Exhibit 10.1
AGREEMENT FOR PURCHASE AND SALE OF
REAL PROPERTY AND ESCROW INSTRUCTIONS
[Scotts Valley, CA]
THIS AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY AND ESCROW INSTRUCTIONS
("Agreement") is made as of March 16, 2006 ("Agreement Date"), between AVIZA
TECHNOLOGY, INC., a Delaware corporation ("Seller"), and KB HOME SOUTH BAY INC.,
a California corporation ("Buyer"), with reference to the following facts:
A.
Seller is the owner of approximately 42.689 acres of property
located in the unincorporated area of Scotts Valley, County of Santa Cruz, State
of California (the "Property"), as more particularly described on Exhibit A
attached hereto.
B.
Seller desires to sell the Property to Buyer, and Buyer desires to
purchase the Property from Seller, in accordance with the terms and conditions
contained in this Agreement.
NOW, THEREFORE, for and in consideration of the mutual covenants and agreements
contained in this Agreement, and other good and valuable consideration, the
receipt and adequacy of which is hereby acknowledged by Seller, Buyer and Seller
hereby agree as follows:
1.
PURCHASE AND SALE.
1.1.
AGREEMENT TO BUY AND SELL. SUBJECT TO THE TERMS AND CONDITIONS SET
FORTH HEREIN, SELLER HEREBY AGREES TO SELL AND CONVEY TO BUYER, AND BUYER HEREBY
AGREES TO ACQUIRE AND PURCHASE FROM SELLER, THE PROPERTY. AS USED HEREIN THE
"PROPERTY" SHALL INCLUDE THE PROPERTY AND ALL OF SELLER'S RIGHT, TITLE AND
INTEREST IN AND TO ALL ENTITLEMENTS, EASEMENTS, RIGHTS, MINERAL RIGHTS, OIL AND
GAS RIGHTS, WATER, WATER RIGHTS, AIR RIGHTS, DEVELOPMENT RIGHTS AND PRIVILEGES
APPURTENANT THERETO AND ALL IMPROVEMENTS LOCATED THEREON (EXCEPT FOR ANY
MONITORING WELLS, REMEDIATION SYSTEMS AND RELATED EQUIPMENT).
1.2.
PURCHASE PRICE.
1.2.1.
PURCHASE PRICE. THE PURCHASE PRICE ("PURCHASE PRICE") FOR THE
PROPERTY SHALL BE TWENTY SIX MILLION DOLLARS ($26,000,000). THE AMOUNT SET FORTH
IN THIS PARAGRAPH 1.2.1 IS ONLY AN ESTIMATED PURCHASE PRICE AND SUBJECT TO
ADJUSTMENT AS SET FORTH IN EXHIBIT E EITHER DOWNWARD OR, WITH PARTICIPATION IN
PROFITS AS DESCRIBED IN EXHIBIT E, UPWARD TO A NUMBER IN EXCESS OF TWENTY SIX
MILLION ($26,000,000). IF THE PURCHASE PRICE AS CALCULATED PURSUANT TO EXHIBIT E
LESS THAN TWENTY TWO MILLION DOLLARS ($22,000,000) AND BUYER DOES NOT ELECT, IN
ITS SOLE DISCRETION TO PAY TWENTY TWO MILLION DOLLARS ($22,000,000) AS THE
PURCHASE PRICE, SELLER SHALL HAVE A RIGHT TO TERMINATE THIS AGREEMENT PURSUANT
TO EXHIBIT E.
1
1.2.2.
DEPOSIT. WITHIN TWO (2) DAYS AFTER THE OPENING OF ESCROW (DEFINED
BELOW), BUYER SHALL DEPOSIT WITH ESCROW HOLDER (DEFINED BELOW) BY COMPANY CHECK
THE SUM OF FIVE HUNDRED THOUSAND DOLLARS ($500,000) (THE "FIRST DEPOSIT"), WHICH
ESCROW HOLDER SHALL INVEST IN AN INTEREST BEARING ACCOUNT WITH INTEREST ACCRUING
FOR THE BENEFIT OF BUYER. UPON THE LAST OF THE FOLLOWING TO OCCUR: (I) DELIVERY
BY BUYER TO ESCROW HOLDER AND SELLER OF THE FEASIBILITY APPROVAL NOTICE (AS
DEFINED IN PARAGRAPH 3.1.2 BELOW), AND (II) RECORDATION OF THE MEMORANDUM OF
AGREEMENT ATTACHED HERETO AS EXHIBIT G, THE FIRST DEPOSIT (PLUS THE INTEREST
THEN ACCRUED THEREON), SHALL BE RELEASED IN ITS ENTIRETY TO SELLER BY ESCROW
HOLDER ON A