EXHIBIT 10.3
AGREEMENT OF PURCHASE AND SALE
THIS AGREEMENT OF PURCHASE AND SALE ("Agreement") is dated for reference
purposes November 24, 1997, and is made and entered into by and between
XXXXXXX X. XXXXXXXXX, an individual ("Seller"), and XILINX, INC., a Delaware
corporation ("Buyer").
1. PROPERTY.
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1.1 SITE PLAN. Seller is the owner of the real property situated in the
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City of Longmont, Boulder County, State of Colorado, containing approximately
58.81 acres, which property is commonly known as the Gateway Center and is
labeled "Property" and outlined in RED on the site plan attached hereto as
Exhibit A and made a part hereof (the "Property").
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1.2 LEGAL DESCRIPTION. The legal description of the Property is attached
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to the site plan as Exhibit A-1. Such description shall be used in the Deed.
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1.3 WATER RIGHTS. Seller is also the owner of two (2) shares in the Union
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Reservoir Company (the "Water Rights").
2. TOTAL PURCHASE PRICE; DEPOSIT.
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2.1 TOTAL PURCHASE PRICE. The purchase price for the Property and the
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Water Rights is SIX MILLION FOUR HUNDRED THOUSAND DOLLARS ($6,400,000) (the
"Total Purchase Price"). The Total Purchase Price shall be payable in part by
the Deposit, with the balance payable at the Closing in immediately available
U.S. funds.
2.2 DEPOSIT.
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2.2.1 Within five (5) days after the execution of this Agreement, Buyer
shall deliver to Escrow Agent by check or draft the sum of FIVE HUNDRED
THOUSAND DOLLARS ($500,000) as a deposit towards the Total Purchase Price
(said deposit, together with any interest thereon, is referred to in this
Agreement as the "Deposit"). The Deposit shall be invested by Escrow Agent in
an interest-bearing liquid bank or money market account approved by Seller and
Buyer. The Deposit shall be applied towards the Total Purchase Price and/or
shall be released from Escrow in accordance with this Agreement.
2.2.2 In the event that Buyer terminates this Agreement under Section 4.1,
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the Deposit shall be refunded to Buyer. In the event that Buyer does not
terminate this Agreement on or before December 8, 1997, the Deposit shall be
deemed earned by Seller on account of Seller's obligations hereunder prior to
the Closing and shall be non-refundable to Buyer except for default of Seller
and except as otherwise specifically provided herein.
3. ESCROW; TITLE.
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3.1 ESCROW. Longmont Title Company, 000 00xx Xxxxxx, Xxxxx X, Xxxxxxxx,
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Xxxxxxxx 00000 ("Escrow Agent") shall hold the Deposit and shall be the
closing agent as provided for herein. Buyer and Seller shall each from time
to time execute whatever instructions to the Escrow Agent as are reasonably
requested by the other to cause the Escrow Agent to hold and disburse the
Deposit in accordance with this Agreement. At the Closing, Escrow Agent shall
act as the closing agent for the Property and shall conduct the Closing in
accordance with its normal practices and any specific instructions executed
jointly by Buyer and Seller. Escrow Agent's services as closing agent shall
include the recording of the Deed and any other documents which require
recording at the Closing.
3.2 TITLE COMMITMENT. A current title commitment, together with legible
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copies of all record documents referred to in Schedule B thereto (together the
"Title Commitment") of the Property has already been issued to Buyer by First
American Title Insurance Company (the "Title Company"), through the Escrow
Agent.
3.3 SURVEY. Buyer acknowledges receipt of a copy of the survey previously
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prepared on the Property for Seller. Buyer shall proceed promptly with any
additional work required to convert Seller's existing survey into an ALTA
survey of the Property (the "Survey") meeting Buyer's requirements and shall
cause the Survey to be completed on or before December 8, 1997.
3.4 TITLE DEFECTS. On or before December 4, 1997, Buyer shall give Seller
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notice of all title defects shown in the Commitment which are not accepted by
Buyer as Permitted Exceptions and shall notify Seller at the earliest
practical time of any defects or exceptions shown by the Survey which are not
accepted by Buyer as Permitted Exceptions. Any and all exceptions affecting
all or any portion of the Property disclosed by the Commitment (as exceptions,
requirements, or otherwise) which are not the subject of a notice from Buyer
to Seller given within the applicable period of time, shall be deemed accepted
by Buyer as Permitted Exceptions and shall be listed in the deed as exceptions
to the warranty of title contained in the Deed. In the event Buyer notifies
Seller of any title defects shown by the Commitment or the Survey which are
not accepted, and have not previously been accepted, by Buyer as Permitted
Exceptions, Seller may cure such defects in a manner reasonably acceptable to
Buyer; provided that Seller shall not be obligated hereby to cure any such
defects or to incur any expense in connection with any such cure. For
purposes hereof, a title defect or exception shall be deemed cured if the
Title Company deletes the defect from the Title Commitment. If each of the
defects objected to by Buyer has not been cured on or before December 8, 1997,
Buyer may, by written notice delivered to Seller on or before December 8,
1997, either (a) terminate this Agreement or (b) waive such defects and accept
the same as Permitted Exceptions. In the event Buyer does not notify Seller
of its decision to terminate or waive on or before December 8, 1997, Buyer
shall be deemed to have waived its objection to such defects and to have
accepted such defects as Permitted Exceptions and shall be deemed to have
waived and accepted as Permitted Exceptions any defects and exceptions shown
by the Survey, even if not previously made the subject of a notice to Seller.
3.5 SUBSEQUENT TITLE DEFECTS. If this Contract continues in effect after
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December 8, 1997, and any update or endorsement to the Title Commitment
discloses defects or exceptions (the "New Exceptions") which were not
disclosed to Buyer before noon on December 8, 1997 and which are not Permitted
Exceptions and Buyer objects to any such New Exceptions, Buyer shall give
Seller notice of the New Exceptions to which Buyer objects promptly, and in
any event, within five business days after the receipt of the update or
endorsement to the Title Commitment first disclosing such New Exceptions. Any
and all New Exceptions affecting all or any portion of the Property disclosed
by any such update or endorsement to the Commitment (as exceptions,
requirements, or otherwise) which are not objected to by Buyer in such a
notice from Buyer to Seller given within the applicable period of time shall
be deemed accepted by Buyer as Permitted Exceptions and shall be listed in the
Deed as exceptions to the warranty of title contained in the Deed. In the
event Buyer notifies Seller of any New Exceptions shown by the Commitment or
by the Survey which are not accepted, and have not previously been accepted,
by Buyer as Permitted Exceptions, Seller may cure such New Exceptions in a
manner reasonably acceptable to Buyer; provided that Seller shall not be
obligated hereby to cure any such defects or to incur any expense in
connection with any such cure. For purposes hereof, a New Exception shall
be deemed cured if the Title Company deletes the same from the Title
Commitment. If each of the New Exceptions so objected to by Buyer has not
been cured on or before the Closing, Buyer may, by written notice delivered to
Seller on or before the Closing, either (a) terminate this Agreement or (b)
waive such New Exceptions and accept the same as Permitted Exceptions. If
Buyer does not notify Seller of its decision to terminate or waive at or
before the Closing, Buyer shall be deemed to have waived its objection to such
New Exceptions and to have accepted such New Exceptions as Permitted
Exceptions.
3.6 DEEDS OF TRUST. Notwithstanding any other provision of this
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Agreement, Seller shall be required to cause to be released from the Property
at or before the Closing the two deeds of trust (the "Deeds of Trust")
encumbering the Property for the benefit of Colorado Community First State
Bank recorded on March 17, 1997, as Reception No. 1683715 and recorded on
February 7, 1996, as Reception No. 1583215, and Buyer shall not be required to
give Seller notice of the Deeds of Trust to require Seller to release the
Deeds of Trust and the failure to give any such notice or to terminate this
Agreement shall not render the Deeds of Trust to be Permitted Exceptions.
Seller may use the proceeds of the Closing to pay off and/or release the Deeds
of Trust and the loan(s) secured thereby.
3.7 TITLE. At the Closing, Seller shall convey to Buyer marketable and
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insurable fee simple title to the Property, subject to the Permitted
Exceptions, by general warranty deed (the "Deed"). Promptly after the
Closing, Seller shall cause Escrow Agent to issue the standard ALTA Owner's
Extended Coverage Policy of Title Insurance ("Title Policy") of First American
Title Insurance Company pursuant to the Title Commitment, insuring marketable
fee simple title to the Property in Buyer, subject only to the Permitted
Exceptions, in the full amount of the Total Purchase Price. The "Permitted
Exceptions" shall mean only (i) the standard printed exceptions contained in
the Title Policy, except for the standard printed exceptions for mechanic's
and materialmen's liens not of record and not created by, through, or under
Buyer, and for bankruptcy or insolvency claims, which shall be removed, (ii) a
lien to secure payment of real property taxes not delinquent, (iii) matters
affecting the condition of title created by, through, or under Buyer or with
the written consent of Buyer, and (iv) exceptions which are disclosed by the
Title Commitment and Survey and which are approved or deemed approved by Buyer
in accordance with Section 3.4 or Section 3.5.
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3.8 CLOSING DATE. The closing (the "Closing") of the sale of the Property
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and the Water Rights from Seller to Buyer (the "Closing Date") shall be
January 15, 1998, or such earlier date (which shall not, without Seller's
consent, which Seller may withhold in his discretion, be before January 1,
1998) as Buyer shall specify by notice to Seller given at least three business
days before such earlier Closing Date. Notwithstanding the foregoing
provisions of this Section 3.8, in the event of damage to the Property of the
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type which would give Buyer the right to terminate under Section 6.1, the
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Closing Date shall be extended until the tenth day after the occurrence of
such damage; provided that the Closing Date shall not, in any event, be
extended under this Section 3.8 beyond January 26, 1998.
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3.9 PRORATIONS; ESCROW EXPENSES. Rents and water charges, if any, and
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real property taxes for the year of the Closing shall be prorated as of the
Closing Date. Other charges and costs shall be allocated as follows: If the
Property is subject to any special improvement district, for improvements
completed or partially completed prior to the execution and delivery of this
Agreement, Seller shall pay the same at or before the Closing. Seller shall
pay the costs of releasing and recording the releases of the Deeds of Trust
and the premium for the Title Policy (excluding any premium for ALTA extended
coverage and any costs of any special endorsements). Buyer shall pay any
document preparation fees, the documentary transfer tax, any premium for ALTA
extended coverage and any costs of special endorsements and the cost of
recording the Deed. Buyer and Seller shall each pay one-half of the Escrow
fee.
4. PURCHASE CONDITIONS.
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4.1 INSPECTION PERIOD. Buyer shall have until December 8, 1997 to
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evaluate the Property for its purposes and to determine whether the Property
is suitable for Buyer's use. Buyer may (i) terminate this Agreement for any
reason by notice given to Seller at any time on or before 5:00 p.m. Denver
time on December 8, 1997, or (ii) elect to proceed, in which event Buyer's
right to terminate under this Section 4.1 shall be waived. In order to
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elect to proceed, Buyer shall be required to give notice to Seller and the
Escrow Agent, on or before December 8, 1997, that it has elected to proceed
and that its right to terminate under this Section 4.1 has been waived. If
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Buyer fails to elect either to terminate or to proceed, Buyer shall be deemed
to have elected to terminate this Agreement. Buyer's determination to proceed
and not to terminate shall waive any cause of action Buyer may have against
Seller for breach of this Agreement.
4.2 EFFECT OF TERMINATION. In the event that Buyer terminates this
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Agreement in accordance with any of Sections 3.4, 3.5, 4.1, 5.3, or 6.1, (i)
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Buyer shall deliver to Seller all copies of the Survey, if a Survey has then
been obtained by Buyer, copies of all reports, studies, and tests prepared by
or for Buyer relating to the physical characteristics of the Property, (ii)
the Deposit shall be paid to Seller or Buyer as otherwise provided in this
Agreement, and (iii) both parties shall thereupon be relieved of all further
obligation hereunder, except for any obligations of Buyer arising under any of
Sections 3.1, 5.2.2, 7.1, 7.3, 10.6, 13.1, 13.3, 13.7, or 13.8, all of which
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shall continue in full force and effect and shall be enforceable by Seller by
all remedies available at law or in equity, and except for any obligations of
Seller under Sections 3.1, 7.3, 10.6, 13.1, and 13.3, all of which shall
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continue in full force and effect and be enforceable by Buyer by all remedies
available at law or in equity.
5. REPRESENTATIONS AND WARRANTIES.
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5.1 REPRESENTATIONS AND WARRANTIES Seller hereby represents and warrants
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to and from the benefit of Buyer as follows:
5.1.1 To Seller's Knowledge, there are no, and Seller has received no
notification of any, suits (including, without limitation, condemnation or
eminent domain proceedings or actions), hearings, governmental investigations
or other legal proceedings (collectively "Proceeding") pending or threatened
against Seller, before any court or governmental department or agency in any
way relating to the Property. As used herein, the term "Proceeding" shall not
include any proceedings to obtain zoning, annexation, or other governmental
approvals with respect to the Property which do not involve the possibility of
claims for liability or damages against Seller or the Property. To Seller's
Knowledge, there is no pending or threatened proceeding in eminent domain
relating to or affecting the Property. Seller has not received any offer
("Offer") from any public or quasi-public authority, having powers of eminent
domain over the Property, to purchase or acquire the Property or any portion
thereof or interest therein which might lead to a proceeding in eminent domain
with respect to the Property. Seller has received no notification
("Notification") that Seller is subject to or in default with respect to, any
order, writ, injunction or decree of any court or governmental department or
agency directed specifically to Seller relating to the use of the Property.
Seller shall give Buyer immediate written notice of any Proceeding, Offer or
Notification which may occur prior to the Closing.
5.1.2 Seller is not the subject of any insolvency or bankruptcy
proceedings at law or in equity or otherwise, the result of which might affect
title to the Property or the right of Seller to transfer and convey, or cause
to be transferred and conveyed, the Property to Buyer.
5.1.3 There are no leases, subleases or licenses or occupancy agreements
of any kind affecting the Property, other than leases made by Seller to family
members in connection with the formation of a business improvement district
affecting the Property (the "BID"), all of which shall be terminated at or
before the Closing.
5.1.4 Seller has full right, power and authority to enter into this
Agreement and to transfer and convey title to the Property to Buyer and to
consummate all transactions contemplated hereby.
5.1.5 Seller has previously disclosed to Buyer or shall, on or before
November 26, 1997, disclose to Buyer in writing, any and all defects in the
physical condition of the land underlying the Property which are within
Seller's Knowledge and which would materially and adversely impair the normal
development of the Property in the ordinary course.
As used herein, "Seller's Knowledge" shall mean Seller's actual knowledge as
of the date hereof without any obligation to make further inquiry.
5.2 BUYER REPRESENTATIONS AND WARRANTIES. Buyer hereby represents and
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warrants to and for the benefit of Seller, as follows:
5.2.1 Buyer shall use due diligence in satisfying each of the conditions
in this Agreement which were created for Buyer's benefit. In addition, Buyer
shall use due diligence in attempting to close the transaction at the earliest
possible date.
5.2.2 Buyer shall not allow the creation of any mechanic's liens on the
Property as the result of the activities of Buyer, its employees, agents,
servants, representatives or contractors on the Property. Buyer agrees to
immediately take steps to remove any mechanic's lien filed against the
Property as the result of its activities, and to indemnify, defend and hold
Seller harmless from damages arising to Seller or its Property as a result of
such liens, including attorneys' fees.
5.3 CERTIFICATE AT CLOSING. At the Closing, Seller shall deliver to Buyer
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a written certificate (the "Certificate") certifying to Buyer, as of the date
of the Closing, with such modifications and exclusions as shall be necessary
to make the Certificate accurate when given, the accuracy of the matters
represented and warranted to in Sections 5.1 and 12.3, except that, as used in
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the Certificate, "Seller's Knowledge" shall mean as of the Closing Date. If
the Certificate delivered by Seller at the Closing modifies or excludes any of
such matters, Buyer may either (i) terminate this Agreement or (ii) accept the
Certificate in the form delivered by Seller. If Buyer proceeds to close,
Buyer shall be deemed to have elected the option described in clause (ii)
above. By accepting the Certificate at the Closing, Buyer shall be deemed to
have waived, released, and forever relinquished any and all claims or causes
of action arising under the warranties and representations contained in
Sections 5.1 and 12.3 but not those contained in the Certificate. Any and all
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claims or causes of action under the Certificate shall be asserted or
commenced by Buyer within one year after the date of the Closing and any and
all claims or causes of action under the Certificate which are not asserted or
commenced within such period of time shall be deemed waived, released, and
forever relinquished by Buyer.
5.4 PROPERTY SOLD AS IS. Except for the warranties and representations
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set forth in Sections 5.1 and 12.3, as restated in the Certificate, Buyer is
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relying upon its own inspection of the Property to evaluate the condition of
the Property and the suitability of the Property for Buyer's intended use and
development. Except as specifically set forth in Sections 5.1 and 12.3, (i)
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Buyer understands and agrees that the Property will be sold and conveyed to
Buyer hereunder as is, without any representation or warranty by Seller of any
kind or nature whatsoever, and Buyer hereby acknowledges that Seller hereby
disclaims any and all express or implied warranties regarding the Property or
the condition thereof, including, without limitation, the fitness of the
Property for any particular purpose and (ii) Buyer shall have no remedy or
cause of action whatsoever, and Buyer hereby waives any remedies and causes of
action otherwise available, against Seller arising from or in any way related
to the condition of the Property. Seller shall have no obligation to improve
or otherwise alter any portion of the Property from its current condition in
any manner whatsoever.
6. RISK OF LOSS.
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6.1 RISK OF LOSS. Seller shall give Buyer prompt notice of any material
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or substantial damage to the Property which occurs after the date hereof. If,
prior to the Closing, the Property is totally damaged or suffers such material
and substantial damage that it cannot thereafter reasonably be used for the
purposes for which Buyer intends to use it, Buyer shall have the option, which
shall be exercised within ten (10) days after receipt of notice from Seller of
such damage or destruction, either (1) to accept the Property in its damaged
condition, in which event any insurance proceeds payable to Seller shall be
assigned to Buyer, or (2) to terminate this Agreement. Failure of Buyer to
terminate within such period shall be deemed to be the election of the
alternative set forth in clause (1), not to terminate and to continue this
Agreement in full force and effect.
7. TESTS; DOCUMENTS; CONSULTANTS.
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7.1 TESTS. During the Escrow period, Buyer and its employees, agents,
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servants, representatives and contractors may enter upon the Property at
reasonable times and in a reasonable manner for purposes of making or
performing, at Buyer's expense, such borings, surveys, engineering studies,
soil tests and studies, environmental sampling and/or tests (collectively
"Tests"), as Buyer deems necessary or advisable; provided, however, that (i)
all such Tests conducted on the Property shall be undertaken in a safe,
workmanlike and reasonable manner, and (ii) Buyer shall substantially restore
the property which may be disturbed to its condition prior to such Tests.
Prior to entering upon the Property, Buyer shall notify Seller of the date,
time, duration and purpose of such entry. Buyer agrees to indemnify, defend
and hold Seller and Property harmless from any and all damages, claims,
liabilities or costs arising from the activities of Buyer, its employees,
agents, servants, representatives or contractors on the Property, including
attorneys' fees. Buyer shall pay for all work performed on the Property by
Buyer, or at Buyer's instance or request, as and when such payments are due
and shall remove at Buyer's expenses within fifteen days after notice thereof
is given to Buyer any mechanic's and other liens filed against the Property on
account of any activities on the Property by Buyer or anyone acting at Buyer's
instance or request.
7.2 DELIVERY OF DOCUMENTS. To the extent such items are in the possession
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and/or control of Seller, Seller shall deliver or make available to Buyer for
inspection within two (2) days after the execution and delivery of this
Agreement copies of all documents relating to the Property such as existing
surveys, soils reports, permits, annexation documents, applications to
governmental agencies, site plans and tentative parcel maps. Seller makes no
representation or warranty as to the accuracy or completeness of any of the
above items. Seller agrees to instruct all of its contractors and agents to
fully cooperate with Buyer and its agents in connection with Buyer's
inspections.
7.3 CONSULTANTS. Seller currently has engaged the consultants (the
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"Consultants") listed on Exhibit B attached hereto and by this reference made
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part hereof who are working with respect to the Property. Seller shall be
responsible for payment of all fees and disbursements of the Consultants
incurred in connection with such work on or before December 8, 1997. Buyer
shall be responsible for the payment of all fees and disbursements incurred by
the Consultants for such work from and after December 9, 1997. At Buyer's
request, Seller shall assign the contracts Seller has with the Consultants to
Buyer on December 9, 1997; provided that, if, for any reason, Buyer does not
close the purchaser of the Property hereunder, Buyer shall, at Seller's
request, assign to Seller, upon the termination of Buyer's right to purchase
the Property, such contracts and all work done thereunder.
8. CLOSING. The closing of the sale of the Property and Water Rights from
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Seller to Buyer (the "Closing") shall take place on the Closing Date at 10:00
a.m., Denver time, in the offices of the Title Company. At the Closing:
8.1 The parties shall execute instructions to the Escrow Agent to pay the
Deposit to Seller, the Deposit shall be paid to Seller, and the Deposit shall
be credited against the Purchase Price and paid to Seller.
8.2 Buyer shall pay the balance of the purchase price, as adjusted for
prorations, in immediately available U.S. funds acceptable to Seller.
8.3 General ad valorem real property taxes on the Property for the year of
the Closing, based on the actual taxes for the preceding year, shall be
prorated to the date of the Closing. Such proration shall be final.
8.4 Seller shall (i) endorse to Buyer the certificates for the Water
Rights and, as to any of the certificates which are in the name of Xxxxxxxxx
Xxxxxxxxx, also known as Xxxxxxxxx X. Xxxxxxxxx, cause her to endorse to Buyer
the certificates for the Water Rights, (ii) deliver the certificates for the
Water Rights to Buyer, (iii) execute and/or deliver to Buyer any other
documents required to transfer the Water Rights to Buyer, and (iv) take any
other actions required to effect the transfer of the Water Rights to Buyer.
8.5 Seller shall convey the Property to Buyer by the Deed. The Deed shall
specifically provide that it is subject to all matters of record. Seller
shall cause the Deeds of Trust to be released and shall cause the leases on
the Property referenced in Section 5.1.3 to be terminated and surrendered.
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8.6 Seller shall deliver the Certificate to Buyer.
8.7 Seller shall execute and deliver to the Escrow Agent an affidavit and
agreement, protecting the Escrow Agent against mechanic's liens arising for
work done at the instance of Seller.
8.8 Buyer shall execute and deliver to the Escrow Agent an affidavit and
agreement, protecting the Escrow Agent against mechanic's liens arising for
work done at the instance of Buyer.
8.9 Buyer and Seller shall each execute and deliver such certificates as
shall be necessary with respect to withholding taxes and similar items.
8.10 Seller shall cause the Escrow Agent to deliver to Buyer the Escrow
Agent's unconditional written undertaking (which shall be in form approved by
both Buyer and Seller) to issue to Buyer its standard form owner's policy (the
"Owner's Policy") insuring title to the Property in Buyer in the amount of the
Purchase Price, subject only to the Permitted Exceptions.
8.11 Seller shall assign to Buyer all right, title, and interest in all
studies, reports, and other documents developed by third parties for Seller
relating to the Property.
8.12 The parties shall each do or cause to be done such other matters and
things as shall be necessary to close the transaction contemplated herein.
9. TAX-DEFERRED EXCHANGE. Seller may elect to close the sale of the
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Property through one or more exchanges qualifying for tax-deferred treatment
under Section 1031 of the Internal Revenue Code through a qualified
intermediary as provided for in Treasury Regulation Section 1.1031(k)-1(g).
Buyer shall cooperate with Seller in all ways reasonably requested by Seller
to assist Seller in effecting any such exchange so long as Buyer is not
thereby subjected to any liability or risk of liability and is not required to
bear any additional cost or expense. Seller shall indemnify Buyer against all
costs and liabilities incurred in so cooperating with Seller to satisfy the
requirements of Section 1031. Buyer shall not have any responsibility to
Buyer for the tax effect of any such exchange effected by Buyer.
10. ENFORCEMENT.
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10.1 SELLER'S REMEDIES. If Buyer fails to close the purchase of the
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Property and Water Rights on the Closing Date (except for Seller's failure to
convey or any other material and substantial default by Seller which has not
been cured as of the Closing), and such failure continues uncured for two
business days after Seller gives Buyer notice thereof, Seller, as its sole and
exclusive remedy for Buyer's failure to close, may terminate this Agreement by
written notice to Buyer and Escrow Agent. Upon such termination, the Escrow
Agent shall pay the Deposit to Seller and Seller shall be entitled to retain
the Deposit as liquidated damages for Buyer's failure to close. In no event
shall Buyer be liable for specific performance or for consequential damages
for Buyer's failure to close the purchase of the Property and Water Rights.
Nothing contained herein shall be construed as limiting Seller's remedies for
any failure of Buyer to perform its obligations under any of Sections 3.1,
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5.2.2, 7.1, 7.3, 10.6, 13.1, 13.3, 13.7, or 13.8.
10.2 BUYER'S REMEDIES. If Seller fails to close the conveyance of the
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Property and Water Rights to Buyer at the Closing (except for Buyer's failure
to close or any other material and substantial default by Buyer) and such
failure continues uncured for two business days after Buyer gives written
notice of such failure to Seller, in addition to whatever other remedies are
available to Buyer at law or in equity, including the right to have specific
performance of this Agreement, Buyer may terminate this Agreement by written
notice to Seller. Upon such termination, the Deposit shall be paid to and
retained by Buyer and except for Buyer's obligations under any of Sections 3.1
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5.2.2, 7.1, 7.3, 10.6, 13.1, 13.3, 13.7, or 13.8, Buyer shall be relieved
of all further obligations under this Agreement.
10.3 REMEDIES CUMULATIVE. All remedies permitted or available to Buyer
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hereunder, or at law, or in equity, or by statute, shall be cumulative and not
alternative.
10.4 NO WAIVER. No waiver by either party of any default under this
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Agreement by the other party shall be effective or binding upon such party
unless given in the form of a written instrument signed by such party, and no
such waiver shall be implied from any omission by such party to take action
with respect to such default. No express written waiver of any default shall
affect any other default or cover any period of time other than the default
and/or period of time specified in such express waiver. One or more written
waivers of any default under any provision of this Agreement shall not be
deemed to be a waiver of any subsequent default in the performance of the same
provision or any other term or provision contained in this Agreement.
10.5 GOVERNING LAW. This Agreement shall be governed and enforced by, and
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construed in accordance with the laws of the state in which the Property is
located.
10.6 ATTORNEYS' FEES. In the event either party hereto finds it necessary
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to employ legal counsel or to bring an action at law or other proceedings
against the other party to enforce any of the terms, covenants or conditions
hereof, the prevailing party in such action or proceeding shall be paid all
reasonable attorneys' fees, as determined by the court and not the jury, and
in the event any judgment is secured by such prevailing party, all such
attorneys' fees shall be included in any such judgment in such action or
proceedings.
11. NOTICES.
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11.1 NOTICES. All notices and other communications provided for herein
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shall be in writing. Notices may be given by hand delivery, by successful
telecopy transmission, by commercial courier service, or by United States
certified or registered mail, to the parties at their respective addresses as
follows:
If to Seller: Xxxxxxx X. Xxxxxxxxx
0000 Xxxxxx Xxxx
Xxxxxxxx, XX 00000
(000) 000-0000
Fax: (000) 000-0000
Xxxxx X. Xxxxxxx, Esq.
Xxxxx, Xxxxxx & Xxxxxx LLP
000 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
(000) 000-0000
Fax: (000) 000-0000
If to Buyer: Xilinx, Inc.
0000 Xxxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxx
(000) 000-0000
Fax: (000) 000-0000
Xilinx, Inc.
0000 Xxxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxx
(000) 000-0000
Fax: (000) 000-0000
The foregoing addresses may be changed by written notice given pursuant to
provisions of this Section. All notices shall be deemed effective when
received, or if receipt is frustrated by the recipient, when tendered.
As a courtesy, but not as a requirement to effect valid delivery of a notice,
notices shall also be given at the following addresses:
If to Seller:
The Prudential LTM, Realtors
000 X. Xxxx Xxxxxx
Xxxxxxxx, XX 00000
Attn: Xxx Xxxxxxxx
Phone:
Fax:
Xxxxx Xxxxx & Associates
00000 Xxxxxxx Xxxx
Xxxxxxxx, XX 00000
Attn: Xxxxx Xxxxx
Phone:
Fax:
If to Buyer:
Colorado Group
0000 00xx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attn: Xxxx Xxxxxxxx
(000) 000-0000
Fax: (000) 000-0000
12. ENVIRONMENTAL PROVISIONS.
------------------------
12.1 HAZARDOUS MATERIALS. For the purposes of this Agreement, the term
-------------------
"Hazardous Materials" shall mean any hazardous or toxic substance, material or
waste, including without limitation petroleum oil and its fractions, as
defined by any federal, state or local law, regulation or ordinance.
12.2 ENVIRONMENTAL HISTORY AND REPORTS. To the extent such items are in
---------------------------------
the possession and/or control of Seller, and to the extent that Seller may not
have already done so, Seller shall furnish to Buyer within two (2) days after
execution of this Agreement, true, accurate, and complete copies of all
sampling and test results obtained from all environmental and/or health
samples and tests taken at or around the Property and property adjacent
thereto by, or on behalf of or otherwise delivered to Seller.
12.3 REPRESENTATIONS AND WARRANTIES. Seller has delivered to Buyer a copy
------------------------------
of the Phase I environmental Assessment prepared by Empire Laboratories, Inc.,
dated April 26, 1993, and a letter dated October 15, 1997 from Terracon
Consultants Western, Inc. Except as noted in such report and letter, Seller
hereby represents, warrants and covenants to Buyer that Seller has no actual
knowledge, without an obligation of inquiry, of (i) any underground storage
tanks, PCB containing or contaminated equipment, or asbestos containing
construction materials on the Property, (ii) any unlawful handling,
transportation, storage, treatment or usage of Hazardous Materials that has
occurred on the Property, (iii) any leaks, spills, release, discharge,
emission or disposal of Hazardous Materials into or upon the Property or
property adjacent thereto, or of any migration of Hazardous Materials into or
upon the Property from adjacent property (collectively "Hazardous Discharge"),
or (iv) any complaint, order, directive, citation or other notice
(collectively "Environmental Notice") by any governmental authority or any
other person or entity with regard to the matters set forth in above in this
Section 12.3.
------------
12.4 NOTICE. Seller shall give Buyer immediate written notice of any
------
Hazardous Discharge or Environmental Notice which may occur, of which Seller
has actual knowledge, whether before or after the execution and delivery of
this Agreement.
13. GENERAL PROVISIONS.
------------------
13.1 BROKER'S COMMISSION. Seller represents and warrants to Buyer and
-------------------
Buyer represents and warrants to Seller that neither has used any broker,
agent, finder or other person in connection with the transaction contemplated
hereby to whom a brokerage or other commission or fee may be payable, other
than The Prudential LTM, Realtors and Xxxxx Xxxxx & Associates, as Seller's
brokers, and the Colorado Group, as Buyer's broker. At the Closing, Seller
shall pay to Seller's brokers the commission payable under Seller's separate
agreement with Seller's brokers. Seller's brokers shall pay a portion of that
commission to Buyer's broker in accordance with a separate agreement between
Buyer's and Seller's brokers or, if none, in accordance with normal commission
sharing practices. Both Buyer's broker and Seller's brokers agree to accept
such payments in full satisfaction for all services rendered in connection
with the transaction contemplated hereby and in connection with the Property
and Water Rights. Neither Buyer's broker nor Seller's broker shall be
entitled to any fee or other compensation in connection with this transaction
unless the Closing provided for herein is consummated. Each party indemnifies
and agrees to defend and hold the other harmless from any claims resulting
from the breach by the indemnifying party of the warranties and
representations in this Section. Seller shall indemnify, defend, and hold
Buyer harmless from any claims arising as a result of any failure by Seller to
make the payment to Seller's brokers provided for herein. Buyer's broker, and
Seller's brokers, by executing below, agree to be bound by the terms of this
Section.
13.2 AFFIDAVIT. Prior to the close of Escrow, Seller shall deliver to
---------
Escrow Agent for delivery to Buyer at the close of Escrow an affidavit in a
form satisfactory to Buyer executed by Seller evidencing Seller's exemption
from withholding under the Internal Revenue Code Section 1445.
13.3 CONFIDENTIALITY. Unless and until the Closing is consummated under
---------------
this Agreement, Buyer shall, as an ethical commitment to Seller but not as a
legally binding obligation, use reasonable good faith efforts to keep all the
terms and conditions of this Agreement and, if this Agreement is terminated by
Buyer, Buyer's reasons for terminating confidential and to avoid disclosing
any of the same except as is otherwise reasonably required in the reasonable
and ordinary conduct of Buyer's business. Seller shall, as an ethical
commitment to Buyer but not as a legally binding obligation, use reasonable
good faith efforts to keep all the terms and conditions of this Agreement
confidential until the Closing except as is reasonably and necessarily
required in connection with Seller's normal activities (including financing
activities) with respect to the Property and as shall reasonably be required
to perform his obligations hereunder and prepare for and consummate the
Closing. Seller and Buyer both recognize that their ethical obligations under
this Section 13.3 shall not be legally binding. Neither Buyer nor Seller
------------
shall have any liability for failing to observe the requirements of this
Section 13.3.
------------
13.4 SURVIVAL. Except as otherwise provided in Section 5.3, all
-------- -----------
covenants, agreements, representations or warranties contained in this
Agreement shall survive the close of Escrow and the conveyance of the Property
and shall not be deemed to be merged into or waived by the instruments of
closing or transfer, but shall expressly survive and be binding upon the
parties obligated by the covenant, agreement, representation or warranty.
Notwithstanding any other provision of this Agreement, all hold harmless,
indemnification, defense and attorney fee provisions of this Agreement shall
survive any termination or expiration of this Agreement.
13.5 INTERPRETATION. Whenever used herein, the term "including" shall be
--------------
deemed to be followed by the words "without limitation." Words used in the
singular number shall include the plural, and vice-versa, and any gender shall
be deemed to include each other gender. The captions and headings of the
Sections of this Agreement are for convenience of reference only, and shall
not be deemed to define or limit the provisions hereof.
13.6 EXECUTION AND MODIFICATION. It is understood and agreed that until
--------------------------
this Agreement is fully executed and delivered by the authorized partners,
corporate officers or other individuals, as applicable, of the parties hereto,
there is not and shall not be an agreement of any kind between the parties
hereto upon which any commitment, undertaking or obligation can be founded.
It is further agreed that once this Agreement is fully executed and delivered
that it contains the entire agreement between the parties hereto and that, in
executing it, the parties do not rely upon any statement, promise, or
representation not herein expressed and this Agreement once executed and
delivered shall not be modified, changed or altered in any respect except by a
writing executed and delivered in the same manner as required for this
Agreement.
13.7 NO ASSIGNMENT. This Agreement shall be binding and effective on and
-------------
inure to the benefit of the successors and assigns of the parties hereto.
Buyer shall not, without the prior written consent of Seller, which consent
shall not be unreasonably withheld, assign or otherwise transfer or encumber
this Agreement or any interest of Buyer herein; except that Buyer may assign
this Agreement without obtaining the prior written consent of Seller to (i)
any entity that is owned or controlled by Buyer or (ii) any limited
partnership in which Buyer, or any entity owned or controlled by Buyer, is the
general partner. Buyer shall promptly notify Seller of any proposed
assignment of this Agreement. No assignment of this Agreement shall be
effective until Buyer has delivered to Seller the written agreement of the
proposed assignee, in form reasonably acceptable to Seller, assuming all
obligations of Buyer arising hereunder both prior to and after the assignment.
Notwithstanding such assumption, Buyer shall remain liable to Seller for all,
and shall not be released from any, obligations of Buyer arising hereunder
either prior to or after the assignment. Any assignment, transfer, or
encumbrance of this Agreement or any interest of Buyer herein by Buyer in
violation hereof shall be a material default by Buyer.
13.8 MEMORANDUM; NO OTHER RECORDING. If this Agreement is not terminated
------------------------------
on or before December 8, 1997, Seller and Buyer shall execute a Memorandum of
this Agreement which Buyer may record to give notice of this Agreement. Buyer
and Seller shall, on or before December 5, 1997, execute the Memorandum and
deliver it to the Escrow Agent with written instructions executed by both
Buyer and Seller that, if Buyer elects to proceed and not to terminate under
Section 4.1 so that the Deposit becomes nonrefundable as contemplated by
-----------
Section 2.2.2 and Buyer gives Escrow Agent notice thereof on or before
-------------
December 8, 1997, Escrow Agent is instructed to record the Memorandum
immediately in the real property records of Boulder County, Colorado, and if
Escrow Agent has not received such notice or receives notice from Buyer that
Buyer has elected to terminate under Section 4.1 so that the Deposit is to be
-----------
returned to Buyer under Section 4.2, the Escrow Agent is instructed to xxxx
-----------
void on the Memorandum and return it to Seller without recording it. Buyer
shall not otherwise record this Agreement or any evidence thereof. Recording
this Agreement or any evidence hereof other than the Memorandum shall
constitute a material default by Buyer entitling Seller to all remedies
available at law or in equity, including consequential damages. In the event
this Contract is terminated, Buyer shall promptly execute and deliver to
Seller a quit claim deed conveying the Property to Seller and such other
instruments as Seller shall from time to time reasonably request to confirm
the termination of this Agreement and any interest of Buyer in the Property
hereunder. Delivery of such quit claim deed shall not waive any claim that
Buyer may have against Seller for any wrongful failure of Seller to close the
sale of the Property hereunder which is made in a lawsuit filed and served
within ninety (90) days after the occurrence of such wrongful failure by
Seller. Any claim which Buyer might otherwise have hereunder, or which is
otherwise available at law or in equity, which is not commenced by Buyer
within such ninety-day period shall be deemed to have been waived by Buyer.
13.9 DAYS. If the date for any performance hereunder falls on a day which
----
is a Saturday, Sunday, or bank holiday in Denver, Colorado, the date for
performance shall be extended to the next day which is not a Saturday, Sunday,
or holiday in Denver, Colorado.
13.10 TIME OF THE ESSENCE. Time is of the essence of this Agreement and
-------------------
each and every term, condition and provision hereof.
13.11 NO JOINT VENTURE. It is not intended by this Agreement to, and
----------------
nothing contained in this Agreement shall, create any partnership, joint
venture or other joint or equity type agreement between Buyer and Seller. No
term or provision of this Agreement is intended to be, or shall be, for the
benefit of any person, firm, organization, or corporation not a party hereto,
and no such other person, firm, organization or corporation shall have any
right or cause of action hereunder.
13.12 FURTHER ACTS. Each party shall, at the request of the other,
------------
execute, acknowledge (if appropriate) and deliver whatever additional
documents, and do such other acts, as may be reasonably required in order to
accomplish the intent and purposes of this Agreement.
13.13 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon, and
----------------------
inure to the benefit of, the parties hereto and their respective successors,
heirs, administrators and assigns.
13.14 EXECUTION. This Agreement may be executed in counterparts and, when
---------
counterparts of this Agreement have been executed and delivered by all of the
parties hereto, this Agreement shall be fully binding and effective, just as
if all of the parties hereto had executed and delivered a single counterpart
hereof. Without limiting the manner in which execution of this Agreement may
otherwise be effected hereunder, execution by any party may be effected by
facsimile transmission of a signature page hereof executed by such party. If
any party effects execution in such manner, such party shall also promptly
deliver to the other parties the counterpart physically signed by such party,
but the failure of any such party to do so shall not invalidate the execution
hereof effected by facsimile transmission.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the dates set forth below.
XILINX, INC., a Delaware corporation
/s/ Xxxxxxx X. Xxxxxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------ --------------------------------
XXXXXXX X. XXXXXXXXX Its: President
--------------------------------
BROKERS' ACKNOWLEDGMENT
-----------------------
The following brokers hereby acknowledge their agreement to the foregoing
Agreement, including the provisions of Section 13.1.
------------
THE PRUDENTIAL LTM, REALTORS XXXXX XXXXX & ASSOCIATES
By: /s/ Xxx Xxxxxxxx By: /s/ Xxxxx Xxxxx
------------------------- --------------------------------
Xxx Xxxxxxxx Xxxxx Xxxxx
COLORADO GROUP
By: /s/ Xxxx Xxxxxxxx
------------------
Xxxx Xxxxxxxx
ESCROW AGENT'S ACKNOWLEDGMENT
-----------------------------
Escrow Agent, as named in the foregoing Agreement, hereby agrees to hold
and disburse the Deposit in accordance with the provisions of the foregoing
Agreement.
LONGMONT TITLE COMPANY
By: /s/ Xxxxx Xxxxxxxx
-------------------------------
