed Assignee in writing of any material
changes, additions, deletions or modifications in or to any of the Due Diligence
Materials within five (5) days after Seller has notice thereof, and furnish
Purchaser and Proposed Assignee with copies thereof.
5.5 Due Diligence Review. During the Contingency Period, Purchaser
shall have the right to make such examinations and inspections (including,
without limitation, environmental assessments, engineering and conditions
reports, zoning reports and an appraisal) of the Property, to examine all Due
Diligence Materials and to inspect and review all other matters relating to the
Property. Purchaser shall be entitled to make such applications, inquiries and
searches of utility companies, governmental records and governmental agencies as
it shall deem appropriate in connection with its investigation of the Property,
and Seller shall provide reasonable cooperation to Purchaser in connection with
these efforts, at the sole cost and expense of Purchaser.
5.6 Automatic Termination. This Agreement shall automatically
terminate and the ▇▇▇▇▇▇▇ Money shall be returned to Purchaser at the expiration
of the Contingency Period unless prior to the expiration of the Contingency
Period Purchaser shall, in its sole and absolute discretion, deliver to Seller a
written notice rescinding the termination of this Agreement pursuant to this
Section 5.6. In the event of such termination, neither party hereto shall have
any further rights or obligations hereunder other than those which are expressly
provided to survive the termination hereof.
6. Conditions Precedent.
6.1 Conditions in Favor of Purchaser. The obligations of Purchaser
under this Agreement are contingent upon each of the following:
6.1.1 Before the end of the Contingency Period, Purchaser shall have
determined that the matters and conditions disclosed by the reports,
investigations and tests received or performed by Purchaser pursuant to
Section 5 are satisfactory to Purchaser in its sole discretion.
6.1.2 On the Closing Date, each of the representations and warranties
of Seller in Section 7.1 shall be true and correct as if the same were made
on the Closing Date.
6.1.3 On the Closing Date, Seller shall have performed all of the
obligations required to be performed by Seller under this Agreement as and
when required under this Agreement.
6.1.4 Purchaser shall have received or have an irrevocable right to
receive the Title Policy and such other endorsements as are requested by
Purchaser and available in the State of Texas issued by the Title Company
insuring good and indefeasible fee simple title to the Property, subject
only to the Permitted Exceptions.
6.1.5 The Seller shall have made all deliveries under Section 4.2.
6.1.6 There is no third party injunction, judgment, order, action or
proceeding which would prevent or limit the consummation of this
transaction.
6.1.7 The Excluded Parcel shall be a separate legal parcel. In
connection with the foregoing condition, Seller covenants and agrees to use
commercially reasonable efforts to effect the creation of the Excluded
Parcel as a separate legal parcel. If the Excluded Parcel is not a separate
legal parcel as of the Closing Date, the Closing Date shall be extended for
a period not to exceed fifteen (15) business days until such time as the
Excluded Parcel becomes a separate legal parcel.
If any conditions in this Section 6.1 have not been satisfied on or before the
applicable date set forth in this Section 6.1 with respect to each condition,
then Purchaser may terminate this Agreement by notice to Seller on or before the
applicable date in which event the ▇▇▇▇▇▇▇ Money shall be returned to and
retained by Purchaser and neither party shall have any further rights or
obligations hereunder other than those which are expressly provided to survive
the termination hereof; provided that Purchaser shall preserve all rights and
remedies contained in Section 13 and 14 hereof. To the extent that any of the
conditions in this Section 6.1 require the satisfaction of Purchaser, such
satisfaction shall be determined by Purchaser in its reasonable discretion. The
conditions in this Section 6.1 are specifically stated and for the sole benefit
of Purchaser. Purchaser in its discretion may unilaterally waive (conditionally
or absolutely) the fulfillment of any one or more of the conditions, or any part
thereof, by notice to Seller.
6.2 Conditions in Favor of Seller. The obligations of Seller under
this Agreement are contingent upon each of the following:
6.2.1 On the Closing Date, each of the representations and warranties
of Purchaser in Section 7.2 shall be true and correct as if the same were
made on the Closing Date.
6.2.2 On the Closing Date, Purchaser shall have performed all of the
obligations required to be performed by Purchaser under this Agreement as
and when required under this Agreement.
6.2.3 The Excluded Parcel shall be a separate legal parcel.
6.2.4 All parties required to sign any closing delivery described in
Sections 4.2.10, 4.2.11, and 4.2.15 have signed and delivered such
documents to Seller, and Seller shall have delivered the same to Purchaser
and Title Company.
If any of the conditions in this Section have not been satisfied on or before
the applicable date set forth in this Section 6.2 with respect to each
condition, then Seller may terminate this Agreement by notice to Purchaser on or
before the applicable date, subject however to Section 14. To the extent that
any of the conditions in this Section 6.2 require the satisfaction of Seller,
such satisfaction shall be determined by Seller in its reasonable discretion.
The conditions in this Section 6.2 are specifically stated and for the sole
benefit of Seller. Seller in its discretion may unilaterally waive any one or
more of the conditions, or any part thereof, by notice to Purchaser.
6.3 Concurrent Transactions. All documents or other deliveries
required to be made by the Seller and the Purchaser, at or prior to Closing, and
all transactions required to be consummated concurrently with Closing shall be
deemed to have been delivered and to have been consummated simultaneously with
all other transactions and all other deliveries, and no delivery shall be deemed
to have been made, and no transaction shall be deemed to have been consummated,
until all deliveries required by the Seller and the Purchaser shall have been
made, and all concurrent or other transactions shall have been consummated.
7. Representations and Warranties.
7.1 Seller's Representations and Warranties. Seller represents and
warrants to Purchaser as of the date of this Agreement as follows:
7.1.1 Seller has been duly incorporated under the laws of the State of
Minnesota and is in good standing under the laws of the State of Texas, is
duly qualified to transact business in the State of Texas, and has the
requisite power and authority to enter into and perform this Agreement and
the documents and instruments required to be executed and delivered by
Seller pursuant hereto. This Agreement has been duly executed and delivered
by Seller and is a valid and binding obligation of Seller enforceable in
accordance with its terms. This Agreement and the documents and instruments
required to be executed and delivered by Seller pursuant hereto have each
been duly authorized by all necessary corporate action on the part of
Seller and that such execution, delivery and performance does and will not
conflict with or result in a violation of Seller's articles of
incorporation or by-laws or any judgment, order or decree of any court or
arbiter to which Seller is a party, or any agreement to which Seller and/or
any of the Property is bound or subject.
7.1.2 Seller is not a "foreign person," "foreign partnership,"
"foreign trust," "foreign estate" or "disregarded entity" as those terms
are defined in Section 1445 of the Internal Revenue Code.
7.1.3 Neither the entry into nor the performance of, or compliance
with, this Agreement by Seller will result in any violation of, or default
under, or result in the acceleration of, any obligation under the
partnership agreements or articles of incorporation, as applicable, of
Seller, or any existing mortgage indenture, lien agreement, note, contract,
permit, judgment, decree, order, restrictive covenant, statute, rule or
regulation applicable to Seller or the Property.
7.1.4 No party, other than Purchaser and EDC, has any right or option
to acquire the Property.
7.1.5 Seller (i) is not in liquidation or dissolution, (ii) has not
made an assignment for the benefit of creditors or admitted in writing its
inability to pay its debts as they mature, or (iii) has been adjudicated a
bankrupt or filed a petition in voluntary bankruptcy or a petition or
answer seeking reorganization or an arrangement with creditors under the
federal bankruptcy laws or any other similar law
or statue of the United States or any jurisdiction and, to knowledge of the
Seller, no such petition has been filed against Seller.
7.1.6 To Seller's knowledge, there are no pending arbitration
proceedings or unsatisfied arbitration awards, or judicial orders
respecting awards, with respect to the Property.
7.1.7 No notice has been received by Seller from the insurance company
that issued the casualty insurance policy covering the Property stating
that any of such policy is not in full force and effect, will not be
renewed or will be renewed only at a materially higher premium rate than is
presently payable therefor.
7.1.8 No service contract will be binding upon Purchaser or the
Property and all service contracts can be terminated upon thirty (30) days
notice.
7.1.9 A list of the Licenses is annexed hereto as Schedule 1. To
Seller's knowledge, all Licenses are in full force and effect, and Seller
has not received any written notices of revocation of any Licenses.
7.1.10 There are no pending or, to Seller's knowledge, threatened
condemnation affecting the Property or any improvement liens or special
assessments to be made against the Property by any governmental authority.
7.1.11 Seller has not received any written notice of any violation
from any governmental authority concerning the condition, use or occupancy
of the Property or with respect to any encumbrance upon any Property which
has not been corrected.
7.1.12 To Seller's knowledge, the only Warranties in effect for any of
the Property are described on Schedule 2.
7.1.13 For the purpose of this Section, the term "Hazardous
Substances" shall mean substances defined as a "hazardous waste",
"hazardous substance", "toxic substance" or any word of similar import
under any Environmental Laws, including, without limitation, oil,
petroleum, or any petroleum derived substance or waste, asbestos or
asbestos-containing materials, PCBs, explosives, radioactive materials,
dioxins, or urea formaldehyde insulation. As used herein, "Environmental
Laws" shall include, without limitation, the Comprehensive Environmental
Response, Compensation and Liability Act, as amended, 42 U.S.C. Section
9601, et seq., the Resource Conservation and Recovery Act, 42 U.S.C.
Section 6901, et seq., the Clean Air Act, 42 U.S.C. Section 7401, et seq.,
the Clean Water Act, 33 U.S.C. Section 1251, et seq., the Toxic Substance
Control Act, 15 U.S.C. Section 2601, et seq., and the Occupational Safety
and Health Act, 29 U.S.C. Section 651, et seq., as any of the preceding
have been amended prior to the date hereof, and any other federal, state,
or local law, ordinance, regulation, rule, order, decision or permit
relating to the protection of the environment or of human health from
environmental effects of Hazardous Substances and which are
applicable to any of the Property. To the knowledge of Seller, and except
for those conditions specifically described in the Environmental Report,
(i) Seller has not spilled or released any Hazardous Substances in, on or
under any of the Property so as to impose liability or require remediation
under any Environmental Law; (ii) Seller has no knowledge of any spill or
release of Hazardous Substances in, on or under any of the Property; (iii)
Seller has no material unpaid liability under, and Seller has caused no
material violation of, any Environmental Laws; and (iv) Seller has no
knowledge of any liability under or violation of any Environmental Laws or
condition that could give rise to such liability or violation with respect
to any of the Property.
7.1.14 There are no existing leases of any portion of the Property and
there are no Commissions payable in connection with the use or occupancy of
the Property.
7.1.15 The are no prepaid rents or deposits, including but not limited
to, security deposits, tax and insurance and any other escrow accounts for
the Property.
7.1.16 Each employee of Seller in connection with the use, operation
or maintenance of the Property either (i) is terminable at the will of
Seller, or (ii) has an employment contract that would not be binding on, or
create liability for, Purchaser.
The provisions of this Section 7.1 shall survive the Closing or the earlier
termination of this Agreement for a period of twelve (12) months. Seller shall
have no liability with respect to any breach of a particular representation and
warranty if Purchaser shall fail to (a) notify Seller thereof within a
reasonable time after discovery thereof, or (b) commence an action against
Seller with respect to the breach in question within twelve (12) months after
discovery thereof by Purchaser.
7.2 Purchaser's Representations and Warranties. Purchaser represents
and warrants to Seller as of the date of this Agreement as follows:
7.2.1 Purchaser has been duly incorporated under the laws of the State
of Delaware and is in good standing under the laws of the State of
Delaware, is duly qualified to transact business in the State of Texas, and
has the requisite power and authority to enter into and perform this
Agreement and the documents and instruments required to be executed and
delivered by Purchaser pursuant hereto. This Agreement has been duly
executed and delivered by Purchaser and is a valid and binding obligation
of Purchaser enforceable in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or similar laws affecting
the enforcement thereof or relating to creditors' rights generally. This
Agreement and the documents and instruments required to be executed and
delivered by Purchaser pursuant hereto have each been duly authorized by
all necessary corporate action on the part of Purchaser and that such
execution, delivery and performance does and will not conflict with or
result in a violation of Purchaser's articles of incorporation or by-laws
or any judgment, order or decree of any court or arbiter to which Purchaser
is
a party, or any agreement to which Purchaser and/or any of the Property is
bound or subject.
7.2.2 Purchaser has not (i) made a general assignment for the benefit
of creditors, (ii) filed any involuntary petition in bankruptcy or suffered
the filing of any involuntary petition by Purchaser's creditors, (iii)
suffered the appointment of a receiver to take possession of all or
substantially all of Purchaser's assets, (iv) suffered the attachment or
other judicial seizure of all, or substantially all, of Purchaser's assets,
(v) admitted in writing its inability to pay its debts as they come due, or
(vi) made an offer of settlement, extension or composition to its creditors
generally.
Purchaser shall have no liability with respect to any breach of a particular
representation and warranty if Seller shall fail to (a) notify Purchaser thereof
within a reasonable time after discovery thereof, or (b) commence an action
against Purchaser with respect to the breach in question within twelve (12)
months after discovery thereof by Seller.
8. Inspection; Condition of Property at Closing.
8.1 Inspections, Environmental Matters and Release.
8.1.1 During the Contingency Period and in connection with obtaining
the items indicated in Section 5.5, Purchaser, its agents, contractors and
employees shall have the right to enter upon the Property for the purpose
of physically inspecting the Property and conducting soil tests and other
inspections, including, without limitation, inspections of and testing of
the Improvements, at Purchaser's sole risk, cost and expense. Before any
such entry, Purchaser shall provide Seller with a certificate of insurance
naming Seller as an additional insured and with an insurer and insurance
limits and coverage reasonably satisfactory to Seller. All of such entries
upon the Property shall be at reasonable times during normal business hours
and after at least 24 hours prior notice to Seller or Seller's agent, and
Seller or Seller's agent shall have the right to accompany Purchaser during
any activities performed by Purchaser on the Property. At Seller's request,
Purchaser shall provide Seller with a copy of the results of any tests and
inspections made by Purchaser, excluding only market and economic
feasibility studies. If any inspection or test disturbs the Property,
Purchaser will restore the Property to the same condition as existed before
the inspection or test. Purchaser shall indemnify, defend and hold Seller,
Seller's trustees, officers, tenants, agents, contractors and employees and
the Property harmless from and against any and all losses, costs, damages,
claims or liabilities, including but not limited to, mechanic's and
materialmen's liens and Seller's reasonable attorneys fees, arising out of
or in connection with Purchaser's inspection of the Property as allowed
pursuant to Section 5.5, this Section 8.1.1 or Section 8.1.2 below. The
provisions of this Section 8.1.1 shall survive the Closing or the earlier
termination of this Agreement.
8.1.2 If either (i) Purchaser has reasonably determined that the
inspections under Section 5.5 and Section 8.1.1 above should include any
Phase II environmental
inspection or other invasive inspection or sampling of soil or other
substances or materials, or (ii) any Phase I environmental inspection of
the Property prepared for, or on the behalf of, Purchaser and Proposed
Assignee recommends such inspection, then such inspection shall be
permitted provided the prior written consent of Seller shall be obtained
(not to be unreasonably withheld or, delayed or conditioned). If either (a)
the Seller shall not permit Purchaser to conduct such inspection, or (b)
Seller shall fail to give its decision to Purchaser regarding such
inspection within five (5) business days after written notice from
Purchaser, Purchaser may terminate this Agreement by giving written notice
of termination to Seller in which event the ▇▇▇▇▇▇▇ Money shall be returned
to and retained by Purchaser and neither party hereto shall have any
further rights or obligations hereunder other than those which are
expressly provided to survive the termination hereof. In the event of such
inspection, the Contingency Period shall be extended for an additional
reasonable period of time (not to exceed thirty (30) days) to permit
completion and review of such inspection by Purchaser. At Seller's request,
Purchaser shall deliver to Seller copies of any Phase II or other
environmental report to which Seller consents as provided above. The
provisions of this Section 8.1.2 shall survive the Closing or any earlier
termination of this Agreement.
8.1.3 Purchaser, for itself and any entity affiliated with Purchaser,
waives and releases Seller from and against any liability or claim related
to the Property arising under the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, the Superfund Amendments and
Reauthorization Act of 1986, the Resource Conservation and Recovery Act,
and the Toxic Substance Control Act, all as amended, or any other cause of
action based on any other state, local or federal environmental law, rule
or regulation, provided however, the foregoing release shall not operate to
release any claim by Purchaser against any person or entity other than
Seller and shall not operate to discharge any representations made by
Seller in this Agreement. The provisions of this Section 8.1.3 shall
survive the Closing or any earlier termination of this Agreement.
8.2 Condition of Property at Closing. TO THE MAXIMUM EXTENT PERMITTED
BY APPLICABLE LAW AND EXCEPT FOR SELLER'S REPRESENTATIONS AND WARRANTIES IN
SECTION 7.1 ("SELLER'S WARRANTIES"), THIS SALE IS MADE AND WILL BE MADE WITHOUT
REPRESENTATION, COVENANT, OR WARRANTY OF ANY KIND (WHETHER EXPRESS, IMPLIED, OR,
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, STATUTORY) BY SELLER. AS A
MATERIAL PART OF THE CONSIDERATION FOR THIS AGREEMENT, PURCHASER AGREES TO
ACCEPT THE PROPERTY ON AN "AS IS" AND "WHERE IS" BASIS, WITH ALL FAULTS, AND
WITHOUT ANY REPRESENTATION OR WARRANTY, ALL OF WHICH SELLER HEREBY DISCLAIMS,
EXCEPT FOR SELLER'S WARRANTIES. EXCEPT FOR SELLER'S WARRANTIES, NO WARRANTY OR
REPRESENTATION IS MADE BY SELLER AS TO FITNESS FOR ANY PARTICULAR PURPOSE,
MERCHANTABILITY, DESIGN, QUALITY, CONDITION, OPERATION OR INCOME,
COMPLIANCE WITH DRAWINGS OR SPECIFICATIONS, ABSENCE OF DEFECTS, ABSENCE OF
HAZARDOUS OR TOXIC SUBSTANCES, ABSENCE OF FAULTS, FLOODING, OR COMPLIANCE WITH
LAWS AND REGULATIONS INCLUDING, WITHOUT LIMITATION, THOSE RELATING TO HEALTH,
SAFETY, AND THE ENVIRONMENT. PURCHASER ACKNOWLEDGES THAT PURCHASER HAS ENTERED
INTO THIS AGREEMENT WITH THE INTENTION OF MAKING AND RELYING UPON ITS OWN
INVESTIGATION OF THE PHYSICAL, ENVIRONMENTAL, ECONOMIC USE, COMPLIANCE, AND
LEGAL CONDITION OF THE PROPERTY AND THAT PURCHASER IS NOT NOW RELYING, AND WILL
NOT LATER RELY, UPON ANY REPRESENTATIONS AND WARRANTIES MADE BY SELLER OR ANYONE
ACTING OR CLAIMING TO ACT, BY, THROUGH OR UNDER OR ON SELLER'S BEHALF CONCERNING
THE PROPERTY, EXCEPT FOR SELLER'S WARRANTIES. THE PROVISIONS OF THIS SECTION 8.2
SHALL SURVIVE INDEFINITELY ANY CLOSING OR TERMINATION OF THIS AGREEMENT AND
SHALL NOT BE MERGED INTO THE CLOSING DOCUMENTS.
9. Operation Pending Closing. During the Executory Period, Seller
hereby covenants and agrees that Seller shall:
9.1 Keep and maintain the Property in a good state of repair and
condition and consistent with commercially reasonable practices;
9.2 Keep, observe, and perform all its obligations under any existing
leases and any other contractual arrangements relating to the Property;
9.3 Advise Purchaser within five (5) days of any material litigation,
arbitration, or administrative hearing before any court or governmental agency
concerning or affecting any of the Property or any existing leases which is
instituted or threatened after the date of this Agreement or if any
representation or warranty contained in this Agreement shall become false or if
a default shall occur under any existing leases;
9.4 Not take, or omit to take, any action that would have the effect
of causing a material breach of any of the representations, warranties,
covenants or agreements of Seller contained in this Agreement;
9.5 Comply in all material respects with all federal, state, and
municipal laws, ordinances, regulations, and orders relating to the Property;
9.6 Not (i) sell or assign, (ii) enter into any agreement to sell or
assign, (iii) enter into any lease or other occupancy agreement, (iv) create or
permit to exist any lien or encumbrance on, or (v) enter into or grant any party
any right or option to purchase, lease or occupy, the Property or any portion
thereof;
9.7 Pay or cause to be paid all taxes, assessments and other
impositions levied or assessed on the Property or any part thereof prior to the
date on which the payment thereof would become delinquent or accrue any interest
or penalties;
9.8 Maintain or cause to be maintained in full force and effect the
present policies and level of insurance with respect to the Property; and
9.9 Not allow any government permit, receipt, license, or right
currently in existence with respect to the operation, use, occupancy or
maintenance of the Property to expire, be cancelled or otherwise terminated.
10. Damage or Destruction. If prior to Closing any material portion
of the Property is damaged or destroyed by fire or other casualty, Seller shall
immediately give notice thereof to Purchaser together with a good faith estimate
of the costs of repair or replacement of such casualty. If any material portion
of the Property is damaged or destroyed by such casualty or such casualty shall
be to any structural elements of the improvements on the Property, Purchaser at
its option (to be exercised within thirty (30) days after Seller's notice) may
either (a) terminate this Agreement, in which event the ▇▇▇▇▇▇▇ Money shall be
returned to Purchaser and neither party hereto shall have any further rights or
obligations hereunder other than those which are expressly provided to survive
the termination hereof, or (b) proceed to Closing, in which event Seller agrees
to pay to Purchaser at the Closing all insurance proceeds which Seller has
received as a result of the same plus an amount equal to the insurance
deductible, if any, and assign to Purchaser all insurance proceeds payable as a
result of the same without Seller replacing or repairing such damage. If such
casualty shall not be to any material portion of the Property and shall not be
to any structural elements of the improvements on the Property, Purchaser shall
proceed to Closing, in which event Seller agrees to pay to Purchaser at the
Closing all insurance proceeds which Seller has received as a result of the same
plus an amount equal to the insurance deductible, if any, and assign to
Purchaser all insurance proceeds payable as a result of the same without Seller
replacing or repairing such damage. As used in this Section 10, the term
"material portion of the Property" shall mean damage to the Property that would
cost in excess of Fifty Thousand and no/100s Dollars ($50,000.00) to repair
based upon a good faith estimate prepared with respect to such casualty.
11. Condemnation. If prior to Closing eminent domain proceedings are
commenced against any portion of the Property, Seller shall immediately give
notice thereof to Purchaser, and Purchaser at its option (to be exercised within
thirty (30) days after Seller's notice) may either (a) terminate this Agreement,
in which event the ▇▇▇▇▇▇▇ Money shall be returned to Purchaser and neither
party hereto shall have any further rights or obligations hereunder other than
those which are expressly provided to survive the termination hereof, or (b)
proceed to Closing, in which event Seller agrees to pay to Purchaser at the
Closing all condemnation awards which Seller has received as a result of the
same, and assign to Purchaser all condemnation awards payable as a result of the
same without Seller replacing or repairing such damage.
12. Brokers. Except for the commissions payable by Seller to Seller's
Broker and Purchaser's Broker, each of the parties represents to the other that
such party has not incurred any brokerage commission or finder's fee as a result
of this transaction, and each party agrees to hold the other harmless from all
liabilities incurred by the other relating to any brokerage commission or
finder's fee payable by such party. The provisions of this Section 12 shall
survive termination of this Agreement.
13. Default. If either party shall default in any of their respective
obligations under this Agreement, the other party, by written notice to such
defaulting party specifying the nature of the default and the date on which this
Agreement shall terminate (which date shall be not less than thirty (30) days
after the giving of such notice), may terminate this
Agreement, and upon such date, unless the default so specified shall have been
cured, this Agreement shall terminate. In the event that Purchaser should fail
to consummate this Agreement for any reason, except Seller's default or the
termination of this Agreement by Purchaser pursuant to a right to do so under
the terms and provisions hereof, then Seller, as its sole and exclusive remedy,
may terminate this Agreement by notifying Purchaser thereof in writing and
receive and retain the ▇▇▇▇▇▇▇ Money as liquidated damages. The parties agree
that Seller will suffer damages in the event of Purchaser's default on it
obligations. Although the amount of such damages is difficult or impossible to
determine, the parties agree that the amount of the ▇▇▇▇▇▇▇ Money is a fair and
reasonable estimate of Seller's loss in the event of Purchaser's default. Seller
shall accept and retain the ▇▇▇▇▇▇▇ Money as liquidated damages but not as a
penalty. In the event Seller is entitled to the ▇▇▇▇▇▇▇ Money as liquidated
damages, and to the extent Seller has not already received the ▇▇▇▇▇▇▇ Money,
the ▇▇▇▇▇▇▇ Money shall be immediately paid to Seller by the Title Company upon
receipt of written notice from Seller that Purchaser has defaulted under this
Agreement, and Purchaser agrees to take all such actions and execute and deliver
all such documents necessary or appropriate to effect such payment. If Seller
defaults under this Agreement or fails to consummate Closing as required hereby,
Purchaser shall have the right in its sole and absolute discretion (i) to seek
specific performance of this Agreement within six (6) months after such right
arises, or (ii) to terminate this Agreement and receive a return of the ▇▇▇▇▇▇▇
Money, provided that, in any case, if Seller willfully defaults or refuses to
consummate the transaction contemplated hereby, Seller shall also be liable for
a claim for damages and for all costs and expenses, including without
limitation, due diligence costs and reasonable attorneys' fees and expenses,
incurred or payable by Purchaser, including amounts payable to Proposed
Assignee, in connection therewith, up to a maximum amount of One Hundred Fifty
Thousand Dollars ($150,000.00). In any action or proceeding to enforce this
Agreement or any term hereof, the prevailing party shall be entitled to recover
its reasonable costs and attorneys' fees. Seller and Purchaser hereby waive any
and all rights to damages or other legal or equitable remedies not set forth in
this Section 13.
14. Termination; Confirmation. Except as expressly provided in this
Agreement to the contrary, if this Agreement is terminated pursuant to the terms
hereof, the ▇▇▇▇▇▇▇ Money shall be returned to Purchaser and upon such return
the respective rights of Seller and Purchaser arising out of this Agreement
shall immediately cease. In such event, Purchaser agrees to execute,
acknowledge, and deliver to Seller within ten (10) days after written request, a
quit claim deed and/or a termination of this Agreement in recordable form in
order to remove the cloud of this Agreement from the Property, but failure to
give such deed or termination shall not affect the termination of this
Agreement.
15. Assignability. Purchaser may not assign its rights under this
Agreement without the consent of Seller, which consent may be given or withheld
by Seller in its discretion. Notwithstanding the foregoing, Seller hereby
consents to Purchaser's assignment of its rights under this Agreement to
Proposed Assignee and/or one of its affiliates or assigns, provided that such
assignment shall not release Purchaser from its obligations hereunder.
16. Notices. Any notice, consent, waiver, request or other
communication required or provided to be given under this Agreement shall be in
writing and shall be sufficiently given and shall be deemed given when delivered
personally or when mailed by certified or registered mail, return receipt
requested, postage prepaid, or when dispatched by nationally recognized
overnight delivery service, in any event, addressed to the party's address as
follows:
If to Seller: FSI International, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Benno Sand
If to Purchaser: Finisar Corporation
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇
With a copy to: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ & Freidenrich LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
With a copy to: ▇▇▇▇ ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
or to such party at such other address as such party, by prior written notice
given as herein provided, shall designate. Any notice given in any other manner
shall be effective only upon receipt by the addressee.
17. Right of First Refusal on Excluded Parcel.
17.1 Right of First Refusal. Seller is the current owner of the
Excluded Parcel. If at any time on or before December 31, 2009, Seller or its
successor and/or its assigns shall enter into a contract for the sale of the
Excluded Parcel with any third party (and which may include other property owned
by Seller so long as a specific purchase price is allocated to the Property),
which contract for the sale of the Excluded Parcel shall be
conditioned upon Purchaser's failure to exercise its right under this Section
17, Seller shall give written notice to Purchaser of the contract for the sale
of the Excluded Parcel, together with an executed copy of such contract and the
name and business address of the third party. Purchaser shall have twenty (20)
days after receipt of such notice within which to notify Seller in writing of
Purchaser's intention to purchase the Excluded Parcel upon all the terms and
conditions set forth in such contract. If Purchaser fails to exercise such
option within twenty (20) days after receipt of such notice, then Seller may
sell the Excluded Parcel to such third party upon the terms set forth in such
contract. Notwithstanding the foregoing, if Purchaser shall have failed to
exercise the aforesaid option by written notice to Seller and the sale to such
third party is not consummated within one hundred twenty (120) days after the
notice is delivered to Purchaser, then Seller shall be obligated to again offer
Purchaser the right to purchase the Excluded Parcel in accordance with the
procedure described above. The provisions of this Section 17.1 shall survive the
Closing.
17.2 Applicability. The parties agree that any transfer of ownership
interests, direct or indirect, in the owner of the Excluded Parcel or any entity
that controls directly or indirectly the owner of the Excluded Parcel shall be
considered a "sale" under this Section 17 unless (i) such transfer is in
connection with the sale of all or substantially all of Seller's business (stock
or assets), or (ii) such transfer is the sale of the outstanding capital stock
of the owner of the Excluded Parcel by persons or parties through the
"over-the-counter market" or through a recognized stock exchange, other than by
those deemed to be a "control-person" within the meaning of the Securities
Exchange Act of 1934. In addition, any sale or transfer to an Affiliate shall
not be considered a "sale" under this Section 17. "Affiliate" means any person
or entity directly or indirectly controlling or controlled by or under direct or
indirect common control with Seller or any person or entity that purchases all
or substantially all of the collective assets of Seller and its Affiliates. For
the purposes of this definition, "control" when used with respect to any
specified person means the power to direct the management and policies of such
person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing. Any transfer to an
Affiliate shall be subject to such Affiliate agreeing in writing to be bound by
the terms of this Section 17. The provisions of this Section 17.2 shall survive
the Closing.
18. Driveway Located on Excluded Parcel.
18.1 Term of Use. From and after Closing, Seller shall grant to
Purchaser and its successors and assigns a license in connection with
Purchaser's nonexclusive right to use of the Driveway at no cost to Purchaser.
Seller shall maintain the Driveway in accordance with all applicable laws and
shall do so at Seller's sole risk, cost and expense. The license shall terminate
(i) upon Seller's sale, conveyance or other transfer of title to the Excluded
Parcel; (ii) upon the initiation of construction of any improvements to the
Excluded Parcel, or (iii) upon sixty (60) days written notice from Seller to
Purchaser.
18.2 Indemnity and Waiver. Purchaser shall defend, indemnify Seller
and hold Seller, Seller's trustees, officers, tenants, agents, contractors and
employees and the
Excluded Parcel harmless from and against any and all losses, costs, damages,
claims or liabilities arising out of the use of the Driveway by Purchaser or
Purchaser's employees, guests, or invitees, or the inability of Purchaser or any
party claiming by or through Purchaser to use the Driveway upon expiration or
termination of the license described in Section 18.1. In addition, Purchaser, on
behalf of itself and its employees, guests, and invitees, waives any claim
related to the condition of the Driveway or the maintenance of the Driveway. The
provisions of this Section 18.2 shall survive the Closing.
19. Public Announcement. On the date of the mutual execution and
delivery of this Agreement, Seller may issue a public announcement of the
transaction between Seller and Purchaser contemplated in this Agreement. Seller
shall not identify any Proposed Assignee in such announcement. Purchaser shall
have the right to review and approve the content of the proposed public
announcement prior to such public announcement.
20. Miscellaneous.
20.1 Entire Agreement; Modification. This Agreement embodies the
entire agreement and understanding between Seller and Purchaser, and supersedes
any prior oral or written agreements, relating to this transaction. This
Agreement may not be amended, modified or supplemented except in a writing
executed by both Seller and Purchaser. No term of this Agreement shall be waived
unless done so in writing by the party benefited by such term.
20.2 Survival; No Merger. Unless specifically provided for herein,
the terms of this Agreement shall not survive or be enforceable after the
Closing and shall be merged with the deed given at closing.
20.3 Governing Law. This Agreement shall be construed under and
governed by the laws of the State or Commonwealth in which the Real Property is
located.
20.4 Severability. If any term of this Agreement or any application
thereof shall be invalid or unenforceable, the remainder of this Agreement and
any other application of such term shall not be affected thereby.
20.5 Construction. The rule of strict construction shall not apply to
this Agreement. This Agreement shall not be interpreted in favor of or against
either Seller or Purchaser merely because of their respective efforts in
preparing it.
20.6 Captions, Gender, Number and Language of Inclusion. The section
and section headings in this Agreement are for convenience of reference only and
shall not define, limit or prescribe the scope or intent of any term of this
Agreement. As used in this Agreement, the singular shall include the plural and
vice versa, the masculine, feminine and neuter adjectives shall include one
another, and the following words and phrases shall have the following meanings:
(i) "including" shall mean "including but not limited to," (ii) "terms" shall
mean "terms, provisions, duties, covenants, conditions, representations,
warranties and indemnities," (iii) "any of the Property" or "any of the Real
Property" shall mean "the Property or any part thereof or interest therein" or
"the Real Property or any part thereof or interest therein," as the case may be,
(iv) "rights" shall mean "rights, duties and obligations," (v) "liabilities"
shall mean "liabilities, obligations, damages, fines, penalties, claims,
demands, costs, charges, judgments and expenses, including reasonable attorneys'
fees," (vi) "incurred by" shall mean "imposed upon or suffered or incurred or
paid by or asserted against," (vii) "applicable law" shall mean "all applicable
Federal, state, county, municipal, local or other laws, statutes, codes,
ordinances, rules and regulations," (viii) "about the Property" or "about the
Real Property" shall mean "in, on, under or about the Property" or "in, on under
or about the Real Property," as the case may be, (ix) "operation" shall mean
"use, non-use, possession, occupancy, condition, operation, maintenance or
management," and (x) "this transaction" shall mean "the purchase, sale and
related transactions contemplated by this Agreement."
20.7 Binding Effect. This Agreement shall inure to the benefit of and
shall bind the respective heirs, executors, administrators, successors and
assigns of Seller and Purchaser.
20.8 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
20.9 Time Periods. The terms "day" or "days" used herein shall
include all days in a week, including Saturday, Sunday or legal holiday,
provided, however, if the final day of any time period or limitation set out in
any provision of this Agreement falls on a Saturday, Sunday or legal holiday
under the laws of the State of Texas or the federal government, then and in such
event the time of such period shall be extended to the next day which is not a
Saturday, Sunday or legal holiday.
20.10 Nonrefundable Consideration. Contemporaneously with the
execution and delivery of this Agreement, Purchaser has delivered to Seller, and
Seller hereby acknowledges the receipt of, the Option Consideration, which
amount the parties bargained for and agreed to as consideration for Purchaser's
exclusive right to inspect and purchase, or decline to purchase, in Purchaser's
sole discretion, the Property pursuant to this Agreement and for Seller's
execution, delivery and performance of this Agreement. The Option Consideration
is in addition to and independent of any other consideration or payment provided
in this Agreement, is nonrefundable, and it is fully earned and shall be
retained by Seller notwithstanding any other provision of this Agreement.
END OF SECTION
IN WITNESS WHEREOF, Seller and Purchaser have caused this Agreement to
be executed and delivered as of the date first above written.
SELLER:
FSI INTERNATIONAL, INC.,
a Minnesota corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President
PURCHASER:
FINISAR CORPORATION,
a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President, Chief Financial
Officer and Secretary