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Exhibit 10.22
FIRST AMENDMENT TO
AGREEMENT OF PURCHASE AND SALE AND WORK LETTER
THIS FIRST AMENDMENT TO AGREEMENT OF PURCHASE AND SALE AND WORK
LETTER ("Amendment") is entered into as of this ___ day of December, 1998 (the
"Effective Date") by and between 000 XXXX XXXXX ASSOCIATES, L.P., a California
limited partnership ("Seller") and NETWORK APPLIANCE, INC., a California
corporation ("Buyer").
THE PARTIES ENTER INTO THIS AMENDMENT upon the following facts,
understandings and intentions:
A. Seller, as seller, and Buyer, as buyer, entered into that
certain Agreement of Purchase and Sale, dated June 11, 1998 (the "Agreement"),
whereby Seller agreed to sell, and Buyer agreed to purchase, subject to the
terms and conditions therein, certain real property, comprised of approximately
5.86 acres, located at 000 Xxxx Xxxxx in Sunnyvale, California and more
particularly described in the Agreement. Capitalized terms used herein shall
have the same meanings given them in the Agreement unless otherwise defined
herein.
B. Seller and Buyer also entered into a Work Letter dated June
11, 1998 (the "Work Letter") pursuant to which Seller has agreed to furnish
Buyer, at no expense to Buyer other than the Purchase Price (as defined in the
Agreement), an industrial shell building (the "Improvements") pursuant to
certain "Seller Plans" which have been agreed upon by Seller and Buyer. Section
12 of the Work Letter also gives Buyer certain rights to enter the Property
prior to the Closing Date to commence the installation of certain tenant
improvement work (the "Buyer Improvements") pursuant to the terms of that
Section 12.
C. Seller and Buyer also entered into an Letter Agreement dated
June 15, 1998 (the "First Accommodation Agreement").
D. Seller and Buyer also entered into an Accommodation and Letter
Agreement dated July ___, 1998 (the "Second Accommodation Agreement").
E. Seller and Buyer have determined that the scope of the
construction costs to be covered by the First Accommodation Agreement and Second
Accommodation Agreement is too broad in that it could be construed to include
hard costs, as well as soft costs of constructing the Buyer Improvements and, as
such have not conducted any of the activities contemplated thereby. Seller and
Buyer desire to terminate the First Accommodation Agreement and Second
Accommodation Agreement as provided for below.
F. Seller and Buyer now desire to amend the terms of the
Agreement to provide that: (i) Buyer will increase the amount of the Deposit by
Five Hundred Thousand Dollars ($500,000) (the "Additional Deposit") (to an
aggregate of Five Million Five Hundred Thousand Dollars ($5,500,000)), (ii) the
First Accommodation Agreement and Second Accommodation Agreement shall
terminate, and (iii) to amend the Agreement in certain other respects.
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NOW, THEREFORE, IN CONSIDERATION of the mutual covenants and
promises of the parties, the parties hereto agree as follows:
1. ADDITIONAL DEPOSIT. Within five (5) Business Days after the
Effective Date, Buyer shall deposit with Escrow Agent the Additional Deposit in
the sum of Five Hundred Thousand Dollars ($500,000) in cash as a deposit on
account of the Purchase Price. The Additional Deposit shall be nonrefundable,
except as provided in Section 3(b) of the Agreement, and, together with the
$5,000,000 deposit previously made by Buyer pursuant to Section 2(a) of the
Agreement, constitute the amount to which Seller shall be entitled to receive as
liquidated damages in the circumstances described in Section 3(a) of the
Agreement, and the Additional Deposit shall be considered part of the Deposit
for all of the purposes of the Agreement. From and after the date hereof, all
references in the Agreement to the Deposit shall mean and refer to the total of
the $5,000,000 deposit previously made by Buyer pursuant to Section 2(a) of the
Agreement and the Additional Deposit.
2. BUYER IMPROVEMENT WORK. Notwithstanding anything to the
contrary in the Agreement, Seller hereby agrees, at the request of Buyer, to
contract for the services of various professionals and other service providers
in connection with the Buyer Improvements, and to pay costs related thereto
(provided that such costs do not, in the aggregate, exceed Five Hundred Thousand
Dollars ($500,000)), and the Purchase Price shall be increased by the amount, if
any, of any such costs paid by Seller for the Buyer Improvements. All costs
incurred by Seller for the services of professionals and other service providers
at the request of Buyer shall be deemed to be Change Orders for all purposes of
the Work Letter.
3. CLOSING DATE. The Closing Date shall mean a date which is the
earlier of: (i) twenty (20) Business Days following the date the Improvements
are Substantially Completed in accordance with the Work Letter, or (ii) a date
selected by Buyer, but not before January 4, 1999 or later than March 17, 1999,
with written notice thereof to Seller at least fifteen (15) Business days in
advance. Seller shall provide Buyer with at least fifteen (15) Business days
written notice of the date Seller expects to Substantially Complete the
Improvements and written notice of the date such Improvements are Substantially
Complete.
4. TITLE INSURANCE. The following is added at the end of Section
5(a) of the Agreement:
"In the event that the Close of Escrow occurs prior to completion
of the Improvements, Buyer and Seller shall each cooperate in
satisfying the reasonable requirements of the Title Company so
that the ALTA Title Policy insures against the possibility of
mechanic's lien claims arising from work performed on the
Property prior to the Close of Escrow, except for lien claims
arising out of Buyer's failure to perform any duties, obligations
or liabilities assumed by it pursuant to the "Devcon Assignment,"
the "Xxxxxxxxx Assignment" (defined below) or the "Xxxxxx
Assignment" (defined below). Buyer acknowledges and agrees that
the ALTA Title Policy will not insure against the possibility of
mechanic's lien claims arising from work performed on the
Property after the Close of Escrow.
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5. CONDITIONS PRECEDENT. Section 5(d) of the Agreement is
modified to read "Seller shall have used commercially reasonable efforts to
construct the Improvements."
6. COMPLETION OF IMPROVEMENTS. Section 6(a) of the Agreement is
modified to read "Seller shall be obligated to construct the Improvements in
accordance with the Work Letter." Milestones (2) set forth in Section 6(b) of
the Agreement (that the Improvements shall have been substantially completed,
except for landscaping, on or before June 17, 1999). Additionally, Section 6(e)
is deleted in its entirety.
7. ADJUSTMENT TO PURCHASE PRICE. Section 6(b)(2) of the Agreement
is hereby deleted in its entirety and replaced with the following:
"(2) In the event that the Close of Escrow occurs prior to
completion of the Improvements, Seller shall use reasonable, good
faith efforts to assign to Buyer all of Seller's rights, and in
the event of such as assignment Buyer shall assume all of
Seller's post-closing duties and obligations, with respect to the
construction of the Improvements under Seller's contracts with
Devcon Construction, Inc. ("Devcon"), Xxxxxxx Xxxxxxxxx and
Partners ("Xxxxxxxxx") and Xxxx Xxxxxx ("Xxxxxx"), which
assignment and assumption shall made pursuant to the agreements
attached hereto as EXHIBIT A (the "Devcon Assignment") and
EXHIBIT B (the "Xxxxxxxxx Assignment") and EXHIBIT C (the "Xxxxxx
Assignment"), respectively. In such event the Purchase Price
shall be reduced by the Savings. As used herein, the "Savings"
shall mean the total of (i) real estate taxes for the Property
payable between the Closing Date and March 17, 1999 (calculated
on the basis of the then most current tax xxxx for the Property);
plus (ii) the amount of interest that Seller would have paid to
Comerica Bank between the Closing Date and March 17, 1999 based
upon the loan balance as of the Closing Date and Seller's best
available interest rate pursuant to its loan from Comerica Bank
(the "Interest Savings"); plus (iii) the amount which Devcon
certifies to Buyer, in the Devcon Certificate (as defined in
Section 8(b)(vii) below) to be the amount set forth on Schedule 3
of the Devcon Certificate (which includes retainage) plus the
amount which Buyer will be required to pay to Devcon pursuant to
the construction contract between Seller and Devcon in order to
complete construction of the Improvements and the amount which
Xxxxxxxxx certifies to Buyer, in the Xxxxxxxxx Certificate (as
defined in Section 8(b)(vii) below) to be the amount which Buyer
will be required to pay to Xxxxxxxxx pursuant to the architect's
agreement between Seller and Xxxxxxxxx through completion of
construction of the Improvements. Notwithstanding anything to the
contrary herein, if Seller, notwithstanding Seller's reasonable
good faith efforts, is unable to obtain either the Devcon
Assignment, Xxxxxxxxx Assignment, Xxxxxx Assignment, Devcon
Certificate or Xxxxxxxxx Certificate on or before the Close of
Escrow, then either Seller or Buyer, by making written request of
Seller to do so, may immediately terminate the related contract.
Buyer agrees to indemnify, defend, protect and hold Seller
harmless from any claims, liabilities, costs or expenses
(including reasonable attorneys' fees) relating from a claim of
inappropriate or illegal termination of such contract arising
directly from Seller's termination of any such contract, but only
to the extent that the contract in
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question was terminated at Buyer's request. No later than five
(5) days before the Closing Date, Seller shall deliver Buyer's
written calculation of the Interest Savings. If the Close of
Escrow occurs prior to completion of the Improvements, Seller
shall have no further obligation with respect to the construction
of the Improvements following Close of Escrow."
8. POSSIBLE ADDITIONAL DELIVERIES. A new Section 8(b)(vii) is
added to the Agreement as follows:
"(vii) Assignment and Assumption of Construction
Obligations. If the Close of Escrow occurs prior to completion of
the Improvements, Seller shall use reasonable, good faith efforts
to obtain (A) the Devcon Assignment fully executed by Seller and
Devcon, (B) the Xxxxxxxxx Assignment fully executed by Seller and
Xxxxxxxxx, (C) a certificate executed by Devcon in the form
attached hereto as EXHIBIT C and incorporated herein (the "Devcon
Certificate"), (D) a certificate executed by Xxxxxxxxx in the
form attached hereto as EXHIBIT D and incorporated herein (the
"Xxxxxxxxx Certificate") (E) the Xxxxxx Assignment fully executed
by Seller and Xxxxxx in the form attached hereto as EXHIBIT E,
and (F) a certificate executed by Xxxxxx in the form attached
hereto as EXHIBIT F."
Additionally, a new Section 8(c)(v) is added to the Agreement as follows:
"(v) Assignment and Assumption of Construction Obligations. If
the Close of Escrow occurs prior to completion of the
Improvements, the Devcon Assignment, the Xxxxxxxxx Assignment and
Xxxxxx Assignment, each fully executed by Buyer, to the extent
those assignments are obtained by Seller."
9. SUCCESSORS AND ASSIGNS. Notwithstanding anything to the
contrary in Section 13 of the Agreement, Seller and Buyer agree that if Buyer
assigns its rights under the Agreement to a financing entity in connection with
a synthetic lease transaction, Buyer shall be released from Buyer's obligations
under the Agreement if such assignment becomes effective upon the Close of
Escrow.
10. SELLER'S EXCHANGE. A new Section 27 is added to the Agreement
as follows:
"27. Tax Deferred Exchange. Buyer shall cooperate with
Seller in connection with implementing the purchase and sale of
the Property as a tax deferred exchange pursuant to Section 1031
of the Internal Revenue Code, provided, however, Buyer shall not
be obligated to take title to any other property or incur any
costs, liability, or delay in connection therewith."
11. TERMINATION OF FIRST ACCOMMODATION AGREEMENT AND SECOND
ACCOMMODATION AGREEMENT. Upon Buyer's making of the Additional Deposit, the
First Accommodation Agreement and Second Accommodation Agreement shall terminate
and be of no force or effect whatsoever. Seller and Buyer acknowledge and agree
that the parties shall thereupon owe no obligations to each other under either
the First Accommodation Agreement or Second Accommodation Agreement.
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12. FULL FORCE AND EFFECT. Except as otherwise provided in this
Amendment, the Agreement and Work Letter shall remain in full force and effect
as written.
IN WITNESS WHEREOF, the parties hereto have executed this
Amendment to the Agreement to be effective as of the day and year first written
above.
SELLER:
000 XXXX XXXXX ASSOCIATES, a California
limited partnership
By: M-D Venture, Inc., a California
corporation, its general partner
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
BUYER:
NETWORK APPLIANCE, INC.,
a California corporation
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
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EXHIBIT A
ASSIGNMENT AND ASSUMPTION OF CONSTRUCTION CONTRACT
THIS ASSIGNMENT AND ASSUMPTION OF CONSTRUCTION CONTRACT (this
"Assignment") is made and entered into as of the ________ day of __________,
1999 by and between 000 XXXX XXXXX ASSOCIATES, L.P., a California limited
partnership ("Assignor"), to ______________________, a ____________________
("Assignee").
W I T N E S S E T H:
A. Concurrently herewith, pursuant to certain Agreement of Purchase and
Sale dated as of June 11, 1998, as amended (the "Agreement"), Assignor is
conveying and transferring to Assignee the property (the "Property") located in
Sunnyvale, Santa Xxxxx County, California described in Exhibit A attached
hereto.
B. Assignor has entered into a "Standard Form of Agreement Between Owner
and Contractor (AIA Form A101)" dated April 20, 1998, as amended (the
"Construction Contract") with Devcon Construction, Inc., a California
corporation ("Contractor") whereby the Contractor has agreed to perform certain
work related to the construction of a four story building consisting of
approximately One Hundred Twenty-Six Thousand Seven Hundred Sixty (126,760)
square feet on the Property.
C. Assignor, as part of its conveyance and transfer as aforesaid, has
agreed to assign to Assignee all of its right, title and interest in, to and
under the Construction Contract, subject to the terms and conditions set forth
herein.
NOW, THEREFORE, for and in consideration of the sum of Ten Dollars
($10.00) and for other good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged:
1. Assignor hereby assigns, conveys and sets over unto Assignee all of
Assignor's right, title and interest in, to and under the Construction Contract
(including without limitation, all guarantees and warranties therein contained),
and warrants to Assignee that Seller has not previously assigned, transferred or
hypothecated the Construction Contract.
2. Assignee hereby accepts the foregoing assignment and assumes and
agrees to perform, subject to the terms and conditions hereof, all of the
duties, obligations and liabilities of Assignor under the Construction Contract
arising on or after the date of this Assignment, including without limitation
the obligation to pay when due (i) Contractor's Invoice #_______ dated
_____________, 1999 in the amount of $__________, (ii) all other sums payable
for work performed or labor, materials, goods or services supplied pursuant to
the Construction Contract which are reflected in invoices issued by Contractor
after _____________, 1999, and (iii) retainage in the sum of _____________
Dollars ($_________) withheld by Assignor prior to the date hereof pursuant to
the Construction Contract.
3. Indemnity. Assignee shall indemnify, defend by counsel
reasonably acceptable to Assignor and hold Assignor harmless from and against
all lien claims or other
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claims for payment asserted against Assignor with respect to the obligations of
Assignee under the Construction Contract arising after the date of this
Assignment, and Assignor shall indemnify, defend by counsel reasonably
acceptable to Assignee, and hold Assignee harmless from and against all lien
claims or other claims for payment asserted against Assignee with respect to the
obligations of Assignor under the Construction Contract arising prior to the
date of this Assignment, except for those obligations of Assignor which are
being assumed by Assignee pursuant to the provisions of Paragraph 2 above.
4. This Assignment shall bind and inure to the benefit of the parties
hereto and their respective successors and assigns.
5. This Assignment may be executed in counterparts, each of which shall
be an original, but all counterparts shall constitute one (1) instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Assignment as
of the day and year first above written.
ASSIGNOR:
000 XXXX XXXXX ASSOCIATES, L.P., a
California limited partnership
By: M-D Venture, Inc., a California
Corporation, its General Partner
By: ___________________________________
Its: __________________________________
ASSIGNEE:
------------------------------,
a _________________________
By: _______________________________________
Its: ______________________________________
CONSENT TO ASSIGNMENT AND ASSUMPTION
Devcon Construction, Inc., a California corporation ("Contractor")
hereby consents to the foregoing assignment and assumption of the Construction
Contract on the terms and conditions set forth above and releases Assignor from
all duties, obligations or liabilities under the Construction Contract arising
on or after the date of the Assignment, including without limitation the
obligation to pay when due (i) Contractor's Invoice #_______ dated
_____________, 1999 in the amount of $__________, (ii) and all other sums
payable for work performed or labor, materials, goods or services supplied
pursuant to the Construction Contract which are reflected in invoices issued by
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Contract after _____________, 1999, and (iii) retainage in the sum of
_____________ Dollars ($_________) withheld by Assignor prior to the date hereof
pursuant to the Construction Contract.
IN WITNESS WHEREOF, Contractor has executed this Consent to
Assignment and Assumption as of the ___ day of __________, 1999.
CONTRACTOR:
DEVCON CONSTRUCTION, INC.,
a California corporation
By: _______________________________________
Its: ______________________________________
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EXHIBIT A
LEGAL DESCRIPTION
All that certain real property situated in the Sunnyvale, Santa Xxxxx County,
California, more particularly described as follows:
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EXHIBIT B
ASSIGNMENT AND ASSUMPTION OF ARCHITECT'S AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION OF ARCHITECT'S AGREEMENT (this
"Assignment") is made and entered into as of the ________ day of __________,
1999 by and between 000 XXXX XXXXX ASSOCIATES, L.P., a California limited
partnership ("Assignor"), to ______________________, a ____________________
("Assignee").
W I T N E S E T H:
A. Concurrently herewith, pursuant to certain Agreement of Purchase and
Sale dated as of June 11, 1998, as amended (the "Agreement"), Assignor is
conveying and transferring to Assignee the property (the "Property") located in
Sunnyvale, Santa Xxxxx County, California described in Exhibit A attached
hereto.
B. Assignor has entered into an "Agreement between 000 Xxxx Xxxxx
Associates, L.P. and Xxxxxxx Xxxxxxxxx and Partners for Architectural Services"
dated December 1998, as amended (the "Architect's Agreement") with Xxxxxxx
Xxxxxxxxx and Partners, a California corporation ("Architect") whereby the
Architect has agreed to provide certain services related to the construction of
a four story building consisting of approximately One Hundred Twenty-Six
Thousand Seven Hundred Sixty (126,760) square feet on the Property.
C. Assignor, as part of its conveyance and transfer as aforesaid, has
agreed to assign to Assignee all of its right, title and interest in, to and
under the Architect's Agreement, subject to the terms and conditions set forth
herein.
NOW, THEREFORE, for and in consideration of the sum of Ten Dollars
($10.00) and for other good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged:
1. Assignor hereby assigns, conveys and sets over unto Assignee all of
Assignor's right, title and interest in, to and under the Architect's Agreement
(including without limitation, all guarantees and warranties therein contained),
and warrants to Assignee that Seller has not previously assigned, transferred or
hypothecated the Architect's Agreement.
2. Assignee hereby accepts the foregoing assignment and assumes and
agrees to perform, subject to the terms and conditions hereof, all of the
duties, obligations and liabilities of Assignor under the Architect's Agreement
arising on or after the date of this Assignment, including without limitation
the obligation to pay when due Architect's Invoice #_____ dated ___________,
1999 in the amount of $_________, and (ii) all other sums all sums payable for
work performed or labor, materials, goods or services supplied pursuant to the
Architect's Agreement which are reflected in invoices issued by Architect after
___________, 1999.
3. Indemnity. Assignee shall indemnify, defend by counsel reasonably
acceptable to Assignor and hold Assignor harmless from and against all lien
claims or other claims for payment asserted against Assignor with respect to the
obligations of Assignee under the Architect's Agreement arising after the date
of this Assignment, and Assignor shall indemnify,
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defend by counsel reasonably acceptable to Assignee, and hold Assignee harmless
from and against all lien claims or other claims for payment asserted against
Assignee with respect to the obligations of Assignor under the Architect's
Agreement arising prior to or as of the date of this Assignment, except for
those obligations of Assignor which are being assumed by Assignee pursuant to
the provisions of Paragraph 2 above.
4. This Assignment shall bind and inure to the benefit of the parties
hereto and their respective successors and assigns.
5. This Assignment may be executed in counterparts, each of which shall
be an original, but all counterparts shall constitute one (1) instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Assignment as
of the day and year first above written.
ASSIGNOR:
000 XXXX XXXXX ASSOCIATES, L.P., a
California limited partnership
By: M-D Venture, Inc., a California
Corporation, its General Partner
By: ___________________________________
Its: __________________________________
ASSIGNEE:
------------------------------,
a _________________________
By: _______________________________________
Its: ______________________________________
CONSENT TO ASSIGNMENT AND ASSUMPTION
Xxxxxxx Xxxxxxxxx and Partners, a California corporation ("Architect")
hereby consents to the foregoing assignment and assumption of the Architect's
Agreement on the terms and conditions set forth above and releases Assignor from
all duties, obligations or liabilities under the Architect's Agreement arising
on or after the date of the Assignment, including without limitation the
obligation to pay when due (i) Architect's Invoice #_______ dated _____________,
1999 in the amount of $__________, (ii) and all other sums payable for work
performed or labor, materials, goods or services supplied pursuant to the
Architect's Agreement which are reflected in invoices issued by Architect after
_____________, 1999.
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IN WITNESS WHEREOF, Architect has executed this Consent to Assignment
and Assumption as of the ___ day of __________, 1999.
ARCHITECT:
XXXXXXX XXXXXXXXX AND PARTNERS,
a California corporation
By: _______________________________________
Its: ______________________________________
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EXHIBIT A
LEGAL DESCRIPTION
All that certain real property situated in the Sunnyvale, Santa Xxxxx County,
California, more particularly described as follows:
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EXHIBIT C
ASSIGNMENT AND ASSUMPTION OF CONSTRUCTION MANAGER'S AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION OF CONSTRUCTION MANAGER'S AGREEMENT (this
"Assignment") is made and entered into as of the ___day of ______________, 1999
by and between 000 XXXX XXXXX ASSOCIATES, L.P., a California limited partnership
("Assignor"), to _________________, a _______________ ("Assignee).
W I T N E S E T H:
A. Concurrently herewith, pursuant to that certain Agreement of Purchase
and Sale dated as of June 11, 1998, as amended (the "Agreement"), Assignor is
conveying and transferring to Assignee the property (the "Property") located in
the Sunnyvale, Santa Xxxxx County, California described in Exhibit A attached
hereto.
B Assignor has entered into an "Agreement between 000 Xxxx Xxxxx
Associates, L.P. and Xxxx Xxxxxx & Associates for Architectural Services" dated
____________, as amended (the "Construction Manager's Agreement") with Xxxx
Xxxxxx & Associates ("Construction Manager") whereby the Construction Manager
has agreed to provide certain services related to the construction of a four
story building consisting of approximately One Hundred Twenty-Six Thousand Seven
Hundred Sixty (126,760) square feet on the Property.
C. Assignor, as part of its conveyance and transfer as aforesaid, has
agreed to assign to Assignee all of its right, title and interest in, to and
under the Construction Manager's Agreement, subject to the terms and conditions
set forth herein.
NOW, THEREFORE, for and in consideration of the sum of Ten Dollars
($10.00) and for other good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged:
1. Assignor hereby assigns, conveys and sets over unto Assignee all of
Assignor's right, title and interest in, to and under the Construction Manager's
Agreement (including without limitation, all guarantees and warranties therein
contained), and warrants to Assignee that Seller has not previously assigned,
transferred or hypothecated the Construction Manager's Agreement.
2. Assignee hereby accepts the foregoing assignment and assumes and
agrees to perform, subject to the terms and conditions hereof, all of the
duties, obligations and liabilities of Assignor under the Construction Manager's
Agreement arising on or after the date of this Assignment, including without
limitation the obligation to pay when due Construction Manager's Invoice #
___________ dated ____________, 1999 in the amount of $ ______________, and (ii)
all other sums payable for work performed or labor, materials, goods or services
supplied pursuant to the Construction Manager's Agreement which are reflected in
invoices issued by Construction Manager after _______________, 1999.
3. Assignee shall indemnify, defend by counsel reasonably acceptable to
Assignor and hold Assignor harmless from and against all lien claims or other
claims for payment asserted against Assignor with respect to the obligations of
Assignee under the Construction Manager's
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Agreement arising after the date of this Assignment, and Assignor shall
indemnify, defend by counsel reasonably acceptable to Assignee, and hold
Assignee harmless from and against all lien claims or other claims for payment
asserted against Assignee with respect to the obligations of Assignor under the
Construction Manager's Agreement arising prior to or as of the date of this
Assignment, except for those obligations of Assignor which are being assumed by
Assignee pursuant to the provisions of Paragraph 2 above.
4. This Assignment shall bind and inure to the benefit of the parties
hereto and their respective successors and assigns.
5. This Assignment may be executed in counterparts, each of which shall
be an original, but all counterparts shall constitute one (l) instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Assignment as
of the day and year first above written.
ASSIGNOR:
000 XXXX XXXXX ASSOCIATES, L.P., a
California limited partnership
By: M-D Venture, Inc., a California
Corporation, its General Partner
By: ___________________________________
Its: __________________________________
ASSIGNEE:
-------------------------------------,
a _______________________
By: _______________________________________
Its: ______________________________________
CONSENT TO ASSIGNMENT AND ASSUMPTION
Xxxx Xxxxxx & Associates ("Construction Manager") hereby consents to the
foregoing assignment and assumption of the Construction Manager's Agreement on
the terms and conditions set forth above and releases Assignor from all duties,
obligations or liabilities under the Construction Manager's Agreement arising on
or after the date of the Assignment, including without limitation the obligation
to pay when due (i) Construction Manager's Invoice # ____________ dated
_____________, 1999 in the amount of $_____________ (ii) and all other sums
payable for work performed or labor, materials, goods or services supplied
pursuant to the
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Construction Manager's Agreement which are reflected in invoices issued by
Construction Manager after ______________, 1999.
IN WITNESS WHEREOF, Construction Manager has executed this Consent to
Assignment and Assumption as of the ____ day of ______________, 1999.
CONSTRUCTION MANAGER:
XXXX XXXXXX & ASSOCIATES,
a ______________________________
By: ____________________________
Its: ___________________________
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EXHIBIT D
CONTRACTOR'S CERTIFICATE
DEVCON CONSTRUCTION, INC., a California corporation ("Contractor"),
hereby represents, warrants and certifies to _______________________ ("Buyer"),
as the successor to the interest of the buyer pursuant to that certain Agreement
of Purchase and Sale dates as of June 11, 1998, as amended (the "Agreement")
with 000 Xxxx Xxxxx Associates, L.P., a California limited partnership
("Seller"), as seller, and agrees as follows:
1. The copy of the "______________" dated ____________, 1998 (the
"Construction Contract") between Contractor and Seller for services related to
the project known as 000 Xxxx Xxxxx in Sunnyvale, California (the "Project"),
which is attached hereto is true, accurate and complete. There have been no
amendments, modifications or changes orders relating to the Construction
Contract except as described in Schedule 1 attached hereto. The Construction
Contract is a valid and binding agreement between the parties and remains in
full force and effect.
2. As of the date hereof, all amounts due and owing to Contractor for
services, materials and supplies furnished under the Construction Contract, in
the aggregate amount of $_______ which have been invoiced to Seller, have been
paid in full except as disclosed in Schedule 2 and Schedule 3 attached hereto.
The balance due Contractor through completion of construction and payment of all
amounts due under the Construction Contract (in addition to the sum set forth in
Schedule 3) will not exceed $_______, excluding cost overruns for categories of
work which are included within the Construction Contract as allowances. As of
the date hereof, (i) Contractor knows of no existing or threatened circumstances
which would prevent or are likely to prevent Contractor from completing its
obligations under the Construction Contract on time and for a price not in
excess of $_______ (excluding Allowance cost overrums) and (ii), except as
specifically set forth to the contrary in Schedule 1 attached hereto, no change
orders have been agreed to that would increase or decrease the maximum contract
price under the Construction Contract.
3. There are no pending or unresolved disputes between Contractor and
Seller relating to the Construction Contract or the services performed by
Contractor thereunder.
4. There are no claims, nor, to Contractor's knowledge, any basis for
any claim for additional compensation due Contractor.
5. Contractor has not received any written notice that it is in default
of any of its obligations under the Construction Contract, and, to the best of
Contractor's knowledge, no event or circumstance currently exists which, with
the giving of notice would constitute a default of Contractor under the
Construction Contract. Seller is not in default of any of its obligations under
the Construction Contract, and, to the best of Contractor's knowledge, no events
or circumstances currently exist which, with the giving of notice would
constitute a default of Seller under the Construction Contract.
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6. Contractor acknowledges it is aware that at the closing under the
Agreement, Seller is conveying to Buyer all of its right, title and interest in
and to the Construction Contract. Contractor hereby consents and agrees to such
assignment.
IN WITNESS WHEREOF, Contractor has executed this Certificate as of the
___ day of __________, 1999.
CONTRACTOR:
DEVCON CONSTRUCTION, INC.,
a California corporation
By: ___________________________
Its: __________________________
3
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EXHIBIT E
ARCHITECT'S CERTIFICATE
Xxxxxxx Xxxxxxxxx and Partners, a California corporation ("Architect")
hereby represents, warrants and certifies to __________________, as the
successor to the interest of the buyer pursuant to that certain Agreement of
Purchase and Sale dated as of June 11, 1998, as amended (the "Agreement") with
000 Xxxx Xxxxx Associates, L.P., a California limited partnership ("Seller"), as
Seller, and agrees as follows:
1. The copy of the "________________" dated ________________, 1998 (the
"Architect's Agreement") between Architect and Seller for services related to
the project known as 000 Xxxx Xxxxx in Sunnyvale, California (the "Project"),
which is attached hereto is true, accurate and complete. There have been no
amendments, modifications or change orders relating to the Architect's Agreement
except as described in Schedule 1 attached hereto. There are no pending change
orders except as disclosed in Schedule 2 attached hereto. The Architect's
Agreement is a valid and binding agreement between the parties and remains in
full force and effect.
2. As of the date hereof, all amounts due and owing to the undersigned
for services, materials and supplies furnished under the Architect's Agreement,
in the aggregate amount of $ which have been invoiced to Seller, have been paid
in full except as disclosed in Schedule 3 attached hereto. The balance due
Architect through completion of construction and payment of all amounts due
under the Architect's Agreement will not exceed $ . As of the date hereof, the
undersigned knows of no existing or threatened circumstances which would prevent
or are likely to prevent the undersigned from completing its obligations under
the Architect's Agreement on time and for a price not in excess of $______, and
(ii) except as specifically set forth to the contrary in Schedule 1 attached
hereto, no change orders have been agreed to that would increase or decrease the
maximum contract price under the Architect's Agreement.
3. There are no pending or unresolved disputes between Seller and
Architect relating to the Architect's Agreement or the services performed by
Architect thereunder.
4. There are no claims, nor, to Architect's knowledge, any basis for any
claim for additional compensation due Architect.
5. Architect has not received any written notice that it is in default
of any of its obligations under the Architect's Agreement and, to the best of
Architect's knowledge, no event or circumstance exists which, with the giving of
notice or passage of time, or both, would constitute a default of Architect
under the Architect's Agreement. Seller is not in default of any of its
obligations under the Architect's Agreement, and, to the best of Architect's
knowledge, no events or circumstances exist which, with the giving of notice or
the passage of time, or both, would constitute a default of Seller under the
Architect's Agreement.
6. Architect acknowledges it is aware that at closing under the
Agreement , Seller is conveying to Buyer all of its right, title and
interest in and to the Architect's Agreement and
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in and to any and all plans and specifications prepared by Architect relating to
the Project. Architect hereby consents and agrees to such assignment.
IN WITNESS WHEREOF, Architect has executed this Certificate as of the
___ day of __________, 1999.
ARCHITECT:
XXXXXXX XXXXXXXXX AND PARTNERS, a
California corporation
By: _____________________________
Its: ____________________________
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EXHIBIT F
CONSTRUCTION MANAGER'S CERTIFICATE
Xxxx Xxxxxx & Associates, a ______________ ("Construction Manager")
hereby represents, warrants and certifies to ________________, as the successor
to the interest of the buyer pursuant to that certain Agreement of Purchase and
Sale dated as of June 11, 1998, as amended (the "Agreement") with 000 Xxxx Xxxxx
Associates, L.P., a California limited partnership ("Seller"), as seller, and
agrees as follows:
1. The copy of the "_____________" dated ______________, 1998 (the
"Construction Manager's Agreement") between Construction Manager and Seller for
services related to the project known as 000 Xxxx Xxxxx in Sunnyvale, California
(the "Project"), which is attached hereto is true, accurate and complete. There
have been no amendments, modifications or change orders relating to the
Construction Manager's Agreement except as described in Schedule 1 attached
hereto. There are no pending change orders except as disclosed in Schedule 2
attached hereto. The Construction Manager's Agreement is a valid and binding
agreement between the parties and remains in full force and effect.
2. As of the date hereof, all amounts due and owing to the undersigned
for services, materials and supplies furnished under the Construction Manager's
Agreement, in the aggregate amount of $_____________ which have been invoiced to
Seller, have been paid in full except as disclosed in Schedule 3 attached
hereto. The balance due Construction Manager through completion of construction
and payment of all amounts due under the Construction Manager's Agreement will
not exceed $___________. As of the date hereof, the undersigned knows of no
existing or threatened circumstances which would prevent or are likely to
prevent the undersigned from completing its obligations under the Construction
Manager's Agreement on time and for a price not in excess of $_____________, and
(ii) except as specifically set forth to the contrary in Schedule 1 attached
hereto, no charge orders have been agreed to that would increase or decrease the
maximum contract price under the Construction Manager's Agreement.
3. There are no pending or unresolved disputes between Seller and
Construction Manager relating to the Construction Manager's Agreement or the
services performed by Construction Manager thereunder.
4. There are no claims, nor, to Construction Manager's knowledge, any
basis for any claim for additional compensation due Construction Manager.
5. Construction Manager has not received any written notice that it is
in default of any of its obligations under the Construction Manager's Agreement
and, to the best of Construction Manager's knowledge, no event or circumstance
exists which, with the giving of notice or passage of time, or both, would
constitute a default of Construction Manager under the Construction Manager's
Agreement. Seller is not in default of any of its obligations under the
Construction Manager's Agreement, and, to the best of Construction Manager's
knowledge, no events or circumstances exist which, with the giving of notice or
the passage of time, or both, would constitute a default of Seller under the
Construction Manager's Agreement.
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6. Construction Manager acknowledges it is aware that at closing under
the Agreement, Seller is conveying to Buyer all of its right, title and interest
in and to the Construction Manager's Agreement and in and to any and all plans
and specifications prepared by Construction Manager relating to the Project.
Construction Manager hereby consents and agrees to such assignment.
IN WITNESS WHEREOF, Construction Manager has executed this Certificate
as of the _______day of _________, 1999.
CONSTRUCTION MANAGER:
XXXX XXXXXX AND ASSOCIATES,
a __________________
By: ___________________________
Its: __________________________
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