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Exhibit 10.3
AGREEMENT OF PURCHASE AND SALE
AND JOINT ESCROW INSTRUCTIONS
TO: Chicago Title Company Escrow No.: 013038051
▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇: ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Title Order No.: 13038051-UI3
Title Officer: ▇▇▇▇▇▇▇ ▇▇▇▇▇
THIS AGREEMENT OF PURCHASE AND SALE AND JOINT ESCROW INSTRUCTIONS
("Agreement") is made and entered into as of this 11th day of April, 2001, by
and between TC KEARNY VILLA, L.P., a Delaware limited partnership ("Buyer"), and
COHU, INC., a Delaware corporation ("Seller"), with respect to the following:
R E C I T A L S :
A. Seller desires to sell and convey to Buyer all of Seller's right,
title and interest in and to the following:
1. That certain real property located in the City of San Diego,
County of San Diego, State of California, located at 5755, 5775 and ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, consisting of approximately six (6) acres of land
(the "Land"), as described on Exhibit "A" attached hereto, together with
the office buildings located on the Land, containing in the aggregate
approximately 156,000 square feet of leasable space, associated parking
areas, and all other transferable improvements, if any, to the extent
such rights are owned and assignable by Seller, located on the Land (the
"Improvements");
2. All transferable rights, privileges, easements and
appurtenances benefiting the Land and/or the Improvements, including,
without limitation, all mineral and water rights and all easements,
rights-of-way and other appurtenances used or connected with the
beneficial use or enjoyment of the Land and/or the Improvements, if any,
to the extent such rights are owned and assignable by Seller (the Land,
the Improvements and all such rights, privileges, easements and
appurtenances are sometimes collectively hereinafter referred to as the
"Real Property");
3. All transferable rights in personal property, equipment,
supplies and fixtures (collectively, the "Personal Property") owned by
Seller and used or useful in the operation of the Real Property (to the
extent such rights are owned and transferable by Seller) excluding those
items of personal property which Buyer and Seller agree may be removed
from the Property as provided in Paragraph 7(a)(vi) below; and
4. All of Seller's interest in any intangible property used in
connection with the Real Property and Personal Property, including,
without limitation, all contract rights, warranties, guaranties,
licenses, permits, entitlements, governmental approvals and certificates
of occupancy which benefit the Real Property and/or the Personal
Property (the "Intangible Personal Property"), to the extent such rights
are assignable. Notwithstanding the foregoing, Buyer shall not be
assigned or have the right to use the name "Cohu" or "Delta Design". The
Real Property, the Personal Property and the Intangible Personal
Property are sometimes collectively hereinafter referred to as the
"Property."
B. Seller desires to sell the Property to Buyer and Buyer desires to
purchase the Property from Seller upon the terms and conditions hereinafter set
forth.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Seller and Buyer agree that the
terms and conditions of this Agreement and the instructions to Chicago Title
Company ("Escrow Holder") with regard to the escrow ("Escrow") created pursuant
hereto are as follows:
1. Purchase and Sale. Seller hereby agrees to sell the Property
to Buyer, and Buyer hereby
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agrees to purchase the Property from Seller, upon the terms and
conditions herein set forth.
2. Purchase Price. The purchase price ("Purchase Price") for the
Property shall be Twelve Million Five Hundred Thousand and No/100
Dollars ($12,500,000.00).
3. Payment of Purchase Price. The Purchase Price for the
Property shall be payable by Buyer as follows:
(a) Initial Deposit. Within two (2) business days after
the "Opening of Escrow" (as defined in Paragraph 4(a) hereof),
Buyer shall deposit or cause to be deposited with Escrow Holder
in cash, by a certified or bank cashier's check made payable to
Escrow Holder or by a confirmed wire transfer of funds
(hereinafter referred to as "Immediately Available Funds"), the
sum of One Hundred Thousand and 00/100 Dollars ($100,000.00)
(the "Initial Deposit"). Upon Escrow Holder's receipt of the
Initial Deposit, Escrow Holder shall immediately invest it in an
interest bearing account of a federally insured bank or savings
and loan association acceptable to Buyer. The Initial Deposit
and all interest thereon shall be fully refundable to Buyer if
Buyer does not satisfy or waive the contingencies of Paragraph
7(a)(i), (ii), (iii) and (iv) hereof on or before the expiration
of the "Contingency Period" (as defined in Paragraph 7(a)(ii)
hereof).
(b) Additional Deposit. Upon the expiration of the
Contingency Period, provided Buyer has not earlier terminated
this Agreement in accordance with any of its rights to do so
contained herein, Buyer shall deposit or cause to be deposited
with Escrow Holder in Immediately Available Funds, the
additional sum of Fifty Thousand and 00/100 Dollars ($50,000.00)
(the "Additional Deposit"). Upon Escrow Holder's receipt of the
Additional Deposit, Escrow Holder shall immediately invest it in
the interest bearing account described in Paragraph 3(a) above.
The Initial Deposit and the Additional Deposit, or so much
thereof as shall have then been deposited into Escrow, together
with all interest accrued thereon, shall collectively
hereinafter be referred to as the "Deposit." The Deposit shall
be nonrefundable to Buyer in the event this Agreement and the
Escrow is thereafter cancelled by reason of a default by Buyer
or a breach by Buyer of any covenant, representation or warranty
contained herein, as provided in and subject to the provisions
of Paragraph 16(a) hereof. The Deposit and all interest which
shall accrue thereon shall be applied to the payment of the
Purchase Price upon the Close of Escrow, or refunded to Buyer in
the event this Agreement and the Escrow is cancelled for any
reason other than a default by Buyer or a breach by Buyer of any
covenant, representation or warranty hereunder, in which case
the Deposit, together with any interest accrued thereon, shall
be delivered to Seller pursuant to Paragraph 16(a) below.
(c) Closing Funds. Prior to the Close of Escrow, as
defined in Paragraph 4(b) below, Buyer shall deposit or cause to
be deposited with Escrow Holder, in Immediately Available Funds,
the balance of the Purchase Price (i.e., after deducting the
above Deposit), and plus or minus Buyer's share of closing
costs, prorations and charges payable pursuant to this
Agreement.
4. Escrow
(a) Opening of Escrow. For purposes of this Agreement,
the Escrow shall be deemed opened on the date Escrow Holder
shall have received a fully executed original or originally
executed counterparts of this Agreement from both Buyer and
Seller (such date being referred to hereinafter as the "Opening
of Escrow"). Escrow Holder shall notify Buyer and Seller in
writing of the date Escrow is opened. Buyer and Seller agree to
execute, deliver and be bound by any reasonable or customary
supplemental escrow instructions of Escrow Holder or other
instruments as may reasonably be required by Escrow Holder in
order to consummate the transaction contemplated by this
Agreement. Any such supplemental instructions shall not conflict
with, amend or supersede any portions of this Agreement. If
there is any conflict or inconsistency between such supplemental
instructions and this Agreement, this Agreement shall control.
(b) Close of Escrow. For purposes of this Agreement, the
"Close of Escrow" shall be the date that the grant deed, the
form of which is attached hereto as Exhibit "B" (the "Grant
Deed"), conveying the Real Property to Buyer, is recorded in the
Official Records of San Diego County, California (the "Official
Records"). Unless extended in writing by Buyer and Seller, the
Close of Escrow shall occur on or before the date which is
twelve (12) days after expiration of the
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Contingency Period (the "Closing Date"). Seller shall deliver
possession of the Property to Buyer upon the Close of Escrow,
subject only to the "Approved Condition of Title" (as defined in
Paragraph 5 below) and the "Short Term Lease" (as defined in
Paragraph 7(a)(vii) below).
5. Condition of Title. It shall be a condition to the Close of
Escrow for Buyer's benefit that title to the Real Property be conveyed
to Buyer by Seller by the Grant Deed subject only to the following
approved condition of title ("Approved Condition of Title"):
(a) a lien to secure payment of real estate taxes, not
delinquent;
(b) the lien of supplemental taxes assessed pursuant to
Chapter 3.5 commencing with Section 75 of the California Revenue
and Taxation Code ("Code"), but only to the extent that such
supplemental taxes are attributable to the transaction
contemplated by this Agreement. Seller shall be responsible for,
and shall indemnify, protect, defend (with counsel chosen by
Buyer) and hold harmless Buyer and the Real Property from and
against any and all supplemental taxes assessed pursuant to the
Code, to the extent that such taxes are attributable to any
period occurring prior to the Close of Escrow;
(c) matters affecting the Real Property created by or
with the written consent of Buyer; and
(d) exceptions which are disclosed by the Report
described in Paragraph 7(a)(i) hereof and which are approved or
deemed approved by Buyer in accordance with such Paragraph
7(a)(i).
Seller covenants and agrees that during the term of the Escrow,
it will not cause or permit title to the Real Property to differ
from the Approved Condition of Title described in this Paragraph
5. Any liens, encumbrances, encroachments, easements,
restrictions, conditions, covenants, rights, rights-of-way or
other matters affecting the Approved Condition of Title which
may appear of record or be revealed after the date of the Report
described in Paragraph 7(a)(i) below shall also be subject to
Buyer's approval and must be eliminated or ameliorated by Seller
to Buyer's sole, absolute and subjective satisfaction prior to
the Close of Escrow as a condition to the Close of Escrow for
Buyer's benefit.
6. Title Policy. Title shall be evidenced by the willingness of
the "Title Company" (as defined in Paragraph 7(a)(i) hereof) to issue
its ALTA Extended Coverage (Form B-1970) Owner's Policy of Title
Insurance ("Title Policy") in the amount of the Purchase Price, showing
title to the Property vested in Buyer or its title nominee as provided
in Paragraph 20 hereof and subject only to the Approved Condition of
Title.
7. Conditions to Close of Escrow
(a) Conditions to Buyer's Obligations. The Close of
Escrow and Buyer's obligation to consummate the transaction
contemplated by this Agreement are subject to the satisfaction
of the following conditions (or Buyer's written waiver thereof,
it being agreed that Buyer may waive in writing any or all of
such conditions) for Buyer's benefit on or prior to the dates
designated below for the satisfaction of such conditions. In the
event Buyer terminates this Agreement and the Escrow due to the
nonsatisfaction of any such conditions within the timeframe
prescribed herein, then Buyer shall be entitled to the immediate
return of the Deposit and all interest accrued thereon:
(i) Title. Buyer shall have approved the legal
description of the Land and any matters of title as
disclosed by the following documents (collectively, the
"Title Documents") prepared at Seller's sole cost and
expense and to be delivered to Buyer at Seller's sole
cost and expense: (A) a standard preliminary title
report dated on or after the date of this Agreement
issued by Chicago Title Company (the "Title Company")
with respect to the Land, as such report may be amended
or supplemented from time to time to reflect additional
title matters or survey exceptions (the "Report"); (B)
legible copies of all documents, whether recorded or
unrecorded, referred to in the Report; and (C) a
color-coded map plotting all easements disclosed by the
Report. Seller shall cause the Title
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Documents to be delivered to Buyer concurrently with the
Opening of Escrow. Buyer may also obtain, at Buyer's
sole cost and expense, an ALTA as-built survey of the
Land (the "Survey").
Buyer shall have until the expiration of the Contingency
Period to give Seller and Escrow Holder written notice
("Buyer's Title Notice") of Buyer's disapproval or
conditional approval of the legal description or any
matters shown in or disclosed by the Title Documents and
the Survey.
The failure of Buyer to give Buyer's Title Notice on or
before the Contingency Period shall be deemed to
constitute Buyer's approval of the respective matters
relating thereto. If Buyer disapproves or conditionally
approves any of the foregoing matters, Seller may,
within five (5) days after its receipt of Buyer's Title
Notice, elect to eliminate or ameliorate to Buyer's
sole, absolute and subjective satisfaction such
disapproved or conditionally approved matters. Within
such five (5) day period, Seller shall give Buyer
written notice (which shall hereinafter be referred to
as "Seller's Title Notice") of those disapproved or
conditionally approved matters, if any, which Seller
covenants and agrees to either eliminate from the Title
Policy as exceptions to title to the Property or to
ameliorate to Buyer's sole, absolute and subjective
satisfaction by the Closing Date as a condition to the
Close of Escrow for Buyer's benefit. If Seller does not
elect in Seller's Title Notice to eliminate or
ameliorate any disapproved or conditionally approved
matters as provided above, or Buyer disapproves, in
Buyer's sole, absolute and subjective discretion,
Seller's Title Notice, then Buyer shall have the right,
by a writing delivered to Seller and Escrow Holder prior
to the Closing Date, to: (A) waive its prior
disapproval, in which event said disapproved matter(s)
shall be deemed approved, or (B) terminate this
Agreement and the Escrow created pursuant hereto, in
which event the Deposit and all interest accrued thereon
shall be immediately returned to Buyer, and this
Agreement, the Escrow and the rights and obligations of
the parties hereunder shall terminate. Notwithstanding
anything to the contrary contained in this Agreement,
Buyer hereby disapproves all liens evidencing monetary
encumbrances (other than liens for non-delinquent real
property taxes) and Seller agrees to cause all such
liens to be eliminated at Seller's sole cost and expense
(including all prepayment penalties and charges) prior
to or concurrently with the Close of Escrow.
(ii) Review and Approval of Documents and
Materials. Seller shall make available to Buyer
concurrently within the Opening of Escrow the documents
and materials respecting the Property set forth below
(the "Documents and Materials"). From the Opening of
Escrow until 5 p.m. Pacific Time on April 6, 2001 (the
"Contingency Period"), Buyer shall have the right to
review and approve or disapprove, in its sole, absolute
and subjective discretion, any or all of the Documents
and Materials. The failure of Buyer to approve of the
Documents and Materials on or before the expiration of
the Contingency Period shall be deemed to constitute
Buyer's disapproval thereof, in which event this
Agreement shall terminate and the Deposit shall be
returned to Buyer.
(A) Permits. Any and all governmental
approvals (such as approved building permits,
building inspection approvals and certificates
of occupancy) and/or authorizations pertaining
to the Property to the extent in the possession
or control of Seller;
(B) Improvement Plans. Complete
"as-built" plans, drawings and specifications
for the Improvements to the extent in the
possession or control of Seller;
(C) Agreements. Legible copies of any
and all insurance policies, broker listing
agreements, construction contracts, management
contracts, maintenance contracts, service
contracts, reciprocal easement agreements, if
any,
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utility will-serve letters and any other
contracts or agreements affecting or relating to
the ownership, operation, maintenance,
construction or development of the Property,
including, without limitation, copies of all
warranties with respect thereto (collectively,
the "Contracts");
(D) Personal Property List. A detailed
list ("Personal Property Schedule") of all
personal property, including, without
limitation, any and all fixtures, equipment and
tools owned by Seller and used on or in
connection with the Property, which are to be
conveyed to Buyer at Close of Escrow pursuant to
the ▇▇▇▇ of Sale described in Paragraph 8(d)
below, together with a copy of all warranties
and guaranties applicable thereto. Said list
shall reflect any and all security interests in
said personal property, and Seller shall cause,
at Seller's sole cost and expense, said personal
property to be released from any such security
interests at the Close of Escrow;
(E) Tax Statements. Legible copies of
the most recently issued bills for all real
property taxes and assessments and all personal
property taxes payable with respect to the
Property, or any portion thereof;
(F) Schedule of Expenses. A schedule
reflecting any and all expenses for the
ownership, operation, maintenance and repair of
the Property for the calendar years of 1998 and
1999 and for the calendar year 2000 up to and
including the month of October, 2000, which
schedule shall include, without limitation, the
following:
(1) annual insurance premiums for
all forms of coverage;
(2) real property taxes and
assessments;
(3) utility charges, management
fees, maintenance and repair costs;
(4) any and all other costs and
expenses incurred in connection with the
ownership, operation, maintenance and
repair of the Property; and
(5) any material extraordinary or
periodic expenses, repairs or other
improvements which Seller anticipates
will be incurred or will become
necessary within the twelve (12) months
following the Closing Date in connection
with the ownership, operation,
maintenance and repair of the Property;
(G) Soils and Engineering Reports. All
existing and available soils, environmental and
building reports and engineering data pertaining
to the Real Property or any portion thereof and
any and all architectural studies, grading
plans, topographical maps and similar data
respecting the Real Property which are in the
possession or control of Seller;
(H) Miscellaneous. Such other documents
in Seller's possession or control which relate
to the Property which Buyer shall reasonably
request.
(iii) Inspections and Studies. On or before the
expiration of the Contingency Period, Buyer shall have
the right to approve or disapprove, in Buyer's sole,
absolute and subjective discretion, the results of any
and all inspections, investigations, tests and studies,
including, without limitation, investigations with
regard to zoning, building codes and other governmental
regulations, architectural inspections, engineering
tests, economic feasibility studies and soils, seismic
and geologic reports, as well as toxic and environmental
reports with respect to the Property, inspections of all
or any portion of the Improvements (including, without
limitation, structural, mechanical and electrical
systems, roofs, pavement, landscaping and public
utilities), and any other physical inspections and/or
investigations as Buyer may elect to make or obtain. The
failure of Buyer to approve said results on or prior to
the expiration of the Contingency Period shall be deemed
to constitute Buyer's disapproval thereof, in which
event this Agreement shall
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terminate and the Deposit shall be returned to Buyer.
(A) Access. During the term of this
Escrow, Buyer shall be afforded access by Seller
to review Seller's books and records relating to
the Property, and Buyer, its agents,
consultants, contractors and subcontractors
shall have the right to enter upon the Property
to conduct or make any and all inspections and
tests (including, without limitation,
environmental assessments of the Real Property)
as may be necessary or desirable in Buyer's
sole, absolute and subjective judgment and
discretion. Notwithstanding the foregoing, Buyer
shall provide Seller with at least twenty-four
(24) hours prior written or verbal notice before
entering the Property for the purpose of making
examinations, tests, analyses, investigations,
surveys, inquiries and other inspections in
connection with Buyer's efforts to bring about
satisfaction of the conditions precedent set
forth in Paragraph 7. Such inspections shall
only be done during normal business hours. Buyer
shall not have the right to perform borings,
samplings, groundwater tests and other intrusive
physical environmental audit procedures
(collectively "Subsurface Testing") on the
Property without Buyer first obtaining the prior
written approval of Seller, which approval shall
not be unreasonably withheld provided that Buyer
complies with the terms and conditions of this
Paragraph. Any Subsurface Testing shall be
conducted by a licensed, insured environmental
consulting firm reasonably acceptable to Seller.
If Buyer elects to perform such Subsurface
Testing, Buyer shall present to Seller for its
approval a proposed scope of such work at least
five (5) days before such proposed Subsurface
Testing and Seller may elect to require Seller's
environmental consultant to be present during
the performance of any Subsurface Testing. All
of such examinations, tests, analyses,
investigations, surveys, inquiries and other
inspections (including Subsurface Testing) to be
performed by Buyer under this Paragraph shall be
performed by Buyer at Buyer's sole cost and
expense.
(B) Confidentiality. Buyer, and its
agents, employees, contractors and
representatives, shall not disclose to any third
party, including any governmental or
quasi-governmental authority, the results of any
examinations, tests, analyses, investigations,
surveys, inquiries or other inspections
conducted by, or at the request of, Buyer on or
regarding the Property, except: (i) to the
extent that Buyer is required to do so pursuant
to applicable law, provided that, prior to such
disclosure, Buyer shall notify Seller of Buyer's
belief that Buyer is required to disclose such
information; and (ii) to those of Buyer's
consultants, partners, lenders, accountants, and
attorneys who require such information in order
to perform the services for which they were
retained; provided that, prior to such
disclosure, Buyer shall direct each such
consultant not to disclose any such information
to any other person or entity.
(C) Indemnity. Buyer shall indemnify,
defend, protect and hold Seller harmless from
and against any and all loss, cost, damage,
injury, claim, liability or expenses (including
attorneys' fees) arising out of claims of injury
to or death of persons, damage to property, or
claims of lien for work or labor performed,
materials or supplies furnished as a result of
the exercise of Buyer's (or its agents',
contractors', employees' or authorized
representatives') right of entry pursuant to
this Paragraph or the performance of Buyer's due
diligence under this Agreement; provided that
Buyer shall not be liable for any losses or
liabilities resulting from Buyer's
investigations uncovering the existence of any
environmental contamination or any other defects
or conditions which adversely impact the
Property. In addition to the foregoing, Buyer
agrees to restore the Property to the condition
existing prior to Buyer's investigation of the
Property.
(D) Buyer's Work Product. Upon
termination of this Agreement for any reason
whatsoever, Buyer shall promptly deliver to
Seller all reports,
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plans, specifications, studies, drawings,
photographs, models, surveys, test results and
other documents or work product of Buyer which
are not subject to any confidentiality agreement
(it being agreed that Buyer shall use good faith
efforts to have its reports prepared on a
non-confidential basis) or do not constitute
financial projections of Buyer ("Work Product"),
or its consultants, agents, employees and
independent contractors, either received by
Buyer from Seller or any third person, or
prepared by or for Buyer, relating to the
Property or in any way arising out of this
Agreement. Such Work Product shall be delivered
to Seller on an "as-is" basis, without any
representation or warranty.
(E) Insurance. Before any entry onto the
Property under this Paragraph, Buyer shall
procure and furnish to Seller a certificate of
insurance showing that Buyer has obtained a
policy of commercial liability insurance with
combined single limit coverage of One Million
Dollars ($1,000,000.00), naming Seller as an
additional insured, which shall be issued by a
responsible insurer licensed to conduct
insurance business in California. Such insurance
policy shall expressly provide that such
insurance may not be canceled or reduced in
scope or coverage without at least thirty (30)
days' prior written notice to Seller.
(iv) Representations, Warranties and Covenants
of Seller. Seller shall have duly performed each and
every covenant and agreement to be performed by Seller
pursuant to this Agreement and Seller's representations,
warranties and covenants set forth in Paragraph 14
hereof shall be true and correct as of the Closing Date.
(v) No Material Changes. At the Closing Date,
there shall have been no material adverse changes in the
physical or environmental condition of the Property from
and after the Opening of Escrow.
(vi) Seller's Personal Property. As a condition,
for Buyer's and Seller's benefit, prior to the
expiration of the Contingency Period, Buyer and Seller
shall agree upon a list of personal property that Seller
shall remove from the Property and a list of all items
of repair to the Property that will be necessitated as a
result of the removal of Seller's personal property from
the Property. To effectuate the foregoing, Seller agrees
to provide Buyer with the foregoing lists within five
(5) business days following the Opening of Escrow.
Thereafter, the parties shall mutually meet and confer
to negotiate the final lists. If the lists are not
mutually approved by the expiration of the Contingency
Period, either Buyer or Seller shall have the right to
terminate this Agreement by delivering written notice to
the other party by 5:00 p.m. on the date the Contingency
Period expires.
(vii) Short Term Lease. Prior to the expiration
of the Contingency Period, Buyer and Seller shall agree
upon the terms and form of short term lease ("Short Term
Lease") for Seller to occupy the Property following the
Close of Escrow. The terms and conditions of the Short
Term Lease shall include a monthly base rental rate of
One Hundred Thirty Two Thousand Six Hundred and 00/100
Dollars, shall be "triple net", with Seller to pay for
all costs and expenses in connection with the Property
during the term of such lease (including, without
limitation, taxes, insurance and operating expenses),
shall be for a term of three (3) months (or as otherwise
agreed to by the parties), and shall otherwise be upon
the business and other terms agreed to by the parties
prior to the expiration of the Contingency Period.
(viii) Deposits. Seller shall have made all
deposits with Escrow Holder required of Seller pursuant
to the provisions of Paragraph 8 of this Agreement.
(ix) Financing. Buyer shall have obtained
non-recourse financing from a lender acceptable to Buyer
in the amount of seventy-five percent (75%) of the
Purchase Price, upon the following terms and conditions:
(A) a maturity date at least six (6) months after the
date of the closing of the loan, with an option to renew
for up to an additional one-hundred eighty (180) days;
(B) interest only payments commencing on the first day
of the month following the date of the closing of the
loan, and continuing on a monthly basis; (C) an interest
rate of eight percent (8%) per annum; and (d) other
terms
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satisfactory to Buyer in its reasonable discretion.
(b) Conditions to Seller's Obligations. For the benefit
of Seller, the Close of Escrow shall be conditioned upon the
timely performance by Buyer of all of the obligations required
by the terms of this Agreement to be performed by Buyer (or
Seller's waiver thereof, it being agreed that Seller may waive
such condition), including without limitation, the following:
Accuracy of Representations. All of the representations
and warranties of Buyer contained in this Agreement shall have
been true and correct in all material respects when made, and
shall be true and correct in all material respects as of the
Close of Escrow with the same effect as if made at the Close of
Escrow.
Performance. Buyer shall have performed, observed and
complied with all material covenants, agreements and conditions
required by this Agreement to be performed, observed and
complied with on its part prior to or as of the Close of Escrow
hereunder.
Documents and Deliveries. All instruments and documents
required on Buyer's part to effectuate the Close of Escrow and
the transactions contemplated hereby shall be delivered to
Seller or the Escrow Holder, as required hereby, shall be in
form and substance consistent with the requirements herein, and
all funds to be deposited into the Escrow pursuant hereto shall
have been timely deposited by the responsible party(ies).
Short Term Lease. Upon the Close of Escrow, Buyer shall
have executed the Short Term Lease in the form agreed to by
Buyer and Seller prior to the expiration date of the Contingency
Period.
Personal Property List. Prior to the expiration of the
Contingency Period, Buyer and Seller shall have agreed to the
lists described in Paragraph 7(a)(vi) above.
Failure of Conditions. If any conditions precedent to
Seller's obligations as set forth in this Paragraph 7(b) are not
timely satisfied or waived in writing by Seller at or prior to
the times prescribed therein, including, but not limited to,
timely delivery of the Additional Deposit into the Escrow by
Buyer, then Seller shall have the option, exercisable by written
notice delivered to Buyer, of declining to proceed with the
Close of Escrow. In such event, except as expressly set forth
herein, all rights, obligations and liabilities of Buyer and
Seller under this Agreement shall terminate (except for any
obligations or liabilities under this Agreement which
specifically set forth that such obligations or liabilities
shall survive the termination of this Agreement or for any claim
that either party may have against the other party for a default
under this Agreement that caused the condition to be unfilled)
and (a) all documentation delivered to Buyer pursuant hereto
shall be returned to Seller, (b) all third party reports
obtained by Buyer with respect to the Property shall be
delivered to Seller without representation or warranty and at no
cost to Seller, if requested by Seller, and (c) the Deposit
shall be retained by Seller.
8. Deposits by Seller. At least one (1) business day prior to
the Close of Escrow, Seller shall deposit or cause to be deposited with Escrow
Holder the following documents and instruments:
(a) Grant Deed. The Grant Deed conveying the Real
Property to Buyer or its title nominee, as provided in Paragraph
21 hereof, duly executed as appropriate by Seller, acknowledged
and in recordable form in the form attached hereto as Exhibit
"B";
(b) Contracts. Any and all original Contracts and all
warranties related thereto, if any, approved by Buyer in
accordance with Paragraph 7(a) hereof;
(c) Assignment of Contracts and Assumption Agreement.
Assignment of Contracts and Assumption Agreement ("Assignment of
Contracts"), duly executed by Seller, in the form attached
hereto as Exhibit "C", pursuant to which Seller shall assign to
Buyer all of Seller's right, title and interest in, under and to
the Contracts which Buyer approved and elected to assume during
the Contingency Period and any and all warranties relative
thereto;
(d) ▇▇▇▇ of Sale. ▇▇▇▇ of Sale ("▇▇▇▇ of Sale"), duly
executed by Seller, in the form attached hereto as Exhibit "D",
conveying all of Seller's right, title and interest in and to
the Personal Property;
(e) Transferor's Certification of Non-Foreign Status.
Transferor's Certification of Non-Foreign Status, for both
federal and state, in the form attached hereto as Exhibit "E",
duly executed by Seller ("Seller's Certificate");
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(f) General Assignment. General Assignment ("General
Assignment"), duly executed by Seller, in the form attached
herein as Exhibit "F", conveying all of Seller's right, title
and interest in and to the Intangible Personal Property;
(g) Short Term Lease. Counterpart of the Short Term
Lease, duly executed by Seller; and
(h) Other Instruments. Such other instruments and
documents as are described in Paragraph 23(b) herein.
9. Deposits by Buyer. Buyer shall deposit or cause to be
deposited with Escrow Holder in Immediately Available Funds, the funds which are
to be applied towards the payment of the Purchase Price in the amounts and at
the times designated in Paragraph 3 above (as reduced by the prorations and
credits hereinafter provided). In addition, Buyer shall deposit with Escrow
Holder prior to the Close of Escrow the following documents and instruments:
(a) Assignment of Contracts. Counterpart of the
Assignment of Contracts, duly executed by Buyer;
(b) General Assignment. Counterpart of the General
Assignment, duly executed by Buyer;
(c) Short Term Lease. Counterpart of the Short Term
Lease, duly executed by Buyer; and
(d) Other Instruments. Such other instruments and
documents as are described in Paragraph 23(b) herein.
10. Costs and Expenses. The cost and expense of the standard
CLTA portion of the Title Policy, covering the Purchase Price for the Property,
shall be paid by Seller, and the cost and expense of any additional costs for
extended coverages or endorsements, if any, shall be paid by Buyer. The escrow
fee of Escrow Holder shall be shared equally by Seller and Buyer. Seller shall
pay all documentary transfer taxes payable in connection with the recordation of
the Grant Deed. Buyer and Seller shall pay, respectively, the Escrow Holder's
customary charges to buyers and sellers for document drafting, recording and
miscellaneous charges. If, as a result of no fault of Buyer or Seller, Escrow
fails to close, Buyer and Seller shall share equally all of Escrow Holder's fees
and charges.
11. Prorations. The following prorations between Seller and
Buyer shall be made by Escrow Holder computed as of the Close of Escrow:
(a) Taxes. Real and personal property taxes and
assessments on the Property shall be prorated on the basis that
Seller is responsible for (i) all such taxes for the fiscal year
of the applicable taxing authorities occurring prior to the
"Current Tax Period" (as hereinafter defined) and (ii) that
portion of such taxes for the Current Tax Period determined on
the basis of the number of days which have elapsed from the
first day of the Current Tax Period to the Close of Escrow,
inclusive, whether or not the same shall be payable prior to the
Close of Escrow. The phrase "Current Tax Period" refers to the
fiscal year of the applicable taxing authority in which the
Close of Escrow occurs. In the event that as of the Close of
Escrow the actual tax bills for the year or years in question
are not available and the amount of taxes to be prorated as
aforesaid cannot be ascertained, then rates and assessed
valuation of the previous year, with known changes, shall be
used, and when the actual amount of taxes and assessments for
the year or years in question shall be determinable, then such
taxes and assessments will be reprorated between the parties to
reflect the actual amount of such taxes and assessments.
(b) Utilities. Gas, water, electricity, heat, fuel,
sewer and other utilities and the operating expenses relating to
the Property shall be prorated as of the Close of Escrow. If the
parties are unable to obtain final meter readings as of the
Close of Escrow, such expenses shall be estimated as of the
Close of Escrow on the basis of the prior operating history of
the Property.
At least one (1) business day prior to the Close of Escrow, the
parties shall agree upon all of the prorations to be made and
submit a statement to Escrow Holder setting forth the same. In
the event that any prorations, apportionments or computations
made under this Paragraph 11 shall require final adjustment,
then the parties shall make the appropriate adjustments promptly
when
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accurate information becomes available and either party hereto
shall be entitled to an adjustment to correct the same. Any
corrected adjustment or proration shall be paid in cash to the
party entitled thereto.
12. Disbursements and Other Actions by Escrow Holder. Upon the
Close of Escrow, Escrow Holder shall promptly undertake all of the following in
the following manner:
(a) Prorations. Prorate all matters referenced in
Paragraph 11 based upon the statement delivered into Escrow
signed by the parties;
(b) Recording. Cause the Grant Deed and any other
documents which the parties hereto may mutually direct, to be
recorded in the Official Records in the order directed by the
parties;
(c) Funds. Disburse from funds deposited by Buyer with
Escrow Holder towards payment of all items chargeable to the
account of Buyer pursuant hereto in payment of such costs and
disburse the balance of such funds, if any, to Buyer;
(d) Documents to Seller. Deliver to Seller the Purchase
Price in Immediately Available Funds, counterparts of the
Assignment of Contracts, the General Assignment and the Short
Term Lease executed by Buyer;
(e) Documents to Buyer. Deliver to Buyer originals of
the Contracts, the ▇▇▇▇ of Sale, the Seller's Certificate,
counterparts of the Assignment of Contracts, the General
Assignment and the Short Term Lease executed by Seller, and any
other documents which are to be delivered to Buyer hereunder,
and, when issued, the Title Policy; and
(f) Title Policy. Direct the Title Company to issue the
Title Policy to Buyer.
13. Covenants of Seller. Seller hereby covenants with Buyer, as
follows:
(a) From and after the date of this Agreement, Seller
shall not, without the prior written consent of Buyer, which
consent Buyer may withhold in its sole, absolute and subjective
discretion, enter into any maintenance contract, service
contract, listing agreement or any other contract affecting or
relating to the Property which will survive the Close of Escrow
or will otherwise affect the use, operation or enjoyment of the
Property after the Close of Escrow;
(b) All insurance policies carried by Seller with
respect to the Property and in effect as of the date of this
Agreement shall remain continuously in full force and effect
from the date of this Agreement through the day upon which the
Close of Escrow occurs;
(c) From and after the date of this Agreement, Seller
shall not amend, modify, alter or supplement any Contract which
is approved by Buyer pursuant to Paragraph 7(a) hereof. Further,
Seller hereby covenants and agrees that it shall terminate on or
before the Close of Escrow any Contract which Buyer disapproves
in accordance with Paragraph 7(a) hereof;
(d) From the date of this Agreement until the Close of
Escrow, Seller hereby covenants and agrees that it shall (i)
operate and manage the Property in the same manner Seller
currently maintains the Property, (ii) maintain all present
services and amenities, (iii) maintain the Property in good
condition, repair and working order, (iv) keep on hand
sufficient materials, supplies, equipment and other personal
property for the efficient operation and management of the
Property in a manner customary for similarly situated
properties, (v) perform when due, and otherwise comply with, all
of Seller's obligations and duties under the Contracts approved
by Buyer in accordance with Paragraph 7(a) hereof, and (vi)
maintain the Property in accordance with all applicable laws,
ordinances, rules and regulations affecting the Property. Except
for the personal property to be retained by Seller as provided
in Paragraph 7(a)(vi) above, none of the Personal Property shall
be removed from the Real Property, unless replaced by
unencumbered personal property of equal or greater utility and
value. Except for the personal property to be retained by Seller
as provided in Paragraph 7(a)(vi) above, all Personal Property
and Intangible Personal Property shall be conveyed to Buyer by
Seller at the Close of Escrow free from any liens, encumbrances
or security interests of any kind or nature;
(e) After the date of this Agreement, Seller shall not
alienate, lien, encumber or otherwise transfer all or any
portion of the Property (other than to Buyer at the Close of
Escrow);
(f) From and after the date of this Agreement, Seller
shall not enter into any lease
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without the prior written consent of Buyer, which consent shall
not be unreasonably withheld.
(g) Upon Buyer's request for a period of one (1) year
after the Close of Escrow, Seller shall make all of Seller's
records with respect to the Property available to Buyer for
inspection, copying and audit by Buyer's designated employees,
accountants or consultants; and
(h) Seller shall promptly notify Buyer of any change in
any condition with respect to the Property or of any event or
circumstance which makes any representation or warranty of
Seller to Buyer under this Agreement materially untrue or
misleading, and of any covenant of Seller under this Agreement
which Seller will be incapable of performing or less likely to
perform.
14. Seller's Representations and Warranties. In consideration of
Buyer entering into this Agreement and as an inducement to Buyer to purchase the
Property, Seller makes the following covenants, representations and warranties,
each of which is material and is being relied upon by Buyer (and the continued
truth and accuracy of which shall constitute a condition precedent to Buyer's
obligations hereunder):
(a) Representations Regarding Seller's Authority
(i) Seller has the legal power, right and
authority to enter into this Agreement and the
instruments referenced herein, and to consummate the
transaction contemplated hereby;
(ii) All requisite action (corporate, trust,
partnership or otherwise) has been taken by Seller in
connection with the entering into this Agreement, the
instruments referenced herein, and the consummation of
the transaction contemplated hereby. No consent of any
partner, shareholder, trustee, trustor, beneficiary,
creditor, investor, judicial or administrative body,
governmental authority or other party is required;
(iii) The individuals executing this Agreement
and the instruments referenced herein on behalf of
Seller and the partners of Seller, if any, have the
legal power, right, and actual authority to bind Seller
to the terms and conditions hereof and thereof;
(iv) This Agreement and all documents required
hereby to be executed by Seller are and shall be valid,
legally binding obligations of and enforceable against
Seller in accordance with their terms; and
(v) Neither the execution and delivery of this
Agreement and the documents and instruments referenced
herein, nor the incurrence of the obligations set forth
herein, nor the consummation of the transaction
contemplated herein, nor compliance with the terms of
this Agreement and the documents and instruments
referenced herein conflict with or result in the
material breach of any terms, conditions or provisions
of, or constitute a default under, any bond, note, or
other evidence of indebtedness or any contract,
indenture, mortgage, deed of trust, loan, partnership
agreement, lease or other agreement or instrument to
which Seller is a party or affecting the Property;
(b) Threatened Actions. To Seller's actual knowledge,
there are, and at the Close of Escrow there will be, no pending
actions, suits, arbitrations, claims or proceedings, at law, in
equity or otherwise, affecting, or which may affect, all or any
portion of the Property or in which Seller is or will be a party
by reason of Seller's ownership of the Property, including, but
not limited to, judicial, municipal or administrative
proceedings in eminent domain, collection actions, alleged
building code violations, health and safety violations, federal,
state or local agency actions regarding environmental matters,
federal environmental protection agency or zoning violations,
personal injuries or property damages alleged to have occurred
at the Property or by reason of the condition or use of or
construction on the Property. Seller is not aware of the
existence of any threatened or contemplated actions, claims or
proceedings or of the existence of any facts which might give
rise to any such actions, claims or proceedings;
(c) Compliance with Law. To Seller's actual knowledge,
all applicable laws, ordinances, rules, requirements,
regulations, building codes and environmental rules of any
governmental agency, body or subdivision thereof bearing on the
Property and the construction of the Improvements have been
complied with;
(d) Agreements. To Seller's actual knowledge, there are
no agreements (whether oral or written), affecting or relating
to the right of any party with respect to the possession of the
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Property, or any portion thereof, which are obligations which
will affect the Property or any portion thereof subsequent to
the recordation of the Grant Deed except as set forth in the
Contracts provided to and approved by Buyer in accordance with
Paragraph 7(a)(ii) hereof, or as may be reflected in the
Approved Condition of Title;
(e) Documents True. To Seller's actual knowledge, all
documents delivered by Seller to Buyer pursuant to this
Agreement are true, accurate, correct and complete copies of
originals and any and all information prepared by Seller or at
Seller's direction and supplied to Buyer by Seller in accordance
with Paragraph 7(a) hereof are true, accurate, correct and
complete;
(f) Contracts. To Seller's actual knowledge, there are
no maintenance contracts, service contracts or any other
contracts (whether oral or written) affecting or relating to the
Property which will survive the Close of Escrow except as
approved by Buyer in accordance with Paragraph 7(a)(ii) hereof.
At the Close of Escrow, there will be no outstanding contracts
entered into by Seller for the construction or repair of any
improvements to the Real Property which have not been fully paid
for, and Seller shall cause to be discharged all mechanics' and
materialmen's liens arising from any labor or materials
furnished to the Real Property prior to the Close of Escrow;
(g) Hazardous Wastes. To Seller's actual knowledge,
there is no asbestos or materials containing asbestos
incorporated into any of the Improvements. To Seller's actual
knowledge, the Property is not in violation of any federal,
state or local law, ordinance or regulation relating to
industrial hygiene or to the environmental conditions on, under
or about the Property or the Improvements including, but not
limited to, soil and groundwater condition. Seller further
represents and warrants that, except as set forth in Exhibit "G"
attached hereto, neither Seller nor, to Seller's actual
knowledge, any third party has used, generated, manufactured,
stored or disposed of on, under or about the Property or
transported to or from the Property any flammable explosives,
radioactive materials, hazardous wastes, toxic substances or
related materials ("Hazardous Materials"). Seller has no
knowledge of the presence, use, treatment, storage, release or
disposal of any Hazardous Materials at, on, upon, beneath or
about the Land or the Improvements. For purposes of this
subparagraph, the term Hazardous Materials shall include, but
not be limited to, asbestos, petroleum and any petroleum
by-products, urea formaldehyde, foam insulation, polychlorinated
biphenyls, and any other substance which is a "Hazardous
Substance" under California Health and Safety Code Section 25316
and in the regulations adopted and publications promulgated
pursuant to said statute and any amendments thereto;
(h) Structural, Mechanical and Electrical Defects. To
Seller's actual knowledge, there are no physical or mechanical
defects or deficiencies in the condition of the Property,
including, but not limited to, the roofs, exterior walls or
structural components of the Improvements and the heating, air
conditioning, plumbing, ventilating, utility, sprinkler and
other mechanical and electrical systems, apparatus and
appliances located on the Property or in the Improvements and
all such items are in good operating condition and repair;
(i) No Prior Transfer. Seller has not previously sold,
transferred or conveyed the Property and Seller has not entered
into any executory contracts for the sale of the Property (other
than this Agreement), nor do there exist any rights of first
refusals or options to purchase the Property;
(j) Insurance Notices. Seller has not received any
notice from any of Seller's insurance carriers of any defects or
inadequacies in the Property, or any portion thereof, which
would adversely affect the insurability of the Property or the
cost of any such insurance. There are no pending insurance
claims with respect to all or any portion of the Property;
(k) Representations and Warranties at Closing. The
representations and warranties of Seller set forth in this
Agreement shall be deemed to be remade and restated by Seller on
and as of the Close of Escrow and shall survive the Close of
Escrow for a period of one (1) year.
(l) Definition of Seller's Actual Knowledge. For all
purposes under this Agreement, the phrase "actual knowledge" of
Seller or the equivalent means the actual current (and not
constructive or imputed) knowledge, without independent
investigation or inquiry or any duty of independent
investigation or inquiry, of ▇▇▇▇ ▇▇▇▇▇, the VP of Finance and
CFO of COHU, Inc. All representations and warranties made
herein, and elsewhere in this Agreement or exhibits attached
hereto, are subject to, and qualified by, information and
disclosures contained in the doc-
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uments and reports delivered by Seller to Buyer, such
information discovered by Buyer prior to the expiration of the
Contingency Period, or as otherwise disclosed in writing by
Seller to Buyer prior to the end of the Contingency Period.
(m) Seller's Disclaimer. Buyer acknowledges and agrees
that Buyer is a sophisticated, knowledgeable investor in real
property and is acquiring the Property solely upon its own
judgment; and not upon any statement, representation or warranty
by Seller, or any agent or representative of Seller, which is
not expressly set forth in this Agreement. Except for the
express representations and warranties of Seller set forth
herein, Buyer acknowledges and agrees that the sale of the
Property to Buyer is made without any warranty or representation
of any kind by Seller, either express or implied, with respect
to any aspect, portion or component of the Property, including:
(i) the physical condition, nature or quality of the Property,
including the quality of the soils on and under the Property and
the quality of the labor and materials included in any buildings
or other improvements, fixtures, equipment or personal property
comprising a portion of the Property; (ii) the fitness of the
Property for any particular purpose; (iii) the presence or
suspected presence of hazardous materials on, in, under or about
the Property (including the soils and groundwater on and under
the Property); or (iv) existing or proposed governmental laws or
regulations applicable to the Property, or the further
development or change in use thereof, including environmental
laws and laws or regulations dealing with zoning or land use.
Buyer further agrees and acknowledges that, as of the Closing,
Buyer shall have made such feasibility studies, investigations,
environmental studies, engineering studies, inquiries of
governmental officials, and all other inquiries and
investigations, which Buyer shall deem necessary to satisfy
itself as to the condition, nature and quality of the Property
and as to the suitability of the Property for Buyer's purposes.
Buyer further agrees and acknowledges that, in purchasing the
Property, Buyer shall rely entirely on its own investigation,
examination and inspection of the Property and its analysis and
evaluation of the property documents made available by Seller to
Buyer pursuant to Paragraph 7(a)(ii), and not upon any
representation or warranty of Seller, or any agent or
representative of Seller, which is not set forth in Paragraph
14. THEREFORE, EXCEPT FOR SELLER'S REPRESENTATIONS AND
WARRANTIES SET FORTH IN PARAGRAPH 14, BUYER AGREES THAT, IN
CONSUMMATING THE PURCHASE OF THE PROPERTY PURSUANT TO THIS
AGREEMENT, BUYER SHALL ACQUIRE THE PROPERTY IN ITS THEN
CONDITION, "AS IS, WHERE IS" AND WITH ALL FAULTS, AND, SUBJECT
TO SELLER'S REPRESENTATIONS AND WARRANTIES SET FORTH IN
PARAGRAPH 14, SOLELY IN RELIANCE ON BUYER'S OWN INVESTIGATION,
EXAMINATION, INSPECTION, ANALYSIS AND EVALUATION OF THE
PROPERTY.
(n) Buyer's Release of Seller. Subject to all the terms
and conditions of this Paragraph 14, Buyer hereby waives,
releases and forever discharges Seller and its officers,
directors, employees and agents from any and all claims,
actions, causes of action, demands, liabilities, damages, costs,
expenses or compensation whatsoever, whether direct or indirect,
known or unknown, foreseeable or unforeseeable, which Buyer may
have at the Closing or which may arise in the future on account
of or in any way arising out of or connected with: (i) the
physical condition, nature or quality of the Property (including
the soils and groundwater on and under the Real Property); (ii)
the condition of title to the Property; and (iii) the presence
or release in, under, on or about the Property (including the
soils and groundwater on and under the Real Property) of any
hazardous materials. Buyer hereby waives the protection of
California Civil Code Section 1542, which reads as follows:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR
AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY
HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH
THE DEBTOR."
Buyer's Initials: __________
However, the foregoing provisions of this Paragraph 14(n) shall
not serve to release Seller from any breach of the express
representations and warranties set forth in Paragraph 14.
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15. Buyer's Covenants, Representations and Warranties. In
addition to any express agreements of Buyer contained elsewhere in this
Agreement, Buyer hereby represents and warrants to, and covenants with, Seller
as follows:
(a) Organization. Buyer is a corporation duly organized,
validly existing and in good standing under the laws of the
State of California, and is qualified to do business and is in
good standing under the laws of the State of California.
(b) Authorization. Buyer has or will have the legal
power, right and authority to enter into this Agreement and the
instruments referenced herein, and to consummate the
transactions contemplated hereby. Each individual executing this
Agreement and the instruments referenced herein on behalf of
Buyer has or will have the legal power, right and actual
authority to execute this Agreement and to bind Buyer to the
terms and conditions hereof and thereof.
(c) Litigation. There are no assignments for the benefit
of creditors, insolvency, bankruptcy, reorganization or other
similar proceedings pending (or, to the Buyer's current actual
knowledge, threatened or contemplated) against Buyer nor are any
of such proceedings contemplated by Buyer.
(d) No Violations. The execution, delivery and
performance by Buyer of this Agreement, or any other document,
agreement or instrument referred to herein, does not and will
not violate any existing order or decree of any court,
arbitrator or governmental agency, or any existing indenture,
agreement or any other instrument to which Buyer is a party or
by which Buyer is bound, or be in conflict with, result in the
breach of or constitute a default under any such indenture,
agreement or other instrument.
(e) Survival. The representations and warranties of
Buyer set forth in Paragraph 15 are true and correct on and as
of the date of this Agreement, and shall be true and correct on
and as of the date of the Close of Escrow. The representations
and warranties of Buyer set forth herein shall survive for a
period of one (1) year.
(f) New Information. To the extent that Buyer becomes
aware of any information after the execution date that would
affect the accuracy of the representations and warranties given
by Buyer pursuant to this Paragraph 15, Buyer shall promptly
notify Seller of such information.
16. Remedies
(a) LIQUIDATED DAMAGES. PROVIDED BUYER HAS NOT ELECTED
TO TERMINATE THIS AGREEMENT PURSUANT TO ANY OF BUYER'S RIGHTS TO
DO SO CONTAINED HEREIN, IF AFTER THE EXPIRATION OF THE
CONTINGENCY PERIOD BUYER COMMITS A DEFAULT UNDER THIS AGREEMENT
AND THE CLOSE OF ESCROW FAILS TO OCCUR SOLELY BY REASON OF SUCH
DEFAULT, THEN ESCROW HOLDER MAY BE INSTRUCTED BY SELLER TO
CANCEL THE ESCROW AND SELLER SHALL THEREUPON BE RELEASED FROM
ITS OBLIGATIONS HEREUNDER. BUYER AND SELLER AGREE THAT BASED
UPON THE CIRCUMSTANCES NOW EXISTING, KNOWN AND UNKNOWN, IT WOULD
BE IMPRACTICAL OR EXTREMELY DIFFICULT TO ESTABLISH SELLER'S
DAMAGES BY REASON OF BUYER'S DEFAULT. ACCORDINGLY, BUYER AND
SELLER AGREE THAT IT WOULD BE REASONABLE AT SUCH TIME TO AWARD
SELLER "LIQUIDATED DAMAGES" EQUAL TO THE AMOUNT OF THE DEPOSIT
PREVIOUSLY PLACED INTO ESCROW BY BUYER PURSUANT TO PARAGRAPH 3
HEREOF.
SELLER AND BUYER ACKNOWLEDGE AND AGREE THAT THE FOREGOING AMOUNT
IS REASONABLE AS LIQUIDATED DAMAGES AND SHALL BE SELLER'S SOLE
AND EXCLUSIVE REMEDY IN LIEU OF ANY OTHER RELIEF, RIGHT OR
REMEDY, AT LAW OR IN EQUITY, TO WHICH SELLER MIGHT OTHERWISE BE
ENTITLED BY REASON OF BUYER'S DEFAULT UNDER THIS AGREEMENT.
ACCORDINGLY, IF BUYER COMMITS A DEFAULT UNDER THIS AGREEMENT AND
THE CLOSE OF ESCROW FAILS TO OCCUR SOLELY BY REASON OF SUCH
DEFAULT, SELLER MAY INSTRUCT THE ESCROW HOLDER TO CANCEL THE
ESCROW, WHEREUPON SELLER SHALL BE RELIEVED FROM ALL LIABILITY
HEREUNDER, AND, PROMPTLY FOLLOWING
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ESCROW HOLDER'S RECEIPT OF SUCH INSTRUCTION, ESCROW HOLDER SHALL
(i) CANCEL THE ESCROW, AND (ii) DISBURSE TO SELLER THE DEPOSIT.
WITHOUT LIMITING THE FOREGOING PROVISIONS OF THIS PARAGRAPH,
SELLER WAIVES ANY AND ALL RIGHTS WHICH SELLER OTHERWISE WOULD
HAVE HAD UNDER CALIFORNIA CIVIL CODE SECTION 3389 TO
SPECIFICALLY ENFORCE THIS AGREEMENT. IF THE CLOSE OF ESCROW
FAILS TO OCCUR FOR ANY REASON OTHER THAN BUYER'S DEFAULT UNDER
THIS AGREEMENT, THEN ESCROW HOLDER SHALL IMMEDIATELY RETURN TO
BUYER THE DEPOSIT, TOGETHER WITH ALL INTEREST ACCRUED THEREON.
SELLER AND BUYER ACKNOWLEDGE THAT THEY HAVE READ AND UNDERSTAND
THE PROVISIONS OF THIS PARAGRAPH 16 AND BY THEIR INITIALS
IMMEDIATELY BELOW AGREE TO BE BOUND BY ITS TERMS.
NOTWITHSTANDING THE FOREGOING AND OTHER PROVISIONS IN THIS
AGREEMENT TO THE CONTRARY, THIS PARAGRAPH 16 SHALL IN NO WAY
LIMIT OR RESTRICT SELLER'S RIGHT TO RECOVERY OF ANY AMOUNT DUE
SELLER UNDER PARAGRAPH 7(a)(iii) OR PARAGRAPH 20.
Seller's Initials Buyer's Initials
----------------- ----------------
(b) Buyer's Remedies. Buyer and Seller hereby agree
that, if the sale contemplated by this Agreement is not
completed as herein provided by reason of any default of Seller
hereunder, then in addition to the return of the Deposit and all
interest accrued thereon, Buyer shall be entitled to pursue any
remedy available under this Agreement or available at law or in
equity, including, without limitation, the right to specifically
enforce this Agreement.
17. Damage or Condemnation Prior to Closing
(a) In the event that prior to the Close of Escrow, the
Real Property, or any portion thereof, is destroyed or
materially damaged, Buyer shall have the right, exercisable by
giving written notice to Seller within fifteen (15) days after
receipt of written notice of such damage or destruction, either
(i) to terminate this Agreement, in which event the Deposit and
all interest accrued thereon shall be immediately returned to
Buyer, any other money or documents in Escrow shall be returned
to the party depositing the same, and neither party hereto shall
have any further rights or obligations hereunder, or (ii) to
accept the Real Property in its then condition and to proceed
with the consummation of the transaction contemplated by this
Agreement, with an abatement or reduction in the Purchase Price
equal to the amount of the deductible for the applicable
insurance coverage, and to receive an assignment of all of
Seller's rights to any insurance proceeds payable by reason of
such damage or destruction, or if the casualty is not insured,
an abatement or reduction in the Purchase Price equal to the
cost to repair such damage, which credit shall in no event be
more than One Hundred Thousand Dollars ($100,000.00). If Buyer
elects to proceed under clause (ii) above, Seller shall not
compromise, settle or adjust any claims to such proceeds without
Buyer's prior written consent, which consent Buyer may withhold
in its sole, absolute and subjective discretion.
(b) In the event that prior to the Close of Escrow there
is any non-material damage to the Real Property, or any part
thereof, Buyer shall accept the Real Property in its then
condition with an abatement or reduction in the Purchase Price
equal to the amount of the deductible for the applicable
insurance coverage (or the cost to repair such damage if
uninsured) and proceed with the transaction contemplated by this
Agreement, in which event Buyer shall be entitled to an
assignment of all of Seller's rights to any insurance proceeds
payable by reason of such damage or destruction. In such event,
Seller shall not compromise, settle or adjust any claims to such
proceeds without Buyer's prior written consent, which consent
Buyer may withhold in its sole, absolute and subjective
discretion.
(c) In the event that prior to the Close of Escrow, all
or any material portion of the Real Property is subject to a
taking by a public or governmental authority, Buyer shall have
the right, exercisable by giving written notice to Seller within
fifteen (15) days after receiving written notice of such taking,
either (i) to terminate this Agreement, in which event the
Deposit and all
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interest accrued thereon shall be immediately returned to Buyer,
any other money or documents in Escrow shall be returned to the
party depositing the same, and neither party hereto shall have
any further rights or obligations hereunder, or (ii) to accept
the Real Property in its then condition, without a reduction in
the Purchase Price, and to receive an assignment of all of
Seller's rights to any condemnation award or proceeds payable by
reason of such taking. If Buyer elects to proceed under clause
(ii) above, Seller shall not compromise, settle or adjust any
claims to such award without Buyer's prior written consent,
which consent Buyer may withhold in its sole, absolute and
subjective discretion.
(d) In the event that prior to the Close of Escrow, any
non-material portion of the Real Property is subject to a taking
by any public or governmental authority, Buyer shall accept the
Real Property in its then condition and proceed with the
consummation of the transaction contemplated by this Agreement,
in which event Buyer shall be entitled to an assignment of all
of Seller's rights to any award or proceeds payable in
connection with such taking. In the event of any such
non-material taking, Seller shall not compromise, settle or
adjust any claims to such award without Buyer's prior written
consent, which consent Buyer may withhold in its sole, absolute
and subjective discretion.
(e) For purposes of this Paragraph 17, damage to the
Real Property or a taking of a portion thereof shall be deemed
to involve a material portion thereof if the estimated cost of
restoration or repair, as reasonably estimated by Buyer, of such
damage or the amount of the condemnation award with respect to
such taking shall exceed One Hundred Thousand Dollars
($100,000.00).
(f) Seller agrees to give Buyer prompt written notice of
any taking of, proposed taking of, damage to or destruction of
the Real Property.
18. Notices. All notices or other communications required or
permitted hereunder shall be in writing, and shall be personally delivered, sent
by overnight mail (Federal Express or the like) or sent by registered or
certified mail, postage prepaid, return receipt requested, telegraphed,
delivered or sent by telex, telecopy, facsimile, fax or cable and shall be
deemed received upon the earlier of (i) if personally delivered, the date of
delivery to the address of the person to receive such notice, (ii) if sent by
overnight mail, the business day following its deposit in such overnight mail
facility, (iii) if mailed, four (4) business days after the date of posting by
the United States post office, (iv) if given by telegraph or cable, when
delivered to the telegraph company with charges prepaid, or (v) if given by
telex, telecopy, facsimile or fax, when sent. Any notice, request, demand,
direction or other communication sent by cable, telex, telecopy, facsimile or
fax must be confirmed within forty-eight (48) hours by letter mailed or
delivered in accordance with the foregoing.
To Buyer: c/o ▇▇▇▇▇▇▇▇ ▇▇▇▇ So. Cal. Properties, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Phone No. (▇▇▇) ▇▇▇-▇▇▇▇
Fax No. (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: Jeffer, Mangles, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
2121 Avenue of the Stars, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Phone No: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No. (▇▇▇) ▇▇▇-▇▇▇▇
To Seller: COHU, INC.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇
Phone No. (▇▇▇) ▇▇▇-▇▇▇▇
Fax No. (▇▇▇) ▇▇▇-▇▇▇▇
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With a copy to: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ & Freidenrich LLP
▇▇▇ ▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Phone No. (▇▇▇) ▇▇▇-▇▇▇▇
Fax No. (▇▇▇) ▇▇▇-▇▇▇▇
To Escrow Holder:Chicago Title Company
▇▇▇ ▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Phone No. (▇▇▇) ▇▇▇-▇▇▇▇
Fax No. (▇▇▇) ▇▇▇-▇▇▇▇
Notice of change of address shall be given by written notice in the
manner detailed in this Paragraph. Rejection or other refusal to accept or the
inability to deliver because of changed address of which no notice was given
shall be deemed to constitute receipt of the notice, demand, request or
communication sent.
19. Brokers. Upon the Close of Escrow, Seller shall pay a real
estate brokerage commission to CB ▇▇▇▇▇▇▇ ▇▇▇▇▇, with respect to this
transaction in accordance with Seller's separate agreement with said broker, and
Seller hereby agrees to indemnify, protect, defend (with counsel chosen by
Buyer) and hold Buyer free and harmless from and against any and all commissions
or other claims such broker may assert in connection with the parties entering
into, or consummating the transactions contemplated by, this Agreement. If any
additional claims for broker's or finders' fees for the consummation of this
Agreement arise, then Buyer hereby agrees to indemnify, protect, save harmless
and defend Seller from and against such claims if they are based upon any
statement, representation or agreement made by Buyer, and Seller hereby agrees
to indemnify, protect, save harmless and defend Buyer from and against such
claims if they are based upon any statement, representation or agreement made by
Seller.
20. Legal Fees. In the event of the bringing of any action or
suit by a party hereto against another party hereunder by reason of any breach
of any of the covenants or agreements or any inaccuracies in any of the
representations and warranties on the part of the other party arising out of
this Agreement, then in that event, the prevailing party in such action or
dispute, whether by final judgment or out of court settlement, shall be entitled
to have and recover of and from the other party all costs and expenses of suit,
including actual attorneys' fees. Any judgment or order entered in any final
judgment shall contain a specific provision providing for the recovery of all
costs and expenses of suit, including actual attorneys' fees (collectively
"Costs") incurred in enforcing, perfecting and executing such judgment. For the
purposes of this paragraph, Costs shall include, without limitation, attorneys'
fees, costs and expenses incurred in the following: (i) postjudgment motions;
(ii) contempt proceeding; (iii) garnishment, levy, and debtor and third party
examination; (iv) discovery; and (v) bankruptcy litigation.
21. Assignment. Seller may not assign, transfer or convey its
rights or obligations under this Agreement without the prior written consent of
Buyer; provided, however, that Seller may assign, transfer or convey its rights
or obligations under this Agreement without Buyer's consent to an entity
affiliated with Seller or to a new entity which Seller is a member, partner or
manager provided that Seller delivers to Buyer written notice of any such
transfer. Any assignment shall be effective only if Seller's assignee assumes in
writing all of Seller's obligations hereunder; provided, however, Seller shall
in no event be released from its obligations hereunder by reason of such
assignment. Buyer, without being relieved of liability hereunder and without
obtaining Seller's consent, shall have the right to assign its rights and
obligations hereunder to an entity affiliated with Buyer or to a new entity in
which Buyer is a member, partner or manager or with who Buyer (or any affiliate
thereof) has entered into a development services agreement, a property
management agreement or other agreement of a similar nature with respect to the
Property or any portion thereof; provided that Buyer delivers written notice of
such transfer to Seller. Any other assignments requested by Buyer shall be
subject to the prior approval of Seller, which approval shall not be
unreasonably withheld, conditioned or delayed. Buyer hereby acknowledges it is
the intent of the Seller to effect an IRC Section 1031 tax deferred exchange
which will not delay the closing or cause additional expense to the Buyer. The
Seller's rights under this Agreement may be assigned to Investment Property
Exchange Services, Inc., a
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Qualified Intermediary, for the purpose of completing such an exchange. Buyer
agrees to cooperate with the Seller and Investment Property Exchange Services,
Inc. in a manner necessary to complete the exchange.
22. Intentionally Omitted
23. Miscellaneous
(a) Survival of Covenants. The covenants,
representations and warranties of both Buyer and Seller set forth in
this Agreement shall survive the recordation of the Grant Deed and the
Close of Escrow for a period of one (1) year.
(b) Required Actions of Buyer and Seller. Buyer and
Seller agree to execute such instruments and documents and to diligently
undertake such actions as may be required in order to consummate the
purchase and sale herein contemplated and shall use their best efforts
to accomplish the Close of Escrow in accordance with the provisions
hereof.
(c) Computation of Time Periods. If the date upon which
the Contingency Period expires, the Closing Date or any other date or
time period provided for in this Agreement is or ends on a Saturday,
Sunday or federal, state or legal holiday, then such date shall
automatically be extended until 5 p.m. Pacific Time of the next day
which is not a Saturday, Sunday or federal, state or legal holiday.
(d) Counterparts. This Agreement may be executed in
multiple counterparts, each of which shall be deemed an original, but
all of which, together, shall constitute but one and the same
instrument.
(e) Captions. Any captions to, or headings of, the
paragraphs or subparagraphs of this Agreement are solely for the
convenience of the parties hereto, are not a part of this Agreement, and
shall not be used for the interpretation or determination of the
validity of this Agreement or any provision hereof.
(f) No Obligations to Third Parties. Except as otherwise
expressly provided herein, the execution and delivery of this Agreement
shall not be deemed to confer any rights upon, nor obligate any of the
parties hereto, to any person or entity other than the parties hereto.
(g) Exhibits and Schedules. The Exhibits and Schedules
attached hereto are hereby incorporated herein by this reference for all
purposes.
(h) Amendment to this Agreement. The terms of this
Agreement may not be modified or amended except by an instrument in
writing executed by each of the parties hereto.
(i) Waiver. The waiver or failure to enforce any
provision of this Agreement shall not operate as a waiver of any future
breach of any such provision or any other provision hereof.
(j) Applicable Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of California.
(k) Fees and Other Expenses. Except as otherwise
provided herein, each of the parties hereto shall pay its own fees and
expenses in connection with this Agreement.
(l) Entire Agreement. This Agreement supersedes any
prior agreements, negotiations and communications, oral or written, and
contains the entire agreement between Buyer and Seller as to the subject
matter hereof. No subsequent agreement, representation, or promise made
by either party hereto, or by or to an employee, officer, agent or
representative of either party hereto shall be of any effect unless it
is in writing and executed by the party to be bound thereby.
(m) Successors and Assigns. Subject to the restrictions
set forth in Paragraph 21 hereof, this Agreement shall be binding upon
and shall inure to the benefit of the successors and assigns of the
parties hereto.
(n) Construction. The parties hereto hereby acknowledge
and agree that (i) each party hereto is of equal bargaining strength,
(ii) each such party has actively participated in the drafting,
preparation and negotiation of this Agreement, (iii) each such party has
consulted with such party's own, independent counsel, and such other
professional advisors as such party has deemed appropriate, relative to
any and all matters contemplated under this Agreement, (iv) each such
party and such party's counsel and advisors have reviewed this
Agreement, (v) each such party has agreed to enter into this Agreement
following such review and the rendering of such advice, and (vi) any
rule of construction to the effect that ambiguities are to be resolved
against the drafting parties shall not apply in the interpretation of
this Agreement, or any portions hereof, or any amendments hereto.
(o) Consideration. In the event that this Agreement is
cancelled by reason of
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Buyer's disapproval of any of the matters which are subject to Buyer's
approval under Paragraph 7(a) hereof, Buyer shall deliver to Seller any
and all reports, studies and the like prepared by or for Buyer with
respect to the Property; provided, however, that Buyer shall only be
obligated to deliver those reports, studies and the like which are
freely transferable by Buyer, at no cost or expense to Buyer. Any and
all such reports, studies and the like delivered by Buyer to Seller
pursuant to this paragraph shall be accepted by Seller (i) "as-is"
without any representation or warranty by Buyer, express, implied or
statutory, with respect to any matter pertaining thereto, and (ii)
subject to the rights of any other party (other than Buyer) with respect
thereto. Seller hereby acknowledges and confirms that such obligation
constitutes sufficient consideration for Seller's obligations hereunder.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first written above.
"Buyer" TC KEARNY VILLA LP,
a Delaware limited partnership
By: ▇▇▇▇▇▇▇▇ ▇▇▇▇ So. Cal., Inc.,
a Delaware corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Title: Vice-President
-----------------------------
"Seller" COHU, INC.,
a Delaware corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Title: Vice-President
-----------------------------
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