-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, OYxpVen/9kbGvtg920wdWm+0T6wEhSBR56F5xecarw/lp3PTVNz9BWpAkaLyquqT a6+Z+y/lUP/eWFs+3wtgAw== /in/edgar/work/0000950153-00-001552/0000950153-00-001552.txt : 20001116 0000950153-00-001552.hdr.sgml : 20001116 ACCESSION NUMBER: 0000950153-00-001552 CONFORMED SUBMISSION TYPE: 10-Q PUBLIC DOCUMENT COUNT: 19 CONFORMED PERIOD OF REPORT: 20000930 FILED AS OF DATE: 20001114 FILER: COMPANY DATA: COMPANY CONFORMED NAME: CERPROBE CORP CENTRAL INDEX KEY: 0000725259 STANDARD INDUSTRIAL CLASSIFICATION: [3679 ] IRS NUMBER: 860312814 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 10-Q SEC ACT: SEC FILE NUMBER: 000-11370 FILM NUMBER: 769246 BUSINESS ADDRESS: STREET 1: 1150 NORTH FIESTA BLVD CITY: GILBERT STATE: AZ ZIP: 85233-2237 BUSINESS PHONE: 4803331500 MAIL ADDRESS: STREET 1: 600 S ROCKFORD DR CITY: TEMPE STATE: AZ ZIP: 85281 10-Q 1 p63766e10-q.txt FORM 10-Q 1 SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM 10-Q (Mark One) X Quarterly Report pursuant to Section 13 or 15(d) of the Securities - -- Exchange Act of 1934 For the Quarter Ended September 30, 2000 or - -- Transition report pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 For the transition period from __________ to ___________. Commission File Number 0-11370 CERPROBE CORPORATION (Exact name of registrant as specified in its charter) DELAWARE 86-0312814 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification Number) 1150 NORTH FIESTA BOULEVARD, GILBERT, ARIZONA 85233 (Address of principal executive offices) (Zip Code)
(480) 333-1500 (Registrant's telephone number, including area code) Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes X No --- --- As of November 10, 2000, there were 9,524,960 shares of the registrant's Common Stock outstanding. 2 CERPROBE CORPORATION QUARTERLY REPORT ON FORM 10-Q FOR THE QUARTER ENDED SEPTEMBER 30, 2000 TABLE OF CONTENTS
Page PART I - FINANCIAL INFORMATION ITEM 1. FINANCIAL STATEMENTS Condensed Consolidated Balance Sheets - September 30, 2000 and December 31, 1999................................3 Condensed Consolidated Statements of Operations - Three and Nine Months Ended September 30, 2000 and 1999.................4 Condensed Consolidated Statements of Cash Flows - Nine months Ended September 30, 2000 and 1999...........................5 Notes to Condensed Consolidated Financial Statements....................6 ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS....................................12 ITEM 3 QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK.............17 PART II - OTHER INFORMATION ITEM 1. LEGAL PROCEEDINGS......................................................18 ITEM 4. SUBMISSION OF MATTERS TO VOTE OF SECURITY HOLDERS......................18 ITEM 5. OTHER INFORMATION......................................................19 ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K.......................................19 SIGNATURE .......................................................................23
2 3 CERPROBE CORPORATION AND SUBSIDIARIES CONDENSED CONSOLIDATED BALANCE SHEETS
SEPTEMBER 30, DECEMBER 31, ASSETS 2000 1999 ---- ---- (UNAUDITED) Current assets: Cash $ 4,312,393 $ 3,484,045 Accounts receivable, net of allowance of $362,102 in 2000 and $397,763 in 1999 21,557,294 12,313,053 Inventories, net 12,597,563 9,728,500 Accrued interest receivable 68,925 22,157 Prepaid expenses 1,540,601 1,107,378 Income taxes receivable 36,101 4,041,140 Deferred tax asset 437,982 2,123,609 ------------ ------------ Total current assets 40,550,859 32,819,882 Property, plant, and equipment, net 21,613,746 23,537,021 Intangible assets, net 23,531,386 26,334,157 Other assets 732,094 676,485 ------------ ------------ Total assets $ 86,428,085 $ 83,367,545 ============ ============ LIABILITIES AND STOCKHOLDERS' EQUITY Current liabilities: Accounts payable $ 5,199,021 $ 3,687,143 Accrued expenses 6,547,356 5,584,724 Current portion of notes payable 6,604,179 10,334,878 Current portion of capital lease obligations 1,108,469 954,957 Net liabilities of discontinued operations 336,322 446,629 ------------ ------------ Total current liabilities 19,795,347 21,008,331 Notes payable, less current portion 4,143,975 5,200,034 Capital lease obligations, less current portion 2,271,452 2,454,637 Deferred tax and other liabilities 939,875 472,158 ------------ ------------ Total liabilities 27,150,649 29,135,160 ------------ ------------ Minority interest -- 1,115,545 Commitments and contingencies -- -- Stockholders' equity: Preferred stock, $.05 par value; authorized 10,000,000 shares; issued and outstanding none -- -- Common stock, $.05 par value; authorized 25,000,000 shares; issued 9,897,897 and outstanding 9,489,732 shares at September 30, 2000 and issued 9,863,245 and outstanding 9,419,052 shares at December 31, 1999 494,895 493,162 Additional paid-in capital 68,021,279 67,830,701 Accumulated deficit (3,212,876) (9,074,938) Accumulated other comprehensive loss: Foreign currency translation (582,670) (236,534) ------------ ------------ 64,720,628 59,012,391 Treasury stock, at cost, 408,165 shares at September 30, 2000 and 444,193 shares at December 31, 1999 (4,616,169) (5,027,278) Notes receivable from related parties (827,023) (868,273) ------------ ------------ Total stockholders' equity 59,277,436 53,116,840 ------------ ------------ Total liabilities and stockholders' equity $ 86,428,085 $ 83,367,545 ============ ============
See accompanying notes to condensed consolidated financial statements. 3 4 CERPROBE CORPORATION AND SUBSIDIARIES CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS (UNAUDITED)
THREE MONTHS ENDED SEPTEMBER 30, NINE MONTHS ENDED SEPTEMBER 30, -------------------------------- ------------------------------- 2000 1999 2000 1999 ---- ---- ---- ---- Net sales $ 34,773,473 $ 14,932,031 $ 92,521,191 $ 44,640,667 Costs of goods sold 18,901,569 9,742,588 51,229,896 29,644,646 ------------ ------------ ------------ ------------ Gross profit 15,871,904 5,189,443 41,291,295 14,996,021 ------------ ------------ ------------ ------------ Expenses: Selling, general, and administrative 8,480,325 4,939,049 23,138,915 14,647,956 Engineering and product development 1,359,765 1,186,108 3,649,132 3,248,051 Goodwill amortization 916,284 134,214 2,824,314 390,987 ------------ ------------ ------------ ------------ Total expenses 10,756,374 6,259,371 29,612,361 18,286,994 ------------ ------------ ------------ ------------ Operating income (loss) 5,115,530 (1,069,928) 11,678,934 (3,290,973) ------------ ------------ ------------ ------------ Other income (expense): Interest income 105,404 192,831 317,020 623,670 Interest expense (460,726) (105,286) (1,588,897) (309,268) Other, net 91,608 (80,087) 365,494 (81,163) ------------ ------------ ------------ ------------ Total other income (expense) (263,714) 7,458 (906,383) 233,239 ------------ ------------ ------------ ------------ Income (loss) from continuing operations before minority interest and income taxes 4,851,816 (1,062,470) 10,772,551 (3,057,734) Minority interest (158,478) (84,978) (873,147) (273,494) ------------ ------------ ------------ ------------ Income (loss) from continuing operations before income taxes 4,693,338 (1,147,448) 9,899,404 (3,331,228) Income tax (provision) benefit (1,608,404) 269,310 (4,037,342) 944,480 ------------ ------------ ------------ ------------ Income (loss) from continuing operations 3,084,934 (878,138) 5,862,062 (2,386,748) Discontinued operations: Loss from operations of SVTR, Inc., net of taxes -- -- -- (5,322) ------------ ------------ ------------ ------------ Net income (loss) $ 3,084,934 $ (878,138) $ 5,862,062 $ (2,392,070) ============ ============ ============ ============ Net income (loss) per common share: Basic: Net income (loss) per common share $ 0.33 $ (0.11) $ 0.62 $ (0.31) ============ ============ ============ ============ Weighted average number of common shares outstanding 9,486,424 7,836,237 9,444,969 7,740,136 ============ ============ ============ ============ Diluted: Net income (loss) per common share $ 0.31 $ (0.11) $ 0.59 $ (0.31) ============ ============ ============ ============ Weighted average number of common and common equivalent shares outstanding 10,053,426 7,836,237 9,887,542 7,740,136 ============ ============ ============ ============
See accompanying notes to condensed consolidated financial statements. 4 5 CERPROBE CORPORATION AND SUBSIDIARIES CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS (unaudited)
NINE MONTHS ENDED SEPTEMBER 30, ------------------------------- 2000 1999 ---- ---- Cash flows from operating activities: Income (loss) from continuing operations $ 5,862,062 $(2,386,748) Adjustments to reconcile net income (loss) from continuing operations to net cash provided by (used in) continuing operations: Depreciation and amortization 7,538,325 4,279,538 Gain on sale of equipment (527,271) (3,176) Tax benefit from exercise of nonqualified stock options 50,000 71,000 Deferred income taxes 1,605,813 (17,168) Provision for losses on accounts receivable 15,979 4,000 Provision for obsolete inventory 479,180 180,000 Income applicable to minority interest 873,147 273,494 Changes in working capital of continuing operations: Accounts receivable (9,260,220) (174,435) Inventories (3,348,243) (1,594,055) Prepaid expenses and other assets (578,725) (293,052) Income taxes receivable 4,154,799 (1,963,188) Accounts payable and accrued expenses 2,474,509 562,730 Other liabilities 547,531 (7,073) ----------- ----------- Net cash provided by (used in) continuing operations 9,886,886 (1,068,133) ----------- ----------- Net cash provided by (used in) discontinued operations (260,067) 96,335 ----------- ----------- Net cash provided by (used in) operating activities 9,626,819 (971,798) ----------- ----------- Cash flows from investing activities: Purchase of property, plant, and equipment (6,081,855) (4,745,100) Redemption of investment securities -- 5,471,541 Net distributions from CRPB Investors, L.L.C 43,126 178,649 Purchase of Minority Interest in Cerprobe Asia Pte Ltd (914,237) -- Proceeds from sale of property, plant, and equipment 2,692,270 11,487 ----------- ----------- Net cash provided by (used in) investing activities (4,260,696) 916,577 ----------- ----------- Cash flows from financing activities: Issuance of notes payable 5,117,187 3,000,000 Payments on notes payable (9,933,618) (1,414,546) (Issuance) payment of notes receivable 41,250 (841,465) Net proceeds from employee stock purchase plan 254,718 177,674 Net proceeds from exercise of stock options 298,702 1,398,665 ----------- ----------- Net cash provided by (used in) financing activities (4,221,761) 2,320,328 ----------- ----------- Effect of exchange rates on cash (316,014) (143,659) ----------- ----------- Net increase in cash 828,348 2,121,448 Cash, beginning of period 3,484,045 4,753,696 ----------- ----------- Cash, end of period $ 4,312,393 $ 6,875,144 =========== =========== Supplemental disclosures of cash flow information from continuing operations: Interest paid $ 1,588,896 $ 309,268 =========== =========== Income taxes paid $ 1,522,148 $ 371,619 =========== ===========
See accompanying notes to condensed consolidated financial statements. 5 6 CERPROBE CORPORATION AND SUBSIDIARIES NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED) (1) BASIS OF PREPARATION The accompanying condensed consolidated financial statements as of September 30, 2000 and for the three and nine months ended September 30, 2000 and 1999 are unaudited, but reflect all adjustments (consisting only of normal recurring adjustments) that are, in the opinion of management, necessary for a fair presentation of financial position and operating results for the interim periods. The condensed consolidated balance sheet as of December 31, 1999 was derived from the audited consolidated financial statements at such date. Pursuant to accounting requirements of the Securities and Exchange Commission applicable to quarterly reports on Form 10-Q, the accompanying consolidated financial statements and notes do not include all disclosures required by generally accepted accounting principles for complete financial statements. Accordingly, these statements should be read in conjunction with Cerprobe Corporation's (the "Company") annual financial statements and notes thereto included in the Company's Annual Report on Form 10-K for the year ended December 31, 1999. Results of operations for interim periods are not necessarily indicative of those to be achieved for full fiscal years. PRINCIPLES OF CONSOLIDATION The condensed consolidated financial statements include the accounts of Cerprobe Corporation and its subsidiaries: Cerprobe Europe Limited, Cerprobe Europe S.A.S., Cerprobe Asia Holdings Pte Ltd, Cerprobe Interconnect Solutions, Inc. ("CIS"), SVTR, Inc. ("SVTR"), Cerprobe Japan Co., Ltd, OZ Technologies, Inc. ("OZ"), OZTEK (M) Sdn. Bhd, Cerprobe International Holdings, Inc. and Cerprobe Foreign Sales Corporation. All significant intercompany transactions have been eliminated in consolidation. Prior to July 31, 2000 Cerprobe Asia Holdings Pte Ltd was a 60% owner of Cerprobe Asia Pte Ltd; the balance was owned by Asian investors. Cerprobe Asia Pte Ltd's wholly owned subsidiaries, Cerprobe Singapore Pte Ltd and Cerprobe Taiwan Co., Ltd., operate full service sales and manufacturing plants. As of July 31, 2000, Cerprobe Corporation purchased the minority ownership in Cerprobe Asia Pte Ltd resulting in 100% ownership by Cerprobe Corporation. In the third quarter of 1998, the Company discontinued operations of SVTR, a company that refurbished, reconfigured, and serviced wafer probing equipment. See Note 4. In March 1999, the Company formed Cerprobe Japan Co., Ltd. to operate a sales and distribution facility in Yokohama, Japan. In December 1999, the Company acquired California-based OZ Technologies, Inc. Accordingly, the consolidated financial statements as of December 31, 1999, and for the year ended December 31, 1999 include OZ's activities since the date of acquisition. See Note 5. In March 2000, the Company merged OZ and CIS into Cerprobe Corporation. As a result, OZ 6 7 and CIS are no longer considered separate legal entities. RECLASSIFICATIONS Certain amounts in the 1999 financial statements have been reclassified to conform with the 2000 presentation. (2) COMMITMENTS AND CONTINGENCIES In October 1998, the Company filed an action against the former President, Director, and shareholder of Silicon Valley Test & Repair, Inc., which was acquired by the Company by way of merger into its wholly-owned subsidiary, SVTR, Inc., in January 1997. The suit seeks rescission of the acquisition and/or monetary damages arising from failure of the defendants to disclose material facts regarding the origins of certain software necessary for SVTR, Inc.'s business. In February 1999, the defendants filed a counter claim against the Company alleging conversion, interference with contractual relations, unfair business practices, breach of contract, and specific performance allegedly arising from the Company's actions to preclude the defendants from selling the Company stock received by defendants as part of the purchase price of Silicon Valley Test & Repair, Inc.; the Company sought to recover this stock and the balance of the purchase price through its claims for rescission. In March 1999, the Company and SVTR filed an amended complaint. In July 2000, the defendants were granted Summary Judgement in their favor on all of Cerprobe and SVTR, Inc.'s claims. On September 5, 2000, the Company moved for summary judgement seeking dismissal of the majority of Defendants' counterclaims. On September 19, 2000, Defendants responded to the Company's motion and filed a cross-motion for summary judgement on each of their counterclaims. On October 19, 2000, the Court heard arguments on the Company's motion and the Defendants' cross-motion and took the matter under advisement. At present, the Court has not rendered its ruling on the matter. While the Company intends to vigorously defend the defendants' counter claim, it is impossible to predict the outcome of this or any other litigation. It is not anticipated that the suit will have a material adverse impact on the Company's financial condition or results of operations. The Company is involved in other legal actions arising in the ordinary course of business. In the opinion of management, the disposition of these actions would not have a material adverse effect on the Company. (3) COMPREHENSIVE INCOME (LOSS) Comprehensive income (loss) encompasses net income and "other comprehensive loss", which includes all other non-owner transactions and events which change stockholders' equity. The Company recognized comprehensive income (loss) for the nine months ended September 30, 2000 and 1999 as follows:
Nine months ended September 30, ------------------------------- 2000 1999 ---- ---- Net income (loss) $ 5,862,062 $(2,392,070) Other comprehensive loss, net of tax benefit: Foreign currency translation adjustment (971,117) (209,767) Tax benefit from foreign currency translation 388,447 83,907 ----------- ----------- Net other comprehensive loss (582,670) (125,860) ----------- ----------- Comprehensive income (loss) $ 5,279,392 $(2,517,930) =========== ===========
7 8 (4) DISCONTINUED OPERATIONS In the third quarter of 1998, the Company discontinued operations of SVTR, a wafer prober refurbishing and upgrading subsidiary. The discontinuance resulted from questions regarding the origins of certain software necessary for SVTR's business. SVTR has been accounted for as a discontinued operation and, accordingly, its results of operations and financial position are segregated for all periods presented in the accompanying consolidated financial statements. Net sales, related losses, and income taxes associated with the discontinued operations are as follows:
Nine months ended September 30, 1999 Net sales $ -- ------- Loss from operations $(8,869) Income tax benefit 3,547 ------- Loss from operations, net $(5,322) =======
The effective tax rate used in calculating the income tax benefit from discontinued operations is approximately the same as the Company's effective tax rate for continuing operations. The net liabilities of SVTR, as reclassified in the accompanying consolidated balance sheets, include the following:
September 30, 2000 December 31, 1999 Current assets $ 297,383 $ 554,585 Other assets 41,855 63,011 Current liabilities (35,055) (289,358) Long-term debt (208) (5,286) Other long-term liabilities (640,297) (769,581) --------- --------- $(336,322) $(446,629) ========= =========
(5) ACQUISITIONS In December 1999, the Company acquired all of the outstanding stock of OZ, a manufacturer of systems solutions for IC package testing and a leading designer and producer of high performance test sockets and contactors, for $36 million. OZ also designs and distributes ATE test boards and burn-in interfaces and systems. The purchase price consisted of $19 million in cash, notes payable of $5.6 million, and 1.5 million shares of the Company's Common Stock. The acquisition has been accounted for as a purchase and, accordingly, the purchase price has been allocated to the assets acquired and the liabilities assumed based upon the estimated fair values at the date of acquisition. As a result of the acquisition, $8.8 million of in-process research and development was charged to operations. Goodwill of $21.2 million is being amortized on a straight-line basis over seven years and $1.0 million of assembled workforce is being amortized on a straight-line basis over four years. The purchase price of $36 million plus acquisition costs of $1.9 million was allocated as follows: 8 9
Purchase price: Cash $ 19,000,000 Notes payable 5,630,000 Common stock and additional paid in capital 11,338,000 Costs of acquisition 1,900,000 ------------ $ 37,868,000 ============ Assets acquired and liabilities assumed: Current assets $ 8,945,021 Property, plant, and equipment 1,822,749 Other assets 87,209 In-process research and development 8,815,000 Goodwill and assembled workforce 22,192,955 Current liabilities (3,994,934) ------------ $ 37,868,000 ============
At acquisition, the state of the research and development products was not yet at a technological or commercially viable state. The Company did not believe that the research and development products had any future alternative use because if these products were not finished and brought to ultimate product completion, they would have no other value. Therefore, consistent with generally accepted accounting principles, the Company recorded a charge for the full value of the in-process research and development. The condensed consolidated balance sheets as of September 30, 2000 and December 31, 1999 include the accounts of OZ and results of operations since the date of acquisition. The following summary, prepared on a pro forma basis, excluding the charge for in-process research and development, presents the results of operations as if the acquisition had occurred on January 1, 1999.
Nine months ended September 30, 1999 ------------------ (unaudited) Net sales $ 65,764,000 Net loss (2,788,000) Basic net loss per share (0.30) Diluted net loss per share (0.30)
The pro forma results are not necessarily indicative of what the actual consolidated results of operations might have been if the acquisition had been effective at the beginning of 1999 or as a projection of future results. (6) RELATED PARTY TRANSACTIONS In August 1999, the Company and certain of its Directors and Officers entered into Secured 9 10 Promissory Notes and Stock Pledge Agreements. The purpose of the loans was to exercise stock options scheduled to expire. Interest on the notes is at 6% per annum with note maturities in August 2002. The notes are fully recourse to the borrowers and are also collateralized by shares of the Company's Common Stock beneficially owned by the borrowers. In June 2000, the Company and Daniel J. Hill entered into an unsecured Promissory Note. The principal amount of the loan was $45,000, with a maturity of December 31, 2000. Interest on the note was 6% per annum. As of September 30, 2000 and December 31, 1999, the balance on all notes was $827,023 and $868,273, respectively. (7) SEGMENT INFORMATION The Company operates principally in one industry segment: the design, development, manufacture, and marketing of semiconductor integrated circuit test products and services. The Company's principal customers are North American, European, and Asian semiconductor manufacturing companies. One of the Company's customers exceeded 10% of net sales. This customer accounted for 17.8% and 15.5% of net sales for the nine months ended September 30, 2000 and 1999, respectively. The accounts receivable from the customer were $4,679,129 and $893,638 at September 30, 2000 and 1999, respectively. International sales represented 25.4% and 21.7% of the Company's net sales for the nine months ended September 30, 2000 and 1999, respectively. The following is a summary of the Company's geographic operations for the nine months ended September 30:
NORTH AMERICA EUROPE & ASIA ELIMINATIONS CONSOLIDATED ------------- ------------- ------------ ------------ 2000 Customer sales $69,052,782 $23,468,409 $ - $92,521,921 Intercompany sales 1,581,576 4,062,517 (5,644,093) -- ----------- ----------- ----------- ----------- Total sales $70,634,358 $27,530,926 $(5,644,093) $92,521,921 =========== =========== =========== =========== Long-lived assets $42,627,582 $ 2,677,118 $ (159,568) $45,145,132 =========== =========== =========== =========== 1999 Customer sales $34,948,903 $ 9,691,764 $ - $44,640,667 Intercompany sales 362,944 2,093,333 (2,456,277) -- ----------- ----------- ----------- ----------- Total sales $35,311,847 $11,785,097 $(2,456,277) $44,640,667 =========== =========== =========== =========== Long-lived assets $23,196,751 $ 3,133,246 $ (123,777) $26,206,220 =========== =========== =========== ===========
10 11 (8) SUBSEQUENT EVENTS On October 11, 2000, Cerprobe Corporation and Kulicke and Soffa Industries, Inc. ("K&S") signed a definitive agreement whereby, subject to the terms and conditions of the agreement, K&S will acquire Cerprobe. The acquisition, if consummated, will be made by means of a cash tender offer by a wholly-owned subsidiary of K&S for each share of Cerprobe common stock at a price of $20.00 per share. This will be followed by a back-end merger of Cerprobe with that subsidiary, with Cerprobe to remain as the surviving corporation and a subsidiary of K&S. The total purchase price, which also includes other acquisition-related costs, is expected to be approximately $225 million. The agreement has been unanimously approved by the boards of directors of both companies. The consummation of the tender offer is subject to customary closing conditions, including that a majority of the outstanding Cerprobe shares are tendered and the expiration or termination of the Hart-Scott-Rodino waiting period. The expiration of the Hart-Scott-Rodino waiting period has occurred. K&S commenced the tender offer on October 25, 2000, which, under the Securities and Exchange Commission rules, must be held open for a minimum of twenty business days. If K&S acquires at least 90% of the outstanding shares in the tender offer, it is expected that the back-end merger will be effected promptly after the consummation of the tender offer without a special meeting of shareholders. If less than 90% of the shares are acquired by K&S, a special meeting would be required for approval of the back-end merger, which would be assured if K&S acquires a majority of the outstanding shares in the tender offer. Cerprobe shareholders who do not tender their shares in the tender offer and who do not otherwise seek to have the value of their shares appraised under the applicable appraisal procedures under Delaware Law would receive $20.00 for each of their shares of common stock in the back-end merger. 11 12 ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS The following discussion and analysis should be read in conjunction with the Selected Consolidated Financial Data and the Consolidated Financial Statements and related Notes thereto of the Company appearing in the Company's Annual Report on Form 10-K for the year ended December 31, 1999. OVERVIEW The Company offers comprehensive solutions principally in one segment of the semiconductor industry - semiconductor test interconnect. The Company is a leading manufacturer of probe cards, ATE interface assemblies, ATE test boards, and test sockets/contactors. The Company believes it is the only company that designs, manufactures, and assembles each of the electromechanical components that assure the integrity of the electrical test signal that passes from the ATE to the IC DUT. The Company's products address critical functions to assure IC quality, reduce manufacturing costs, improve the accuracy of manufacturing yield data, and identify repairable memory ICs. The semiconductor industry is characterized as cyclical, with capacity boom cycles followed by bust cycles that create tremendous pricing pressures. Despite these cycles, the IC market has generally been a high volume, high growth commodity market characterized by rapid technological change. The Company has benefited from this and has grown substantially over the last five years as the Company has increased its market share and expanded its product lines. Net sales have increased from $26.1 million for 1995 to $62.7 million for 1999, representing a five year average annualized growth rate of approximately 35%. The Company has grown its business and expanded its product lines through internal product development, strategic acquisitions, joint development/ventures, and licensing of technologies. In 1990, the foundation for the growth of the Company's core probe card business was the development of the Company's CerCard(TM) technology. In April 1995, the Company acquired Fresh Test Technology Corporation ("Fresh Test"), which enabled the Company to expand its product line to include ATE interface assemblies. In December 1996, the Company acquired Cerprobe Interconnect Solutions, Inc. ("CIS"), formerly CompuRoute, Inc., which enabled the Company to offer ATE test boards, the Company's first packaged IC testing product. In May 1997, the Company established a joint development agreement with Japan-based Mitsubishi Materials Corporation. This joint development has resulted in the Company's first probe card based upon the Company's proprietary P4(TM) (Photolithographic Pattern Plated Probe) technology. In September 1998, the Company acquired France-based Cerprobe Europe S.A.S., formerly SemiConducteur Services, S.A., a probe card company, which enabled the Company to further expand in and service the European market. Additionally, in November 1998, the Company signed an agreement with Feinmetall GmbH, a German contact technology company, which provided the Company with an exclusive license to design, manufacture, and distribute Vertical integrated Probe (ViProbe(R)) products worldwide, except Europe. Finally, in December 1999, the Company acquired OZ Technologies, Inc. ("OZ"), which enabled the Company to offer test sockets, test contactors, and test boards used for testing packaged ICs. From 1996 through 1998, the semiconductor industry was in the worst recession in its history. The IC test interconnect segment of the semiconductor industry generally lags the industry cycle by nine months or more. Because of this lag and market share gains by the Company, its business was not significantly impacted by the recession in the semiconductor industry until the second quarter of 1998. During 1998, certain customers of the Company began processing a portion of their ICs in a manner that required vertical probing products that were not manufactured by the Company. This exacerbated 12 13 the already difficult business conditions the Company was experiencing and the Company reported a loss from continuing operations before income taxes in the second quarter of 1999, which was the first such quarterly loss by the Company (excluding acquisition related costs) in 29 consecutive quarters. In the third quarter of 1999, the Company began to experience some positive signs of a gradual recovery. For the past several quarters sales have increased significantly. Due to this significantly increased demand from its customers, the implementation of several important operational initiatives during the semiconductor downturn, and the acquisition of OZ, the Company has been profitable during 2000. The Company maintains regional full service facilities in Arizona, California, and Texas as well as sales offices in Colorado, Florida, Massachusetts, and Oregon to service the U.S. market for its products and services. The Company maintains full service facilities in France and Scotland and a sales office in Germany to serve the European market. The Company also maintains full service facilities in Taiwan and Singapore to serve the Southeast Asian market, as well as sales and distribution offices in Japan and Malaysia, to serve the Asian market. Each of the Company's facilities is located in proximity to semiconductor manufacturing centers. RESULTS OF OPERATIONS Three months ended September 30, 2000 Compared to Three months ended September 30, 1999. Net Sales. Net sales for the three months ended September 30, 2000 were $34.8 million, an increase of 132.9% over net sales of $14.9 million for the three months ended September 30, 1999. Of the increase, 45.8% was a result of sales of new packaged IC testing products from the acquisition of OZ. The remaining 54.2% was a result of increased demand for the Company's legacy products. During the three months ended September 30, 2000, approximately 24.2% of sales were to international customers as compared to 21.7% for the same period in 1999. Gross Profit. Gross profit for the three months ended September 30, 2000 was $15.9 million, an increase of 205.8% from gross profit of $5.2 million for the three months ended September 30, 1999. Of this increase, approximately 40.4% was from the new packaged IC testing products from the acquisition of OZ. Gross margin increased from 34.8% of net sales in the three months ended September 30, 1999 to 45.6% in 2000. These increases were a result of a more favorable product mix, increased manufacturing efficiencies, and lower average material costs due to volume purchases, combined with generally higher average selling prices. Selling, General, and Administrative. Selling, general, and administrative expenses were $8.5 million, or 24.4% of net sales, for the three months ended September 30, 2000, compared to $4.9 million, or 33.1% of net sales, for the three months ended September 30, 1999. Of this increase, approximately $1.5 million was due to the new packaged IC testing products from the acquisition of OZ, $335,000 was due to international expansion, $1.2 million due to domestic expansion, $300,000 in incentive management programs, $140,000 in professional services for Research and Development Tax Credit study, and $167,000 was attributable to increased marketing expenses. Engineering and Product Development. Engineering and product development expenses were $1.4 million, or 3.9% of net sales, for the three months ended September 30, 2000, compared to $1.2 million or 7.9% of net sales, for the three months ended September 30, 1999. Engineering and product development have decreased as a percentage of sales to historical levels as several of the Company's new products have recently been released to production. 13 14 Interest Income. Interest income was $105,404 for the three months ended September 30, 2000, compared to $192,831 for the three months ended September 30, 1999. This decrease was attributable to the investment of a lower average cash balance. Interest Expense. Interest expense was $460,726 for the three months ended September 30, 2000, compared to interest expense of $105,286 for the three months ended September 30, 1999. This increase was due to the increased Company debt incurred to partially finance the acquisition of OZ. Minority Interest. The minority interest share of income of $158,478 for the three months ended September 30, 2000 and $84,978 for the three months ended September 30, 1999 represented the Company's joint venture partners' share of income from the Company's Asian operations (40%). The Company purchased for $914,237 the minority interest on July 31, 2000. Income Taxes. Income taxes increased from a benefit of $269,310 for September 30, 1999 to a $1.6 million expense for September 30, 2000. This represented an effective tax rate of 28.7% for September 30, 2000 and an effective tax benefit of 26.6% for September 30, 1999. The effective tax rate for September 30, 2000 has been favorably impacted by state net operating loss carryforwards from 1999 and lower tax rates applied against income of some foreign operations. Net Income. Net income for the three months ended September 30, 2000 was $3.1 million or 8.9% of sales, compared to a net loss of $878,138 or (5.9)% of sales for the three months ended September 30, 1999. The increase in net income was due to substantially increased sales, increased manufacturing efficiencies, and greater leverage from the Company's fixed cost infrastructure. Nine months ended September 30, 2000 Compared to Nine months ended September 30, 1999. Net Sales. Net sales for the nine months ended September 30, 2000 were $92.5 million, an increase of 107.3% over net sales of $44.6 million for the nine months ended September 30, 1999. Of the increase, 57.7% was a result of sales of new packaged IC testing products from the acquisition of OZ. The remaining 42.3% was a result of increased demand for the Company's legacy products. Gross Profit. Gross profit for the nine months ended September 30, 2000 was $41.3 million, an increase of 175.3% from gross profit of $15.0 million for the nine months ended September 30, 1999. Of this increase, approximately 48.9% was from the new packaged IC testing products from the acquisition of OZ. Gross margin increased from 33.6% of net sales in the nine months ended September 30, 1999 to 44.6% in 2000. These increases were a result of a more favorable product mix, increased manufacturing efficiencies, and lower average material costs due to volume purchases, combined with generally higher average selling prices. Selling, General, and Administrative. Selling, general, and administrative expenses were $23.1 million, or 25.0% of net sales, for the nine months ended September 30, 2000, compared to $14.6 million, or 32.8% of net sales, for the nine months ended September 30, 1999. Of this increase, approximately $4.9 million was due to the new packaged IC testing products from the acquisition of OZ, $635,000 was due to international expansion, $467,000 was attributable to increased marketing expenses due to international expansion, $1.2 million was due to domestic expansion, $300,000 in incentive management programs, $140,000 in professional service for Research and Development Tax Credit study, and the reversal of $500,000 in incentive management programs expense in the nine months ended September 30, 1999. 14 15 Engineering and Product Development. Engineering and product development expenses were $3.6 million, or 3.9% of net sales, for the nine months ended September 30, 2000, an increase of 12.3% over $3.2 million or 7.3% of net sales, for the nine months ended September 30, 1999. The increase was primarily due to the acquisition of OZ. Interest Income. Interest income was $317,020 for the nine months ended September 30, 2000, compared to interest income of $623,670 for the nine months ended September 30, 1999. This decrease was attributable to the investment of a lower average cash balance. Interest Expense. Interest expense was $1.6 million for the nine months ended September 30, 2000, compared to $309,268 for the nine months ended September 30, 1999. This increase was due to the increased Company debt incurred to partially finance the acquisition of OZ. Minority Interest. The minority interest share of income of $873,147 for the nine months ended September 30, 2000 and $273,494 for the nine months ended September 30, 1999 represented the Company's joint venture partners' share of income from the Company's Asian operations (40%). The Company purchased for $914,237 the minority interest 40% on July 31, 2000. Income Taxes. Income taxes increased from a benefit of $944,480 for September 30, 1999 to a $4.0 million expense for September 30, 2000. This represented an effective tax rate of 31.7% for September 30, 2000 and 32.1% for September 30, 1999. The effective tax rate for September 30, 2000 has been favorably impacted by state net operating loss carryforwards from 1999, and lower tax rates applied against income of some foreign operations. Net Income. Net income for the nine months ended September 30, 2000 was $5.9 million or 6.3% of sales, compared to a net loss of $2.4 million or (5.4)% of sales for the nine months ended September 30, 1999. The increase in net income was due to substantially increased sales, increased manufacturing efficiencies, and greater leverage from the Company's fixed cost infrastructure. LIQUIDITY AND CAPITAL RESOURCES The Company has financed its operations and capital requirements primarily through cash flows from operations, equipment lease financing arrangements, working capital credit facilities, and sales of equity securities. At September 30, 2000, cash was $4.3 million compared to $3.5 million at December 31, 1999. The Company generated $9.6 million of cash from its operating activities for the nine months ended September 30, 2000. Accounts receivable increased by $9.2 million, net of allowance, or 75.1%, to $21.6 million at September 30, 2000 compared to the balance at December 31, 1999. This increase was consistent with the Company's substantial increase in sales in the first nine months of 2000. Inventories increased $2.9 million, net of reserve, or 29.5%, from $9.7 million at December 31, 1999 to $12.6 million at September 30, 2000. This increase was necessary to support the substantial increase in sales. Income taxes receivable decreased $4.0 million, or 99.1%, from $4.0 million at December 31, 1999 to $36,101 at September 30, 2000. The decrease was due to the receipt of tax refunds and an increase in taxes payable. Accounts payable and accrued expenses increased $2.5 million, or 26.7%, to $11.7 million at September 30, 2000. Approximately $6.0 million of equipment was purchased during the nine months ended September 30, 2000, which was financed primarily through cash flow from operations and usage of the Company's revolving line of credit. As of September 30, 2000 the amount available under the credit facility was $5.5 million. The Company received $2.7 million from the sale/leaseback of the real property located at 10365 Sanden Drive, Dallas, Texas. The proceeds were used to pay the $2.8 million Promissory Note issued to the selling stockholders in the acquisition of OZ Technologies, Inc. 15 16 Working capital increased $8.9 million, or 75.7%, to $20.8 million at September 30, 2000. The current ratio was 2.0 and 1.6 for September 30, 2000 and December, 31, 1999, respectively. The Company believes that its working capital, together with the amount available under the credit facilities, lease commitments, and anticipated cash flow from operations, will provide adequate sources to fund operations for at least the next 12 months. The Company anticipates that any additional cash requirements for operations or capital expenditures will be financed through cash flow from operations, by borrowing from the Company's primary lender, by lease financing arrangements, or, in the event that the Company's acquisition by K&S is not consummated, by sales of equity securities. Any such financing may not be available on acceptable terms and any additional equity financing, if available, would result in additional dilution to existing investors. INFLATION AND CHANGING PRICES The Company is impacted by inflationary trends and business trends within the semiconductor industry and by the general condition of the worldwide semiconductor markets. Market price pressures are exerted on semiconductor manufacturers by the global marketplace and global competition. Such pressures mandate that semiconductor manufacturers closely scrutinize the prices they pay for goods and services purchased from the Company and other suppliers. Accordingly, the price structure for the Company's products must be competitive. Changes in the Company's supplier prices did not have a significant impact on cost of sales during the first, second, or third quarters of 2000 or 1999. As a result of the Company's operation of manufacturing, repair, and sales facilities in Scotland, France, Singapore, and Taiwan, the Company's foreign transactions may be denominated in currencies other than the U.S. Dollar. Such transactions may expose the Company to exchange rate fluctuations for the period of time from inception of the transaction until it is settled. Fluctuations in the currency exchange rate in the future may have an adverse impact on the Company's foreign operations. In addition, the Company may purchase a substantial portion of its raw materials and equipment from foreign suppliers and will incur labor costs in a foreign currency. The foreign manufacture and sale of products and the purchase of raw material and equipment from foreign suppliers may be adversely affected by political and economic conditions abroad. Protective trade legislation in either the United States or foreign countries, such as a change in the current tariff structures, export compliance laws or other trade policies, could adversely affect the Company's ability to manufacture or sell its products in foreign markets and purchase materials or equipment from foreign suppliers. In countries in which the Company conducts business in local currency, currency exchange rate fluctuations could adversely affect the Company's net sales or costs. BUSINESS OUTLOOK The Company's business depends substantially on both the volume of IC production by semiconductor manufacturers as well as new IC designs, which in turn depend on the demand of ICs 16 17 and products utilizing ICs. The semiconductor industry is highly cyclical and historically has experienced periods of oversupply, resulting in reduced demand for IC testing products, including the products manufactured by the Company. At present, there is strong demand for Cerprobe's products and this demand is expected to remain strong for the foreseeable future. "SAFE HARBOR" STATEMENT UNDER THE PRIVATE SECURITIES LITIGATION REFORM ACT OF 1995 Statements in this section regarding increasing demand for the Company's products in the foreseeable future, the Company's prospects for growth, adequacy of sources of capital, and business out-look are forward-looking statements. Words such as "believes," "expects," "anticipates," "intends," "may," "estimates," "should," "will likely," and similar expressions are intended to identify such forward-looking statements. Actual results, however, could differ materially from those anticipated for a number of reasons, including a decrease in demand or slower than anticipated growth in the semiconductor industry, product demand and development, ability to maintain customer diversity and relationships, technological advances, impact of competitive products and pricing, growth in targeted markets and other factors identified under "Special Considerations" of the Company's 1999 Form 10-K which has been filed with the Securities and Exchange Commission. Additional risk factors are identified from time to time in the Company's financial press releases. The cautionary statements made in this Report should be read as being applicable to all related forward-looking statements wherever they appear in this Report. ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK There has been no change since the Form 10-K for the year ended December 31, 1999. See Part II Item 7A, Quantitative and Qualitative Disclosures About Market Risk, in the Company's Annual Report on Form 10-K for the year ended December 31, 1999. 17 18 PART II - OTHER INFORMATION Item 1. Legal Proceedings In October 1998, the Company filed an action against the former President, Director, and shareholder of Silicon Valley Test & Repair, Inc., which was acquired by the Company by way of merger into its wholly-owned subsidiary, SVTR, Inc., in January 1997. The suit seeks rescission of the acquisition and/or monetary damages arising from failure of the defendants to disclose material facts regarding the origins of certain software necessary for SVTR, Inc.'s business. In February 1999, the defendants filed a counter claim against the Company alleging conversion, interference with contractual relations, unfair business practices, breach of contract, and specific performance allegedly arising from the Company's actions to preclude the defendants from selling the Company stock received by defendants as part of the purchase price of Silicon Valley Test & Repair, Inc.; the Company sought to recover this stock and the balance of the purchase price through its claims for rescission. In March 1999, the Company and SVTR filed an amended complaint. In July 2000, the defendants were granted Summary Judgement in their favor on all of Cerprobe and SVTR, Inc.'s claims. On September 5, 2000, the Company moved for summary judgement seeking dismissal of the majority of Defendants' counterclaims. On September 19, 2000, Defendants responded to the Company's motion and filed a cross-motion for summary judgement on each of their counterclaims. On October 19, 2000, the Court heard arguments on the Company's motion and the Defendants' cross-motion and took the matter under advisement. At present, the Court has not rendered its ruling on the matter. While the Company intends to vigorously defend the defendants' counter claim, it is impossible to predict the outcome of this or any other litigation. It is not anticipated that the suit will have a material adverse impact on the Company's financial condition or results of operations. Item 4. Submission of Matters to Vote of Security Holders a. An annual meeting of stockholders of the Company was held on August 17, 2000. b. The name of each director elected at the meeting is as follows: Ross J. Mangano, C. Zane Close, Kenneth W. Miller, Donald F. Walter, and William A. Fresh. c. The matters voted upon and the results of the voting were as follows: 1. The following five persons were elected as Directors at the annual meeting pursuant to the following vote:
Votes For Votes Withheld Rose J. Mangano 7,436,439 1,382,500 C. Zane Close 7,434,947 1,383,992 Kenneth W. Miller 7,436,347 1,382,592 Donald F. Walter 7,262,839 1,556,100 William A. Fresh 7,436,589 1,382,350
2. An amendment to the company's 1995 Stock Option Plan (The "1995 Plan") to increase the number of shares of the Company's Common Stock that may be issued pursuant to the 1995 Plan. Votes For 4,778,550 Votes Against 1,281,061
18 19 Votes Abstaining 11,125 Not Voted 2,748,203
Item 5. Other Information On October 11, 2000, Cerprobe Corporation and Kulicke and Soffa Industries, Inc. ("K&S") signed a definitive agreement whereby, subject to the terms and conditions of the agreement, K&S will acquire Cerprobe. The acquisition, if consummated, will be made by means of a cash tender offer by a wholly-owned subsidiary of K&S for each share of Cerprobe common stock at a price of $20.00 per share, that will be followed by a back-end merger of Cerprobe with that subsidiary, with Cerprobe to remain as the surviving corporation and a subsidiary of K&S. The total purchase price, which also includes other acquisition-related costs, is expected to be about $225 million. The agreement has been unanimously approved by the boards of directors of both companies. The consummation of the tender offer is subject to customary closing conditions, including that a majority of the outstanding Cerprobe shares are tendered and the expiration or termination of the Hart-Scott-Rodino waiting period. The expiration of the Hart-Scott-Rodino waiting period has occurred. K&S commenced the tender offer on October 25, 2000, which, under the Securities and Exchange Commission rules, must be held open for a minimum of twenty business days. If K&S acquires at least 90% of the outstanding shares in the tender offer, it is expected that the back-end merger will be effected promptly after the consummation of the tender offer without a special meeting of shareholders. If less than 90% of the shares are acquired by K&S, a special meeting would be required for approval of the back-end merger, which would be assured if K&S acquires a majority of the outstanding shares in the tender offer. Cerprobe shareholders who do not tender their shares in the tender offer and who do not otherwise seek to have the value of their shares appraised under the applicable appraisal procedures under Delaware Law would receive $20.00 for each of their shares of common stock in the back-end merger. Item 6. Exhibits and Reports on Form 8-K a. Exhibits 2(b) Agreement and Plan of Merger dated October 11, 2000 among Kulicke and Soffa Industries, Inc., Cardinal Merger Sub., Inc. and Cerprobe Corporation (incorporated by reference to Exhibit (d) (1) of the Schedule TO filed by Kulicke and Soffa Industries, Inc. on October 25, 2000). 3(d) Incorporation documents for OZTEK (M) Sdn. Bhd. dated November 11, 1999. 4(e) First Amendment to Rights Agreement dated October 11, 2000 between Cerprobe Corporation and Computershare Trust Company, Inc. (as successor in interest to American Securities Transfer and Trust, Inc.) 19 20 (incorporated by reference to Exhibit 8 of the schedule 14d-9 filed by Cerprobe Corporation on October 25, 2000). 10(iii) Promissory Note entered into on June 8, 2000 between Cerprobe Corporation as lender and Daniel J. Hill as borrower for $45,000. 10(jjj) A Tenancy Agreement between Best I.Q., Inc., and Cerprobe Corporation for the lease of Lot No. P.T. No. 2878, Mukim 12, Daerah Barat Dayna Penang along with a building No. Plot 47 Phase IV, Jalan Bund, 11900 Bayan Lepas, Penang. 10(kkk) Amendment to Tenancy Agreement between Best I.Q., Inc and Cerprobe Corporation for the buildout of the premises. 10(lll) Agreement between Cerprobe Corporation and Build-Tec Management SDN. BHD. for the renovation of an existing factory on Plot 47 (F.T.Z.) Phase 4 Bayan Lepas. 10(mmm) Amendment Agreement dated July 4, 2000, to a Promissory Note between Cerprobe Corporation and Ali Bushehri as agent for Nasser Barabi, Iraj Barabi, Ali Bushehri, Ahmad Barabi, the Ali and Nassrin Bushehri Trust and Ahmad and Zakieh Barabi Trust. 10(nnn) Amendment No. 1 to Loan and Security Agreement between Bank of America, N.A. and Cerprobe Corporation, Cerprobe Interconnect Solutions, Inc., OZ Technologies, Inc. and Triple S. Engineering, Inc. dated August 15, 2000. 10(ooo) Sale agreement relating to 10365 Sanden Drive, Dallas, Texas between Cerprobe Corporation (seller) and Assurance Capital, Inc. on September 12, 2000. 10(ppp) Lease agreement dated September 12, 2000 on 10365 Sanden Drive, Dallas, Texas between Cerprobe Corporation and SJS Sanden, L.P. 10(qqq) Lease agreement dated June 30, 2000 between Copelco Capital, Inc. and Cerprobe Corporation. 10(rrr) Lease agreement dated September 29, 2000 between Dell Financial Services and Cerprobe Corporation 10(sss) Amendment to the Change of Control Agreement dated August 17, 2000 between Cerprobe Corporation and C. Zane Close. 10(ttt) Amendment to the Change of Control Agreement dated August 17, 2000 between Cerprobe Corporation and Michael K. Bonham 10(uuu) Amendment to the Change of Control Agreement dated August 17, 2000 between Cerprobe Corporation and Daniel J. Hill. 20 21 10(vvv) Amendment to the Change of Control Agreement dated August 17, 2000 between Cerprobe Corporation and Randal L. Buness 10(www) Lease agreement dated November 2, 2000 between Dell Financial Services and Cerprobe Corporation 10(xxx) Stock Option Agreement dated October 11, 2000 between Kulicke and Soffa Industries, Inc. and Cerprobe Corporation (incorporated by reference to Exhibit (d) (2) of the Schedule TO filed by Kulicke and Soffa Industries, Inc. on October 25, 2000. 10(yyy) Agreement to Terminate Employment and Change of Control Agreements with Cerprobe Corporation dated October 11, 2000 between Cerprobe Corporation and C. Zane Close (incorporated by reference to Exhibit 4 of the Schedule 14d-9 filed by Cerprobe Corporation on October 25, 2000). 10(zzz) Agreement to Terminate Employment and Change of Control Agreements with Cerprobe Corporation Dated October 11, 2000 between Cerprobe Corporation and Randal L. Buness (incorporated by reference to Exhibit 10 of Schedule 14d-9 filed by Cerprobe Corporation on October 25, 2000). 10(aaaa) Agreement to Terminate Employment and Change of Control Agreements with Cerprobe Corporation dated October 11, 2000 between Cerprobe Corporation and Michael K. Bonham (incorporated by reference to Exhibit 11 of the schedule 14d-9 filed by Cerprobe Corporation on October 25, 2000). 10(bbbb) Agreement to Terminate Employment and Change of Control Agreements with Cerprobe Corporation dated October 11, 2000 between Cerprobe Corporation and Daniel J. Hill (incorporated by reference to Exhibit 12 of the schedule 14d-9 filed by Cerprobe Corporation on October 25, 2000). 11 Computation of Net Income Per Share. 27.1 Financial Data Schedule - September 30, 2000 b. Reports on Form 8-K No Reports on Form 8-K were filed by the Company during the quarter ended September 30, 2000. 21 22 Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has caused this report to be signed on its behalf by the undersigning thereunto duly authorized. CERPROBE CORPORATION /s/ Randal L. Buness Randal L. Buness Senior Vice President - Chief Financial Officer November 10, 2000 22 23 Exhibit Index 2(b) Agreement and Plan of Merger dated October 11, 2000 among Kulicke and Soffa Industries, Inc., Cardinal Merger Sub., Inc. and Cerprobe Corporation (incorporated by reference to Exhibit (d) (1) of the Schedule TO filed by Kulicke and Soffa Industries, Inc. on October 25, 2000). 3(d) Incorporation documents for OZTEK (M) Sdn. Bhd. dated November 11, 1999. 4(e) First Amendment to Rights Agreement dated October 11, 2000 between Cerprobe Corporation and Computershare Trust Company, Inc. (as successor in interest to American Securities Transfer and Trust, Inc.) 24 (incorporated by reference to Exhibit 8 of the schedule 14d-9 filed by Cerprobe Corporation on October 25, 2000). 10(iii) Promissory Note entered into on June 8, 2000 between Cerprobe Corporation as lender and Daniel J. Hill as borrower for $45,000. 10(jjj) A Tenancy Agreement between Best I.Q., Inc., and Cerprobe Corporation for the lease of Lot No. P.T. No. 2878, Mukim 12, Daerah Barat Dayna Penang along with a building No. Plot 47 Phase IV, Jalan Bund, 11900 Bayan Lepas, Penang. 10(kkk) Amendment to Tenancy Agreement between Best I.Q., Inc and Cerprobe Corporation for the buildout of the premises. 10(lll) Agreement between Cerprobe Corporation and Build-Tec Management SDN. BHD. for the renovation of an existing factory on Plot 47 (F.T.Z.) Phase 4 Bayan Lepas. 10(mmm) Amendment Agreement dated July 4, 2000, to a Promissory Note between Cerprobe Corporation and Ali Bushehri as agent for Nasser Barabi, Iraj Barabi, Ali Bushehri, Ahmad Barabi, the Ali and Nassrin Bushehri Trust and Ahmad and Zakieh Barabi Trust. 10(nnn) Amendment No. 1 to Loan and Security Agreement between Bank of America, N.A. and Cerprobe Corporation, Cerprobe Interconnect Solutions, Inc., OZ Technologies, Inc. and Triple S. Engineering, Inc. dated August 15, 2000. 10(ooo) Sale agreement relating to 10365 Sanden Drive, Dallas, Texas between Cerprobe Corporation (seller) and Assurance Capital, Inc. on September 12, 2000. 10(ppp) Lease agreement dated September 12, 2000 on 10365 Sanden Drive, Dallas, Texas between Cerprobe Corporation and SJS Sanden, L.P. 10(qqq) Lease agreement dated June 30, 2000 between Copelco Capital, Inc. and Cerprobe Corporation. 10(rrr) Lease agreement dated September 29, 2000 between Dell Financial Services and Cerprobe Corporation 10(sss) Amendment to the Change of Control Agreement dated August 17, 2000 between Cerprobe Corporation and C. Zane Close. 10(ttt) Amendment to the Change of Control Agreement dated August 17, 2000 between Cerprobe Corporation and Michael K. Bonham 10(uuu) Amendment to the Change of Control Agreement dated August 17, 2000 between Cerprobe Corporation and Daniel J. Hill. 25 10(vvv) Amendment to the Change of Control Agreement dated August 17, 2000 between Cerprobe Corporation and Randal L. Buness 10(www) Lease agreement dated November 2, 2000 between Dell Financial Services and Cerprobe Corporation 10(xxx) Stock Option Agreement dated October 11, 2000 between Kulicke and Soffa Industries, Inc. and Cerprobe Corporation (incorporated by reference to Exhibit (d) (2) of the Schedule TO filed by Kulicke and Soffa Industries, Inc. on October 25, 2000. 10(yyy) Agreement to Terminate Employment and Change of Control Agreements with Cerprobe Corporation dated October 11, 2000 between Cerprobe Corporation and C. Zane Close (incorporated by reference to Exhibit 4 of the Schedule 14d-9 filed by Cerprobe Corporation on October 25, 2000). 10(zzz) Agreement to Terminate Employment and Change of Control Agreements with Cerprobe Corporation Dated October 11, 2000 between Cerprobe Corporation and Randal L. Buness (incorporated by reference to Exhibit 10 of Schedule 14d-9 filed by Cerprobe Corporation on October 25, 2000). 10(aaaa) Agreement to Terminate Employment and Change of Control Agreements with Cerprobe Corporation dated October 11, 2000 between Cerprobe Corporation and Michael K. Bonham (incorporated by reference to Exhibit 11 of the schedule 14d-9 filed by Cerprobe Corporation on October 25, 2000). 10(bbbb) Agreement to Terminate Employment and Change of Control Agreements with Cerprobe Corporation dated October 11, 2000 between Cerprobe Corporation and Daniel J. Hill (incorporated by reference to Exhibit 12 of the schedule 14d-9 filed by Cerprobe Corporation on October 25, 2000). 11 Computation of Net Income Per Share. 27.1 Financial Data Schedule - September 30, 2000 EX-3.D 2 p63766ex3-d.txt EX-3.D 1 [LOGO] PEJABAT PENDAFTAR SYARIKAT MALAYSIA BORANG 9 AKTA SYARIKAT, 1965 EXHIBIT 3(d) No. Syarikat Seksyen 16 (4) - ------------ 498653 M - ------------ PERAKUAN PEMERBADANAN SYARIKAT SENDIRIAN Adalah diperakui bahawa OZTEK (M) SDN. BHD. telah diperbadankan di bawah Akta Syarikat, 1965 pada dan mulai dari 11 haribulan November 1999, dan bahawa syarikat ini adalah sebuah syarikat berhad menurut syer dan bahawa syarikat ini adalah sebuah syarikat sendirian. Dibuat di bawah tandatangan dan meterai saya di BUTTERWORTH pada 11 haribulan November 1999. [SEAL] /s/ Harun Bin MohD. Yunus HARUN BIN MOHD. YUNUS PENOLONG PENDAFTAR SYARIKAT MALAYSIA Borang ini diterjemahkan oleh peguam Negara malaysia menurut pemberitahu undangon no. 12 tahun 1964; pn (sbk) 23pt. 11, p.s. 7/81 jld. Z 2 Form 49 Company No -2- 498653 M Section 141(6) OZTEK (M) SDN. BHD. MANAGERS AND SECRETARIES
- -------------------------------------------------------------------------------------------------------------------------------- OFFICE IN FULL NAME NATIONALITY/ RESIDENTIAL ADDRESS OTHER NATURE OF IDENTITY COMPANY RACE OCCUPATION APPOINTMENT CARD NO/ (if any) OR CHANGE AND PASSPORT RELEVANT DATE NO. - -------------------------------------------------------------------------------------------------------------------------------- Managers........... Nil Nil Nil Nil Nil Nil Secretaries........ Kam Seok Har (f) Malaysian 10 Persiaran Pekeliling Company As name in the 630322-07-5424 (LS 007082) Chinese Fettes Park Secretary Articles of [Illegible] (New) 11200 Tanjong Bungah Association 7018571(B)(Old) Penang - --------------------------------------------------------------------------------------------------------------------------------
Dated this 11th day of November, 1999 /s/ Seow Siew Lian ------------------------------ Signature of Director/Secretary SEOW SIEW LIAN Lodged By Interesources Secretarial Services Sdn Bhd (274147-V) Address Room B 3rd Floor 309-Ojalan Perak, 10150 Penang Tel 04 2818767 fax 04-282-0200 0428020200 3 FORM 49 COMPANIES ACT, 1965 Company No. 498653 M Section 141(6) RETURN GIVING PARTICULARS IN REGISTER OF DIRECTORS, MANAGERS AND SECRETARIES AND CHANGES OF PARTICULARS OZTEK (M) SDN. BHD. *DIRECTORS*
- ------------------------------------------------------------------------------------------------------------------------------------ FULL NAME NATIONALITY DATE OF RESIDENTIAL ADDRESS BUSINESS PARTICULARS NATURE OF IDENTITY RACE BIRTH OCCUPATION OF OTHER APPOINTMENT CARD NO/ (if any) DIRECTORSHIPS OR CHANGE AND PASSPORT RELEVANT DATE NO. - ------------------------------------------------------------------------------------------------------------------------------------ Seow Siew Lian (f) Malaysian 08 07 60 6 Medan Lim Cheng Teik Company Nil As name in the 600708-07-5286 Chinese 10250 Georgetown Director Articles of [Illegible](New) Penang Association 5995194(B)(Old) Teng Bee Suan (f) Malaysian 04 04 75 18-C Lorong Batu Lancang Company Nil As name in the 75040-07-5408 Chinese 11600 Georgetown Director Articles of [Illegible](New) Penang Association A3014100(B)(Old) - ------------------------------------------------------------------------------------------------------------------------------------
EX-10.III 3 p63766ex10-iii.txt EX-10.III 1 Exhibit 10(iii) SECURED PROMISSORY NOTE Phoenix, Arizona June 8, 2000 $45,000.00 1. FUNDAMENTAL PROVISIONS. The following terms will be used as defined terms in this Secured Promissory Note ("Note"): Lender: Cerprobe Corporation, a Delaware corporation. Borrower: Daniel J. Hill Principal Amount: Forty-Five Thousand Dollars and No/100 Dollars ($45,000.00). Interest Rate: Six percent (6%) per annum. Default Interest Rate: Ten percent (10%) per annum above the Interest Rate. Maturity Date: December 31, 2000. Business Day: Any day of the year other than Saturdays, Sundays and legal holidays. Loan: The loan from Lender to Borrower in the Principal Amount and evidenced by this Note.
2. PROMISE TO PAY. For value received, Borrower promises to pay to the order of Lender, at its office at 1150 North Fiesta Boulevard, Gilbert, Arizona, 85233, or at such other place as the Lender may from time to time designate in writing, the Principal Amount, together with accrued interest from the date of disbursement on the unpaid principal balance at the Interest Rate. 2 3. INTEREST; PAYMENTS. (a) Absent an Event of Default hereunder, the Principal Amount shall bear interest at the Interest Rate. Throughout the term of this Note, interest shall be computed by applying the ratio of the annual interest rate over a year of 365 days, multiplied by the outstanding principal balance, multiplied by the actual number of days the principal balance is outstanding. (b) All payments of principal and interest due hereunder shall be made (i) without deduction of any present and future taxes, levies, imposts, deductions, charges, or withholdings, which amounts shall be paid by Borrower, and (ii) without any other set off. Borrower will pay the amounts necessary such that the gross amount of the principal and interest received by the Lender is not less than that required by this Note. (c) The entire unpaid principal balance, all accrued interest and any other, amounts payable hereunder shall be paid in full on or before the Maturity Date. 4. PREPAYMENT. Borrower may prepay the Loan, in whole or in part, at any time without penalty or premium. 5. LAWFUL MONEY. Principal and interest are payable in lawful money of the United States of America. 6. APPLICATION OF PAYMENTS/LATE CHARGE/DEFAULT INTEREST. (a) Unless otherwise agreed to, in writing, or otherwise required by applicable law, payments will be applied first to accrued, unpaid interest, then to principal, and any remaining amount to any unpaid collection costs, late charges, and other charges, provided, however, upon delinquency or other default, Lender reserves the right to apply payments among principal, interest, late charges, collection costs, and other charges at its discretion. All prepayments shall be applied to the indebtedness owing hereunder in such order and manner as Lender may from time to time determine in its sole discretion. (b) If any payment of interest and/or principal is not received by the holder hereof when such payment is due, then in addition to the remedies conferred upon the holder hereof pursuant to this Note, a late charge of five percent of 2 3 the amount of the regularly scheduled payment or $25.00, whichever is greater, up to the maximum amount of $1,500.00 per late charge will be added to the delinquent amount to compensate the holder hereof for the expense of handling the delinquency for any payment past due in excess of ten days, regardless of any notice and cure periods. (c) Upon the occurrence of an Event of Default, including the failure to pay upon final maturity, Lender, at its option, may also, if permitted under applicable law, do one or both of the following: (i) increase the applicable Interest Rate on this Note to the Default Interest Rate, and (ii) add any unpaid accrued interest to principal and such sum will bear interest therefrom until paid at the rate provided in this Note (including any increased rate). The interest rate will not exceed the maximum rate permitted by applicable law. 7. SECURITY. This Note is secured by the Signature of the Borrower. 8. EVENT OF DEFAULT. The occurrence of any of the following shall be deemed to be an event of default ("Event of Default") hereunder: (a) default in the payment of principal or interest when due pursuant to the terms hereof and the expiration of five days after written notice of such default from Lender to Borrower; (b) if the Borrower is an employee of the Lender, the Borrower's termination of employment with "Cause" or the Borrower's voluntary resignation without "Good Reason" as such terms are defined in Section 9 below; (c) if the Borrower is a non-employee director of the Company, the Borrower's ceasing to provide services as a director to the Company; 3 4 9. DEFINITION OF CAUSE AND GOOD REASON (a) Cause. For purposes of this Loan, a termination of employment for "Cause" means a termination of employment resulting from a determination by the Lender that the Borrower has: (i) been convicted of a felony involving dishonesty, fraud, theft, or embezzlement; (ii) repeatedly failed or refused, in a material respect, to follow reasonable policies or directives established by the Lender and after written notice thereof from the Lender, and a reasonable opportunity by the Borrower to cure such failures or refusals after having been given reasonable written notice of such failures or refusals; (iii) willfully and persistently failed to attend to the material duties or obligations imposed upon Borrower after reasonable written notice from the Lender and a reasonable opportunity by the Borrower to cure such failure; (iv) performed an act or failed to act, which, if the Borrower were prosecuted and convicted, would constitute a felony involving $1,000 or more of money or property of the Lender, or (v) intentionally misrepresented or concealed a material fact for purposes of securing employment with the Lender. (b) Good Reason. For purposes of this Loan, a termination of employment for "Good Reason" means any of the following events: (i) the assignment to the Borrower of any duties that are inconsistent with, or the reduction of powers or functions associated with, the Borrower's position, duties, or responsibilities with the Lender, or an adverse change in the Borrower's titles, authority, or reporting responsibilities, or in conditions of the Borrower's employment, (ii) the Borrower's base salary is reduced or the potential incentive compensation (or bonus) to which the Borrower may become entitled to at any level of performance by the Borrower or the Lender is reduced, (iii) the failure of the Lender to cause any successor to expressly assume and agree to be bound by the terms of this Agreement, (iv) any purported termination by the Lender of the Borrower's employment for grounds other than for "Cause," (v) the Lender relieving the Borrower of the Borrower's duties other than for "Cause," (vi) the Borrower is required to relocate to an employment location that is more than fifty (50) miles from Gilbert, Arizona. 10. REMEDIES. Upon the occurrence of an Event of Default, then at the option of the holder hereof, the entire balance of principal together with all accrued interest thereon, and all other amounts payable by Borrower under the Loan Documents shall, without demand or notice, immediately become due and payable. Upon the occurrence of an Event of Default (and so long as such Event of Default shall continue), the entire balance of principal hereof, together with all accrued interest thereon, all other 4 5 amounts due under the Loan Documents, and any judgment for such principal, interest, and other amounts shall bear interest at the Default Interest Rate, subject to the limitations contained in Section 15 hereof. No delay or omission on the part of the Lender in exercising any right under this Note or under any of the other Loan Documents hereof shall operate as a waiver of such right. 11. WAIVER. Borrower, endorsers, guarantors, and sureties of this Note hereby waive diligence, demand for payment, presentment for payment, protest, notice of nonpayment, notice of protest, notice of intent to accelerate, notice of acceleration, notice of dishonor, and notice of nonpayment, and all other notices or demands of any kind (except notices specifically provided for in the Loan Documents) and expressly agree that, without in any way affecting the liability of Borrower, endorsers, guarantors, or sureties, the Lender may extend any maturity date or the time for payment of any installment due hereunder, otherwise modify the Loan Documents, accept additional security, release any person liable, and release any security or guaranty. Borrower, endorsers, guarantors, and sureties waive, to the full extent permitted by law, the right to plead any and all statutes of limitations as a defense. 12. CHANGE, DISCHARGE, TERMINATION, OR WAIVER. No provision of this Note may be changed, discharged, terminated, or waived except in a writing signed by the party against whom enforcement of the change, discharge, termination, or waiver is sought. No failure on the part of the Lender to exercise and no delay by the Lender in exercising any right or remedy under this Note or under the law shall operate as a waiver thereof. 13. ATTORNEYS' FEES. If this Note is not paid when due or if any Event of Default occurs, Borrower promises to pay all costs of enforcement and collection and preparation therefor, including but not limited to, reasonable attorneys' fees, whether or not any action or proceeding is brought to enforce the provisions hereof (including, without limitation, all such costs incurred in connection with any bankruptcy, receivership, or other court proceedings (whether at the trial or appellate level)). 14. SEVERABILITY. If any provision of this Note is unenforceable, the enforceability of the other provisions shall not be affected and they shall remain in full force and effect. 15. INTEREST RATE LIMITATION. 5 6 Borrower hereby agrees to pay an effective rate of interest that is the sum of the interest rate provided for herein, together with any additional rate of interest resulting from any other charges of interest or in the nature of interest paid or to be paid in connection with the Loan, including, without limitation, any other fees to be paid by Borrower pursuant to the provisions of the Loan Documents. Lender and Borrower agree that none of the terms and provisions contained herein or in any of the Loan Documents shall be construed to create a contract for the use, forbearance, or detention of money requiring payment of interest at a rate in excess of the maximum interest rate permitted to be charged by the laws of the State of Arizona. In such event, if any holder of this Note shall collect monies which are deemed to constitute interest which would otherwise increase the effective interest rate on this Note to a rate in excess of the maximum rate permitted to be charged by the laws of the State of Arizona, all such sums deemed to constitute interest in excess of such maximum rate shall, at the option of the Lender, be credited to the payment of other amounts payable under the Loan Documents or returned to Borrower. 16. HEADINGS. Headings at the beginning of each numbered section of this Note are intended solely for convenience and are not part of this Note. 17. CHOICE OF LAW. This Note shall be governed by and construed in accordance with the laws of the State of Arizona without giving effect to conflict of laws principles. 18. INTEGRATION. The Loan Documents contain the complete understanding and agreement of the Lender and Borrower and supersede all prior representations, warranties, agreements, arrangements, understandings, and negotiations. 19. BINDING EFFECT. The Loan Documents will be binding upon, and inure to the benefit of, the Lender, Borrower, and their respective successors and assigns. Borrower may not delegate its obligations under the Loan Documents. 20. TIME OF THE ESSENCE. Time is of the essence with regard to each provision of the Loan Documents as to which time is a factor. 6 7 21. SURVIVAL. The representations, warranties, and covenants of the Borrower in the Loan Documents shall survive the execution and delivery of the Loan Documents and the making of the Loan. BORROWER: By: /s/ Daniel J. Hill ----------------------------- Name: Daniel J. Hill Title: Chief Operating Officer 7 EX-10.JJJ 4 p63766ex10-jjj.txt EX-10.JJJ 1 EXHIBIT 10(jjj) TENANCY AGREEMENT A TENANCY AGREEMENT effective as of the 1st day of May, 2000 between BEST I.Q. Inc., a foreign company incorporated in the State of California. America (Company No. 993481) with its registered office at No. 1248, Reamwood Avenue, Sunnyvale, County of Santa Clara, State of California, America (hereinafter called "the Landlord" which expression shall where the context so admits include their successors and assigns) of the one part and CERPROBE CORPORATION, a foreign company incorporated in the State of Delaware, America, with its registered office at 1150 North Siesta Boulevard, Gilbert, Arizona, America (hereinafter called "the Tenant") of the other part. WHEREAS the Landlord is the registered proprietor of all that piece of land and hereditaments known as Lot No. P.T. No. 2878, Mukim 12, Daerah Barat Daya Penang held under Suratan Hakmilik Sementara No. H.S. (D) 8658 together with a single story building bearing Premises No. Plot 47 Phase IV, Jalan Bund, 11900 Bayan Lepas, Penang erected thereon (hereinafter referred to as "the said Premises"). NOW THIS AGREEMENT WITNESSETH as follows: 1. The Landlord agrees to let and the Tenant agrees to take the whole of the said Premises together with the use of all the machineries, equipments, furnitures, fixtures, and fittings, as per the Inventory list annexed hereto as "Appendix A" in the said Premises. 2. The tenancy shall be for a term of five (5) years commencing from the 1st day of May, 2000 and expiring on the 30th day of April, 2005, at a triple net rent expressed in Ringgit Malaysia ("RM") as follows: RM Ten Thousand (RM10,000.00) only per month for each month during the first Lease Year RM Twelve Thousand Five Hundred (RM12,500.00) only per month for each month during the second Lease Year RM Fifteen Thousand (RM15,000.00) only per month for each month during the third Lease Year RM Eighteen Thousand Five Hundred (RM18,500.00) only per month for each month during the fourth Lease Year RM Twenty Thousand (RM20,000.00) only per month for each month during the fifth Lease Year "Lease Year" shall mean a period of twelve calendar months beginning on May 1 of each year. The first of such payments shall be made on or before the execution of this Agreement and 2 such subsequent rent payments are payable in advance and shall be received by the Landlord on or before the seventh (7th) day of each and every succeeding month. Rent set out above is less than the fair market rental value of the Premises and the reduction from fair value is based on, and in consideration for, the premise that Tenant shall complete building and leasehold improvements to the Premises at a minimum cost (materials and labour) of US$300,000 within the first six months of the tenancy. On or before November 1, 2000, Tenant will provide to Landlord a written report specifying in reasonable detail the cost of all such improvements completed to that date, with copies of invoices and evidence of payment thereof to support such amounts, and Landlord will have a reasonable opportunity to review and verify such report. In the event that the verified cost of such building and leasehold improvements is less than US$300,000, Tenant will pay to Landlord, as additional rent, a lump sum payment equal to the result (C) of the following formula: (US$300,000) less (the actual cost of building and leasehold improvements) equals (A); (A) divided by (US$300,000) equals (B); (B) times (US$127,000) equals (C). All such improvements shall become the property of landlord and will remain with the Premises upon the expiration or sooner termination of the tenancy, except interior walls and partitions, which will be removed or left, as directed by Landlord. Provided Tenant is not in default under the terms of this Agreement, Tenant shall have the option to extend the term of this Lease for two (2) optional renewal terms of twelve (12) months each beginning immediately upon the end of the fifth Lease Year or first optional renewal Lease Year, as the case may be. All of the terms of this Lease shall continue to apply during the optional renewal Lease Years except that the rent shall be as described in the paragraph immediately following. Tenant shall exercise its option to renew as follows: Tenant shall give Landlord written notice of exercise of its intention to exercise each renewal option no later than two (2) months prior to the end of the fifth Lease Year or first optional renewal Lease Year, as the case may be, timely notice being an express condition of valid exercise. Rent for each of the optional renewal Lease Years shall be the higher of RM30,000 per month plus ten percent (10%) or the current market rate. 3. THE TENANT AGREES WITH THE LANDLORD as follows: (a) to pay the said rent on the days and in the manner aforesaid by either: (i) crediting the Landlord's current account No. 372654281 -001 with the Hong Kong and Shanghai Banking Corporation at No. 11, Beach Street, Penang, and to confirm to the Landlord via fax of the deposit or tele-transfer; or (ii) sending a cashier order/demand draft payable to the Landlord to the Landlord's office at BEST I.Q., Inc. 1246 Reamwood Avenue, Sunnyvale, CA 94089 (whose receipt shall be good and sufficient discharge to the Tenant). (b) to observe, perform and comply with all ordinances, regulations, by-laws and rules, all notices and requirements of the appropriate local authorities in connection with or in 2 3 relation to the Tenant's business carried on in the said Promises and the permitted user of the said Premises; (c) to pay all charges for property tax, water, electricity, telephone, power equipment, air conditioning, roof repair, water tank, septic tank or sewage maintenance during the continuance of the tenancy and upon execution of this Agreement to place any required security deposit(s) with the relevant authorities for the connection of the above utilities to the said Premises; (d) to pay all fees and other sums payable in respect of any license granted by any authority in respect of the business carried on by the Tenant on the said Premises and the Tenant shall at all times maintain valid manufacturing license during the term of this tenancy. (e) to use the said Premises for the Tenant's business as permitted under the license issued by the appropriate authorities which the Tenant warrants include manufacturing as well as storing finished products and spare parts, etc. used and/or to be used in connection with the Tenant's business of moulds, tools and dies for electric and electronic industries. The Tenant shall not use or permit the use of the said Premises for residential or sleeping purposes nor to carry on or permit to be carried on any vocation which would be inconsistent to the permitted user of the said Premises. (f) to comply with all by-laws, regulations and planning schemes of the relevant local authority or of any other public authority affecting the said Premises or the Tenant's occupation thereof or the business carried on in the said Premises. (g) to keep every part of the interior of the said Premises (including the ceiling, doors and windows and all the fixtures and fittings therein and the doors, windows glass, shutters, locks, fastenings, fittings, for light and power fixtures) clean and in good and tenantable repair and condition (damage by fire, lightning, termite, war, riot or tempest alone excepted) and also to clean and keep clean the exterior of the windows to the said Premises; (h) to permit the Landlord and its duly authorized agents, surveyors and workmen with all necessary appliances at all reasonable times of the day to enter the said Premises or any part thereof in order to view the said Premises or of taking inventories of the Landlord's machineries, equipments, furnitures, fixtures and fittings therein, or of doing such work, and things as may be required for any repairs, alterations or improvements either of the said Premises and the wires, pipes or drains or of any other parts of the said Premises and within one (1) calendar month of notice given by the Landlord, to execute any repairs and make any replacement of the Landlord's machineries, equipments, furnitures, fixtures and fittings lawfully required by such notice; (i) not to use the said Premises or suffer the same to keep be used for any offensive, noisy or dangerous trade, business, manufacture or occupation or for any purpose or in 3 4 any manner which may be a nuisance or annoyance to the Landlord or the owners or occupiers of neighboring or adjacent premises in the Landlord's opinion detrimental to the use of the said Premises. PROVIDED that the carrying on in a proper manner and in such a way as to cause as little nuisance to the Landlord or the owners or occupiers of neighboring or adjacent premises as is reasonably possible of the trade or business hereby provided for shall not be deemed to be a breach of this covenant. On written notice being served on the said Premises by the Landlord's surveyor requiring the abatement of any nuisance caused by vibration, noise or offensive smell or by any undue emission of smoke, vapor or dust, the Tenant shall with all reasonable dispatch after the service of such notice, abate such nuisance accordingly. (j) not to assign, underlet or part with the possession of the said Premises or any part thereof or to allow anyone to use the said Premises as a licensee thereof without the Landlord's consent in writing (except to an affiliate of the Tenant), which consent however will not be unreasonably withheld or delayed; (k) (i) Upon the execution of this Agreement, the Tenant shall at its own cost and expenses insure the said Premises together with all the machineries, equipments, furnitures, fixtures and fittings therein belonging to the Landlord in the name of the Landlord against loss or damage by fire or tempest in the full value hereof with insurers of repute, and within seven (7) days upon the execution hereof to deliver a copy of such insurance policy effected to the Landlord together with a copy of the annual premium paid for their safe-keeping. At all times throughout the Tenancy, the Tenant shall maintain and renew the insurance and make prompt payment of all insurance premium payable as and when due. The Tenant shall not do or permit to be done anything whereby the policy or policies of insurance on the said Premises or on the said building may become void or voidable. (ii) the Tenant shall be responsible at all times during the term hereby created for insuring its own assets and or property in the Demised Premises. (iii) the Tenant shall at all times during the term hereby created keep in force sufficient third party liability insurance policy against death, bodily injury, and loss or damage to property of any person whether or not in the service of the Tenant in or about the said Premises and the Tenant shall deposit a copy of the said insurance with the Landlord. (iv) It is hereby agreed that the Landlord will not be responsible for any public or third party liabilities in respect of any injury loss or damages in or about the said Premises of the Tenant and the Tenant shall fully indemnify the Landlord against any such liabilities. (l) not to do anything which may result in any damage or blockage to the electrical connections and wiring and switches or to the lavatories, pipes, sewers and drains in the said Premises or leading to the septic tank or to the septic tank connected thereto and to 4 5 clean and make good every stoppage or damages to the toilets sewers, chutes and drains caused by the negligence of the Tenant, and to repay to the Landlord all costs incurred by the Landlord in repairing and making good such damage or stoppage; (m) not to injure, cut or maim any of the walls, partitions, timbers, floors, ceiling of the said Premises without the previous consent in writing of the Landlord (other than the initial building and leasehold improvements referred to above) and not to make or permit to be made any alterations in the internal arrangement or in the external appearance of the said Premises. PROVIDED ALWAYS that such alterations or additions made with the previous written consent and approval of the Landlord shall be at the Tenant's own expense and shall comply, with all the laws and by-laws and regulations in relation thereto and all damage caused thereby shall be made good by the Tenant; (n) to take such measures as may be necessary to ensure that any drain effluent discharged into the drains or sewers which belong to or are used for the said Premises in common with other premises will not be corrosive or in any way harmful to the said drains or sewers or cause any obstruction or deposit therein; (o) not to discharge or allow to be discharged any solid matter from the said Premises into the drains or sewers as aforesaid nor to discharge or allow to be discharged therein any fluid of a poisonous or noxious nature or of a kind calculated to or that does in fact destroy, sicken or injure the fish or contaminate or pollute the water of any stream or river and not to do or omit or allow or suffer to be done or omitted any act or thing whereby the waters of any stream or river may be polluted or the composition thereof so changed as to render the Landlord liable to any action or proceedings by any person whomsoever; (p) not to hold or suffer to be held any auction upon the said Premises without first obtaining the consent of the Landlord; (q) to permit prospective Purchasers and/or Tenants and others with written authority from the Landlord or its agents to view the said Premises at all reasonable times during the term of this Agreement; (r) to keep the said Premises in good condition and repair (fair wear and tear excepted) and upon termination of this Agreement to remove all partitions and interior walls put up by the Tenant (except as Landlord may direct to be retained) and generally to clean the interior to the satisfaction of the Landlord at the time of such termination and to repair any damage to the floor or any part of the said Premises caused by the removal of the Tenant's belongings from the said Premises; (s) at the determination of the said term, to yield up to the Landlord said Premises and all the machines, equipments, furnitures, fixtures and fittings as per the inventory List annexed hereto as "Appendix A" (other than the Tenant's fixtures and fittings) therein in such good and substantial repair as shall be in-accordance with the Tenant's covenants herein contained, with all locks and keys to the said Premises. 5 6 (t) not to exhibit on the outer wall or roofs of the said Premises or of any building or structure thereon any sign, signboard or hanging sign, fascia advertisement, placard or lettering except such as may previously have been approved by the Landlord and in default thereof, Landlord may enter and remove the same at the Tenant's cost. Notwithstanding such approval by the Landlord, the Tenant shall indemnify the Landlord against all damage caused to third parties by the advertising board or panel in any way whatsoever and to keep the Landlord indemnified against all claims, proceedings, costs and expenses in respect thereof. The Tenant shall be responsible for obtaining the permission of the local planning authority or other authority if and when necessary and to comply at all times with all acts, rules, regulations and bye-laws in force and to be solely responsible for any rates which may be assessed in respect of the board or panel; (u) to apply for the necessary permit from the relevant authority to use the said Premises for the purposes intended by the Tenant, if necessary, and to indemnify and keep the Landlord indemnified in the event of non-compliance with the rules and regulations imposed by the relevant authority. All cost and expenses of the application, if necessary, are to be borne solely by the Tenant. (v) at all times during the term hereof the Tenant shall abide by the following Acts, by-laws and such other legislation governing the trade and/or business of the Tenant and shall indemnify and keep the Landlord indemnified on the same: (i) The Environmental Quality Act, 1974 and the subsidiary legislation made thereto. (ii) the Local Government Act, 1976 (iii) Factories and Machinery Act, 1967 (iv) Undang-undang Kecil (Tred, Perniagaan dan Perindustrian) Majlis Perbandaraan Pulau Pinang, 1991 (vi) Undang-undang Kecil (Establisymen Makanan) Majlis Perbandaran Pulau Pinang, 1991 4. THE LANDLORD AGREES WITH THE TENANT as follows: (a) to pay all present and future rents including all and any increases which are imposed or charged on the said Premises during the tenancy hereby created; (b) to allow the Tenant to do or effect any repair or alteration to the said Premises as may from time to time be necessary for the Tenant's business purposes at the Tenant's own cost and expenses subject to the Landlord's written approval being obtained which shall not be unreasonably withheld and shall be granted by the Landlord subject to the Tenant 6 7 having obtained all the requisite approval from the relevant authority on the plans submitted, and undertaking to observe, perform and comply with all ordinances, regulations, by-laws and rules, all notices and requirements of the appropriate local authorities in connection with or in relation to the plans submitted for the repair, alteration or renovation to the said Premises; (c) The Tenant paying the rent hereby reserved and observing and performing the several covenants and stipulations on their part herein contained shall peaceably hold and enjoy the said Premises during the said term without any interruption by the Landlord or any person lawfully claiming under them or in trust for them. 5. PROVIDED AND IT IS HEREBY AGREED as follows: (a) if the rent hereby reserved or any part thereof shall at any time be unpaid for fourteen (14) days after becoming payable (whether formally demanded or not) or if any agreement on the part of the Tenant hereby contained shall not be performed or observed or if the Tenant or other person or persons in whom for the time being the term hereby created shall be vested, being a Company, shall enter into liquidation whether compulsory or voluntary (except for the purpose of amalgamation) or, being a non-corporate person, shall become a bankrupt or make an assignment for the benefit of its or their creditors or enter into an agreement or make any arrangement with its or their creditors for liquidation or its or their debts by composition or otherwise or suffer any distress or execution to be levied on its or their goods therein, then in any of the said cases, it shall be lawful for the Landlord at any time thereafter to re-enter upon the said Premises or any part thereof in the name of the whole and thereupon this demise shall absolutely determine but without prejudice to the right of action of the Landlord in respect of any breach of the agreement on the part of the Tenant herein contained; (b) acceptance of rent by the Landlord shall not be deemed to operate as a waiver by the Landlord of any right of action against the Tenant in respect of any breach of its obligations hereunder; (c) any fixtures, fittings, additions or improvement to the said Premises made by the Tenant to the said Premises shall belong absolutely to the Landlord and the Tenant shall not be entitled to any compensation whatsoever from the Landlord upon the termination of this Agreement; (d) the Landlord shall be entitled to levy on arrears of outstanding rental (which in this context herein, means the rentals not paid on or before the stipulated date of every month in Advance) a further sum of 12% per annum as administrative charges on a pro rata basis with daily interest until such sums are paid; (e) in case the said Premises or any part thereof shall at any time during the said term be destroyed or damaged by any cause including fire, lightning, war, riot or tempest so as to become unfit for occupation and use, then the Landlord shall not be bound or 7 8 compelled to rebuild or reinstate the same unless in its discretion it thinks fit. In the event of the Landlord deciding to rebuild and reinstate the said portion or part thereof which has been destroyed or damaged then (provided the money payable under any policy of insurance effected by the Tenant on behalf of the Landlord pursuant to clause 3(k) hereof shall not become irrecoverable through any act or default of the Tenant) the rent reserved, or a fair and just proportion thereof according to the nature and extent of the damaged sustained, shall be suspended and cease to be payable until the said Premises shall have been again rendered fit for occupation and use. In the event of the Landlord deciding not to rebuild and reinstate the said Premises or the part thereof destroyed or damaged, then the rent hereby reserved or a fair and Just proportion thereof shall cease to be payable from the happening of such destruction or damage aforesaid and the Tenant shall peaceably and quietly leave, surrender and yield up to the Landlord possession of so much of the said Premises as shall not have been destroyed and the Landlord shall refund the rent deposit paid or part thereof to the Tenant; (f) any notice herein required to be served shall be in writing and shall be served either personally or by sending it by registered post to such Premises or place to abode and in the case of a notice to be served on the Landlord it may be served in like manner; (g) in this agreement where the context so permits or requires the masculine shall include the feminine and neuter genders and the singular shall include the plural number and vice versa and where there are two (2) or more persons included in the expression "the Tenant," covenants expressed to be made by the Tenant shall be deemed to be made by such persons jointly and severally; (h) the Landlord and the Tenant hereby agree to bear equally all present assessment and future charges of the assessment rates in respect of the said Premises including any increases which may be imposed from time to time by the relevant authority. (i) each party shall bear the expense of its own solicitors in respect of this Agreement and the Tenant shall bear all stamp duty payable in respect of this Agreement. (j) neither party can terminate this Agreement before the expiry of the term hereof, provided always and it is hereby agreed by the Tenant that the Landlord reserves the absolute right to terminate this Agreement by giving three (3) months prior written notice to the Tenant pursuant to clause 5(k) hereof in the event the said Premises is disposed of to a third party. (k) (i) as additional consideration for this Agreement, Landlord, (hereinafter in this clause called "Seller"), hereby grants unto Tenant (hereinafter in this clause called "Buyer"), the exclusive Option for the period from the date hereof to and including expiry of this Agreement, (the "Expiration Date") to purchase the Premises for the Fair Market Value thereof as determined as of the date of exercise of the Option. The closing date shall be 90 days from the date of written consent 8 9 from the State Authority (as described below), provided that the within Option is exercised in accordance with the terms and conditions hereof. (ii) If Buyer elects to exercise this Option it shall do so by sending to Seller written notice of exercise. This Option shall expire and the rights of Buyer hereunder terminate if this Option is not exercised on or before the Expiration Date. If the Expiration Date occurs on a Saturday, Sunday or legal holiday (at the Premises), then the Expiration Date is extended to the next succeeding business day following such Saturday, Sunday or holiday. (iii) "Fair Market Value" means the gross price for which an owner would be willing to sell the property in question assuming owner to be a prudent person willing to sell but being under no compulsion to do so, and assuming the buyer to be a prudent person willing to buy but being under no compulsion to do so, assuming cash terms at closing (but in no case will fair market value be less than US$1,000,000). Seller shall initially determine the Fair Market Value and shall thereupon give Buyer written notice of such determination within twenty (20) days after Buyer's notice of exercise. If Buyer does not agree with Seller's determination of Fair Market Value, Buyer may give Seller written notice of disagreement within twenty (20) days after Seller's notice of its determination of Fair Market Value. If Buyer fails to give such notice of disagreement for any reason, then Buyer shall be bound by Seller's determination of Fair Market Value. (iv) if Buyer gives Seller notice of disagreement within the time permitted, each party will choose a person with at least five (5) years experience as a real estate appraiser in the metropolitan area in which the Premises are located, and give notice of the name and address of such person to the other within thirty (30) days of the notice of disagreement from Buyer. Those two persons shall within fifteen (15) days select a third person who is experienced as a like real estate appraiser, and the three persons (the "Experts") shall make a determination of Fair Market Value as follows: (aa) Each Expert will independently determine the Fair Market Value and then all will meet and simultaneously disclose to the others their respective determinations. The Fair Market Value shall be the average of the two determinations closest by dollar amount. (bb) The Experts shall promptly notify Seller and Buyer of each of their separate determinations and the resulting Fair Market Value. The determination of Fair Market Value pursuant to this procedure shall be final, binding and conclusive upon Seller and Buyer. (v) Each party will pay any and all fees and expenses incurred in connection with such party's Expert and the fees and expenses for the third Expert will be borne equally by the parties. 9 10 (vi) The terms of payment shall be 10% of the purchase price to be paid to the Seller (and the parties shall execute a purchase agreement as soon thereafter as practical) and the balance 90% of the purchase price to be paid within ninety (90) days from the date of the written consent from the State Authority. In the event the State Authority's consent could not be obtained or has rejected the application for sale, the 10% deposit shall be refunded by the Seller to the Buyer free of interest. Payment of the 10% deposit of the purchase price shall be made to the Seller. Evidence of title, prorations of costs and other terms of the purchase will follow accepted commercial practice in the location of the Premises. (1) the Tenant shall pay double rental per month to the Landlord as agreed liquidated damages for each month that the Tenant fails to vacate the said Premises or to remove the furnitures, fixtures and fittings or to give up all the keys to the said Promises in accordance with this clause whereupon it shall be lawful for the Landlord to call in contractors to remove the furniture, fixtures and partitions on its behalf and all costs of such work shall be a debt due to the Landlord and be recoverable by the Landlord, provided always that this shall not be deemed to be a waiver of any of the Landlord's rights whether herein contained or by law to recover any of the aforesaid sums and costs or balance thereof. (m) the Tenant hereby covenants with the Landlord that the Tenant does not require the tenancy herein created to be endorsed on the title(s) to the said land under the provisions of the National Land Code, 1965. 10 11 IN WITNESS WHEREOF the parties hereto have hereunto set their hands the day and year first above written. Signed by BEST I.Q., INC. on behalf of the Landlord /s/ ISAM QUBAIN, PRESIDENT in the presence of: -------------------------------- Isam Qubain, President Signed by /s/ NASSER BARABI -------------------------------- CERPROBE CORPORATION /s/ DANIEL J. HILL -------------------------------- Daniel J. Hill, Chief Operating Officer on behalf of the Tenant in the presence of: /s/ NASSRIN BUSHIHRI -------------------------------- 11 EX-10.KKK 5 p63766ex10-kkk.txt EX-10.KKK 1 Exhibit 10(KKK) [Cerprobe Corporation Letterhead] September 15, 2000 Mr. Isam Qubain BEST I.Q., Inc. 1248 Reamwood Avenue Sunnyvale, CA Re: Tenancy Agreement between BEST I.Q., Inc. and Cerprobe Corporation for the premises including the piece of land and hereditaments known as Lot No. P.T. No. 2878, Mukim 12, Daerah Barat Daya Penang held under Suratan Hakmilik Sementara No. H.S. (D) 8658 together with a single story building bearing Premises No. Plot 47 Phase IV, Jalan Bund, 11900 Bayan Lepas, Penang. Dear Mr. Qubain: Cerprobe Corporation has hired architects and contractors to complete improvement to the premises per the terms of the Tenancy Agreement. The estimated cost of the improvements undertaken by Cerprobe exceeds $400,000. Per our construction schedule, the planned completion of all improvements is during January 2001. Per the eighth (8th) paragraph of Section 2 in the Tenancy Agreement, Cerprobe is to complete $300,000 in improvements before November 1, 2000, or pay a lump sum of cash to you, the landlord. Cerprobe will be unable to complete all improvements by the November 1, 2000 date. We are requesting an amendment to the completion requirements are in the Tenancy Agreement; changing the date from November 1, 2000 to February 1, 2001. Please sign the attached Amendment and return a fully executed copy to my attention. Should you have any questions or concerns, please feel free to contact me at (510) 782-2654. Kind Regards, /s/ Daniel J. Hill Daniel J. Hill Executive Vice President & COO DJH/jb encl. cc: Nasser Barabi Paul Tullis 2 AMENDMENT 1 TO TENANCY AGREEMENT Reference: Tenancy Agreement between BEST I.Q., Inc. and Cerprobe Corporation for the premises including the piece of land and hereditaments known as Lot No. P.T. No. 2878, Mukim 12 Daerah Barat Daya Penang held under Suratan Hakmilik Sementara No. H.S. (D) 8658 together with a single story building bearing Premises No. Plot 47 Phase IV, Jalan Bund, 11900 Bayan Lepas, Penang. In the eighth (8th) paragraph of Section 2 of the Tenancy Agreement, sentence two, change the wording from: "on or before November 1, 2000", to "on or before February 1, 2001". Signed By: Signed By: /s/ Daniel J. Hill /s/ Isam Qubain - -------------------------- -------------------------- Daniel J. Hill Isam Qubain For Cerprobe Corporation For BEST I.Q., Inc. Sept. 15, 2000 Sept. 18, 2000 - -------------------------- -------------------------- Date Date EX-10.LLL 6 p63766ex10-lll.txt EX-10.LLL 1 EXHIBIT 10(LLL) ARTICLES OF AGREEMENT made the day of 2000 between CERPROBE CORPORATION, whose registered office is situated at 1150 North Fiesta Boulevard, Gilbert, Arizona 85233 USA. PENANG, MALAYSIA or its assignee (hereinafter called "the Employer") of the one part and BUILD-TEC MANAGEMENT SDN, BHD, whose place of business is situated at 76-6, LORONG SELAMAT, 10400 PENANG, MALAYSIA, (hereinafter called "the Contractor") of the other part. Should CERPROBE CORPORATION ("the Employer") form a registered in Malaysia subsidiary this agreement shall automatically be assigned to said Malaysian registered subsidiary who thereafter shall be the Employer. WHEREAS A. The Employer is desirous of obtaining the construction of the PROPOSED RENOVATION WORKS TO AN EXISTING FACTORY ON PLOT 47 (F.T.Z.) PHASE 4, BAYAN LEPAS, for which works he has issued to the Contractor his requirements (hereinafter referred to as "the Employer's Requirements"). B. The Contractor has submitted proposals for carrying out the works referred to in the First Recital (hereinafter referred to as "the Contractor's Proposals") which include the statement of the sum which he will require for carrying out that which is necessary for completing all such works in accordance with the Conditions (which is the Contract Sum stated in Article 2) and has also submitted an analysis of that sum (hereinafter referred to as "the Contract Sum Analysis") which is annexed to the Contractor's Proposals. C. The Employer has examined the Contractor's Proposals and the Contract Sum Analysis and, subject to the Conditions hereinafter contained, is satisfied that they appear to meet the Employer's Requirements. NOW IT IS HEREBY AGREED AS FOLLOWS ARTICLE 1 Upon and subject to the conditions, the Contractor will, for the consideration mentioned in Article 2, both complete the design for the Works and carry out and complete the construction of the Works. 1 2 ARTICLE 2 The Employer will pay to the Contractor the sum of Ringgit $1,338,000 (hereinafter referred to as the "the Contract Sum") or such other sum as shall become payable hereunder at the times and in the manner specified in the Conditions. ARTICLE 3 DJ HILL or such other person as the Employer shall nominate in his place for the purpose shall be the Employer's Agent referred to in clauses 5.4 and 11 and, save to the extent which the Employer may otherwise specify by written notice to the Contractor, for the receiving or issuing of such applications, consents, instructions, notices, requests or statements or for otherwise acting for the Employer under any other of the Conditions. ARTICLE 4 The Employer's Requirements, the Contractor's Proposal and the Contract sum Analysis have been signed by the Parties and are identified in Appendix 3 to the Conditions. ARTICLE 5 If any dispute or difference as to the construction of this Contract or any matter or thing of whatsoever nature arising hereunder or in connection therewith shall arise between the Employer and the Contractor either during the progress or after the completion or abandonment of the Works it shall be and is hereby referred to arbitration in accordance with clause 39. AS WITNESS THE HAND OF THE PARTIES HERETO Signed by /s/ DJ Hill for and on behalf of the Employer in the presence of [J Bonilla] Signed by for and on behalf of the Contractor in the presence of: 2 3 CONDITIONS 1. INTERPRETATION, DEFINITIONS, ETC. 1.1 Unless otherwise specifically stated a reference in the Articles of Agreement, the Conditions or the Appendices to any clause means that clause of the Conditions. 1.2 The Articles of Agreement, the Conditions and the Appendices are to be read as a whole and the effect or operation of any article or clause in the Conditions or item in or entry in the Appendices must therefore unless otherwise specifically stated be read subject to any relevant qualification or modification in any other article or any of the clauses in the Conditions or item in or entry in the Appendices. 1.3 Unless the context otherwise requires or the Articles or the Conditions or an item in or entry in the Appendices specifically otherwise provides, the following words and phrases in the Articles of Agreement, the Conditions and the Appendices shall have the meanings given below or as ascribed in the article, clause or Appendix item to which reference is made: WORD OR PHRASE MEANING All Risks Insurance : See clause 22.2 Appendix 1 or 2 or 3 : Appendix 1 or 2 or 3 to the Conditions as completed by the parties. Appendices : Appendix 1 and 2 and 3 to the Conditions as completed by the parties. Arbitrator : The person appointed under CLAUSE 39 to be the Arbitrator. Articles or Articles of : The Articles of Agreement to which the Agreement Conditions are annexed, and references to any recital are to recitals set out before the Articles. Base Date : The date stated in Appendix 1. Change in Employer's : See CLAUSE 12.1 Requirements or Change 3 4 Completion Date: the Date for Completion as fixed and stated in Appendix 1 or any date fixed under CLAUSE 25. Conditions: the clauses 1 to 39. Contractor: the person named as Contractor in the Articles of Agreement. Contractor's Proposals: see the Second RECITAL. Contract Sum: the sum named in ARTICLE 2. Contract Sum Analysis: the analysis of the Contract Sum to have been prepared by the Contractor for the purposes of this Contract as referred to in the SECOND RECITAL. Date of Completion: the date fixed and stated in Appendix 1. Date of Possession: the date stated in Appendix 1 under the reference to CLAUSE 23.1 Defects Liability Period: the period named in Appendix 1 under the reference to CLAUSE 16.2 Development Control Requirements: any statutory provisions and any decision of a relevant authority thereunder which control the right to develop the site. Employer: the person named as Employer in the Articles of Agreement. Employer's Agent: see ARTICLE 3. Employer's Requirement: see the FIRST RECITAL. Excepted Risks: Ionising radiations or contamination by radioactivity from any nuclear fuel or from any nuclear waste from the combustion of nuclear fuel. 4 5 Excepted Risks (continue) Radioactive toxic explosive or other hazardous properties of any explosive nuclear assembly or nuclear component, thereof, pressure waves caused by aircraft or other aerial devices travelling at sonic or supersonic speeds. Final Account and Final Statement: see CLAUSE 30.5. Interim Payment: any one of the payments to which CLAUSE 30.1 and Appendix 2 refers. Joint Names Policy: a policy of insurance which includes the Contractor and the Employer as the insured. Notice of Completion of Making Good Defects: see CLAUSE 16.4. Practical Completion: see CLAUSE 16.1. Relevant Event: any one of the events set out in CLAUSE 25.4. Retention Percentage: see CLAUSE 30.4.1.1. and any entry in Appendix 1 under the reference to CLAUSE 30.4.1.1. Site Materials: see CLAUSE 22.2. Specified Perils: fire, lightning, explosion, storm, tempest, flood, bursting or overflowing of water tanks, apparatus or pipes, earthquake, aircraft and other aerial devices or articles dropped therefrom, riot and civil commotion, but excluding Excepted Risks. Statutory Requirements: see CLAUSE 6.1.1.2. Works: the works briefly described in the FIRST RECITAL and referred to in the Employer's Requirement and the
5 6 Contractor's Proposals and including any changes made to those works in accordance with this Contract. 2. CONTRACTOR'S OBLIGATIONS 2.1 The Contractor shall upon and subject to the Conditions carry out and complete the Works referred to in the Employer's Requirements, the Contractor's Proposals (to which the Contract Sum Analysis is annexed), the Articles of Agreement, these Conditions and the Appendices in accordance with the aforementioned documents and for that purpose shall complete the design for the Works including the selection of any specifications for any kinds and standards of the materials and goods and workmanship to be used in the construction of the Works so far as not described or stated in the Employer's Requirement or Contractor's Proposals. 2.2 Nothing contained in the Employer's Requirement or the Contractor's Proposals or the Contract Sum Analysis shall override or modify the application or interpretation of that which is contained in the Articles of Agreement, the Conditions and the Appendices. Should CERPROBE CORPORATION ("the Employer") form a registered in Malaysia subsidiary this agreement shall automatically be assigned to said Malaysian registered subsidiary who thereafter shall be the Employer. 2.3.1 Any divergence between the Employer's Requirements and the definition of the site boundary to be given by the Employer as provided in clause 7 shall be corrected by an instruction issued by the Employer which instruction shall be deemed to be a Change to which the provisions of clauses 12.4, 12.5 and 12.6 apply. 2.3.2 If the Employer or the Contractor finds any such divergence as is referred to in clause 2.3.1 he shall immediately give the other written notice specifying the divergence. 2.4.1 Where there is a discrepancy within the Employer's Requirements (including any Change issued in accordance with clause 12.2) the Contractor's Proposals shall prevail (subject always to compliance with the Statutory Requirements) without any adjustment of the Contract Sum. Where the Contractor's Proposals do not deal with any discrepancy within the Employer's Requirements (including any Change issued in accordance with clause 12.2) the Contractor shall inform the Employer in writing of his proposed amendment to deal with the discrepancy and the Employer shall either agree to the proposed amendment or himself decide how the discrepancy shall be dealt with; such agreement or decision shall be notified in writing to the Contractor and such notification shall be treated as a Change in the Employer's Requirement. 6 7 2.4.2. Where there is a discrepancy within the Contractor's Proposals the Contractor shall inform the Employer in writing of his proposed amendment to remove the discrepancy; and (subject always to compliance with Statutory Requirements) the Employer shall decide between the discrepant items or otherwise may accept the Contractor's proposed amendment and the Contractor shall be obliged to comply with the decision or acceptance by the Employer without cost to the Employer. 2.4.3. If the Contractor or the Employer find any such discrepancy as is referred to in clause 2.3.1 or 2.4.2 he shall immediately give the other written notice specifying the discrepancy. 2.5.1. Insofar as the design of the Works is comprised in the Contractor's Proposals and in what the Contractor is to complete under clause 2 and in accordance with the Employer's Requirements and the Conditions (including any further design which the Contractor is to carry out as a result of a Change in the Employer's Requirements), the Contractor shall have in respect of any defect or insufficiency in such design the like liability to the Employer, whether under statute or otherwise, as would an architect or, as the case may be, other appropriate professional designer holding himself out as competent to take on work for such design, who acting independently under a separate contract with the Employer, had supplied such design for or in connection with works to be carried out and completed by a building contractor not being the supplier of the design. 2.5.2. (deleted) 2.5.3. (deleted) 2.5.4. Any references to the design which the Contractor has prepared or shall prepare or issue for the Works shall include a reference to any design which the Contractor has caused or shall cause to be prepared or issued by others. 3. CONTRACT SUM - ADDITIONS OR DEDUCTIONS - ADJUSTMENT - INTERIM PAYMENTS Where in the Conditions it is provided that an amount is to be added to or deducted from the Contract Sum or dealt with by adjustment of the Contract Sum, then as soon as such amount is ascertained in whole or in part such amount shall be taken into account in the computation of the next Interim Payment following such whole or partial ascertainment. 7 8 4. EMPLOYER'S INSTRUCTIONS 4.1.1 The Contractor shall (subject to clauses 4.2, 4.3 and 12.2) forthwith comply with all instructions issued to him by the Employer in regard to any matter in respect of which the Employer is expressly empowered by the Conditions to issue instructions: save that where such instruction is one requiring a Change within the meaning of clause 12.1 the Contractor need not comply to the extent that he makes reasonable objection in writing to the Employer to such compliance. 4.1.2 If within 7 days after receipt of a written notice from the Employer requiring compliance with an instruction the Contractor does not comply therewith, then the Employer may employ and pay other persons to execute any work whatsoever which may be necessary to give effect to such instruction and all costs incurred in connection with such appointment may be deducted by him from any monies due or to become due to the Contractor under this Contract or may be recoverable from the Contractor by the Employer as a debt. 4.2 Upon receipt of what purports to be an instruction issued to him by the Employer the Contractor may request the Employer to specify in writing the provision of the Conditions which empowers the issue of the said instruction. The Employer shall forthwith comply with any such request and if the Contractor shall thereafter comply with the said instruction (neither party before such compliance having given to the other a written request to concur in the appointment of an Arbitrator under clause 39 in order that it may be decided whether the provision specified by the Employer empowers the issue of the said instruction), then the issue of the same shall be deemed for all the purposes of this Contract to have been empowered by the provision of the Conditions specified by the Employer in answer to the Contractor's request. 4.3.1 All instructions issued by the Employer shall be issued in writing. 4.3.2 If the Employer purports to issue an instruction otherwise than in writing it shall be of no immediate effect, but shall be confirmed in writing by the Contractor to the Employer within 7 days, and if not dissented from in writing by the Employer to the Contractor within 7 days from receipt of the Contractor's confirmation, shall take effect as from the expiration of the latter said 7 days. Provided always 4.3.2.1 that if the Employer within 7 days of giving such an instruction otherwise than in writing shall himself confirm the same in writing, then the Contractor shall not be obliged to confirm as aforesaid, and the said instruction shall take effect as from the date of the Employer's confirmation; and 8 9 4.3.2.2 that if neither the Contractor nor the Employer shall confirm such an instruction in the manner and at the time aforesaid but the Contractor shall nevertheless comply with the same, then the Employer may confirm the same in writing at any time prior to the Final Account and Final Statement becoming conclusive as to the balance due between the parties by agreement or by the operation of clause 30.5.5, and the said instruction shall thereupon be deemed to have taken effect on the date on which it was issued otherwise than in writing by the Employer. 5. CUSTODY AND SUPPLY OF DOCUMENTS 5.1 The Employer's Requirements and the Contractor's Proposals (to which is annexed the Contract Sum Analysis) shall remain in the custody of the Employer so as to be available at all reasonable times for the inspection of the Contractor. 5.2 Immediately after the execution of this Contract the Employer without charge to the Contractor shall provide him (unless he shall have been previously so provided) with one copy each, certified on behalf of the Employer, of the Articles of Agreement, the Conditions and the Appendices, the Employer's Requirements and the Contractor's Proposals (including the Contractor Sum Analysis). 5.3 The Contractor without further charge to the Employer shall provide the Employer with two copies of the drawings, specifications, details, levels and setting out dimensions which the Contractor prepares or uses for the purposes of the Works. 5.4 The Contractor shall keep one copy of the Employer's Requirements, one copy of the Contract Sum Analysis, one copy of the Contractor's Proposals and one copy of the drawings and other documents referred to in clause 5.3 upon the site so as to be available to the Employer's Agent at all reasonable times. 5.5 Before the commencement of the Defects Liability Period the Contractor shall without further charge to the Employer supply for the retention and use of the Employer such drawings and information showing or describing the Works as built, and concerning the maintenance and operation of the Works, including any installations comprised in the Works, as may be specified in the documents named in clause 5.1. 5.6 Neither party shall divulge or use except for the purpose of this Contract: 5.6.1 any of the documents mentioned in clause 5.1 or 5.3 which the other party supplies to him; or 9 10 5.6.2 any confidential information of the other party save that the Employer may use in connection with the maintenance, use, repair, advertisement, letting or sale of the Works any of the documents supplied by the Contractor. 6. STATUTORY OBLIGATIONS, NOTICES, FEES AND CHARGES 6.1.1.1 Clause 6.1.1.2 shall apply except to the extent that the relevant part or parts of the Employer's Requirements state specifically that the Employer's Requirements comply with Statutory Requirements. 6.1.1.2 The Contractor shall comply with, and give all notices required by, any Act of Parliament, any instrument, rule or order made under any Act of Parliament, or any regulation or bylaw of any local authority which has any jurisdiction with regard to the Works or with whose systems the same are or will be connected including Development Control Requirements (all requirements to be so complied with being referred to in these Condition as "the Statutory Requirements") and the Contractor shall pass to the Employer all approvals received by the Contractor in connection therewith. 6.1.2 If the Contractor or the Employer finds any divergence between the Statutory Requirements and either the Employer's Requirements (including any Change) or the Contractor's Proposals he shall immediately give to the other written notice specifying the divergence; the Contractor shall inform the Employer in writing of his proposed amendment for removing the divergence, and with the Employer's consent (which shall not be unreasonably delayed or withheld) the Contractor shall entirely at his own cost save as provided in clause 6.3 complete the design and construction of the Works in accordance with the amendment and the Employer shall note the amendment on the documents referred to in clause 5.1 6.1.3.1 If in any emergency compliance with clause 6.1.1 requires the Contractor to supply materials or execute work before receiving the Employer's consent under clause 6.1.2 the Contractor shall supply such limited materials and execute such limited work as are reasonable necessary to secure immediate compliance with the Statutory Requirements. 6.1.3.2 The Contractor shall forthwith inform the Employer of the emergency and of the steps that he is taking under clause 6.1.3.1 6.2 The Contractor shall pay, and indemnify the Employer against liability in respect of, any fees or charges (including any rates or taxes) legally demandable under any Act of Parliament, any instrument, rule or order made under any act of Parliament, or any regulation or bylaw of any 10 11 local authority in respect of the Works. No adjustment shall be made to the Contract Sum in respect of the amount of any such fees or charges (including any rates or taxes) unless they are stated by way of a provisional sum in the Employer's Requirements, in which case clause 30.5.3 shall apply. 6.3.1 If after the Base Date there is a change in the Statutory Requirements affecting the Works which necessitates some amendment to the Contractor's Proposals, such amendment shall be treated as if it were an instruction of the Employer under clause 12.2 effecting a Change in the Employer's Requirement. 6.3.2 If any amendment to the Contractor's Proposals becomes necessary for conformity with the terms of any permission or approval made by a decision of the relevant authority after the Base Date for the purposes of Development Control Requirements such amendment shall be treated as if it were an instruction of the Employer under clause 12.2 effecting a Change in the Employer's Requirement provided that such treatment is not precluded in the Employer's Requirements. 6.3.3 If any amendment to that part or parts of the Employer's Requirements to which clause 6.1.1.1 refers become necessary for conformity with Statutory Requirements the Employer shall issue an instruction effecting a Change in the Employer's Requirements. 7 SITE BOUNDARIES The Employer shall define the boundaries of the site. 8 WORK, MATERIAL AND GOODS 8.1.1 All materials and goods shall so far as procurable be of the respective kinds and standards described in the Employer's Requirements, or, if not therein specifically described, in the Contractor's Proposals or specifications referred to in clause 5.3; provided that the Contractor shall not substitute anything so described without the Employer's consent in writing, which consent shall not be unreasonably delayed or withheld. No such consent shall relieve the Contractor of his other obligations. 8.1.2 All workmanship shall be of the standard described in the Employer's Requirements, or, to the extent that no such standards are therein specifically described, in the Contractor's Proposals or specifications referred to in clause 5.3. If no such standards are so described the workmanship shall be of a standard appropriate to the Works. 8.1.3 All work shall be carried out in a proper and workmanlike manner. 11 12 8.2 The Contractor shall upon the request of the Employer provide him with documents to prove that the materials and goods comply with clause 8.1.1. 8.3 The Employer may issue instructions requiring the Contractor to open up for inspection any work covered up or to arrange for or to carry out any test of any materials or goods (whether or not already incorporated in the Works) or of any executed work, and the cost of such opening up or testing (together with the cost of making good in consequence thereof) shall be added to the Contract Sum unless provided for in the Employer's Requirements or in the Contractor's Proposals or unless the inspection or test shows that the work, materials or goods are not in accordance with this Contract. 8.4 If any work, materials or goods are not in accordance with this Contract the Employer without prejudice to the generality of his powers, may: 8.4.1 issue instructions requiring the removal from the site or rectification of all or any of such work, materials or goods; and/or 8.4.2 after consultation with the Contractor issue such instructions requiring a Change (to which the proviso in clause 12.2 shall apply) as are reasonably necessary as a consequence of such an instruction under clause 8.4.1 and to the extent that such instructions are so necessary and notwithstanding clauses 12.5, 25 and 26 no addition to the Contract Sum shall be made and no extension of time shall be given; and/or 8.4.3 issue such instructions under clause 8.3 to upon up for inspection or to test as are reasonable in all the circumstances to establish to the reasonable satisfaction of the Employer the likelihood or extent, as appropriate to the circumstances, of any further similar non-compliance. To the extent that such instructions are so reasonable, whatever the results of the opening up for inspection or test and notwithstanding clauses 8.3 and 26, no addition to the Contract Sum shall be made. Clause 25.4.5.2 shall apply unless as stated therein the inspection or test showed that the work, materials or goods are not in accordance with this Contract. 8.5 Where there is any failure to comply with clause 8.1.3 in regard to the carrying out of the work in a proper and workmanlike manner the Employer, without prejudice to the generality of his powers, may, after consultation with the Contractor, issue such instructions whether requiring a Change or otherwise as are reasonably necessary as a consequence thereof. To the extent that such instructions are so necessary and notwithstanding clauses 12.4, 25 and 26 no addition to the Contract Sum shall be made and no extension of time shall be given in respect of compliance by the Contractor with such instruction. 12 13 8.6 The Contractor shall before carrying out the relevant work and/or ordering the relevant goods or materials provide the Employer with such samples of the standard of workmanship or the quality of the goods or materials which the Contractor intends to provide as are specifically referred to in the Employer's Requirements or in the Contractor's Proposals. 9. COPYRIGHT, ROYALTIES AND PATENT RIGHTS 9.1 All royalties or other sums payable in respect of the supply and use in carrying out the Works of any patented articles, processes or inventions or in respect of the supply and use for the Works of drawings, or models of buildings the subject of copyright other than drawings or models provided by the Employer shall be deemed to have been included in the Contract Sum, and the Contractor shall indemnify the Employer from and against all claims, proceedings, damages, costs and expenses which may be brought or made against the Employer or to which he may be put by reason of the Contractor infringing or being held to have infringed any patent rights in relation to any such articles, processes, and inventions or infringing or being held to have infringed copyright. 9.2 Provided that where in compliance with the Employer's instructions the Contractor shall supply and use in carrying out the Works any patented articles, processes or inventions, the Contractor shall not be liable in respect of any infringement or alleged infringement of any patent rights in relation to any such articles, processes and inventions and all royalties, damages or other monies which the Contractor may be liable to pay to the persons entitled to such patent rights shall be added to the Contract Sum. 10 PERSON-IN-CHARGE The Contractor shall constantly keep upon the site a competent person-in-charge and any instructions given to him by the Employer shall be deemed to have been issued to the Contractor. 11 ACCESS FOR EMPLOYER'S AGENT ETC. TO THE WORKS The Employer's Agent and any person authorised by the Employer or the Employer's Agent shall at all reasonable times have access to the Works and to the workshops or other places of the Contractor where work is being prepared for this Contract, and when work is to be so prepared in workshop or other places of a sub-contractor the Contractor shall by a term of the sub-contract so far as possible secure a similar right 13 14 of access to those workshops or places for the Employer and his representatives and shall do all things reasonably necessary to make such right effective. Access in accordance with clause 11 may be subject to such reasonable restrictions of the Contractor or of any sub-contractor as are necessary to protect any proprietary right of the Contractor or of any sub-contractor in the work referred to in clause 11. 12 CHANGES IN THE EMPLOYER'S REQUIREMENTS AND PROVISIONAL SUMS 12.1 The term 'Change in the Employer's Requirements' or 'Change' means: 12.1.1 a change in the Employer's Requirements which makes necessary the alteration or modification of the design, quality or quantity of the Works, otherwise than such as may be reasonably necessary for the purpose of rectification pursuant to clause 8.4, including: 12.1.1.1 the addition, omission or substitution of any work; 12.1.1.2 the alteration of the kind or standard of any materials or goods to be used in the Works; 12.1.1.3 the removal from the site of any work executed or materials or goods brought thereon by the Contractor for the purposes of the Works other than work materials or goods which are not in accordance with this Contract; 12.1.2 the imposition by the Employer of any obligations or restrictions in regard to the matters set out in clause 12.1.2.1 to 12.1.2.4 or the addition to or alteration or omission of any such obligations or restrictions so imposed or imposed by the Employer in the Employer's Requirements in regard to; 12.1.2.1 access to the site or use of any specific parts of the site; 12.1.2.2 limitations of working space; 12.1.2.3 limitations of working hours; 12.1.2.4 the execution or completion of the work in any specific order. 12.2 The Employer may subject to the proviso hereto and to the Contractor's right of reasonable objection set out in clause 4.1.1 issue instructions effecting a Change in the Employer's Requirements. No Change effected by the Employer shall vitiate this Contract. Provided that the Employer may not effect a Change which is, or which makes necessary, an alteration or modification in the design of the Works without the consent of the Contractor which consent shall not be unreasonably delayed or withheld. 14 15 12.3 The Employer shall issue instructions to the Contractor in regard to the expenditure of provisional sums (if any) included in the Employer's Requirements. 12.4 The valuation of Changes and of work executed by the Contractor for which a provisional sum is included in the Employer's Requirements shall, unless otherwise agreed, be made in accordance with the provisions of clause 12.5. Such valuation shall include allowance for the addition or omission of the relevant design work. 12.5.1 The valuation of additional or substituted work shall be consistent with the values of work of a similar character set out in the Contract Sum Analysis making due allowance for any change in the conditions under which the work is carried out and/or any significant change in the quantity of the work so set out. Where there is no work of similar character set out in the Contract Sum Analysis a fair valuation shall be made. 12.5.2 The valuation of the omission of work shall be in accordance with the values in the Contract Sum Analysis. 12.5.3 Any valuation of work under clauses 12.5.1 and 12.5.2 shall include allowance for any necessary addition to or reduction of the provision of site administration, site facilities and temporary works. 12.5.4 (deleted) 12.5.5 If compliance with the instruction effecting a Change or the instruction as to the expenditure of a provisional sum in whole or in part substantially changes the conditions under which any other work is executed, then such work shall be treated as if it had been the subject of an instruction effecting a Change under clause 12.2 which shall be valued in accordance with the provisions of clause 12.5. 12.5.6 To the extent that the valuation does not relate to the execution of additional or substituted work or the omission of work or to the extent that the valuation of any work or liabilities directly associated with a Change cannot reasonably be effected in the valuation by the application of clause 12.5.1 to 12.5.5 a fair valuation thereof shall be made. Provided that no allowance shall be made under clause 12.5 for any effect upon the regular progress of the Works or for any other direct loss and/or expense for which the Contractor would be reimbursed by payment under any other provision in the Conditions. 12.6 Effect shall be given to clause 12.5 by addition or deduction from the Contract Sum. 15 16 13 CONTRACT SUM The Contract Sum shall not be adjusted or altered in any way whatsoever otherwise than in accordance with the express provisions of the Conditions. 14 SERVICE TAX Any reference in these Conditions to "Contract Sum" shall be regarded as such Sum exclusive of any service tax and recovery by the Contractor from the Employer of any service tax properly chargeable on the Contractor under or by virtue of the Service Tax Act 1975 or any amendment thereof on the supply of goods and services under this Contract shall be prohibited. 15 UNFIXED MATERIALS AND GOODS Unfixed materials and goods delivered to, placed on or adjacent to the Works and intended therefor shall not be removed except for use upon the Works unless the Employer has consented in writing to such removal which consent shall not be unreasonably withheld. Where the value of any such materials or goods has been included in any Interim Payment, such materials and goods shall become the property of the Employer, but the Contractor shall remain responsible for loss or damage to the same. 16 PRACTICAL COMPLETION AND DEFECTS LIABILITY PERIOD 16.1 When the Works have reached Practical Completion the Employer shall give the Contractor a written statement to that effect, which statement shall not be unreasonably delayed or withheld, the Practical Completion of the Works shall be deemed for all purposes of this Contract to have taken place on the day named in such statement. Should CERPROBE CORPORATION ("the Employer") form a registered in Malaysia subsidiary this agreement shall automatically be assigned to said Malaysian registered subsidiary who thereafter shall be the Employer. 16.2 Any Defects, shrinkages or other faults which shall appear within the Defects Liability Period and which are due to failure of the Contractor to comply with his obligations under this Contract shall be specified by instruction of the Employer in a Schedule of Defects which he shall deliver to the Contractor as an instruction of the Employer not later than 14 days after the expiration of the said Defects Liability Period, and within a reasonable time after receipt of such Schedule of defects, shrinkages and other faults therein specified shall be made good by the Contractor at no cost to the Employer unless the Employer shall otherwise instruct; and if the Employer does so otherwise instruct then an appropriate deduction in 16 17 Respect of any such defects, shrinkage or other faults not made good shall be made from the Contract Sum. 16.3 Notwithstanding clause 16.2 the Employer may whenever he considers it necessary so to do, issue instructions requiring any defect, shrinkage or other fault which shall appear within the Defects Liability Period and which is due to failure of the Contractor to comply with his obligations under this Contract to be made good and the Contractor shall within a reasonable time after receipt of such instructions comply with the same at no cost to the Employer unless the Employer shall otherwise instruct; and if the Employer does so otherwise instruct then an appropriate deduction in respect of any such defects, shrinkages or other faults not made good shall be made from the Contract Sum. 16.4 When any defects, shrinkages or other faults which the Employer may have required to be made good under clauses 16.2 and 16.3 shall have been made good he shall issue a notice to that effect, which notice shall not be unreasonably delayed or withheld and completion of making good defects shall be deemed for all the purposes of this Contract to have taken place on the day named in such notice ("the Notice of Completion of Making Good Defects"). 17. PARTIAL POSSESSION BY EMPLOYER 17.1 If at any time or times before practical Completion of the Works the Employer wishes to take possession of any part or parts of the Works and the consent of the Contractor (which consent shall not be unreasonably withheld) has been obtained, then notwithstanding anything expressed or implied elsewhere in this Contract the Employer may take possession thereof. The Contractor shall thereupon issue to the Employer a written statement identifying the part or parts of the Works taken into possession and giving the date when the Employer took possession (in clauses 17 and 20.3 referred to as "the relevant part" and "the relevant date" respectively). 17.1.1 For the purposes of clauses 16.2, 16.3 and 30.4.1.2 Practical Completion of the relevant part shall be deemed to have occurred and the Defects Liability Period in respect of the relevant part shall be deemed to have commenced on the relevant date. 17.1.2 When any defects, shrinkages or other faults in the relevant part which the Employer may have required to be made good under clause 16.2 or clause 16.3 shall have been made good he shall issue a notice to that effect. 17 18 17.1.3 As from the relevant date the obligation of the Contractor under clause 22A to insure shall terminate in respect of the relevant part but not further or otherwise. 17.1.4 In lieu of any sum to be paid or allowed by the Contractor under clause 24 in respect of any period during which the Works may remain incomplete occurring after the relevant date there shall be paid or allowed such sum as bears the same ratio to the sum which would be paid or allowed apart from the provisions of clause 17 as the Contract Sum less the amount contained therein in respect of the relevant part bears to the Contract Sum. 18 ASSIGNMENT AND SUB-CONTRACTS 18.1.1 Neither the Employer nor the Contractor shall, without the written consent of the other, assign this Contract. 18.1.2 Where clause 18.1.2 is stated in Appendix 1 to apply then, in the event of transfer by the Employer of his freehold or leasehold interest in, or of a grant by the Employer of a leasehold interest in, the whole of the premises comprising the Works, the Employer may at any time after Practical Completion of the Works assign to any such transferee or lessee the right to bring proceedings in the name of the Employer (whether by arbitration or litigation) to enforce any of the terms of this Contract made for the benefit of the Employer hereunder. The assignee shall be stopped from disputing any enforceable agreements reached between the Employer and the Contractor and which arise out of and relate to this Contract (whether or not they are or appear to be a derogation from the rights assigned) and made prior to the date of any assignment. 18.2.1 The Contractor shall not without the written consent of the Employer (which consent shall not be unreasonably delayed or withheld) sub-contract all or any portion of the Works. Provided that it shall be a condition in any sub-contracting which may occur that the appointment of the sub-contractor under the sub-contract shall determine immediately upon the determination (for any reason) of the Contractor's appointment under this Contract. 18.2.2 The Contractor shall remain wholly responsible for carrying out and completing the Works in all respects in accordance with clause 2.1 notwithstanding the sub-contracting of all or any portion of the Works. 18.2.3 The Contractor shall not without the written consent of the Employer (which consent shall not be unreasonably delayed or withheld) sub-contract the design for all or any portion of the Works. Where the Employer consents to any sub-contracting under 18 19 clause 18.2.3 such consent shall not affect in any way the obligation of the Contractor under clause 2.5. 18.3 It shall be a condition in any sub-contracting to which clause 18.2.1 refers that: 18.3.1 the appointment of the sub-contractor under the sub-contract shall determine immediately upon the determination (for any reason) of the Contractor's appointment under this Contract; and 18.3.2 the sub-contract shall provide that: 18.3.2.1 subject to clause 15 of these Conditions (in clauses 18.3.2.2 to 18.3.2.3 called "the Main Contract Conditions"), unfixed materials and goods delivered to, placed on or adjacent to the Works by the sub-contractor and intended therefor shall not be removed except for use on the Works unless the Contractor has consented in writing to such removal, which consent shall not be unreasonably withheld; 18.3.2.2 where, in accordance with clause 30.2A or clause 30.2B of the Main Contract Conditions, the value of any such materials or goods has been included in the amount due as an Interim Payment and that Interim Payment has been discharged by the Employer in favour of the Contractor, such materials or goods shall be and become the property of the Employer and the sub-contractor shall not deny that such materials or goods are and have become the property of the Employer; 18.3.2.3 provided that if the Contractor shall pay the sub-contractor for any such materials or goods before the value therefore has, in accordance with clause 30.2A or clause 30.2B of the Main Contract Conditions, been included in the amount due as an Interim Payment and before that Interim Payment has been discharged by the Employer in favour of the Contractor, such materials or goods shall upon such payment by the Contractor be and become the property of the Contractor. 19 (number not used) 20 INJURY TO PERSONS AND PROPERTY AND INDEMNITY TO EMPLOYER 20.1 The Contractor shall be liable for, and shall indemnify the Employer against, any expense, liability, loss, claim or proceedings whatsoever arising under any statute or at common law in respect of personal injury to or the death of any person whosoever arising out of or in the course of or caused by the carrying out of the Works, except to the extent that the same is due to any act or neglect of the Employer or of any 19 20 person for whom the Employer is responsible including the persons employed or otherwise engaged by the Employer to whom clause 29 refers. 20.2 The Contractor shall, subject to clause 20.3, be liable for, and shall indemnify the Employer against, any expense, liability, loss, claim or proceedings in respect of any injury or damage whatsoever to any property real or personal in so far as such injury or damage arises out of or in the course of or by reason of the carrying out of the Works, and to the extent that the same is due to any negligence, breach of statutory duty, omission or default of the Contractor, his servants or agents or of any person employed or engaged upon or in connection with the Works or any part thereof, his servants or agents or of any other person who may properly be on the site upon or in connection with the Works or any part thereof, his servants or agents, other than the Employer or any person employed, engaged or authorised by him or by any local authority executing work solely in pursuance of its statutory rights or obligations. 20.3.1 Subject to clause 20.3.2 the reference in clause 20.2 to "property real or personal" does not include the Works, work executed and/or Site Materials up to and including the date of issue of the statement by the Employer setting out the date of Practical Completion or up to and including the date of determination of the appointment of the Contractor (whether or not the validity of that determination is disputed) under clause 27 or clause 28. 20.3.2 If clause 17 has been operated then, in respect of the relevant part, and as from the relevant date such relevant part shall not be regarded as "the Works" or "work executed" for the purpose of clause 20.3.1. 21 INSURANCE AGAINST INJURY TO PERSONS OR PROPERTY 21.1.1.1 Without prejudice to his obligations to indemnify the Employer under clause 20 the Contractor shall take out and maintain insurance which shall comply with clause 21.1.1.2 in respect of claims arising out of his liability referred to in clauses 20.1, and 20.2. 21.1.1.2 For all claims to which clause 21.1.1.1 applies the insurance cover shall be not less than the sum stated in Appendix 1 for any one occurrence or series of occurrences arising out of one event. 21.1.2 As and when he is reasonably required to do so by the Employer the Contractor shall send to the Employer for inspection by the Employer documentary evidence that the insurance required by clause 21.1.1.1 have been taken out and are being maintained, but at any time the Employer may (but not unreasonably or vexatiously) require to have sent for his inspection the relevant policy or policies and premium receipts therefor. 20 21 21.1.3 If the Contractor defaults in taking out or in maintaining insurance as provided in clause 21.1.1.1 the Employer may himself insure against any liability or expense which he may incur arising out of such default and a sum or sums equivalent to the amount paid or payable by him in respect of premiums therefor may be deducted by him from any monies due or to become due to the Contractor under this Contract or such amount may be recoverable by the Employer from the Contractor as a debt. 21.2.1 Where it is stated in the Employer's Requirements that the insurance to which clause 21.2.1 refers is required the Contractor shall take out and maintain a Joint Names Policy for such amount of indemnity as is stated in Appendix 1 in respect of any expense, liability, loss, claim or proceedings which the Employer may incur or sustain by reason of damage to any property other than the Works and Site Materials caused by collapse, subsidence, heave, vibration, weakening or removal of support or lowering of ground water arising out of or in the course of or by reason of the carrying out of the Works excepting damage: 21.2.1.1 for which the Contractor is liable under clause 20.2; 21.2.1.2 attributable to errors or omissions in the designing of the Works; 21.2.1.3 which can reasonably be foreseen to be inevitable having regard to the nature of the work to be executed or the manner of its execution; 21.2.1.4 (deleted) 21.2.1.5 arising from war risks or the Excepted Risks. 21.2.2 Any such insurance as is referred to in clause 21.2.1 shall be placed with insurers to be approved by the Employer, and the Contractor shall deposit with him the policy or policies and the premium receipts therefor. 21.2.3 If the Contractor defaults in taking out or in maintaining the Joint Names Policy as provided in clause 21.2.1 the Employer may himself insure against any risk in respect of which the default shall have occurred and may deduct a sum or sums equivalent to the amount paid or payable in respect of premiums from any monies due or to become due to the Contractor or such amount shall be recoverable by the Employer from the Contractor as a debt. 21.3 Notwithstanding the provisions of clauses 20.1, 20.2 and 21.1, the Contractor shall not be liable either to indemnify the Employer or to insure against any personal injury to or the death of any person or any damage, loss or injury caused to the Works or Site Materials, work executed, the site, or any property, by the effect of any Excepted Risk. 21 22 22 INSURANCE OF THE WORKS 22.1 (deleted) 22.2 In clause 22A and, so far as relevant, in order clauses of the Conditions the following phrases shall have the meanings given below: All Risks Insurance : Insurance which provides cover against any physical loss or damage to work executed and Site Materials but excluding the cost necessary to repair, replace or rectify: 1 property which is defective due to: .1 wear and tear; .2 obsolescence; .3 deterioration, rust or mildew; 2 any work executed or any Site Materials lost or damaged as a result of its own defect in design, plan, specification, material or workmanship or any other work executed which is lost or damaged in consequence thereof where such work relied for its support or stability on such work which was defective; 3 loss or damage caused by or arising from: .1 any consequence of war, invasion, act of foreign enemy, hostilities (whether war be declared or not), civil war, rebellion, revolution, insurrection, military or usurped power, confiscation, commandeering, nationalization or requisition or loss or destruction of or damage to any property by or under the order of any government de jure or de facto or public municipal or local authority; 22 23 .2 disappearance or shortage if such disappearance or shortage is only revealed when an inventory is made or is not traceable to an identifiable event; .3 an Excepted Risk (as defined in clause 1.3); .4 civil commotion; .5 any unlawful, wanton or malicious act committed maliciously by a person or persons acting on behalf of or in connection with an unlawful association; "unlawful association" shall mean any organisation which is engaged in terrorism: "terrorism" means the use of violence for political ends and includes any use of violence for the purpose of putting the public or any section of the public in fear. Site Materials : All unfixed materials and goods delivered to, placed on or adjacent to the Works and intended for incorporation therein. 22.3 The Contractor shall ensure that the Joint Names Policy referred to in clause 22A.1 or 22A.3 shall in respect of each sub-contractor to whom clause 18.2.1 refers. EITHER provide for the recognition of each sub-contractor as an insured under the Joint Names Policy OR include a waiver by the relevant insurers of any rights of subrogation which they may have against any such sub-contractor in respect of loss or damage by the Specified Perils to the Works and Site Materials; and that this recognition or waiver shall continue up to and including the date of issue of any certificate or other document which states that the sub-contract works are practically complete or the date of determination of the appointment of the Contractor (whether or not the validity of that determination is contested) under clause 27 or clause 28 or clause 28A. The provisions of clause 22.3 shall apply also in respect of any Joint Names Policy taken out by the Employer under clause 22A.2. 23 24 22A ALL RISKS INSURANCE OF THE WORKS BY THE CONTRACTOR 22A.1 The Contractor shall take out and maintain a Joint Names Policy for All Risks Insurance for cover no less than that defined in clause 22.2 for the full reinstatement value of the Works (plus the percentage, if any, stated in Appendix 1 to cover any professional fees incurred by the Employer) and shall (subject to clause 17.1.3) maintain such Joint names Policy up to and including the date of issue of the statement by the Employer setting out the date of Practical Completion or up to and including the date of determination of the appointment of the Contractor under clause 27 or clause 28 or clause 28A (whether or not the validity of that determination is contested) whichever is the earlier. 22A.2 The Joint Names Policy referred to in clause 22A.1 shall be taken out with insurers approved by the Employer and the Contractor shall deposit with him that Policy and the premium receipt therefor and also any relevant endorsement or endorsement or endorsements thereof as may be required to comply with the obligation to maintain that Policy set out in clause 22A.1 and the premium receipts therefor. If the Contractor defaults in taking out or in maintaining the Joint Names Policy as required by clauses 22A.1 and 22A.2 the Employer may himself take out and maintain a Joint Names Policy against any risk in respect of which the default shall have occurred and a sum or sums equivalent to the amount paid or payable by him in respect of premiums therefor may be deducted by him from any monies due or to become due to the Contractor under this Contract or such amount may be recoverable by the Employer from the Contractor as a debt. 22A.3.1. If the Contractor independently of his obligations under this Contract maintains a policy of insurance which provides (inter alia) All Risks Insurance for cover no less than that defined in clause 22.2 for the full reinstatement value of the Works (plus the percentage, if any, stated in Appendix 1 to cover any professional fees incurred by the Employer) then the maintenance by the Contractor of such policy shall, if the policy is a Joint Names Policy in respect of the aforesaid Works, be a discharge of the Contractor's obligation to take out and maintain a Joint Names Policy under clause 22A.1. If and so long as the Contractor is able to send for inspection by the Employer as and when he is reasonably required to do so by him documentary evidence that such a policy is being maintained then the Contractor shall be discharged from his obligation under clause 22A.2 to deposit the policy and the premium receipt with the Employer but on any occasion the Employer may (but not unreasonably or vexatiously) require to have sent to him for inspection the policy to which clause 22A.3.1 refers and the premium receipts therefor. The annual renewal date, as supplied by the Contractor, of the insurance referred to in clause 22A.3.1 is stated in Appendix 1. 24 25 22A.3.2 The provisions of clause 22A.2 shall apply in regard to any default in taking out or in maintaining insurance under clause 22A.3.1. 22A.4.1 If any loss or damage affecting work executed or any part thereof on any Site Materials is occasioned by any one or more of the risks covered by the Joint Names Policy referred to in clause 22A.1 or clause 22A.2 or clause 22A.3 then, upon discovering the said loss or damage, the Contractor shall forthwith give notice in writing to the Employer of the extent, nature and location thereof. 22A.4.2 The occurrence of loss or damage shall be disregarded in computing any amounts payable to the Contractor under or by virtue of this Contract. 22A.4.3 After any inspection required by the insurers in respect of a claim under the Joint Names Policy referred to in clause 22A.1 or clause 22A.2 or clause 22A.3 has been completed the Contractor with due diligence shall restore work damaged, replace or repair any such Site Materials which have been lost or damaged, remove and dispose of any debris and proceed with the carrying out and completion of the Works. 22A.4.4 The Contractor, for himself and for all sub-contractors who are, pursuant to clause 22.3, recognised as an insured under the Joint Names Policy referred to in clause 22A.1, clause 22A.2 or clause 22A.3, shall authorise the insurers to pay all monies from such insurance in respect of the loss or damage referred to in clause 22A.4.1 to the Employer. The Employer shall pay all such monies (less only the percentage, if any, stated in Appendix 1 to cover any professional fees incurred by the Employer) to the Contractor by installments in accordance with clause 30 Alternative B even if Alternative A is applicable to all other payments under the Contract. 22A.4.5 The Contractor shall not be entitled to any payment in respect of the restoration, replacement or repair of such loss or damage, and (when required) the removal and disposal of debris other than the monies received under the aforesaid insurance. 23 DATE OF POSSESSION, COMPLETION AND POSTPONEMENT 23.1.1 On the Date of Possession possession of the site shall be given to the Contractor who shall thereupon begin the construction of the Works and regularly and diligently proceed with the same and shall complete the same on or before the Completion Date. 23.1.2 Where clause 23.1.2 is stated in Appendix 1 to apply the Employer may defer the giving of possession for a period not exceeding 6 weeks, or such lesser period stated in Appendix 1, calculated from the Date of Possession. 25 26 23.2 The Employer may issue instructions in regard to the postponement of any design or construction work to be executed under the provisions of this Contract. 23.3.1 For the purposes of the Works insurances the Contractor shall retain possession of the site and the Works up to and including the date of issue of the statement by the Employer setting out the date of Practical Completion, and, subject to clause 17, the Employer shall not be entitled to take possession of any part or parts of the Works until that date. 23.3.2 Notwithstanding the provision of clause 23.3.1 the Employer may, with the consent in writing of the Contractor, use or occupy the site or the Works or part thereof whether for the purposes of storage of his goods or otherwise before the date of issue of the statement by the Employer setting out the date of Practical Completion. Before the Contractor shall give his consent to such use or occupation the Contractor or the Employer shall notify the insurers under clause 22A and obtain confirmation that such use or occupation will not prejudice the insurance. Subject to such confirmation the consent of the Contractor shall not be unreasonably withheld. 23.3.3 Where clause 22A.2 or clause 22A.3 applies and the insurers in giving the confirmation referred to in clause 23.3.2 have made it a condition of such confirmation that an additional premium is required the Contractor shall notify the Employer of the amount of the additional premium. If the Employer continues to require use or occupation under clause 23.3.2 the additional premium required shall be added to the Contract Sum and the Contractor shall provide the Employer, if so requested, with the additional premium receipt therefor. 24 DAMAGES FOR NON-COMPLETION 24.1 If the Contractor fails to complete the construction of the Works by the Completion Date the Employer shall issue a notice in writing to the Contractor to that effect. In the event of a new Completion Date being fixed after the issue of such a notice in writing such fixing shall cancel that notice and the Employer shall issue such further notice in writing under clause 24.1 as may be necessary. 24.2.1 Subject to the issue of any notice under clause 24.1 the Contractor shall as the Employer may require in writing not later than the date when the Final Statement (or, as the case may be, the Employer's Final Statement) becomes conclusive as to the balance due between the parties by agreement or by the operation of clause 30.5.5, pay or allow to the Employer liquidated and ascertained damages at the rate 26 27 stated in Appendix 1 (or at such lesser rate as may be specified in writing by the Employer) for the period between the Completion Date and the date of Practical Completion and the Employer may deduct the same from any monies due or to become due to the Contractor under this Contract (including any balance stated as due to the Contractor in the Final Statement or, as the case may be, in the Employer's Final Statement) or the Employer may recover the same from the Contractor's as a debt. 24.2.2 If, under clause 25.3.3. the Employer fixed a later Completion Date, the Employer shall pay or repay to the Contractor any amounts recovered or paid under clause 24.2.1 for the period up to such later Completion Date. 24.2.3 Notwithstanding the issue of any further notice under clause 24.1 any requirement of the Employer which has been previously stated in writing in accordance with clause 24.2.1 shall remain effective unless withdrawn by the Employer. 25 EXTENSION OF TIME 25.1 In clause 25 any reference to delay, notice or extension of time includes further delay, further notice or further extension of time. 25.2.1 If and whenever it becomes reasonably apparent that the progress of the Works is being or is likely to be delayed the Contractor shall forthwith give written notice to the Employer of the material circumstances including the cause or causes of the delay and identify in such notice any event which in his opinion is a Relevant Event. 25.2.2 In respect of each and every Relevant Event identified in the notice given in accordance with clause 25.2.1 the Contractor shall, if practicable in such notice, or otherwise in writing as soon as possible after such notice; 25.2.2.1 give particulars of the expected thereof; and 25.2.2.2 estimate the extent, if any, of the expected delay in completion of the Works beyond the Completion Date resulting therefrom whether or not concurrently with delay resulting from any other Relevant Event. 25.2.3 The Contractor shall give such further written notice to the Employer as may be reasonably necessary for keeping up-to-date the particulars and estimate referred to in clauses 25.2.2.1 and 25.2.2.2 including any material change in such particulars or estimate. 25.3.1 If: 27 28 25.3.1.1 any of the events which are stated by the Contractor to be caused of the delay is a Relevant Event; and 25.3.1.2 the completion of the Works is likely to be delayed thereby beyond the Completion Date the Employer upon receipt of any notices, particulars and estimate under clauses 25.2.1 and 25.2.2 shall make in writing to the Contractor such extension of time, if any, for completion of the Works beyond the Completion Date as is then fair and reasonable, by fixing a later date as the Completion Date. The Employer shall, in making such extension of time, state: 25.3.1.3 which of the Relevant Events he has taken into account; and 25.3.1.4 the extent, if any, to which he has had regard to any instruction under clause 12.2 requiring the omission of any work issued since the fixing of the previous Completion Date. and shall, if reasonably practicable having regard to the sufficiency of the aforesaid notice, particulars and estimates, fix such new Completion Date not later than 12 weeks from receipt of the notice and of reasonably sufficient particulars and estimates, or, where the period between receipt thereof and the Completion Date is less than 12 weeks, not later than the Completion Date. If upon receipt of any such notice, particulars and estimate it is not fair and reasonable for the Employer to fix a later date as a new Completion Date, the Employer shall, if reasonably practicable having regard to the sufficiency of the aforesaid notice, particulars and estimate, so notify the Contractor in writing not later than 12 weeks from receipt of the notice, particulars and estimate, or, where the period between receipt thereof and the Completion Date is less than 12 weeks, not later than the Completion Date. 25.3.2 After first making an extension of time under clause 25.3.1, the Employer may fix a Completion Date earlier than that previously fixed under clause 25 if the fixing of such earlier Completion Date is fair and reasonable having regard to the omission of any work or obligation instructed by the Employer under clause 12 after the last occasion of which the Employer made an extension of time. 25.3.3 After the Completion Date, if this occurs before the date of Practical Completion, the Employer may, and not later than the expiry of 12 weeks after the date of Practical Completion, shall in writing to the Contractor either: 28 29 25.3.3.1 fix a Completion Date later than that previously fixed if the fixing of such later Completion Date is fair and reasonable having regard to any of the Relevant Events, whether upon reviewing a previous decision or otherwise and whether or not the Relevant Event has been specially notified by the Contractor under clause 25.2.1; or 25.3.3.2 fix a Completion Date earlier than that previously fixed under clause 25 if the fixing of such earlier Completion Date is fair and reasonable having regard to any instructions of the Employer effecting a Change requiring the omission of any work issued under clause 12.2 where such issue is after the last occasion on which the Employer made the extension of time; or 25.3.3.3 confirm to the Contractor the Completion Date previously fixed. 25.3.4 Provided always: 25.3.4.1 the Contractor shall use constantly his best endeavours to prevent delay in the progress of the Works, howsoever caused, and to prevent the completion of the Works being delayed or further delayed beyond the Completion Date; and 25.3.4.2 the Contractor shall do all that may reasonably be required to the satisfaction of the Employer to proceed with the Works. 25.3.4.5 No decision of the Employer under clause 25.3 shall fix a Completion Date earlier than the Date for Completion stated in Appendix 1. 25.4 The following are the Relevant Events referred to in clause 25: 25.4.1 force majeure; 25.4.2 exceptionally adverse weather conditions; 25.4.3 loss or damage occasioned by any one or more of the Specified Perils; 25.4.4 civil commotion, local combination of workmen, strike or lock-out affecting any of the trade employed upon the Works or any of the trades engaged in the preparation, manufacture or transportation of any of the goods or materials required for the Works, or any person engaged in the preparation of the design of the Works; 25.4.5 compliance with the Employer's instructions: 25.4.5.1 under clause 2.3.1, 12.2, 12.3 or 23.2; or 25.4.5.2 in regard to the opening up for inspection of any work covered up or the testing of any of the work, material or goods in accordance with clause 29 30 8.3 (including making good in consequence of such opening up or testing) unless the inspection or test showed that the work, materials or goods were not in accordance with this contract. 25.4.6 the Contractor not having received in due time necessary instructions, decisions, information or consent from the Employer which the Employer is obliged to provide or give under the Conditions including a decision under clause 2.4.2 for which he specifically applied in writing provided that such application was made on a date which having regard to the Completion Date was neither unreasonably distant from nor unreasonably close to the date on which it was necessary for him to receive the same; 25.4.7 delay in receipt of any necessary permission or approval of any statutory body which the Contractor has taken all practicable steps to avoid or reduce; 25.4.8.1 the execution of work not forming part of this Contract by the Employer himself or by persons employed or otherwise engaged by the Employer as referred to in clause 29 or failure to execute such work; 25.4.8.2 the supply by the Employer of materials and goods which the Employer has agreed to provide for the Works or the failure so to supply; 25.4.9 the exercise after the Base Date by the Government of any statutory power which directly affects the execution of the Works by restricting the availability or use of labour which is essential to the proper carrying out of the Works, or preventing the Contractor from or delaying the Contractor in, securing such goods or materials or such fuel or energy as are essential to the proper carrying out of the Works: 25.4.10.1 the Contractor's inability for reasons beyond his control and which he could not reasonably have foreseen at the Base Date to secure such labour as is essential to the proper carrying out of the Works; or 25.4.10.2 the Contractor's inability for reasons beyond his control and which he could not reasonably have foreseen at the Base Date to secure such goods or materials as are essential to the proper carrying out of the Works; 25.4.11 the carrying out by a local authority of work in pursuance of its statutory obligations in relation to the Works, or the failure to carry out such work; 25.4.12 failure of the Employer to give in due time ingress from the site of the Works or any part thereof through or over any land, buildings, way or passage adjoining or connected with the site and in the possession and control of the Employer, in accordance with the Employer's Requirements after receipt by the Employer of such notice, if any, as the Contractor is required to give, or failure of the Employer to give such ingress or egress as otherwise agreed between the Employer and the Contractor; 30 31 25.4.13 Delay which the Contractor has taken all practicable steps to avoid or reduce consequent upon a change in the Statutory Requirements after the Base Date which affect the Works as referred to in clause 6.3.1. or an amendment to the Contractor's Proposals to which clause 6.3.2 applies; 25.4.14 Where clause 23.1.2 is stated in Appendix 1 to apply, the deferment by the Employer of giving possession of the site under clause 23.1.1. 26 LOSS AND EXPENSE CAUSED BY MATTERS AFFECTING REGULAR PROGRESS OF THE WORKS 26.1 If the Contractor makes written application to the Employer stating that he has incurred or is likely to incur direct loss and/or expense in the execution of this Contract for which he would not be reimbursed by a payment under any other provision in this Contract due to deferment of giving possession of the site under clause 23.1.1 where clause 23.1.2 is stated in the Appendix to be applicable or because the regular progress of the Works or any part thereof has been or is likely to be materially affected by any one or more of the matters referred to in clause 26.2 the amount of such loss and/or expense which has been or is being incurred by the Contractor shall be added to the Contract Sum; provided always that; 26.1.1 the Contractor's application shall be made as soon as it has become or, should reasonably have become, apparent to him that the regular progress of the Works or of any part thereof has been or was likely to be affected as aforesaid; and 26.1.2 the Contractor shall in support of his application and in respect of the amount of the loss and/or expense provide upon request by the Employer such information and details as the Employer may reasonably require. 26.2 The following are the matters referred to in clause 26.1: 26.2.1 the opening up for inspection of any work covered up or the testing of any of the work materials or goods in accordance with clause 8.3 (including making good in consequence of such opening up or testing), unless the inspection or test showed that the work, materials or goods were not in accordance with this Contract; or 26.2.2 delay in receipt of any permission or approval for the purposes of Development Control Requirements necessary for the Works to be carried out or proceed, which delay the Contractor has taken all practicable steps to avoid or reduce; or 31 32 26.2.3.1 the execution of work not forming part of this Contract by the Employer himself or by persons employed or otherwise engaged by the Employer as referred to in clause 29 or the failure to execute such work; or 26.2.3.2 the supply by the Employer of materials and goods which the Employer has agreed to provide for the Works or the failure so to supply; or 26.2.4 Employer's instructions issued under clause 23.2 in regard to the postponement of any work to be executed under the provisions of this Contract; or 26.2.5 failure of the Employer to give in due time ingress to or egress form the site of the Works or any part thereof through or over any land, buildings, way or passage adjoining or connected with the site and in the possession and control of the Employer, in accordance with the Employer's Requirements after receipt by the Employer of such notice, if any, as the Contractor is required to give, or failure of the Employer to give such ingress or egress as otherwise agreed between the Employer and the Contractor; or 26.2.6 Employer's instructions issued under clause 12.2 effecting a Change or under clause 12.3 in regard to the expenditure of provisional sums: or 26.2.7 the Contractor not having received in due time necessary instructions, decisions, information or consents from the Employer which the Employer is obliged to provide or give under the Conditions including a decision under clause 2.4.2 and for which he specifically applied in writing provided that such application was made on a date which having regard to the Completion Date was neither unreasonably distant from nor unreasonably close to the date on which it was necessary for him to receive the same. 26.3 Any amount from time to time ascertained under clause 26 shall be added to the Contract Sum. 26.4 The provisions of clause 26 are without prejudice to any other rights and remedies which the Contractor may possess. 27 DETERMINATION BY EMPLOYER 27.1 Without prejudice to any other rights and remedies which the Employer may possess, if the Contractor shall make default in any one or more of the following respects, that is to say; if without reasonable cause he wholly suspends the carrying out of the design or construction of the Works before completion thereof; or 32 33 27.1.2 if he fails to proceed regularly and diligently with the performance of his obligations under this Contract; or 27.1.3 if he refuses or neglects to comply with a written notice from the Employer requiring him to remove defective work or improper materials or goods and by such refusal or neglect the Works are materially affected; or 27.1.4 if he fails to comply with the provisions of clause 18 then the Employer may give to him a notice by registered post or delivery by hand specifying the default. If the Contractor either shall continue such default for 14 days after receipt of such notice or shall at any time thereafter repeat such default (whether previously repeated or not), then the Employer may within 10 days after such continuance or repetition by notice by registered post or delivery by hand forthwith determine the appointment of the Contractor under this Contract; provided that such notice shall not be given unreasonably or vexatiously. 27.2 In the event of the Contractor becoming bankrupt or making a composition or arrangement with his creditors or having a winding up order made or (except for purposes of amalgamation or reconstruction) a resolution for voluntary winding up passed or having a provisional liquidator, receiver or manager of his business or undertaking duly appointed, or having possession taken, by or on behalf of the holders of any debentures secured by a floating charge, of any property comprised in or subject to the floating charge, the appointment of the Contractor under this Contract shall be forthwith automatically determined but the said appointment may be reinstated and continued if the Employer and the Contractor, his trustee in bankruptcy, liquidator, provisional liquidator, receiver or manager as the case may be shall so agree. 27.3 The Employer shall be entitled to determine the appointment of the Contractor under this or any other contract, if the Contract shall have offered or given or agreed to give to any person any gift or consideration of any kind as an inducement or reward for doing or forbearing to do or for having done or forborne to do any action in relation to the obtaining or execution of this or any other contract with the Employer, or for showing or forbearing to show favour or disfavour to any person in relation to this or any other contract with the Employer, or if the like acts shall have been done by any person employed by the Contractor or acting on his behalf (whether with or without the knowledge of the Contractor). 27.4 In the event of the appointment of the Contractor under this Contract being determined under clauses 27.1, 27.2 or 27.3 and so long as it has not been reinstated and continued, the following shall be the respective rights and duties of the Employer and the Contractor: 33 34 27.4.1 for the purposes referred to in clause 5.5. the Contractor shall provide the Employer with 2 copies of, and the Employer may retain, all such drawings or details or descriptions as the Contractor has prepared or previously provided and drawings and information relating to the Works completed before determination of the Contractor's appointment; 27.4.2 the Employer may employ or pay other persons to carry out and complete the design and construction of the Works and he or they may enter upon the works and use all temporary buildings, plant, tools, equipment, goods and materials intended for, delivered to and placed on or adjacent to the Works, and may purchase all materials and goods necessary for the carrying out and completion of the Works; 27.4.3.1 except where the determination occurs by reason of the bankruptcy of the Contractor or of his having a winding up order made or (other than for the purposes of amalgamation or reconstruction) a resolution for voluntary winding up passed, the Contractor shall if so required by the Employer within 14 days of the date of determination, assign to the Employer without payment the benefit of any agreement for the supply of materials or goods and/or for the execution of any work for the purposes of this Contract but on the terms that a supplier or sub-contractor shall be entitled to make any reasonable objection to any further assignment thereof by the Employer. 27.4.3.2 unless the exception to the operation of clause 27.4.3.1 applies the Employer may pay any supplier or sub-contractor for any materials or goods delivered or works executed for the purposes of this Contract (whether before or after the date of determination) in so far as the price thereof has not already been paid by the Contractor; 27.4.4 the Contractor shall as and when required in writing by the Employer so to do (but not before) remove from the Works any temporary buildings, plant, tools, equipment, goods and materials belonging to or hired by him. If within a reasonable time after any such requirement has been made the Contractor has not complied therewith, then the Employer may (but without being responsible for any loss or damage) remove and sell any such property of the Contractor, holding the proceeds less all costs incurred to the credit of the Contractor; 27.4.5 the Contractor shall allow or pay to the Employer in the manner hereinafter appearing the amount of any direct loss and/or damage caused to the Employer by the determination. Until after completion of the Works under clause 27.4.2 the Employer shall not be bound by any provision of this Contract to make any further payment the Contractor, but upon such completion and the verification within a reasonable time of the accounts therefor the Employer shall state the amount of expenses properly incurred by the employer and the amount of any direct loss and/or damage caused to the Employer by the determination and, if such 34 35 amounts when added to the monies paid to the Contractor before the date of determination exceed the total amount which would have been payable on due completion in accordance with this Contract, the difference shall be a debt payable to the Employer by the Contractor, and if the said amounts when added to the said monies be less than the said total amount, the difference shall be a debt payable by the Employer to the Contractor. 28 DETERMINATION BY CONTRACTOR 28.1 Without prejudice to any other rights and remedies which the Contractor may possess, if: 28.1.1 the Employer does not pay to the Contractor any interim amount properly due under clause 30.1 within 14 days and continues such default for 7 days after receipt by registered post or delivery by hand of a notice from the Contractor stating that notice of determination under clause 28 will be served if payment is not made within 7 days from receipt thereof 28.1.2 (deleted) then the Contractor may thereupon by notice by registered post or delivery by hand to the Employer forthwith determine the appointment of the Contractor under this Contract; provided that such notice shall not be given unreasonably or vexatiously. 28.2 Upon such determination, then without prejudice to the accrued rights or remedies of either party or to any liability of the classes mentioned in clause 20 which may accrue either before the Contractor or any sub-contractor shall have removed his temporary buildings, plant, tools, equipment, goods or materials or by reason of his or their so removing the same, the following shall be the respective rights and liabilities of the Contractor and the Employer; 28.2.1 the Contractor shall with all reasonable dispatch and in such manner and with such precautions as will prevent injury, death or damage of the classes in respect of which before the date of determination he was liable to indemnify the Employer under clause 20 remove from the site all temporary buildings, plant, tools, equipment, goods and materials and shall give facilities for his sub-contractors to do the same, but subject always to the provisions of clause 28.2.3.4; 28.2.2 for the purposes referred to in clause 5.5, the Contractor shall provide the Employer with 2 copies of, and the Employer may retain, all such drawings or details or descriptions as the Contractor has prepared or previously provided and drawings and information relating to the Works completed before determination of the Contractor's appointment; 35 36 28.2.3 after taking into account amounts previously paid under this Contract the Contractor shall be paid by the Employer; 28.2.3.1 the total value of work (including design work) completed at the date of determination; 28.2.3.2 the total value of work (including design work) begun and executed but not completed at the date of determination, the value being ascertained in accordance with clause 12.4 as if such work were a Change effected under clause 12.2 but after taking account of any amounts referred to in clauses 28.2.3.3 to 28.2.3.6; 28.2.3.3 any amount in respect of direct loss and/or expense under clause 26; 28.2.3.4 the cost of materials or goods properly ordered for the Works for which the Contractor shall have paid or for which the Contractor is legally bound to pay, and on such payment by the Employer any materials or goods so paid for shall become the property of the Employer; 28.2.3.5 the reasonable cost of removal under clause 28.2.1; 28.2.3.6 any direct loss and/or expense caused to the Contractor by the determination except where the ground for determination is that set out in clause 28.1.2.5. 28A DETERMINATION BY EMPLOYER OR CONTRACTOR (deleted) 29 EXECUTION OF WORK NOT FORMING PART OF CONTRACT 29.1 Where the Employer's Requirement in regard to any work not forming part of this Contract and which is to be carried out by the Employer himself or by persons employed or otherwise engaged by him, provide such information as is necessary to enable the Contractor to carry out and complete the Works in accordance with the Conditions, the Contractor shall permit the execution of such work. 29.2 Where the Employer's Requirement do not provide the information referred to in clause 29.1 and the Employer requires the execution of work not forming part of this Contract by the Employer himself or by persons employed or otherwise engaged by the Employer, then the Employer may, with the consent of the Contractor (which consent shall not be unreasonably withheld) arrange for the execution of such work. 36 37 29.3 Every person employed or otherwise engaged by the Employer as referred to in clauses 29.1 and 29.2 shall for the purpose of clause 20 be deemed to be a person for whom the Employer is responsible and not to be a sub-contractor. 30 PAYMENTS 30.1.1 Interim Payments shall be made by the Employer to the Contractor in accordance with clauses 30.1 to 30.4 and whichever of the Alternatives A or B in Appendix 2 applies to this Contract. 30.1.2 The amount due as an Interim Payment shall be the gross valuation as referred to in clause 30.2A or clause 30.2B whichever is applicable, less: 301.2.1 any amount which the Employer may deduct and retain as provided in clause 30.4 (in the Conditions called "the Retention") and 30.1.2.2 the sum of the amounts paid in previous Interim Payments. 30.2A The gross valuation for the purposes of Interim Payments in accordance with Alternative A is the total of the amounts referred to in clause 30.2A.1 and of the amounts referred to in clause 30.2A.2 less the amount referred to in clause 30.2A.3. 30.2A.1 The following amounts are subject to Retention: 30.2A.1.1 the cumulative value at the relevant stage; 30.2A.1.2 the amount of any valuation of Changes or of instructions by the Employer in regard to the expenditure of provisional sums (clause 12.2 or clause 12.3) relevant to the Interim Payment; 30.2A.1.3 (deleted) 30.2A.2 The following amounts are not subject to Retention: 30.2A.2.1 any amounts payable in accordance with clause 3 by the Employer as a result of payments made or costs incurred by the Contractor under clauses 8.3, 9.2, 16.2 or 16.3; 30.2A.2.2 any amounts due under clause 26; 30.2A.2.3 (deleted) 30.2A.3 The following amount is not subject to Retention: 30.2A.3.1 any amount deductible under clauses 16.2 or 16.3 37 38 30.2A.4 (deleted) 30.2B The gross valuation for the purposes of Interim Payments in accordance with Alternative B is the total of the amounts referred to in clause 30.2B.1 and of the amounts referred to in clause 30.2B.2 less the amount referred to in clause 30.2B.3. 30.2B.1 The following amounts are subject to Retention: 30.2B.1.1 the total value of work properly executed including any design work carried out by the Contractor and any work so executed to which clause 12.2 and clause 12.3 refer; 30.2B.1.2 the total value of the materials and goods delivered to or adjacent to the Works for incorporation therein by the Contractor but not so incorporated, provided that the value of such materials and goods shall only be included as and from such times as they are reasonably, properly and not prematurely so delivered and are adequately protected against weather and other casualties; 30.2B.1.3 the total value of any materials and goods other than those to which clause 30.2B.1.2 refers where the Employer in the exercise of his discretion as referred to in Alternative B in Appendix 2 has decided that such total value be included in an Interim Payment; 30.2B.1.4 (deleted) 30.2B.2 The following amounts are not subject to Retention: 30.2B.2.1 any amounts payable in accordance with clause 3 by the Employer as a result of payments made or costs incurred by the Contractor under clause 8.3, 9.2, 16.2 or 16.3; 30.2B.2.2 any amount due under clause 26; 30.2B.2.3 (deleted) 30.2B.3 The following amount is not subject to Retention: 30.2B.3.1 any amount deductible under clauses 16.2 or 16.3. 30.3.1 The contractor shall make Applications for Interim Payment as follows: 30.3.1.1 where Alternative A applies, Application for Interim Payment shall be made on completion of each stage set out in Alternative A in Appendix 2 and after the expiration of the Defects Liability Period named in Appendix 1 or on the issue of 38 39 the Notice of Completion of Making Good Defects (whichever is the later); 30.3.1.2 where Alternative B applies, Application for Interim Payment shall be made at the Period for Applications for Interim Payment stated in Alternative B in Appendix 2 up to and including the end of the Period during which the day named in the Statement of Practical Completion occurs. Thereafter Application for Interim Payment shall be made as and when further amounts are due to the Contractor and after the expiration of the Defects Liability Period named in Appendix 1 or on the issue of the Notice of Completion of Making Good Defects (whichever is the later) provided that the Employer shall not be required to make any Interim Payment within one calendar month of having made a previous Interim Payment. 30.3.2 Each application for Interim Payment shall be accompanied by such details as may be stated in the Employer's Requirements. 30.3.3 Subject to clause 30.3.4 the Employer shall pay the amount stated as due in the Application for Interim Payment within 14 days of the issue of each Application for Interim Payment. 30.3.4 If on receipt of any Application for Interim Payment the Employer considers that the amount stated as due in the Application is not in accordance with this Contract he shall forthwith issue to the Contractor a notice with reasons to that effect and shall pay at the same time as the issue of that notice such amount as he considers to be properly due as an Interim Payment. 30.3.5 The payment by the Employer of the amount referred to in clause 30.3.4 shall be without prejudice to the rights of the Contractor in respect of any amount which he considers has been improperly withheld by the Employer or in respect of any payment by the Employer which he considers was not in accordance with this Contract. 30.4.1 The Retention which the Employer may deduct and retain as referred to in clause 30.1.2 is such percentage of the total amount included under clause 30.2A.1 or clause 30.2B.1 whichever is applicable as arises from the operation of the following rules: 30.4.1.1 the percentage referred to in the Conditions and Appendix 1 as "the Retention Percentage" shall be 5 per cent unless a lower rate shall have been agreed between the parties and specified in Appendix 1 as the Retention Percentage; 30.4.1.2 (deleted) 30.4.1.3 (deleted) 39 40 30.4.2 The Retention shall be subject to the following rules: 30.4.2.1 the Employer's interest in the Retention is fiduciary as trustee for the Contractor (but without obligation to invest); 30.4.2.2 to the extent that the Employer exercises his right under clause 30.4 and if the Contractor then so requests, the Employer, at the time of each Interim Payment, shall place the Retention in a separate banking account (so designated as to identify the amount as the Retention held by the Employer on trust as provided in clause 30.4.2.1) and inform the Contractor in writing that such amount has been so placed. The Employer shall be entitled to the full beneficial interest in any interest accruing in the separate banking account and shall be under no duty to account for any such interest to the Contractor. 30.4.3 Notwithstanding the fiduciary interest of the Employer in the Retention as stated in clause 30.4.2.1 the Employer is entitled to exercise any right under this Contract of deduction from monies due or to become due to the Contractor against any amount otherwise due whether or not any Retention is included in that amount by the operation of clause 30. 30.5.1 Within 3 months of Practical Completion the Contractor shall submit the Final Account and the Final Statement referred to in clause 30.5.4 for agreement by the Employer and the Contractor shall supply the Employer with such supporting documents as the Employer may reasonably require. 30.5.2 The Contract Sum shall be adjusted in accordance with the Conditions and the Final Account shall set out the Contract Sum together with the adjustments set out in clause 30.5.3. 30.5.3 There shall be deducted from the Contract Sum: 30.5.3.1 all provisional sums included in the Employer's Requirements; 30.5.3.2 any deduction by way of adjustment under clauses 2.3.2 and 6.3; 30.5.3.3 the amount of any valuation of the omission of work in accordance with an instruction of the Employer affecting a Change together with any amount in respect of any other work as referred to in clause 12.5.5 which is to be valued under clause 12.5; 30.5.3.4 any amount deducted or deductible under clauses 16.2 or 16.3; 30.5.3.5 any other amount which is required by this Contract to be deducted from the Contract Sum. There shall be added to the Contract Sum: 40 41 30.5.3.6 any addition by way of adjustment under clauses 2.3.2 and 6.3; 30.5.3.7 any amounts paid or payable by the Employer to the Contractor as a result of payments made or costs incurred by the Contractor under clauses 8.3, 9.2, 16.2 or 16.3; 30.5.3.8 the amount of the valuation under clause 12.5 of any Change including the value of other work as referred to in clause 12.5.5 other than the valuation of any omission under clause 12.5.2; 30.5.3.9 the amount of the valuation of work executed by, or the amount of any disbursements by, the Contractor in accordance with instructions by the Employer as to the expenditure of provisional sums included in the Employer's Requirements; 30.5.3.10 any amount ascertained under clause 26; 30.5.3.11 (deleted) 30.5.3.12 (deleted) 30.5.3.13 any other amount which is required by this Contract to be added to the Contract Sum. 30.5.4 The Final Statement shall set out: 30.5.4.1 the amount resulting from the operation of clauses 30.5.2 and 30.5.3; and 30.5.4.2 the sum of amounts already paid by the Employer to the Contractor and the difference (if any) between the two sums shall be expressed as a balance due to the Contractor from the Employer or to the Employer from the Contractor as the case may be. 30.5.5 If nothing in the Final Account or in the Final Statement as submitted by the Contractor in accordance with clause 30.5.1 is disputed by the Employer within 1 month from the end of the Defects Liability Period stated in Appendix 1 or from completion of making good defects under clause 16 or within 1 month of the submission of the Final Account and the Final Statement to the Employer by the Contractor, whichever is the later, the Final Account and the Final Statement so submitted shall be conclusive as to the balance due between the parties in accordance therewith. 30.5.6 If the Contractor does not submit the Final Account and the Final Statement 41 42 within the 3 months referred to in clause 30.5.1 the Employer may on the expiry of the said 3 months give notice in writing to the Contractor that if the Final Statement and Final Account are not submitted by the Contractor within 2 months from the date of the written notice the Employer may himself prepare or have prepared a Final Account and Final Statement 'Employer's Final Account' and 'Employer's Final Statement'). 30.5.7 The Employer's Final Account shall set out the Contract Sum together with such adjustments as are referred to in clause 30.5.3 and such other adjustments which are in accordance with the Conditions as the Employer, on the information in his possession, can make. The Employer's Final Statement shall set out: 30.5.7.1 the amount stated in the Employer's Final Account; and 30.5.7.2 the sum of amounts already paid by the Employer to the Contractor and the difference (if any) between the two sums shall be expressed as a balance due to the Contractor from the Employer or to the Employer from the Contractor as the case may be. 30.5.8 If nothing in the Employer's Final Account or in the Employer's Final Statement are sent to the Contractor in accordance with clause 30.5.6 is disputed by the Contractor within 1 month from the end of the Defects Liability Period stated in Appendix 1 or from completion of making good defects under clause 16 or from the sending of the Employer's Final Account and the Employer's Final Statement to the Contractor by the Employer, whichever is the later, the Employer's Final Statement so sent shall be conclusive as to the balance due between the parties in accordance therewith. 30.6 Subject to any deductions authorised by the Conditions any balance properly stated in the Final Statement in accordance with clause 30.5.4 or stated in the Employer's Final Statement in accordance with clause 30.5.6 shall, as from the 28th day after the Final Statement is agreed or by the operation of clause 30.5.5 becomes conclusive as to the balance due between the parties or as from the 28th day after the Employer's Final Account by the operation of clause 30.5.8 becomes conclusive as to the balance due between the parties, be a debt payable as the case may be by the Employer to the Contractor or by the Contractor to the Employer. 30.7 Where the Employer exercises any right of deduction from monies due or to become due to the Contractor he shall inform the Contractor in writing of the reason for that deduction. 30.8.1 The Final Account and Final Statement, when they are agreed or become conclusive as to the balance due between the parties in accordance with clause 42 43 30.5.5 or the Employer's Final Account and Employer's Final Statement when they become conclusive as to the balance due between the parties in accordance with clause 30.5.8 shall, except as provided in clauses 30.8.2 and 30.8.3 (and save in respect of fraud), have effect in any proceedings arising out of or in connection with this Contract (whether by arbitration under article 5 or otherwise): 30.8.1.1 as conclusive evidence that where it is stated in the Employer's Requirements that the quality of materials or the standards of workmanship are to be to the reasonable satisfaction of the Employer the same are to such satisfaction; and 30.8.1.2 conclusive evidence that all and only such extension of time, if any, as are due under clause 25 have been given; and 30.8.1.3 conclusive evidence that the reimbursement of direct loss and/or expense, if any, to the Contractor pursuant to clause 26.1 is in final settlement of all and any claims which the Contractor has or may have arising out of the occurrence of any of the matters referred to in clause 26.2 whether such claim be for breach of contract, duty of care, statutory duty or otherwise. 30.8.2 If any arbitration or other proceedings have previously been commenced by either party the Final Account and Final Statement or the Employer's Final Account and Employer's Final Statement as the case may be, shall have effect as aforesaid after either: 30.8.2.1 such proceedings have been concluded, whereupon the Final Account and Final Statement or the Employer's Final Account and Employer's Final Statement as the case may, shall be subject to the terms of any award or judgement in or settlement of such proceedings; or 30.8.2.2 a period of 12 months during which neither party has taken any further step in such proceedings, whereupon the Final Account and Final Statement or the Employer's Final Account and Employer's Final Statement as the case may be, shall be subject to any terms agreed in partial settlement, whichever be the earlier. 30.8.3 If any arbitration or other proceedings have been commenced by either party within 28 days after the Final Account and Final Statement or the Employer's Final Account and Employer's Final Statement as the case may be, would otherwise become conclusive by the operation of clause 30.5.5 or clause 30.5.8, the Final Account and Final Statement or the Employer's Final Account and Employer's Final Settlement as the case may be, shall have effect as such conclusive evidence save only in respect of all matters to which these proceedings relate. 43 44 30.9 Save as aforesaid no payment by the Employer shall of itself by conclusive evidence that any design, works, materials or goods to which it relates are in accordance with this Contract. 31 CERTIFICATE OF FITNESS FOR OCCUPATION 31.1 The Contractor shall apply for the issuance of the Certificate of Fitness for Occupation from the Appropriate Authority and shall at his own cost and expense duly comply with all the requirements of the appropriate authority which are necessary for the issuance of such Certificate in respect of the Works. 31.2 The Contractor shall cause or procure the issuance of the Certificate of Fitness for Occupation by the Completion Date. 32-38 (numbers not used) 39 SETTLEMENT OF DISPUTES - ARBITRATION 39.1 When the Employer or the Contractor require a dispute or difference as referred to in Article 5 to be referred to arbitration then either the Employer or the Contractor shall give written notice to the other or such effect and such dispute or difference shall be referred to the arbitration and final decision of a person to be agreed between the parties as the Arbitrator. 39.2 Such reference, except: 39.2.1 on the questions; whether or not the issue of an instruction is empowered by the Conditions; or whether or not a payment has been improperly withheld; or whether a payment is not in accordance with the Conditions; or whether either party has withheld or delayed a consent or statement where such consent or statement is not to be unreasonably withheld or delayed; or 39.2.2 on any dispute or difference under clause 4.1.1 in regard to a reasonable objection by the Contractor, under clause 8.4, under clause 8.5, under clause 18.2.1 or under clause 18.2.3 in regard to a withholding of consent by the Employer, under clause 17.1 or clause 23.3.2 in regard to a withholding of consent by the Contractor and under clause 25. 44 45 shall not be opened until after Practical Completion or alleged Practical Completion of the Works or termination or alleged termination of the Contractor's appointment under this Contract or abandonment of the Works, unless with the written consent of the Employer and the Contractor. 39.3 Subject to the provisions of clauses 4.2 and 30.8 the Arbitrator shall, without prejudice to the generality of his powers, have power to rectify the contract so that it accurately reflects the true agreement made by the Employer and the Contractor, to direct such measurements and/or valuations as may in his opinion be desirable in order to determine the rights of the parties and to ascertain and award any sum which ought to have been the subject of or included in any payment and to open up, review and revise any account, opinion, decision, requirement or notice and to determine all matters in dispute which shall be submitted to him in the same manner as if no such account, opinion, decision, requirement or notice had been given. 39.4 Subject to clause 39.5 the award of such Arbitration shall be final and binding on the parties. 39.5 The parties herby agree and consent that either party; 39.5.1 may appeal to the High Court on any question of law arising out of an award made in an arbitration under this Arbitration Agreement; and 39.5.2 may apply to the High Court to determine any question of law arising in the course of the reference. and the parties agree that the High Court should have jurisdiction to determine any such question in law. 39.6 Whatever the nationality, residence or domicile of the Employer, the Contractor, any sub-contractor or supplier or the Arbitrator, and wherever the Works or any part thereof are situated, the law of Malaysia shall be the proper law of this Contract and in particular (but not so as to derogate from the generality of the forgoing) the provisions of the Arbitration Act 1952 shall apply to any arbitration under this Contract wherever the same, or any part of it, be conducted. 39.7 If before making his final award the Arbitrator dies or otherwise ceases to act as the Arbitrator, the Employer and the Contractor shall forthwith appoint a further Arbitrator, or, upon failure so to appoint within 14 days of any such death or cessation, then either the Employer or the Contractor may request the person 45 46 Named in Appendix 1 to the Conditions to appoint such further Arbitrator. Provided that no such further Arbitrator shall be entitled to disregard any direction of the previous Arbitrator or to vary or revise any award of the previous Arbitrator with the agreement of the parties and/or by the operation of law. 46 47 APPENDIX 1 Clause etc. Base Date 1.3 _______ Date for Completion 1.3 _______ Defects Liability Period 16.2, 17 and 30 12 months (if none other stated is 6 months from day named in the statement as to Practical Completion of the Works). Assignment by Employer of 18.1.2 Clause 18.1.2 applies benefits after Practical Completion. Insurance cover for any one 21.1.1 Nil occurrence or series of occurrences arising out of one event. Insurance-liability of 21.2.1 Nil Employer. Percentage to cover 22A Nil professional fees Annual renewal date of 22A.3.1 Not Applicable insurance supplied by Contractor Date of Possession 23.1.1. ______ Deferment of the Date of 23.1.2 Clause 23.1.2 does not apply possession 25.4.14 26.1 Liquidated and ascertained 24.2 At the rate of RM 500.00 damages per day Retention Percentage 30.4.1.1 2.5% (whereby 1.25% shall be released to the Contractor 6 months from the day named in the statement as to Practical Completion and the balance 1.25% shall be released 12 months from the day named in the statement as to Practical Completion) 47 48 APPENDIX 2: METHOD OF PAYMENT - ALTERNATIVES Clause 30.1 : Interim Payments shall be made in accordance with clause 30 and: - by stages in accordance with Alternative A below and clause 30.2B shall not apply - periodically in accordance with Alternative B and clause 30.2A shall not apply. ALTERNATIVE A: STAGE PAYMENTS The stages referred to in clause 30.3.1.1 are: Not Applicable. ALTERNATIVE B: PERIODIC PAYMENTS The period for Applications for Interim Payment referred to in clause 30.3.1.2 is: monthly payments as set out on a separate sheet attached referred to as PROPOSED PAYMENT SCHEDULE. 48 49 APPENDIX 3 THE EMPLOYER'S REQUIREMENTS are comprised in the following document(s) (including any drawings) signed by or on behalf of the parties hereto: As per drawings attached. THE CONTRACTOR'S PROPOSALS are comprised in the following document(s) (including any drawings) signed by or on behalf of the parties hereto: Attached. THE CONTRACT SUM ANALYSIS are comprised in the following document(s) (including any drawings) signed by or on behalf of the parties hereto: Attached. 49 EX-10.MMM 7 p63766ex10-mmm.txt EX-10.MMM 1 EXHIBIT 10 (mmm) AMENDMENT AGREEMENT Reference is hereby made to that certain promissory note (the "Note") dated as of December 3, 1999 and, but for this amendment agreement, maturing on February 3, 2000 that has been issued by Cerprobe Corporation, a Delaware corporation ("Cerprobe"), to Ali Bushehri, as agent (the "Agent") for Nasser Barabi, Iraj Barabi, Ali Bushehri, Ahmad Barabi, the Ali and Nassrin Bushehri Trust, a trust established under the laws of the State of California, and the Ahmad and Zakieh Barabi Trust, a trust established under the laws of the State of California (collectively, the "Selling Stockholders"). Each of Cerprobe and the Agent on behalf of the Selling Stockholder hereby agree to the following amendments to the terms of the Note: 1. The language "February 3, 2000" in the first sentence of the first paragraph of the Note shall be replaced by the language "September 30, 2000". 2. The language "365-day year" in the third sentence of the first paragraph of the Note shall be replaced by the language "366-day year". This amendment agreement may be executed in several counterparts, each of which shall constitute an original and all of which, when taken together, shall constitute one agreement. The parties hereto have caused this amendment agreement to be executed and delivered as of July 4, 2000. CERPROBE CORPORATION, a Delaware corporation By: /s/ Randal L. Buness -------------------- Title: SVP & CFO -------------------- By: /s/ Ali Bushehri -------------------- Ali Bushehri, as Agent for the Selling Stockholders 1. 2 AMENDMENT AGREEMENT Reference is hereby made to that Stock Purchase Agreement (the "Stock Purchase Agreement") dated as of December 3, 1999 among Cerprobe Corporation, a Delaware corporation ("Cerprobe"), Oz Technologies, Inc., a California corporation, and the following parties: Nassar Barabi, Iraj Barabi, Ali Bushehri, Ahmad Barabi (collectively, the "Selling Stockholders"), Ali Bushehri, as trustee for the Ali and Nassrin Bushehri Trust, a trust established under the laws of the State of California (the "Bushehri Trust"), and Ahmad Barabi, as trustee for the Ahmad and Zakieh Barabi Trust, a trust established under the laws of the State of California (the "Barabi Trust"). Each of the parties hereto hereby agrees to the following amendment to the terms of the Stock Purchase Agreement: 1. The language "February 3, 2000" in the first sentence of Section 5.11 of the Stock Purchase Agreement shall be replaced by the language "September 30, 2000". This amendment agreement may be executed in several counterparts, each of which shall constitute an original and all of which, when taken together, shall constitute one agreement. 3 The parties hereto have caused this amendment agreement to be executed and delivered as of July 4, 2000. CERPROBE CORPORATION, a Delaware corporation By: /s/ Randal L. Buness --------------------------- Title: SVP & CFO --------------------------- By: /s/ Ali Bushehri ------------------------------ Ali Bushehri, as agent for the Selling Stockholders and as trustee for the Bushehri Trust By: /s/ Ahmad Barabi -------------------------------- Ahmad Barabi, as trustee for the Barabi Trust By: /s/ Ali Bushehri --------------------------------- Ali Bushehri By: /s/ Iraj Barabi --------------------------------- Iraj Barabi By: /s/ Nasser Barabi --------------------------------- Nasser Barabi, Dallas Building By: /s/ Ahmad Barabi --------------------------------- Ahmad Barabi EX-10.NNN 8 p63766ex10-nnn.txt EX-10.NNN 1 Exhibit 10 (NNN) AMENDMENT NO. 1 TO LOAN AND SECURITY AGREEMENT THIS AMENDMENT NO. 1 TO LOAN AND SECURITY AGREEMENT ("Amendment") is dated as of August 15, 2000 and is entered into by and between Bank of America, N.A. ("Lender") and Cerprobe Corporation, Cerprobe Interconnect Solutions, Inc., OZ Technologies, Inc. and Triple S Engineering, Inc. (collectively the "Borrower"). All capitalized terms used herein but not otherwise defined shall have the meanings ascribed to them in the Agreement (as hereinafter defined). WITNESSETH WHEREAS, the Borrower and the Lender have entered into that certain Loan and Security Agreement dated as of December 3, 1999, as amended and supplemented (the "Agreement"); and WHEREAS, the Borrower desires to amend the Agreement and the Lender is willing to do so, subject to the terms and conditions stated herein; NOW, THEREFORE, in consideration of the premises herein contained and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Borrower and Lender hereby agree as follows: SECTION 1. Amendment to the Agreement. The Lender and Borrower agree that the Agreement shall be amended as follows: A. Amendment to Section 1. The definitions of "Fixed Charge Coverage" and "Inventory Sublimit" contained in Section 1 of the Agreement are amended in their entirety to read as follows: '"Fixed Charge Coverage' means, for any fiscal period, the ratio of (a) Cash Flow for such period to (b) the sum of (i) interest expense of Borrowers for such period plus (ii) principal payments (excluding any repayment of the Inventory Loans) with respect to Debt for Borrowed Money of Borrowers for such period, in each case to the extent paid in cash. 'Inventory Sublimit' for all Borrowers $989,333.36, decreasing on the first day of each month by an amount equal to $243,083.33 beginning on September 1, 2000 until December 1, 2000, on which date the Inventory Sublimit shall reduce to zero. The Inventory Sublimit may be permanently reduced by the Borrowers in accordance with Section 4.4 hereof." B. Amendment to Section 4. Section 4.5(c) of the Agreement is deleted and has no further force or effect. 1 2 SECTION 2. Conditions. The effectiveness of this Amendment is subject to the satisfaction of the following conditions precedent: A. Amendment. Fully executed copies of this Amendment signed by the Borrower shall be delivered to Lender. B. Other Documents. Borrower shall have executed and delivered to Lender such other documents and instruments as Lender may require. SECTION 3. Miscellaneous. A. Survival of Representations and Warranties. All representations and warranties made in the Agreement or any other document or documents relating thereto, including, without limitation, any Loan Document furnished in connection with this Amendment, shall survive the execution and delivery of this Amendment and the other Loan Documents, and no investigation by Lender or any closing shall affect the representations and warranties or the right of Lender to rely thereon. B. Reference to Agreement. The Agreement, each of the Loan Documents, and any and all other agreements, documents or instruments now or hereafter executed and delivered pursuant to the terms hereof, or pursuant to the terms of the Agreement as amended hereby, are hereby amended so that any reference therein to the Agreement shall mean a reference to the Agreement as amended hereby. C. Agreement Remains in Effect. The Agreement and the Loan Documents remain in full force and effect and the Borrower ratifies and confirms its agreements and covenants contained therein. The Borrower hereby confirms that, after giving effect to this Amendment, no Event of Default or Default exists as of such date. D. Severability. Any provision of this Amendment held by a court of competent jurisdiction to be invalid or unenforceable shall not impair or invalidate the remainder of this Amendment and the effect thereof shall be confined to the provision so held to be invalid or unenforceable. E. APPLICABLE LAW. THIS AMENDMENT AND ALL OTHER LOAN DOCUMENTS EXECUTED PURSUANT HERETO SHALL BE DEEMED TO HAVE BEEN MADE AND TO BE PERFORMABLE IN THE STATE OF CALIFORNIA AND SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA. F. Successors and Assigns. This Amendment is binding upon and shall inure to the benefit of Lender and Borrower and their respective successors and assigns; provided, however, that Borrower may not assign or transfer any of its rights or obligations hereunder without the prior written consent of Lender. G. Counterparts. This Amendment may be executed in one or more counterparts, each of which when so executed shall be deemed to be an original, but all of which when taken together shall constitute one and the same instrument. 2 3 H. Headings. The headings, captions and arrangements used in this Amendment are for convenience only and shall not affect the interpretation of this Amendment. I. NO ORAL AGREEMENTS. THIS AMENDMENT, TOGETHER WITH THE OTHER LOAN DOCUMENTS AS WRITTEN, REPRESENTS THE FINAL AGREEMENT BETWEEN LENDER AND BORROWER AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN LENDER AND BORROWER. J. Expenses. The Borrower agrees to pay the Lender a documentation fee in the amount of $1,000, which fee may be charged to the Borrower's loan account as a Revolving Loan. IN WITNESS WHEREOF, the parties have executed this Amendment under seal on the date first written above. CERPROBE CORPORATION By: /s/ Randal L. Buness -------------------------- Name: Randal L. Buness -------------------------- Title: Sr. V.P. & CEO -------------------------- BANK OF AMERICA, N.A. By: /s/ Stephen E. Rossi -------------------------- Name: Stephen E. Rossi -------------------------- Title: A.V.P. -------------------------- 3 EX-10.OOO 9 p63766ex10-ooo.txt EX-10.OOO 1 EXHIBIT 10(000) NORTH TEXAS COMMERCIAL ASSOCIATION OF REALTORS(R) COMMERCIAL CONTRACT OF SALE IN CONSIDERATION of the mutual terms, provisions, covenants and agreements contained in this Contract (the "Contract"), the parties hereto agree as follows [Check all boxes applicable to this Contract, Boxes not checked do not apply to this Contract]: 1. PARTIES. Cerprobe Corporation (the "Seller") shall sell and convey to Assurance Capital, Inc. (the "Purchaser") and Purchaser shall buy and pay for the Property (defined below). 2. PROPERTY. Being an approx. 34,336 SF masonry constructed single story building on approx. 3.76 acres with an address of 10365 Sanden Drive in the City of Dallas, Dallas County, Texas, further described as: Fleming-Gateway, Blk. B/8053, Lot 2B or as described in Exhibit A. SURVEY AND/OR LEGAL DESCRIPTION, and/or as shown on Exhibit B, FLOOR PLAN AND/OR SITE PLAN, together with all and singular, all improvements thereon and all rights and appurtenances pertaining thereto, including any right, title and interest of Seller in and to adjacent streets, alleys and rights-of-way. Such real estate, improvements, rights and appurtenances are collectively referred to as the "Property." [X} The Property also includes fixtures and articles of personal property listed and described in Addendum A, PERSONAL PROPERTY. 3. PURCHASE PRICE. The purchase price for the Property is $2,800,000.00 (the "Purchase Price"), payable as follows: [ ] A. The Purchase Price shall be adjusted up or down based upon the [strike one] gross land area/Net Land Area (as defined below) of the Property determined by the Survey. The applicable land area shall be multiplied by $____ per square foot and the product thereof shall become the Purchase Price at Closing. [X] B. Cash payable at Closing: $2,800,000.00. [ ] C. The balance of the Purchase Price shall be payable according to the provisions in Addendum B, FINANCING. 4. EARNEST MONEY. A. EARNEST MONEY DEPOSIT. Within two business days after the Effective Date of this Contract, Purchaser shall deposit earnest money in the from of a certified or cashier's check in the amount of $25,000.00 (the"Earnest Money") payable to Ticor Title Company (the "Title Company"), in its capacity as escrow agent, to be held in escrow pursuant to the terms of this Contract. Seller's acceptance of this Contract is expressly conditioned upon Purchaser's timely deposit of the Earnest Money with the Title Company. If Purchaser fails to timely deposit the Earnest Money, Seller may, at Seller's option, terminate this Contract by delivering a written termination notice to Purchaser. Notwithstanding anything herein to the contrary, a portion of the Earnest Money in the amount of $100.00 shall be non-refundable and shall be distributed to Seller at Closing or other termination of this Contract as full payment and independent consideration for Seller's performance under this Contract. If this Contract is properly terminated by Purchaser pursuant to a right of termination granted to Purchaser by any provision of this Contract, or any attached Addenda, the Earnest Money, less the non-refundable portion, shall be promptly refunded to Purchaser, and the parties shall have no further rights or obligations under this Contract (except for those which may expressly survive the termination). The Earnest Money [X] shall [ ] shall not be placed in an interest-bearing account by the Title Company, and any interest earned thereon shall become a part of the Earnest Money. At Closing the Earnest Money shall be applied to the Purchase Price. B. ESCROW. The Earnest Money is deposited with the Title Company with the understanding that the Title Company (1) is not responsible for the performance or non-performance of any party to this Contract, and (2) is not liable for interest on the funds held unless required in Paragraph 4A. The Title Company shall deposit the Earnest Money in one or more fully insured accounts in one or more Federally insured banking or savings institutions. If both parties make demand for the payment of the Earnest Money, the Title Company has the right to require from all parties and Broker(s) a written release of liability of the Title Company which authorizes the disbursement of the Earnest Money. If only one party makes demand for payment of the refundable portion of the Earnest Money, the Title Company shall give notice to the other party of the demand. The Title Company is authorized and directed to honor the demand unless the other party delivers a written objection to the Title Company within ten (10) days after the Title Company's notice to that party. 5. SURVEY AND TITLE DOCUMENTS. A. SURVEY. As soon as reasonably possible, and in any event within twenty (20) days after the Effective Date, Seller shall, at Seller's expense, deliver or cause to be delivered to Purchaser a copy of a current or updated on-the-ground perimeter survey (the "Survey") of the Property prepaid by a Registered Professional Land Surveyor reasonably acceptable to the Purchaser. The Survey shall show the location and size of all of the following on or adjacent to the Property, if any: buildings, improvements, streets, pavements, easements, rights-of-way, protrusions, encroachments, fences, building lines, 100-year flood plain, apparent public utilities, and recording information of easements. The Survey shall be in a form of a date acceptable to Purchaser and to the Title Company, and in acceptable form in order to allow the Title Company to delete the survey exception (except as to "shortages in area") from the Title Policy. The area within the 100-year flood plain shall be as defined by the Federal Emergency Management Agency or other applicable governmental authority. At Closing, the metes and bounds description of the Property reflected in the Survey shall be used in the warranty deed and any other documents requiring a legal description of the Property. Page 1 2 B. Title Commitment. As soon as reasonably possible, and in any event within twenty (20) days after the Effective Date, Seller shall, at Seller's expense, deliver or cause to be delivered to Purchaser (1) a title commitment (the "Title Commitment") covering the Property binding the Title Company to issue a Texas owner Policy of Title Insurance (the "Title Policy") on the standard form prescribed by the Texas State Board of Insurance at the Closing, in the full amount of the Purchase Price, insuring Purchaser's fee simple title to the Property to be good and indefeasible, subject only to the Permitted Exceptions as defined below, and (2) the following documents (collectively, the "Title Documents")(a) true and legible copies to the extent available of all recorded instruments affecting the Property and recited as exceptions in the Title Commitment, (b) a current tax certificate, and (c) written notices as required in Paragraph 5.C. C. Special Assessment Districts. If the Property is situated within a utility district or flood control district subject to the provisions of Section 50.301, Texas Water Code, then Seller shall give to Purchaser as part of the Title Documents the required written notice. Purchaser agrees to acknowledge receipt of the notice in writing. The notice must set forth the current tax rate, the current bonded indebtedness and the authorized indebtedness of the district, and must comply with all other applicable requirements of the Texas Water Code. If the Property is subject to mandatory membership in a property owners' association, Seller shall notify Purchaser of the current annual budget of the property owners' association and the current authorized fees, dues and/or assessments relating to the Property. D. Abstract. At the time of the execution of this Contract, Purchaser acknowledges that the Broker(s)(defined below) have advised and hereby advise Purchaser, by this writing, that Purchaser should have the abstract covering the Property examined by an attorney of Purchaser's own selection or that Purchaser should be furnished with or obtain a policy of title insurance. 6. REVIEW OF TITLE DOCUMENTS. A. Review Period. Purchaser shall have forty five ( 45 ) days ------------------- ------ (the "Review Period") after Purchaser's receipt of the last of (i) the survey, (ii) the Title Commitment, (iii) the Title Documents, and (iv) all other documents required to be furnished by Seller as identified on Addendum A, PERSONAL PROPERTY, and/or on Addendum C, INSPECTION, to review them. If Purchaser has objections to the Survey, Title Commitment or Title Documents, Purchaser may deliver the objections to Seller in writing within the Review Period. Any item to which Purchaser does not object shall be deemed a "Permitted Exception." Items that the Title Company identifies as to be released at closing will be deemed objections by Purchaser. Purchaser's failure to object within the time provided shall be a waiver of the right to object. If there are obligations by Purchaser, or a third party lender, Seller shall make a good faith attempt to satisfy the objections within ten (10) days after receipt of Purchaser's objections (the "Cure Period"), but Seller is not required to incur any cost to do so. Zoning ordinances and the lien for current taxes are deemed to be Permitted Exceptions. B. Cure Period. If Seller cannot or does not satisfy the objections within the Cure Period, Seller shall deliver a written notice to Purchaser, prior to expiration of the Cure Period, stating whether Seller is committed to cure the objections at or before Closing. If Seller does not timely deliver the notice, or does not commit in the notice to fully cure all of the objections at or before Closing, then Purchaser may terminate this Contract by delivering a written notice to Seller on or before the earlier to occur of: (i) the date which is seven (7) days after the expiration of the Cure Period; or (ii) the scheduled Closing Date. If Purchaser properly and timely terminates this Contract, the refundable portion of the Earnest Money shall be immediately returned to Purchaser and neither party shall have any rights or obligations under this Contract (except for those which may expressly survive the termination of this Contract). If Purchaser does not properly and timely terminate this Contract, then Purchaser shall be deemed to have waived any uncured objections and must accept such title as Seller is able to convey at Closing. Such waived objections shall become Permitted Exception. 7. SELLER'S WARRANTIES AND REPRESENTATIONS. A. Statements. Seller represents and warrants to Purchaser to the best of Seller's knowledge the following: (1) Title. At the Closing, Seller will have the right to, and will, convey to Purchaser good and indefeasible fee simple title to the Property free and clear of any and all liens, assessments, unrecorded easements, security interests and other encumbrances except the Permitted Exceptions. Delivery of the Title Policy pursuant to Paragraph 12 below will be deemed to satisfy the obligation of Seller as to the sufficiency of title required under this Contract. However, delivery of the Title Policy will not release Seller from the warranties of title set forth in the warranty deed. (2) Leases. There are no parties in possession of any portion of the Property as leases, tenants at sufferance or trespassers except tenants under written leases delivered to Purchaser pursuant to this Contract. (3) Negative Covenants. Seller shall not further encumber the Property or allow an encumbrance upon the title to the Property, or modify the terms or conditions of any existing leases, contracts or encumbrances, if any, without the written consent of Purchaser. (4) Liens and Debts. There are no mechanic's liens, Uniform Commercial Code liens or unrecorded liens against the Property, and Seller shall not allow any such liens to attach to the Property prior to Closing, which will not be satisfied out of the Closing proceeds. All obligations of Seller arising from the ownership and operation of the Property and any business operated on the Property, including, but not limited to, taxes, leasing commissions, salaries, contracts, and similar agreements, have been paid or will be paid prior to Closing. Except for obligations for which provisions are made in this Contract for prorating at Closing and any indebtedness taken subject to or assumed, there will be no obligations of Seller with respect to the Property outstanding as of Closing. (5) Litigation. There is no pending or threatened litigation, condemnation, or assessment affecting the Property. Seller shall promptly advise Purchaser of any litigation, condemnation or assessment affecting the Property which is instituted after the Effective Date. (6) Material Defects. Seller has disclosed to Purchaser any and all known conditions of a material nature with respect to the Property which may affect the health or safety of any tenant or occupant of the Property. Except as disclosed in writing by Seller to Purchaser or discovered by Purchaser pursuant to Purchaser's inspection of the property; the Property has no known latent structural defects or construction defects of a material nature, and none of the improvements have been constructed with materials known to be a potential health hazard to occupants of the Property. Purchaser acknowledges that the Broker(s) have not made any warranties or representations with respect to the condition of the Property or otherwise, and Purchaser is relying solely upon Purchaser's own investigations and the representations of Seller, if any. Page 2 3 (7) HAZARDOUS MATERIALS. Except as otherwise disclosed in writing by Seller to Purchaser or discovered by Purchaser pursuant to Purchaser's inspection of the Property. Seller warrants and represents that the Property (including the improvements located thereon) does not contain any Hazardous Materials (defined below). Purchaser acknowledges that current and future federal, state, and local laws and regulations may require any Hazardous Materials to be removed at the expense of those persons who may have had or continue to have any interest in the Property. The expense of such removal may be substantial. Purchaser further acknowledges that the Broker(s) have no expertise with respect to Hazardous Materials, although the Broker(s) will disclose any actual knowledge the Broker(s) may have regarding the presence of Hazardous Materials on the Property. Purchaser agrees to look solely to experts and professionals selected or approved by Purchaser to advise Purchaser with respect to the condition of the Property and will not hold the Broker(s) responsible for any Hazardous Materials condition relating to the Property. Seller and Purchaser agree to indemnify, defend and hold the Broker(s) harmless from and against any liability, claim, debt, damage, cost, or expense, including but not limited to reasonable attorneys' fees and court costs, related to or arising out of Hazardous Materials affecting the Property. For purposes of this Contract, the term "Hazardous Materials" means any pollutants, toxic substances, oils, hazardous wastes, hazardous materials or hazardous substances as defined in or pursuant to the Resource Conservation and Recovery Act, as amended, the Comprehensive Environmental Response, Compensation and Liability Act, as amended, the Federal Clean Water Act, as amended, or any other federal, state or local environmental law, regulation, ordinance, rule, or bylaw, whether existing as of the Effective Date, or subsequently enacted. (8) OPERATION OF THE PROPERTY. After the Effective Date until the Closing Date, Seller shall (a) operate in all material respects the Property in the same manner as the Property has been operated, and (b) maintain in all material respects the Property in the same condition and in the same manner as existed on the Effective Date, except for ordinary wear and tear and any casualty loss. B. REMEDIES. If Purchaser discovers prior to Closing that any of Seller's warranties or representations has been misrepresented or is inaccurate, Purchaser may notify Seller promptly in writing, and Seller may attempt to correct or remedy the misrepresentation or inaccuracy. If the misrepresentation or inaccuracy is not remedied prior to Closing, upon written notice to Seller, Purchaser may: (i) proceed to Closing and waive any claim for breach of warranty or misrepresentation; or (ii) delay Closing, if Seller agrees to the delay, until ten (10) days after the misrepresentation or inaccuracy is remedied; or (iii) terminate this Contract and exercise Purchaser's remedies for default by Seller under this Contract. 9. INSPECTION. [Check one] [X] A. INSPECTION DESIRED. Purchaser desires to inspect the Property and Seller grants to Purchaser the right to inspect the Property as described in Addendum C. INSPECTION. [ ] B. INSPECTION NOT NECESSARY. Purchaser acknowledges that Purchaser has inspected the Property, including all buildings and improvements, and is thoroughly familiar with its condition. Purchaser hereby accepts the Property in its present condition, with such changes as may hereafter be caused by normal wear and tear prior to Closing, but without waiving Purchaser's rights by virtue of Seller's representations and warranties expressed in this Contract. 10. CASUALTY LOSS. All risk of loss to the Property shall remain upon Seller prior to the Closing. If, prior to the Closing, the Property is condemned or damaged or destroyed by fire or other casualty, to a Material Extent (defined below), Purchaser may either terminate this Contract by delivering a written termination notice to Seller within ten days after Seller gives Purchaser written notice of the damage, or elect to close. If, prior to the Closing, the Property is condemned or damaged by fire or other casualty to less than a Material Extent, the parties shall proceed to Closing as provided herein. If the transaction is to proceed to Closing, despite any damage or destruction, there shall be no reduction in the Purchase Price and Seller shall, at Seller's option: (i) fully repair the damage prior to Closing, at Seller's expense; or (ii) reimburse Purchaser for the entire cost of repairing the Property by allowing Purchaser to deduct the cost from the cash payable to Seller at the Closing; or (iii) assign to Purchaser all of Seller's right and interest in any condemnation or insurance proceeds resulting from the damage or destruction, plus an amount equal to an insurance deductible and such condemnation or insurance proceeds shall be applied by Purchaser pursuant to the provisions of the Lease Agreement. The term "Material Extent" means damage or destruction if the cost of repairing and fully restoring the Property to its previous condition exceeds five percent (5%) of the Purchase Price. If the extent of damage or the amount of condemnation or insurance proceeds to be made available is not able to be determined prior to the Closing Date, or the repairs are not able to be completed prior to the Closing Date, either party may postpone the Closing Date by delivering a written notice to the other party specifying an extended Closing Date which is not more than thirty (30) days after the previously scheduled Closing Date. 11. ASSIGNMENT. [Check only one] [ ] A. ASSIGNMENT PROHIBITED. Purchaser may not assign this Contract without Seller's prior written consent. [ ] B. ASSIGNMENT PERMITTED. Purchaser may assign this Contract provided the assignee assumes in writing all obligations and liabilities of Purchaser under this Contract, in which event Purchaser shall be relieved of any further liability hereunder. [X] C. LIMITED ASSIGNMENT. Purchaser may assign this Contract only to a related party, defined as (i) an entity in which Purchaser, CEO, or shareholder are an owner, partner or corporate officer, or (ii) a member(s) of the immediate family of the Purchaser. Purchaser shall remain liable under this Contract after any assignment to a related party. Page 3 4 12. CLOSING A. CLOSING DATE. The closing of the transaction described in this Contract (the "Closing") shall be held at 10:00 a.m. on the later of [check one]: ; or /X/ thirty (30) days after the expiration of the Review Period or Inspection Period (whichever is later); or / / on ___________________________ (the "Closing Date") at the offices of the Title Company at its address stated below. However, if any objections which were properly and timely made by Purchaser and not waived pursuant to this Contract have not been cured on the scheduled Closing Date, then either party may postpone the date of the Closing by delivering a written notice to the other party specifying an extended Closing Date which is not more than ten (10) days after the previously scheduled Closing Date. B. SELLER'S CLOSING DOCUMENTS. At the Closing, Seller shall deliver to Purchaser at Seller's expense: (1) A duly executed [check one] / / GENERAL WARRANTY DEED /X/ SPECIAL WARRANTY DEED (with Vendor's Lien retained if not a cash purchase) conveying the Property in fee simple according to the legal description prepared by the surveyor as shown on the Survey, subject only to the Permitted Exceptions; (2) An updated Title Commitment committing the underwriter for the Title Company to issue promptly after closing the Title Policy pursuant to the Title Commitment, subject only to the Permitted Exceptions, in the full amount of the Purchase Price, dated as of the date of Closing, and (at an additional premium cost) [check only one if applicable] / / with the survey exception deleted at SELLER'S expense but not as to "shortages in area") or /X/ with the survey exception deleted at PURCHASER'S expense (but not as to "shortages in area"); (3) A Bill of Sale conveying the personal property identified in ADDENDUM A, PERSONAL PROPERTY, free and clear of liens, security interests and encumbrances, subject only to the Permitted Exceptions (to the extent applicable); (4) Possession of the Property, subject to valid existing leases and other applicable Permitted Exceptions; (5) The Lease Agreement. (6) Deleted. (7) Evidence of Seller's authority and capacity to close this transaction; (8) All other documents reasonably required by the Title Company to close this transaction. C. PURCHASER'S CLOSING DOCUMENTS. At the Closing, Purchaser shall deliver to Seller at Purchaser's expense: (1) The cash portion of the Purchase Price, with the Earnest Money being applied thereto; (2) The Note and the Deed of Trust, if any; (3) Deleted. (4) Evidence of Purchaser's authority and capacity to close this transaction; (5) All other documents reasonably required by the Title Company to close this transaction. (6) The Lease Agreement. D. CLOSING COSTS. Each party shall pay its share of the closing costs which are customarily paid by a Seller or Purchaser in a transaction of this character in the county where the Property is located, or as otherwise agreed. E. PRORATIONS. Rents, lease commissions, interest, insurance premiums, maintenance expenses, operating expenses, and ad valorem taxes for the year of Closing shall be prorated at the Closing effective as of the date of Closing. Any security deposits held by Seller shall be delivered to Purchaser at the Closing. If the Closing occurs before the tax rate is fixed for the year of Closing, the apportionment of the taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation, but any difference between estimated taxes for the year of Closing and the actual taxes paid by Purchaser shall be adjusted equitably between the parties upon proof of payment of the taxes by Purchaser. This provision shall survive the Closing. F. DELETED. G. ROLLBACK TAXES. If this sale or a change in use of the Property or denial of a special use valuation on the Property claimed by Seller results in the assessment after Closing of additional taxes for periods of Seller's ownership, the additional taxes plus any penalties and interest shall be paid by Seller to Purchaser immediately upon receipt by Seller of a statement for the taxes, unless this box / / is checked in which case Purchaser shall pay the additional taxes plus any penalties and interest. This obligation shall survive the Closing. H. FOREIGN PERSON NOTIFICATION. If Seller is a Foreign Person, as defined by the U.S. Internal Revenue Code, or if Seller fails to deliver to Purchaser a non-foreign affidavit pursuant to Section 1445 of the Internal Revenue Code, then Purchaser may withhold from the sales proceeds an amount sufficient to comply with applicable tax law and deliver the withheld proceeds to the Internal Revenue Service, together with appropriate tax forms. The required affidavit(s) from Seller(s) shall include (1) a statement that Seller is not a foreign person, (2) the U.S. taxpayer identification number(s) of Seller(s), and (3) other information required by Section 1445 of the Internal Revenue Code. 13. DEFAULT A. PURCHASER'S REMEDIES. If Seller fails to close this Contract for any reason except Purchaser's default or the termination of this Contract pursuant to a right to terminate set forth in this Contract, Seller shall be in default and Purchaser may then elect one of the following, as Purchaser's sole remedy [Check all that may apply]: /X/ (1) Enforce specific performance of this Contract; / / (2) Bring suit for damages against Seller; / / (3) Enforce specific performance of this Contract and/or bring suit for damages against Seller; or /X/ (4) Terminated and release Seller from this Contract and immediately receive the refundable portion of the Earnest Money and recover from Seller Purchaser's actual out of pocket third party costs and expenses incurred in connection with this contract and performance hereunder, including without limitation legal fees and expenses, and due diligence costs and expenses not to exceed $50,000. Seller's failure to satisfy Purchaser's objections under Paragraph 6 above shall not constitute a default by Seller. Page 4 5 B. SELLER'S REMEDIES. If Purchaser fails to close this Contract for any reason except Seller's default or the termination of this Contract pursuant to a right to terminate set forth in this Contract. Purchaser shall be in default and Seller may then elect one of the following, as Seller's sole remedy (Check all that may apply): / / (1) Enforce specific performance of this Contract; / / (2) Bring suit for damages against Purchaser; / / (3) Enforce specific performance of this Contract and/or bring suit for damages against Purchaser; or /X/ (4) Have the Earnest Money paid to Seller as liquidated damages for the Purchaser's breach of this Contract, thereby releasing Purchaser from this Contract. 14. AGENCY DISCLOSURE. A. AGENCY RELATIONSHIPS. The term "Broker(s)" refers to the Principal Broker and/or the Cooperating Broker, if applicable, as set forth on the signature page. Each Broker has duties only to the party(s) the Broker represents as identified below. If either Broker is acting as an intermediary, then that Broker will have only the duties of an intermediary, and the intermediary disclosure and consent provisions apply as set forth below. (Each Broker check only one) (1) The Principal Broker is: / / agent for Seller only; or / / agent for Purchaser only; or /X/ an intermediary. (2) The Cooperating Broker is: / / agent for Seller only; or / / agent for Purchaser only; or / / an intermediary. B. OTHER BROKERS. Seller and Purchaser each represent and warrant to the other party that such party has had no dealings with any person, firm, agent or finder in connection with the negotiation of this Contract and/or the consummation of the purchase and sale contemplated herein, other than the Broker(s) named in this Contract, and no real estate broker, agent, attorney, person, firm or entity, other than the Broker(s) is entitled to any commission or finder's fee in connection with this transaction as the result of any dealings or acts of either Seller or Purchaser. Each party hereby agrees to indemnify, defend, protect and hold the other party harmless from and against any costs, expenses or liability for compensation, commission, fee, or charges which may be claimed by any agent, finder or other similar party, other than the named Broker(s), by reason of any dealings or acts of the indemnifying party. C. FEE SHARING. Seller and Purchaser each acknowledge that the Principal Broker may pay a portion of the Fee (defined below) to the Cooperating Broker. Payment of a portion of the Fee by the Principal Broker to the Cooperating Broker shall not alter the fiduciary relationships between the parties and the Brokers. Seller is liable for payment of the Fee to the Principal Broker only. The Cooperating Broker shall have no claims directly against Seller. D. INTERMEDIARY RELATIONSHIP. If either of the Brokers has indicated in Section 14.A above that Broker is acting as an intermediary in this transaction, then Purchaser and Seller hereby consent to the intermediary relationship, authorize the respective Broker(s) to act as an intermediary in this transaction, and acknowledge that the source of any expected compensation to the Broker(s) will be the Seller, and the Broker(s) may also be paid a fee by Purchaser. A real estate broker who acts as an intermediary between parties in a transaction: (1) may not disclose to the Purchaser that Seller will accept a price less than the asking price unless otherwise instructed in a separate writing by Seller; (2) may not disclose to Seller that Purchaser will pay a price greater than the price submitted in a written offer to the Seller unless otherwise instructed in a separate writing by the Purchaser; (3) may not disclose any confidential information, or any information a party specifically instructs the real estate broker in writing not to disclose, unless otherwise instructed in a separate writing by the respective party or required to disclose such information by the Texas Real Estate License Act or a court order or if the information materially relates to the condition of the property; (4) shall treat all parties to the transaction honestly; and (5) shall comply with the Texas Real Estate License Act. APPOINTMENTS. Broker is authorized to appoint, by providing written notice to the parties, one or more licensees associated with Broker to communicate with and carry out instructions of one party, and one or more other licensees associated with Broker to communicate with and carry out instructions of the other party or parties. During negotiations, an appointed licensee may provide opinions and advice to the party to whom the licensee is appointed. 15. PROFESSIONAL SERVICE FEE. A. PAYMENT OF FEE. Seller agrees to pay the Principal Broker a professional service fee in cash (the "Fee") for procuring the Purchaser and for assisting in the negotiation of this Contract as follows: three percent (3%) of the total purchase price. The Fee shall be payable by Seller to the Principal Broker in the county in which the Property is located. Seller shall pay any applicable sales taxes on the Fee. The Fee shall be paid at the Closing of a sale of the Property by Seller pursuant to this Contract (as may be amended or assigned), only if the closing is consummated within ten (10) days after the Closing Date. The Title Company or other escrow agent is authorized and directed to pay the Fee to the Principal Broker out of the closing proceeds, or, B. CONSENT REQUIRED. Purchaser, Seller and Title Company agree that the Broker(s) is/are a third party beneficiary(s) of this Contract with respect to the Fee, and that no change may be made by Purchaser, Seller or the Title Company as to the time of payment, amount of payment, or the conditions for payment of the Fee without the written consent of the Broker(s). Page 5 6 16. MISCELLANEOUS PROVISIONS. A. EFFECTIVE DATE. The term "Effective Date" means the latter of the two dates on which this Contract is signed by Seller and Purchaser, as indicated by their signatures below. If the last party to execute this Contract fails to complete the date of execution below that party's signature, the Effective Date shall be the date this fully executed Contract is acknowledged by the Title Company. B. NOTICES. All notices and other communications required or permitted under this Contract must be in writing and shall be deemed delivered, whether actually received or not, on the earlier of: (i) actual receipt, if delivered in person or by messenger with evidence of delivery; or (ii) receipt of an electronic facsimile transmission ("Fax") with confirmation of delivery; or (iii) upon deposit in the United States Mail as required below. Notices may be transmitted by Fax to the Fax telephone numbers specified below, if any. Notices delivered by mail must be deposited in the U.S. Postal Service, first class postage prepaid, and properly addressed to the intended recipient at the address set forth below. Any party may change its address for notice purposes by delivering written notice of its new address to all other parties in the manner set forth above. C. MUTUAL TERMINATION. If this Contract is terminated by mutual agreement of both parties at any time prior to Closing, the obligations of each party under this Contract shall terminate, except that, (i) Purchaser shall pay the costs to repair any damage to the Property caused by Purchaser or its agents, (ii) Purchaser shall deliver to Seller any reports or documents in Purchaser's possession concerning the Property, and (iii) each party shall perform any other obligations which expressly survive the termination of this Contract. The obligations under this paragraph shall survive the termination of this Contract. The terms of any mutual termination agreement will supersede and control over the provisions of this Section 16.C to the extent of any conflict. This Section 16.C does not apply if Purchaser unilaterally terminates this Contract by virtue of a termination right set forth elsewhere in this Contract. D. Deleted E. ATTORNEYS FEES. The prevailing party in any legal proceeding brought in relation to this Contract or transaction shall be entitled to recover from the non-prevailing parties court costs, reasonable attorneys' fees and all other reasonable litigation expenses. F. INTEGRATION. This Contract contains the complete agreement between the parties with respect to the Property and cannot be varied except by written agreement. The parties agree that there are no oral or signed agreements, understandings, representations or warranties made by the parties which are not expressly set forth herein. G. SURVIVAL. Any warranty, representation, covenant, condition or obligation contained in this Contract not otherwise discharged at the Closing will survive the Closing of this transaction for a period of twelve (12) months, provided, however, Seller shall have no liability for any untruth or inaccuracy of any representation or warranty contained herein if Purchaser received written notice or otherwise had actual knowledge of such untruth or inaccuracy prior to the Closing and nevertheless elected to close the purchase of the Property. H. BINDING EFFECT. This Contract shall inure to the benefit of and be binding upon the parties to this Contract and their respective heirs, legal representatives, successors and assigns. I. TIME FOR PERFORMANCE. Time is of the essence under each provision of this Contract. Strict compliance with the times for performance is required. K. BUSINESS DAY. If any date of performance under this Contract falls on a Saturday, Sunday or Texas legal holiday, such date of performance shall be deferred to the next day which is not a Saturday, Sunday or Texas legal holiday. L. GOVERNING LAW. This Contract shall be construed under and governed by the laws of the State of Texas, and unless otherwise provided herein, all obligations of the parties created under this Contract are to be performed in the county where the Property is located. M. SEVERABILITY. If any provision of this Contract is held to be invalid, illegal, or unenforceable by a court of competent jurisdiction, the invalid, illegal or unenforceable provision shall not affect any other provisions, and this Contract shall be construed as if the invalid, illegal, or unenforceable provision is severed and deleted from this Contract. N. DISCLAIMER. Purchaser understands that a real estate broker is qualified to advise on matters concerning real estate and is not an expert in matters of law, tax, financing, surveying, hazardous materials, engineering, construction, safety, zoning, land planning, architecture, or the Americans with Disabilities Act. However, the Broker(s) will disclose to Purchaser any material factual knowledge which the Broker(s) may possess about the condition of the Property. Purchaser acknowledges that Purchaser has been advised by the Broker(s) to seek expert assistance on such matters. The Broker(s) do not investigate a property's compliance with building codes, governmental ordinances, statutes and laws that relate to the use or condition of the Property or its construction or that relate to its acquisition. If the Broker(s) provide names of consultants or sources for advice or assistance, the Broker(s) do not warrant the services of the advisors or their products and cannot warrant the suitability of property to be acquired. The Broker(s) do not warrant that the Seller will disclose any or all property defects or other matters pertaining to the Property or its condition. Both Seller and Purchaser agree to indemnify, defend, and hold the Broker(s) participating in this transaction harmless from and against any and all liabilities, claims, debts, damages, costs, and expenses, including but not limited to reasonable attorneys' fees and court costs, related to or arising out of or in any way connected to representations about the Property or matters analyzed by experts. In addition, to the extent permitted by applicable law, Broker(s)' liability for errors and omissions, negligence, or otherwise, is limited to the return of the Fee, if any, paid to the Broker(s) pursuant to this Contract. Page 6 7 O. COUNTERPARTS. This Contract may be executed in a number of identical counterparts. Each counterpart is deemed an original and all counterparts shall collectively, constitute one agreement. P. GENDER: NUMBER. Unless the context requires otherwise, all pronouns used in this Contract shall be construed to include the other genders, whether used in the masculine, feminine or neuter gender. Words in the singular number shall be construed to include the plural and words in the plural shall be construed to include the singular. S. CONSULT AN ATTORNEY. THIS DOCUMENT IS AN ENFORCEABLE, LEGALLY BINDING AGREEMENT. READ IT CAREFULLY. The Broker(s) involved in the negotiation of the transaction described in this Contract cannot give legal advice. By law, the Broker(s) are limited to discussing factual and business details of the transaction. The parties to this Contract acknowledge that they have been advised by the Broker(s) to have this Contract reviewed by legal counsel before signing this Contract to discuss the legal effects of its terms and provisions. 17. ADDITIONAL PROVISIONS. (a) Lease Agreement: Upon the successful closing of the sale of the Property, it is understood and agreed that Cerprobe Corporation and Purchaser will execute a Lease Agreement by and between Seller and Purchaser and the form of which is shown as Addendum E attached hereto and made a part hereof. (b) Seller is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware. Seller is duly authorized to transact business in Texas. This Contract has been duly authorized, executed and delivered by Seller and constitutes the legal, valid and binding obligation of Seller, enforceable against Seller in accordance with its terms. (c) To the Seller's knowledge, all of the documents and instruments delivered by Seller to Purchaser pursuant to Addendum A are and will be true, complete and correct copies of what they purport to be and are in Seller's possession. To Seller's knowledge, there are no agreements of any nature whatsoever applicable to or binding on the Property other than the Title Documents and the documents and instruments delivered by Seller to Purchaser pursuant to Addendum A. To Seller's knowledge, each agreement delivered by Seller to Purchaser pursuant to Addendum A is in full force and effect, and no party is in any material default thereunder. (d) Seller has not received written notice from any applicable governmental authority, and Seller otherwise has no actual knowledge that the Property fails to comply in any material respect with any applicable state, federal or local law, statute, ordinance, rule or regulation. (e) Purchaser acknowledges and agrees that, except as otherwise expressly stated herein, Seller has not made, and Seller hereby specifically disclaims any warranty, guaranty or representation, oral or written, past, present or future, of, as to, or concerning the nature and condition of the property, including without limitation, the water, soil and geology, and the suitability thereof and of the property for any and all activities and uses which Purchaser may elect to conduct thereon. Purchaser acknowledges that having been given the opportunity to inspect the Property, Purchaser is relying solely on the express provisions of this Contract and on its own investigation of the Property and not on any information provided or to be provided by Seller. Purchaser agrees to accept the Property and acknowledges that the sale of the Property as provided for herein is made by Seller on an "AS-IS, WHERE-IS AND WITH ALL FAULTS" basis, except as otherwise expressly provided herein. (f) The term "to Seller's knowledge" or similar phrase as used herein shall mean the then actual current conscious knowledge to Paul Tullis, Vice President of Worldwide Facilities of Cerprobe Corporation, without any duty of investigation or inquiry. Page 7 8 18. EXHIBITS AND ADDENDA. All Exhibits and Addenda attached to this Contract are incorporated herein by reference and are made a part of this Contract for all purposes. [Check all that apply.] [X] Addendum A Personal Property [ ] Exhibit A Survey and/or Legal [ ] Addendum B-1 Third Party Financing Description of the [ ] Addendum B-2 Seller Financing Property [X] Addendum C Inspection [ ] Exhibit B Floor Plan and/or [ ] Addendum D Disclosure Notice Site Plan [X] Addendum E Other Lease Agreement [ ] Exhibit C Other________________ 19. CONTRACT AS OFFER. The execution of this Contract by the first party to do so constitutes an offer to purchase or sell the Property. Unless within five (5) days from the date of execution of this Contract by the first party, this Contract is accepted by the other party by signing the offer and delivering a fully executed copy of the first party, the offer of this Contract shall be deemed automatically withdrawn and terminated, and the Earnest Money, if any, shall be promptly returned to Purchaser. EXECUTED on the dates stated below, to be effective on the Effective Date. SELLER PURCHASER Cerprobe Corporation Assurance Capital, Inc. By [Signature]: /s/ PAUL R. TULLIS By [Signature]: /s/ Sid Steiner Name: PAUL R. TULLIS Name: Sid Steiner Title: VICE PRESIDENT, WORLDWIDE Title: President FACILITIES Address: 1150 N. Fiesta Blvd. Address: 4810 Cedar Springs Gilbert, AZ 85233 Suite 200 Dallas, TX 75219 Telephone: 480/333-1500 Telephone: 214/521-5310 Fax: 480/333-1799 Fax: 214/521-3767 Tax I.D. No:______________________ Tax I.D. No:______________________ Date of Execution: June 2, 2000 Date of Execution: May 25th 2000 Final Execution Date: June 6/2000 SELLER PRINCIPAL BROKER Grubb & Ellis Company By [Signature]:_________________________ Name: Jeff Deweese Title: Regional Manager Address: 14785 Preston Road 1000 Signature Place II Dallas, TX 75240 Telephone: 972/450-3300 Fax: 972/450-3399 TITLE COMPANY ACCEPTANCE. The Title Company acknowledges receipt of the Earnest Money on ________________ (date) from __________________________________ in the amount of $_______________ in the form of _______________________________ and accepts the Earnest Money subject to the terms and conditions of this Contract. TITLE COMPANY Ticor Land Title Company By [Signature]:_______________________ Name: Kerrie Majors Title:________________________________ Address: 2100 McKinney Avenue Suite 1200 Dallas, TX 75201 Telephone: 214/954-5400 Fax: 214/954-5500 Copyright Notice: This form is provided for the use of members of the North Texas Commercial Association of Realtors, Inc. Permission is hereby granted to make limited copies of this form for use in a particular Texas real estate transaction. Contact the NTCAR office to confirm that you are using the current version of this form. Page 8 9 NORTH TEXAS COMMERCIAL ASSOCIATION OF REALTORS(R) ADDENDUM A TO CONTRACT OF SALE PERSONAL PROPERTY Property Description/Address: 10365 Sanden Drive, Dallas ------------------------------------------------- A. Documents. Seller shall deliver to Purchase within ten (10) days after the Effective Date complete and legible copies to the extent in Seller possession of: 1. Deleted 2. Deleted 3. A current inventory of all tangible personal property and fixtures owned by Seller and located on, attached to, or used in connection with the Property. 4. Deleted 5. All service, maintenance, management, or other contracts relating to the ownership and operation of the Property; 6. All warranties and guaranties relating to the Property, or any part thereof, or to the tangible personal property and fixtures owned by Seller and located on, attached to, or used in connection with the Property, if available; 7. All fire, hazard, liability, and other insurance policies held by Seller covering the Property; 8. All of the real estate and personal property tax statements with respect to the Property for the previous two (2) years; 9. Deleted 10. The "as built" or other plans and specifications with respect to the Property, if available; 11. Deleted 12. Property Financial Statements. B. Review of Documents. Purchaser shall have until the end of the inspection Period set forth in Addendum C to review the information identified above. If Purchaser objects to any matters contained therein, in Purchaser's sole discretion, no matter how arbitrary, Purchaser may: (i) terminate this Contract by delivery of written notice to Seller prior to expiration of the inspection Period, and the Earnest Money shall be promptly returned by the Title Company to Purchaser and neither party shall have any further obligation to the other under this Contract (except for those which may expressly strive the termination of this Contract); or (ii) waive the objections and close the transaction. If Purchaser does not deliver a written termination notice to Seller prior to expiration of the inspection Period, any and all objections as to the information provided by Seller pursuant to this Addendum shall be deemed to be waived by Purchaser for all purposes. C. Estoppel Certificates. Seller agrees to deliver to Purchaser estoppel certificates executed by each of the tenants under all the leases of the Property stating: (1) whether the tenant is an assignee or subtenant; (2) the expiration date of the lease; (3) the number of renewal options under the lease and the total period of time covered by the renewal option(s); (4) that none of the terms or provisions of the lease have been changed since the original execution of the lease, except as shown on attached amendments or modifications; (5) that no default exists under the terms of the lease by either landlord or tenant; (6) that the tenant has no claim against the landlord under the lease and has no defense or right of offset against collection of rent or other charges accruing under the lease; (7) the amount and date of the last payment of rent; (8) the amount of any security deposits and other deposits, if any, and (9) the identity and address of any guarantor of the lease. Seller will cause the estoppel certificate(s) to be delivered to Purchaser at least fifteen (15) days prior to the Closing Date, unless this box [ ] is checked, in which case Seller will cause the estoppel certificates to be delivered to Purchaser at least five (5) days prior to the end of the Review Period. If any estoppel certificate is not timely delivered or is unacceptable to Purchaser, then Purchaser shall immediately notify Seller in writing of Purchaser's objections. Seller will promptly attempt to cure the unacceptable matter without any obligation to incur any cost in connection with the attempt. If Seller is unable to do so by the Closing Date, Purchaser may: (i) terminate this Contract and the Earnest Money shall be promptly refunded to Purchaser, and neither party shall have any further rights or obligations pursuant to this Contract (except for those which may expressly survive the termination of this Contract); or (ii) waive the objections and close the transaction. D. Other Personal Property. Seller shall convey to Purchaser, as part of the Property, all fixtures and articles of tangible personal property on the Property and owned by Seller, including but not limited to [ATTACH SEPARATE LISTS OF PERSONAL PROPERTY IF NECESSARY]: 1. Lighting fixtures, signs, decorative accessories, barriers, security equipment, traffic control devices and similar equipment; 2. Refrigeration, heating, ventilating and air conditioning units and equipment; 3. Electronic security equipment and remote transmitter devices; 4. Tools, equipment, parts and supplies used only for the maintenance of the Property, i.e. hoses, ladders, mowers, scaffolds, and ---------------------------------------------------------------------; 5. Furnishing and decorations situated in common areas; i.e. rugs, artwork, lamps, furniture, planters, trash containers, and ---------------------------------------------------------------------; 6. Operating manuals, service instructions and all records pertaining to the installation, operation, maintenance and repair of equipment and fixtures whether listed above as items of personal property or affixed as part of the real property; 7. ---------------------------------------------------------------------; 8. Telephone number(s) of the management office of the Property, including -----------------------------------------------------------; 9. Licenses, permits, maintenance agreements, management agreements, plans and specifications, as-built drawings, show drawings, warranties, guarantees, and any other agreements relating to the Property or any part thereof, if available. 10. Other items: -------------------------------------------------------- Page 9 10 NORTH TEXAS COMMERCIAL ASSOCIATION OF REALTORS(R) ADDENDUM C TO CONTRACT OF SALE INSPECTION Property Description/Address: 10365 Sanden Drive, Dallas A. INSPECTION PERIOD. Purchaser shall have a period of forty-five (45) days after the Effective Date (the "Inspection Period") to inspect the Property and to conduct feasibility studies regarding Purchaser's intended use of the Property. Purchaser's studies may include without limitation: (i) core borings; (ii) environmental and architectural tests and investigations; (iii) physical inspections of all improvements, fixtures, equipment, subsurface soils, structural members, and personal property; and (iv) examination of plans, specifications, manuals, and other documents relating to the construction and condition of the Property. Purchaser and Purchaser's agents, employees, consultants and contractors shall have the right of reasonable entry onto the Property during normal business hours, and upon reasonable advance notice to Seller and/or Seller's tenants, for purposes of the inspections, studies, tests and examinations deemed necessary by Purchaser. All inspections, studies, tests and examinations performed hereunder shall be at Purchaser's expense. B. REPORTS. /X/ 2. Within ten (10) days after the Effective Date, Seller shall deliver to Purchaser copies of all reports in Seller's possession of engineering investigations, tests and/or environmental studies which have been made with respect to the Property within the two year period prior to the Effective Date. / / 3. If Purchaser terminates this Contract, Purchaser shall deliver to Seller, at Purchaser's expense and contemporaneously with the termination, copies of all written reports, inspections, plats, drawings and studies made by Purchaser and Purchaser's agents, consultants and contractors. This provision shall survive the termination of this Contract. C. TERMINATION. If Purchaser determines, in Purchaser's sole discretion, no matter how arbitrary, that the Property is not in satisfactory condition or is not suitable for Purchaser's intended use or purpose, then Purchaser may terminate this Contract by delivering a written notice to Seller on or before the last day of the Inspection Period, and the refundable portion of the Earnest Money shall be promptly returned by the Title Company to Purchaser and neither party shall have any further rights or obligations under this Contract (except for those which may expressly survive the termination of this Contract). D. ACCEPTANCE. If Purchaser does not properly and timely terminate this Contract before the expiration of the Inspection Period or if Purchaser accepts the Property in writing) then Purchaser will be deemed to have waived all objections to the Property under this Contract, except for any title objections which may be outstanding pursuant to Section 6 of this Contract. In that event, Purchaser agrees to purchase the Property in its current condition without any further representations or warranties of Seller other than those provided in Section 7 of the Contract, except any objections which Seller may expressly agree in writing to cure, and this Contract shall continue in full force and effect and the parties shall proceed to Closing. However, this provision does not waive or otherwise limit or invalidate any express representations or warranties Seller has made in this Contract. E. RESTORATION. If the transaction described in this Contract does not close, through no fault of Seller, and the condition of the Property was altered due to tests and inspections performed by Purchaser or on Purchaser's behalf. Purchaser must restore the Property to its original condition. Purchaser shall indemnify, hold harmless and defend Seller and its affiliates against any loss, damage, liability or claim for personal injury or property damage and any other loss, damage, liability, claim or lien arising from the acts upon the Property by Purchaser or any agents, contractors or employees of Purchaser, INCLUDING ANY SUCH LOSS, DAMAGE OR CLAIM TO WHICH THE NEGLIGENCE OF SELLER MAY HAVE CONTRIBUTED, but excluding any such loss, damage or claim if and to the extent caused by the gross negligence or willful misconduct of Seller. Seller shall have the right to have a representative present during any such inspections. If Purchaser desires to do any invasive testing at the Property, Purchaser shall do so only after notifying Seller and obtaining Seller's consent thereto, which consent shall not be unreasonably withheld or delayed and may be subject to reasonable terms and conditions as may be proposed by Seller. Purchaser shall be responsible for and pay and not permit to attach to the Property any and all liens by contractors, subcontractors, materialmen, or laborers performing the inspections or any other work for Purchaser on or related to the Property. Purchaser and all contractors and others performing any tests and studies on the Property shall first present to Seller reasonably satisfactory evidence that such party is adequately insured in order to reasonably protect Seller from any loss, liability, or damage arising out of the performance of such tests or studies. Page 10 11 ADDENDUM E NORTH TEXAS COMMERCIAL ASSOCIATION OF REALTORS COMMERCIAL LEASE AGREEMENT TABLE OF CONTENTS Article Page 1. Defined Terms 1 2. Lease and Lease Term 2 3. Rent and Security Deposit 2 4. Taxes 3 5. Insurance and Indemnity 3 6. Use of Demised Premises 4 7. Property Condition, Maintenance, Repairs and Alterations 5 8. Damage or Destruction 6 9. Condemnation 7 10. Assignment and Subletting 7 11. Default and Remedies 7 12. Landlord's Contractual Lien 9 13. Protection of Lenders 9 14. Environmental Representations and Indemnity 10 15. Professional Service Fees 10 16. Miscellaneous 11 17. Additional Provisions 13 EXHIBITS AND ADDENDA. Any exhibit or addendum [illegible] to this Lease is incorporated as a part of this Lease for ad purposes. Any term not specifically defined in the Addenda shall have the same meaning given to it in the body of this Lease. To the extent any provisions in the body of this Lease conflict with the Addenda, the Addenda shall control. [Check all boxes which apply. Boxes not checked do not apply.] [ ] Exhibit A Survey and/or Legal Description of the Property [ ] Exhibit B Floor Plan and/or Site Plan [X] Addendum A Expense Reimbursement [X} Addendum B Renewal Options [ ] Addendum C Right of First Refusal for Additional Space [ ] Addendum D Percentage Rental/Gross Sales Reports [ ] Addendum E Guarantee [ ] Addendum F Construction of Improvements [ ] Addendum G Rules and Regulations [ ] Addendum H Other_________________________________________ IN CONSIDERATION of the terms, provisions and agreements contained in this Lease, the parties agree as follows: ARTICLE ONE: DEFINED TERMS. As used in this Commercial Lease Agreement (the "Lease"), the terms set forth in this Article One have the following respective meanings: 1.01. Effective Date: The last date beneath the signatures of Landlord and Tenant on page 13 below. 1.02. Landlord: Assurance Capital, Inc. Address: 4810 Cedar Springs, Suite 200, Dallas, Texas 75219 Telephone: 214/521-5310 Fax: [illegible] 1.03. Tenant: Cerprobe Corporation Address: 1150 N. Fiesta Blvd., Gilbert, AZ 85233-2237 Telephone: 214/860-1000 Fax: 214/860-1098 1.04. Demised Premises: 10365 Sanden Drive A. Street address: 10365 Sanden Drive Dallas in Dallas County, Texas B. Legal description: The property on which the Demised Premises is situated (the "Property") is more particularly described as Fleming - Gateway, BLK B/8053, Lot 2B Acs 3.7569. Vol. 96253/0914 00122796 Dallas Country or is described on Exhibit A, SURVEY AND/OR LEGAL DESCRIPTION. C. Floor Plan or Site Plan: Being a floor area of approximately 34,336 square feet and being approximately ________ feet by ________ feet (measured to the exterior of outside walls and to the center of the interior walls) and being more particularly shown in outline form on Exhibit B. FLOOR PLAN AND/OR SITE PLAN. D. Tenant's pro rata share of the Property is 100%. [See Addendum A. EXPENSE REIMBURSEMENT, if applicable] 1.05. Lease Term: Ten (10) years and 0 months beginning on ____________(the "Commencement Date") and ending on ______________(the "Expiration Date"). 1.06. Base Rent: $3,947,681.00 total Base Rent for the Lease Term payable in monthly installments of $30,004.00** per month in advance. (The total amount of Rent is defined in Section 3.01.) 1.07. Percentage Rental Rate: 0%. [See Addendum D, PERCENTAGE RENTAL/GROSS SALES REPORTS, if applicable] 1.08. Security Deposit: $30,044.00 (due upon execution of this Lease). [See Section 3.04] 1.09. Permitted Use: General office and administrative use, and all uses being made of the Demised Premises by Tenant on and prior to the Effective Date, together with all similar and ancillary uses thereto. [See Section 6.01] Page 1 12 1.10. Party to whom Tenant is to deliver payments under this Lease, [check one]: [] Landlord [] Principal Broker or [] Other ___________________. Landlord may designate in [Illegible] party authorized to act on behalf of [Illegible] to enforce this Lease. Any such authorization will remain in effect until it is revoked by Landlord in writing. 1.14. Acceptance: The number of days for acceptance of this offer is _________ days. (See Section 16.14) ARTICLE TWO: LEASE AND LEASE TERM 2.01. Lease of Demised Premises for Lease Term. Landlord leases the Demised Premises to Tenant and Tenant leases the Demised Premises from Landlord for the Lease Term stated in Section 1.05. The Commencement Date is the date specified in Section 1.05, unless advanced or delayed under any provision of this Lease. 2.04. Holding Over. Tenant shall vacate the Demised Premises immediately upon the expiration of the Lease Term or earlier termination of this Lease. Tenant shall reimburse Landlord for any indemnify Landlord against all direct and actual damages incurred by Landlord as a result of any delay by Tenant in vacating the Demised Premises. If Tenant does not vacate the Demised Premises upon the expiration of the Lease Term or earlier termination of this Lease, Tenant's occupancy of the Demised Premises shall be a day-to-day tenancy, subject to all of the terms of this Lease, except that the Base Rent during the holdover period shall be increased to an amount which is one-and-one-half (1 1/2) times the Base Rent in effect on the expiration or termination of this Lease, computed on a daily basis for each day of the holdover period, plus all additional sums due under this Lease. This paragraph shall not be construed as Landlord's consent for Tenant to hold over or to extend this Lease. ARTICLE THREE: RENT AND SECURITY DEPOSIT 3.01. Manner of Payment. All sums payable under this Lease by Tenant (the "Rent") shall be made to the Landlord at the address designated in Section 1.02, unless another person is designated in Section 1.10, or to any other party or address as Landlord may designate in writing. Any and all payments made to a designated third party for the account of the Landlord shall be deemed made to Landlord when received by the designated third party. All sums payable by Tenant under this Lease, whether or not expressly denominated as rent, shall constitute rent for the purposes of Section 502(b)(6) of the Bankruptcy Code and for all other purposes. The Base Rent is the minimum rent for the Demised Premises and is subject to the terms and conditions contained in this Lease, together with the attached Addenda, if any. 3.02. Time of Payment. Upon execution of this Lease, Tenant shall pay the installment of Base Rent for the first month of the Lease Term. On or before the first day of the second month of the Lease Term and of each month thereafter, the installment of Base Rent and other sums due under this Lease shall be due and payable, in advance, without off-set, deduction or prior demand Tenant shall cause payments to be properly mailed or otherwise delivered so as to be actually received by the party identified in 1.10 above on or before the due date (and not merely deposited in the mail). If the Lease Term commences or ends on a day other than the first or last day of a calendar month, the rent for any fractional calendar month following the Commencement Date or preceding the end of the Lease Term shall be prorated by days. Page 2 13 3.03. Late Charges. Tenant's failure to promptly pay sums due under this Lease may cause the landlord to incur unanticipated costs. The exact amount of those costs is impractical or extremely difficult to ascertain. The costs may include [ILLEGIBLE] not limited to processing and accounting charges and late charges which may be imposed on Landlord by any ground lease or deed of trust encumbering the Demised Premises. Payments due to Landlord under this Lease are not an extension of credit. Therefore, if any payment under the Lease is not actually received on or before three (3) days after the due date (and not merely deposited in the mail) applicable, Landlord may, at Landlord's option and to the extend allowed by applicable law; impose a Late Charge on any late payments in an amount equal to one-half of one percent (0.5%) of the amount of the past due payment the ("Late Charge") per day for each day after the due date, until the past due amount in Good Funds is received by Landlord up to a maximum of ten percent (10%) of the past due amount. A Late Charge may be imposed only once on each past due payment. Any Late Charge will be in addition to Landlord's other remedies for nonpayment of rent [if any check tendered to Landlord by Tenant under this Lease is dishonored for any reason, Tenant shall pay to the party receiving payments under this Lease a fee of twenty-five dollars ($25.00), plus (at Landlord's option) a Late Charge as provided above until good funds are received by Landlord. The parties agree that any Late Charge and dishonored check fee represent a fair and reasonable estimate of the costs Landlord will incur by reason of the late payment or dishonored check. Payments received from Tenant shall be applied first to any Late Charges, second to Base Rent, and last to other unpaid charges or reimbursements due to Landlord. Notwithstanding the foregoing, Landlord will not impose a Late Charge as to the first late payment in any calendar year, unless Tenant fails to pay the late payment to Landlord within three (3) business days after the delivery of a written notice from Landlord to Tenant demanding the late payment be paid. However, Landlord may impose a Late Charge without advance notice to Tenant on any subsequent late payment in the same calendar year. 3.04. Security Deposit. Upon execution of this Lease, Tenant shall deposit with Landlord a cash Security Deposit in the amount stated in Section 1.08. Landlord may apply all or part of the Security Deposit to any unpaid Rent or other charges due from Tenant or to cure any other defaults of Tenant. If Landlord uses any part of the Security Deposit, Tenant shall restore the Security Deposit to its full amount within ten (10) days after Landlord's written demand. Tenant's failure to restore the full amount of the Security Deposit within the time specified shall be a default under this Lease. No interest will be paid on the Security Deposit. Landlord will not be required to keep the Security Deposit separate from its other accounts and no trust relationship is created with respect to the Security Deposit. Upon any termination of this Lease not resulting from Tenant's default, and after Tenant has vacated the Property and cleaned and restored the Demised Premises in the manner required by this Lease, Landlord shall refund the unused portion of the Security Deposit to Tenant within thirty days after the Termination Date or thirty days after Tenant fully complies with the conditions of termination as required in Section 7.05, whichever is later. 3.05. Good Funds Payments. If, for any reason whatsoever, any two or more payments by check from Tenant to Landlord for Rent are dishonored and returned unpaid, thereafter Landlord may, at Landlord's sole option, upon written notice to Tenant, require that all future payments of Rent for the remaining term of the Lease must be made by cash, certified check, cashier's check, or money order ("Good Funds") and that the delivery of Tenant's personal or corporate check will no longer constitute payment of Rent under this Lease provided, however, if after twelve (12) consecutive timely payments of Rent in Good Funds as provided herein, Tenant is not in Default hereunder, Tenant may resume paying Rent by personal or corporate check so long as any such check thereafter is not dishonored and returned unpaid. Any acceptance by Landlord of a payment for Rent by Tenant's personal or corporate check thereafter shall not be construed as a waiver of Landlord's right to insist upon payment by Good Funds as set forth herein. ARTICLE FOUR: TAXES 4.01. Payments by Landlord. Tenant shall pay the real estate taxes on the Demised Premises accruing during the Lease Term. 4.02. Tenant shall pay such real estate taxes and, upon request, furnish Landlord with written evidence of payment before the same becomes delinquent. If Tenant fails to timely pay such real estate taxes, Landlord may pay the taxes, whereupon Tenant shall, upon demand, reimburse Landlord for the amount thereof, plus 5% of the amount. 4.03. Joint Assessment. If the real estate taxes are assessed against the Demised Premises jointly with other property not constituting a part of the Demised Premises, the real estate taxes applicable to the Demised Premises shall be equal to the amount bearing the same proportion to the aggregate assessment that the total square feet of building area in the Demised Premises bears to the total square feet of building area included in the joint assessment. 4.04. Personal Property Taxes. Tenant shall pay all taxes assessed against trade fixtures, furnishings, equipment, inventory, products, or any other personal property belonging to Tenant. Tenant shall use reasonable efforts to have Tenant's property taxed separately from the Demised Premises. If any of Tenant's property is taxed with the Demised Premises, Tenant shall pay the taxes for its property to Landlord within fifteen (15) days after Tenant receives a written statement from Landlord for the property taxes. ARTICLE FIVE: INSURANCE AND INDEMNITY 5.01. Property Insurance. During the Lease Term, Tenant shall maintain policies of property insurance covering loss of or damage to the Demised Premises in an amount or percentage of replacement value as Landlord deems reasonable in relation to the age, location, type of construction and physical condition of the Demised Premises and the availability of insurance at reasonable rates. The policies shall provide protection against all perils included within the classification of special causes, which includes fire and extended coverage and providing such coverage and insuring against such perils as reasonably required by Landlord, including, without limitation, business income and rental insurance naming Landlord as the additional insured. Landlord may, at Landlord's option, obtain insurance coverage for Tenant's fixtures, equipment or building improvements installed by Tenant in or on the Demised Premises. Tenant shall, at Tenant's expense, maintain insurance on its fixtures, equipment and building improvements as Tenant deems necessary to protect Tenant's interest. Tenant shall not do or permit to be done anything which invalidates any insurance policies. Tenant shall deliver a copy of the policy or certificate of insurance (or a renewal) to Landlord prior to the Commencement Date and prior to the expiration of the policy during the Lease Term. If Tenant fails to maintain the policy, Landlord may elect to maintain the insurance at Tenant's expense which Tenant shall reimburse to Landlord upon demand. 5.02. Increase in Premiums. Tenant shall not permit any operation or activity to be conducted, or storage or use of any volatile or any other materials, on or about the Demised Premises that would cause suspension or cancellation of any fire and extended coverage insurance policy without the prior written consent of Landlord. If Tenant's use and occupancy of the Demised Premises causes an increase in the premiums for any fire and extended coverage insurance policy, Tenant shall pay the amount of the increase. Page 3 14 5.04. INDEMNITY. Landlord shall not be liable to Tenant or to Tenant's employees, agents, invitees or visitors, or to any other person, for any injury to persons or damage to property on or about the Demised Premises or any adjacent area owned by Landlord caused by the negligence or misconduct of Tenant, Tenant's employees, subtenants, agents, licensees or concessionaires or any other person entering the Demised premises under express or implied invitation of Tenant, or arising out of the use of the Demised Premises by Tenant and the conduct of Tenant's business, or arising out of any breach or default by Tenant in the performance of Tenant's obligations under this Lease; and Tenant hereby agrees to indemnify and hold Landlord harmless from any loss, expense or claims arising out of such damage or injury. Tenant shall not be liable for any injury or damage caused by the negligence or misconduct of Landlord, or Landlord's employees or agents, and Landlord agrees to indemnify and hold Tenant harmless from any loss, expense or damage arising out of such damage or injury. 5.06 WAIVER OF SUBROGATION. Each party to this Lease waives any and every claim which arises or may arise in its favor against the other party during the term of this Lease or any renewal or extension of this Lease for any and all loss of, or damage to, any of its property located within or upon, or constituting a part of, the Demised Premises, which loss or damage is covered by valid and collectible property insurance policies, to the extent that such loss or damage is recoverable under such insurance policies. These mutual waivers shall be in addition to, and not in limitation or derogation of, any other waiver or release contained in this Lease with respect to any loss of, or damage to, property of the parties. Inasmuch as these mutual waivers will preclude the assignment of any aforesaid claim by way of subrogation or otherwise to an insurance company (or any other person), each party hereby agrees to give immediately to each insurance company (which has issued to such party policies of fire and extended coverage insurance) written notice of the terms of such mutual waivers, and to cause such policies to be properly endorsed to prevent the invalidation of the insurance coverage by reason of these waivers. ARTICLE SIX: USE OF DEMISED PREMISES 6.01 PERMITTED USE. Tenant may use the Demised Premises only for the Permitted Use stated in Section 1.09. The parties to this Lease acknowledge that the current use of the Demised Premises or the improvements located on the Demised Premises, or both, may or may not conform to the city zoning ordinance with respect to the permitted use, height, setback requirements, minimum parking requirements, coverage ratio of improvements to total area of land, and other matters which may have a significant economic impact upon the Tenant's intended use of the Demised Premises. Tenant acknowledges that Tenant has or will independently investigate and verify to Tenant's satisfaction the extent of any limitations or non-conforming uses of the Demised Premises. Tenant further acknowledges that Tenant is not relying upon any warranties or representations of Landlord or the Brokers who are participating in the negotiation of this Lease concerning the Permitted Use of the Demised Premises, or with respect to any uses of the improvements located on the Demised Premises. 6.02 COMPLIANCE WITH LAW. Tenant shall comply with all governmental laws, ordinances and regulations applicable to the use of the Demised Premises, and shall promptly comply with all governmental orders and directives for the correction, prevention and abatement of nuisances and other activities in or upon, or connected with the Demised Premises, all at Tenant's sole expense, including any expense or cost resulting from the construction or installation of fixtures and improvements or other accommodations for handicapped or disabled persons required for compliance with governmental laws and regulations, including but not limited to the Texas Architectural Barriers Act (Article 9102 and any successor statute) and the Americans with Disabilities Act (the "ADA"). To the extent any alterations to the Demised Premises are required by the ADA or other applicable laws or regulations, Tenant shall bear the expense of the alterations. To the extent any alterations to areas of the Property outside the Demised Premises are required by Title III of the ADA or other applicable laws or regulations (for "path of travel" requirements or otherwise), Landlord shall bear the expense of the alterations. Page 4 15 6.04. Signs. Without the prior written consent of Landlord, not to be unreasonably withheld, Tenant may not place any signs, ornaments or other objects upon the Demised Premises or on the Property, (other than signs existing as of the Commence Date) including but not limited to the roof or exterior of the building or other improvements on the Property, or paint or otherwise decorate or deface the exterior of the building. Any signs installed by Tenant must conform with applicable laws, deed restrooms on the Property, and other applicable requirements. Tenant must remove all signs, decorations and ornaments at the expiration or termination of this Lease and must repair any damages and close any holes caused by the removal. 6.05. Utility Services. Tenant shall pay the cost of all utility services, including but not limited to rural connection charges, all charges for gas, water, sewerage, storm water disposal, communications and electricity used on the Demised Premises, and for replacing all broken or burned-out electric lights, lamps and tubes. 6.06. Landlord's Access. Landlord and Landlord's agents shall have the right to, during normal business hours and upon reasonable advance notice, and without unreasonably interfering with Tenant's business, enter the Demised Premises: (a) to inspect the general condition and state of repair of the Demised Premises, (b) to make repairs required or permitted under this Lease, (c) to show the Demised Premises or the Property to any prospective tenant or purchaser, and (d) for any other reasonable purpose. If Tenant changes the locks on the Demised Premises, Tenant must provide Landlord with a copy of each separate key. During the final one hundred fifty (150) days of the Lease Term, Landlord and Landlord's agents may erect and maintain on or about the Demised Premises signs advertising the Demised Premises for lease or for sale. 6.07. Possession. If Tenant pays the rent, properly maintains the Demised Premises, and complies with all other terms of this Lease, Tenant may occupy and enjoy the Demised Premises for the full Lease Term, subject to the provisions of this Lease. 6.08. Exemptions from Liability. Landlord shall not be liable for any damage or injury to the persons, business (or any loss of income), goods, inventory, furnishings, fixtures, equipment, merchandise or other property of Tenant, Tenant's employees, invitees, customers or any other person in or about the Demised Premises, whether the damage or injury is caused by or results from: (a) fire, steam, electricity, water, gas or wind; (b) the breakage, leakage, obstruction or other defects of pipes, sprinklers, wires, appliances, plumbing, air conditioning or lighting fixtures or any other cause; (c) conditions arising on or about the Demised Premises or upon other portions of any building of which the Demised Premises is a part, or from other sources or places; or (d) any act or omission of any other tenant of any building on the Property. Landlord shall not be liable for any damage or injury even though the cause of or the means of repairing the damage or injury are not accessible to Tenant. The provisions of this Section 6.08 shall not, however, exempt Landlord from liability for Landlord's gross negligence or willful misconduct. ARTICLE SEVEN: PROPERTY CONDITION, MAINTENANCE, REPAIRS AND ALTERATIONS 7.02. Acceptance of Demised Premises. Tenant acknowledges that: (a) a full and complete inspection of the Demised Premises and adjacent common areas has been made by Tenant, and (b) as a result of such inspection, Tenant has taken possession of the Demised Premises and accepts the Demised Premises in its "As Is" condition. 7.03. Maintenance and Repair. Landlord shall be under no obligation to perform any repair, maintenance or management service in the Demised Premises or adjacent common areas. Tenant shall be fully responsible, at its expense, for all repair, maintenance and management services. Page 5 16 B. Tenant's Obligation. (1) Subject to the provisions of Article Eight (Damage or Destruction) and Article Nine: [ILLEGIBLE], Tenant shall, at all times, keep all portions of the Demised Premises in good order, condition and repair, ordinary wear and tear excepted, including but not limited to maintenance, repairs and all necessary replacements of the windows, plate glass, doors, overhead doors, heating systems,ventilating equipment, air conditioning equipment, electrical and lighting systems, fire protection sprinkler system, dock levelers, elevators, interior and exterior plumbing, the interior of the Demised Premises in general, pest control and extermination, down spouts, gutters, paving, railroad siding, care of landscaping and regular mowing of grass, the roof, skylights, foundation, or structural components and exterior of the Demised Premises. If Tenant fails to maintain and repair the Property as required by this Section after notice and 30-days opportunity to cure, Landlord may, on ten (10) days' prior written notice, enter the Demised Premises and perform the maintenance or repair on behalf of Tenant, except that no [ILLEGIBLE] required in case of emergency, and Tenant shall reimburse Landlord immediately upon demand for all costs incurred in performing the maintenance or repair, plus a reasonable service charge. (2) HVAC Service. Tenant shall, at Tenant's own cost and expense, enter into a regularly scheduled preventative maintenance and service contract for all refrigeration, heating, ventilating, and air conditioning systems and equipment within the Demised Premises during the Lease Term. If Tenant fails to enter into such a service contract reasonably acceptable to Landlord, after notice and 30-days opportunity to cure, Landlord may do so on Tenant's behalf and Tenant agrees to pay Landlord the cost and expense thereof, plus a reasonable service charge, regularly upon demand. 7.04. Alterations, Additions and Improvements. Tenant shall not make any structural alterations, additions or improvements to the Demised Premises without the prior written consent of Landlord, which consent shall not be unreasonably withheld and which consent shall not be withheld for any such structural alterations, additions or improvements which cost in the aggregate no more than $50,000 in any given lease year, Consent for non-structural alterations, additions or improvements shall not be unreasonably withheld by Landlord. Tenant may erect or install trade fixtures, shelves, bms. machinery, heating, ventilating and air conditioning equipment and, provided that Tenant complies with all applicable governmental laws, ordinances, codes, and regulations. At the expiration or termination of this Lease, Tenant shall, subject to the restrictions of Section 7.05 below, have the right to remove items installed by Tenant, provided Tenant is not in default at the time of the removal of the items, repair in a good and workmanlike manner any damage caused by the installation or removal. Tenant shall pay for all costs incurred or arising out of alterations, additions or improvements in or to the Demised Premises and shall not permit any mechanic's or materialman's lien to be filed against the Demised Premises or the Property. Upon request by Landlord, Tenant shall deliver to Landlord proof of payment reasonably satisfactory to Landlord of all costs incurred or arising out of any alterations, additions or improvements. 7.05. Condition upon Termination. Upon the expiration or termination of this Lease, Tenant shall surrender the Demised Premises to Landlord broom clean and as good a same condition as received, except for ordinary wear and tear which Tenant is not otherwise obligated to remedy under any provision of this Lease. Tenant shall not be obligated to repair any damage which Landlord is required to repair under Article Eight (Damage or Destruction). In addition, Landlord may require Tenant to remove any structural alterations, additions or improvements (whether or not made with Landlord's consent) prior to the expiration or termination of this Lease and to restore the Demised Premises to its prior condition, all at Tenant's expense. All alterations, additions and improvements which Landlord has not required Tenant to remove shall become Landlord's property and shall be surrendered to Landlord upon the expiration or termination of this Lease. In no event, however, shall Tenant remove any of the following materials or equipment without Landlord's prior written consent: (i) electrical wiring or power panels; (ii) lighting or lighting fixtures; (iii) wall coverings, drapes, blinds or other window coverings; (iv) carpets or other floor coverings; (v) heating, ventilating, or air conditioning equipment; (vi) fencing or security gates; or (vii) any other fixtures, equipment or items which, if removed, would affect the operation or the appearance of the Property. ARTICLE EIGHT: DAMAGE OR DESTRUCTION 8.01. Notice. If any buildings or other improvements situated on the property are damaged or destroyed by fire, flood, windstorm, tornado or other casualty, Tenant shall immediately give written notice of the damage or destruction to Landlord. 8.02. Partial Damage. If the building or other improvements situated on the Demised Premises are damaged by fire, tornado, or other casualty, but not to such an extent that rebuilding or repairs cannot reasonably be completed within one hundred eighty (180) days from the date Landlord receives written notification by Tenant of the occurrence of the damage, this Lease shall not terminate, but Landlord shall, to the extent of insurance proceeds available for such rebuilding and restoration, proceed with reasonable diligence to rebuild or repair the building and other improvements on the Demised Premises (other than leasehold improvements made by Tenant or any assignee, subtenant or other occupant of the Demised Premises) to substantially the condition in which they existed prior to the damage. If the casualty occurs during the final eighteen (18) months of the Lease Term, Landlord shall not be required to rebuild or repair the damage unless Tenant exercises Tenant's renewal option (if any) within fifteen (15) days after the date of receipt by Landlord of the notification of the occurrence of the damage. If Tenant does not exercise its renewal option, or if there is no remaining renewal option, Landlord may, at Landlord's option, terminate this Lease by promptly delivering a written termination notice to Tenant, in which event the Rent shall be abated for the unexpired portion of the Lease Term, effective from the date of receipt by Landlord of the written notification of the damage. To the extent the Demised Premises cannot be occupied (in whole or in part) following the casualty, the Rent payable under this Lease during the period in which the Demised Premises cannot be fully occupied shall be Page 6 17 8.03. Substantial or Total Destruction to the building or other improvements situated in the Demised Premises are substantially or totally destroyed by fire, tornado, or other casualty, and so damaged that rebuilding or repairs cannot reasonably be completed within one hundred days from the date Landlord receives written notification by Tenant of the occurrence of the damage either Landlord or Tenant may terminate this Lease by promptly delivering a written termination notice to the other party, in which event the monthly installment of Rent shall be calculated for the unexpired portion of the Lease Term, effective from the date of the damage or destruction, if neither party terminates this Lease shall to the extent of insurance proceeds available for such rebuilding and restoration proceed with reasonable diligence to rebuild and repair the building and other improvements except that Tenant shall rebuild and repair Tenant's fixtures and improvements in the Demised Premises). To the extent the Demised Premises cannot be occupied in whole or in part following the casualty, the Rent payable under this Lease during the period in which the Demised Premises cannot be fully occupied shall be adjusted equitably. Notwithstanding the foregoing, if Landlord elects to terminate this Lease pursuant to this Section 8.03, Tenant may provide written notice to Landlord within ten (10) business days thereafter of Tenant's election to rebuild the Demised Premises, in which event (i) this Lease shall not terminate, (ii) Landlord shall rebuild the Demised Premises in accordance with Section 8.03 as if Landlord had not elected to terminate, and (iv) Rent payable under this Lease during the period in which the Demised Premises cannot be fully occupied shall be adjusted equitably. If the damage or destruction occurs during the last 18 months of the Term or of the first Extension, Tenant may not make the foregoing election unless it first exercises the next renewal option. Tenant may not make such election during the last 18 months of the final Extension. ARTICLE NINE: CONDEMNATION If, during the Lease Term or any extension thereof, all or a substantial part of the Demised Premises are taken for any public or quasi-public use [ILLEGIBLE] any governmental law, ordinance or regulation or by right of eminent domain, or are conveyed to the condemning authority under threat of condemnation, this Lease shall terminate and the monthly installments of Rent shall be abated during the unexpired portion of the Lease Term, effective from the date of the taking. If less than a substantial part of the Demised Premises is taken for public or quasi-public use under any governmental law ordinance or regulation, or by right of eminent domain, or is conveyed to the condemning authority under threat of concentration, Landlord shall promptly, at Landlord's expense, restore and reconstruct the buildings and improvements (other than leasehold improvements made by Tenant or any assignee, subtenant or other occupant of the Demised Premises) situated on the Demised Premises in order to make the same reasonably tenantable and suitable for the use for which the Demised Premises is leased as defined in Section 6.01. The monthly installments of Rent payable under this Lease during the unexpired portion of the Lease Term shall be adjusted equitably. Landlord and Tenant shall each be entitled to receive and retain such separate awards and portions of lump sum awards as may be allocated to their respective interests in any condemnation proceeding. The termination of this Lease shall not affect the rights of the parties to such awards. As used herein, the phrase "less than a substantial part of the Demised Premises" shall mean a part of the Demised Premises that, if taken or after being restored or reconstructed by Landlord, will not prevent Tenant from fully occupying the Demised Premises and conducting its normal business operations therein. ARTICLE TEN: ASSIGNMENT AND SUBLETTING Tenant shall not, without the prior written consent of Landlord not to be unreasonably withheld, assign this Lease or sublet the Demised Premises or any portion thereof. Any assignment or subletting shall be expressly subject to all terms and provisions of this Lease, including the provisions of Section 6.01 pertaining to the use of the Demised Premises. In the event of any assignment or subletting, Cerprobe Corporation shall remain fully liable for the full performance of all Tenants obligations under this Lease. Tenant shall not assign its rights under this Lease or sublet the Demised Premises without first obtaining a written agreement from the assignee or sublessee whereby the assignee or sublessee agrees to assure the obligations of Tenant under this Lease and to be bound by the terms of this Lease. If an event of default occurs while the Demised Premises is assigned or sublet, Landlord may, at Landlord's option, in addition to any other remedies provided in this Lease or by law, collect directly from the assignee or subtenant all rents becoming due under the terms of the assignment or subletting and apply the rent against any sums due to Landlord under this Lease. No direct collection by Landlord from any assignee or subtenant will release Tenant from Tenant's obligations under this Lease. The following shall be deemed to be reasonable under Paragraph 10 of this Lease hereunder and shall be permitted without the consent of the Landlord: (i) any merger, consolidation or other combination of Tenant with or into another entity, (ii) a sale, assignment, pledge, transfer, exchange or other disposition in a single transaction or in a series of transactions of the stock of Tenant or any entity which directly or indirectly controls Tenant, or (iii) any direct or indirect change in control of Tenant, provided, the surviving entity in any merger, consolidation or other combination or the purchase or other transfer of the stock of Tenant shall assume and agree in writing to perform the obligations of Tenant under this Lease as if it were an assignee or sublessee, and (iv) any assignment or sublease of all or any portion of the Demised Premises to an entity which controls, is controlled by or is under common control with Tenant. As used herein, "control" shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management policies of such person or entity whether through the ownership of voting securities, or other interests, by contract or otherwise. Cerprobe Corporation shall remain fully liable for the full performance of all Tenant's obligations under the Lease. ARTICLE ELEVEN: DEFAULT AND REMEDIES 11.01. Default. Each of the following events is an event of default under this Lease: A. Failure of Tenant to pay any installment of the Rent on the day that it is due or any other sum payable to Landlord under this Lease on the date that it is due and the continuance of such failure for a period of five (5) days after Landlord delivers written notice of the failure to Tenant. This clause shall not be construed to permit or allow a delay in paying Rent beyond the due date and shall not affect Landlord's right to impose a Late Charge as permitted in Section 3.03. B. Failure of Tenant to comply with any term, condition or covenant of this Lease, other than the payment of Rent or other sum of money, and the continuance of that failure for a period of thirty (30) days after Landlord delivers written notice of the failure to Tenant; provided, if the nature of the default is such that it cannot reasonably be cured within such thirty (30) day period, then so long as Tenant has commenced the cure within such thirty (30) days period and is diligently pursuing the same, the cure period shall be extended for such additional time as is reasonably necessary to complete the cure, up to, but not exceeding, an additional thirty (30) days after the end of the initial thirty (30) day cure period. C. Failure of Tenant or any guarantor of Tenant's obligations under this Lease to pay its debts as they become due or an admission in writing of inability to pay its debts, or the making of a general assignment for the benefit of creditors; D. The commencement by Tenant or any guarantor of Tenant's obligations under this Lease of any case, proceeding or other action seeking reorganization, arrangement, adjustment, liquidation, dissolution or composition of it or its debts under any law relating to bankruptcy, insolvency, reorganization or relief of debtors, or seeking appointment of a receiver, trustee, custodian or other similar official for it or for all or any substantial part of its property; E. The commencement of any case, proceeding or other action against Tenant or any guarantor of Tenant's obligations under this Lease seeking to have an order for relief entered against it as debtor, or seeking reorganization, arrangement, adjustment, liquidation, dissolution or composition of it or its debts under any law relating to bankruptcy, insolvency, reorganization or relief of debtors, or seeking appointment of a receiver, trustee, custodian or other similar official for it or for all or any substantial part of its property, and Tenant or any guarantor: (i) fails to obtain a dismissal of such case, proceeding, or other action within sixty (60) days of its commencement; or (ii) converts the case from one chapter of the Federal Bankruptcy Code to another chapter; or (iii) is the subject of an order of relief which is not fully stayed within seven (7) business days after the entry thereof; and Page 7 18 11.02. REMEDIES. Upon the occurrence of any of the events of default listed in Section 11.01, Landlord shall have the option to pursue any one or more of the following remedies without any [Illegible] or demand. A. Terminate this Lease, in which event Tenant shall immediately surrender the Demised Premises to Landlord. If Tenant fails to so surrender the Demised Premises, Landlord may, without prejudice to any other remedy contained herein which it may have for possession of the Demised Premises or Rent in arrears, enter upon and take possession of the Demised Premises and expel or remove Tenant and any other person who may be occupying the Demised Premises or any part thereof, by force if necessary, without being liable for prosecution or any claim for damages. Tenant shall pay to Landlord on demand the amount of all loss and damage which Landlord may suffer by reason of the termination, whether through inability to re-let the Demised Premises on satisfactory terms or otherwise. B. Enter upon and take possession of the Demised Premises, by force if necessary, without terminating this Lease and without being liable for prosecution or for any claim for damages, and expel or remove Tenant and any other person who may be occupying the Demised Premises or any part thereof. Landlord may re-let the Demised Premises and receive the rent therefor. Tenant agrees to pay to Landlord monthly or on demand from time to time any deficiency that may arise by reason of any such re-letting. In determining the amount of the deficiency, the professional service fees, attorneys' fees, court costs, remodeling expenses and other costs of re-letting shall be subtracted from the amount of rent received under the re-letting. C. Enter upon the Demised Premises, by force if necessary, without terminating this Lease and without being liable for prosecution or for any claim for damages, and do whatever Tenant is obligated to do under the terms of this Lease. Tenant agrees to pay Landlord on demand for expenses which Landlord may incur in thus effecting compliance with Tenant's obligations under this Lease, together with interest thereon at the rate of twelve percent (12%) per annum from the date expended until paid. Unless caused by the gross negligence or willful misconduct of Landlord, Landlord shall not be liable for any damages resulting to Tenant from such action, whether caused by negligence of Landlord or otherwise. E. In addition to the foregoing remedies, Landlord shall have the right to change or modify the locks on the Demised Premises in the event Tenant fails to pay the monthly installment of Rent when due. Landlord shall not be obligated to provide another key to Tenant or allow Tenant to regain entry to the Demises Premises unless and until Tenant pays Landlord all Rent which is delinquent. Tenant agrees that Landlord shall not be liable for any damages resulting to the Tenant from the lockout. At such time that Landlord changes or modifies the lock, Landlord shall post a "Notice of Change of Locks" on the front of the Demised Premises. Such Notice shall state that: (1) Tenant's monthly installment of Rent is delinquent, and therefore, under authority of Section 11.02.E of Tenant's Lease, the Landlord has exercised its contractual right to change or modify Tenant's door locks; (2) The Notice has been posted on the Tenant's front door by a representative of Landlord and Tenant should make arrangements with the representative to pay the delinquent installments of Rent when Tenant picks up the key; and (3) The failure of Tenant to comply with the provisions of the Lease and the Notice and/or tampering with or changing the door lock(s) by Tenant may subject Tenant to legal liability. F. No re-entry or taking possession of the Demised Premises by Landlord shall be construed as an election to terminate this Lease, unless a written notice of that intention is given to Tenant. Notwithstanding any such re-letting or re-entry or taking possession, Landlord may, at any time thereafter, elect to terminate this Lease for a previous default. Pursuit of any of the foregoing remedies shall not preclude pursuit of any other remedies provided by law, nor shall pursuit of any remedy provided in this Lease constitute a forfeiture or waiver of any monthly installment of Rent due to Landlord under this Lease or of any damages accruing to Landlord by reason of the violation of any of the terms, provisions and covenants contained in this Lease. Failure of Landlord to declare any default immediately upon its occurrence, or failure to enforce one or more of Landlord's remedies, or forbearance by Landlord to enforce one or more of Landlord's remedies upon an event of default shall not be deemed or construed to constitute a waiver of default or waiver of any violation or breach of the terms of this Lease. Pursuant of any one of the above remedies shall not preclude pursuit by Landlord of any of the other remedies provided in this Lease. The loss or damage that Landlord may suffer by reason of termination of this Lease or the deficiency from any re-letting as provided for above shall include the expense of repossession and any repairs or remodeling undertaken by Landlord following possession. If Landlord terminates this Lease at any time for any default, in addition to other Landlord's remedies, Landlord may recover from Tenant all damages Landlord may incur by reason of the default, including the cost of recovering the Demised Premises and the Rent then remaining unpaid. 11.03. NOTICE OF DEFAULT. Tenant shall give written notice of any failure by Landlord to perform any of Landlord's obligations under this Lease to Landlord and to any ground lessor, mortgagee or beneficiary under any deed of trust encumbering the Demised Premises whose name and address have been furnished to Tenant in writing. Landlord shall not be in default under this Lease unless Landlord (or such ground lessor, mortgagee or beneficiary) fails to cure the nonperformance within thirty (30) days after receipt of Tenant's notice. However, if the nonperformance reasonably requires more than thirty (30) days to cure, Landlord shall not be in default if the cure is commenced within the 30-day period and is thereafter diligently pursued to completion. 11.04. LIMITATION OF LANDLORD'S LIABILITY. As used in this Lease, the term "Landlord" means only the current owner or owners of the fee title to the Demised Premises or the leasehold estate under a ground lease of the Demised Premises at the time in question. Each Landlord is obligated to perform the obligations of Landlord under this Lease only during the time such Landlord owns such interest or title. Any Landlord who transfers its title or interest is relieved of all liability with respect to the obligations of Landlord under this Lease accruing on or after the date of transfer, and Tenant agrees to recognize the transferee as Landlord under this Lease subject to Article 10 hereof. However, each Landlord shall deliver to its transferee the Security Deposit held by Landlord if such Security Deposit has not then been applied under the terms of this Lease. Page 8 19 ARTICLE TWELVE: LANDLORD'S CONTRACTUAL LIEN In addition to the statutory Landlord's lien, Tenant hereby grants to Landlord a security interest to secure payment of all Rent and other sums of money becoming due under this Lease from Tenant upon all inventory, goods, wares, equipment, fixtures, furniture and all other personal property of Tenant situated in or upon the Demised Premises, together with the proceeds from the sale or lease thereof. Tenant may not remove such property without the consent of Landlord until all Rent in arrears and other sums of money then due to Landlord under this Lease have first been paid and discharged. Upon the occurrence of an event of default, Landlord may, in addition to any other remedies provided in this Lease or by law, enter upon the Demised Premises and take possession of any and all goods, wares, equipment, fixtures, furniture and other personal property of Tenant situated on the Demised Premises without liability for trespass or conversion and sell the property at public or private sale, with or without having the property at the sale, after giving Tenant reasonable notice of the time and place of any such sale. Unless otherwise required by law, notice to Tenant of the sale shall be deemed sufficient if given in the manner prescribed in this Lease at least ten (10) days before the time of the sale. Any public sale made under this Article shall be deemed to have been conducted in a commercially reasonable manner if held on the Demised Premises or where the property is located, after the time, place and method of sale and a general description of the types of property to be sold have been advertised in a daily newspaper published in the county where the Demised Premises is located for five (5) consecutive days before the date of the sale. Landlord or its assigns may purchase at a public sale and, unless prohibited by law, at a private sale. The proceeds from any disposition dealt with in this Article, less any and all expenses connected with the taking of possession, holding and selling of the property (including reasonable attorneys' fees and legal expenses), shall be applied as a credit against the indebtedness secured by the security interest granted herein. Any surplus shall be paid to Tenant or as otherwise required by law, and Tenant shall promptly pay any deficiencies. The statutory lien for rent is expressly reserved; the security interest herein granted is in addition and supplementary thereto. Provided Tenant is not in default under any of the terms of this Lease, upon written request by Tenant Landlord shall deliver a written subordination of Landlord's statutory and contractual liens to any liens and security interests securing any financing of Tenant. Landlord shall not unreasonably withhold or delay the delivery of Landlord's written subordination. ARTICLE THIRTEEN: PROTECTION OF LENDERS 13.01. SUBORDINATION AND ATTORNMENT. Landlord shall have the right to subordinate this Lease to any existing future ground Lease, deed of trust or mortgage encumbering the Demised Premises (a "mortgage") and advances made on the security thereof and any renewals, modifications, consolidations, replacements or extensions thereof, whenever made or recorded. Landlord's right to obtain such a subordination is subject to Landlord's providing Tenant with a written Subordination, Non-disturbance and Attornment Agreement from the ground lessor, beneficiary or mortgagee wherein Tenant's right to peaceable possession of the Demised Premises during the Lease Term shall not be disturbed if Tenant pays the Rent and performs all of Tenant's obligations under this Lease and is not otherwise in default, in which case Tenant shall attorn to the transferee of or successor to Landlord's interest in the Demised Premises and recognize the transferee or successor as Landlord under this Lease, and further providing that such lessor, beneficiary or mortgagee shall at all times recognize Tenant's rights under this Lease, including making insurance and condemnation proceeds available to Landlord and/or Tenant for reconstruction or repair of the Demised Premises after a casualty or condemnation so long as this Lease is not terminated by Landlord or Tenant as provided in Articles 8 or 9 hereof. If any ground lessor, beneficiary or mortgagee elects to have this Lease superior to the lien of its ground lease, deed of trust or mortgage and gives Tenant written notice thereof, this Lease shall be deemed superior to the ground lease, deed of trust or mortgage whether this Lease is dated prior or subsequent to the date of the ground lease, deed of trust or mortgage or the date of recording thereof. 13.02. SIGNING OF DOCUMENTS. Tenant shall sign and deliver any reasonable instruments or documents necessary or appropriate to evidence any attornment or subordination or any agreement to attorn or subordinate. 13.03. ESTOPPEL CERTIFICATES. A. Upon Landlord's written request, Tenant shall execute and deliver to Landlord a written statement certifying (to the extent accurate); (1) whether Tenant is an assignee or subtenant; (2) the expiration date of the Lease; (3) the number of renewal options under the lease and the total period of time covered by the renewal option(s); (4) that none of the terms or provisions of the Lease have been changed since the original execution of the Lease, except as shown on attached amendments or modifications; (5) that no default by Landlord exists under the terms of the Lease (or if Landlord is claimed to be in default, stating why); (6) that the Tenant has no claim against the landlord under the Lease and has no defense or right of offset against collection of rent or other charges accruing under the Lease; (7) the amount and date of the last payment of Rent; (8) the amount of any security deposits and other deposits, if any; and (9) the identity and address of any guarantor of the lease. Tenant shall deliver the statement to Landlord within ten (10) days after Landlord's request. Landlord may forward any such statement to any prospective purchaser or lender of the Demised Premises. The purchaser or lender may rely conclusively upon the statement as true and correct. B. If Tenant does not deliver the written statement to Landlord within the twenty (20) day period, Landlord, and any prospective purchaser or lender, may conclusively presume and rely upon the following facts: (1) that the terms and provisions of this Lease have not been changed except as otherwise represented by Landlord; (2) that this Lease has not been canceled or terminated except as otherwise represented by Landlord; (3) that not more than one monthly installment of Base Rent and other charges have been paid in advance; (4) there are no claims against Landlord nor any defenses or rights of offset against collection of Rent or other charges; and (5) that Landlord is not in default under this Lease. In such event, Tenant shall be estopped from denying the truth of the presumed facts. 13.04. TENANT'S FINANCIAL CONDITION. Within ten (10) days after written request from Landlord and no more frequently than once every twelve months, Tenant shall deliver to Landlord financial statements as are reasonably required by Landlord in Tenant's possession to verify the net worth of Tenant, or any assignee, subtenant, or guarantor of Tenant. In addition, Tenant shall deliver to any lender designated by Landlord any financial statements required by the lender to facilitate the financing or refinancing of the Demised Premises. All financial statements shall be confidential and shall be used only for the purposes set forth in this lease. Page 9 20 ARTICLE FOURTEEN: ENVIRONMENTAL REPRESENTATION AND INDEMNIFICATION 14.01 Tenant's Compliance with Environmental Laws. Tenant, at Tenant's expense, shall comply with all laws, rules, orders, ordinances, directions, regulations and requirements of Federal, State, county and municipal authorities pertaining to Tenant's use of the Property, and with the recorded covenants, conditions and restrictions, regardless of when they become effective, including without limitation, all applicable Federal, State and local laws, regulations or ordinances pertaining to air and water quality. Hazardous Materials (as defined in Section 14.05), waste disposal, air emissions and other environmental matters, all zoning and other land use matters, and with any direction of any public officer or officers, pursuant to law, which impose any duty upon Landlord or Tenant with respect to the use or occupancy of the Property. 14.02 Tenant's Indemnification. If the presence of Hazardous Materials on the Property caused or permitted by Tenant results in contamination of the Property or any other property, or if contamination of the Property or any other property by Hazardous Materials otherwise occurs for which Tenant is legally liable to Landlord for damage resulting therefrom, then Tenant shall indemnify, defend and hold Landlord harmless from any and all claims, judgements, damages, penalties, fines, costs, liabilities or losses (including, without limitation, diminution in value of the Property, damages for the loss or restriction on use of rentable or unusable space or of any amenity or appurtenance of the Property, damages arising from any adverse impact on marketing of building space or land area, sums paid in settlement of claims, reasonable attorneys' fees, court costs, consultant fees and expert fees) which arise during or after the Lease Term as a result of the contamination. This indemnification of Landlord by Tenant includes, without limitation, costs incurred in connection with any investigation of site conditions or any clean-up, remedial work, removal or restoration work required by any Federal, State or local government agency because of Hazardous Materials present in the soil or ground water on or under the Property. Without limiting the foregoing, if the presence of any Hazardous Materials on the Property (or any other property) caused or permitted by Tenant results in any contamination of the Property, Tenant shall promptly take all actions at Tenant's sole expense as are necessary to return the Property to the condition existing prior to the introduction of any such Hazardous Materials, provided that Landlord's approval of such actions is first obtained. The foregoing indemnity shall survive the expiration or termination of this Lease. 14.05 Definition. For purposes of this Lease, the term "Hazardous Materials" means any one or more pollutant, toxic substance, hazardous waste, hazardous material, hazardous substance, solvent or oil as defined in or pursuant to the Resource Conservation and Recovery Act, as amended, the Comprehensive Environmental Response, Compensation and Liability Act, as amended, the Federal Clean Water Act, as amended, or any other Federal, State or local environmental law, regulation, ordinance, or rule, whether existing as of the date of this Lease or subsequently enacted. 14.06 Survival. The representations and indemnities contained in this Article 14 shall survive the expiration or termination of this Lease. Page 10 21 ARTICLE SIXTEEN: MISCELLANEOUS 16.01. Disclosure. Landlord and Tenant understand that a real estate broker is qualified to advise on matters concerning real estate and is not expert in matters of law, tax, financing, surveying, hazardous materials, engineering, construction, safety, zoning, land planning, architecture or the ADA. The Brokers hereby advise Tenant to seek expert assistance on such matters. Brokers do not investigate a property's compliance with building codes, governmental ordinances, statutes and laws that relate to the use or condition of a property and its construction, or that relate to its acquisition. If Brokers provide names of consultants or sources for advice or assistance, Tenant acknowledges that the Brokers do not warrant the services of the advisors or their products and cannot warrant the suitability of property to be acquired or leased. Furthermore, the Brokers do not warrant that the Landlord will disclose any or all property defects, although the Brokers will disclose to Tenant any actual knowledge possessed by Brokers regarding defects of the Demised Premises and the Property. In this regard, Tenant agrees to make all necessary and appropriate inquiries and to use diligence in investigating the Demised Premises and the Property before consummating this Lease. Landlord and Tenant hereby agree to indemnify, defend, and hold the Brokers harmless of and from any and all liabilities, claims, debts, damages, costs, or expenses, including but not limited to reasonable attorneys' fees and court costs, related to or arising out of or in any way connected to representations concerning matters properly the subject of advice by experts. In addition, to the extent permitted by applicable law, the Brokers' liability for errors or omissions, negligence, or otherwise, is limited to the return of the Fee, if any, paid to the Brokers pursuant to this Lease. Page 11 22 16.02. FORCE MAJEURE. If performance by Landlord or Tenant of any term, condition or covenant in this Lease is delayed or prevented by any act of God, strike, lockout, shortage of material or labor, restriction by any governmental authority, civil riot or any other cause not within the control of landlord or Tenant, the period for performance of the term, condition or covenant shall be extended for a period equal to the period Landlord or Tenant is so delayed or prevented. 16.03. INTERPRETATION. The captions of the Articles or Sections of this Lease are to assist the parties in reading this Lease and are not a part of the terms or provisions of this Lease. Tenant shall be responsible for the conduct, acts and omissions of Tenant's agents, employees, customers, contractors, invitees, agents, successors or others using the Demised Premises with Tenant's expressed or implied permission. Whenever required by the context of this Lease, the singular shall include the plural and the plural shall include the singular, and the masculine, feminine and neuter genders shall each include the other. 16.04. WAIVERS. All waivers to provisions of this Lease must be in writing and signed by the waiving party. Landlord's delay or failure to enforce any provisions of this Lease or its acceptance of late installments of Rent shall not be a waiver and shall not prevent Landlord from enforcing that provision or any other provision of this Lease in the future. No statement on a payment check from Tenant or in a letter accompanying a payment check shall be binding on Landlord. Landlord may, with or without notice to Tenant, negotiate, cash, or endorse the check without being bound to the conditions of any such statement. 16.05. SEVERABILITY. A determination by a court of competent jurisdiction that any provision of this Lease is invalid or unenforceable shall not cancel or invalidate the remainder of that provision or this Lease, which shall remain in full force and effect. 16.06. JOINT AND SEVERAL LIABILITY. All parties signing this Lease as Tenant shall be jointly and severally liable for all obligations of Tenant. 16.07. AMENDMENTS OR MODIFICATIONS. This Lease is the only agreement between the parties pertaining to the lease of the Demised Premises and no other agreements are effective unless made a part of this Lease. All amendments to this Lease must be in writing and signed by all parties. Any other attempted amendment shall be void. 16.08. NOTICES. All notices and other communications required or permitted under this Lease must be in writing and shall be deemed delivered, whether actually received or not, on the earlier of (i) actual receipt if delivered in person or by messenger with evidence of delivery; or (ii) receipt of an electronic facsimile transmission ("Fax") with confirmation of delivery; or (iii) upon deposit in the United States Mail as required below. Notices may be transmitted by Fax to the Fax telephone numbers specified in Article One on the first page of this Lease, if any. Notices delivered by mail must be deposited in the U.S. Postal Service, first class postage prepaid, and properly addressed to the intended recipient as set forth in Article One. After possession of the Demised Premises by Tenant, Tenant's address for notice purposes will be the address of the Demised Premises unless Tenant notifies Landlord in writing of a different address to be used for that purpose. Any party may change its address for notice by delivering written notice of its new address to all other parties in the manner set forth above. 16.09. ATTORNEYS' FEES. If on account of any breach or default by any party to this Lease in its obligations to any other party to this Lease becomes necessary for a party to employ an attorney to enforce or defend any of its rights or remedies under this Lease, the non-prevailing party agrees to pay the prevailing party its reasonable attorneys' fees and court costs, if any, whether or not suit is instituted in connection with the enforcement or defense. 16.10. VENUE. All obligations under this Lease shall be performed and payable in the county in which the Property is located. The laws of the State of Texas shall govern this Lease. 16.11. SURVIVAL. All obligations of any party to this Lease which are not fulfilled at the expiration or the termination of this Lease shall survive such expiration or termination as continuing obligations of the party. 16.12. BINDING EFFECT. This Lease shall inure to the benefit of, and be binding upon, each of the parties to this Lease and their respective heirs, representatives, successors and assigns. However, Landlord shall not have any obligation to Tenant's successors or assigns unless the rights or interests of the successors or assigns are acquired in accordance with the terms of this Lease. 16.13. CONSULT AN ATTORNEY. THIS LEASE IS AN ENFORCEABLE, LEGALLY BINDING AGREEMENT. READ IT CAREFULLY. The brokers involved in the negotiation of this Lease cannot give you legal advice. The parties to this Lease acknowledge that they have been advised by the Brokers to have this Lease reviewed by competent legal counsel of their choice before signing this Lease. By executing this Lease, Landlord and Tenant each agree to the provisions, terms, covenants and conditions contained in this Lease. Page 12 23 5.03 Liability Insurance. During the Lease Term, Tenant shall maintain, at Tenant's expense, comprehensive general liability insurance (including personal injury liability, premises/operation, property damage, independent contractors and broad form contractual in support of the indemnifications of Landlord by Tenant under this Lease), business interruption insurance, contractual liability insurance, worker's compensation and employer's liability insurance and comprehensive catastrophe liability, all maintained with companies, on forms and in such amounts as Landlord may, from time to time, reasonably require and endorsed to include Landlord as an additional insured, with the premiums being fully paid on or before the due dates, insuring Landlord against liability arising out of the ownership, use, occupancy, or maintenance of the Demised Premises. The initial amounts of the insurance must be at least $1,000,000 for Each Occurrence, $2,000,000 General Aggregate per policy year, $100,000 Property Damage for the Demised Premises, and $10,000 Medical Expense; plus a $5,000,000 commercial general liability umbrella; and shall be subject to periodic increases based upon economic factors as Landlord may determine, in Landlord's discretion, exercised in good faith. However, the amounts of the insurance shall not limit Tenant's liability nor relieve Tenant of any obligation under this Lease. The policies must contain cross-liability endorsements, if applicable, and must insure Tenant's performance of the indemnity provisions of Section 5.04. The policies must contain a provision which prohibits cancellation or modification of the policy except upon thirty (30) days' prior written notice to Landlord. Tenant shall deliver a copy of the policy or certificate (or a renewal) to Landlord prior to the Commencement Date and prior to the expiration of the policy during the Lease Term. If Tenant fails to maintain the policy, Landlord may elect to maintain the insurance at Tenant's expense, which Tenant shall reimburse to Landlord upon demand. Tenant may, at Tenant's expense, maintain other liability insurance as Tenant deems necessary. The rental rate shall increase at 2% as follows: 1, 2001 $367,738.56 ($30,644.88 per month) 1, 2002 $375,093.33 ($31,257.78 per month) 1, 2003 $382,595.20 ($31,882.93 per month) 1, 2004 $390,247.10 ($32,520.59 per month) 1, 2005 $398,052.04 ($33,171.00 per month) 1, 2006 $406,013.00 ($33,834.42 per month) 1, 2007 $414,133.35 ($34,511.11 per month) 1, 2008 $422,416.01 ($35,201.33 per month) 1, 2009 $430,864.33 ($35,905.36 per month) 2010 SAME " 2011 SAME " LANDLORD TENANT Assurance Capital, Inc. Cerprobe Corporation - -------------------------------------- -------------------------------------- By [Signature]: /s/ Sydney J. Steiner By [Signature]: /s/ Paul Tullis ---------------------- ---------------------- Name: Sydney J. Steiner Name: Paul Tullis --------------------------------- -------------------------------- Title: Title: Vice President / Facilities -------------------------------- -------------------------------- Date of Execution: Date of Execution: -------------------- -------------------- PRINCIPAL BROKER COOPERATING BROKER N/A N/A - -------------------------------------- -------------------------------------- By [Signature]: By [Signature]: ---------------------- ---------------------- Name: Broker Name: Broker --------------------------------- -------------------------------- Title: Title: -------------------------------- -------------------------------- Copyright Notice: This form is provided for the use of members of the North Texas Commercial Association of Realtors, Inc. Permission is hereby granted to make limited copies of this form for use in a particular Texas real estate transaction. Contact the NTCAR office to confirm that you are using the current version of this form. Page 13 24 NORTH TEXAS COMMERCIAL ASSOCIATION OF REALTORS(R) ADDENDUM B TO LEASE RENEWAL OPTIONS Demised Premises/Address: 10365 Sanden Drive, Dallas, Dallas County, Texas A. OPTION TO EXTEND TERM. Landlord grants to Tenant two (2) option(s) (the "Option") to extend the Lease Term for an additional term of five (5) years each (the "Extension"), on the same terms, conditions and covenants set forth in this Lease, except as provided below. Each Option may be exercised only by written notice delivered to the Landlord no later than one hundred eighty (180) days before, the expiration of the Lease Term or the preceding Extension of the Lease Term, whichever is applicable. If Tenant fails to deliver Landlord written notice of the exercise of an Option within the prescribed time period, such Option and any succeeding Options shall lapse, and there shall be no further right to extend the Lease Term. Each Option may only be exercised by Tenant on the express condition that, at the time of the exercise, Tenant is not in default under any of the provisions of this Lease. The foregoing Options are personal to Tenant and may not be exercised by an assignee or subtenant without Landlord's written consent. B. CALCULATION OF RENT. The Base Rent during the Extension(s) shall be determined by one of the following methods [check one]: [ ] 1. Consumer Price Index Adjustment. The monthly Base Rent during the Extension shall be determined by multiplying the monthly installment of Base Rent during the last month of the Lease Term by a fraction determined as follows: a. The numerator shall be the Latest Index which means either [check one]: [ ] (1) the Index published for the nearest calendar month preceding the first day of the Extension, or [ ] (2) the Index for the month of _______________ preceding the Extension. b. The denominator shall be the Initial Index which means either [check one]: [ ] (1) the Index published for the nearest calendar month preceding the Commencement Date, or [ ] (2) the Index for the month of _________________ preceding the Commencement Date. [If no blanks are filled in above, the choice (1) including the phrase, "the nearest calendar month preceding," shall apply.] c. The Index means the Consumer Price Index (CPI) for All Urban Consumers (All Items) U.S. City Average (unless this box is checked [ ] in which case the CPI for the Dallas/Fort Worth Consolidated Metropolitan Statistical Area shall be used) published by the U.S. Department of Labor, Bureau of Labor Statistics (Base Index of 1982-84 = 100). If the Index is discontinued or revised, the new index or computation which replaces the Index shall be used in order to obtain substantially the same result as would have been obtained if it had not been discontinued or revised. If such computation would reduce the Rent for the particular Extension, it shall be disregarded, and the Rent during the immediately preceding period shall apply instead. [ ] 2. FAIR MARKET RENTAL VALUE. The Base Rent during the Extension shall be the Fair market Rental determined as follows: a. The "Fair Market Rental" of the Demised Premises means the price that a ready and willing tenant would pay as of the commencement of the Extension as monthly rent to a ready and willing landlord of demised premises comparable to the Demised Premises if the property were exposed for lease on the open market for a reasonable period of time, and taking into account the term of the Extension, the amount of improvements made by Tenant at its expense, the creditworthiness of the Tenant, and all of the purposes for which the property may be used and not just the use proposed to be made of the Demised Premises by Tenant. Upon proper written notice by Tenant to Landlord of Tenant's election to exercise the renewal Option, Landlord shall within fifteen (15) days thereafter notify Tenant in writing of Landlord's proposed Fair Market Rental amount and Tenant shall thereupon notify Landlord of Tenant's acceptance or rejection of Landlord's proposed amount. Failure of Tenant to reject Landlord's Fair Market Rental amount within fifteen (15) days after receipt of Landlord's notice shall be deemed Tenant's acceptance of Landlord's proposed Fair Market Rental amount. b. If Landlord and Tenant have not been able to agree on the Fair Market Rental amount prior to the date the option is required to be exercised, the rent for the Extension shall be determined as follows: Within thirty (30) days following the exercise of the option, Landlord and Tenant shall endeavor in good faith to agree upon a single Appraiser (defined below). If Landlord and Tenant are unable to agree upon a single Appraiser within the thirty day period, each shall then appoint one Appraiser by written notice to the other, given within ten (10) days after the thirty day period. Within ten (10) days after the two Appraisers are appointed, the two Appraisers shall appoint a third Appraiser. If either Landlord or Tenant fails to appoint its Appraiser within the prescribed time period the single Appraiser appointed shall determine the Fair Market Rental amount of the Demised Premises. Each party shall bear the cost of the appraiser appointed by it and the parties shall share equally the cost of the third appraiser. The term "Appraiser" means a State Certified Real Estate Appraiser licensed by the State of Texas to value commercial property. c. The Fair Market Rental Value of the Demised Premises shall be the average of two of the three appraisals which are closest in amount as described below, and the third appraisal shall be disregarded. In no event shall the Rent be reduced by reason of such computation. If the Fair Market Rental is not determined prior to the commencement of the Extension, then Tenant shall continue to pay to Landlord the Rent applicable to the Demised Premises immediately prior to the Extension until the Fair Market Rental amount is determined, and when it is determined, Tenant shall pay to Landlord within ten (10) days after receipt of such notice the difference between the Rent actually paid by Tenant to Landlord and the new Rent determined under this Lease. [ ] C. FIXED RENTAL ADJUSTMENTS. The monthly Base Rent shall be increased beginning on the following dates to these amounts: Date: 1, 2012 Amount: Fair market value with 2% annual increases. ---------------- ------------------------------------------- Date: 1, 2017 Amount: Fair market value with 2% annual increases. ---------------- ------------------------------------------- Date: Amount: ---------------- ------------------------------------------- Date: Amount: ---------------- ------------------------------------------- Page 14 25 FIRST AMENDMENT TO COMMERCIAL CONTRACT OF SALE This FIRST AMENDMENT TO COMMERCIAL CONTRACT OF SALE (this "Amendment") is made as of June 6, 2000, by and between Cerprobe Corporation ("Seller"') and Assurance Capital, Inc. ("Buyer"). WHEREAS, Seller and Buyer entered into that certain Commercial Contract of Sale (the "Contract") for the purchase and sale of that certain real property located in Dallas County, Texas, and commonly known as 10365 Sanden Drive, Dallas, Texas (the "Property"); WHEREAS, the parties hereto desire to amend the Contract; and WHEREAS all capitalized terms used and not defined herein shall have the meanings ascribed to such terms in the Contract; NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties, it is agreed: 1 . Section 19 of the Contract is hereby deleted. Seller and Buyer hereby agree that the Contract is in full force and effect as of the date hereof and that the Effective Date for all purposes shall be June 6, 2000. 2.Except as modified by this Amendment, the Contract shall remain unchanged and in full force and effect. 3. The parties hereto may execute this Amendment in one or more identical counterparts, all of which when taken together will constitute one and the same instrument. Copied or telecopied signatures may be attached hereto and shall have the same binding and legal effect as original signatures. 26 IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first written above. SELLER: Cerprobe Corporation By: /s/ Paul R. Tullis Name: Paul R. Tullis Title: Vice President, Worldwide Facilities BUYER: Assurance Capital, Inc. By: Name: Title: 27 IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first written above. SELLER: Cerprobe Corporation By: Name: Title: BUYER: Assurance Capital, Inc. By: /s/ David Steiner Name: David Steiner Title: Sec-Treasurer 28 SECOND AMENDMENT TO COMMERCIAL CONTRACT OF SALE This SECOND AMENDMENT TO COMMERCIAL CONTRACT OF SALE (this "Amendment") is made as of August 10, 2000, by and between Cerprobe Corporation ("Seller") and Assurance Capital, Inc. ("Buyer"). WHEREAS, Seller and Buyer entered into that certain Commercial Contract of Sale, as amended by that certain First Amendment to Commercial Contract of Sale dated as of June 6, 2000 (collectively, the "Contract") for the purchase and sale of that certain real property located in Dallas County, Texas, and commonly known as 10365 Sanden Drive, Dallas, Texas (the "Property"); WHEREAS, the Contract provides that on the Closing Date, the parties shall execute a lease agreement in the form attached as Exhibit E to the Contract (the "Lease Form"); WHEREAS, the parties hereto desire to amend the Contract; WHEREAS, all capitalized terms used and not defined herein shall have the meanings ascribed to such terms in the Contract; NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties, it is agreed: 1. The Lease Term set forth in Section 1.05 of the Lease Form shall be changed from ten (10) years to twelve (12) years (each such year in the Lease Term, a "Lease Year"). The parties acknowledge and agree that the first (1st) Lease Year of the Lease Term shall commence on the Closing Date and shall expire on September 30, 2001. Each Lease Year thereafter shall commence on October 1 of such year and expire on September 30 of the following year. The Expiration Date shall be September 30, 2012. 2. The Base Rent payable for Lease Years 11 and 12 of the Lease Term shall be the same Base Rent payable for Lease Year 10 of the Lease Term. 3. The parties acknowledge and agree that the first Extension Option, if applicable, shall commence on October 1, 2012 and shall expire September 30, 2017, and the second Extension Option, if applicable, shall commence on October 1, 2017 and shall expire September 30, 2022. 4. Notwithstanding the signatures of the parties appearing on the Lease Form, no landlord/tenant relationship shall be formed between the parties unless and until the Closing of the transaction contemplated by the Contract is consummated, and a lease agreement in the form of the Lease Form (as amended hereby) is executed by the parties at Closing. 5. Except as modified by this Amendment, the Contract shall remain unchanged and in full force and effect. 1 29 6. The parties hereto may execute this Amendment in one or more identical counterparts, all of which when taken together will constitute one and the same instrument. Copied or telecopied signatures may be attached hereto and shall have the same binding and legal effect as original signatures. IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first written above. SELLER: Cerprobe Corporation By: /s/ Paul R. Tullis Name: Paul R. Tullis Title: Vice President, Worldwide Facilities BUYER: Assurance Capital, Inc. By: Name: Title: 2 30 6. The parties hereto may execute this Amendment in one or more identical counterparts, all of which when taken together will constitute one and the same instrument. Copied or telecopied signatures may be attached hereto and shall have the same binding and legal effect as original signatures. IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first written above. SELLER: Cerprobe Corporation By: Name: Title: BUYER: Assurance Capital, Inc. By: /s/ David Steiner Name: David Steiner Title: Sec-Treasurer 2 31 LOCKE LIDDELL & SAPP LLP ATTORNEYS & COUNSELORS 2200 Ross Avenue (214) 740-8000 Suite 2200 FAX (214) 740-8800 Dallas, Texas 75201-6776 www.lockeliddell.com AUSTIN - DALLAS - HOUSTON - NEW ORLEANS August 11, 2000 Cerprobe Corporation 1150 North Fiesta Blvd. Gilbert, Arizona 85233 Attention: Mr. Paul Tullis Re: Commercial Contract of Sale dated effective as of June 6, 2000, as amended, by and between Cerprobe Corporation ("Seller") and Assurance Capital, Inc., as assigned to SJS Sanden L.P. ("Buyer") Gentlemen: On behalf of Buyer, we hereby request that the Closing Date be extended so that the Closing occurs on or before Tuesday, September 12, 2000. Please indicate your agreement to the extension of the Closing Date by executing a copy of this letter in the space provided below and telecopying the executed letter to Syd Steiner at (214) 521-3767 ,to Kerri A. Majors at (214) 954-5502, with a copy to me at (214) 740-8800. Please also send a hard copy to follow to my attention. If you have any questions or comments regarding this letter, please contact me at the number listed above. Very truly yours, /s/ Carolyn L. King Carolyn L. King For the firm 32 Cerprobe Corporation August 11, 2000 Page 2 Acknowledged and Agreed this 11th day of September, 2000 CERPROBE CORPORATION By:/s/ Paul R. Tullis Paul R. Tullis Vice President cc: Syd Steiner Mary Shaben Thomas E. Clarke Rob Banta Mark Biskamp 33 ASSIGNMENT OF CONTRACT OF SALE THIS ASSIGNMENT OF CONTRACT OF SALE (the "Assignment") is dated effective this 12th day of September 2000, by and among ASSURANCE CAPITAL, INC. ("Assignor"), and SJS SANDEN L.P. ("Assignee"). W I T N E S S E T H: -------------------- WHEREAS, Assignor, as Purchaser, and Cerprobe Corporation, as Seller, have entered into that certain Commercial Contract of Sale dated effective as of June 6, 2000, (said Commercial Contract of Sale, as the same may have been amended, the "Contract"), pursuant to which Seller has agreed to sell to Assignor and Assignor has agreed to purchase from Seller all of Seller's right, title and interest in that certain tract of real property located in Dallas, Dallas County, Texas, more particularly described therein; WHEREAS, Assignor desires to assign its right, title and interest in and to the Contract to Assignee, as more particularly set forth herein, and. Assignee desires to accept such assignment and is willing to assume and agree to perform all of Assignor's obligations under the Contract. NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: (i) Assignor hereby GRANTS, TRANSFERS and ASSIGNS to Assignee, all of Assignor's right, title and interest in and to the Contract and in and to any leases, agreements, licenses, permits or approvals entered into or obtained in the name of Assignor relating to the property covered by the Contract ("Related Rights"); (ii) Assignee does hereby accept such assignment of the rights and interests of Assignor under the Contract, and assumes and agrees to keep, observe and perform all of the duties, liabilities and obligations of Assignor under the Contract and the Related Rights; (iii) The Contract is hereby ratified and confirmed and shall remain in full force and effect as originally written. Any capitalized terms used herein which are not otherwise defined herein shall have the meaning ascribed to them in the Contract. REMAINDER OF THIS PAGE LEFT BLANK INTENTIONALLY 34 EXECUTED as of the day and year first above written. ASSIGNOR: ASSURANCE CAPITAL, INC. By: /s/ David S.P. Steiner Name: David S.P. Steiner Title:Secretary / Treasurer ASSIGNEE: SJS SANDEN L.P., a Texas limited partnership BY.: SJS SANDEN GP LLC, a Texas limited liability company, its general partner By: /s/ David S.P. Steiner Name: David S.P. Steiner Title: Vice President SIGNATURE PAGE TO ASSIGNMENT OF CONTRACT OF SALE 35 SPECIAL WARRANTY DEED STATE OF TEXAS Section Section KNOW ALL MEN BY THESE PRESENTS THAT: COUNTY OF DALLAS Section CERPROBE CORPORATION, a Delaware corporation (hereinafter called "Grantor"), for and in consideration of the sum of TEN AND NO/100 Dollars ($10.00) and other good and valuable consideration in hand paid by SJS SANDEN, L.P. (hereinafter called "Grantee"), whose mailing address is 4810 Cedar Springs, Suite 200, Dallas, Texas, 75219, the receipt and sufficiency of which are hereby acknowledged, has GRANTED, SOLD AND CONVEYED and by these presents does GRANT, SELL AND CONVEY unto Grantee that certain real property situated in Dallas County, Texas and more particularly described on Exhibit A attached hereto and made a part hereof for all purposes, together with all improvements, structures and fixtures located thereon, and all rights, titles, privileges, hereditaments, easements, licenses, rights-of-way, appurtenances and interests of Grantor appurtenant thereto (all of the above-described properties being hereinafter collectively referred to as the "Property"). This conveyance is made and accepted subject to (a) general real estate taxes on the Property for the current year which Grantee assumes and agrees to pay, (b) zoning laws and regulations and ordinances of municipal and other governmental authorities, if any, affecting the Property, and (c) the matters set forth on Exhibit B attached hereto and made a part hereof for all purposes (all of the foregoing being hereinafter collectively referred to as the "Permitted Encumbrances"). For the same consideration, Grantor has GRANTED, BARGAINED, SOLD and CONVEYED, and by these presents does GRANT, BARGAIN, SELL and CONVEY unto Grantee, without warranty, express or implied, all interest of Grantor, if any, in (i) strips and gores, if any, between the Property and any abutting properties, whether owned or claimed by deed, limitations, or otherwise, and whether located inside or outside the Property; and (ii) any land lying in or under the bed of any creek, stream, or waterway or any highway, avenue, street, road, alley, easement, right-of-way or sidewalk, open or proposed, in, or across, abutting or adjacent to the Property. TO HAVE AND TO HOLD the Property, together with all and singular the rights and appurtenances thereto in any wise belonging unto Grantee, its successors and assigns forever and subject to the Permitted Encumbrances, Grantor does hereby bind itself, its successors and assigns, to WARRANT AND FOREVER DEFEND all and singular the Property unto Grantee, its successors and assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof, by, through or under Grantor, but not otherwise, subject to the Permitted Encumbrances. Except as otherwise provided in that certain Commercial Contract of Sale dated as of June 6, 2000 by and between Grantor and Assurance Capital, Inc. as assigned to Grantee, pertaining to the sale of the property, and except as otherwise provided herein, the sale of the Property is made by Grantor on an "AS-IS, WHERE-IS AND WITH ALL FAULTS" basis. 36 EXECUTED this 7th day of September, 2000, to be effective for all purposes as of the 12 day of September, 2000. GRANTOR: CERPROBE CORPORATION, a Delaware corporation By: /s/ Paul R. Tullis Name: Paul R. Tullis Title: VP Worldwide Facilities STATE OF ARIZONA Section Section COUNTY OF MARICOPA Section This instrument was acknowledged before me on this 7th day of September, 2000, by Paul R. Tullis, VP Worldwide Facilities of Cerprobe Corporation, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed the same for the purposes and consideration therein expressed, in the capacity therein stated and as the act and deed of said corporation /s/ Laura M. Back Notary Public, State of Arizona [NOTARY STAMP] My commission expires: Laura M. Back Printed Name of Notary Public 7-14-01 GRANTEE'S ADDRESS: SJS Sanden, L.P. 4810 Cedar Springs, Suite 200 Dallas, Texas 75219 AFTER RECORDING PLEASE RETURN TO: ALLEGIANCE TITLE COMPANY 2100 McKINNEY AVENUE, SUITE 1200 DALLAS, TEXAS 75201 37 EXHIBIT A DESCRIPTION OF REAL PROPERTY BEING a 3.7569 acre tract of land situated in the A. G. COLLINS SURVEY, ABSTRACT NO. 329, Dallas County, Texas and being all of Lot 2B, Block B/8053, Fleming-Gateway Addition, an addition to the City of Dallas, Texas as recorded in Volume 94145, Page 1467, Deed Records, Dallas County, Texas and being more particularly described as follows: BEGINNING at a 5/8" iron rod found for corner in the westerly right-of-way line of Sanden Drive (a 60 foot R.O.W.) and being the northeast corner of said Lot 2B and also being in the center of a 60 foot wide drainage easement; THENCE S 00 deg. 17 min. 23 sec. W, along the westerly right-of-way line of said Sanden Drive, a distance of 427.66 feet to a 1/2" iron rod found for corner being the southeast corner of Lot 2B and also being the northeast corner of Lot 2A of said Block B/8053; THENCE N 89 deg. 42 min. 37 sec. W, along the north line of said Lot 2A, a distance of 486.64 feet to a 5/8" iron rod found for corner and being the southwest corner of said Lot 2B and also being the northwest corner of said Lot 2A; THENCE N 01 deg. 22 min. 28 sec. E, along the west line of said Lot 2B, a distance of 291.06 feet to a 1/2" iron rod set for corner, being the northwest corner of said Lot 2B and also being in the center of said 60 foot wide drainage easement; THENCE S 88 deg. 37 min. 32 sec. E, along the north line of said Lot 2B and along the center of said 60 foot wide drainage easement, a distance of 158.19 feet to a 1/2" iron rod set for corner and being at the beginning of a curve to the left having a central angle of 51 deg. 51 min. 22 sec., a radius of 190.00 feet and a chord which bears N 65 deg. 26 min. 47 sec. E, a distance of 166.15 feet; THENCE northeasterly, along the center of said 60 foot wide drainage easement and along said curve, a distance of 171.96 feet to a 1/2" iron rod set for corner and being a point of reverse curve having a central angle of 50 deg. 46 min. 17 sec. a radius of 190.00 feet and a chord which bears N 64 deg. 54 min. 14 sec. E, a distance of 162.91 feet; THENCE northeasterly, along the center of said 60 foot wide drainage easement and along said curve, a distance of 168.36 feet to a 1/2" iron rod set for corner at the end of said curve; THENCE S 89 deg. 42 min. 37 sec. E, continuing along the center of said 60 foot wide drainage easement and the north line of said Lot 2B, a distance of 25.01 feet to the POINT OF BEGINNING and containing 163,652 sq. ft. or 3.7569 acres of land. 38 EXHIBIT B PERMITTED ENCUMBRANCES The following restrictive covenants of record Volume 94172, Page 6280, Deed Records, Dallas County, Texas All of the oil, gas and other minerals and all other elements not considered a part of the surface estate are excepted herefrom, not insured herein nor guaranteed hereunder, all having been reserved in instrument recorded in Volume 94172, Page 6280, Deed Records, Dallas County, Texas. Thirty foot drainage easement over the North line of subject property, as shown on plat recorded in Volume 94145, Page 1467, Map Records, Dallas County, Texas, and as shown on survey dated June 20, 2000, prepared by Dennis D. Vote, Registered Professional Land Surveyor #4813. Variable width water, sanitary sewer and telephone easement over the East line of subject property, as shown on plat recorded in Volume 94145, Page 1467, Map Records, Dallas County, Texas, and as shown on survey dated June 20, 2000, prepared by Dennis D. Vote, Registered Professional Land Surveyor #4813. 39 BILL OF SALE THE STATE OF TEXAS Section Section COUNTY OF DALLAS Section THAT CERPROBE CORPORATION, a Delaware corporation ("Seller"), for and in consideration of the sum of Ten and No/100 Dollars ($10.00) and other good and valuable consideration to Seller in hand paid by SJS SANDEN, L.P. ("Buyer") the receipt of which is hereby acknowledged, has Bargained, Sold, Delivered and Assigned, and by these presents does Bargain, Sell, Deliver and Assign, unto Buyer all fixtures and articles of tangible personal property owned by Seller which are situated in the improvements constructed on that certain tract of land situated in Dallas County, Texas, said tract of land being described on Exhibit A, attached hereto and made a part hereof for all purposes (the "Building"), including the personal property described on Exhibit B attached hereto and made a part hereof, but excluding Seller's trade fixtures or personal property used in connection with Seller's business and/or manufacturing processes at the Building (all such fixtures and articles of tangible personal property conveyed herein being referred to as the "Property"). Except as otherwise provided in that certain Commercial Contract of Sale dated as of June 6, 2000 by and between Seller and Assurance Capital, Inc., as assigned to Buyer, pertaining to the sale of the Property, and except as otherwise provided herein, the sale of the Property is made by Seller on an "AS-IS, WHERE-IS AND WITH ALL FAULTS" basis. EXECUTED this 7th day of September, 2000, to be effective on the 12 day of September, 2000. CERPROBE CORPORATION, a Delaware corporation By: /s/Paul R. Tullis Name: Paul R. Tullis Title: VP Worldwide Facilities 40 EXHIBIT A DESCRIPTION OF REAL PROPERTY BEING a 3.7569 acre tract of land situated in the A. G. COLLINS SURVEY, ABSTRACT NO. 329, Dallas County, Texas and being all of Lot 2B, Block B/8053, Fleming-Gateway Addition, an addition to the City of Dallas, Texas as recorded in Volume 94145, Page 1467, Deed Records, Dallas County, Texas and being more particularly described as follows: BEGINNING at a 5/8" iron rod found for corner in the westerly right-of-way line of Sanden Drive (a 60' R.O.W.) and being the northeast corner of said Lot 2B and also being in the center of a 60 foot wide drainage easement; THENCE S 00 deg. 17 min. 23 sec. W, along the westerly right-of-way line of said Sanden Drive, a distance of 427.66 feet to a 1/2" iron rod found for corner being the southeast corner of Lot 2B and also being the northeast corner of Lot 2A of said Block B/8053; THENCE N 89 deg. 42 min. 37 sec. W, along the north line of said Lot 2A, a distance of 486.64 feet to a 5/8' iron rod found for corner and being the southwest corner of said Lot 2B and also being the northwest corner of said Lot 2A; THENCE N 01 deg. 22 min. 28 sec. E, along the west line of said Lot 2B, a distance of 291.06 feet to a 1/2" iron rod set for corner, being the northwest corner of said Lot 2B and also being in the center of said 60 foot wide drainage easement; THENCE S 88 deg. 37 min. 32 sec. E, along the north line of said Lot 2B and along the center of said 60 foot wide drainage easement, a distance of 158.19 feet to a 1/2" iron rod set for corner and being at the beginning of a curve to the left having a central angle of 51 deg. 51 min. 22 sec., a radius of 190.00 feet and a chord which bears N 65 deg. 26 min. 47 sec. E, a distance of 166.15 feet; THENCE northeasterly, along the center of said 60 foot wide drainage easement and along said curve, a distance of 171.96 feet to a 1/2" iron rod set for corner and being a point of reverse curve having a central angle of 50 deg. 46 min. 17 sec. a radius of 190.00 feet and a chord which bears N 64 deg. 54 min. 14 sec. E, a distance of 162.91 feet; THENCE northeasterly, along the center of said 60 foot wide drainage easement and along said curve, a distance of 168.36 feet to a 1/2" iron rod set for corner at the end of said curve; THENCE S 89 deg. 42 min. 37 sec. E, continuing along the center of said 60 foot wide drainage easement and the north line of said Lot 2B, a distance of 25.01 feet to the POINT OF BEGINNING and containing 163,652 sq. ft. or 3.7569 acres of land. 41 All fixtures and articles of tangible personal property on the Property and owned by Seller, including but not limited to: 1. Lighting fixtures, sips, barriers, decorative accessories attached to the Building, security equipment, traffic control, devices and similar equipment; 2. Refrigeration, heating, ventilating and air conditioning units and equipment; 3. Electronic security equipment and remote transmitter devices; 4. Tools, equipment, parts and supplies used only for the maintenance of the Property; i.e., hoses, ladders, mowers and scaffolds; 5. Furnishings and decorations situated in common areas: i.e., rugs, artwork, lamps, furniture, planters and trash containers; 6. Operating manuals, service instructions and all records pertaining to the installation, operation, maintenance and repair of equipment and fixtures whether listed above as items of personal property or affixed as part of the real property; 7. Licenses and permits related to the ownership (as opposed to the use and occupancy) of the real property, plans and specifications, as-built drawings, shop drawings, warranties, guarantees, and any other agreements relating to the ownership (as opposed to the use and occupancy) of the Property or any part thereof, if available. EX-10.PPP 10 p63766ex10-ppp.txt EX-10.PPP 1 EXHIBIT 10 (ppp) NORTH TEXAS COMMERCIAL ASSOCIATION OF REALTORS(R) COMMERCIAL LEASE AGREEMENT
TABLE OF CONTENTS EXHIBITS AND ADDENDA. Any exhibit or addendum attached to this Article Page Lease is incorporated as a part of this Lease for all purposes. 1. Defined Terms 1 Any term not specifically defined in the Addenda shall have the same 2. Lease and Lease Term 2 meaning given to it in the body of this Lease. To the extend any 3. Rent and Security Deposit 2 provisions in the body of this Lease conflict with the Addenda, the 4. Taxes 3 Addenda shall control. 5. Insurance and Indemnity 3 6. Use of Demised Premises 4 [Check all boxes which apply: Boxes not checked do not apply.] 7. Property Condition, Maintenance, Repairs and Alterations 5 [X] Exhibit A Survey and/or Legal Description of the Property 8. Damage or Destruction 6 [X] Exhibit B Floor Plan and/or Site Plan 9. Condemnation 7 10. Assignment and Subletting 7 [ ] Addendum A Expense Reimbursement 11. Default and Remedies 7 [ ] Addendum B Renewal Options 12. Landlord's Contractual Lien 9 [ ] Addendum C Right of First Refusal for Additional Space 13. Protection of Lenders 9 [ ] Addendum D Percentage Rental/Gross Sales Reports 14. Environmental Representations and Indemnity 10 [ ] Addendum E Guarantee 15. Professional Service Fees 10 [ ] Addendum F Construction of Improvements 16. Miscellaneous 11 [ ] Addendum G Rules and Regulations 17. Additional Provisions 13 [ ] Addendum H Other _______________________________
IN CONSIDERATION of the terms, provisions and agreements contained in this Lease, the parties agree as follows: ARTICLE ONE: DEFINED TERMS. As used in this Commercial Lease Agreement (the "Lease"), the terms set forth in this Article One have the following respective meanings: 1.01. EFFECTIVE DATE: The last date beneath the signatures of Landlord and Tenant on page 13 below. 1.02. LANDLORD: SJS Sanden, L.P. Address: 4810 Cedar Springs, Suite 200, Dallas, Texas 75219 Telephone: 214.521.5310 Fax: 1.03. TENANT: Cerprobe Address: 1150 N. Fiesta Blvd., Gilbert, Arizona 85233-2237 Telephone: 480.333.1500 Fax: 480.333.1799 1.04. DEMISED PREMISES: 10365 Sanden Drive A. STREET ADDRESS: 10365 Sanden Drive, Dallas Dallas in Dallas County, Texas. B. LEGAL DESCRIPTION: The property on which the Demised Premises is situated (the "Property") is more particularly described as: Fleming - Gateway, Blk B/8053, Lot 2B Acres 3.7569, Vol 96253/0914 00122796 Dallas County or is described on EXHIBIT A, SURVEY AND/OR LEGAL DESCRIPTION. C. FLOOR PLAN OR SITE PLAN: Being a floor area of approximately 34.336 square feet and being approximately ______ feet by ______ feet (measured to the exterior of outside walls and to the center of the interior walls) and being more particularly shown in outline form on EXHIBIT B, FLOOR PLAN AND/OR SITE PLAN. D. Tenant's pro rata share of the Property is % [See ADDENDUM A, EXPENSE REIMBURSEMENT, if applicable] 1.05. LEASE TERM: Twelve (12) years and 0 months beginning on October 1, 2000 (the "Commencement Date") and ending on September 30, 2012 (the "Expiration Date"). 1.06. BASE RENT: $4,809,409.58 total Base Rent for the Lease Term payable in monthly installments of $30,044.00** per month in advance. (The total amount of Rent is defined in Section 3.01.) 1.07. PERCENTAGE RENTAL RATE: 0% [See ADDENDUM D, PERCENTAGE RENTAL/GROSS SALES REPORTS, if applicable] 1.08. SECURITY DEPOSIT: $30,044.00 (due upon execution of this Lease). [See Section 3.04] 1.09. PERMITTED USE: office and technical support in conjunction with Tenant's business [See Section 6.01] Page 1 2 1.10. Party to whom Tenant is to deliver payments under this Lease [check] [X] Landlord [ ] Principal Broker or [ ] Other _________________. Landlord may designate in writing the party authorized to act on behalf of Landlord to enforce this Lease. Any such authorization will remain in effect until it is revoked by Landlord in writing. 1.14. Acceptance: The number of days for acceptance of this offer is _________ days. [See Section 16.14] ARTICLE TWO: LEASE AND LEASE TERM 2.01. LEASE OF DEMISED PREMISES FOR LEASE TERM. Landlord leases the Demised Premises to Tenant and Tenant leases the Demised Premises from Landlord for the Lease Term stated in Section 1.05. The Commencement Date is the date specified in Section 1.05, unless advanced or delayed under any provision of this Lease. 2.04. HOLDING OVER. Tenant shall vacate the Demised Premises immediately upon the expiration of the Lease Term or earlier termination of this Lease. Tenant shall reimburse Landlord for and indemnify Landlord against all direct and actual damages incurred by Landlord as a result of any delay by Tenant in vacating the Demised Premises. If Tenant does not vacate the Demised Premises upon the expiration of the Lease Term or earlier termination of this Lease, Tenant's occupancy of the Demised Premises shall be a day-to-day tenancy, subject to all of the terms of this Lease, except that the Base Rent during the holdover period shall be increased to an amount which is one-and-one-half (1 1/2) times the Base Rent in effect on the expiration or termination of this Lease, computed on a daily basis for each day of the holdover period, plus all additional sums due under this Lease. This paragraph shall not be construed as Landlord's consent for Tenant to hold over or to extend this Lease. ARTICLE THREE: RENT AND SECURITY DEPOSIT 3.01. MANNER OF PAYMENT. All sums payable under this Lease by Tenant (the "Rent") shall be made to the Landlord at the address designated in Section 1.02, unless another person is designated in Section 1.10, or to any other party or address as Landlord may designate in writing. Any and all payments made to a designated third party for the account of the Landlord shall be deemed made to Landlord when received by the designated third party. All sums payable by Tenant under this Lease, whether or not expressly denominated as rent, shall constitute rent for the purposes of Section 502(b)(6) of the Bankruptcy Code and for all other purposes. The Base Rent is the minimum rent for the Demised Premises and is subject to the terms and conditions contained in this Lease, together with the attached Addenda, if any. 3.02. TIME OF PAYMENT. Upon execution of this Lease, Tenant shall pay the installment of Base Rent for the first month of the Lease Term. On or before the first day of the second month of the Lease Term and of each month thereafter, the installment of Base Rent and other sums due under this Lease shall be due and payable, in advance, without off-set, deduction or prior demand. Tenant shall cause payments to be properly mailed or otherwise delivered so as to be actually received by the party identified in 1.10 above on or before the due date (and not merely deposited in the mail). If the Lease Term commences or ends on a day other than the first or last day of a calendar month, the rent for any fractional calendar month following the Commencement Date or preceding the end of the Lease Term shall be prorated by days. Page 2 3 3.03. LATE CHARGES. Tenant's failure to promptly pay sums due under this Lease may cause the Landlord to incur unanticipated costs. The exact amount of those costs is impractical or extremely difficult to ascertain. The costs may include [ILLEGIBLE]re not limited to processing and account charges and ate charges which may be imposed on Landlord by any ground lease or deed of trust encumbering the Demised Premises Payments due to Landlord under this Lease are not an extension of credit. Therefore, if any payment under the Lease is not actually received on or before three (30 days after the due date (and not merely deposited in the mail). Landlord may, at Landlord's option and to the extent allowed by applicable law impose a Late Charge on any are payments in an amount equal to one-half of one percent (0.5%) of the amount of the past due payment the "Late Charge") per day for each day after the due date, until the past due amount in Good Funds is received by Landlord, up to a maximum of ten percent (10%) of the past due amount. A Late Charge may be imposed only once on each past due payment. Any Late Charge will be in addition to Landlord's other remedies for nonpayment of rent. If any check tendered to Landlord by Tenant under this Lease is dishonored for any reason. Tenant shall pay to the party receiving payments under this Lease a fee of twenty-five dollars ($25.00), plus (at Landlord's option) a Late Charge as provided above until good funds are received by Landlord. The parties agree that any Late Charge and dishonored check fee represent a fair and reasonable estimate of the costs Landlord will incur by reason of the late payment or dishonored check. Payments received from Tenant shall be applied first to any late Charges, second to Base Rent, and last to other unpaid charges or reimbursements due to Landlord. Notwithstanding the foregoing, Landlord will not impose a Late Charge as to the first late payment in any calendar year, unless Tenant fails to pay the late payment to Landlord within three (3) business days after the delivery of a written notice from Landlord to Tenant demanding the late payment be paid. However, Landlord may impose a Late Charge without advance notice to Tenant on any subsequent late payment in the same calendar year. 3.04. SECURITY DEPOSIT. Upon execution of this Lease. Tenant shall deposit with Landlord a cash Security Deposit in the amount stated in Section 1.08. Landlord may apply all or part of the Security Deposit to any unpaid Rent or other charges due from Tenant or to cure any other defaults of Tenant. If Landlord uses any part of the Security Deposit, Tenant shall restore the Security Deposit to its full amount within ten (10) days after Landlord's written demand. Tenant's failure to restore the full amount of the Security Deposit within the time specified shall be a default under this Lease. No interest will be paid on the Security Deposit. Landlord will not be required to keep the Security Deposit separate from its other accounts and no trust relationship is created with respect to the Security Deposit. Upon any termination of this Lease not resulting from Tenant's default, and after Tenant has vacated the Property and cleaned and restored the Demised Premises in the manner required by this Lease. Landlord shall refund the unused portion of the Security Deposit to Tenant within thirty days after Termination Date or thirty days after Tenant fully complies with the conditions of termination as required in Section 7.05, whichever is later. 3.05. GOOD FUNDS PAYMENTS. If for any reason whatsoever, any two or more payments be check from Tenants to Landlord for Rent are dishonored and returned unpaid, thereafter Landlord may, at Landlord's sole option, upon written notice to Tenant, require that all future payments of Rent for the remaining term of the Lease must be made by cash, certified check, casher's check, or money order ("Good Funds") and that the delivery of Tenants personal or corporate check will no longer constitute payment of Rent under this Lease provide, however if after twelve (12) consecutive timely payments of Rent in Good funds as provided herein, Tenant is not in Default hereunder. Tenant may resume paying Rent by personal or corporate ones so long as any such check thereafter is not dishonored and returned unpaid. Any acceptance by Landlord of a payment for Rent by Tenant's personal or corporate check thereafter shall not be construed as a waiver of Landlord's right to insist upon payment by Good Funds as set forth herein. ARTICLE FOUR: TAXES 4.01. PAYMENT BY LANDLORD. Tenant shall pay the real estate taxes on the Demised Premises accruing during the Lease Term. 4.02. Tenant shall pay such real estate taxes and, upon request, furnish Landlord with written evidence of payment before the same becomes delinquent. If Tenant fails to timely pay such real estate taxes, Landlord may pay the taxes, whereupon Tenant shall, upon demand, reimburse Landlord for the amount thereof, plus 5% of the amount. 4.03. JOINT ASSESSMENT. If the real estate taxes are assessed against the Demised Premises jointly with other property not constituting a part of the Demised Premises, the real estate taxes applicable to the Demised Premises shall be equal to the amount bearing the same proportion to the aggregate assessment that the total square feet of building area in the Demised Premises bears to the total square feet of building area included in the joint assessment. 4.04. PERSONAL PROPERTY TAXES. Tenant shall pay all taxes assessed against trade fixtures, furnishings, equipment, inventory, products, or any other personal property belonging to Tenant. Tenant shall use reasonable efforts to have Tenant's property taxes separately from the Demised Premises If any of Tenant's property is taxes with the Demised Premises, Tenant shall pay the taxes for its property to Landlord within fifteen (15) days after Tenant receives a written statement from Landlord for the property taxes. ARTICLE FIVE: INSURANCE AND INDEMNITY 5.01. INSURANCE. During the Lease Term, Tenant shall maintain policies of property insurance naming Landlord as the named insured covering loss of or damage to the Demised Premises in an amount or percentage of replacement value as Landlord deems reasonable in relation to the age, location, type of construction and physical condition of the Demised Premises and the availability of insurance at reasonable rates. The policies shall provide protection against all Perils included within the classification of fire and extended coverage and providing such coverage and insuring against such perils as reasonably required by Landlord, including, without limitation, business income and rental insurance. Landlord may, at Landlord's option, obtain insurance coverage for tenant's fixtures, equipment or building improvements installed by Tenant in or on the Demised Premises. Tenant shall, at Tenant's expense, maintain insurance on its fixtures, equipment and building improvements as Tenant deems necessary to protect Tenant's interest. Tenant shall not do or permit to be done anything which invalidates any insurance policies. Tenant shall deliver a copy of the policy or certificate of insurance (or a renewal) to Landlord prior to the Commencement Date and prior to the expiration of the policy during the Lease Term If Tenant fails to maintain the policy, Landlord may elect to maintain the insurance at Tenant's expense which Tenant shall reimburse to Landlord upon demand. 5.02. INCREASE IN PREMIUMS. Tenant shall not permit any operation or activity to be conducted, or storage or use of any volatile or nay other materials, on or about the Demised Premises that would cause suspension or cancellation of any fire and extended coverage insurance policy, without the prior written consent of Landlord. If Tenant's use and occupancy of the Demised Premises causes an increase in the premiums for any fire and extended coverage insurance policy. Tenant shall pay, the amount of the increase. Page 3 4 5.04. INDEMNITY. Landlord shall not be liable to Tenant or to Tenant's employees, agents, invitees or visitors, or to any other person, for any injury to persons or damage to property on or about the Demised Premises or any adjacent area owned by Landlord caused by the negligence or misconduct of Tenant, Tenant's employees, subtenants, agents, licensees or concessionaires or any other person entering the Demised Premises under express or implied invitation of Tenant, or arising out of the use of the Demised Premises by Tenant and the conduct of Tenant's business, or arising out of any breach or default by Tenant in the performance of Tenant's obligations under this Lease; and Tenant hereby agrees to indemnify and hold Landlord harmless from any loss, expense or claims arising out of such damage or injury. Tenant shall not be liable for an injury or damage caused by the negligence or misconduct of Landlord, or Landlord's employes or agents, and Landlord agrees to indemnify and hold Tenant harmless from any loss, expense or damage arising out of such damage or injury. 5.06. WAIVER OF SUBROGATION. Each party to this Lease waives any and every claim which arises or may arise in its favor against the other party during the term of this Lease or any renewal or extension of this Lease for any and all loss of, or damage to, any of its property located within or upon, or constituting a part of, the Demised Premises, which loss or damage is covered by valid and collectible property insurance policies, to the extent that such loss or damage is recoverable under such insurance policies. These mutual waivers shall be in addition to, and not in limitation or derogation of, any other waiver or release contained in this Lease with respect to any loss of, or damage to, property of the parties. Inasmuch as these mutual waivers will preclude the assignment of any aforesaid claim by way of subrogation or otherwise to an insurance company (or any other person), each party hereby agrees to give immediately to each insurance company (which has issued to such party policies of fire and extended coverage insurance) written notice of the terms of such mutual waivers, and to cause such policies to be properly endorsed to prevent the invalidation of the insurance by reason of these waivers. ARTICLE SIX: USE OF DEMISED PREMISES 6.01. PERMITTED USE. Tenant may use the Demised Premises for the Permitted Use stated in Section 1.09. The parties to this Lease acknowledge that the current use of the Demised Premises or the improvements located on the Demised Premises, or both, may or may not conform to the city zoning ordinance with respect to the permitted use, height, setback requirements, minimum parking requirements, coverage ratio of improvements to total area of land, and other matters which may have a significant economic impact upon the Tenant's intended use of the Demised Premises. Tenant acknowledges that Tenant has or will independently investigate and verify to Tenant's satisfaction the extent of any limitations or non-conforming uses of the Demised Premises. Tenant further acknowledges that Tenant is not relying upon any warranties or representations of Landlord or the Brokers who are participating in the negotiation of this Lease concerning the Permitted Use of the Demised Premises, or with respect to any uses of the improvements located on the Demised Premises. 6.02. COMPLIANCE WITH LAW. Tenant shall comply with all governmental laws, ordinances and regulations applicable to the use of the Demised Premises, and shall promptly comply with all governmental orders and directives for the correction, prevention and abatement of nuisances and other activities in or upon, or connected with the Demised Premises, all at Tenant's sole expense, including any expense or cost resulting from the construction or installation of fixtures and improvements or other accommodations for handicapped or disabled persons required for compliance with governmental laws and regulations, including but not limited to the Texas Architectural Barriers Act (Article 9102 and any successor statute) and the Americans with Disabilities Act (the "ADA"). To the extent any alterations to the Demised Premises are required by the ADA or other applicable laws or regulations, Tenant shall bear the expense of the alterations. To the extent any alterations to areas of the Property outside the Demised Premises are required by Title III of the ADA or other applicable laws or regulations (for "path of travel" requirements or otherwise), Landlord shall bear the expense of the alterations. Page 4 5 6.04. SIGNS. Without the prior written consent of Landlord, not to be unreasonably withheld, Tenant may not place any signs, ornaments or other objects upon the Demised Premises or on the Property, (other than signs existing as of the Commence Date) including but not limited to the roof or exterior of the building or other improvements on the Property, or paint or otherwise decorate or deface the exterior of the building. Any signs installed by Tenant must conform with applicable laws, deed restrictions on the Property, and other applicable requirements. Tenant must remove all signs, decorations and ornaments at the expiration or termination of this Lease and must repair any damage and close any holes caused by the removal. 6.05. UTILITY SERVICES. Tenant shall pay the cost of all utility services, including but not limited to initial connection charges, all charges for gas, water, sewerage, storm water disposal, communications and electricity used on the Demised Premises, and for replacing all broken or burned-out electric lights, lamps and tubes. 6.06. LANDLORD'S ACCESS. Landlord and Landlord's agents shall have the right to, during normal business hours and upon reasonable advance notice, and without unreasonably interfering with Tenant's business, enter the Demised Premises: (a) to inspect the general condition and state of repair of the Demised Premises, (b) to make repairs required or permitted under this Lease, (c) to show the Demised Premises or the Property to any prospective tenant or purchaser, and (d) for any other reasonable purpose. If Tenant changes the locks on the Demised Premises, Tenant must provide Landlord with a copy of each separate key. During the final one hundred fifty (150) days of the Lease Term, Landlord and Landlord's agents may erect and maintain on or about the Demised Premises signs advertising the Demised Premises for lease or for sale. 6.07. POSSESSION. If Tenant pays the rent, properly maintains the Demised Premises, and complies with all other terms of this Lease, Tenant may occupy and enjoy the Demised Premises for the full Lease Term, subject to the provisions of this Lease. 6.08. EXEMPTIONS FROM LIABILITY. Landlord shall not be liable for any damage or injury to the persons, business (or any loss of income), goods, inventory, furnishings, fixtures, equipment, merchandise or other property of Tenant, Tenant's employees, invitees, customers or any other person in or about the Demised Premises, whether the damage or injury is caused by or results from: (a) fire, steam, electricity, water, gas or wind; (b) the breakage, leakage, obstruction or other defects of pipes, sprinklers, wires, appliances, plumbing, air conditioning or lighting fixtures or any other cause; (c) conditions arising on or about the Demised Premises or upon other portions of any building of which the Demised Premises is a part, or from other sources or places; or (d) any act or omission of any other tenant of any building on the Property. Landlord shall not be liable for any damage or injury even though the cause of or the means of repairing the damage or injury are not accessible to Tenant. The provisions of this Section 6.08 shall not, however, exempt Landlord from liability for Landlord's gross negligence or willful misconduct. ARTICLE SEVEN: PROPERTY CONDITION, MAINTENANCE, REPAIRS AND ALTERATIONS 7.02. ACCEPTANCE OF DEMISED PREMISES. Tenant acknowledges that: (a) a full and complete inspection of the Demised Premises and adjacent common areas has been made by Tenant, and (b) as a result of such inspection, Tenant has taken possession of the Demised Premises and accepts the Demised Premises in its "As Is" condition. 7.03. MAINTENANCE AND REPAIR. Landlord shall be under no obligation to perform any repair, maintenance or management service in the Demised Premises or adjacent common areas. Tenant shall be fully responsible, at its expense, for all repair, maintenance and management services. Page 5 6 B. Tenant's Obligation. (1) Subject to the provisions of Article Eight (Damage or Destruction) and Article Nine (Condemnation), Tenant shall, at all times, keep all portions of the Demised Premises in good order, condition and repair, ordinary wear and tear excepted, including but not limited to maintenance, repairs and all necessary replacements of the windows, plate glass, doors, overhead doors, heating system, ventilating equipment, air conditioning equipment, electrical and lighting systems, fire protection sprinkler system, dock levelers, elevators, interior and exterior plumbing, the interior of the Demised Premises in general, pest control and extermination, down spouts, gutters, paving, railroad siding, care of landscaping and regular mowing of grass, the roof, skylights, foundation, or structural components and exterior of the Demised Premises. If Tenant fails to maintain and repair the Property as required by this Section after notice and 30-days opportunity to cure, Landlord may, on ten (10) days' prior written notice, enter the Demised Premises and perform the maintenance or repair on behalf of Tenant, except that no notice is required in case of emergency, and Tenant shall reimburse Landlord immediately upon demand for all costs incurred in performing the maintenance or repair, plus a reasonable service charge. (2) HVAC Service. Tenant shall, at Tenant's own cost and expense, enter into a regularly scheduled preventative maintenance and service contract for all refrigeration, heating, ventilating, and air conditioning systems and equipment within the Demised Premises during the Lease Term. If Tenant fails to enter into such a service contract reasonably acceptable to Landlord, after notice and 30-days opportunity to cure, Landlord may do so on Tenant's behalf and Tenant agrees to pay Landlord the cost and expense thereof, plus a reasonable service charge, regularly upon demand. 7.04. Alterations, Additions and Improvements. Tenant shall not make any structural alterations, additions or improvements to the Demised Premises without the prior written consent of Landlord, which consent shall not be unreasonably withheld and which consent shall not be withheld for any such structural alterations, additions or improvements which cost in the aggregate no more than $50,000 in any given lease year. Consent for non-structural alterations, additions or improvements shall not be unreasonably withheld by Landlord. Tenant may erect or install trade fixtures, shelves, bins, machinery, heating, ventilating and air conditioning equipment and, provided that Tenant complies with all applicable governmental laws, ordinances, codes, and regulations. At the expiration or termination of this Lease, Tenant shall, subject to the restrictions of Section 7.05 below, have the right to remove items installed by Tenant, provided Tenant is not in default at the time of the removal of the items, repair in a good and workmanlike manner any damage caused by the installation or removal. Tenant shall pay for all costs incurred or arising out of alterations, additions or improvements in or to the Demised Premises and shall not permit any mechanic's or materialman's lien to be filed against the Demised Premises or the Property. Upon request by Landlord, Tenant shall delivery to Landlord proof of payment reasonably satisfactory to Landlord of all costs incurred or arising out of any alterations, additions or improvements. 7.05. Condition upon Termination. Upon the expiration or termination of this Lease, Tenant shall surrender the Demised Premises to Landlord broom clean and as good a same condition as received, except for ordinary wear and tear which Tenant is not otherwise obligated to remedy under any provision of this Lease. Tenant shall not be obligated to repair any damage which Landlord is required to repair under Article Eight (Damage or Destruction). In addition, Landlord may require Tenant to remove any structural alterations, additions or improvements (whether or not made with Landlord's consent) prior to the expiration or termination of this Lease and to restore the Demised Premises to its prior condition, all at Tenant's expense. All alterations, additions and improvements which Landlord has not required Tenant to remove shall become Landlord's property and shall be surrendered to Landlord upon the expiration or termination of this Lease. In no event, however, shall Tenant remove any of the following materials or equipment without Landlord's prior written consent: (i) electrical wiring or power panels; (ii) lighting or lighting fixtures; (iii) wall coverings, drapes, blinds or other window coverings; (iv) carpets or other door coverings; (iv) heating, ventilating, or air conditioning equipment; (vi) fencing or security gates; or (vii) any other fixtures, equipment or items which, if removed, would affect the operation or the appearance of the Property. ARTICLE EIGHT: DAMAGE OR DESTRUCTION 8.01. Notice. If any buildings or other improvements situated on the Property are damaged or destroyed by fire, flood, windstorm, tornado or other casualty, Tenant shall immediately give written notice of the damage or destruction to Landlord. 8.02. Partial Damage. If the building or other improvements situated on the Demised Premises are damaged by fire, tornado, or other casualty but not to such an extent that rebuilding or repairs cannot reasonably be completed within one hundred eighty (180) days from the date Landlord receives written notification by Tenant of the occurrence of the damage, this Lease shall not terminate, but Landlord shall, to the extent of insurance proceeds available for such rebuilding and restoration, proceed with reasonable diligence to rebuild or repair the building and other improvements on the Demised Premises (other than leasehold improvements made by Tenant or any assignee, subtenant or other occupant of the Demised Premises) to substantially the condition in which they existed prior to the damage. If the casualty occurs during the final eighteen (18) months of the Lease Term, Landlord shall not be required to rebuild or repair the damage unless Tenant exercises Tenant's renewal option (if any) within fifteen (15) days after the date of receipt by Landlord of the notification of the occurrence of the damage. If Tenant does not exercise its renewal option, or if there is no remaining renewal option, Landlord may, at Landlord's option, terminate this Lease by promptly delivering a written termination notice to Tenant, in which event the Rent shall be abated for the unexpired portion of the Lease Term, effective from the date of receipt by Landlord of the written notification of the damage. To the extent the Demised Premises cannot be occupied (in whole or in part) following the casualty, the Rent payable under this Lease during the period in which the Demised Premises cannot be fully occupied shall be Page 6 7 8.03. Substantial or Total Destruction of the building or other improvements situated in the Demised Premises are substantially or totally destroyed by fire, tornado, or other casualty, and so damaged that rebuilding or repairs cannot reasonably be completed within one hundred days from the date Landlord receives written notification by Tenant of the occurrence of the damage, either Landlord or Tenant may terminate this Lease by promptly delivering a written termination notice to the other party, in which event the monthly installments of Rent shall be abated for the unexpired portion of the Lease Term, effective from the date of the damage or destruction, if neither party terminates this Lease within thirty (30) days after receipt of written notice from Tenant of the damage or destructions, Landlord shall, to the extent of insurance proceeds available for such rebuilding and restoration, proceed with reasonable diligence to rebuild and repair the building and other improvements except that Tenant shall rebuild and repair Tenant's fixtures and improvements in the Demised Premises). To the extent the Demised Premises cannot be occupied in whole or in part following the casualty, the Rent payable under this Lease during the period in which the Demised Premises cannot be fully occupied shall be adjusted equitably. Notwithstanding the foregoing, if Landlord elects to terminate this Lease pursuant to this SECTION 8.03, Tenant may provide written notice to Landlord within ten (10) business days thereafter of Tenant's election to rebuild the Demised Premises, in which event (i) this Lease shall not terminate, (ii) Landlord shall rebuild the Demised Premises in accordance with SECTION 8.03 as if Landlord had not elected to terminate, and (iv) Rent payable under this Lease during the period in which the Demised Premises cannot be fully occupied shall be adjusted equitably. If the damage or destruction occurs during the last 18 months of the Term or of the first Extension, Tenant may not make the foregoing election unless it first exercises the next renewal option. Tenant may not make such election during the last 18 months of the final Extension. ARTICLE NINE: CONDEMNATION If, during the Lease Term or any extension thereof, all or a substantial part of the Demised Premises are taken for any public or quasi-public use under any governmental law, ordinance or regulation or by right or eminent domain, or are conveyed to the condemning authority under threat of condemnation, this Lease shall terminate and the monthly installments of Rent shall be abated during the unexpired portion of the Lease Term, effective from the date of the taking. If less than a substantial part of the Demised Premises is taken for public or quasi-public use under any governmental law, ordinance or regulation, or by right of eminent domain, or is conveyed to the condemning authority under threat of condemnation. Landlord shall promptly, at Landlord's expense, restore and reconstruct the buildings and improvements (other than leasehold improvements made by Tenant or any assignee, subtenant or other occupant of the Demised Premises) situated on the Demised Premises in order to make the same reasonably tenantable and suitable for the use for which the Demised Premises is leased as defined in Section 6.01. The monthly installments of Rent payable under this Lease during the unexpired portion of the Lease Term shall be adjusted equitably. Landlord and Tenant shall each be entitled to receive and retain such separate awards and portions of lump sum awards as may be allocated to their respective interests in any condemnation proceeding. The termination of this Lease shall not affect the rights of the parties to such awards. As used herein, the phrase "less than a substantial part of the Demised Premises" shall mean a part of the Demised Premises that, if taken or after being restored or reconstructed by Landlord, will not prevent Tenant from fully occupying the Demised Premises and conducting its normal business operations therein. ARTICLE TEN: ASSIGNMENT AND SUBLETTING Tenant shall not, without the prior written consent of Landlord, not to be unreasonably withheld, assign this Lease or sublet the Demised Premises or any portion thereof. Any assignment or subletting shall be expressly subject to all terms and provisions of this Lease including the provisions of Section 6.01 pertaining to the use of the Demised Premises. In the event of any assignment or subletting, Cerprobe Corporation shall remain fully liable for the full performance of all Tenant's obligations under this Lease. Tenant shall not assign its rights under this Lease or sublet the Demised Premises without first obtaining a written agreement from the assignee or sublessee whereby the assignee or sublessee agrees to assume the obligations of Tenant under this Lease and to be bound by the terms of this Lease. If an event of default occurs while the Demised Premises is assigned or sublet, Landlord may, at Landlord's option, in addition to any other remedies provided in this Lease or by law, collect directly from the assignee or subtenant all rents becoming due under the terms of the assignment or subletting and apply the rent against any sums due to Landlord under this Lease. No direct collection by Landlord from any assignee or subtenant will release Tenant from Tenant's obligations under this Lease. The following shall be deemed to be reasonable under Paragraph 10 of this Lease hereunder and shall be permitted without the consent of the Landlord: (i) any merger, consolidation or other combination of Tenant with or into another entity, (ii) a sale, assignment, pledge, transfer, exchange or other disposition in a single transaction or in a series of transactions of the stock of Tenant or any entity which directly or indirectly controls Tenant, or (iii) any direct or indirect change in control of Tenant, provided, the surviving entity in any merger, consolidation or other combination or the purchase or other transferee of the stock of Tenant shall assume and agree in writing to perform the obligations of Tenant under this Lease as if it were an assignee or sublessee, and (iv) any assignment or sublease of all or any portion of the Demised Premises to an entity which controls, is controlled by or is under common control with Tenant. As used herein, "control" shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management policies of such person or entity whether through the ownership of voting securities, or other interests, by contract or otherwise. Cerprobe Corporation shall remain fully liable for the full performance of all Tenant's obligations under the Lease. ARTICLE ELEVEN: DEFAULT AND REMEDIES 11.01. Default. Each to the following events is an event of default under this Lease: A. Failure of Tenant to pay any installment of the Rent on the day that it is due or any other sum payable to Landlord under this Lease on the date that it is due and the continuance of such failure for a period of five (5) days after Landlord delivers written notice of the failure to Tenant. This clause shall not be construed to permit or allow a delay in paying Rent beyond the due date and shall not affect Landlord's right to impose a Late Charge as permitted in Section 3.03. B. Failure of Tenant to comply with any term, condition or covenant of this Lease, other than the payment of Rent or other sum of money, and the continuance of that failure for a period of thirty (30) days after Landlord delivers written notice of the failure to Tenant: provided, if the nature of the default is such that it cannot reasonably be cured within such thirty (30) day period, then so long as Tenant has commenced the cure within such thirty (30) day period and is diligently pursuing the same, the cure period shall be extended for such additional time as is reasonably necessary to complete the cure, up to, but not exceeding, an additional thirty (30) days after the end of the initial thirty (30) day cure period. C. Failure of Tenant or any guarantor of Tenant's obligations under this Lease to pay its debts as they become due or an admission in writing of inability to pay its debts, or the making of a general assignment for the benefit of creditors; D. The commencement by Tenant or any guarantor of Tenant's obligations under this Lease of any case, proceeding or other action seeking reorganization, arrangement, adjustment, liquidation, dissolution or composition of it or its debts under any law relating to bankruptcy, insolvency, reorganization or relief of debtors, or seeking appointment of a receiver, trustee, custodian or other similar official for it or for all or any substantial part of its property. E. The commencement of any case, proceeding or other action against Tenant or any guarantor of Tenant's obligations under this Lease seeking to have an order for relief entered against it as debtor, or seeking reorganization, arrangement, adjustment, liquidation, dissolution or composition of it or its debts under any law relating to bankruptcy, insolvency, reorganization or relief of debtors, or seeking appointment of a receiver, trustee, custodian or other similar official for it or for all or any substantial part of its property, and Tenant or any guarantor: (i) fails to obtain a dismissal of such case, proceeding, or other action within sixty (60) days of its commencement; or (ii) converts the case from one chapter of the Federal Bankruptcy Code to another chapter; or (iii) is the subject of an order of relief which is not fully stayed within seven (7) business days after the entry thereof; and Page 7 8 11.02. REMEDIES. Upon the occurrence of any of the events of default listed in Section 11.01, Landlord shall have the option to pursue any one or more of the following remedies without any prior notice or demand. A. Terminate this Lease, in which event Tenant shall immediately surrender the Demised Premises to Landlord. If Tenant fails to so surrender the Demised Premises, Landlord may, without prejudice to any other remedy contained herein which it may have for possession of the Demised Premises or Rent in arrears, enter upon and take possession of the Demised Premises and expel or remove Tenant and any other person who may be occupying the Demised Premises or any part thereof, by force if necessary, without being liable for prosecution or any claim for damages. Tenant shall pay to Landlord on demand the amount of all loss and damage which Landlord may suffer by reason of the termination, whether through inability to re-let the Demised Premises on satisfactory terms or otherwise. B. Enter upon and take possession of the Demised Premises, by force if necessary, without terminating this Lease and without being liable for prosecution or for any claim for damages, and expel or remove Tenant and any other person who may be occupying the Demised Premises or any part thereof. Landlord may re-let the Demised Premises and receive the rent therefor. Tenant agrees to pay to Landlord monthly or on demand from time to time any deficiency that may arise by reason of any such re-letting. In determining the amount of the deficiency, the professional service fees, attorneys' fees, court costs, remodeling expenses and other costs of re-letting shall be subtracted from the amount of rent received under the re-letting. C. Enter upon the Demised Premises, by force if necessary, without terminating this Lease and without being liable for prosecution or for any claim for damages, and do whatever Tenant is obligated to do under the terms of this Lease. Tenant agrees to pay Landlord on demand for expenses which Landlord may incur in thus effecting compliance with Tenant's obligations under this Lease, together with interest thereon at the rate of twelve percent (12%) per annum from the date expended until paid. Unless caused by the gross negligence or willful misconduct of Landlord, Landlord shall not be liable for any damages resulting to Tenant from such action, whether caused by negligence of Landlord or otherwise. E. In addition to the foregoing remedies, Landlord shall have the right to change or modify the locks on the Demised Premises in the event Tenant fails to pay the monthly installment of Rent when due. Landlord shall not be obligated to provide another key to Tenant or allow Tenant to regain entry to the Demises Premises unless and until Tenant pays Landlord all Rent which is delinquent. Tenant agrees that Landlord shall not be liable for any damages resulting to the Tenant from the lockout. At such time that Landlord changes or modifies the lock, Landlord shall post a "Notice of Change of Locks" on the front of the Demises Premises. Such Notice shall state that: (1) Tenant's monthly installment of Rent is delinquent, and therefore, under authority of Section 11.02.E of Tenant's Lease, the Landlord has exercised its contractual right to change or modify Tenant's door locks; (2) The Notice has been posted on the Tenant's front door by a representative of Landlord and Tenant should make arrangements with the representative to pay the delinquent installments of Rent when Tenant picks up the key; and (3) The failure of Tenant to comply with the provisions of the Lease and the Notice and/or tampering with or changing the door lock(s) by Tenant may subject Tenant to legal liability. F. No re-entry or taking possession of the Demised Premises by Landlord shall be construed as an election to terminate this Lease, unless a written notice of that intention is given to Tenant. Notwithstanding any such re-letting or re-entry or taking possession, Landlord may, at any time thereafter, elect to terminate this Lease for a previous default. Pursuit of any of the foregoing remedies shall not preclude pursuit of any other remedies provided by law, nor shall pursuit of any remedy provided in this Lease constitute a forfeiture or waiver of any monthly installment of Rent due to Landlord under this Lease or of any damages accruing to Landlord by reason of the violation of any of the terms, provisions and covenants contained in this Lease. Failure of Landlord to declare any default immediately upon its occurrence, or failure to enforce one or more of Landlord's remedies, or forbearance by Landlord to enforce one or more of Landlord's remedies upon an event of default shall not be deemed or construed to constitute a waiver of default or waiver of any violation or breach of the terms of this Lease. Pursuit of any one of the above remedies shall not preclude pursuit by Landlord of any of the other remedies provided in this Lease. The loss or damage that Landlord may suffer by reason of termination of this Lease or the deficiency from any re-letting as provided for above shall include the expense of repossession and any repairs or remodeling undertaken by Landlord following possession. If Landlord terminates this Lease at any time for any default, in addition to other Landlord's remedies, Landlord may recover from Tenant all damages Landlord may incur by reason of the default, including the cost of recovering the Demised Premises and the Rent then remaining unpaid. 11.03. NOTICE OF DEFAULT. Tenant shall give written notice of any failure by Landlord to perform any of Landlord's obligations under this Lease to Landlord and to any ground lessor, mortgagee or beneficiary under any deed of trust encumbering the Demised Premises whose name and address have been furnished to Tenant in writing. Landlord shall not be in default under this Lease unless Landlord (or such ground lessor, mortgage or beneficiary) fails to cure the nonperformance within thirty (30) days after receipt of Tenant's notice. However, if the nonperformance reasonably requires more than thirty (30) days to cure, Landlord shall not be in default if the cure is commenced within the 30-day period and is thereunder diligently pursued to completion. 11.04. LIMITATION OF LANDLORD'S LIABILITY. As used in this Lease, the term "Landlord" means only the current owner or owners of the fee title to the Demised Premises or the leasehold estate under a ground lease of the Demised Premises at the time in question. Each Landlord is obligated to perform the obligations of Landlord under this Lease only during the time such Landlord owns such interest or title. Any Landlord who transfers its title or interest is relieved of all liability with respect to the obligations of Landlord under this lease accruing on or after the date of transfer, and Tenant agrees to recognize the transferee as Landlord under this Lease subject to Article 10 hereof. However, each Landlord shall deliver to its transferee the Security Deposit held by Landlord if such Security Deposit has not then been applied under the terms of this Lease. Page 8 9 ARTICLE TWELVE: LANDLORD'S CONTRACTUAL LIEN In addition to the statutory Landlord's lien, Tenant hereby grants to Landlord a security interest to secure payment of all Rent and other sums of money becoming due under this Lease from Tenant, upon all inventory, goods, wares, equipment, fixtures, furniture and all other personal property of Tenant situated in or upon the Demised Premises, together with the proceeds from the sale or lease thereof. Tenant may not remove such property without the consent of Landlord until all Rent in arrears and other sums of money then due to Landlord under this Lease have first been paid and discharged. Upon the occurrence of an event of default, Landlord may, in addition to any other remedies provided in this Lease or by law, enter upon the Demised Premises and take possession of any and all goods, wares, equipment, fixtures, furniture and other personal property of Tenant situated on the Demised Premises without liability for trespass or conversion, and sell the property at public or private sale, with or without having the property at the sale, after giving Tenant reasonable notice of the time and place of any such sale. Unless otherwise required by law, notice to Tenant of the sale shall be deemed sufficient if given in the manner prescribed in this Lease at least ten (10) days before the time of the sale. Any public sale made under this Article shall be deemed to have been conducted in a commercially reasonable manner if held on the Demised Premises or where the property is located, after the time, place and method of sale and a general description of the types of property to be sold have been advertised in a daily newspaper published in the county where the Demised Premises is located for five (5) consecutive days before the date of the sale. Landlord or its assigns may purchase at a public sale and, unless prohibited by law, at a private sale. The proceeds from any disposition dealt with in this Article, less any and all expenses connected with the taking of possession, holding and selling of the property (including reasonable attorneys' fees and legal expenses), shall be applied as a credit against the indebtedness secured by the security interest granted herein. Any surplus shall be paid to Tenant or as otherwise required by law, and Tenant shall promptly pay any deficiencies. The statutory lien for rent is expressly reserved; the security interest herein granted is in addition and supplementary thereto. Provided Tenant is not in default under any of the terms of this Lease, upon written request by Tenant Landlord shall deliver a written subordination of Landlord's statutory and contractual liens to any liens and security interests securing any financing of Tenant. Landlord shall not unreasonably withhold or delay the delivery of Landlord's written subordination. ARTICLE THIRTEEN: PROTECTION OF LENDERS 13.01. SUBORDINATION AND ATTORNMENT. Landlord shall have the right to subordinate this Lease to any existing future ground Lease, deed of trust or mortgage encumbering the Demised Premises (a "mortgage"), and advances made on the security thereof and any renewals, modifications, consolidations, replacements or extensions thereof, whenever made or recorded. Landlord's right to obtain such a subordination is subject to Landlord's providing Tenant with a written Subordination, Non-disturbance and Attornment Agreement from the ground lessor, beneficiary or mortgagee wherein Tenant's right to peaceable possession of the Demised Premises during the Lease Term shall not be disturbed if Tenant pays the Rent and performs all of Tenant's obligations under this Lease and is not otherwise in default, in which case Tenant shall attorn to the transferee of or successor to Landlord's interest in the Demised Premises and recognize the transferee or successor as Landlord under this Lease, and further providing that such lessor, beneficiary or mortgagee shall at all times recognize Tenant's rights under this Lease, including making insurance and condemnation proceeds available to Landlord and/or Tenant for reconstruction or repair of the Demised Premises after a casualty or condemnation so long as this Lease is not terminated by Landlord or Tenant as provided in Articles 8 or 9 hereof. If any ground lessor, beneficiary or mortgagee elects to have this Lease superior to the lien of its ground lease, deed of trust or mortgage and gives Tenant written notice thereof, this Lease shall be deemed superior to the ground lease, deed of trust or mortgage whether this Lease is dated prior or subsequent to the date of the ground lease, deed of trust or mortgage or the date of recording thereof, and further providing that such lessor, beneficiary or mortgagee shall at all times recognize Tenant's rights under this Lease, including making insurance and condemnation proceeds available to Landlord and/or Tenant for reconstruction or repair of the Demised Premises after a casualty or condemnation so long as this Lease is not terminated by Landlord or Tenant as provided in Articles 8 or 9 hereof. 13.02. SIGNING OF DOCUMENTS. Tenant shall sign and deliver any reasonable instruments or documents necessary or appropriate to evidence any attornment or subordination or any agreement to attorn or subordinate. 13.03. ESTOPPEL CERTIFICATES. A. Upon Landlord's written request, Tenant shall execute and deliver to Landlord a written statement certifying (to the extent accurate) (1) whether Tenant is an assignee or subtenant; (2) the expiration date of the Lease; (3) the number of renewal options under the lease and the total period of time covered by the renewal option(s); (4) that none of the terms or provisions of the Lease have been changed since the original execution of the Lease, except as shown on attached amendments or modifications; (5) that no default by Landlord exists under the terms of the Lease (or if Landlord is claimed to be in default, stating why); (6) that the Tenant has no claim against the landlord under the Lease and has no defense or right of offset against collection of rent or other charges accruing under the Lease; (7) the amount and date of the last payment of Rent; (8) the amount of any security deposits and other deposits, if any; and (9) the identity and address of any guarantor of the lease. Tenant shall deliver the statement to Landlord within ten (10) days after Landlord's request. Landlord may forward any such statement to any prospective purchaser or lender of the Demised Premises. The purchaser or lender may rely conclusively upon the statement as true and correct. B. If Tenant does not deliver the written statement to Landlord within the twenty (20) day period, Landlord, and any prospective purchaser or lender, may conclusively presume and rely upon the following facts: (1) that the terms and provisions of this Lease have not been changed except as otherwise represented by Landlord; (2) that this Lease has not been canceled or terminated except as otherwise represented by Landlord; (3) that not more than one monthly installment of Base Rent and other charges have been paid in advance; (4) there are no claims against Landlord nor any defenses or rights of offset against collection of Rent or other charges; and (5) that Landlord is not in default under this Lease. In such event, Tenant shall be estopped from denying the truth of the presumed facts. 13.04. TENANT'S FINANCIAL CONDITION. Within ten (10) days after written request from Landlord and no more frequently than once every twelve months, Tenant shall deliver to Landlord financial statements as are reasonably required by Landlord in Tenant's possession to verify the net worth of Tenant, or any assignee, subtenant, or guarantor of Tenant. In addition, Tenant shall deliver to any lender designated by Landlord any financial statements required by the lender to facilitate the financing or refinancing of the Demised Premises. All financial statements shall be confidential and shall be used only for the purposes set forth in this Lease. Page 9 10 ARTICLE FOURTEEN: ENVIRONMENTAL REPRESENTATIONS AND INDEMNITY 14.01. TENANT'S COMPLIANCE WITH ENVIRONMENTAL LAWS. Tenant, at Tenant's expense, shall comply with all laws, rules, orders, ordinances, directions, regulations and requirements of Federal, State, county and municipal authorities pertaining to Tenant's use of the Property and with the recorded covenants, conditions and restrictions, regardless of when they become effective, including, without limitation, all applicable Federal, State and local laws, regulations or ordinances pertaining to air and water quality. Hazardous Materials (as defined in Section 14.05), waste disposal, air emissions and other environmental matters, all zoning and other land use matters, and with any direction of any public officer or officers, pursuant to law, which impose any duty upon Landlord or Tenant with respect to the use or occupancy of the Property. 14.02. TENANT'S INDEMNIFICATION. If the presence of Hazardous Materials on the Property caused or permitted by Tenant results in contamination of the Property or any other property, or if contamination of the Property or any other property by Hazardous Materials otherwise occurs for which Tenant is legally liable to Landlord for damage resulting therefrom, then Tenant shall indemnify, defend and hold Landlord harmless from any and all claims, judgments, damages, penalties, fines, costs, liabilities or losses (including, without limitation, diminution in value of the Property, damages for the loss or restriction on use of rentable or unusable space or of any amenity or appurtenance of the Property, damages arising from any adverse impact on marketing of building space or land area, sums paid in settlement of claims, reasonable attorneys' fees, court costs, consultant fees and expert fees) which arise during or after the Lease Term as a result of the contamination. This indemnification of Landlord by Tenant includes, without limitation, costs incurred in connection with any investigation of site conditions or any clean-up, remedial work, removal or restoration work required by any Federal, State or local government agency because of Hazardous Materials present in the soil or ground water on or under the Property. Without limiting the foregoing, if the presence of any Hazardous Materials on the Property (or any other property) caused or permitted by Tenant results in any contamination of the Property, Tenant shall promptly take all actions at Tenant's sole expense as are necessary to return the Property to the condition existing prior to the introduction of any such Hazardous Materials, provided that Landlord's approval of such actions is first obtained. The foregoing indemnity shall survive the expiration or termination of this Lease. 14.05. DEFINITION. For purposes of this Lease, the term "Hazardous Materials" means any one or more pollutant, toxic substance, hazardous waste, hazardous material, hazardous substance, solvent or oil as defined in or pursuant to the Resource Conservation and Recovery Act, as amended, the Comprehensive Environmental Response, Compensation and Liability Act, as amended, the Federal Clean Water Act, as amended, or any other Federal, State or local environmental law, regulation, ordinance, or rule, whether existing as of the date of this Lease or subsequently enacted. 14.06. SURVIVAL. The representations and indemnities contained in this Article 14 shall survive the expiration or termination of this Lease. Page 10 11 ARTICLE SIXTEEN: MISCELLANEOUS 16.01. Disclosure. Landlord and Tenant understand that a real estate broker is qualified to advise on matters concerning real estate and is not expert in matters of law, tax, financing, surveying, hazardous materials, engineering, construction, safety, zoning, land planning, architecture or the ADA. The Brokers hereby advise Tenant to seek expert assistance on such matters. Brokers do not investigate a property's compliance with building codes, governmental ordinances, statutes and laws that relate to the use or condition of a property and its construction, or that relate to its acquisition. If Brokers provide names of consultants or sources for advice or assistance, Tenant acknowledges that the Brokers do not warrant the services of the advisors or their products and cannot warrant the suitability of property to be acquired or leased. Furthermore, the Brokers do not warrant that the Landlord will disclose any or all property defects, although the Brokers will disclose to Tenant any actual knowledge possessed by Brokers regarding defects of the Demised Premises and the Property. In this regard, Tenant agrees to make all necessary and appropriate inquiries and to use diligence in investigating the Demised Premises and the Property before consummating this Lease. Landlord and Tenant hereby agree to indemnify, defend, and hold the Brokers harmless of and from any and all liabilities, claims, debts, damages, costs, or expenses, including but not limited to reasonable attorneys' fees and court costs, related to or arising out of or in any way connected to representations concerning matters properly the subject of advice by experts. In addition, to the extent permitted by applicable law, the Brokers' liability for errors or omissions, negligence, or otherwise, is limited to the return of the Fee, if any, paid to the Brokers pursuant to this Lease. Page 11 12 16.02 FORCE MAJEURE. If performance by Landlord or Tenant of any term, condition, or covenant in this Lease or prevented by any Act of God, strike, lockout, shortage of material or labor, restriction by any governmental authority, civil riot or any other cause not within the control of Landlord or Tenant, the period for performance of the term, condition or covenant shall be extended for a period equal to the period Landlord or Tenant is so delayed or prevented. 16.03 INTERPRETATION. The captions of the Articles of Sections of this Lease are to assist the parties in reading this Lease and are not a part of the terms or provisions of this Lease. Tenant shall be responsible for the conduct, acts and omissions of Tenant's agents, employees, customers, contractors, invitees, agents, successors or others using the Demised Premises with Tenant's expressed or implied permission. Whenever required by the context of this Lease, the singular shall include the plural and the plural shall include the singular, and the masculine, feminine and neuter genders shall each include the other. 16.04 WAIVERS. All waivers to provisions of this Lease must be in writing and signed by the waiving party. Landlord's delay or failure to enforce any provisions of this Lease or its acceptance of late installments of Rent shall not be a waiver and shall not prevent Landlord from enforcing that provision or any other provision of this Lease in the future. No statement on a payment check from Tenant or in a letter accompanying a payment check shall be binding on Landlord. Landlord may, with or without notice to Tenant, negotiate, cash, or endorse the check without being bound to the conditions of any such statement. 16.05 SEVERABILITY. A determination by a court of competent jurisdiction that any provision of this Lease is invalid or unenforceable shall not cancel or invalidate the remainder of that provision or this Lease, which shall remain in full force and effect. 16.06 JOINT AND SEVERAL LIABILITY. All parties signing this Lease as Tenant shall be jointly and severally liable for all obligations of Tenant. 16.07 AMENDMENTS OR MODIFICATIONS. This Lease is the only agreement between the parties pertaining to the lease of the Demised Premises and no other agreements are effective unless made a part of this Lease. All amendments to this Lease must be in writing and signed by all parties. Any other attempted amendments shall be void. 16.08 NOTICES. All notices and other communications required or permitted under this Lease must be in writing and shall be deemed delivered, whether actually received or not, on the earlier of: (i) actual receipt if delivered in person or by messenger with evidence of delivery; or (ii) receipt of an electronic facsimile transmission ("Fax") with confirmation of delivery; or (iii) upon deposit in the United States Mail as required below. Notices may be transmitted by Fax to the Fax telephone numbers specified in Article One on the first page of this Lease, if any. Notices delivered by mail must be deposited in the U.S. Postal Service, first class postage prepaid, and properly addressed to the intended recipient as set forth in Article One. After possession of the Demised Premises by Tenant, Tenants's address for notice purposes will be the address of the Demised Premises unless Tenant notifies Landlord in writing of a different address to be used for that purpose. Any party may change its address for notice by delivering written notice of its new address to all other parties in the manner set forth above. 16.09 ATTORNEYS' FEES. If on account of any breach or default by any party to this Lease in its obligations to any other party to this Lease becomes necessary for a party to employ an attorney to enforce or defend any of its rights or remedies under this Lease, the non-prevailing party agrees to pay the prevailing party its reasonable attorneys' fees and court costs, if any, whether or not suit is instituted in connection with the enforcement or defense. 16.10 VENUE. All obligations under this Lease shall be performed and payable in the county in which the Property is located. The laws of the State of Texas shall govern this Lease. 16.11 SURVIVAL. All obligations of any party to this Lease which are not fulfilled at the expiration or the termination of this Lease shall survive such expiration or termination as continuing obligations of the party. 16.12 BINDING EFFECT. This Lease shall inure to the benefit of, and be binding upon, each of the parties to this Lease and their respective heirs, representatives, successors and assigns. However, Landlord shall not have any obligation to Tenant's successors or assigns unless the rights or interests of the successors or assigns are acquired in accordance with the terms of this Lease. 16.13 CONSULT AN ATTORNEY. THIS LEASE IS AN ENFORCEABLE, LEGALLY BINDING AGREEMENT. READ IT CAREFULLY. The brokers involved in the negotiation of this Lease cannot give you legal advice. The parties to this Lease acknowledge that they have been advised by the Brokers to have this Lease reviewed by competent legal counsel of their choice before signing this Lease. By executing this Lease, Landlord and Tenant each agree to the provisions, terms, covenants and conditions contained in this Lease. Page 12 13 ARTICLE SEVENTEEN: ADDITIONAL PROVISIONS 5.03 Liability Insurance. During the Lease Term, Tenant shall maintain at Tenant's expense, comprehensive general liability insurance (including personal injury, liability, premises, operation, property damage, independent contractors and broad form contractual in support of the indemnification's of Landlord by Tenant under this Lease business interruption insurance, contractual liability insurance, worker's compensation and employer's liability insurance and comprehensive catastrophic liability, all maintained with companies, on forms and in such amounts as Landlord may, from time to time, reasonably require and endorsed to include Landlord as an additional insured, with the premiums being fully paid on or before the due dates, insuring Landlord against liability arising out of the ownership, use, occupancy, or maintenance of the Demised Premises. The initial amounts of the insurance must be at least $1,000,000 for each Occurrence, $2,000,000 General Aggregate per policy year, $100,000 Property Damage for the Demised Premises, and $10,000 Medical Expense; plus a $5,000,000 commercial general liability umbrella; and shall be subject to periodic increases based upon economic factors as Landlord may determine, in Landlords discretion, exercised in good faith. However, the amounts of the insurance shall not limit Tenant's liability nor relieve Tenant of any obligations under this Lease. The policies must contain cross-liability endorsements, if applicable, and must insure Tenant's performance of the indemnity provisions of Section 5.04. The policies must contain a provision which prohibits cancellation or modification of the policy except upon thirty (30) days' prior written notice to Landlord. Tenant shall deliver a copy of the policy or certificate (or a renewal) to Landlord prior to the Commencement Date and prior to the expiration of the policy during the Lease Term. If Tenant fails to maintain the policy, Landlord may elect to maintain the insurance at Tenant's expense, which Tenant shall reimburse to Landlord upon demand. Tenant may, at Tenant's expense maintain other liability insurance at Tenant deems necessary. The rental rate shall increase at 2% as follows: 360,528.00 ($30,044.00 per month) Commencement Date - 9/30/01 367,738.56 ($30.644.88 per month) 10/1/01 - 9/30/02 375,093.36 ($31,257.78 per month) 10/1/02 - 9/30/03 382,595.20 ($31,882.93 per month) 10/1/03 - 9/30/04 390,247.10 ($32,520.59 per month) 10/1/04 - 9/30/05 398,052.00 ($33,171.00 per month) 10/1/05 - 9/30/06 406,013.00 ($33,834.42 per month) 10/1/06 - 9/30/07 414,133.32 ($34,511.11 per month) 10/1/07 - 9/30/08 422,416.01 ($35,201.33 per month) 10/1/08 - 9/30/09 430,864.33 ($35,905.36 per month) 10/1/09 - 9/30/10 430,864.33 ($35,905.36 per month) 10/1/10 - 9/30/11 430,864.33 ($35,905.36 per month) 10/1/11 - 9/30/12 Total: 4,809,409
LANDLORD SJS Sanden, L.P., By: SJS Sanden GP LLC - ----------------------------------------- By [Signature]: /s/ David S.P. Steiner ---------------------- Name: David S.P. Steiner Title: Vice President Date of Execution: 9/12/00 TENANT Cerprobe - ----------------------------------------- By [Signature]: /s/ Paul R. Tullis ---------------------- Name: Paul Tullis Title: Vice President Facilities Date of Execution: ---------------------- PRINCIPAL BROKER - ----------------------------------------- By [Signature]: ---------------------- Name: Broker ---------------------------------- Title: ---------------------------------- COOPERATING BROKER - ----------------------------------------- By [Signature]: ---------------------- Name: Broker ---------------------------------- Title: ---------------------------------- Copyright Notice: This form is provided for the use of members of the North Texas Commercial Association of Realtors, Inc. Permission is hereby granted to make limited copies of this form for use in a particular Texas real estate transaction. Contact the NTCAR office to confirm that you are using the current version of this form. Page 13 14 NORTH TEXAS COMMERCIAL ASSOCIATION OF REALTORS(R) ADDENDUM B TO LEASE RENEWAL OPTIONS DEMISED PREMISES/ADDRESS: 10365 Sanden Drive, Dallas, Dallas County, Texas A. OPTION TO EXTEND TERM. Landlord grants to Tenant two (2) option(s) (the "Option") to extend the Lease Term for an additional term of sixty (60) months each (the "Extension"), on the same terms, conditions and covenants set forth in this Lease, except as provided below. Each Option may be exercised only by written notice delivered to the Landlord no earlier than one hundred eighty (180) days before, and no later than ( ) days before, the expiration of the Lease Term or the preceding Extension of the Lease Term, whichever is applicable. If Tenant fails to deliver Landlord written notice of the exercise of an Option within the prescribed time period, such Option and any succeeding Options shall lapse, and there shall be no further right to extend the Lease Term. Each Option may only be exercised by Tenant on the express condition that, at the time of the exercise, Tenant is not in default under any of the provisions of this Lease. The foregoing Options are personal to Tenant and may not be exercised by an assignee or subtenant without Landlord's written consent. B. CALCULATION OF RENT. The Base Rent during the Extension(s) shall be determined by one of the following methods [check one]: [ ] 1. Consumer Price Index Adjustment. The monthly Base Rent during the Extension shall be determined by multiplying the monthly installment of Base Rent during the last month of the Lease Term by a fraction determined as follows: a. The numerator shall be the Latest Index which means either [check one]: [ ] (1) the Index published for the nearest calendar month preceding the first day of the Extension, or [ ] (2) the Index for the month of preceding the Extension. b. The denominator shall be the Initial Index which means either [check one]: [ ] (1) the Index published for the nearest calendar month preceding the Commencement Date, or [ ] (2) the Index for the month of preceding the Commencement Date. [If no blanks are filled in above, the choice (1) including the phrase, "the nearest calendar month preceding," shall apply.] c. The Index means the Consumer Price Index (CPI) for All Urban Consumers (All Items) U.S. City Average (unless this box is checked [ ] in which case the CPI for the Dallas/Fort Worth Consolidated Metropolitan Statistical Area shall be used) published by the U.S. Department of Labor, Bureau of Labor Statistics (Base Index of 1982-84=100). If the Index is discontinued or revised, the new index or computation which replaces the Index shall be used in order to obtain substantially the same result as would have been obtained if it had not been discontinued or revised. If such computation would reduce the Rent for the particular Extension, it shall be disregarded, and the Rent during the immediately preceding period shall apply instead. [ ] 2. FAIR MARKET RENTAL VALUE. The Base Rent during the Extension shall be the Fair market Rental determined as follows: a. The "Fair Market Rental" of the Demised Premises means the price that a ready and willing tenant would pay as of the commencement of the Extension as monthly rent to a ready and willing landlord of demised premises comparable to the Demised Premises if the property were exposed for lease on the open market for a reasonable period of time, and taking into account the term of the Extension, the amount of improvements made by Tenant as its expense, the creditworthiness of the Tenant, and all of the purposes for which the property may be used and not just the use proposed to be made of the Demised Premises by Tenant. Upon proper written notice by Tenant to Landlord of Tenant's election to exercise the renewal Option, Landlord shall within fifteen (15) days thereafter notify Tenant in writing of Landlord's proposed Fair Market Rental amount and Tenant shall thereupon notify Landlord of Tenant's acceptance or rejection of Landlord's proposed amount. Failure of Tenant to reject Landlord's Fair Market Rental amount within fifteen (15) days after receipt of Landlord's notice shall be deemed Tenant's acceptance of Landlord's proposed Fair Market Rental amount. b. If Landlord and Tenant have not been able to agree on the Fair Market Rental amount prior to the date the option is required to be exercised, the rent for the Extension shall be determined as follows: Within thirty (30) days following the exercise of the option, Landlord and Tenant shall endeavor in good faith to agree upon a single Appraiser (defined below). If Landlord and Tenant are unable to agree upon a single Appraiser within the thirty day period, each shall then appoint one Appraiser by written notice to the other, given within ten (10) days after the thirty day period. Within ten (10) days after the two Appraisers are appointed, the two Appraisers shall appoint a third Appraiser. If either Landlord or Tenant fails to appoint its Appraiser within the prescribed time period the single Appraiser appointed shall determine the Fair Market Rental amount of the Demised Premises. Each party shall bear the cost of the appraiser appointed by it and the parties shall share equally the cost of the third appraiser. The term "Appraiser" means a State Certified Real Estate Appraiser licensed by the State of Texas to value commercial property. c. The Fair Market Rental Value of the Demised Premises shall be the average of two of the three appraisals which are closest in amount as described below, and the third appraisal shall be disregarded. In no event shall the Rent be reduced by reason of such computation. If the Fair Market Rental is not determined prior to the commencement of the Extension, then Tenant shall continue to pay to Landlord the Rent applicable to the Demised Premises immediately prior to the Extension until the Fair Market Rental amount is determined, and when it is determined, Tenant shall pay to Landlord within ten (10) days after receipt of such notice the difference between the Rent actually paid by Tenant to Landlord and the new Rent determined under this Lease. [X] C. FIXED RENTAL ADJUSTMENTS. The monthly Base Rent shall be increased beginning on the following dates to these amounts: Date: 10/1/12 - 9/30/17 Amount: Fair market value with 2% annual increases Date: 10/1/17 - 9/30/22 Amount: Fair market value with 2% annual increases Date: Amount: __________________________________________ Date: Amount: __________________________________________ Page 14 15 FIRST AMENDMENT OF LEASE This First Amendment of Lease ("First Amendment") is entered into the 12 day of September, 2000 (the "Effective Date"), by and between SJS Sanden, L.P. ("Landlord") and Cerprobe Corporation, a Delaware corporation ("Tenant"). WHEREAS, on the date hereof, Landlord and Tenant entered into a Commercial Lease Agreement (the "Lease") for the property commonly known as 10365 Sanden Drive, Dallas, Texas, and more particularly described in the Lease (the "Property"); WHEREAS, Landlord and Tenant desire to amend the Lease; WHEREAS, all capitalized terms used and not defined herein shall have the meanings ascribed to such terms in the Lease; NOW, THEREFORE, FOR AND IN CONSIDERATION of the terms, conditions and mutual covenants herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 1. The Commencement Date of the Lease shall be the Effective Date. The first lease year of the Lease Term shall commence on the Commencement Date and shall expire on September 30, 2001. Tenant shall pay to Landlord on the date hereof Base Rent for the period commencing on the Effective Date and continuing through September 30, 2000 in an amount equal to $19,027.87.All Base Rent becoming due and payable on and after October 1, 2000 shall be as set forth in the Lease. 2. Except as modified by this First Amendment, the Lease shall remain unchanged and in full force and effect. 3. To facilitate execution, this First Amendment may be executed in as many counterparts as may be required. It shall not be necessary that the signature on behalf of both parties hereto appear on each counterpart hereof. All counterparts hereof shall collectively constitute a single agreement. Telecopies of counterparts shall have the same valid and binding effect as originals. 16 IN WITNESS WHEREOF, the parties hereto have executed this First Amendment effective as of the date first written above. TENANT: Cerprobe Corporation, a Delaware corporation By: /s/ Paul R. Tullis --------------------------- Name: Paul R. Tullis --------------------------- Title: VP Worldwide Facilities --------------------------- LANDLORD: SJS Sanden L.P., a Texas limited partnership By: SJS Sanden GP LLC, a Texas limited liability company, General Partner By: /s/ David S.P. Steiner --------------------------- Name: David S.P. Steiner --------------------------- Title: Vice President --------------------------- 17 FILE STAMP After recording return to: GENERAL ELECTRIC CAPITAL AFTER RECORDING BUSINESS ASSET FUNDING CORPORATION PLEASE RETURN TO: Real Estate Department ALLEGIANCE TITLE COMPANY 10900 N.E. 4th St., Suite 500 2100 McKINNEY AVENUE, SUITE 1200 Bellevue, WA 98004 DALLAS, TEXAS 75201 Loan No. 001-2137-001 [RECEIPT STAMP] SUBORDINATION, NONDISTURBANCE, ATTORNMENT AND LESSEE ESTOPPEL AGREEMENT THIS AGREEMENT is entered into as of September 12, 2000, by and between CERPROBE CORPORATION, a Delaware corporation ("Lessee"), whose address is 1150 N. Fiesta Blvd., Gilbert, Arizona 85233 and GENERAL ELECTRIC CAPITAL BUSINESS ASSET FUNDING CORPORATION ("GE CAPITAL"). RECITALS, A. Lessee is the present lessee under a lease dated 9/12, 2000, with SJS SANDEN L.P., a Texas limited partnership (the "Lease"), demising all or a portion of the premises described on Exhibit A (the "Leased Premises "). B. Lessee has been advised that the Lease has been or will be assigned to GE CAPITAL as security for a loan with an original principal balance of $2,500,000.00 (the "Loan"), secured by a Deed of Trust or Mortgage (the "Deed of Trust") to be recorded concurrently herewith covering the Leased Premises. C. A condition precedent to GE CAPITAL's disbursement of the proceeds of the Loan is that Lessor obtain this Agreement from Lessee in order to confirm certain matters and to subordinate the Lease and Lessee's interest in the Leased Premises to the lien of the Deed of Trust. D. It will be of benefit to Lessee if GE CAPITAL disburses the proceeds of the Loan to Lessor. Now, therefore, the parties hereto agree as follows: 1. Lessee represents and warrants to GE CAPITAL as follows: a. Lessee has accepted possession and is in occupancy of the Leased Premises pursuant to the terms of the Lease, and the Lease is in full force and effect. b. The improvements and space required to be furnished according to the Lease have been completed in all respects, and Lessee hereby waives any and all rights and remedies which Lessee may have against Lessor (including, 18 without limitation, any right to terminate the Lease) as a result of any breach by Lessor of any of its construction related obligations under the Lease. c. Lessor has fulfilled all of its duties of an inducement nature. d. The Lease has not been modified, altered or amended, except for that certain First Amendment to Lease dated September 12, 2000. e. There are no offsets or credits against rentals, nor have rentals been prepaid except as provided by the terms of the Lease or as set forth in the Closing Statement. f. Rental commenced to accrue on Sept. 12, 2000, current monthly rent is $30,044.00, and there is currently no outstanding unpaid rent. The primary term of the Lease commenced on Sept. 12, 2000 and expires on September 30, 2012. g. Lessee has no notice of a prior assignment, hypothecation or pledge of rents on the Lease. h. Lessee has no claims to or interest in the Leased Premises legal or equitable, or any contract or option therefor other than as a Lessee under the Lease. The Lease does not contain and Lessee does not have an outstanding option to purchase the Leased Premises or an outstanding option to extend or renew the term of the Lease except as follows: two (2) sixty (60) month terms. i. To Lessee's knowledge, the existing parking facilities at the Leased Premises satisfy the requirements of the Lease. j. There are no concessions or inducements which have been promised by Lessor or any other party to Lessee other than as set forth in the Lease. k. To Lessee's knowledge, Lessor is not in default of any of its material obligations under the Lease and no events have occurred which, with notice, the passage of time or both, would constitute a material default in any of Lessor's obligations under the Lease. l. Lessee has paid Lessor $30,044.00 as a security or similar type deposit. 2. Lessee shall promptly provide GE CAPITAL at its Real Estate Department, 10900 N.E. 4th St., Suite 500, Bellevue, WA 98004, with a written notice of any default on the part of the Lessor under the Lease, and Lessee hereby grants to GE CAPITAL the option to cure said default within a reasonable length of time, GE CAPITAL to commence such cure within twenty (20) days of its receipt of said written notice. Lessee further agrees that it shall not invoke any of its rights and remedies under the Lease or any other remedies available to Lessee at law or in equity during any period that GE CAPITAL is proceeding to cure any such default with due diligence, or is taking steps 2 19 with due diligence to obtain the legal right to enter the Leased Premises and cure any such default within the aforesaid cure periods. 3. Without the written consent of GE CAPITAL, Lessee shall not (a) materially reduce the rental terms of the Lease; (b) pay the rent or any other sums becoming due under the terms of the Lease more than one month in advance; or (c) agree with Lessor to terminate the Lease. 4. Should GE CAPITAL advise Lessee that Lessor is in default in the indebtedness to GE CAPITAL and request that payment of all future rentals be made directly to GE CAPITAL, Lessee shall make all future rental payments under the Lease directly to GE CAPITAL until instructed otherwise by GE CAPITAL. Lessee shall not be liable to Lessor for any rental payments actually paid to GE CAPITAL pursuant to this Section 4. 5. Notwithstanding anything in the Lease or any other document to the contrary, Lessee hereby agrees that the Lease and all right, title and interest of Lessee in, to and under the Lease (including, without limitation, all rights of refusal and purchase options) is now, and shall at all times continue to be, unconditionally subject and subordinate in each and every respect, to the Deed of Trust and to any and all renewals, modifications, extensions, substitutions, replacements and/or consolidations of the Deed of Trust. Lessee hereby agrees that, for so long as the Deed of Trust is a lien on the Leased Premises, Lessee will not subordinate the estate of Lessee in the Lease to any other mortgages or deeds of trust or any other security instruments. 6. To the extent that the Lease shall entitle Lessee to notice of any deed of trust, this Agreement shall constitute such notice to Lessee with respect to the Deed of Trust and Lessee hereby waives notice of any and all renewals, modifications, extensions, substitutions, replacements, and/or consolidations of the Deed of Trust. 7. The terms "holder of any deed of trust/mortgage on the fee title of the building," "fee deed of trust/mortgage," "holder of a deed of trust/mortgage" or any similar terms in the Lease shall be deemed to include GE CAPITAL, its successors and assigns, including anyone who shall have succeeded to Lessor's interest by, through or under foreclosure of the Deed of Trust or deed in lieu of such foreclosure. The terms "deed of trust/mortgage affecting the real property," "deed of trust/mortgage," or any similar terms, shall be deemed to include the Deed of Trust to be recorded concurrently herewith securing the Loan. 8. This Agreement may be modified only by an agreement in writing signed by the parties hereto or their respective successors in interest. This Agreement shall inure to the benefit of and be binding upon GE CAPITAL, Lessor and Lessee, and their successors and assigns. 9. This Agreement shall be governed by Texas law applicable to contracts made and to be performed therein (excluding choice-of-law principles). This Agreement may be executed in counterparts for the convenience of the parties. 10. In the event suit or action is instituted to enforce or interpret this Agreement, the prevailing party shall be entitled to recover all expenses reasonably incurred at, before or after trial and on appeal, whether or not taxable as costs, or in any bankruptcy proceeding, including, without 3 20 limitation, attorneys' fees, witness fees (expert and otherwise), deposition costs, copying charges and other expenses. 11. Lessee agrees that upon the request of GE CAPITAL from time to time (but not more than once every 12 months), Lessee shall furnish to GE CAPITAL a copy of Lessee's most-recent balance sheet and profit and loss statement in Lessee's possession. 12. Lessee warrants, represents, covenants and agrees that it will not use, produce, store, release, dispose of or bring into the Leased Premises any hazardous waste or materials or allow any other entity or person to do so except as incidentally related to the operation and maintenance of the Leased Premises and equipment located therein, to be stored and used in accordance with applicable laws and regulations and used in a prudent manner. As used herein, the term "hazardous waste or materials" includes any substance, waste or material defined or designated as hazardous, toxic or dangerous (or any similar term) by any federal, state or local statute, regulation, rule or ordinance now or hereafter in effect including, without limitation, petroleum products and by-products, asbestos, polychlorinated biphenyls, chlorinated solvents, and urea formaldehyde. Lessee agrees to indemnify and hold harmless Lessor and GE CAPITAL against any and all losses, liabilities, suits, obligations, fines, damages, judgments, penalties, claims, charges, cleanup costs, remedial actions, costs and expenses (including, without limitation, attorneys' fees and disbursements) which may be imposed on, incurred or paid by, or asserted against Lessor and/or GE CAPITAL directly or indirectly arising from or attributable to any misrepresentation or breach of any warranty, covenant or agreement by Lessee under this section. The provisions of this section shall survive expiration or termination of the Lease. 13. If GE CAPITAL shall become the owner of the Leased Premises, or if the Leased Premises shall be sold by reason of foreclosure or other proceedings brought to enforce the Deed of Trust, or if the Leased Premises shall be transferred by deed in lieu of foreclosure, then (i) the Lease shall continue in full force and effect as a direct lease agreement between Lessee and the then owner of the Leased Premises (including GE CAPITAL or the grantee under any deed given as a result of any foreclosure or in lieu of foreclosure), upon and subject to all of the terms, covenants and conditions of the Lease for the balance of the term thereof remaining and any extensions or renewals thereof which may be effected in accordance with any option therefor in the Lease, and (ii) Lessee shall attorn to GE CAPITAL or any other such owner as its Lessor, said attornment to be effective and self-operative without the execution of any further instruments. From and after GE CAPITAL's or other such owner's succession to the interest of Lessor under the Lease (the "Attornment Date"), Lessee shall have the same remedies against GE CAPITAL or such other owner for the breach of any covenant contained in the Lease that Lessee might have had under the Lease against Lessor, except that neither GE CAPITAL nor any other such owner shall be: a. liable for any act or omission of, or for the performance of any obligation of, any prior lessor (including Lessor) with respect to the period prior to the Attornment Date, including without limitation any obligation to repair, restore or expand any part of the Leased Premises; or b. subject to any offsets or defenses which Lessee might have against any prior lessor (including Lessor); or 4 21 c. bound by any prepayment of rent or additional rent which Lessee might have paid for more than the current month; or d. bound by any amendment or modification of the Lease or by any waiver or forbearance on the part of any prior lessor (including Lessor) made or given without the written consent of GE CAPITAL or any subsequent holder of the Deed of Trust which consent was required hereunder. 14. So long as Lessee is not in default (beyond any period given Lessee by the terms of the Lease to cure such default) in the payment of rent or additional rent or in the performance of any part of the material terms, covenants or conditions of the Lease on Lessee's part to be performed, Lessee's possession of the Leased Premises under the Lease, or any extensions or renewals thereof which may be effected in accordance with any option therefor in the Lease, shall not be disturbed, diminished or interfered with by GE CAPITAL and GE CAPITAL shall recognize Lessee's rights under the Lease, including making insurance and condemnation proceeds available to Lessor and Lessee as provided in the Lease for the repair of Lessee's property; otherwise GE CAPITAL shall be entitled to such proceeds as set forth in the Deed of Trust. GE CAPITAL will not join Lessee as a party defendant in any action or proceeding for the purpose of terminating Lessee's interest and estate under the Lease because of any default under the Deed of Trust. 15. This Agreement may be executed in multiple counterparts, each of which may be taken as an original. IMPORTANT: READ BEFORE SIGNING. THE TERMS OF THIS AGREEMENT SHOULD BE READ CAREFULLY BECAUSE ONLY THOSE TERMS IN WRITING ARE ENFORCEABLE. NO OTHER TERMS OR ORAL PROMISES NOT CONTAINED IN THIS WRITTEN CONTRACT MAY BE LEGALLY ENFORCED. YOU MAY CHANGE THE TERMS OF THIS AGREEMENT ONLY BY ANOTHER WRITTEN AGREEMENT. 5 22 Dated as of the date first above written. LESSEE: CERPROBE CORPORATION, a Delaware corporation By: /s/ Paul R. Tullis ---------------------------------------- Print: Paul R. Tullis ---------------------------------------- Its: Vice President, Worldwide Facilities ---------------------------------------- LENDER: GENERAL ELECTRIC CAPITAL BUSINESS ASSET FUNDING CORPORATION, a Delaware corporation By: /s/ Trish Bars ---------------------------------------- Print: Trish Bars ---------------------------------------- Its: Real Estate Loan Closer ---------------------------------------- 6 23 Lessor joins in the execution of this document for the purpose of acknowledging and the agreements between Lender and Lessee as set forth herein. LESSOR: SJS SANDEN L.P., a Texas limited partnership By: SJS Sanden GP LLC, a Texas limited liability company, General Partner By: /s/ David S. P. Steiner ----------------------------------- Print: David S. P. Steiner ----------------------------------- Its: Vice President ----------------------------------- 7 24 THE STATE OF Arizona Section Section COUNTY OF Maricopa Section This instrument was acknowledged before me on the 12th day of September, 2000, by Paul R. Tullis, as VP Worldwide Facilities of CERPROBE CORPORATION, a Delaware corporation, on behalf of said corporation. [NOTARY SEAL] OFFICIAL SEAL LAURA M. BACK Notary Public - State of Arizona MARICOPA COUNTY My Comm. Expires July 14, 2001 /s/ Laura M. Back ---------------------------------------- Notary Public in and for the State of Arizona ------- Printed Name of Notary Public: Laura M. Back ---------------------------------------- My Commission Expires: July 14, 2001 - --------------------- 8 25 THE STATE OF Section STATE OF Texas Section Section COUNTY OF Dallas Section This instrument was acknowledged before me on the 12th day of September, 2000, by David S. P. Steiner, Vice President of SJS Sanden GP LLC, a Texas limited liability company, General Partner of SJS Sanden L.P., a Texas limited partnership, on behalf of said limited partnership. [NOTARY SEAL] LISA HOLY NOTARY PUBLIC STATE OF TEXAS My Comm. Exp. 08-21-2001 /s/ Lisa Holy --------------------------------------------- Notary Public in and for the State of Texas --------------------------------------------- Printed Name of Notary My Commission Expires: - -------------------------- 9 26 STATE OF WASHINGTON Section Section COUNTY OF KING Section On this 11th day of September, 2000, before me, a Notary Public in and for the State of Washington, personally appeared Trish Bars, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person who executed this instrument, on oath stated that she was authorized to execute the instrument, and acknowledged it as the Real Estate Loan Closer of GENERAL ELECTRIC CAPITAL BUSINESS ASSET FUNDING CORPORATION to be the free and voluntary act and deed of said corporation for the uses and purposes mentioned in the instrument. IN WITNESS WHEREOF, I have hereunto set my hand and official seal the day and year first above written. [NOTARY SEAL] SUSIE E. REEVES STATE OF WASHINGTON NOTARY PUBLIC MY COMMISSION EXPIRES 6-18-03 /s/ Susie E. Reeves --------------------------------------------- NOTARY PUBLIC in and for the State of Washington, residing at Burien My appointment expires 6-18-03 10 27 EXHIBIT A Leased Premises 11 28 EXHIBIT "A" Legal Description BEING a 3.7569 acre tract of land situated in the A. G. COLLINS SURVEY, ABSTRACT NO. 329, Dallas County, Texas and being all of Lot 2B, Block B/8053, Fleming-Gateway Addition, an addition to the City of Dallas, Texas as; recorded in Volume 94145, Page 1457, Deed Records, Dallas County, Texas and being more particularly described as follows: BEGINNING at a 5/8" iron rod found for corner in the westerly right-of-way line of Sanden Drive (a 60' R.O.W.) and being the northeast corner of said Lot 2B and also being in the center of a 60 foot wide drainage easement; THENCE S 00 deg. 17 min. 23 sec. W, along the westerly right-of-way line of said Sanden Drive, a distance of 427.66 feet to a 1/2" iron rod found for corner being the southeast corner of Lot 2B and also being the northeast corner of Lot 2A of said Block B/8053; THENCE N 89 deg. 42 min. 37 sec. W, along the north line of said Lot 2A, a distance of 486.64 feet to a 5/8" iron rod found for corner and being the southwest corner of said Lot 2B and also being the northwest corner of said Lot 2A; THENCE N 01 deg. 22 min. 28 sec. E, along the west line of said Lot 2B, a distance of 291.06 feet to a 1/2" iron rod set for corner, being the northwest corner of said Lot 2B and also being in the center of said 60 foot wide drainage easement; THENCE S 88 deg. 37 min. 32 sec. E, along the north line of said Lot, 2B and along the center of said 60 foot wide drainage easement, a distance of 158.19 feet to a 1/2" iron rod set for corner and being at the beginning of a curve to the left having a central angle of 51 deg. 51 min. 22 sec., a radius of 190.00 feet and a chord which bears N 65 deg. 26 min. 47 sec. E, a distance of 166.15 feet; THENCE northeasterly, along the center of said 60 foot wide drainage easement and along said curve, a distance of 171.96 feet to a 1/2" iron rod set for corner and being a point of reverse curve having a central angle of 50 deg. 46 min. 17 sec. a radius of 190.00 feet and a chord which bears N 64 deg. 54 min. 14 sec. E, a distance of 162.91 THENCE northeasterly, along the center of said 60 foot wide drainage easement and along said curve, a distance of 168.36 feet to a 1/2" iron rod set for corner at the end of said curve; THENCE S 89 deg. 42 min. 37 sec. E, continuing along the center of said 60 foot wide drainage easement and the north line of said Lot 2B, a distance of 25.01 feet to the POINT OF BEGINNING and containing 163,657 sq. ft. or 3.7569 acres of land. 29 FAXCOM RECEIVED FAX REPORT Routing ID : Fax line : 1 Total Pages : 14 Bad Pages : 0 Final Status : 0 TSI : Receive Time : 09/14/2000 08:44 Connect Time : 216 Seconds Baud Rate : 14400 Bps Fall Back : No Error Detected: No 30 [CERPROBE LOGO] [CERPROBE CORPORATION LETTERHEAD] CERPROBE CORPORATION CERTIFICATE OF SECRETARY I, Randal L. Buness, Secretary of Cerprobe Corporation, a Delaware corporation (the "COMPANY"), do hereby certify on behalf of the Company as follows: 1. The following resolutions are a true, correct and complete copy of all resolutions of the Board of Directors of the Company regarding the sale of the Property (as defined in the resolutions below), as duly adopted on December 3, 1999 at a meeting of the Board of Directors of the Company: RESOLVED, that the Company is authorized to enter into a contract of sale and consummate the sale of that certain real property and improvements situated thereon commonly referred to as 10365 Sanden Drive, Dallas, Texas (the "Property"). FURTHER RESOLVED, that the Company is authorized to do and perform, or cause to be done and performed, all acts and things as may be deemed necessary, advisable or appropriate to consummate the sale of the Property and to implement these resolutions. FURTHER RESOLVED, that Paul Tullis or any officer of the Company, are authorized in the name of and on behalf of the Company to do and perform, or cause to be done and performed, all acts and things as such officer shall deem necessary, advisable or appropriate to consummate the transactions contemplated herein and to implement these resolutions. 2. The above set forth resolutions have not been amended, modified or repealed and are now in full force and effect, and are the only resolutions adopted by said Board of Directors relating to the subject matter thereof. In witness whereof, the undersigned has executed this certificate this 28th day of JULY, 2000. CERPROBE CORPORATION By: /s/ Randal L. Buness -------------------- Name: Randal L. Buness -------------------- Title: CFO & Secretary -------------------- 31 AFFIDAVIT AS TO DEBTS AND LIENS AND PARTIES IN POSSESSION Property Address: GF#:00-ALL-1028386-KAM 10365 Sanden Drive Dallas, Dallas County, Texas BEFORE ME, the undersigned authority, on this day, personally appeared the undersigned in his corporate capacity set forth below (hereinafter called AFFIANT) (whether one or more) and each on his oath, deposes and says to the best of his knowledge, as follows: 1. PAUL R. Tullis (Name) VP Worldwide Facilities (Title) of CERPROBE CORPORATION, A DELAWARE CORPORATION (hereinafter called SELLER) is the owner of the following described property, to wit: SEE ATTACHED DESCRIPTION 2. Seller is desirous of selling the above described property and has requested Allegiance Title Company as agent for CHICAGO TITLE INSURANCE COMPANY to issue certain Title Insurance Policies, as appropriate. 3. In connection with the issuance of such policies, Affiant makes the following statements to the best of his knowledge: a. That Seller owes no past due Federal or State taxes and that there are no delinquent Federal assessments presently existing against Seller, and that no Federal or State liens have been filed against Seller. b. That there are no delinquent State, County, City, School District, Water District, or other governmental agency taxes due or owing against said property and that no tax suit has been filed by any State, County, City, School District, Water District, or other governmental agency for taxes levied against said property. c. All improvements have been completed in a workmanlike manner, if any, and all labor and materials used in the construction of such improvements, if any, on the above described property have been paid for that are due and payable and there are now no unpaid labor or material claims against the improvements or repairs that are due and payable, if any, on the property upon which same are situated, and Affiant hereby declares that all sums of money that are due and payable for the erection of improvements, if any, have been fully paid and satisfied and there are no Mechanic's or Materialman's liens against the hereinabove described property. d. That no paving assessment or lien has been filed against the hereinabove described property, and Seller owes no paving charges. e. That there are no judgment liens against Seller. f. That there are no suits pending against Seller in Federal or State Court. g. That Affiant knows of no adverse claim to the hereinabove described property and that so far as Affiant knows there are no encroachments or boundary conflicts except as otherwise disclosed on the survey of the property. h. Seller has not heretofore sold, contracted to sell or conveyed any part of said property other than in connection with this sale. i. No unpaid debts for electric or plumbing fixtures, water heaters, floor furnaces, air conditioners, radio or television antennae, carpeting, rugs, lawn sprinkling systems, venetian blinds, window shades, draperies, electric appliances, fences, street paving, or any personal property or fixtures that are located on the subject property described above, and that no such items have been purchased on time payment contracts, and there are no security interests on such property secured by financing statements, security agreement or otherwise except the following: Secured Party Approximate Amount NONE j. No loans or indebtedness of any kind on such property except the following: Creditor Approximate Amount NONE 32 4. Affiant(s) and/or affiant(s) predecessors in title have not: (i) entered into any oral or written lease agreements; (ii) given permission to use, occupy, or enter, or (iii) otherwise granted or suffered any possessory rights of any nature whatsoever which are presently existing as of this date except to agree to enter into a Lease Agreement with Buyer, as landlord and Seller, as tenant immediately upon the closing of the transaction _________________________________________ Further, affiant(s) state(s) that he is familiar with the Property and that there is no person (whether one or more) occupying, using, or claiming the Property or any part thereof, adversely or hostilely, or under any claim or color of title whatever; and further state(s) with respect to the above representation that his knowledge of the Property is such that were such person in such possession, occupation or use, he would most likely have knowledge of it. 5. Affiant recognizes that but for the making of the hereinabove statement of facts relative to the hereinabove described property Allegiance Title Company as agent for CHICAGO TITLE INSURANCE COMPANY would not issue either its OWNER'S or MORTGAGEE'S Title Insurance Policy on said property, and that such statements have been made as a material inducement for the issuance of such policies. EXECUTED this 7th day of September, 2000 Cerprobe Corporation, a Delaware corporation By: /s/ Paul R. Tullis ---------------------------------- Name: Paul R. Tullis Title: VP Worldwide Facilities SUBSCRIBED AND SWORN TO BEFORE ME, the undersigned authority, by the said Paul R. Tullis (Name) VP Worldwide Facilities (Title) of Cerprobe Corporation, a Delaware corporation, to certify which, witness my hand this 7th day of September, 2000. [NOTARY SEAL] OFFICIAL SEAL LAURA M. BACK Notary Public - State of Arizona MARICOPA COUNTY My Comm. Expires July 14, 2001 /s/ Laura M. Back ---------------------------------------- Notary Public State of Arizona -------------------------- Commission Expires 7-14-01 --------------------- 33 FIRPTA AFFIDAVIT Section 1445 of the Internal Revenue Code provides that a transferee of a United States real property interest must withhold tax if the transferor is a foreign person. To inform the transferee that withholding of tax is not required upon the disposition of a United States real property interest by CERPROBE CORPORATION, a Delaware corporation ("Cerprobe"), the undersigned hereby certifies the following on behalf of Cerprobe: Cerprobe is not a foreign corporation, foreign partnership, foreign trust, or foreign estate (as those terms are defined in the Internal Revenue Code and Income Tax Regulations); and Cerprobe's U.S. employer tax identification number is 86-0312814; and Cerprobe's office address is 1150 North Fiesta Boulevard, Gilbert, Arizona, 85233. Cerprobe understands that this certification may be disclosed to the Internal Revenue Service by transferee and that any false statement contained herein could be punished by fine, imprisonment, or both. The undersigned officer of Cerprobe declares that he has examined this certification and to the best of his knowledge and belief it is true, correct and complete, and he further declares that he has authority to sign this document on behalf of Cerprobe. Dated: September 7, 2000. CERPROBE CORPORATION, a Delaware corporation By: /s/ Paul R. Tullis --------------------------- Name: Paul R. Tullis --------------------------- Title: VP Worldwide Facilities --------------------------- 34 [LATHAM & WATKINS, ATTORNEYS AT LAW LETTERHEAD] VIA FACSIMILE TO: Paul Tullis DATE: September 6, 2000 FILE: NO.: FROM: Mary Ruhl COPIES TO: Steve Rossi Brett Rosenblatt SUBJECT: Bank of America Loan and Security Agreement Bank of America does not have a lien on the real property owned by Cerprobe Corporation or its subsidiaries, but it does have liens on "fixtures" on the real property, which we will release in connection with the sale/leaseback of the Dallas, Texas facility. The release will not, however, release the liens on the other assets of Cerprobe Corporation and its subsidiaries. I will ask our paralegal to prepare the form of partial release, and send it to you so that you can send it to your purchaser for approval. In addition, for leased premises, Bank of America requires that the landlord sign a Landlord Waiver agreement in the form attached. I would appreciate it if you would fill in the blanks, send this to your purchaser, and obtain the appropriate signatures. If you have any questions, please do not hesitate to give me a call. My phone number is 213-891-8182. 35 [AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P. LETTERHEAD] September 8, 2000 Allegiance Title Company 2100 McKinney Avenue Suite 1200 Dallas, Texas 75201 Attention: Kerri A. Majors Re: Commitment for Title Insurance (the "Commitment"), GF No. 1028386 - TDC, issued by Allegiance Title Company on behalf of Chicago Title Insurance Company (the "Title Company") relating to the Commercial Contract of Sale dated as of June 6, 2000 (the "Agreement") by and between Assurance Capital, Inc, as assigned to SJS Sanden, L.P. ("Purchaser") and Cerprobe Corporation, a Delaware corporation ("Seller") with respect to the land and improvements situated at 10365 Sanden Drive, Dallas, Texas (the "Property"). CLOSING INSTRUCTION LETTER Dear Kerri: This firm represents Seller in connection with the Agreement. This letter shall constitute your instructions from Seller with respect to the closing of the Agreement. Terms not defined and appearing herein with initial capital letters shall have the same meaning ascribed to those terms in the Agreement, except to the extent that the meaning of such terms may be specifically modified by the provisions hereof. A. Closing Documents. You hereby acknowledge that you have received or will receive prior to the Closing the following documents from Seller (the "Seller Documents"): 1. Special Warranty Deed (1 original) (the "Deed") 2. Bill of Sale (4 originals) 3. Non-Foreign Affidavit (4 originals) 4. Affidavit as to Debts and Liens and Parties in Possession (4 originals) 5. First Amendment of Lease executed by Seller (4 originals) 6. Letter from Latham & Watkins regarding UCC-3 partial release (1 copy). 36 AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P. September 8, 2000 Page 2 You hereby acknowledge that you have received or will receive prior to the Closing the following documents from Purchaser (the "Purchaser Documents"): 1. Lease Agreement executed by Seller and Purchaser (4 originals). 2. First Amendment to Lease executed by Purchaser (4 originals) (please attach the Purchaser's signature page counterparts to the First Amendment to Lease provided by Seller). The Seller Documents and the Purchaser Documents and other documents delivered to you by the parties thereto shall be collectively referred to herein as the "Documents". You hereby acknowledge that you have verified that all of the Documents have been duly executed by Seller and Purchaser, where applicable, and acknowledged before a notary public where indicated thereon. B. Conditions Precedent. The following items must be satisfied before you deliver the Documents to Purchaser: 1. You shall have determined that all of the requirements set forth in Schedule C of the Commitment have been fully satisfied. You acknowledge that you have received all required Seller consents authorizing this transaction. 2. You shall be prepared to unconditionally issue one Owner's Policy of Title Insurance covering the Property (the "Policy") to Purchaser in the amount stated in the Commitment, with the express insurance provided in the Commitment, and with all items set forth in Schedule C of the Commitment deleted. 3. You shall have received from Seller and Purchaser Closing Statements executed by Seller and Purchaser (the "Closing Statements"). 4. You shall have received good funds from Purchaser in an amount sufficient to pay all sums due to third parties under the Closing Statements and all sums due to Purchaser and Seller under the Closing Statements ("Purchaser's Funds"). You shall be unconditionally ready, willing and able to distribute Purchaser's Funds in accordance with the Closing Statements. 5. You shall have inserted the first month's prorated base rental amount (which shall be provided to you) in the First Amendment to Lease. 6. You shall have received the verbal authorization of Christopher A. Peckham to deliver (and record if necessary) the Documents in accordance with Paragraphs C and D below. 37 AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P. September 8, 2000 Page 3 C. Recordation of Documents. After the conditions precedent set forth in Paragraph B above have been fully satisfied, you shall, as soon as possible, date and record the Special Warranty Deed in the Dallas County recording office. D. Delivery. After the conditions precedent set forth in Paragraph B above have been fully satisfied, you shall date the Documents effective as of the current date thereof and (1) deliver two original Documents and Closing Statements (or copies if necessary) to Purchaser, and (ii) distribute Purchaser's Funds in accordance with the Closing, Statements. You shall promptly deliver to me two original Documents and Closing Statements (or copies if necessary) and a copy of the Policy as soon as it is prepared. E. Expenses of the Title Company. The Title Company agrees that the Title Company shall have been paid in full for all premiums and related costs necessary to issue the Policy. You also agree to disburse Purchaser's Funds in accordance with the Closing Statements. F. Acceptance of Escrow. The Title Company's signature below will constitute acknowledgment of the Title Company's agreement to comply with these instructions. If you have not received Purchaser's Funds by 5:00 p.m. on September 12, 2000, you are to contact me for further instructions. If you have any questions or comments, please do not hesitate to call me. Very truly yours, /s/ Christopher A. Peckham -------------------------- Christopher A. Peckham Counsel for Seller AGREED TO AND ACCEPTED this 12 day of September, 2000. ALLEGIANCE TITLE COMPANY /s/ Kerri A. Majors - ----------------------------------- By: Kerri A. Majors, Escrow Officer 38 SELLER'S STATEMENT Date: September 12, 2000 GF No.: 1028386 Sale From: Cerprobe Corporation To: SJS Sanden, L.P., a Texas 1150 N. Fiesta Blvd. limited partnership Gilbert, AZ 85233 4810 Cedar Springs Suite 200 Dallas, TX 75219 WE CERTIFY THIS TO BE A TRUE AND CORRECT COPY OF THE ORIGINAL INSTRUMENT ALLEGIANCE TITLE COMPANY BY [Illegible] ------------------------- Property: 10365 Sanden Drive, Dallas, TX
Sales Price ........................................................................................ $2,800,000.00 Reimbursements/Credits Non-Refundable Portion of Earnest Money paid to seller ................................ $ 100.00 TOTAL REIMBURSEMENTS/CREDITS ............................................................. $ 100.00 GROSS AMOUNT DUE to Seller .......................................................... $2,800,100.00 Less: Charges and Deductions 3% Commission to Grubb & Ellis ................................................................ $84,000.00 Fees to Allegiance Title Company .............................................................. $16,420.50 (4000) Owner Policy Premium (Liability amount of $2,800,000.00) .............................................. $15,914.00 (4100) Escrow Fee ................................................................ $ 300.00 (4300) Recording ................................................................. $ 48.00 (4400) Tax Certificates .......................................................... $ 40.00 (4500) Delivery .................................................................. $ 118.50 Survey Fees to Voter Surveying Company ........................................................ $ 2,543.88 2000 Tax Proration for Dallas County Taxes ......................From 1/1/2000 to 9/12/2000.... $ 5,146.70 2000 Tax Proration for City of Dallas Taxes .....................From 1/1/2000 to 9/12/2000.... $ 5,101.94 2000 Tax Proration for Richardson ISD Taxes .....................From 1/1/2000 to 9/12/2000.... $ 18,952.14 Security Deposits to Purchaser (Landlord)...................................................... $ 30,044.00 Rent Proration ..................................................From 9/12/2000 to 10/1/2000... $ 19,027.87 TOTAL CHARGES AND DEDUCTIONS ............................................................. $ 181,237.03 NET AMOUNT DUE TO SELLER ............................................................ $2,618,862.97 =============
Seller Understands the Closing or Escrow Agent has assembled this information representing the transaction from the best information available from other sources and cannot guarantee the accuracy thereof. Any real estate agent or lender involved may be furnished a copy of this statement. Seller understands that tax and insurance prorations and reserves were based on figures for the preceding year or supplied by others or estimates for current year, and in the event of any change for current year, all necessary adjustments must be made between Purchaser and Seller direct. The undersigned hereby authorizes Allegiance Title Company to make expenditure and disbursements as shown above and approves same for payment. The undersigned also acknowledges receipt of Loan Funds, if applicable, in the amount shown above and a receipt of a copy of this Statement. Allegiance Title Company Cerprobe Corporation, a Delaware corporation By: /s/ Kerri Majors By: /s/ Paul R. Tullis -------------------------- ------------------------ Kerri Majors Name: PAUL R. TULLIS Title: VP, WORLDWIDE FACILITIES 09/12/00 (8:02 AM) Compliments of Allegiance Title Company 39 WE CERTIFY THIS TO BE A TRUE AND CORRECT COPY OF THE ORIGINAL INSTRUMENT ALLEGIANCE TITLE COMPANY BY: /s/ [Illegible] PURCHASER'S STATEMENT ------------------------ GF No.:1028386 Date: September 12, 2000 Sale From: Cerprobe Corporation To: SJS Sanden, L.P., a Texas 1150 N. Fiesta Blvd. limited partnership Gilbert, AZ 85233 4810 Cedar Springs Suite 200 Dallas, TX 75219 Property: 10365 Sanden Drive, Dallas, TX
Purchase Price ......................................................................................... $2,800,000.00 Plus: Charges Fees to Allegiance Title Company ................................................... $3,200.10 (4001) Survey Deletion ........................................ $2,387.10 (4002) Mortgagee Title Policy Premium (Liability amount of $2,500,000.00) ............................. $100.00 (4003) Tax Deletions ............................................ $25.00 (4100) Escrow Fee ............................................... $300.00 (4300) Recording ................................................ $250.00 (4500) Delivery ................................................. $138.00 Loan Charges ...................................................................... $44,920.16 1% Origination Fee ............................................ $25,000.00 Per Diem Interest 9/12/00 to 10/1/00 ($607.64 x 19 days) ...... $11,545.16 Documentation Fee ............................................. $500.00 Attorney Fees ................................................. $4,000.00 First American Tax Service (Tax Service Registration) ......... $275.00 Phase I ESA Report Fee (GME Consulting Services) .............. $2,200.00 Structural Engineering Fee (GME Invoice #1) ................... $1,400.00 Non-Refundable Portion of Earnest Money paid to seller ............. $100.00 Total Charges ............................................................................ $48,220.26 Gross Amount Due By Purchaser .................................................... $2,848,220.26 Less: Credits 2000 Tax Proration for Dallas County Taxes ....... From 1/1/2000 to 9/1/2000 ...... $5,146.70 2000 Tax Proration for City of Dallas Taxes ...... From 1/1/2000 to 9/1/2000 ...... $5,101.94 2000 Tax Proration for Richardson ISD Taxes ...... From 1/1/2000 to 9/1/2000 ...... $18,952.14 Loan from General Electric Capital Business Asset Funding Corporation ................................................................... $2,500,000.00 Earnest Money credit applied to Purchase Price less the non-refundable portion of $100.00 to seller ..................................................... $25,000.00 Security Deposits to Purchaser (Landlord) ......................................... $30,044.00 Rent Proration ....................................From 9/12/2000 to 10/1/2000..... $19,027.87 Total Credits ......................................................................... $2,603,272.65 Balance Due By Purchaser ......................................................... $244,947.61 =============
SEE ATTACHED SIGNATURE PAGE Compliments of Allegiance Title Company 09/12/0 (8:32 AM) 40 GF No.: 1028386 Page 2 Purchaser Understands the Closing or Escrow Agent has assembled this information representing the transaction from the best information available from other sources and cannot guarantee the accuracy thereof. Any real estate agent or lender involved may be furnished a copy of this statement. Purchaser understands that tax and insurance prorations and reserves were based on figures for the preceding year or supplied by others or estimates for current year, and in the event of any change for current year, all necessary adjustments must be made between Purchaser and Seller direct. The undersigned hereby authorizes Allegiance Title Company to make expenditure and disbursements as shown above and approves same for payment. The undersigned also acknowledges receipt of Loan Funds, if applicable, in the amount shown above and a receipt of a copy of this Statement. Allegiance Title Company SJS Sanden, L.P., a Texas limited partnership By: SJS Sanden GP LLC, a Texas limited liability company, By: /s/ Kerri Majors General Partner ----------------------- Kerri Majors By: /s/ David S.P. Steiner ---------------------------- Name: David S.P. Steiner Title: Vice President Compliments of Allegiance Title Company 09/12/0 (8:32 AM) 41 GF #00-ALL-1028386-KAM Commitment No 44-903-80-1028386 - -------------------------------------------------------------------------------- Issued: July 24, 2000 Effective: June 30, 2000 THE FOLLOWING COMMITMENT FOR TITLE INSURANCE IS NOT VALID UNLESS YOUR NAME AND THE POLICY AMOUNT ARE SHOWN IN SCHEDULE A, AND OUR AUTHORIZED REPRESENTATIVE HAS COUNTERSIGNED BELOW. COMMITMENT FOR TITLE INSURANCE ISSUED BY CHICAGO TITLE INSURANCE COMPANY We, Chicago Title Insurance Company, will issue our title insurance policy or policies (the Policy) to You (the proposed insured) upon payment of the premium and other charges due, and compliance with the requirements in Schedule B and Schedule C. Our Policy will be in the form approved by the Texas Department of Insurance at the date of issuance, and will insure your interest in the land described in Schedule A. The estimated premium for our Policy and applicable endorsements is shown on Schedule D. There may be additional charges such as recording fees, and expedited delivery expenses. This Commitment ends ninety (90) days from the effective date, unless the Policy is issued sooner, or failure to issue the Policy is our fault. Our liability and obligations to you are under the express terms of this Commitment and end when this Commitment expires. ALLEGIANCE TITLE COMPANY 2100 MCKINNEY AVENUE, SUITE 1200 CHICAGO TITLE INSURANCE COMPANY DALLAS, TEXAS 75201 BY: ATTN: KERRI A. MAJORS (214) 954-5443 John Rau President [CORPORATE SEAL] Kerri Majors BY: - --------------------------- Authorized Signatory Thomas J. Adams Secretary - -------------------------------------------------------------------------------- T-7 Commitment for Title Insurance (Rev. 1/93) Reorder Form 8287 42 GF# 1028386 - TDC Commitment No. 44-903-80-1028386 Issued July 24, 2000 8:00 AM SCHEDULE A - -------------------------------------------------------------------------------- Commitment Effective Date: June 30, 2000 1. The policy or policies to be issued are: (a) Form T-1: OWNER POLICY OF TITLE INSURANCE (Not applicable for improved one-to-four family residential real estate) Policy Amount: $2,800,000.00 Proposed Insured: Assurance Capital, Inc. (b) Form T-1R: TEXAS RESIDENTIAL OWNER POLICY OF TITLE INSURANCE ONE-TO-FOUR FAMILY RESIDENCES Policy Amount: Proposed Insured: (c) Form T-2: MORTGAGEE POLICY OF TITLE INSURANCE Policy Amount: Proposed Insured: Proposed Borrower: (d) Form T-13: MORTGAGEE TITLE POLICY BINDER ON INTERIM CONSTRUCTION LOAN Binder Amount: Proposed Insured: Proposed Borrower: (e) OTHER: Policy Amount: Proposed Insured: 2. The interest in the land covered by this Commitment is: Fee Simple 3. Record title to the land on the Effective Date appears to be vested in: Cerprobe Corporation, a Delaware corporation 4. Legal description of land: SEE ATTACHED DESCRIPTION - -------------------------------------------------------------------------------- 43 GF# 1028386 Commitment No. 44-903-80-1028386 Page 1 DESCRIPTION BEING a 3.7569 acre tract of land situated in the A. G. COLLINS SURVEY, ABSTRACT NO. 329, Dallas County, Texas and being all of Lot 2B, Block B/8053, Fleming-Gateway Addition, an addition to the City of Dallas, Texas as recorded in Volume 94145, Page 1467, Deed Records, Dallas County, Texas and being more particularly described as follows: BEGINNING at a 5/8" iron rod found for corner in the westerly right-of-way line of Sanden Drive (a 60' R.O.W.) and being the northeast corner of said Lot 2B and also being in the center of a 60 foot wide drainage easement; THENCE S 00 deg. 17 min. 23 sec. W, along the westerly right-of-way line of said Sanden Drive, a distance of 427.66 feet to a 1/2" iron rod found for corner being the southeast corner of Lot 2B and also being the northeast corner of Lot 2A of said Block B/8053; THENCE N 89 deg. 42 min. 37 sec. W, along the north line of said Lot 2A, a distance of 486.64 feet to a 5/8" iron rod found for corner and being the southwest corner of said Lot 2B and also being the northwest corner of said Lot 2A; THENCE N 01 deg. 22 min. 28 sec. E, along the west line of said Lot 2B, a distance of 291.06 feet to a 1/2" iron rod set for corner, being the northwest corner of said Lot 2B and also being in the center of said 60 foot wide drainage easement; THENCE S 88 deg. 37 min. 32 sec. E, along the north line of said Lot 2B and along the center of said 60 foot wide drainage easement, a distance of 158.19 feet to a 1/2" iron rod set for corner and being at the beginning of a curve to the left having a central angle of 51 deg. 51 min. 22 sec., a radius of 190.00 feet and a chord which bears N 65 deg. 26 min. 47 sec. E, a distance of 166.15 feet; THENCE northeasterly, along the center of said 60 foot wide drainage easement and along said curve, a distance of 171.96 feet to a 1/2" iron rod set for corner and being a point of reverse curve having a central angle of 50 deg. 46 min. 17 sec. a radius of 190.00 feet and a chord which bears N 64 deg. 54 min. 14 sec. E, a distance of 162.91 feet; THENCE northeasterly, along the center of said 60 foot wide drainage easement and along said curve, a distance of 168.36 feet to a 1/2" iron rod set for corner at the end of said curve; THENCE S 89 deg. 42 min. 37 sec. E, continuing along the center of said 60 foot wide drainage easement and the north line of said Lot 2B, a distance of 25.01 feet to the POINT OF BEGINNING and containing 163,652 sq. ft. or 3.7569 acres of land. NOTE: COMPANY DOES NOT REPRESENT THAT THE ABOVE ACREAGE AND/OR SQUARE FOOTAGE CALCULATIONS ARE CORRECT. 44 GF# 1028386-TDC Commitment No. 44-903-80-1028386 SCHEDULE B =========================================================================== EXCEPTIONS FROM COVERAGE In addition to the Exclusions and Conditions and Stipulations, your Policy will not cover loss, costs, attorney's fees, and expenses resulting from: B 1. The following restrictive covenants of record itemized below (We must either insert specific recording data or delete this exception.): Volume 94172, Page 6280, Deed Records, Dallas County, Texas, but omitting any covenant or restriction based on race, color, religion, sex, handicap, familial status or national origin. F 2. Any discrepancies, conflicts, or shortages in area or boundary lines, or any encroachments, or protrusions, or any overlapping of improvements. H 3. Homestead or community property or survivorship rights, if any, of any spouse of any insured. (Applies to the Owner Policy only.) J 4. Any titles or rights asserted by anyone, including, but not limited to, persons, the public, corporations, governments or other entities, a. to tidelands, or lands comprising the shores or beds of navigable or perennial rivers and streams, lakes, bays, gulfs or oceans, or b. to lands beyond the line of the harbor or bulkhead lines as established or changed by any government, or c. to filled-in lands, or artificial islands, or d. to statutory water rights, including riparian rights, or e. to the area extending from the line of mean low tide to the line of vegetation, or the rights of access to that area or easement along and across that area. (Applies to the Owner Policy only.) L 5. Standby fees, taxes and assessments by any taxing authority for the year 2000 and subsequent years; and subsequent taxes and assessments by any taxing authority for prior years due to change in land usage or ownership, but not those taxes or assessments for prior years because of an exemption granted to a previous owner of the property under Section 11.13, Texas Tax Code, or because of improvements not assessed for a previous tax year. N 6. The terms and conditions of the documents creating your interest in the land. O 7. Materials furnished or labor performed in connection with planned construction before signing and delivering the lien document described in Schedule A, if the land is part of the homestead of the owner. (Applies to the Mortgagee Title Policy Binder on Interim Construction Loan only, and may be deleted if satisfactory evidence is furnished to us before binder is issued.) P 8. Liens and leases that affect the title to the land, but that are subordinate to the lien of the insured mortgage. ================================================================================ 45 GF# 1028386 Commitment No. 44-903-80-1028386 Page 1 SCHEDULE B (continued) - -------------------------------------------------------------------------------- (Applies to Mortgage Policy only.) S 9. The following matters and all terms of the documents creating or offering evidence of the matters (We must insert matters or delete this exception.): AI 10. Rights of tenants in possession, as tenants only,under unrecorded lease agreements. AJ 11. All of the oil, gas and other minerals and all other elements not considered a part of the surface estate are excepted hereform, not insured herein nor guaranteed hereunder, all having been reserved in instrument recorded in Volume 94172, Page 6280, Deed Records, Dallas County, Texas. AK 12. Thirty foot drainage easement over the North line of subject property, as shown on plat recorded in Volume 94145, Page 1467, Map Records, Dallas County, Texas, and as shown on survey dated June 20, 2000, last revised on July 24, 2000, prepared by Dennis D. Vote, Registered Professional Land Surveyor #4813. AL 13. Variable width water, sanitary sewer and telephone easement over the East line of subject property, as shown on plat recorded in Volume 94145, Page 1467, Map Records, Dallas County, Texas, and as shown on survey dated June 20, 2000, last revised on July 24, 2000, prepared by Dennis D. Vote, Registered Professional Land Surveyor #4813. - -------------------------------------------------------------------------------- 46 GF# 1028386 - TDC Commitment No. 44-903-80-1028386 SCHEDULE C - -------------------------------------------------------------------------------- Your Policy will not cover loss, costs, attorney's fees, and expenses resulting from the following requirements that will appear as Exceptions in Schedule B of the Policy, unless you dispose of these matters to our satisfaction, before the date the Policy is issued: X 1. Documents creating your title or interest must be approved by us and must be signed, notarized and filed for record. Y 2. Satisfactory evidence must be provided that: - no person occupying the land claims any interest in that land against the persons named in paragraph 3 of Schedule A, - all standby fees, taxes, assessments and charges against the property have been paid, - all improvements or repairs to the property are completed and accepted by the owner, and that all contractors, subcontractors, laborers and suppliers have been fully paid, and that no mechanic's, laborer's or materialmen's liens have attached to the property, - there is legal right of access to and from the land, - (on a Mortgagee policy only) restrictions have not been and will not be violated that affect the validity and priority of the insured mortgage. Z 3. You must pay the seller or borrower the agreed amount for your property or interest. AA 4. Any defect, lien or other matter that may affect title to the land or interest insured, that arises or is filed after the effective date of this Commitment. AM 5. UCC-1 Financing Statement, filed for record on January 18, 2000, recorded in Volume 2000011, Page 806, Deed of Trust Records, Dallas County, Texas, given by Cerprobe Interconnect Solutions, Inc., as owner/debtor, granting unto Bank of America, N.A., as creditor and secured party, a security interest in the subject property. AN 6. We must be furnished with a Corporate Resolution by the Board of Directors of Cerprobe Corporation, a Delaware corporation authorizing the current transaction, naming the officers authorized to execute the necessary instrument(s). AO 7. Except in an exempt transaction, the Company must be furnished with seller's social security number or tax identification number and all other information necessary to complete IRS Form 1099B. - -------------------------------------------------------------------------------- 47 COMMITMENT FOR TITLE INSURANCE SCHEDULE D G.F. Number: 00-ALL-1028386-KAM 1. Disclosure of: CHICAGO TITLE INSURANCE COMPANY, a Missouri Corporation a. The Shareholders owning or controlling, directly or indirectly, ten percent (10%) or more of the shares of Chicago Title Insurance Company: CHICAGO TITLE AND TRUST COMPANY, an Illinois Corporation b. The names of the Directors of Chicago Title Insurance Company: Christopher Abbinante William T. Halvorsen, Jr. Thomas H. Hodges Michael J. Keller Peter G. Leemputte Burton J. Rain John E. Rau Paul T. Sands, Jr. c. The names of the president, the executive or senior vice-president, the secretary and the treasurer of Chicago Title Insurance Company: President and Chief Executive Officer: John Rau Executive Vice President: Christopher Abbinante & William T. Halvorsen, Jr. Vice President, and Secretary: Thomas J. Adams, III Chief Financial Officer: Peter G. Leemputte 2. Disclosure of ALLEGIANCE TITLE COMPANY, a Texas corporation a. The names of each shareholder, owner, partner, or other person having, owning or Controlling ten percent (10%) or more of the Title Insurance Agent that will receive a portion of the premium are as follows: C.E. (Kim) Seal, II and Dawn Enoch Moore b. Each shareholder, owner, partner, or other person having, owning or controlling ten percent (10%) or more of an entity that has, owns or controls one percent (1%) or more of the Title Insurance that will receive a portion of the premium are as follows: c. If the Agent is a corporation, the names of any directors; president, executive or senior vice president, secretary and treasurer if any of the Title Insurance Agent are as follows: Directors: C.E. (Kim) Seal Dawn Enoch Moore Officers: C.E. Seal, II, CEO Dawn Enoch Moore, President and Secretary 3. "You are entitled to receive advance disclosure of settlement charges in connection with the proposed transaction to which this commitment relates. Upon your request, such disclosure will be made to you. Additionally, the name of any person, firm or corporation receiving any sum from the settlement of this transaction will be disclosed on the closing or settlement statement." "You are further advised that the estimated title premium* is: Owners Policy $ 15,914.00 Mortgagees Policy $ Endorsement Charges $ 2,387.10 (Survey Deletion Fee) Total $ 18,301.10 Of this amount: $______________________ or 15% will be paid to the policy issuing Title Insurance Company: _____________________ or 85% minus $150.00 will be retained by the issuing Title Insurance Agent; and the remainder of the estimated premium will be paid to other parties as follows: AMOUNT (OR %) TO WHOM FOR SERVICES ------------- ------- ------------ $150.00 CTIC TITLE EVIDENCE *The estimated premium is based upon information furnished to us as of the date of this Commitment for Title Insurance. Final determination of the amount of the premium will be made at closing in accordance with the Rules and Regulations adopted by the State Board of Insurance." ================================================================================ Allegiance Title Company 2100 McKinney, Suite 1200, Dallas, Texas 75201 Phone (214) 954-5400 Fax (214) 954-5502 48 GF No. 1028366-TDC DELETION OF ARBITRATION PROVISION (Not applicable to the Texas Residential Owner Policy) ARBITRATION is a common form of alternative dispute resolution. It can be a quicker and cheaper means to settle a dispute with your Title Insurance Company. However, if you agree to arbitrate, you give up your right to take the Title Company to court and your rights to discovery of evidence may be limited in the arbitration process. In addition, you cannot usually appeal an arbitrator's award. Your policy contains an arbitration provision (shown below). It allows you or the Company to require arbitration if the amount of insurance is $1,000,000 or less. If you want to retain your right to sue the company in case of a dispute over a claim, you must request deletion of the arbitration provision before the policy is issued. You can do this by signing this form and returning it to the Company at or before the closing of your real estate transaction or by writing to the Company. The Arbitration provision in the Policy is as follows: "Unless prohibited by applicable law or unless this arbitration section is deleted by specific provision in Schedule B of this policy, either the Company or the Insured may be deemed arbitration pursuant to the Title Insurance Arbitration Rules of the American Arbitration Association. Arbitrable matters may include, but are not limited to, any controversy or claim between the Company and the Insured arising out of or relating to this Policy, and service of the Company in connection with its issuance or the breach of a policy provision or other obligation. All arbitrable matters when the Amount of Insurance is $1,000,000 or less SHALL BE arbitrated at the request of either the Company or the Insured, unless the insured is an individual person (as distinguished from a corporation, trust, partnership, association or other legal entity). All arbitrable matters when the Amount of Insurance is in excess of $1,000,000 shall be arbitrated only when agreed to by both the Company and the Insured. Arbitration pursuant to this Policy and under the Rules in effect on the date the demand for arbitration is made or, at the option of the Insured, the rules in effect at the Date of Policy shall be binding upon the parties. The award may include attorney's fees only if the laws of the state in which the land is located permit a court to award attorneys' fees to a prevailing party. Judgment upon the award rendered by the Arbitrator(s) may be entered in any court having jurisdiction thereof. The law of the situs of the land shall apply to an arbitration under the Title Insurance Arbitration Rules. A copy of the Rules may be obtained from the Company upon request." I request deletion of the Arbitration Provision. _________________________________________ ____________________________ Date _________________________________________ ____________________________ Date 49 TEXAS TITLE INSURANCE INFORMATION - -------------------------------------------------------------------------------- Title insurance insures you against loss resulting from certain risks to your title. The commitment for Title Insurance is the title insurance company's promise to issue the title insurance policy. The commitment is a legal document. You should review it carefully to completely understand it before your closing date. ----------------------------------------------------------------------- El seguro de titulo le asegura en relacion a perdidas resultantes de ciertos riesgos que purden afectar el titulo de su propiedad. El Compromiso para Seguro de Titulo es la promesa de la compania aseguradora de titulos de emitir la poliza de seguro de titulo. El Compromiso es un documento legal. Usted debe leerlo cuidadosamente y entenderlo completamente antes de la fecha para finalizar su transaccion. - -------------------------------------------------------------------------------- Your Commitment for Title Insurance is a legal contract between you and us. The Commitment is not an opinion or report of your title. It is a contract to issue you a policy subject to the Commitment's terms and requirements. Before issuing a Commitment for Title Insurance (the Commitment) or a Title Insurance Policy (the Policy), the Title Insurance Company (the Company) determines whether the title is insurable. This determination has already been made. Part of that determination involves the Company's decision to insure the title except for certain risks that will not be covered by the Policy. Some of these risks are listed in Schedule B of the attached Commitment as Exceptions. Other risks are stated in the Policy as Exclusions. These risks will not be covered by the Policy. Another part of the determination involves whether the promise to insure is conditioned upon certain requirements being met. Schedule C of the Commitment lists these requirements that must be satisfied or the Company will refuse to cover them. You may want to discuss any matters shown in schedules B and C of the Commitment with an attorney. These matters will affect your title and your use of the land. When your policy is issued, the coverage will be limited by the Policy's Exceptions, Exclusions and Conditions, defined below. - - EXCEPTIONS are title risks that a Policy generally covers but does not cover in a particular instance. Exceptions are shown on Schedule B or discussed in Schedule C of the Commitment. They can also be added if you do not comply with the Conditions section of the Commitment. When the Policy is issued, all Exceptions will be on Schedule B of the Policy. - - EXCLUSIONS are title risks that a Policy generally does not cover. Exclusions are contained in the Policy but not shown or discussed in the Commitment. - - CONDITIONS are additional provisions that qualify or limit your coverage. Conditions include your responsibilities and those of the Company. They are contained in the Policy but not shown or discussed in the Commitment. The Policy Conditions are not the same as the Commitment Conditions. You can get a copy of the policy form approved by the State Board of Insurance by calling Chicago Title Insurance Company at 1-800-442-4303 or by calling the title insurance agent that issued the Commitment. The State Board of Insurance may revise the policy form from time to time. You can also get a brochure that explains the policy from the Texas Department of Insurance by calling 1-800-252-3439. Before the Policy is issued, you may request changes in the policy. Some of the changes to consider are: 50 - Request amendment of the "area and boundary" exception (Schedule B, paragraph 2). To get this amendment, you must furnish a survey. On the Owner Policy, you must pay an additional premium for the amendment. If the survey is acceptable to the Company, your Policy will insure you against loss because of discrepancies or conflicts in boundary lines, encroachments or protrusions, or overlapping of improvements. The Company may then decide not to insure against specific boundary or survey problems by making special exceptions in the Policy. - Allow the Company to add an exception to "rights of parties in possession." If you refuse this exception, the Company or the title insurance agent may inspect the property. The Company may except to and not insure you against the rights of specific persons, such as renters, adverse owners or easement holders who occupy the land. The Company may charge you for the inspection. If you want to make your own inspection, you must sign a Waiver of Inspection form and allow the Company to add this exception to your Policy. The entire premium for a Policy must be paid when the Policy is issued. You will not owe any additional premiums unless you want to increase your coverage at a later date and the Company agrees to add an Increased Value Endorsement. CONDITIONS AND STIPULATIONS 1. If you have actual knowledge of any matter which may affect the title or mortgage covered by this Commitment, that is not shown in Schedule B, you must notify us in writing. If you do not notify us in writing, our liability to you is ended or reduced to the extent that your failure to notify us affects our liability. If you do notify us, or we learn of such matter, we may amend Schedule B, but we will not be relieved of liability already incurred. 2. Our liability is only to you, and others who are included in the definition of Insured in the Policy to be issued. Our liability is only for actual loss incurred in your reliance on this Commitment to comply with its requirements or to acquire the interest in the land. Our liability is limited to the amount shown in Schedule A of this Commitment and will be subject to the following terms of the Policy: Insuring Provisions, Conditions and Stipulations, and Exclusions. 51 ---------------------------------------- COMMITMENT FOR TITLE INSURANCE [CHICAGO TITLE INSURANCE COMPANY LOGO] FOR INFORMATION, OR TO MAKE A COMPLAINT, CALL: 1-800-442-4303 CHICAGO TITLE INSURANCE COMPANY P.O. BOX 740248 DALLAS, TEXAS 75374-0248 ---------------------------------------- ================================================================================ IMPORTANT NOTICE FOR INFORMATION, OR TO MAKE A COMPLAINT CALL OUR TOLL-FREE TELEPHONE NUMBER 1-800-442-4303 ALSO YOU MAY CONTACT THE TEXAS DEPARTMENT OF INSURANCE AT 1-800-252-3439 to obtain information on: 1. filing a complaint against an insurance company or agent, 2. whether an insurance company or agent is licensed, 3. complaints received against an insurance company or agent, 4. policyholder rights, and 5. a list of consumer publications and services available through the Department. YOU MAY ALSO WRITE TO THE TEXAS DEPARTMENT OF INSURANCE P.O. BOX 149104 AUSTIN, TEXAS 78714-9104 FAX NO.(512) 475-1771 - -------------------------------------------------------------------------------- AVISO IMPORTANTE PARA INFORMACION, O PARA SOMETER UNA QUEJA LLAME AL NUMERO GRATIS 1-800-442-4303 TAMBIEN PUEDE COMUNICARSE CON EL DEPARTAMENTO DE SEGUROS DE TEXAS AL 1-800-252-3439 para obtener informacion sobre: 1. como someter una queja en contra de una compania de seguros o agente de seguros, 2. si una compania de seguros o agente de seguros tiene licencia, 3. quejas recibidas en contra de una compania de seguros o agente de seguros, 4. los derechos del asegurado, y 5. una lista de publicaciones y servicios para consumidores disponibles a traves del Departamento. TAMBIEN PUEDE ESCRIBIR AL DEPARTAMENTO DE SEGUROS DE TEXAS P.O. BOX 149104 AUSTIN, TEXAS 78714-9104 FAX NO.(512)475-1771 ================================================================================ EX-10.QQQ 11 p63766ex10-qqq.txt EX-10.QQQ 1 Gateway Lease EXHIBIT 10(qqq) Lease Agreement # 06274300 Dated: 06/27/2000 - -------------------------------------------------------------------------------- COPELCO CAPITAL, INC. One International Boulevard Mahwah, NJ 07430 Phone 800-762-7453 Fax 800-405-0163 - -------------------------------------------------------------------------------- Number of Monthly Payments 36 Monthly Payment* $2054.34 Security Deposit/ Purchase Option FMV Advanced Rental $0.0 *Plus applicable taxes to be billed
EQUIPMENT DESCRIPTION ("EQUIPMENT") REFER TO EQUIPMENT QUOTE # 06164019;06164033;06163916 FOR EQUIPMENT DESCRIPTION ONLY Equipment Location if different from billing address: DEAR CUSTOMER: This Lease Agreement (the "Lease") contains the terms of your agreement with us. Please read it carefully and ask us any questions you may have. The words, You, Your and Lessee mean you, our customer. The words we, us, our and the lessor, mean Copelco Capital, Inc. 1. EQUIPMENT LEASED; TERM, RENT AND FEES: We agree to lease to you and you agree to lease from us the equipment ("Equipment") identified above. You certify that the Equipment will be used for a business purpose, and not for personal, family or household purposes. This Lease shall commence on the date that any of the Equipment is delivered to you ("Commencement Date"). The lease payments shall be payable in arrears. Your first monthly payment shown above ("Monthly Payments") is due in 30 days from the Commencement Date, and your remaining Monthly Payments shall be due on the same day of each subsequent month until you have paid all the Monthly Payments due under this Lease. You agree that this Lease is a net lease which may not be terminated or cancelled; that you have an unconditional obligation to make all payments due under the Lease according to the terms set forth above, and that you cannot withhold, set-off or reduce such payments for any reason. You authorize us to adjust the lease payment by not more than 20% if the actual total cash price for the Equipment differs from the estimated total cash price. You agree to pay us a documentation fee of $55.00 upon execution of this Lease. 2. PURCHASE ORDER: You authorize us to purchase the Equipment from Gateway Companies, Inc. or one of its affiliates. You will arrange for the delivery of the Equipment. When you receive the Equipment, you agree to inspect it to determine if it is in good working order. 3. ASSIGNMENT: YOU MAY NOT SELL, PLEDGE, TRANSFER, ASSIGN OR SUBLEASE THE EQUIPMENT OR THIS LEASE. We may sell, assign or transfer all or any part of this lease and/or the Equipment without notifying you. The new owner will have the same rights that we have, but not our obligations. You agree you will not assert against the new owner any claims, defenses or set-offs that you may have against the supplier. 4. NO WARRANTIES: We are leasing the Equipment to you "AS-IS". YOU ACKNOWLEDGE THAT WE DO NOT MANUFACTURE THE EQUIPMENT, WE DO NOT REPRESENT THE MANUFACTURER OR THE SUPPLIER, AND YOU HAVE SELECTED THE EQUIPMENT AND SUPPLIER BASED UPON YOUR OWN JUDGMENT. WE MAKE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE. We transfer to you for the term of this Lease any warranties made to us by the manufacturer or supplier. You agree that you will not assert against us any claim or defense that you have against the supplier. 5. EQUIPMENT LOCATION; USE AND REPAIR; RETURN: We are the owner of the Equipment. You agree to keep the Equipment free from liens and encumbrances. You will keep and use the Equipment only at the address set forth above. You may not move the Equipment without our prior written consent. At your own cost, you will keep the Equipment eligible for any manufacturer's certification, in compliance with all applicable laws and in good condition, except for ordinary wear and tear. You will not make any alterations, additions or replacements to the Equipment without our prior written consent. All permitted alterations, additions and replacements will become our property at no cost to us. We may inspect the Equipment during normal business hours. Unless you purchase the Equipment at the end of this Lease, you will immediately deliver the Equipment to the party and location directed by us in as good condition as when you received it, except for ordinary wear and tear. You will pay all shipping and other expenses, and you will insure the Equipment for its full replacement value during shipping. 6. TAXES: You agree to pay when due or reimburse us for all taxes, fines, and penalties relating to the use or ownership of the Equipment or to this Lease, now or hereafter imposed, or assessed by any state, federal or local government or agency, including any taxes to be paid at the inception of this lease. We do not have to contest any taxes, fines or penalties. THIS LEASE MAY NOT BE CANCELED COPELCO CAPITAL, INC. (LESSOR) ACCEPTANCE (LESSEE) CERPROBE CORPORATION By: Evan Johns By: - --------------------------------------- --------------------------------------- Authorized Signer Print Name: EVAN JOHNS Title - -------------------------------------- ---------------------------- Title Director of Materials ------------------------- Street Address: 1150 N. FIESTA BLVD Date: GILBERT, AZ 85233 --------------------------
FAX EXECUTION: A fax version of this Lease when received by us shall be binding on you for all purposes as if originally signed. 2 However, the Lease shall only become effective and binding against us when originally signed by us in our corporate office. You agree that the only version of the Lease that is the original for all purposes is the version containing your fax signature and our original signature. If you elect to sign and transmit a Lease by fax, you waive notice of our acceptance of this Lease and receipt of a copy of the originally signed Lease. PERSONAL GUARANTY When we use the words you and your in this Guaranty, we mean the Guarantor(s) indicated below. When we use the words we, us and our in this Guaranty, we mean Copelco Capital, Inc. All other terms shall have the same meanings as used in the Lease. You guaranty that the Lessee will make all payments and perform all other obligations under the Lease until completed. Your obligations shall be continuing, direct and unconditional. You waive notice of Lessee's default, acceptance, demand and protest and you consent to any modifications to the Lease. You shall not assign this Guaranty. This Guaranty shall be binding upon your permitted successors and assigns and inure to the benefit or our successors and assigns. If there is more than one Guarantor, your obligations are joint and several. You authorize us or any of our affiliates to obtain credit bureau reports regarding your credit and make other credit inquiries that we determine are necessary. You will reimburse us for all expenses we incur in enforcing any of our rights against you or the lessee/customer, including reasonable attorney's fees and costs (both pre and post judgement). THIS GUARANTY IS GOVERNED BY THE LAWS OF THE STATE OF NEW JERSEY. YOU CONSENT TO THE JURISDICTION OF ANY COURT LOCATED WITHIN NEW JERSEY. YOU EXPRESSLY WAIVE ANY RIGHT TO A TRIAL BY JURY. Guarantor (Signature) X /s/ Evan Johns Guarantor (Signature) X -------------- ----------- Do not include Title Do not include Title Print Name: Evan Johns Print Name: ---------- ---------- Date 6/30/00 Date ----------- ----------- 7. LOSS OR DAMAGE; INSURANCE: You are responsible for any loss, theft, destruction or damage to, the Equipment (collectively "Loss") from any cause, whether or not insured, until the Equipment is delivered to us at the end of this Lease. You are required to make all lease payments even if there is a Loss. You must notify us in writing immediately of any Loss. Then, at our option, you will either (a) repair the Equipment so that it is in good condition and working order, eligible for any manufacturer's certification, or (b) pay us the amounts specified in Section 9 below. You agree to keep the Equipment insured for its full replacement value against any type of Loss, and name us as loss payee until the Lease is paid in full. You also agree to obtain a general liability insurance policy, and include us as an additional insured on the policy. If you do not give us evidence of insurance acceptable to us, we have the right, but not the obligation, to obtain insurance covering our interest in the Equipment from an insurer of our choice. We may add the costs of acquiring such insurance ("Insurance Charge") to the amounts due from you under this Lease. You will pay the Insurance Charge to us upon demand. 8. LATE CHARGES; SECURITY DEPOSIT; SECURITY INTEREST: If any payment is not made when due, you agree to pay a late charge at the rate of ten percent (10%) of such late payment or up to $50.00, at lessor's discretion; and each month thereafter, a finance charge of one and one-third percent (1.3%) on any unpaid delinquent balance, but in no event greater than the maximum rate allowable under applicable law. Any Security Deposit under this Lease will either be returned to you or used to offset any unpaid charges at the end of the Lease provided that you have met all obligations under the Lease. In the event this transaction is deemed to create a security interest, you grant us a purchase money security interest in the Equipment (including any replacements, substitutions, additions, attachments and proceeds). You will deliver to us signed financing statements or other documents we request to protect our interest in the Equipment. You appoint us or our agent as attorney in fact to execute, deliver and record financing statements on your behalf to perfect our interest in the Equipment. 9. DEFAULT; REMEDIES: Each of the following is a "Default" under this Lease: (a) you fail to pay any lease payment or any other payment when due, (b) you fail to perform any of your other obligations under this Lease or in any other agreement with us or with any of our affiliates, and this failure continues for 10 days after we have notified you of it, (c) you become insolvent, you dissolve or are dissolved, you fail to pay your debts as they mature, you assign your assets for the benefit of your creditors, or you enter (voluntarily or involuntarily) any bankruptcy or reorganization proceeding, or (d) any guarantor of this Lease dies, does not perform its obligations under the guaranty, or becomes subject to one of the events listed above. If a Default occurs, we may do one or more of the following: (a) cancel or terminate this Lease or any or all other agreements that we have entered into with you; (b) require you to immediately pay us, as compensation for loss of our bargain and not as a penalty, a sum equal to (i) all amounts then due under this Lease plus, (ii) all unpaid lease payments for the remainder of the term plus our anticipated residual interest in the Equipment each discounted to present value at the rate of 6% per annum; (c) deliver the Equipment to us as set forth in Section 5; (d) peacefully repossess the Equipment without court order and you will not make any claims against us for damages or trespass or any other reason; and (e) exercise any other right or remedy available at law or in equity. You agree to pay all of our costs of enforcing our rights against you, including reasonable attorneys' fees and costs (pre and post judgements). If we take possession of the Equipment, we may sell or otherwise dispose of it with or without notice, at a public or private sale, and apply the net proceeds (after we have deducted all costs related to the sale or disposition of the Equipment) to the amounts that you owe us. You agree that if notice of sale is required by law to be given, 10 days notice shall constitute reasonable notice. You will remain responsible for any amounts that are due after we have applied such net proceeds. All our remedies are cumulative, are in addition to any other remedies provided for by law and may be exercised either concurrently or separately. Any failure or delay by us to exercise any right shall not operate as a waiver of any right, other or future rights or to modify the terms of this Lease. 10. FINANCE LEASE STATUS: You agree that if Article 2A - Leases of the Uniform Commercial Code applies to this Lease, this Lease will be considered a "finance lease" as that term is defined in Article 2A. By signing this Lease, you agree that either (a) you have reviewed, approved and received a copy of the purchase agreement/order or (b) that we have informed you of the identity of the supplier, that you may have rights under the purchase agreement/order, and that you may contact the supplier for a description of those rights. TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOU WAIVE ANY AND ALL RIGHTS AND REMEDIES CONFERRED UPON A LESSEE BY ARTICLE 2A. 11. PURCHASE OPTION; AUTOMATIC RENEWAL: If no Default exists under this Lease, you may have the option at the end of the original or any renewal term to purchase all (but not less than all) of the Equipment at the purchase option above, plus any applicable taxes. Unless the purchase option price is $1.00, you must give us at least 90 days written notice before the end of the original term or renewal term that you will purchase the Equipment or that you will return the Equipment to us. If you do not give us such written notice or if you do not purchase or deliver the Equipment to us in accordance with the terms of this Lease, this Lease will automatically renew for successive one month terms until you deliver the Equipment to us. During such renewal term(s) the lease payment will remain the same. We may cancel an automatic renewal term by sending you written notice 10 days prior to such renewal term. If the Fair Market Value Purchase Option has been selected, we will use our reasonable judgment to determine the Equipment's fair market value. If you do not agree with our determination of the Equipment's fair market value, the fair market value will be determined at your expense by an independent appraiser 3 selected by us. Upon payment of the purchase option price, we shall transfer our interest in the Equipment to you "AS IS, WHERE IS" without any representation or warranty whatsoever, and this Lease will terminate. 12. INDEMNIFICATION: You are responsible for and agree to indemnify and hold us harmless from any (a) losses, damages, penalties, claims, suits and actions (collectively "Claims") caused by or related to the manufacture, installation, ownership, use, lease, possession, or delivery of the Equipment or any defects in the Equipment and (b) as costs and attorney's fees incurred by us relating to any Claim. You agree to reimburse us for and if we request to defend us, at your own cost and expense against any Claims. You agree that your obligations under this Section 12 shall survive the termination of this Lease. 13. SOFTWARE: The Equipment may include certain software ("Software") which we do not own. Where required by the Software owner, you agree to execute a separate license agreement with the owner for the use of the Software ("License Agreement"). The License Agreement shall be separate and distinct from this Lease, and we are not a party to such agreement and do not have any obligations under the License Agreement. Except as expressly modified by this Section 13, all the terms and conditions of this Lease shall apply to the Software including, without limitation, Section 4. Upon expiration or earlier termination of this Lease, we have no obligation to return the Software and/or any data stored therein to you or any other party. 14. MISCELLANEOUS: (a) Choice of Law. THIS LEASE SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW JERSEY (WITHOUT REGARD TO THE CONFLICT OF LAWS PRINCIPLES OF SUCH STATE). (b) Jurisdiction. You consent to the jurisdiction of any local, state or federal court located within the State of New Jersey. (c) Jury Trial. YOU EXPRESSLY WAIVE TRIAL BY JURY AS TO ALL ISSUES ARISING OUT OF OR RELATED TO THIS LEASE. (d) Entire Agreement. The Lease constitutes the entire agreement between you and us and supercedes all prior agreements. (e) Enforceability. If any provision of this Lease is unenforceable, illegal or invalid, the remaining provisions shall continue to be effective. (f) Amendment. This Lease may not be modified or amended except by a writing signed by you and us. You agree however, that we are authorized, without notice to you, to supply missing information or correct obvious errors in the Lease. (g) Notice. All notices shall be in writing and shall be delivered to the appropriate party personally, by private courier, by facsimile transmission or by mail, postage prepaid, at its address shown herein or to such other address as directed in writing by such party. (h) Usury. It is the express intent of both of us not to violate any applicable usury laws or to exceed the maximum amount of interest permitted to be charged or collected by applicable law, and any excess payment will be applied to the lease payments in inverse order of maturity, and any remaining excess will be refunded to you. EX-10.RRR 12 p63766ex10-rrr.txt EX-10.RRR 1 Exhibit 10(rrr) [DELL LETTERHEAD] EVAN JOHNS CERPROBE CORPORATION 1150 N. FIESTA BLVD. GILBERT, AZ 85233 SEPTEMBER 29, 2000 Dear EVAN JOHNS: Dell Financial Services, L.P. ("DFS") is pleased to provide you with the following documentation for your Dell equipment lease. Your DFS Lease Agreement Number is: 001430836-001 _________________________________________________ Your DELL Customer Number is: 4279972 __________________________________________________ To expedite your order(s), please complete the following four steps: 1. SIGN BOTH THE LEASE AGREEMENT AND ATTACHMENT A WHERE INDICATED. (If a personal guarantee has been required, please sign the Guaranty Section of the lease agreement accordingly. Please fill in your home address where required.) 2. FAX ALL PAGES (Lease Agreement and Attachment A) to 1-512-283-9131. YOUR ORDER CANNOT BE RELEASED TO MANUFACTURING UNTIL THIS STEP IS COMPLETE. (Please make sure you receive confirmation that the fax transmittal was successful. If you do not have facsimile access, please call our Customer Service Department at 1-800-955-3355.) 3. Please FAX A COPY OF A VOIDED BUSINESS CHECK or deposit slip to us along with your faxed documents. (You DO NOT have to send HARDCOPY of this voided check with your original documents, the facsimile will suffice.) 4. AFTER FAXING, please forward all of the ORIGINAL DOCUMENTATION via overnight mail to: Dell Financial Services L.P. Lockbox 99200 840 S. Canal Street, 3rd Floor Chicago, IL 60693 The first invoice you receive once your lease commences will include your monthly rent payment, any applicable taxes and/or fees and the shipping charge to get your equipment to you if your Lease indicates that shipping charges ARE NOT included in your Monthly Rental Payment in the Financing Terms section on page one. Subsequent invoices will only include your monthly rental payments and any applicable taxes and/or fees. If we may be of further assistance, please call Dell Financial Services at 1-800-955-3355. Select the Customer Service option from the voice activated prompt for the fastest service. Please have your Dell Order number(s), located below "General Equipment Description" on your "Lease Agreement Attachment A", ready when you call. Thank you for choosing DFS! Sincerely, DELL FINANCIAL SERVICES, L.P. STEVEN SIKES 800-955-3355 US_DFS_Customer_Experience@Dell.com (please include customer or order number in email) 2 LEASE NO: 001430836-001 [DELL LOGO] Financial Services + Company No: 15 THIS LEASE HAS BEEN WRITTEN IN "PLAIN ENGLISH". WHEN WE USE YOU AND YOUR IN THIS LEASE WE MEAN YOU, THE CUSTOMER WHO IS THE LESSEE INDICATED BELOW. WHEN WE USE WE, US AND OUR WE MEAN THE LESSOR, DELL FINANCIAL SERVICES LP.
- ----------------------------------------------------------------------------------------------------------------------------------- FULL LEGAL NAME OF LESSEE LEASE MONTHLY RENT MONTHLY TERM PAYMENT PERSONAL (MONTHS) PROPERTY MGMT FEE* CERPROBE CORPORATION 24 $2,803.83 $79.82 *Subject to Applicable *Subject to Applicable Tax Tax - ----------------------------------------------------------------------------------------------------------------------------------- DBA NAME (IF ANY) TYPE OF BUSINESS FINANCING TERMS CORPORATION Product Cost = $59,753.98 Doc. Fee* = $55.00 - -------------------------------------- Shipping Charges** = $2,380.00 BILLING ADDRESS: STREET, CITY, STATE, ZIP CODE *A $55,00 Documentation Fee IS included in the Monthly Rent Payment shown above. 1150 N FIESTA BLVD GILBERT AZ 85233 **Charges to ship to you ARE included in the Monthly Rental Payment. - ----------------------------------------------------------------------------------------------------------------------------------- PRODUCT LOCATION GENERAL PRODUCT DESCRIPTION/SUPPLIER SEE ATTACHMENT A SEE ATTACHMENT A - ----------------------------------------------------------------------------------------------------------------------------------- GUARANTOR (IF ANY) SOCIAL SECURITY NUMBER END OF LEASE PURCHASE OPTION FMV - -----------------------------------------------------------------------------------------------------------------------------------
TERMS AND CONDITIONS OF LEASE 1. LEASE; ACCEPTANCE AND COMMENCEMENT; TERM; RENT: We agree to lease to you and you agree to lease from us the products, services, and software (the "Products") described in Exhibit A to this lease on the terms and conditions shown in this lease agreement (the "Lease"). With respect to services, we will only finance one-time charges for services rendered in connection with the Products. Services may include delivery and installation fees, or similar services ("Services"). This Lease will begin and Products will be deemed irrevocably accepted for purposes of this Lease five (5) days after shipment from the Supplier (the "Commencement Date"). When you receive the Products, you agree to inspect them promptly and advise us if they are not in good working order. We honor Dell Computer Corporation's ("Dell") "Total Satisfaction Return Policy". If you return Dell branded Products within 30 days after shipment from Dell, in the condition and manner required by Dell, you may terminate the Lease obligations with respect to those Products. You are responsible for freight charges to deliver and return the Products. Complete details regarding the "Total Satisfaction Return Policy" are included in the manufacturer's documentation provided to you with the Products. The first Rent payment is due thirty (30) days after the Commencement Date, and subsequent payments of Rent are due on the same date of each subsequent month (or the last day of the month if there is no such date). You agree to pay us the Rent for the number of months of the Lease Term stated above. You will make all payments required under this Lease to us at the address we specify in writing. You authorize us to adjust the Rent amount by not more than 15% if the actual Product Cost (which is all amounts we have paid or will pay in connection with the purchase, delivery, and installation of the Products, including any trade-up and buyout amounts, or amounts incurred by us as a result of changes you make to your order with the Supplier) differs from the Product Cost shown above. If any payment of Rent or other amount payable to us is not paid within ten (10) days after the due date, you will pay us a late charge equal to the greater of (I) 5% of the late payment amount or (II) $5.00 for each late payment (or if less, the highest amount permitted by applicable law). 2. NO WARRANTIES: WE ARE LEASING THE PRODUCTS TO YOU "AS-IS", YOU ACKNOWLEDGE THAT WE DO NOT MANUFACTURE OR SUPPLY THE PRODUCTS, WE DO NOT REPRESENT THE MANUFACTURER OR SUPPLIER AND YOU HAVE SELECTED THE PRODUCTS AND THE SUPPLIER BASED ON YOUR OWN JUDGEMENT. WE MAKE NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING THE MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OF THE PRODUCT OR ANY SERVICES. WE HEREBY ASSIGN ALL WARRANTIES MADE TO US BY SUPPLIER, MANUFACTURER, AND ANY SERVICE PROVIDER TO YOU, AND YOU AGREE THAT YOU WILL MAKE ALL CLAIMS OF ANY KIND RELATING TO THE PRODUCTS OR SERVICES AGAINST SUCH SUPPLIER, MANUFACTURER, AND/OR SERVICE PROVIDER. 3. SELECTION AND ORDERING OF PRODUCTS: You select the type and quantity of the Products subject to this Lease. If you have entered into a purchase or supply contract ("Supply Contract") with any Supplier, you assign your rights but not your obligations (other than the obligation to pay for the Products if accepted by you under this Lease) effective prior to the passage of title by the Supplier to you. 4. LOCATION; USE; ALTERATIONS; INSPECTION: You will use the Products solely at the location specified in the Lease, or if none is specified, at your billing address. Except for temporary relocation of laptop personal computers, you may not move the Products without our prior written consent, which shall not be unreasonably withheld. At your own expense, you will maintain the Products in good repair, condition and functional order (except for ordinary wear and tear) and will use them in compliance with all applicable laws. You will use all software in accordance with the end user license terms of the applicable software license agreement ("License"). You may make additions or improvements to the Products unless the addition or improvement would violate any License, decrease the value of Products, or impair their utility. You may remove any such addition or improvement at the end of the Lease if B S D PAGE 1 OF 4 + Ver 1198 Mod 5.42stlease 3 LEASE NO: 001430836-001 transaction involving interstate commerce, and shall be governed by the Federal Arbitration Act at 9 U.S.C. Section 1, et. seq. Judgment upon the award rendered may be entered in any court having jurisdiction. Any arbitration award in excess of $100,000 made pursuant to this arbitration agreement may be appealed by the party against which the award is made. Such appeal will be a de novo arbitration proceeding before three arbitrators. The parties agree and understand that they may choose arbitration instead of litigation to resolve disputes. The parties understand that they have a right or opportunity to litigate disputes in court, but may elect to resolve their disputes through arbitration as provided herein. The parties agree and understand that all disputes arising under case law, statutory law, and all other laws including, but not limited to, all contract, tort, and property disputes, may be subject to binding arbitration in accord with this Lease. No class action or request for relief may be brought under this arbitration agreement. You agree that you shall not have the right to participate in arbitration or in court proceedings as a representative or a member of any class of claimants pertaining to any claim arising from or relating to this Lease. The parties agree and understand that the arbitrator shall have all powers provided by law and this Lease, except for powers limited or prohibited by this Lease. Notwithstanding anything herein to the contrary, we retain an option to use judicial or nonjudicial relief to recover the Products or to enforce our security interest in the Products, to enforce the monetary obligation secured by the Products or to foreclose on the Products. Such judicial relief would take the form of a lawsuit. The institution and maintenance of any action for judicial relief in a court to foreclose upon any Products, to obtain a monetary judgment or to enforce this Lease, shall not constitute a waiver of the right of any party to compel arbitration regarding any other dispute or remedy subject to arbitration in this Lease, including the filing of a counterclaim in a suit brought by us pursuant to this provision. YOU UNDERSTAND AND AGREE THAT IN ARBITRATION: YOU GIVE UP RIGHTS TO SEEK REMEDIES IN COURT, INCLUDING THE RIGHT TO A JURY TRIAL; YOUR ABILITY TO COMPEL OTHER PARTIES TO PRODUCE DOCUMENTS OR BE EXAMINED IS MORE LIMITED THAN IN A LAWSUIT; AND, YOUR RIGHTS TO APPEAL OR CHANGE ANY ARBITRATION AWARD IN ANY COURT ARE STRICTLY LIMITED. 16. FINANCE LEASE: You agree that if Article 2A of the Uniform Commercial Code applies to this Lease, this Lease will be considered a "finance lease" as defined by Article 2A and by signing this Lease you acknowledge that either (1) you have received, reviewed and approved the supply contract with the Supplier or (2) we have informed you of the identity of the Supplier, that you may have rights and warranties under the supply contracts for the Products and you may contact the supplier of the Products for a description of those rights and warranties. TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOU HEREBY WAIVE ANY AND ALL RIGHTS AND REMEDIES CONFERRED UPON A LESSEE BY ARTICLE 2A. 17. MISCELLANEOUS: You agree that the terms and conditions of this Lease make up the entire agreement between you and us regarding the lease of the Products. Any change in the terms and conditions of the Lease must be in writing and signed by us. You agree, however, that we are authorized, without notice to you, to supply missing information or correct obvious errors in this Lease. All of our rights and remedies will survive termination of this Lease. All notices under this Lease will be given in writing and will be considered given when deposited in the U.S. mail, postage prepaid, addressed to the respective address given below or to a substitute address specified in writing by one of us to the other. Any failure of ours to require strict performance by you or any waiver by us of any provision in this Lease will not be construed as a consent or waiver of any other breach of the same or any provision. If any portion of this Lease is deemed invalid, it will not affect the balance of this Lease. It is the express intent of both of us not to violate any usury laws, or to exceed the maximum amount of time price differential, or interest as applicable permitted to be changed, or collected under applicable law and any such excess payment will be applied to payments under the Lease in inverse order of maturity and the remaining payments will be refunded to you. If a signed copy of this Lease is delivered to us by facsimile transmission, it will be binding on you, however, we will not be bound by this Lease until we accept it by manually or electronically signing it or by purchasing the Products, whichever occurs first. You waive notice of our acceptance and waive your right to receive a copy of the accepted Lease. You agree that, notwithstanding any rule of evidence to the contrary, in any hearing, trial or proceeding of any kind with respect to this Lease, we may produce a copy of the Lease transmitted to us by facsimile transmission that has been manually signed by us and each signed copy shall be deemed to be the original of the Lease. To the extent (if any) that this Lease constitutes chattel paper under the Uniform Commercial Code, no security interest in this Lease may be created through the transfer and possession of any copy or counterpart hereof except the copy with our original signature. If you deliver this Lease to us by facsimile transmission, you acknowledge that we are relying on your representation that this Lease has not been changed. BY SIGNING THIS LEASE: (a) YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THE TERMS AND CONDITIONS OF THIS LEASE; (b) YOU AGREE THAT THIS LEASE IS A NET LEASE AND YOU CANNOT TERMINATE OR CANCEL AND UPON ACCEPTANCE OF THE PRODUCTS YOU HAVE AN UNCONDITIONAL OBLIGATION TO MAKE ALL PAYMENTS UNDER THIS LEASE AND YOU CANNOT WITHHOLD, SETOFF OR REDUCE SUCH PAYMENTS FOR ANY REASON; (c) YOU AGREE THAT THE PRODUCTS WILL BE USED FOR BUSINESS PURPOSES ONLY AND NOT FOR PERSONAL, FAMILY OR HOUSEHOLD PURPOSES; (d) YOU CONFIRM THAT THE PERSON SIGNING THIS LEASE FOR YOU HAS THE AUTHORITY TO DO SO AND TO GRANT THE POWER OF ATTORNEY IN SECTION 5; (e) YOU AGREE THAT THIS LEASE WILL BE GOVERNED BY THE LAWS OF THE STATE OF ILLINOIS AND YOU CONSENT TO THE JURISDICTION OF ANY COURT LOCATED WITHIN THAT STATE AND YOU EXPRESSLY WAIVE THE RIGHT TO A TRIAL BY JURY AND (f) TO CONFIRM THAT THE INFORMATION IN ANY APPLICATION, STATEMENT, TRADE REFERENCE OR FINANCIAL REPORT SUBMITTED TO US IS TRUE AND CORRECT AND YOU UNDERSTAND THAT ANY MATERIAL MISREPRESENTATION SHALL CONSTITUTE A DEFAULT UNDER THE LEASE. LESSEE: CERPROBE CORPORATION /s/ Roseann L. Tavarozz - --------------------------------- AUTHORIZED SIGNATURE Roseann L. Tavarozz VP Corp Cont - --------------------------------- PRINT NAME AND TITLE DATE 9/29/00 LESSOR: Dell Financial Services, LP. Phone (800) 955-3355 P.O. Box 99200 Fax (512) 246-2028 840 S. Canal Street 3rd Floor Fax (800) 934-4207 Chicago, IL 60693 - --------------------------------- AUTHORIZED SIGNATURE - --------------------------------- PRINT NAME AND TITLE DATE NOT APPLICABLE FEDERAL EMPLOYER ID # (or SOCIAL SECURITY NUMBER for SOLE PROPRIETORS) THIS NUMBER MUST BE PROVIDED ON THE EXECUTED LEASE AGREEMENT Page 3 of 4 4 LEASE NO: 001430836-001 (i) you repair any damage to Products resulting from the removal; (ii) you restore the Products to their original and functional condition (excluding ordinary wear and tear); and, (iii) the removal does not violate any License or render the Products incapable of use or operation. All additions or improvements not removed will become our property at no cost to us. You agree that we, our assignees, and agents, may inspect the Products at the premises where the Products are located at any reasonable time with prior notice. 5. TITLE; QUIET ENJOYMENT; PERSONAL PROPERTY; FILING: We are the owner of and will hold title to the Products. You will keep the Products free from any and all liens, encumbrances and claims. So long as you are not in Default under the Lease, we will not interfere with your quiet use and enjoyment of the Products during the Lease Term or any renewal term. Unless the Purchase Option is $1, you agree that this transaction is intended to be a true lease under UCC Article 2A. However, if this transaction is deemed to be a lease intended for security under UCC Article 9, you grant us a purchase money security interest in the Products (including any replacements, substitutions, additions, attachments and proceeds). You authorize us to file a copy of this Lease as a UCC-1 financing statement (UCC-1) and hereby appoint us or our designee as your attorney-in-fact to sign on your behalf and to file UCC-1's covering the Products. You agree to pay a one-time Documentation Fee to cover our costs for such filing and other documentation costs. 6. LOSS OR DAMAGE: From the time the Products are delivered to a carrier for shipment to you until their return to us, you are responsible for any loss, theft, damage to or destruction of the Products ("Loss") from any cause at all, whether or not the Loss is covered by insurance. You are required to make all payments under the Lease even if there is a Loss. You must notify us immediately if there is any Loss. Then at our option, you will either (a) repair the Products so they are in good condition and working order to our satisfaction; or (b) replace the Products with like products in good condition and repair and of the same manufacture and equal or greater capacity and capability, with clear title thereto in us; or (c) pay us the "Stipulated Loss Value" which is the sum of: (i) all Rent payments for all the Products and other amounts past due (plus interest thereon) or currently owed to us under the Lease, including unpaid taxes and (ii) all future Rent payments that would accrue over the remaining Lease Term plus our estimated value of our residual interest of all of the Products at the end of the Lease Term, such sum to be discounted to present value at a discount rate equal to the Federal Reserve Bank Discount Rate in effect at the Commencement Date of the Lease ("Discount Rate"). When you pay the amount of (c) above to us, we will transfer to you our interest in the Products, "AS-IS-WHERE-IS", without any warranty, express or implied, including warranty of merchantability or fitness for any particular purpose. 7. INSURANCE: You will provide and maintain, at your expense, (a) property insurance against the loss or theft of or damage to the Products, for their full replacement value naming us as loss payee and (b) public liability and third party property damage insurance naming us as an additional insured. All insurance shall be in a form and amount and with companies satisfactory to us and will provide that we will be given thirty (30) days written notice before cancellation or material change of the policy. At our request, you will deliver the policies or certificates of insurance to us. If you do not give us evidence of insurance acceptable to us we have the right, but not the obligation, to obtain such insurance covering our interest in the Products for the Lease Term. The cost for such insurance will be an additional amount due from you under the Lease. 8. TAXES: You will pay when due, either directly or to us on demand, all taxes (local, state and federal), fines or penalties which may now or hereafter be imposed or levied upon the Lease and the Products, excluding taxes on our net income. We do not have to contest any taxes, fines or penalties. We may, at our option, charge you a liquidated monthly personal property management fee, to be added to Rent payments owed under this Lease. 9. RETURN: Unless the Lease is renewed or you purchase the Products in accordance with the terms of the Lease, you will immediately deliver the Products and original operating system software, (including but not limited to the operating software kit, manuals, cables, power cords, keys, etc.) in good repair, operable condition and able to qualify for the manufacturer's warranty service (ordinary wear and tear excepted) to any place in the continental United States that we direct. You will pay all expenses for deinstalling, packing and shipping and you will insure the Products for the full replacement value during shipping. You will immediately pay us on demand the costs and expenses of all missing or damaged Products (including the operating software kit). 10. PURCHASE OPTION; AUTOMATIC RENEWAL: If no Default exists under the Lease, you will have the option at the end of the Lease Term to purchase all (but not less than all) of the Products for the amount of the Purchase Option price shown above which, if it is the then fair market value of the Products, will be as determined by us, plus any applicable taxes. Unless the Purchase Option price is $1, you must give us written notice at least ninety (90) days before the end of the Lease Term that you will purchase the Products or that you will return the Products to us. Unless you purchase the Products or return the Products to us on the last day of the Lease Term, this Lease will automatically renew for an additional ninety (90) day term and thereafter on a continuing month to month basis until you give us thirty (30) days notice and deliver the Products to us. During such renewal terms, the Rent payment will remain the same. If the Fair Market Value Purchase Option has been selected we will use our reasonable judgement to determine the Products' in place value. If you do not agree with our determination, the fair market retail value will be determined for you at your expense by an independent appraiser elected by us. Upon payment of the Purchase Option price in full, we will transfer our interest in the Products to you "AS-IS-WHERE-IS", without any warranty whatsoever, and the Lease will terminate. 11. ASSIGNMENT: YOU MAY NOT ASSIGN, SELL, TRANSFER, OR SUBLEASE THE PRODUCTS OR YOUR INTEREST IN THIS LEASE. We may, without notifying you, sell, assign or transfer the Lease and our rights in the Products. You agree that the new owner will have the same rights and benefits that we have now under this Lease, but not our obligations. The rights of the new owner will not be subject to any claim, defense, or setoff that you may have against us. 12. DEFAULT: Each of the following is a default ("Default") under the Lease: (a) you fail to pay any Rent or any other payment within 10 days of its due date; (b) you do not perform any of your obligations under the Lease or in any other agreement with us or with any of our affiliates and this failure continues for 10 days after we have notified you of it; (c) you become insolvent, you dissolve or are dissolved, you assign your assets for the benefit of your creditors or enter voluntarily or involuntarily any bankruptcy or other reorganization proceeding; (d) you or any Guarantor provide us incorrect or untrue information regarding any material matter in connection with your application for credit or entering into this Lease; or (d) if this Lease has been guaranteed by someone other than you, any guarantor of the Lease dies, does not perform its obligations under the Guaranty or becomes subject to one of the events listed in clause (c). 13. REMEDIES: If a Default occurs, we may do one or more of the following: (a) we may cancel or terminate the Lease or any agreements that we have entered into with you or withdraw any offer of credit; (b) we may require you to pay us, as compensation for loss of our bargain and not as a penalty, a sum equal to (i) the Stipulated Loss Value calculated under clause 8 plus (ii) all other amounts due and to become due under the Lease; (c) we may require you to deliver the Products to us as set forth in clause 9; (d) we or our agent may peacefully repossess the Products without court order and you will not make any claims against us for trespass, damages or any other reason and (e) we may exercise any other right at law or in equity. You agree to pay all of our costs of enforcing our rights against you, including reasonable attorney's fees. If we take possession of the Products we may sell or otherwise dispose of the Products, with or without notice, at public or private sale and apply the net proceeds (after we have deducted our costs related to the sale and disposition) to the amounts that you owe us. You agree that if notice of a sale is required by law to be given, 10 days notice will constitute reasonable notice. You will remain responsible for any amounts that are due after we have applied such net proceeds. 14. INDEMNITY: You are responsible for losses, damages, penalties, claims, costs (including attorneys' fees and expenses), actions, suits and proceedings of every kind, (collectively "Claims") whether based on a theory of strict liability or otherwise caused by or related to this Lease or the Products, (including any defects in the Products). You will reimburse us for, and if we request defend us against, any Claims. 15. ARBITRATION: Either party to this Lease may choose to have any dispute, claim, or controversy arising from or relating to this Lease, any prior agreement or lease between the parties, any application or advertisement related to this Lease or the validity of this arbitration clause or the entire Lease, resolved by binding arbitration pursuant to the Commercial Arbitration Rules of the American Arbitration Association. If such rules conflict with this arbitration agreement, however, then the terms of this arbitration agreement shall control. This arbitration agreement is made pursuant to a Page 2 of 4 EX-10.SSS 13 p63766ex10-sss.txt EX-10.SSS 1 EXHIBIT 10(sss) AMENDMENT TO THE CERPROBE CORPORATION CHANGE OF CONTROL AGREEMENT This Amendment ("Amendment") to the Cerprobe Corporation Change of Control Agreement ("Agreement") is made and entered into by and between CERPROBE CORPORATION ("Company") and C. Zane Close ("Executive"), as of the 17th day of August, 2000. RECITALS A. The Company and Executive have entered into the Agreement providing Executive with a special package of benefits if Executive's employment with the Company is terminated by the Company without Cause or if Executive terminates employment with the Company for Good Reason within two years following a Change of Control. B. The Company wishes to amend the Agreement to eliminate the ceiling on benefits in the event total payments paid to Executive due to a Change in Control exceed prescribed limits under Section 280G of the Internal Revenue Code of 1986, as amended ("Code"), and to require the Company to make an additional payment to Executive in the amount of the excise tax plus any additional income tax liability resulting from payments made to Executive in excess of the limits under Sections 280G and 4999 of the Code. C. The Company and Executive accordingly agree that the terms of the Agreement are amended as of the date of this Amendment. AGREEMENT 1. Paragraph 8 of the Agreement is hereby amended in its entirety to read as follows: 8 ADDITIONAL PAYMENT. If the present value of any "parachute payment" made to you under this Agreement (together with payments under any other agreement) would cause the payment to be characterized as an "excess parachute payment"' as such terms are defined in Section 280G of the Internal Revenue Code of 1986, as amended ("Code"), the Company shall make an additional payment to you in an amount equal to the excise tax you are required to pay under Section 4999 of the Code plus any additional income tax liability resulting from such payment. 2. Paragraph 16 of the Agreement is hereby amended in its entirety to read as follows: All claims, disputes and other matters in question between the parties arising under this Agreement shall, unless otherwise provided herein (such as in Section 9(d)), be resolved - 1 - 2 in accordance with the arbitration or alternative dispute resolution provisions included in your Employment Agreement. 3. The third sentence in Paragraph 19 of the Agreement is hereby deleted in its entirety. 4. This Amendment shall amend only the terms of the Agreement as set forth above, and those terms not expressly amended shall remain in full force and effect. IN WITNESS WHEREOF, the Company has caused this Amendment to be signed by its duly authorized officer and the Executive has signed this Amendment as of the date first written above. CERPROBE CORPORATION -------------------------------- Ross J. Mangano Chairman of the Board EXECUTIVE -------------------------------- - 2 - EX-10.TTT 14 p63766ex10-ttt.txt EX-10.TTT 1 EXHIBIT 10(ttt) AMENDMENT TO THE CERPROBE CORPORATION CHANGE OF CONTROL AGREEMENT This Amendment ("Amendment") to the Cerprobe Corporation Change of Control Agreement ("Agreement") is made and entered into by and between CERPROBE CORPORATION ("Company") and Michael K. Bonham ("Executive"), as of the 17th day of August, 2000. RECITALS A. The Company and Executive have entered into the Agreement providing Executive with a special package of benefits if Executive's employment with the Company is terminated by the Company without Cause or if Executive terminates employment with the Company for Good Reason within two years following a Change of Control. B. The Company wishes to amend the Agreement to eliminate the ceiling on benefits in the event total payments paid to Executive due to a Change in Control exceed prescribed limits under Section 280G of the Internal Revenue Code of 1986, as amended ("Code"), and to require the Company to make an additional payment to Executive in the amount of the excise tax plus any additional income tax liability resulting from payments made to Executive in excess of the limits under Sections 280G and 4999 of the Code. C. The Company and Executive accordingly agree that the terms of the Agreement are amended as of the date of this Amendment. AGREEMENT 1. Paragraph 8 of the Agreement is hereby amended in its entirety to read as follows: 8 ADDITIONAL PAYMENT. If the present value of any "parachute payment" made to you under this Agreement (together with payments under any other agreement) would cause the payment to be characterized as an "excess parachute payment" as such terms are defined in Section 280G of the Internal Revenue Code of 1986, as amended ("Code"), the Company shall make an additional payment to you in an amount equal to the excise tax you are required to pay under Section 4999 of the Code plus any additional income tax liability resulting from such payment. 2. Paragraph 16 of the Agreement is hereby amended in its entirety to read as follows: All claims, disputes and other matters in question between the parties arising under this Agreement shall, unless otherwise provided herein (such as in Section 9(d)), be resolved - 1 - 2 in accordance with the arbitration or alternative dispute resolution provisions included in your Employment Agreement. 3. The third sentence in Paragraph 19 of the Agreement is hereby deleted in its entirety. 4. This Amendment shall amend only the terms of the Agreement as set forth above, and those terms not expressly amended shall remain in full force and effect. IN WITNESS WHEREOF, the Company has caused this Amendment to be signed by its duly authorized officer and the Executive has signed this Amendment as of the date first written above. CERPROBE CORPORATION ---------------------------- Ross J. Mangano Chairman of the Board EXECUTIVE ---------------------------- - 2 - EX-10.UUU 15 p63766ex10-uuu.txt EX-10.UUU 1 EXHIBIT 10(uuu) AMENDMENT TO THE CERPROBE CORPORATION CHANGE OF CONTROL AGREEMENT This Amendment ("Amendment") to the Cerprobe Corporation Change of Control Agreement ("Agreement") is made and entered into by and between CERPROBE CORPORATION ("Company") and Daniel J. Hill ("Executive"), as of the 17th day of August, 2000. RECITALS A. The Company and Executive have entered into the Agreement providing Executive with a special package of benefits if Executive's employment with the Company is terminated by the Company without Cause or if Executive terminates employment with the Company for Good Reason within two years following a Change of Control. B. The Company wishes to amend the Agreement to eliminate the ceiling on benefits in the event total payments paid to Executive due to a Change in Control exceed prescribed limits under Section 280G of the Internal Revenue Code of 1986, as amended ("Code"), and to require the Company to make an additional payment to Executive in the amount of the excise tax plus any additional income tax liability resulting from payments made to Executive in excess of the limits under Sections 28OG and 4999 of the Code. C. The Company and Executive accordingly agree that the terms of the Agreement are amended as of the date of this Amendment. AGREEMENT 1. Paragraph 8 of the Agreement is hereby amended in its entirety to read as follows: 8 ADDITIONAL PAYMENT. If the present value of any "parachute payment" made to you under this Agreement (together with payments under any other agreement.) would cause the payment to be characterized as an "excess parachute payment" as such terms are defined in Section 280G of the Internal Revenue Code of 1986, as amended ("Code"), the Company shall make an additional payment to you in an amount equal to the excise tax you are required to pay under Section 4999 of the Code plus any additional income tax liability resulting from such payment. 2. Paragraph 16 of the Agreement is hereby amended in its entirety to read as follows: All claims, disputes and other matters in question between the parties arising under this Agreement shall, unless otherwise provided herein (such as in Section 9(d)), be resolved - 1 - 2 in accordance with the arbitration or alternative dispute resolution provisions included in your Employment Agreement. 3. The third sentence in Paragraph 19 of the Agreement is hereby deleted in its entirety. 4. This Amendment shall amend only the terms of the Agreement as set forth above, and those terms not expressly amended shall remain in full force and effect. IN WITNESS WHEREOF, the Company has caused this Amendment to be signed by its duly authorized officer and the Executive has signed this Amendment as of the date first written above. CERPROBE CORPORATION ________________________________ Ross J. Mangano Chairman of the Board EXECUTIVE ________________________________ - 2 - EX-10.VVV 16 p63766ex10-vvv.txt EX-10.VVV 1 EXHIBIT 10(vvv) AMENDMENT TO THE CERPROBE CORPORATION CHANGE OF CONTROL AGREEMENT This Amendment ("Amendment") to the Cerprobe Corporation Change of Control Agreement ("Agreement") is made and entered into by and between CERPROBE CORPORATION ("Company") and Randal L. Buness ("Executive"), as of the 17th day of August, 2000. RECITALS A. The Company and Executive have entered into the Agreement providing Executive with a special package of benefits if Executive's employment with the Company is terminated by the Company without Cause or if Executive terminates employment with the Company for Good Reason within two years following a Change of Control. B. The Company wishes to amend the Agreement to eliminate the ceiling on benefits in the event total payments paid to Executive due to a Change in Control exceed prescribed limits under Section 28OG of the Internal Revenue Code of 1986, as amended ("Code"), and to require the Company to make an additional payment to Executive in the amount of the excise tax plus any additional income tax liability resulting from payments made to Executive in excess of the limits under Sections 280G and 4999 of the Code. C. The Company and Executive accordingly agree that the terms of the Agreement are amended as of the date of this Amendment. AGREEMENT 1. Paragraph 8 of the Agreement is hereby amended in its entirety to read as follows: 8 ADDITIONAL PAYMENT. If the present value of any "parachute payment" made to you under this Agreement (together with payments under any other agreement) would cause the payment to be characterized as an "excess parachute payment" as such terms are defined in Section 28OG of the Internal Revenue Code of 1986, as amended ("Code"), the Company shall make an additional payment to you in an amount equal to the excise tax you are required to pay under Section 4999 of the Code plus any additional income tax liability resulting from such payment. 2. Paragraph 16 of the Agreement is hereby amended in its entirety to read as follows: All claims, disputes and other matters in question between the parties arising under this Agreement shall, unless otherwise provided herein (such as in Section 9(d)), be resolved - 1 - 2 in accordance with the arbitration or alternative dispute resolution provisions included in your Employment Agreement. 3. The third sentence in Paragraph 19 of the Agreement is hereby deleted in its entirety. 4. This Amendment shall amend only the terms of the Agreement as set forth above, and those terms not expressly amended shall remain in full force and effect. IN WITNESS WHEREOF, the Company has caused this Amendment to be signed by its duly authorized officer and the Executive has signed this Amendment as of the date first written above. CERPROBE CORPORATION ________________________________ Ross J. Mangano Chairman of the Board EXECUTIVE ________________________________ - 2 - EX-10.WWW 17 p63766ex10-www.txt EX-10.WWW 1 LEASE NO. 001-001430836-004 [DELL LOGO] EXHIBIT 10(www) Financial Services YOUR DELL CUSTOMER NUMBER IS: 4279972 Company No: 15 THIS LEASE HAS BEEN WRITTEN IN "PLAIN ENGLISH". WHEN WE USE YOU AND YOUR IN THIS LEASE WE MEAN YOU, THE CUSTOMER WHO IS THE LESSEE INDICATED BELOW. WHEN WE USE WE, US AND OUR WE MEAN THE LESSOR, DELL FINANCIAL SERVICES LP.
- ------------------------------------------------------------------------------------------------------------------------------------ FULL LEGAL NAME OF LESSEE LEASE MONTHLY RENT MONTHLY TERM PAYMENT* PERSONAL CERPROBE CORPORATION (MONTHS) PROPERTY MGMT FEE* 24 $3,088.66 $143.33 *Subject to Applicable *Subject to Applicable Tax Tax - ------------------------------------------------------------------------------------------------------------------------------------ DBA NAME (IF ANY) TYPE OF BUSINESS FINANCING TERMS CORPORATION Product Cost* $65,599.06 Transaction Processing Fee** $70.00 - ------------------------------------------ Shipping Charges*** $2,590.00 BILLING ADDRESS: STREET, CITY, STATE, ZIP (MONTHLY RENT PAYMENTS ARE DUE AND PAYABLE IN ARREARS) CODE *A Transaction Processing Fee IS included in the Monthly Rent Payment shown above. 1150 N FIESTA BLVD **Charges to ship to you ARE included in the Monthly Rental GILBERT AZ 85233 Payment. - ------------------------------------------------------------------------------------------------------------------------------------ PRODUCT LOCATION GENERAL PRODUCT DESCRIPTION/SUPPLIER SEE ATTACHMENT A SEE ATTACHMENT A - ------------------------------------------------------------------------------------------------------------------------------------ GUARANTOR (IF ANY) SOCIAL SECURITY NUMBER END OF LEASE PURCHASE OPTION FMV - ------------------------------------------------------------------------------------------------------------------------------------
TERMS AND CONDITIONS OF LEASE 1. NO WARRANTIES: WE ARE LEASING THE PRODUCTS TO YOU "AS-IS". YOU ACKNOWLEDGE THAT WE DO NOT MANUFACTURE OR SUPPLY THE PRODUCTS, WE DO NOT REPRESENT THE MANUFACTURER OR SUPPLIER AND YOU HAVE SELECTED THE PRODUCTS AND THE SUPPLIER BASED ON YOUR OWN JUDGMENT. WE MAKE NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING THE MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OF THE PRODUCT OR ANY SERVICES. WE HEREBY ASSIGN ALL WARRANTIES MADE TO US BY SUPPLIER, MANUFACTURER, AND ANY SERVICE PROVIDER TO YOU, AND YOU AGREE THAT YOU WILL MAKE ALL CLAIMS OF ANY KIND RELATING TO THE PRODUCTS OR SERVICES AGAINST SUCH SUPPLIER, MANUFACTURER, AND/OR SERVICE PROVIDER. 2. BY SIGNING THIS LEASE: (a) YOU ACKNOWLEDGE THAT YOU HAVE RECEIVED, READ, UNDERSTAND AND AGREE TO ALL OF THE TERMS AND CONDITIONS (INCLUDING SECTIONS NUMBERED 3-18, PAGES 3 OF 4 AND 4 OF 4) AND ATTACHMENT A OF THIS LEASE; (b) YOU AGREE THAT THIS LEASE IS A NET LEASE AND YOU CANNOT TERMINATE OR CANCEL AND UPON ACCEPTANCE OF THE PRODUCTS YOU HAVE AN UNCONDITIONAL OBLIGATION TO MAKE ALL PAYMENTS UNDER THIS LEASE AND YOU CANNOT WITHHOLD, SETOFF OR REDUCE SUCH PAYMENTS FOR ANY REASON; (c) YOU AGREE THAT THE PRODUCTS WILL BE USED FOR BUSINESS PURPOSES ONLY AND NOT FOR PERSONAL, FAMILY OR HOUSEHOLD PURPOSES; (d) YOU CONFIRM THAT THE PERSON SIGNING THIS LEASE FOR YOU HAS THE AUTHORITY TO DO SO AND TO GRANT THE POWER OF ATTORNEY IN SECTION 6; (e) YOU AGREE THAT THIS LEASE WILL BE GOVERNED BY THE LAWS OF THE STATE OF ILLINOIS AND YOU CONSENT TO THE JURISDICTION OF ANY COURT LOCATED WITHIN THAT STATE AND YOU EXPRESSLY WAIVE THE RIGHT TO A TRIAL BY JURY; (f) YOU ACKNOWLEDGE AND AGREE THAT THIS LEASE IS SUBJECT TO THE ARBITRATION PROVISIONS SET FORTH IN SECTION 16. YOU UNDERSTAND AND AGREE THAT IN ARBITRATION: YOU GIVE UP RIGHTS TO SEEK REMEDIES IN COURT, INCLUDING THE RIGHT TO A JURY TRIAL; YOUR ABILITY TO COMPEL OTHER PARTIES TO PRODUCE DOCUMENTS OR BE EXAMINED IS MORE LIMITED THAN IN A LAWSUIT; AND, YOUR RIGHTS TO APPEAL OR CHANGE ANY ARBITRATION AWARD IN ANY COURT ARE STRICTLY LIMITED AND (g) YOU CONFIRM THAT THE INFORMATION IN ANY APPLICATION, STATEMENT, TRADE REFERENCE OR FINANCIAL REPORT SUBMITTED TO US IS TRUE AND CORRECT AND YOU UNDERSTAND THAT ANY MATERIAL MISREPRESENTATION SHALL CONSTITUTE A DEFAULT UNDER THE LEASE. IF YOU DELIVER THIS LEASE TO US BY FACSIMILE TRANSMISSION, AND WE DO NOT RECEIVE ALL OF THE PAGES TO THE LEASE, YOU AGREE THAT WE MAY SUPPLY THE MISSING PAGES, EXCEPT FOR ANY PAGES WHICH REQUIRE YOUR SIGNATURE, TO THE LEASE FROM OUR DATABASE WHICH CONFORMS TO THE VERSION NUMBER AT THE BOTTOM OF THE PAGE. TO THE EXTENT (IF ANY) THAT THIS LEASE CONSTITUTES CHATTEL PAPER UNDER THE UNIFORM COMMERCIAL CODE, NO SECURITY INTEREST IN THIS LEASE MAY BE CREATED THROUGH THE TRANSFER AND POSSESSION OF ANY COPY OR COUNTERPART HEREOF EXCEPT THE COPY WITH OUR ORIGINAL SIGNATURE. IF YOU DELIVER THIS LEASE TO US BY FACSIMILE TRANSMISSION, YOU ACKNOWLEDGE THAT WE ARE RELYING ON YOUR REPRESENTATION THAT THIS LEASE HAS NOT BEEN CHANGED. B S D PAGE 1 OF 4 Ver 800 Mod6.42stlease 2 LEASE NO: 001-001430836-004 - ----------------------------------------------------------------------------------------------------- LESSEE: LESSOR: CERPROBE CORPORATION Dell Financial Services L.P. Phone (800) 955-3355 99355 Collections Center Drive Fax (800) 934-4207 or Chicago, IL 60693 Fax (512) 246-2028 - ----------------------------------------------------------------------------------------------------- AUTHORIZED SIGNATURE AUTHORIZED SIGNATURE /s/ Roseann L. Tavarozzi - ----------------------------------------------------------------------------------------------------- PRINT NAME AND TITLE PRINT NAME AND TITLE ROSEANN L. TAVAROZZI 11/2/00 DATE DATE - -----------------------------------------------------------------------------------------------------
[Arrow pointing up to AUTHORIZED SIGNATURE above] Step 1. Please sign and date the LESSEE Section and print your Title. - -------------------------------------------------------------------------------- PERSONAL AND CONTINUING GUARANTY OF LEASE NO. 001-001430836-004 - -------------------------------------------------------------------------------- This personal and continuing guaranty ("Guaranty") ??????? specific legal obligations. When we use the words you and your in this Guaranty we mean the personal guarantors indicated below. When we use the words we, us and our in the Guaranty we mean the Lessor indicated in the Lease. In consideration of our entering into the Lease, you unconditionally and irrevocably guarantee to us, our successors and assigns, the prompt payment and performance of all obligations of Lessee under the Lease regardless of any circumstance which might otherwise be a defense available to, or a discharge of, Lessee or you. You agree that this is a guaranty of payment and not of collection, and that we can proceed directly against you without first proceeding against Lessee or the Products. You waive all defenses and notices, including those of p??????, p?????? and demand, notice of acceptance hereof and all other actions of any kind. You agree that we can review, extend or otherwise modify the terms of the Lease without releasing you. You will pay all our expenses including attorneys' fees incurred by us in enforcing our rights against you. This is a continuing guaranty that will not be discharged or affected by your death and will bind your heirs, administrators and personal representatives. We may, without affecting your liability hereunder, compromise or release any rights against Lessee or the Products or you. You consent to the transfer, sale or any other disposition of the Products and the Lease. If more than one person has signed this Guaranty, each of you agrees that its liability is joint and several. This Guaranty may be enforced by any ????? or successor of ours to the same extent as we may enforce it. You authorize us or any of our ???????? to obtain credit bureau reports regarding your personal credit and make other credit inquiries that we determine are necessary. THIS GUARANTY SHALL BE GOVERNED BY THE INTERNAL LAWS OF ILLINOIS. YOU EXPRESSLY AGREE TO ARBITRATION AS PROVIDED IN PARAGRAPH 16. - ------------------------------------------------------------------------------------------------------------------------------ Date: ------------- ----------------------------------------- -------------------------------------------------------- (Date Signed) INDIVIDUAL GUARANTOR NAME (PRINTED) GUARANTOR SOCIAL SECURITY NUMBER - ------------------------------------------------------------------------------------------------------------------------------ By: ----------------------------------------- -------------------------------------------------------- SIGNATURE INDIVIDUAL GUARANTOR (NO TITLE) GUARANTOR HOME ADDRESS (STREET, CITY, STATE AND ZIP CODE) - ------------------------------------------------------------------------------------------------------------------------------ [Arrow pointing up to box directly above] Step 2. If your name is pre-printed, please SIGN and date the Personal Guaranty section and provide your home address.
- -------------- NOT APPLICABLE - -------------- FEDERAL EMPLOYER IDENTIFICATION # (or SOCIAL SECURITY NUMBER, for SOLE PROPRIETORS) [Arrow pointing up to NOT APPLICABLE above] Step 3. If your FEI number is not pre-printed, you MUST provide it in the box above. - -------------------------------------------------------------------------------- Please Attach VOIDED CHECK or DEPOSIT SLIP here. **NOTE: EVEN IF YOU DO NOT PARTICIPATE IN THE AUTOPAY PROGRAM, YOU MUST STILL PROVIDE A COPY OF A VOIDED CHECK OR DEPOSIT SLIP. [Arrow pointing up to dotted box directly above] Step 4. Attach a PRE-PRINTED Voided Check or Deposit Slip. In order for the Supplier to begin manufacturing the Products, the following steps MUST be completed: Step 1 Sign and date the LESSEE section only on Page 2 of 4 and print your NAME and TITLE. Step 2 If your name is PRE-PRINTED, please verify the Social Security #, SIGN THE PERSONAL GUARANTY section on PAGE 2 OF 4 and provide your HOME ADDRESS. Step 3 Provide your Federal Employer Identification (FEI) Number on PAGE 2 OF 4. Step 4 Attach a copy of a Pre-Printed VOIDED CHECK or DEPOSIT SLIP to the space provided on PAGE 2 OF 4. Step 5 After completing steps 1 through 4, FAX ALL PAGES (Including Attachment A) to 1-800-934-4207 and keep the originals for your records. Step 6 (OPTIONAL) If you would like to participate in AUTOPAY, please complete the form and fax it back with your Lease. (PLEASE NOTE THAT EVEN IF YOU DO NOT PARTICIPATE WE STILL NEED A VOIDED CHECK OR DEPOSIT SLIP FOR VERIFICATION PURPOSES.) B S D PAGE 2 OF 4 Ver800 Mod6.42stlease 3 LEASE NO: 001-001430836-004 3. LEASE; ACCEPTANCE AND COMMENCEMENT; TERM; RENT: We agree to lease to you and you agree to lease from us the products, services, and software (the "Products") described in Attachment A to this Lease on the terms and conditions shown in this Lease. With respect to services, we will only finance one-time charges for services rendered in connection with the Products. Services may include delivery and installation fees, or similar services ("Services"). This Lease will begin and Products will be deemed irrevocably accepted for purposes of this Lease five (5) days after shipment from the Supplier (the "Commencement Date"). When you receive the Products, you agree to inspect them promptly and advise us if they are not in good working order. If any of the Products are accepted for return by Dell Computer Corporation ("Dell") under the "Total Satisfaction Return Policy" (the "Policy"), within 30 days after shipment from Dell and in the condition and manner required by Dell under the Policy, the Lease obligations associated with those respective Products will terminate. You are responsible for freight charges to deliver and return the Products under the Policy. Contact Dell for complete details regarding the "Total Satisfaction Return Policy." If payments are due in arrears, the first Rent payment is due thirty (30) days after the Commencement Date. If payments are due in advance, the first Rent payment is due on the Commencement Date. Subsequent payments of Rent are due on the same day of each subsequent month (or the last day of the month if there is no such day). You agree to pay us the Rent for the number of months of the Lease Term stated above. You will make all payments required under this Lease to us at the address we specify in writing. You authorize us to adjust the Rent amount by not more than 15% if the actual Product Cost (which is all amounts we have paid or will pay in connection with the purchase, delivery, and installation of the Products, including any trade-up and buyout amounts, or amounts incurred by us as a result of changes you make to your order with the Supplier or if the Supplier lowers the Product Cost) is increased from the Product Cost shown above. If the actual Product Cost is decreased from the Product Cost shown above, you authorize us to adjust the Rent amount. If any payment of Rent or other amount payable to us is not paid within ten (10) days after the due date, you will pay us a late charge equal to the greater of (i) 5% of the late payment amount or (ii) $5.00 for each late payment (or if less, the highest amount permitted by applicable law). 4. SELECTION AND ORDERING OF PRODUCTS: You select the type and quantity of the Products subject to this Lease. If you have entered into a purchase or supply contract ("Supply Contract") with any Supplier, you assign your rights but not your obligations (other than the obligation to pay for the Products if accepted by you under this Lease) effective prior to the passage of title by the Supplier to you. 5. LOCATION; USE; ALTERATIONS; INSPECTION: You will use the Products solely at the location specified in the Lease, or if none is specified, at your billing address. Except for temporary relocation of laptop personal computers, you may not move the Products without our prior written consent, which shall not be unreasonably withheld. At you own expense, you will maintain the Products in good repair, condition and functional order (except for ordinary wear and tear) and will use them in compliance with all applicable laws. You will use all software in accordance with the end user license terms of the applicable software license agreement ("License"). You may make additions or improvements to the Products unless the addition or improvement would violate any License, decrease the value of Products, or impair their utility. You may remove any such addition or improvement at the end of the Lease if (i) you repair any damage to Products resulting from the removal; (ii) you restore the Products to their original and functional condition (excluding ordinary wear and tear); and, (iii) the removal does not violate any License or render the Products incapable of use or operation. All additions or improvements not removed will become our property at no cost to us. You agree that, we, our assignees, and agents, may inspect the Products at the premises where the Products are located at any reasonable time with prior notice. 6. TITLE; QUIET ENJOYMENT; PERSONAL PROPERTY; FILING: We are the owner of and will hold title to the Products. You will keep the Products free from any and all liens; encumbrances and claims. So long as you are not in Default under the Lease, we will not interfere with your quiet use and enjoyment of the Products during the Lease Term or any renewal term. Unless the Purchase Option is $1, you agree that this transaction is intended to be a true lease under UCC Article 2A. However, if this transaction is deemed to be a lease intended for security under UCC Article 9, you grant us a purchase money security interest in the Products (including any replacements, substitutions, additions, attachments and proceeds). You authorize us to file a copy of this Lease as a UCC-1 financing statement (UCC-1) and hereby appoint us or our designee as your attorney-in-fact to sign on your behalf to file UCC-1's covering the Products. You agree to pay a one-time Transaction Processing Fee to cover our costs for such filing and other documentation costs. 7. LOSS OR DAMAGE: From the time the Products are delivered to a carrier for shipment to you until their return to us, you are responsible for any loss, theft, damage to or destruction of the Products ("Loss") from any cause at all, whether or not the Loss is covered by insurance. You are required to make all payments under the Lease even if there is a Loss. You must notify us immediately if there is any Loss. Then at our option, you will either (a) repair the Products so they are in good condition and working order to our satisfaction; or (b) replace the Products with like products in good condition and repair and of the same manufacture and equal or greater capacity and capability, with clear title thereto in us; or (c) pay us the "Stipulated Loss Value" which is the sum of: (i) all Rent payments for all the Products and other amounts past due (plus interest thereon) or currently owed to us under the Lease, including unpaid taxes; (ii) all future Rent payments that would accrue over the remaining Lease Term plus our estimated value of our residual interest of all of the Products at the end of the Lease Term, such sum to be discounted to present value at a discount rate equal to the Federal Reserve Bank Discount Rate in effect at the Commencement Date of the Lease ("Discount Rate") and (iii) any costs and expenses incurred as a result of this event. When you pay the amount of (c) above to us, we will transfer to you our interest in the Products, "AS-IS-WHERE-IS", without any warranty, express or implied, including warranty of merchantability or fitness for any particular purpose. 8. INSURANCE: You will provide and maintain, at your expense, (a) property insurance against the loss or theft of or damage to the Products, for their full replacement value naming us as the loss payee and (b) public liability and third party property damage insurance naming us as an additional insured. All insurance shall be in a form and amount and with companies satisfactory to us and will provide that we will be given thirty (30) days written notice before cancellation or material change of the policy. At our request, you will deliver the policies or certificates of insurance to us. If you do not give us evidence of insurance acceptable to us we have the right, but not the obligation, to obtain such insurance covering our interest in the Products for the Lease Term. The cost for such insurance will be an additional amount due from you under the Lease. 9. TAXES: You will pay when due, either directly or to us on demand, all taxes (local, state and federal), fines or penalties which may now or hereafter be imposed or levied upon the Lease and the Products, excluding taxes on our net income. We do not have to contest any taxes, fines or penalties. We may, at our option, charge you a liquidated monthly personal property management fee, to be added to Rent payments owed under this Lease. 10. RETURN: Unless the Lease is renewed or you purchase the Products in accordance with the terms of the Lease, you will immediately deliver the Products (including but not limited to cables, power cords, keys, etc.) in good repair, operable condition and able to qualify for the manufacturer's warranty service (ordinary wear and tear excepted) to any place in the continental United States that we direct. Upon your return of the Products, you agree that your license with respect to Microsoft operating system software terminates and you certify that you will either (i) return all copies of the manuals, printed material, certificates of authenticity and media (the "Operating System Software Kit") or (ii) destroy all copies of the Operating System Software Kit, leaving the original operating system installed and functional. You will pay all expenses for deinstalling, packing and shipping and you will insure the Products for the full replacement value during shipping. You will immediately pay us on demand the costs and expenses of all missing or damaged Products. B S D PAGE 3 of 4 Ver800 Mod6.42stlease 4 LEASE NO: 001-001430836-004 11. PURCHASE OPTION: AUTOMATIC RENEWAL: If no Default exists under the Lease, you will have the option at the end of the Lease Term to purchase all (but not less than all) of the Products for the amount of the Purchase Option price shown above which, if it is the then fair market value of the Products, will be as determined by us, plus any applicable taxes. Unless the Purchase Option price is $1, you must give us written notice at least ninety (90) days before the end of the Lease Term that you will purchase the Products or that you will return the Products to us. Unless you purchase the Products or return the Products to us on the last day of the Lease Term, this Lease will automatically renew for an additional ninety (90) day term and thereafter on a continuing month to month basis until you give us thirty (30) days notice and deliver the Products to us. During such renewal terms, the Rent payment will remain the same. If the Fair Market Value Purchase Option has been selected we will use our reasonable judgment to determine the Products' in place value. If you do not agree with our determination, the fair market retail value will be determined for you at your expense by an independent appraiser selected by us. Upon payment in full of the Purchase Option price and any amounts which may be due hereunder, we will transfer our interest in the Products to you "AS-IS-WHERE-IS", without any warranty whatsoever, and the Lease will terminate. 12. ASSIGNMENT: YOU MAY NOT ASSIGN, SELL, TRANSFER, OR SUBLEASE THE PRODUCTS OR YOUR INTEREST IN THIS LEASE. We may, without notifying you, sell, assign or transfer the Lease and our rights in the Products. You agree that the transferee will have the same rights and benefits that we have now under this Lease, but not our obligations. The rights of the transferee will not be subject to any claim, defense, or setoff that you may have against us. 13. DEFAULT: Each of the following is a default ("Default") under the Lease: (a) you fail to pay any Rent or any other payment within 10 days of its due date; (b) you do not perform any of your obligations under the Lease or in any other agreement with us or with any of our affiliates and this failure continues for 10 days after we have notified you of it; (c) you become insolvent, you dissolve or are dissolved, you assign your assets for the benefit of your creditors or enter voluntarily or involuntarily any bankruptcy or other reorganization proceeding; (d) you or any Guarantor provide us incorrect or untrue information regarding any material matter in connection with your application for credit or entering into this Lease; or (e) if this Lease has been guaranteed by someone other than you, any guarantor of the Lease dies, does not perform its obligations under the Guaranty or becomes subject to one of the events listed in clause(c). 14. REMEDIES: If a Default occurs, we may do one or more of the following: (a) we may cancel or terminate the Lease or any agreements that we have entered into with you or withdraw any offer of credit; (b) we may require you to pay us, as compensation for loss of our bargain and not as a penalty, a sum equal to (i) the Stipulated Loss Value calculated under Section 7 plus (ii) any costs and expenses (including breakage fees) incurred as a result of the Default; (c) we may require you to deliver the Products to us as set forth in Section 10; (d) we or our agent may peacefully repossess the Products without court order and you will not make any claims against us for trespass, damages or any other reason and (e) we may exercise any other right at law or in equity. You agree to pay all of our costs of enforcing our rights against you, including reasonable attorney's fees. If we take possession of the Products we may sell or otherwise dispose of the Products, with or without notice, at public or private sale and apply the net proceeds (after we have deducted our costs related to the sale and disposition) to the amounts that you owe us. You agree that if notice of a sale is required by law to be given, 10 days notice will constitute reasonable notice. You will remain responsible for any amounts that are due after we have applied such net proceeds. 15. INDEMNITY: You are responsible for losses, damages, penalties, claims, costs (including attorneys' fees and expenses), actions, suits and proceedings of every kind, (collectively "Claims") whether based on a theory of strict liability or otherwise caused by or related to this Lease or the Products, (including any defects in the Products). You will reimburse us for, and if we request defend us against, any Claims. 16. ARBITRATION: Either party to this Lease may choose to have any dispute, claim, or controversy arising from or relating to this Lease, any prior agreement or lease between the parties, any application or advertisement related to this Lease or the validity of this arbitration clause or the entire Lease, resolved by binding arbitration pursuant to the Commercial Arbitration Rules of the American Arbitration Association. If such rules conflict with this arbitration agreement, however, then the terms of this arbitration agreement shall control. This arbitration agreement is made pursuant to a transaction involving interstate commerce, and shall be governed by the Federal Arbitration Act at 9 U.S.C. Section 1, et, seq, Judgment upon the award rendered may be entered in any court having jurisdiction. Any arbitration award in excess of $100,000 made pursuant to this arbitration agreement may be appealed by the party against which the award is made. Such appeal will be a de novo arbitration proceeding before three arbitrators. The parties agree and understand that they may choose arbitration instead of litigation to resolve disputes. The parties understand that they have a right or opportunity to litigate disputes in court, but may elect to resolve their disputes through arbitration as provided herein. The parties agree and understand that all disputes arising under ease law, statutory law, and all other laws including, but not limited to, all contract, tort, and property disputes, may be subject to binding arbitration in accord with this Lease. No class action or request for relief may be brought under this arbitration agreement. You agree that you shall not have the right to participate in arbitration or in court proceedings as a representative or a member of any class of claimants pertaining to any claim arising from or relating to this Lease. The parties agree and understand that the arbitrator shall have all powers provided by law and this Lease, except for powers limited or prohibited by this Lease. Notwithstanding anything herein to the contrary, we remain an option to use judicial or non-judicial relief to recover the Products or to enforce our security interest in the Products, to enforce the monetary obligations secured by the Products or to foreclose on the Products. Such judicial relief would take the form of a lawsuit. The institution and maintenance of any action for judicial relief in a court to foreclose upon any Products, to obtain a monetary judgment or to enforce this Lease, shall not constitute a waiver of the right of any party to compel arbitration regarding any other dispute or remedy subject to arbitration in this Lease, including the filing of a counterclaim in a suit brought by us pursuant to this provision. YOU UNDERSTAND AND AGREE THAT IN ARBITRATION: YOU GIVE UP RIGHTS TO SEEK REMEDIES IN COURT, INCLUDING THE RIGHT TO A JURY TRIAL; YOUR ABILITY TO COMPEL OTHER PARTIES TO PRODUCE DOCUMENTS OR BE EXAMINED IS MORE LIMITED THAN IN A LAWSUIT; AND, YOUR RIGHTS TO APPEAL OR CHANGE ANY ARBITRATION AWARD IN ANY COURT ARE STRICTLY LIMITED. 17. FINANCE LEASE: You agree that if Article 2A of the Uniform Commercial Code applies to this Lease, this Lease will be considered a "finance lease" as defined by Article 2A and by signing this Lease you acknowledge that either (1) you have received, reviewed and approved the Supply Contract with the Supplier or (2) we have informed you of the identity of the Supplier, that you may have rights and warranties under the Supply Contract(s) for the Products and you may contact the Supplier of the Products for a description of those rights and warranties. TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOU HEREBY WAIVE ANY AND ALL RIGHTS AND REMEDIES CONFERRED UPON A LESSEE BY ARTICLE 2A. 18. MISCELLANEOUS: You agree that the terms and conditions of this Lease make up the entire agreement between you and us regarding the lease of the Products. Any change in the terms and conditions of the Lease must be in writing and signed by us. You agree, however, that we are authorized, without notice to you, to supply missing information or correct obvious errors in this Lease. All of our rights and remedies will survive termination of this Lease. All notices under this Lease will be given in writing and will be considered given when deposited in the U.S. mail, postage prepaid, addressed to the respective address given below or to a substitute address specified in writing by one of us to the other. Any failure of ours to require strict performance by you or any waiver by us of any provision in this Lease will not be construed as a consent or waiver or any other breach of the same or any provision. If any portion of this Lease is deemed invalid, it will not affect the balance of this Lease. It is the express intent of both of us not to violate any usury laws, or to exceed the maximum amount of time price differential, or interest as applicable permitted to be charged, or collected under applicable law and any such excess payment will be applied to payments under the Lease in inverse order of maturity and the remaining payments will be refunded to you. If a signed copy of this Lease is delivered to us by facsimile transmission, it will be binding on you, however, we will not be bound by this Lease until we accept it by manually or electronically signing it or by purchasing the Products, whichever occurs first. You waive notice of our acceptance and waive your right to receive a copy of the accepted Lease. You agree that, notwithstanding any rule of evidence to the contrary, in any hearing, trial or proceeding of any kind with respect to this Lease, we may produce a copy of the Lease transmitted to us by facsimile transmission, with any missing pages supplied from our database as set forth above, that has been manually signed by us and such signed copy shall be deemed to be the original of this Lease. B S D PAGE 4 of 4 Ver 800 Mod6.42stlease EX-11 18 p63766ex11.txt EX-11 1 CERPROBE CORPORATION COMPUTATION OF NET INCOME (LOSS) PER SHARE EXHIBIT 11
Three Months Ended Nine Months Ended September 30, September 30, ------------- ------------- 2000 1999 2000 1999 ---- ---- ---- ---- Net income (loss) $ 3,084,934 $ (878,138) $ 5,862,062 $(2,392,070) =========== =========== =========== =========== Weighted average number of common shares outstanding 9,486,424 7,836,237 9,444,969 7,740,136 Common equivalent shares representing shares issuable upon exercise of stock options 567,002 12,059 442,573 89,430 Convertible preferred stock -- -- -- -- Subtraction of common equivalent shares due to antidilutive nature -- (12,059) -- (89,430) ----------- ----------- ----------- ----------- Dilutive adjusted weighted average shares and assumed conversions 10,053,426 7,836,237 9,887,542 7,740,136 =========== =========== =========== =========== Basic net income (loss) per share $ 0.33 $ (0.11) $ 0.62 $ (0.31) =========== =========== =========== =========== Diluted net income (loss) per share $ 0.31 $ (0.11) $ 0.59 $ (0.31) =========== =========== =========== ===========
EX-27.1 19 p63766ex27-1.txt EX-27.1
5 THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE CONDENSED CONSOLIDATED BALANCE SHEET AT SEPTEMBER 30, 2000 AND THE CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS FOR THE NINE MONTHS ENDED SEPTEMBER 30, 2000 AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS. 9-MOS DEC-31-1999 DEC-31-2000 4,312,393 0 21,919,396 362,102 12,597,563 40,550,859 41,129,980 19,516,234 86,428,085 19,795,347 6,415,427 0 0 494,895 58,782,541 86,428,085 92,521,191 92,521,191 51,229,896 51,229,896 0 15,979 1,588,897 10,772,551 (4,037,342) 5,862,062 0 0 0 5,862,062 0.62 0.59
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