**Exhibit 10.48**

 

**PURCHASE AND SALE AGREEMENT**

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**BETWEEN**

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**TRIQUINT OPTOELECTRONICS, INC.**

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**AS SELLER,**

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**AND**

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**ANTHEM PARTNERS, LLC**

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**AS PURCHASER**

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**Date: As of March 7th, 2005**

 

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**PURCHASE AND SALE AGREEMENT**

 

**THIS PURCHASE AND SALE AGREEMENT**(this “Agreement”) is made as of this 7th day of March, 2005(the “Effective Date”) by and between **TRIQUINTOPTOELECTRONICS, INC.**, a Delaware corporation (the “Seller”),and **ANTHEM PARTNERS, LLC**, a Pennsylvanialimited liability company, or its nominee or assignee (the “Purchaser”).

 

**ARTICLE I.PURCHASE AND SALE**

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Section 1.1             Agreement of Purchase and Sale. Subject to the terms and conditions hereinafter set forth, on theClosing Date (as defined in Section 4.1) Seller agrees to sell and conveyto Purchaser, and Purchaser agrees to purchase from Seller, the following:

 

(a)     the property commonly known as 9999Hamilton Boulevard, Breinigsville, Pennsylvania, containing approximately137.34 acres (the “Land”), which Land is more particularly described in **Exhibit A** attached hereto and incorporated herein by thisreference, together with all of the buildings located thereon (collectively,the “Building”), containing approximately 850,000 +/- square feet in theaggregate, and any other improvements and fixtures located thereon and all rights,privileges and appurtenances pertaining thereto including all of Seller’sright, title and interest in and to all rights-of-way and easements and stripsand gores of land adjacent thereto (herein collectively called the “RealProperty”);

 

(b)     any and all of Seller’s right, titleand interest in and to all tangible personal property and equipmentspecifically described on **Schedule 1.1(b)**attached hereto (the “Personal Property”);

 

(c)     any and all of Seller’s right, titleand interest in and to the following (to the extent they are in effect on theClosing Date):

 

(i)            all service contracts and agreements (collectively,the “Contracts”) relating to the upkeep, repair, maintenance oroperation of the Real Property or the Personal Property to the extent Purchaserhas agreed to assume such Contracts pursuant to Section 3.2).  Any Contracts entered into after theEffective Date in accordance with Section 5.2(c) hereof shall be deemedfor purposes of this Agreement to constitute Contracts, and the defined term Contractsas used herein shall be deemed to have been revised to include and incorporateany such Contracts;

 

(ii)           all warranties and guaranties (express or implied)issued to, and held in the name of, Seller in connection with the Real Propertyor the Personal Property (the “Warranties”); and

 

(iii)          all permits, licenses, approvals and authorizationsissued by any governmental authority in favor of Seller in connection with theReal Property (the property described in this Section 1.1(b) beingsometimes herein referred to collectively as the “Intangibles”).

 

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The term “Property”shall mean the Real Property, the Personal Property, the Warranties and theIntangibles.

 

Section 1.2             Purchase Price. Seller is to sell, and Purchaser is to purchase, theProperty for the sum of Nine Million Three Hundred Thousand Dollars($9,300,000.00) (the “Purchase Price”).

 

Section 1.3             Payment of Purchase Price. The Purchase Price, as increased or decreased by prorations and adjustmentsas herein provided, shall be payable in full at the Closing (as defined in Section 4.1)in cash by wire transfer of immediately available funds to a bank accountdesignated by Seller in writing to Purchaser prior to the Closing Date (asdefined in Section 4.1). Notwithstanding the foregoing, Seller may use any portion of anypayments due to Seller under this Agreement to satisfy any lien or encumbranceagainst the Property or for such other purpose as Seller may determine.

 

Section 1.4             Deposit.  Prior to 5:00p.m. EST on the first business day following the date of execution hereof,Purchaser shall deposit, with Coventry Abstract, agent for First American TitleInsurance Company, 1401 Morris Road, Blue Bell, Pennsylvania 19422 (the “EscrowAgent,” and sometimes referred to herein as the “Title Company”), the sum ofThree Hundred Fifty Thousand Dollars ($350,000.00) (the “Deposit”) ingood funds, either by certified bank or cashier’s check or by federal wiretransfer.  The Escrow Agent shall hold theDeposit in an interest-bearing strict joint order escrow account in accordancewith the terms and conditions of this Agreement and the terms and provisions ofa separate escrow agreement with the Escrow Agent.  All interest and income earned on the Depositshall become a part of the Deposit.

 

**ARTICLE II.TITLE AND SURVEY**

 

Section 2.1             Title Objections.  On or afterthe Effective Date, Purchaser shall request the Title Company to issue itstitle insurance commitment for the Real Property (the “Title Commitment”)and shall engage a licensed surveyor to prepare an ATLA/ACSM survey of theProperty (the “Survey”). No later than twenty (20) days after theEffective Date, Purchaser shall have the right to notify Seller in writing ofits objection to any matters disclosed by the Title Commitment or the Survey(collectively, the “Title Objections”). Upon receipt of any such timely written notice of Title Objections fromPurchaser, Seller may, but shall not be obligated to, cure the Title Objectionson or before the Closing Date.  Sellershall notify Purchaser within five (5) days of receiving the Title Objectionsas to its decision to either cure or not to cure the Title Objections.  Notwithstanding the foregoing, in the eventthat the Title Objection is a monetary lien, charge or encumbranceintentionally placed against the Property by Seller which is able to be removedby the payment of a certain sum or a judgment or mechanics’ lien caused by theacts of Seller, then Seller shall be required to cure the Title Objection bypaying the certain sum or the sum required to remove the judgment or mechanics’lien on or prior to the Closing Date.

 

(a)     If Seller elects by notice at anytime not to cure any Title Objection (except as provided in the last sentenceof subparagraph (a) above, as to which Seller shall be obligated to cure), thenPurchaser’s sole right and remedy shall be, on the terms

 

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andconditions set forth below, either:  (x)to elect not to purchase the Property, in which event this Agreement shall beterminated, and the Deposit shall be returned to Purchaser; or (y) to completethe transactions contemplated hereby in accordance with this Agreement subjectto such Title Objection without reduction in or abatement of the PurchasePrice.

 

(b)     Purchaser shall exercise its optionpursuant to clause (x) of Section 2.1(a) above by written notice given toand received by Seller within five (5) days after the receipt by Purchaser ofSeller’s notice that Seller will not cure the Title Objections.  If Purchaser shall fail to send a writtennotice to Seller exercising Purchaser’s option set forth under clause (x) of Section 2.1(a)within the applicable period, then Purchaser shall conclusively be deemed tohave exercised the option set forth in clause (y) of Section 2.1(a) above.

 

Section 2.2             Permitted Exceptions. For purposes of this Agreement, the term “Permitted Exceptions” shallmean all title exceptions and survey matters pertaining to the Property which:(i) are disclosed by the Title Commitment and/or Survey and are not the subjectof a Title Objection made by Purchaser pursuant to this ARTICLE II, or(ii) constitute valid Title Objections made by Purchaser which Sellershall has elected not to cure (or cause the Title Company to endorse over), andwhich Purchaser has elected (or is deemed to have elected) to accept pursuantto this ARTICLE II, or (iii) are otherwise expressly stated in thisAgreement as being Permitted Exceptions.

 

Section 2.3             Conveyance of Title. At Closing, Seller shall convey and transfer to Purchaser, and Purchasershall accept, fee simple title to the Real Property (subject only to thePermitted Exceptions) by execution and delivery of the Deed (as defined in Section 4.2(a))from Seller to Purchaser.  The legaldescription appearing on the Survey shall govern any Closing hereunder.

 

Section 2.4             PREI Claim.  Withoutlimiting anything in this Article II, Purchaser acknowledges thatPreferred Real Estate Investments, Inc. has asserted claims related to theProperty (the “PREI Claims”).  If thePREI Claims are included as an exception to the Title Commitment, the sameshall be addressed by the parties in accordance with the procedures set forthin Section 2.1.

 

**ARTICLE III.DUE DILIGENCE INVESTIGATION; ACCESS**

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Section 3.1             Delivery of Due Diligence Documents. No later than five (5) days after the Effective Date, time being of theessence, and thereafter through the date of Closing, Seller shall makeavailable to Purchaser at the Real Property for Purchaser’s review and copying,at Purchaser’s expense, all of Seller’s files relating to the Property,including, without limitation, the following items to the extent in possessionof Seller or reasonably available to Seller at no additional expense of Seller(collectively the “Due Diligence Documents”):

 

(a)     Copies of the latest titlecommitment and title policy with respect to the Property which are in Seller’spossession;

 

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(b)     The latest as-built plans or surveysof the Property prepared by a registered and licensed surveyor which are inSeller’s possession;

 

(c)     All Contracts;

 

(d)     Copies of all leases, licenses andother similar agreements;

 

(e)     Copies of any appraisals of theProperty in Seller’s possession;

 

(f)      Copies of the two (2) most recent advalorem tax statements for the Real Property and any tax statement relating tothe Personal Property;

 

(g)     Copies of any zoning letters;

 

(h)     All equipment and buildingwarranties and guaranties;

 

(i)      All insurance policies covering theProperty, together with a history of claims for the last two (2) calendaryears;

 

(j)      Operating income/expense statementsfor the Property for last two calendar years, together with current year-todate, as well as tenant billings and utility billings for the last calendaryear;

 

(k)     Detailed general ledger for theProperty for last two calendar years, together with current year-to date;

 

(l)      Operating and Capital Budgets forthe Property for last two calendar years, together with current year-to date;

 

(m)    Copies of the floor plans of allbuildings on the Property;

 

(n)     Summary of tenant improvements andother capital improvements or repairs to the Property for the past two (2)years, including a history of repairs and replacements to the HVAC and theroof;

 

(o)     Copies of any documents relating toany pending lawsuits relating to the Property; and

 

(p)     Any and all site plans, buildingplans and specifications, engineering plans, architectural reports,environmental reports (including, asbestos and mold), geological reports, eddycurrent wind and earthquake tests, owner’s association manual, maintenancereports, ADA compliance reports, certificates of occupancy, certificates ofcompliance of, on or affecting the Property (including, OSHA, fire and health).

 

Section 3.2             Review and Approval of Contracts. On or before the Approval Date, Purchaser shall notify Seller in writingas to which of the Contracts, if any, Purchaser elects to assume atClosing.  Unless such notice is given byPurchaser, Purchaser shall at and as of the Closing assume such Contracts(except to the extent that such Contracts are to be retained

 

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by Seller as tenantunder the Lease as hereinafter set forth). Those Contracts not assumed by Purchaser shall be terminated by Selleras of the Closing Date, except to the extent that Seller elects to keep suchContracts in effect as the tenant under the Lease, in which event Seller shallhave no obligation to terminate such Contracts at Closing provided that suchContracts can be terminated without penalty and without cost to Purchaser on orprior to the expiration of the Lease.

 

Section 3.3             Purchaser’s Right to Terminate Agreement Prior toApproval Date.As used herein, the term “Due Diligence Period” shall mean the periodexpiring at 6:00 p.m. local time on the date which is the thirtieth (30th)day after the Effective Date, and the last day of the Due Diligence Period isreferred to herein as the “Approval Date”.  Purchaser shall have the sole, exclusive, andunilateral right to terminate this Agreement and its obligations hereunder, forany or no reason whatsoever by providing written notice to Seller of suchtermination from Purchaser on or before the Approval Date.  In the event that Purchaser fails to deliverwritten notice to Seller terminating this Agreement on or before to theApproval Date, such failure shall be deemed to be an election of Purchaser toproceed to Closing and to purchase the Property pursuant to the terms andconditions herein contained.  IfPurchaser timely terminates this Agreement pursuant to this Section 3.3,then the Escrow Agent is directed to release the Deposit to Seller within three(3) days of receipt of written notice of such termination and neither partyshall have any further obligations or liability hereunder; provided, however,in the event Purchaser so terminates this Agreement due to the fact that itsdue diligence review during the Due Diligence Period discloses environmentalcontamination of the Real Property or structural damage or capital improvements(including major repair or replacement of building mechanical, electrical, orplumbing systems necessary for the operation of the Buildings as designed)required to meet governmental code or regulations to the Building (except forany roof damage) that will reasonably cost in excess of Five Hundred ThousandDollars ($500,000.00) in aggregate to remedy or repair, the Deposit shall bereturned to Purchaser.  Purchaser shallpromptly provide to Seller copies of all reports, documents, or other materials(i) that show that such $500,000 threshold would be exceeded, or (ii) wereprepared or obtained as part of its due diligence review.  In addition, if Purchaser terminates thisAgreement in accordance with the provisions of this Section then, upon therequest of either party, Purchaser and Seller agree to execute a writtenrelease of this Agreement.

 

Section 3.4             Access.  Seller agreesto provide Purchaser access to the Property following the Effective Date forthe purpose of performing, at Purchaser’s sole cost and expense, studies,appraisals, physical inspections, investigations and tests on the Property (the“Tests”) provided (i) that no Tests shall be conducted in a manner as todisturb or unreasonably interfere with the current use of the Property, and(ii) that no Phase II or other invasive testing shall be conducted without theprior approval of Seller.  Uponcompletion of such Tests, Purchaser agrees at its sole cost to restore theProperty to substantially the condition it was in immediately prior to suchTests.  Purchaser shall indemnify, defend(with counsel reasonably satisfactory to Seller), protect, and hold Sellerharmless from and against any and all liability, loss, cost, damage, or expense(including, without limitation, attorney’s fees and costs) which Seller maysustain or incur for damage to property or injury to persons by reason of or inconnection with any Tests made by Purchaser or Purchaser’s agents orcontractors relating to or in connection with the Property, or entries byPurchaser or its agents or contractors onto the Property.  Notwithstanding any provision to the contraryin this Agreement, the indemnity obligations of Purchaser under

 

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this Agreement shallsurvive any termination of this Agreement or the delivery of the deed and thetransfer of title pursuant to this Agreement.

 

Section 3.5             Lease Negotiation.  Both parties’obligations under this Agreement are contingent upon the parties’ mutualagreement, on or before the twentieth (20th) day after the EffectiveDate (the “Lease Approval Date”), on the form of the Lease of a portion of theReal Property more particularly described in Section 10.1(c) hereof.  The parties agree to negotiate the final formof the Lease in good faith, which shall incorporate the terms set forth in Section 10.1hereof, and shall otherwise contain such other terms as are customarilycontained in commercial leases of this nature, taking into consideration thesize, use, and location of the Leased Premises, as well as such other terms asmay be mutually agreed upon by the parties. If, despite such good faith efforts, the parties have not agreed on theform of the Lease on or before the Lease Approval Date, either party may givewritten notice to the other party of the need to finalize the form of theLease.  In the event the parties arestill unable, despite their continued good faith efforts, to agree upon theform of the Lease within five (5) business days of such notice, either partymay terminate this Agreement by written notice to the other party, whereuponthe Deposit shall be refunded to Purchaser and the parties shall thereafterhave no further obligations hereunder (except as set forth in Section 3.4hereof).

 

**ARTICLE IV.CLOSING; CLOSING ADJUSTMENTS AND COSTS; CONDITIONS**

 

Section 4.1             Time and Place.  Theconsummation of the transactions contemplated hereby (the “Closing”)shall be held in escrow with the Title Company on the earlier of any dateselected by Purchaser after the Approval Date or April 1, 2005 (“ClosingDate”).  Purchaser shall have theright to extend the Closing Date an additional sixty (60) days upon (i)delivery of written notice of such extension to Seller on or before March 25,2005, and (ii) payment to the Escrow Agent on or before said date the amount ofTwo Hundred Thousand Dollars ($200,000), which shall be immediately released bythe Escrow Agent to Seller and shall be non-refundable in all instances (exceptfor Seller’s default), but shall be credited to the Purchase Price atClosing.  At Closing, Seller andPurchaser shall perform the obligations set forth in, respectively, Section 4.2and Section 4.3, the performance of which obligations shall be concurrentconditions.

 

Section 4.2             Seller’s Obligations at Closing. At the Closing, Seller shall:

 

(a)           deliver to Purchaser a duly executed special warrantydeed (the “Deed”) in the form attached hereto and made a part hereof as **Exhibit B**;

 

(b)           deliver to Purchaser a duly executed bill of sale (the“Bill of Sale”) in the form attached hereto and made a part hereof as **Exhibit C**;

 

(c)           if applicable, deliver to Purchaser a duly executedassignment and assumption agreement (the “Assignment and Assumption ofContracts”) in the form attached hereto and made a part hereof as **Exhibit D**;

 

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(d)           deliver to Purchaser a certificate stating that Selleris not a “foreign person” in the form attached hereto and made a part hereof as**Exhibit E**duly executed by Seller;

 

(e)           join Purchaser in the execution of the Lease;

 

(f)            deliver to Purchaser the original Contracts which areassigned by Seller and assumed by Purchaser hereunder (to the extent originalsare available and, if not, certified copies thereof), together with suchleasing and property files and records which are located at the Property;

 

(g)           subject to the terms of the Lease, deliver toPurchaser possession of the Property in the condition required by Section 4.8hereof, together with all keys to all locks on the Property; and

 

(h)           deliver such additional documents as Title Companyshall reasonably require to consummate the transaction contemplated in thisAgreement (including, but not limited to, organizational documents of Seller, agood standing of Seller, and a standard form ALTA Statement.

 

Section 4.3             Purchaser’s Obligations at Closing. At the Closing, Purchaser shall:

 

(a)           pay to Seller the full amount of the Purchase Price,as increased or decreased by prorations and adjustments as herein provided, inthe manner set forth in Section 1.3 hereof less the amount of the Depositwhich shall be delivered to Seller plus any other fees, costs, expenses andamounts set forth as Purchaser’s obligations in Section 4.4 and Section 4.5;

 

(b)           join Seller in the execution of the Assignment andAssumption of Contracts;

 

(c)           join Seller in the execution of the Lease;

 

(d)           deliver to Seller such evidence as the Title Companymay reasonably require as to the authority of the person or persons executingdocuments on behalf of Purchaser; and

 

(e)           deliver such additional documents as shall bereasonably required by the Title Company to consummate the transactioncontemplated by this Agreement.

 

Section 4.4             Credits and Prorations. The following adjustments to the Purchase Price paid hereunder shall bemade between Seller and Purchaser and shall be prorated (as applicable) as ofthe Closing Date:

 

(a)           Operating Expenses. Except for any utilities or other operating expenses that Seller willcontinue to pay pursuant to the Lease (see Section 10.1(f) hereof), allutilities or other apportionable charges or expenses pertaining to theProperty, if any, shall be prorated between Purchaser and Seller as of theClosing Date.  Purchaser shall take allsteps

 

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necessary to effectuate the transfer of allutilities (other than those that will continue to be paid by Seller under theLease) to its name as of the Closing Date, and where necessary, post depositswith the utility companies.  Seller shallensure that all utility meters (other than those that will continue to be paidby Seller under the Lease) are read as of the Closing Date.  Seller shall be entitled to recover any andall deposits held by any utility company as of the Closing Date.  To the extent that utility meters cannot beread as of the Closing Date, then a proration estimation shall be made based onthe most recently available readings, with adjustments to be made after theClosing in accordance with Section 4.4(c).

 

(b)           Taxes and Assessments. Real estate taxes and assessments imposed by governmental authority thatare not yet due and payable shall be prorated as of the Closing Date based uponthe most recent ascertainable assessed values and tax rates.  Seller shall receive a credit for any taxesand assessments paid by Seller and applicable to any period after theClosing.  All refunds or tax savingsrelating to real estate taxes shall inure to the benefit of Seller if suchrefunds or tax savings relate to any period for which Seller owned theProperty.  Purchaser shall have noobligation to pursue any such refunds or savings, but shall cooperate withSeller in its efforts to pursue the same.

 

(c)           Final Adjustment After Closing.  If final prorations cannot be made at Closingfor any item being prorated under this section, then Purchaser and Seller agreeto allocate such items on an accrual basis as soon as invoices or bills areavailable and applicable reconciliation with tenants have been completed, withfinal adjustment to be made no later than ninety (90) days after the ClosingDate.  Income and expenses shall bereceived and paid by the parties on an accrual basis with respect to theirperiod of ownership.  Payments inconnection with the final adjustment shall be due within thirty (30) days ofwritten notice of such final adjustment amount. Each party shall have reasonable access to, and the right to inspect andaudit the other party’s supporting documentation to confirm the finalprorations.

 

(d)           Insurance.  Thefire, hazard, and other insurance policies relating to the Property shall becancelled by Seller as of the Closing Date and shall not, under anycircumstances, be assigned to Purchaser. All unearned premiums for fire and any additional hazard insurancepremium or other insurance policy premiums with respect to the Property shallbe retained by Seller.

 

The provisions of this Section 4.4 shallsurvive Closing.

 

Section 4.5             Transaction Taxes and Closing Costs.

 

(a)           Seller shall pay for the following fees, costs andexpenses:

 

(i)            the fees of any counsel representing Seller inconnection with this transaction;

 

(ii)           one-half of any and all realty transfer taxes imposedin connection with the transfer of the Property;

 

(iii)          the cost or fee for such insurance or endorsement overany Title Objection cured by Seller pursuant to Section 2.1 hereof;

 

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(iv)          one-half of any escrow charges incurred hereunder;

 

(v)           any real estate commissions arising from the sale ofthe Property; and

 

(vi)          all other closing costs incurred by Seller on Seller’sbehalf in connection with this transaction.

 

(b)           Purchaser shall pay the following fees, costs andexpenses:

 

(i)            the fees of any counsel representing Purchaser in connectionwith this transaction;

 

(ii)           one-half of any and all realty transfer taxes imposedin connection with the transfer of the Property;

 

(iii)          the recording fees for the Deed;

 

(iv)          (A) the cost of the premium for an ALTA owner’s/lender’stitle insurance policy for the Property and (B) any other fees or premiums forextended coverage or any endorsements requested by Purchaser (excluding,however, any cost or fee for such insurance or endorsement over any TitleObjection cured by Seller pursuant to Section 2.1);

 

(v)           all costs and expenses incurred in connection with thepreparation of the Survey requested by Purchaser;

 

(vi)          one-half of any escrow charges incurred hereunder; and

 

(vii)         all other closing costs incurred by Purchaser onPurchaser’s behalf in connection with this transaction.

 

Section 4.6             Conditions Precedent to Obligation of Purchaser. The obligation of Purchaser to consummate the transaction hereundershall be subject to the fulfillment on or before the Closing Date of all of thefollowing conditions, any or all of which may be waived by Purchaser in itssole discretion:

 

(a)           Seller shall have delivered or made available toPurchaser all of the items required to be delivered or made available toPurchaser pursuant to the terms of this Agreement, including but not limitedto, those provided for in Section 3.1 or Section 4.2;

 

(b)           the representations and warranties of Seller containedin this Agreement shall have been true and correct in all material respects asof the Effective Date and shall be true and correct in all material respects asof the Closing Date;

 

(c)           Seller shall have performed and observed, in allmaterial respects, all covenants and agreements of this Agreement to beperformed and observed by Seller as of the Closing Date;

 

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(d)           The Title Company shall be irrevocably committed todeliver an ALTA owner’s policy of title insurance (excluding extended coverageand any endorsements thereto) in the amount of the Purchase Price insuring theProperty subject only to the Permitted Exceptions and otherwise in form andmanner reasonably acceptable to Purchaser, provided that Purchaser shall haveperformed its obligations hereunder in connection with the payment of any feesor premiums and the delivery of any documents required by the Title Company;and

 

(e)           Subject to Sections 7.1 and 7.2 below (relating tocasualty and condemnation), the physical condition of the Real Property shallbe substantially the same on the Closing Date as on the Effective Date, exceptfor changes thereto which result from or are attributable to reasonable ornormal wear and tear.

 

Section 4.7             Conditions Precedent to Obligation of Seller. The obligation of Seller to consummate the transaction hereunder shallbe subject to the fulfillment on or before the Closing Date of all of thefollowing conditions, any or all of which may be waived by Seller in its solediscretion:

 

(a)           Seller shall have received the Purchase Price asadjusted as provided herein, and the Deposit, pursuant to and payable in themanner provided for in this Agreement;

 

(b)           Purchaser shall have delivered to Seller all of theitems required to be delivered to Seller pursuant to the terms of thisAgreement, including but not limited to, those provided for in Section 4.3;

 

(c)           All of the representations and warranties of Purchasercontained in this Agreement shall have been true and correct in all materialrespects as of the Effective Date and shall be true and correct as of theClosing Date; and

 

(d)           Purchaser shall have performed and observed, in allmaterial respects, all covenants and agreements of this Agreement to beperformed and observed by Purchaser as of the Closing Date.

 

Section 4.8             Condition of Property. Seller shall have a period of six (6) months after Closing in which toremove its furniture, fixtures, and equipment from the Property (except that nosuch removal shall be required for the Leased Premises until the end of theLease term).  Upon such removal, Sellershall leave all disconnected electrical supply lines in a condition thatcomplies with applicable code requirements and shall deliver the Property toPurchaser in broom clean condition.

 

**ARTICLE V.REPRESENTATIONS, WARRANTIES AND COVENANTS**

 

Section 5.1             Representations and Warranties of Seller. Seller hereby makes the following representations and warranties toPurchaser as of the Effective Date and as of the date of Closing:

 

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(a)           Organization and Authority. Seller has been duly organized and is in good standing under the laws ofthe state of its incorporation and state in which the Real Property islocated.  Seller has the full right andauthority to enter into this Agreement and to transfer all of the Property andto consummate or cause to be consummated the transaction contemplated by thisAgreement.  The persons signing thisAgreement on behalf of Seller are authorized to do so.

 

(b)           Agreement Binding.  ThisAgreement constitutes a legal, valid and binding obligation of Sellerenforceable against Seller in accordance with its terms, except as suchenforceability may be limited by bankruptcy, insolvency, reorganization,moratorium or other laws affecting creditors’ rights and by general principlesof equity (whether applied in a proceeding at law or in equity).  All Related Documents executed by Seller atthe Closing will be duly authorized, executed, and delivered by Seller, are orat the Closing will be legal, valid, and binding obligations of Seller, aresufficient to convey title, and do not violate any provisions of any agreementto which Seller is a party or to which it is subject.  The term “Related Documents” shall mean anydocument or instrument executed and/or delivered by Seller or Purchaser inconnection with or pursuant to the Closing of the transaction contemplated bythis Agreement including, without limitation, the Deed, Bill of Sale,Assignment and Assumption of Contracts and the FIRPTA Certificate.

 

(c)           Agreements.  Except forthe PREI Claims, no understanding, agreement (either express or implied), oralleged expectancy of agreement with respect to sale, lease or other transferof the Property exists between Seller and any third party, and Seller is in noway restricted from negotiating and entering into an agreement with Purchaserand selling the Property to Purchaser.

 

(d)           Leases.  There are noleases at the Real Property and, except for the Lease, there shall be no leasesat or affecting the Real Property on the Closing Date.

 

(e)           Condemnation.  To Seller’sknowledge, Seller has not received notice (written or otherwise) of anycondemnation proceedings having been instituted or threatened against any ofthe Property.

 

(f)            Bankruptcy.  Seller hasnot made a general assignment for the benefit of creditors, filed any voluntarypetition in bankruptcy or suffered the filing of an involuntary petition by itscreditors, suffered the appointment of a receiver to take possession ofsubstantially all of its assets, suffered the attachment or other judicialseizure of substantially all of its assets, admitted its inability to pay itsdebts as they come due, or made an offer of settlement, extension orcomposition to its creditors generally.

 

(g)           No Pending Actions.  Except forthe PREI Claims, to Seller’s knowledge, Seller has not received any writtennotice of:  (i) any pending (and toSeller’s knowledge there is no threatened) action, suit, arbitration,unsatisfied order or judgment which could materially and adversely affect theuse and operation or the value of the Property; or (ii) any governmentinvestigation or proceeding pending against Seller or the Real Property which,if adversely determined, could materially interfere with the consummation ofthe transaction

 

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contemplated by this Agreement;or (iii) any pending (or to Seller’s knowledge, threatened) condemnation,taking or eminent domain proceedings against the Real Property.

 

(h)           No Violations.  To Seller’sknowledge, Seller has not received written notice of any material violations ofany laws enacted by any federal, state, local or other governmental agency orregulatory body with respect to the Property which remain uncured and couldmaterially and adversely affect the use and operation or the value of the Propertyor materially and adversely interfere with the consummation of the transactioncontemplated by this Agreement.

 

(i)            Non-Foreign Status.  Seller is nota “foreign person” as defined in the Federal Foreign Investment in RealProperty Tax Act of 1980.

 

(j)            Completeness and Accuracy. To Seller’s knowledge, the documents made available by Seller toPurchaser pursuant to Section 3.1 are the material documents in thepossession of Seller or its representative and agents relating to the Propertyand used by Seller in its operation of the Property.

 

For purposesof the representations and warranties of Seller contained herein, the term “knowledge”shall mean the current actual knowledge of Mr. Glen Riley, Vice President, andMr. Ray Link, Chief Financial Officer, of TriQuint Semiconductor, Inc. (“TQS”),Seller’s parent corporation, who Seller represents are the individuals who arethe most knowledgeable about the Property and the representations andwarranties contained herein.  Theforegoing individuals shall not have any personal liability by virtue of theforegoing representations and warranties. Except for the representations andwarranties of Seller contained in this Agreement, Seller does not make anyother representations or warranties with respect to the Property, express orimplied, and Purchaser acknowledges that, except for the representations andwarranties of Seller contained in this Agreement, Purchaser is purchasing theProperty in its “AS IS, WHERE IS” condition without any other representation ofwarranty of Seller.

 

Section 5.2             Covenants of Seller from Effective Date to Closing. Seller hereby covenants with Purchaser as follows:

 

(a)           From the Effective Date hereof until the Closing orearlier termination of this Agreement, Seller shall use commercially reasonableefforts to operate and maintain the Property in a manner generally consistentwith the manner in which Seller has operated and maintained the Property priorto the date hereof;

 

(b)           From the Effective Date hereof until the Closing orearlier termination of this Agreement , Seller shall not enter into any leases,licenses or other similar agreements with respect to the Real Property ornegotiate with any other parties with respect to any lease or sale of the RealProperty.

 

(c)           Except as provided below, a copy of any amendment orrenewal of any Contract or any new Contract (collectively, the “NewContracts” and individually “New Contract”) which Seller wishes toexecute between the Effective Date and the Closing Date will be submitted toPurchaser.  Purchaser shall have theright to approve any such New Contract which Seller desires to enter intobetween after the Due Diligence Period expires and the Closing

 

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Date. With respect to any such New Contract which Purchaser has the right toapprove, Purchaser shall notify the Seller in writing within five (5) businessdays (“New Contract Approval Period”) after its receipt thereof (and anyadditional information reasonably requested by Purchaser from Seller relatingto any of the New Contracts) of either its approval or disapprovalthereof.  In the event Purchaser notifiesSeller in writing within the New Contract Approval Period that Purchaser doesnot approve any such New Contract, then Seller shall not enter into such NewContract.  In the event Purchaser failsto notify Seller in writing of its approval or disapproval within the NewContract Approval Period, Purchaser shall be deemed not to have approved anysuch New Contract.  Notwithstanding theforegoing, nothing contained in this Section 5.2(c) or this Agreementshall prohibit Seller from entering into any Contract which either (i) expireson or before the Closing Date, (ii) is terminable without penalty and withoutcost or expense to Purchaser upon no more than thirty (30) days written noticefrom Seller to the other party to such Contract, or (iii) Seller will retain asthe tenant under the Lease provided the same can be terminated without penaltyand without cost or expense to Purchaser prior to the expiration of the Lease.

 

(d)           From the Effective Date hereof until the Closing orearlier termination of this Agreement, Seller shall not modify or change thezoning classifications of the Property without Purchaser’s consent.

 

Section 5.3             Survival of Seller’s Representations and Warranties. The representations and warranties of Seller set forth in Section 5.1,shall survive for a period of twelve (12) months after the Closing.Notwithstanding the foregoing, Purchaser shall not be entitled to assert anyclaim against Seller with respect to the inaccuracy of any representation orwarranty made by Seller, or failure by Seller to perform its covenants,agreements and conditions under this Agreement, to the extent that Purchaserhas actual knowledge of such inaccuracy or failure at or prior to the time ofClosing, it being the intent and agreement of the parties that Purchaser shallnot have the right or ability to consummate the Closing and thereafter assert aclaim for breach of a warranty, representation, covenant, agreement orcondition by Seller which Purchaser had actual knowledge of at or prior toClosing; provided, however, that Seller has promptly notified Purchaser priorto Closing in writing of any such inaccuracy or failure of which Seller hadactual knowledge.

 

Section 5.4             Representations and Warranties of Purchaser. Purchaser hereby makes the following representations and warranties toSeller as of the Effective Date and as of the Closing Date:

 

(a)           Organization and Authority of Purchaser. Purchaser has been duly organizedand is in good standing under the laws of the Commonwealth of Pennsylvania..  Purchaser has the full right andauthority to enter into this Agreement, to purchase all of the Property and toconsummate or cause to be consummated the transaction contemplated by thisAgreement.  The persons signing thisAgreement on behalf of Purchaser is authorized to do so;

 

(b)           Pending Actions.  To Purchaser’sknowledge, there is no action, suit, arbitration, unsatisfied order orjudgment, government investigation or proceeding pending against Purchaserwhich, if adversely determined, could individually or in the aggregate

 

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materially interfere with the consummation ofthe transaction contemplated by this Agreement; and

 

(c)           Agreement Binding.  ThisAgreement constitutes a legal, valid and binding obligation of Purchaserenforceable against Purchaser in accordance with the terms hereof, except assuch enforceability may be limited by bankruptcy, insolvency, reorganization,moratorium or other laws affecting creditors’ rights and by general principlesof equity (whether applied in a proceeding at law or in equity).

 

Section 5.5             Survival of Purchaser’s Representations and Warranties. The representations and warranties of Purchaser set forth in Section 5.4shall survive the Closing for a period of twelve (12) months.  Notwithstanding the foregoing, Seller shallnot be entitled to assert any claim against Purchaser with respect to theinaccuracy of any representation or warranty made by Purchaser, or failure byPurchaser to perform its covenants, agreements and conditions under thisAgreement, to the extent that Seller has actual knowledge of such inaccuracy orfailure at or prior to the time of Closing, it being the intent and agreementof the parties that Seller shall not have the right or ability to consummatethe Closing and thereafter assert a claim for breach of a warranty,representation, covenant, agreement or condition by Purchaser which Seller hadactual knowledge of at or prior to Closing; provided, however, that Purchaserhas promptly notified Seller in writing of any such inaccuracy or failure ofwhich Purchaser had actual knowledge.

 

**ARTICLE VI. DEFAULT**

 

Section 6.1             Default by Purchaser. In the event of any material default by Purchaser under this Agreementthat is not cured within five (5) days after Purchaser’s receipt of noticethereof (but in no event later than the time and date of Closing), Seller shallbe entitled, as its sole and exclusive remedy, to terminate this Agreement andreceive the Deposit as liquidated damages for the breach of this Agreement, itbeing agreed between the parties hereto that the actual damages to Seller inthe event of such a material breach are impractical to ascertain and the statedamount of the Deposit is a reasonable estimate thereof.  Seller’s receipt of the Deposit pursuant tothe terms of this Section 6.1 shall release Purchaser from any and allliability relating to this Agreement, except for any surviving liability ofPurchaser under Section 3.4 above.

 

Section 6.2             Default by Seller.  In the eventof any material default by Seller under this Agreement that is not cured withinfive (5) days after Seller’s receipt of notice thereof (but in no event laterthan the time and date of Closing), Purchaser shall be entitled, as its soleand exclusive remedy, to either (i) receive the return of the Deposit and thereimbursement from Seller for all of Purchaser’s documented out-of-pocketexpenses incurred by Purchaser in connection with this Agreement and itspurchase of the Property, which receipt shall operate to terminate thisAgreement and release Seller from any and all liability hereunder or (ii)enforce specific performance.

 

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**ARTICLE VII.RISK OF LOSS**

 

Section 7.1             Casualty.  Subject tothe provisions of this Section 7.1, Seller shall bear the risk of anydamage to the Property between the Effective Date and the Closing Date.  From the Effective Date to the Closing Date,Seller shall keep and maintain all insurance policies necessary for theoperation for the operation of the Property. If the Property is damaged by fire, storm, flood, or any other casualtybetween the Effective Date and Closing Date, Seller and Purchaser shall obtainan estimate of the cost of repairing the damage from an established contractorselected by Seller and reasonably approved by Purchaser.

 

(a)           If the estimated cost to repair such damage is lessthan $250,000, then the Closing shall be held in accordance with the terms ofthis Agreement and Seller shall assign its rights to any and all insuranceproceeds to Purchaser or, if the insurance proceeds have been received bySeller, credit the Purchase Price the amount of such proceeds.  If the estimated cost to repair such damageis equal to or more than $250,000, then either Purchaser or Seller may elect toterminate this Agreement upon written notice to the other given within five (5)business days after receipt of notice of the estimated cost of repair.  If this Agreement is terminated by Purchaseror Seller within such five (5) business day period, the Deposit shall bereturned to Purchaser and neither Seller nor Purchaser shall have any furtherrights, claims or obligations against one another arising out of thisAgreement.  If this Agreement is not soterminated, then the Closing shall be held in accordance with the terms of thisAgreement and, at Purchaser discretion, Seller shall assign its right to allinsurance proceeds to Purchaser or repair the damage at Seller’s sole cost andexpense.

 

(b)           All repairs to be performed by Seller pursuant to thisSection 7.1 shall be done in a good and workmanlike manner consistent withthe original construction of the Property.

 

Section 7.2             Condemnation.

 

(a)           If prior to the Closing any part of the Property iscondemned or taken pursuant to any governmental or other power of eminentdomain, or if written notice of taking or condemnation is issued with respectto any portion of the Property, or if proceedings are instituted or threatenedin writing to be instituted by any governmental or other authority having thepower of eminent domain with respect to any portion of the Property (any suchevent, a “Taking”), Seller shall immediately notify Purchaser as soon asSeller receives written notice of any such Taking.  If the Taking is of all of the Real Property,or of a portion of the Real Property which would materially and adverselyaffect the Property or the use or value thereof or access thereto, then eitherSeller or Purchaser shall have the right, to be exercised within five (5)business days after receiving such notification, to terminate this Agreementeffective upon written notice to the other party.

 

(b)           If this Agreement is terminated within such five (5)business day period, the Deposit shall be returned to Purchaser and, neitherSeller nor Purchaser shall have any further rights, claims or obligationsagainst one another arising out of this Agreement.

 

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(c)           If neither Seller or Purchaser hasright to terminate or, if they have such right, they do not elect to terminatewithin the five (5) business day period, then Purchaser shall accept theProperty net of the portion taken by the Taking.  In such event, if the condemnation award inrespect of the Taking is paid to Seller prior to the Closing, the PurchasePrice shall be reduced by an amount equal to the proceeds of the award receivedby, or on behalf of, Seller.  If theaward has not been paid to Seller as of the Closing Date, then Seller shallassign to Purchaser, without recourse, at the Closing, by documents reasonablysatisfactory to Purchaser, all rights of Seller to the award, in which casethere shall be no adjustment in the Purchase Price by reason of the Taking.

 

**ARTICLE VIII.COMMISSIONS**

** **

Section 8.1             Brokerage Commissions. With respect to the transaction contemplated by this Agreement, Sellerand Purchaser each represent to the other that no broker, licensed orotherwise, brought about this transaction, nor has any possible claim to anycommission, except for CB Richard Ellis and Colliers L & A on behalfof Seller, and The Flynn Company on behalf of Purchaser.  Seller shall be responsible to pay anycommission owed to such parties per a separate agreement, which shall be sharedby said brokers as they may agree. Purchaser acknowledges that The Flynn Company may not receive one-halfof the total commission paid.  Each partyhereto agrees that if any person or entity, other than the above-named brokers,makes a claim for brokerage commissions or finders fees related to the sale ofthe Property by Seller to Purchaser, and such claim is made by, through or onaccount of any acts or alleged acts of said party or its representatives, saidparty will protect, indemnify, defend and hold the other party free andharmless from and against any and all loss, liability, cost, damage and expense(including reasonable attorneys’ fees) in connection therewith.  The provisions of this Section 8.1 shallsurvive the Closing or any termination of this Agreement.

 

**ARTICLE IX.MISCELLANEOUS**

** **

Section 9.1             Assignment.  Subject tothe provisions of this Section 9.1, the terms and provisions of thisAgreement are to apply to and bind the permitted successors and assigns of theparties hereto.  Purchaser may not assignits rights under this Agreement without first obtaining Seller’s writtenapproval, which approval may not be unreasonably withheld, conditioned ordelayed; provided, however, Purchaser shall have the right to assign thisAgreement to an affiliate of Purchaser without the prior written consent ofSeller.

 

Section 9.2             Notices.  Any noticepursuant to this Agreement shall be given in writing by (a) personaldelivery, (b) reputable overnight delivery service with proof of delivery,or (c) legible facsimile transmission, sent to the intended addressee atthe address set forth below, or to such other address or to the attention ofsuch other person as the addressee shall have designated by written notice sentin accordance herewith, and shall be deemed to have been given upon receipt orrefusal to accept delivery, or, in the case of facsimile transmission, as ofthe date of the facsimile transmission (if such is received by 5:00 p.m.local time of the recipient) provided that an original of such facsimile isalso sent to the intended addressee by means

 

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described in clauses (a), or (b) above.  Unless changed in accordance with thepreceding sentence, the addresses for notices given pursuant to this Agreementshall be as follows:

 
| If  to Seller:  TriQuint Optoelectronics, Inc.  c/o TriQuint Semiconductor, Inc.  2300 NE Brookwood Parkway  Hillsboro, OR 97124 |   | If  to Purchaser:Anthem Partners,  LLC  120 W. Germantown Pike, Suite 200  Plymouth Meeting, PA 19462 |
|-------------------------------------------------------------------------------------------------------------------------------------------------|--------|------------------------------------------------------------------------------------------------------------|
|                                                                                                                                            |   |                                                                                                       |
| Attn:  Ray Link, Chief Financial Officer  Tel: (503)615-9435  Fax: (503)615-8900                                                                |   | Attn:  Lawrence Stuardi  Tel: 610-238-0500  Fax: 610-238-0140                                              |
|                                                                                                                                            |   |                                                                                                       |
| With a copy to:Randal A. Johnson  Ater Wynne LLP  222 SW Columbia, Suite 1800  Portland, Oregon 97201-6618                                 |   |                                                                                                       |
|                                                                                                                                            |   |                                                                                                       |
| Phone (503) 226-8611  Fax(503) 226-0079  e-mail raj@aterwynne.com                                                                          |   |                                                                                                       |

 

Section 9.3             Modifications.  ThisAgreement cannot be changed orally, and no executory agreement shall beeffective to waive, change, modify or discharge it in whole or in part unlesssuch executory agreement is in writing and is signed by the parties againstwhom enforcement of any waiver, change, modification or discharge is sought.

 

Section 9.4             Entire Agreement  ThisAgreement, including the exhibits and schedules hereto and the documentscontemplated hereby, contains the entire agreement between the parties heretopertaining to the subject matter hereof and fully supersedes all prior writtenor oral agreements and understandings between the parties pertaining to suchsubject matter.

 

Section 9.5             Further Assurances.  Each partyagrees that it will execute and deliver such other documents and take suchother action, whether prior or subsequent to the Closing, as may be reasonablyrequested by the other party to consummate the transaction contemplated by thisAgreement.

 

Section 9.6             Counterparts.  ThisAgreement may be executed in counterparts, all such executed counterparts shallconstitute the same agreement, and the signature of any party to any counterpartshall be deemed a signature to, and may be appended to, any other counterpart.

 

Section 9.7             Severability.  If anyprovision of this Agreement is determined by a court of competent jurisdictionto be invalid or unenforceable, the remainder of this Agreement shallnonetheless remain in full force and effect; provided that the invalidity orunenforceability

 

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of such provision does not materiallyadversely affect the benefits accruing to any party hereunder.

 

Section 9.8             Applicable Law.  ThisAgreement and the Related Documents shall be governed by and construed inaccordance with the internal laws of the Commonwealth of Pennsylvania withoutregard to conflicts of law principles. The parties hereto agree that the provisions of this Section 9.8shall survive the Closing or any termination of this Agreement.

 

Section 9.9             No Third-Party Beneficiary The provisions of this Agreement and of the documents to be executed anddelivered on the Closing Date are and will be for the benefit of Seller,Purchaser, and Escrow Agent only and, subject to the provisions of Section 9.1,are not for the benefit of any third party, and accordingly, no third partyshall have the right to enforce the provisions of this Agreement or of thedocuments to be executed and delivered on the Closing Date.

 

Section 9.10           Captions.  The section headingsappearing in this Agreement are for convenience of reference only and are notintended, to any extent and for any purpose, to limit or define the text of anysection or any subsection hereof.

 

Section 9.11           Construction.  The partiesacknowledge that the parties and their counsel have reviewed and revised thisAgreement and that any normal rule of construction to the effect that anyambiguities are to be resolved against the drafting party shall not be employedin the interpretation of this Agreement or any exhibits or amendments hereto.

 

Section 9.12           Internal Revenue Service Reporting Requirement. Each party shall execute, acknowledge and deliver to the other partysuch instruments, and take such other actions, as such other party mayreasonably request in order to comply with Section 6045(e) of theInternal Revenue Code of 1986, as amended, or any successor provision or anyregulations promulgated pursuant thereto (the “Code”), insofar as the samerequires reporting of information in respect of real estate transactions.  The provisions of this Section 9.12shall survive the delivery of the deed hereunder.

 

Section 9.13           Tax Free Exchange.

 

(a)           Notwithstanding any terms in theAgreement to the contrary, each party shall have the right to consummate thetransactions contemplated by this Agreement in a manner which qualifies as atax-deferred exchange, in whole or in part, under the provisions of Section 1031of the Code.

 

(b)           Upon request of either party (the “RequestingParty”) and at the expense of the Requesting Party, the other party agreesto cooperate with the Requesting Party with respect to any tax-deferredexchange pursuant to the provisions of Section 1031 of the Code and theTreasury Regulations thereunder and to execute any and all documents reasonablyrequested by the Requesting  Party inconnection therewith, provided that (i) the other party shall not incuradditional costs or expenses attributable to the exchange, including reasonableattorneys’ fees, deed excise taxes and recording fees; (ii) the RequestingParty agrees to indemnify and hold the other harmless from and against allliability arising from any tax deferred exchange relating to the Propertyconducted by the Requesting Party, (iii) the other party shall

 

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not be required to purchase or take title toany replacement property in connection with any such deferred exchange (the “ReplacementProperty”) and (iv) the Closing Date shall not be altered as a resultof any such exchange.

 

(c)           Each party acknowledges that theother party shall not be deemed an agent of the Requesting Party in connectionwith said exchange.  Each party furtheracknowledges that all agreements in connection with performing the exchangeshall be prepared at the Requesting Party’s expense by its counsel.

 

(d)           Without limiting the foregoing, theRequesting Party shall have the right to transfer all or any portion of itsinterests under the Agreement to a qualified intermediary (the “Intermediary”)in accordance with the provisions of Section 1031 of the Code and theTreasury Regulations thereunder (and, as a result of the transfer, theIntermediary will acquire an equitable interest in the title to the Property);provided, the Requesting Party shall not be released from its obligationshereunder as a result of such transfer.

 

Section 9.14           Attorneys’ Fees.  In the eventany dispute between the parties hereto regarding this Agreement or any RelatedDocuments should result in litigation, the prevailing party in such litigationshall be reimbursed for all reasonable costs, including, without limitation,reasonable attorneys’ fees.

 

Section 9.15           Confidentiality.  Each partyagrees that, except as otherwise set forth in this Agreement or required by lawor legal process, it shall:  (i) keepthe contents of this Agreement and any information related to the transactioncontemplated hereby confidential (except that Purchaser and Seller may disclosesuch data and information to their respective employees, lenders, consultants, accountantsand attorneys, provided that such persons agree to treat such data andinformation confidentially); and (ii) refrain from generating or participatingin any publicity statement, press release or other public notice regarding thistransaction without the prior written consent of the other party unlessrequired under applicable law or by legal process; provided, however, thatPurchaser and Seller may at or following the Closing publicly announce the saleof the Property and the identity of the new owner thereof.  The provisions of this Section 9.15shall survive the Closing.

 

**ARTICLE X.LEASEBACK TO SELLER**

** **

Section 10.1           Negotiation of Lease. As a condition to the parties’ obligations hereunder, Seller andPurchaser (or their assignees hereunder) shall execute at Closing a leaseagreement for the following-described portions of the Real Property (the “Lease”),with the Seller as the tenant and Purchaser as the landlord thereunder, underthe following general terms and conditions:

 

(a)           **Initial Term: **Twenty-four (24) months from the Closing Date;provided, however, that if the Closing Date is extended by Purchaser inaccordance with Section 4.1 hereof, the term of the Lease may, at Seller’soption, be shortened by the same number of days that Closing is extended past April 1,2005.

 

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(b)           **Annual Base Rent:** [***]

 

(c)           **Leased Premises:** The following portions of the Real Property, as depicted on Schedule 10.1(c) attachedhereto:

 

(i)            all of Building 2; and

 

(ii)           the manufacturing (not office) portion of Building 4(the “Building 4 Space”), which includes the portion of said premises used bySeller for chip fabrication that is depicted on Schedule 10.1(c) hereto(the “Chip Fab Space”).

 

(d)           **Recapture of Building 4:** Purchaser shall have the right to recapture all or portions of the Building4 Space.  For those portions of the Building4 Space not included in the Chip Fab Space, Purchaser shall give Seller no lessthan sixty (60) days written notice of Purchaser’s intent to recapture suchpremises.  For the Chip Fab Space,Purchaser shall give Seller no less than eighteen (18) weeks written notice ofits intent to recapture such space. Seller may extend such notice period for recapture of the Chip Fab Spacean additional four (4) weeks by written notice to Purchaser given withinthe initial eighteen (18) week period. Upon expiration of the applicable notice period (as the same may beextended), Seller shall deliver possession of the recaptured premises toPurchaser in the condition required by Section 4.8, hereof and the leaseof such premises shall thereupon terminate.

 

(e)           **Access and Use Rights: **Seller shall have the right to reasonable use of otherportions of the Buildings as necessary to access the Leased Premises.  Seller shall also have the right to accessthe Central Utilities Plant and the Command Center in order to operate theLeased Premises and to perform its obligations under the Lease, which spaceshall be considered common area.  Sellershall also have the right to reasonable use, in common with Purchaser and othertenants, the dock area and the auditorium in Building 1, and shall coordinatesuch use with Purchaser.  Seller’s accessand use rights generally set forth herein shall be subject to furtherrefinement and clarification, and to reasonable rules and restrictionsconcerning the joint use thereof by the parties and future tenants of theBuildings, as may be set forth in the Lease.The intention ofthese access and use rights is to permit Seller (or its assignee) to continue touse the Leased Premises in substantially the same manner as is currently thecase and as is reasonably necessary to operate its business.

 

(f)            **Utilities/Operating Expenses:** Seller shall pay for all utilities and services directly relating to itsuse and occupancy of the Leased Premises during the Lease term.  Landlord shall be responsible for all otherutilities and services for the remainder of the Buildings.  The parties agree to reasonably cooperatewith each other in an effort to minimize utility and other operatingcosts.  Anything to the contrary in theforegoing notwithstanding, the parties agree to allocate the utility and otheroperating costs as set forth on Schedule 10.1(f) attached hereto (the“Cost Allocation”).  Each party shall beresponsible for the total amount of

 

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all cost items allocated to it on the CostAllocation, which shall not be limited by the estimated amounts set forththereon.  For the “Shared Costs” setforth on the Cost Allocation, Seller shall be responsible for such costs duringthe initial Lease term, subject to payment by Purchaser of its fixed allocatedamount of $13,388 per month ($160,656 annually) (“Purchaser’s Allocation”),which shall be paid by Purchaser to Seller in the form of a credit againstmonthly Base Rent payable under the Lease; provided, however, that in the eventSeller (i) occupies any portion of the Building 4 Space, or (ii) hasnot removed its furniture, fixtures, or equipment from the Property (except forthe Leased Premises) in accordance with Section 4.8 hereof, six (6) monthsfollowing the Closing Date, Purchaser’s Allocation shall be reduced to $0 untilsuch time as Seller vacates all of the Building 4 Space and/or removes suchfurniture, fixtures, and equipment, as the case may be, at which time Sellershall again receive the monthly credit for Purchaser’s Allocation.  Upon occupancy of any portion of the Buildingsby a tenant other than Seller, Seller’s allocated share of the Shared Costsshall be equitably apportioned between Seller and such tenant(s), consideringthe nature and extent of their respective use of such utilities or services**. **Upon occupancy of any portion of theBuildings by a tenant other than Seller, Purchaser or Seller shall have theright to separately meter any utilities serving the Leased Premises, at itssole cost and expense, in which event Seller shall only be responsible for thecost of such metered utilities actually used in the Leased Premises, and notthe amount allocated for such utilities by the Cost Allocation.

 

(g)           **Maintenance and Repair:** Seller shall maintain and repair,at its sole cost and expense, the HVAC systems serving the Leased Premises(including all special air handling equipment used in connection with itsprocessing activities on the Leased Premises), and all damage caused by Sellerto the Leased Premises during the term of the Lease.  Except as set forth in the Cost Allocation, Purchasershall maintain, repair, and replace, at its sole cost and expense, thefollowing items during the Lease term, the cost of which shall not be passedthrough to Seller under the Lease (except during any renewal term(s)): (a) allstructural elements and the foundation of the Leased Premises; (b) theroof; and (c) all other maintenance, repair, and replacement expenses notspecifically allocated to Seller herein.

 

(h)           **Insurance:** Seller shall at all times during the Lease term maintain generalcommercial liability insurance in an amount not less than $2,000,000 peroccurrence.  Purchaser shall at all timesbe responsible to maintain, at its sole cost and expense, casualty insurancecoverage on the Leased Premises for the full replacement cost thereof.

 

(i)            **Taxes: **Purchaser shall be responsible for all taxes due onthe Property (including the Leased Premises) from and after the Closing Date(except during any renewal term(s)). Seller shall have the right, at its sole cost and expense, to pursue anyrefund of any charges applicable to periods prior to the Closing Date.  Purchaser agrees to reasonably cooperate withSeller, at no cost or expense to Purchaser, with respect to the same.  Should any tax appeal be successful or anyother cost saving measure as it pertains to the Property be achieved forperiods prior to the Closing Date, such savings will inure solely to thebenefit of Seller.

 

(j)            **Renewal Options: **Provided that Seller (or its assignee of the Lease) isnot then in default under the Lease and has not failed to timely pay (after anyapplicable grace or notice period) any installment of Base Rent during theinitial Lease term,

 

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Seller (or its assignee) shall have one ofthe following two renewal options with respect to the Leased Premises:

 

(1)           One (1), five (5) year renewal option,exercisable on six (6) months advance written notice, on the same termsset forth above except that rent, utilities, and operating expenses payableduring such renewal term shall be as follows:

 
| 1st Year |   | [***]/sq. ft. NNN  |
|----------|--------|--------------------|
| 2nd Year |   | [***]/sq. ft NNN   |
| 3rd Year |   | [***]/sq. ft. NNN  |
| 4th Year |   | [***]/sq. ft. NNN  |
| 5th Year |   | [***]/sq. ft. NNN. |

 

**OR**

 

(2)           five (5), two (2) year renewal options,exercisable on six (6) months advance written notice, on the same termsset forth above except that rent, utilities, and operating expenses payableduring such renewal term(s) shall be as follows:

 
| 1st Renewal Term |   | [***]/sq. ft. NNN  |
|------------------|--------|--------------------|
| 2nd Renewal Term |   | [***]/sq. ft NNN   |
| 3rd Renewal Term |   | [***]/sq. ft. NNN  |
| 4th Renewal Term |   | [***]/sq. ft. NNN  |
| 5th Renewal Term |   | [***]/sq. ft. NNN. |

 

The foregoing notwithstanding, Seller (or itsassignee) shall have the right to convert the third (3rd), fourth (4th),and fifth (5th) two (2) year renewal options set forth above toone (1) year options, upon giving Purchaser twelve (12) months noticeprior to exercising each such one (1) year option.  Upon Seller’s conversion of any of the third(3rd), fourth (4th), or fifth (5th) options toa one (1) year option, each successive option shall thereafterautomatically be converted to a one (1) year option.

 

(k)           **Surrender of Leased Premises:** Upon the expiration or earlier termination of the Lease, Seller shallsurrender the Leased Premises in the condition required by Section 4.8hereof, free and clear of all equipment, trade fixtures and personal propertyof Seller (and Seller shall repair any damage caused by the removal of suchitems).  The foregoing notwithstanding,Seller shall have a reasonable period of time after Purchaser’s recapture ofany portion of the Leased Premises in accordance with Section 10.1(d) hereofin which to remove its furniture, fixtures, and equipment from the recapturedpremises.

 

(l)            **Assignment: **Seller shall have the absolute right to assign theLease in connection with the sale of Seller’s optoelectronics business withoutthe consent of, but

 

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upon notice to, Purchaser.  Seller’s assignee may further assign theLease only upon Purchaser’s prior written consent, which consent shall notunreasonably be withheld, conditioned, or delayed.

 

(m)          **Negotiation of Lease: **Seller and Purchaser shall negotiate in good faith theform of Lease within the Lease Approval Period as contemplated by Section 3.5hereof, which form shall incorporate the terms set forth above and shallotherwise contain such other terms as are customarily contained in commercialleases of this nature, taking into consideration, the size, use and location ofthe premises, as well as such other terms as may be mutually agreed upon by theparties.  Upon approval of the form ofLease, the parties shall designate their approval thereof in writing and theform shall be attached as **Exhibit F**hereto.

 

(n)           **Guaranty: **Seller’s obligations to pay Base Rent under the Leasefor the initial twenty-four month term thereof shall be guaranteed by TQS.  Upon any assignment of the Lease, Purchaseragrees to release TQS from such guaranty, provided that the Lease assignee orany other guarantor has a net worth equal to or greater than that of TQS as ofthe Closing Date.  TQS shall not guarantyany obligations under the Lease during any renewal term(s).

 

IN WITNESSWHEREOF, the parties hereto have duly executed this Agreement as of theEffective Date.

 

 
| **SELLER:**                        | **PURCHASER:**                          |   |
|------------------------------------|-----------------------------------------|--------|
| ** **                         | ** **                              |   |
| **TRIQUINT OPTOELECTRONICS, INC.** | **ANTHEM PARTNERS, LLC**                |   |
| ** **                         | ** **                              |   |
| ** **                         | ** **                              |   |
| By:                                | /s/ RAYMOND A. LINK                     |   | By: | /s/ LAWRENCE J. STUARDI |   |   |
| Name:                              | Raymond A. Link                         |   | Name: | Lawrence J. Stuardi |   |
| Title:                             | V.P Finance and  Administration and CFO |   | Title: | President |   |
|                                    |                                         |        |  |  |  |  |  |  |  |  |

 

23

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**LIST OF EXHIBITS**

 

**EXHIBITS**

 
| ****EXHIBIT A**** | **** **** | ****-**** | **** **** | ****Legal Description of the Real Property****              |
|-------------------|----------------|-----------|----------------|-------------------------------------------------------------|
| ****EXHIBIT B**** | **** **** | ****-**** | **** **** | ****Form of Special Warranty Deed****                  |
| ****EXHIBIT C**** | **** **** | ****-**** | **** **** | ****Form of Bill of Sale****                           |
| ****EXHIBIT D**** | **** **** | ****-**** | **** **** | ****Form of Assignment and Assumption of Contracts**** |
| ****EXHIBIT E**** | **** **** | ****-**** | **** **** | ****Form of FIRPTA Certificate****                     |
| ****EXHIBIT F**** | **** **** | ****-**** | **** **** | ****Form of Lease****                                  |

 

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**EXHIBIT A**

 

LegalDescription of the Real Property

 

ALLTHAT CERTAIN tract of land located in Upper Macungie Township, Lehigh County,Pennsylvania, known as LOT 3 as shown on and described in accordance with aMinor Subdivision Plan for Agere Systems, Inc., prepared by Barry Isett &Associates, Inc., Trexlertown, Pennsylvania, dated October 22, 2001,last revised February 20, 2002 and recorded in Lehigh County Document ID No. 7025857;Document ID No. 7025858; Document ID No. 7025859, on August 28, 2002and Document ID No. 7049646 on Dec. 13, 2002, bounded and describedas follows to wit:

 

BEGINNINGat the intersection of the northerly ultimate right-of-way line of  S.R. 0222 (100 foot right-of-way and theeasterly property line of Lot 1 as shown on aforesaid Minor Subdivision Plan;thence along the lands of said Lot 1 the following seven (7) courses anddistances (1) North 16 degrees 30 minutes 00 seconds East, 177.27 feet; (2) Alonga circular curve to the right, having a radius of 530.00 feet and a centralangle of 28 degrees 10 minutes 08 seconds (chord bearing and distance of North30 degrees 35 minutes 04 seconds East, 257.95 feet), the arc length of 260.57feet; (3) North 44 degrees 40 minutes 08 seconds East, 55.66 feet (4) Alonga circular curve to the right, having a radius of 418.06 feet and a centralangle of 38 degrees 58 minutes 58 seconds (chord bearing and distance of North25 degrees 51 minutes 23 seconds West 278.75 feet), the arc length of 284.20feet; (5) North 06 degrees 22 minutes 55 seconds West, 105.56 feet; (6) Alonga circular curve to the left, having a radius of 275.00 feet and a centralangle of 87 degrees 16 minutes 23 seconds (chord bearing and distance of North50 degrees 01 minute 06 seconds West, 379.55 feet), the arc length of 418.88feet; (7) North 03 degrees 39 minutes 18 seconds West, 50.00 feet to thesoutherly ultimate right-of-way line of Haas Hill Road (60 foot right-of-way);thence along said southerly ultimate right-of-way line of Haas Hill Road thefollowing sixteen (16) courses and distances; (1) North 86 degrees 20 minutes42 seconds East, 558.25 feet; (2) North 86 degrees 35 minutes 18 secondsEast, 572.50 feet; (3) Along a circular curve to the right, having a radiusof 1,155.00 feet and a central angle of 06 degrees 51 minutes 26 seconds (chordbearing and distance of South 89 degrees 58 minutes 59 seconds East, 138.15),the arc length of 138.23 feet; (4) South 86 degrees 33 minutes 16 secondsEast, 348.58 feet (5) Along a circular curve to the left, having a radiusof 830.00 feet and a central angle of 03 degrees 29 minutes 59 seconds (chordbearing and distance of South 88 degrees 18 minutes 16 seconds East, 50.69feet), the arc length of 50.70 feet; (6) South 89 degrees 56 minutes 44seconds East, 206.85 feet; (7) Along a circular curve to the right, havinga radius of 755.00 feet and a central angle of 24 degrees 08 minutes 38 seconds(chord bearing and distance of South 77 degrees 58 minutes 57 seconds East,315.80 feet), the arc length of 318.15 feet (8) South 65 degrees 54minutes 39 seconds East, 682.47 feet; (9) Along a circular curve to theleft, having a radius of 1,280.00 feet and a central angle of 02 degrees 13minutes 29 seconds (chord bearing and distance of South 67 degrees 01 minutes24 seconds East, 49.70 feet), the arc length of 49.70 feet; (10) South 68degrees 08 minutes 09 seconds East, 431.15 feet, (11) Along a circular curve tothe right, having a radius of 230.00 feet and a central angle of 34 degrees 33minutes 46 seconds (chord bearing and distance of South 50 degrees 51 minutes14 seconds East, 136.65 feet), the arc length of 138.74 feet; (12) Along acircular curve to the left, having a radius of 318.34 feet and a central angleof 29 degrees 51 minutes 07 seconds (chord bearing and distance of South 48degrees 29 minutes 53 seconds East, 163.99 feet); the arc length

 

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of165.86 feet; (13) South 63 degrees 25 minutes 27 seconds East, 406.25 feet;(14) South 62 degrees 09 minutes 53 seconds East, 329.07 feet; (15) Along acircular curve to the left, having a radius of 2,130.00 feet and a centralangle of 03 degrees 43 minutes 28 seconds (chord bearing and distance of South64 degrees 01 minute 37 seconds East, 138.43 feet), the arc length of 138.46feet; (16) South 65 degrees 53 minutes 21 seconds East, 191.84 feet to thewesterly property line of lands of Ralph C. Derr; thence along said lands ofRalph C. Derr the following five (5) courses and distances; (1) South24 degrees 44 minutes 28 seconds West, 168.94 feet; (2) South 66 degrees31 minutes 26 seconds East 70.70 feet; (3) South 24 degrees 57 minutes 00seconds West, 89.86 feet; (4) South 71 degrees 58 minutes 50 seconds East,92.88 feet; (5) North 70 degrees 46 minutes 14 seconds East, 173.55 feetto the westerly property line of Lot 2 as shown on aforesaid Minor SubdivisionPlan; thence along said property line of Lot 2, South 16 degrees 29 minutes 13seconds West, 971.56 feet to the aforesaid northerly ultimate right-of-way lineof S.R. 0222 (100 foot right-of-way); thence along said northerly ultimateright-of-way line of S.R. 0222, North 73 degrees 30 minutes 47 seconds West,457.51 feet to the easterly property line of lands of Verna A. Seagreaves;thence along said lands of Verna A. Seagreaves the following three (3) coursesand distances; (l) North 16 degrees 29 minutes 04 seconds East, 130.01 feet; (2) North73 degrees 29 minutes 16 seconds West, 193.10; (3) South 03 degrees 12minutes 45 seconds West, 134.01 feet to the aforesaid northerly ultimateright-of-way line of S.R. 0222, thence along said right-of-way line, North 73degrees 30 minutes 00 seconds West 3717.44 feet to the point of beginning.

 

Togetherwith those certain rights of ways and easements set forth in Deed dated1/4/1985 and recorded 6/6/1986 in Deed Book 1373 page 296 and in Deeddated 8/10/1972 and recorded 8/18/1972 in Misc. Book 361 page 625.

 

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**EXHIBIT B**

 

Form ofSpecial Warranty Deed

 

[Not Yet Drafted]

 

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**EXHIBIT C**

 

Form ofBill of Sale

 

**KNOW ALLMEN BY THESE PRESENTS,**that                                                      ,a                                                              (the“Seller”), for and in consideration of the sum of Ten Dollars and othervaluable consideration to it in hand paid by,                                               (the“Purchaser”), the receipt and sufficiency of which are hereby acknowledged,hereby sells, assigns, transfers and conveys unto said Purchaser any and all ofSeller’s right, title and interest in and to the Personal Property, AS IS,WHERE IS, and without representation of any kind, without warranty of title oruse, and without warranty, express or implied, of merchantability or fitnessfor a particular purpose, except as set forth in the Purchase and SaleAgreement dated as of [                            ],2005, between Seller and Purchaser. Terms used herein, which are not otherwise defined herein, shall havethe meaning set forth in the Purchase and Sale Agreement.

 

**TO HAVEAND TO HOLD**all of said Personal Property unto Purchaser, itssuccessors and assigns, to its own use forever.

 

**INWITNESS WHEREOF,**Seller has executed this Bill of Sale as ofthe              dayof                       ,2005.

 

 
|   |   | ,      |
|--------|--------|--------|
|   | a      |   |   |
|   |   |
|   | By:    |   |   |
|   | Name:  |   |   |
|   | Title: |   |   |
|        |        |        |  |  |  |  |  |  |

 

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**EXHIBIT D**

 

Form ofAssignment and Assumption of Contracts and Intangibles

 

This **ASSIGNMENT AND ASSUMPTION OF CONTRACTS** (the “Assignment’) ismade as of the              dayof                   ,2005, between                                                   (the“Assignor”), and                                                                       (the“Assignee”)

 

For and inconsideration of the sum of Ten Dollars ($10.00) and other valuableconsideration to it in hand paid by Assignee to Assignor, the conveyance byAssignor to Assignee of all that certain real property commonly known as                                                           (the“Property”), and the mutual covenants herein contained, the receipt andsufficiency of the foregoing consideration being hereby acknowledged by theparties hereto, Assignor hereby assigns, transfers, sets over and conveys toAssignee all of Assignor’s right, title and interest, to the extent assignable,in, to and under the contracts set forth on the attached **Schedule 1**(the “Assumed Contracts”), the Warranties and Intangibles. Terms used herein,which are not otherwise defined herein, shall have the same meaning as setforth in the Purchase and Sale Agreement dated as of                                           ,2004, by and between Assignor and Assignee.

 

Effective onlyfrom and after the date hereof and by acceptance hereof, Assignee assumes andagrees to be bound by and agrees to perform all of Assignor’s obligationssolely as the same are set forth in writing in the Assumed Contracts.

 

Assignee shallindemnify and hold Assignor harmless from and against any actions, suits,proceedings or claims, and all costs and expenses (including, withoutlimitation, reasonable attorneys’ fees incurred in connection therewith), basedupon or arising out of any breach or alleged breach of any of the AssumedContracts or out of any other statement of facts connection with the AssumedContracts occurring or alleged to have occurred after the date hereof. Assignorshall indemnify and hold Assignee harmless from and against any actions, suits,proceedings or claims, and all costs and expenses (including, withoutlimitation, reasonable attorneys’ fees incurred in connection therewith), basedupon or arising out of any breach or alleged breach of any of the Contracts orout of any other statement of facts connected with the Contracts occurring oralleged to have occurred up to and including the date hereof.

 

This Assignmentshall be binding upon and inure to the benefit of Assignor and Assignee andtheir respective heirs, executors, administrators, successors and assigns.

 

This Assignmentmay be executed in two or more counterparts, each of which shall be deemed anoriginal, but all of which together shall constitute one and the sameinstrument.

 

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IN WITNESSWHEREOF, Assignor and Assignee have each executed this Assignment as of thedate first written above.

 
| **ASSIGNOR:** | **ASSIGNEE:** |
|---------------|---------------|
| ** **    | ** **    |
| ** **    | ** **    |
| By:           | ** **    | ** ** | By: | ** ** | ** ** |
| Name:         | ** **    | ** ** | Name: | ** ** | ** ** |
| Title:        | ** **    | ** ** | Title: | ** ** | ** ** |
|               |               |  |  |  |  |  |  |  |  |  |  |

 

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**EXHIBIT E**

 

Form ofFIRPTA CertificateCERTIFICATE REGARDING FOREIGN INVESTMENTIN REAL PROPERTY TAX ACT

 

(ENTITY TRANSFEROR)

 

Section 1445 of theInternal Revenue Code provides that a transferee (purchaser) of a U.S. realproperty interest must withhold tax if the transferor (seller) is a foreign person.  To inform the transferee (purchaser) thatwithholding of tax is not required upon the disposition of a U.S. real propertyinterest by                                                                        ,a                                                               (“Transferor”)Transferor hereby certifies:

 

1.  Transferoris not a foreign corporation, foreign partnership, foreign trust, or foreignestate (as those terms are defined in the Internal Revenue Code and Income TaxRegulations).

 

2.  Transferor’s Federal Employer IdentificationNumber is                                                .

 

3.  Transferor’s office address is:                                                                                                           .

 

4.  The address or description of the propertywhich is the subject matter of the disposition is                                                                             .

 

Transferor understands that this certification may bedisclosed to the Internal Revenue Service by transferee and that any falsestatement contained herein could be punished by fine, imprisonment, or both.

 

Transferor declares that it has examined thiscertification and to the best of its knowledge and belief, it is true, correctand complete, and further declares that the individual executing thiscertification on behalf of Transferor has full authority to do so.

 
|   |   | , a    |
|--------|--------|--------|
|   |   |   |
|   |   |
|   | By:    |   |   |
|   | Name:  |   |   |
|   | Title: |   |   |
|        |        |        |  |  |  |  |  |

 

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**EXHIBIT F**

 

Form of Lease

 

 

[Not Yet Drafted]

 

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