EXHIBIT 10.21
PURCHASE AND SALE AGREEMENT
0000 XXXXXXXX XXXXX
XXXXX XXXXX, XXXXXXXXXX
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this "Agreement") is made as of the
18th day of August, 2003 (the "Effective Date"), by and between 3COM
CORPORATION, a Delaware corporation ("3Com" or "Seller"), and MARVELL
SEMICONDUCTOR, INC., a California corporation ("Buyer").
RECITALS:
A. Seller is the owner of the following real property
and improvements thereon in the City and County of Santa Clara, California:
(1) All that certain real property commonly
known as 5400-5460 Xxxxxxxx Xxxxx, Xxxx xxx Xxxxxx xx Xxxxx Xxxxx, Xxxxxxxxxx,
as described in EXHIBIT "A" attached hereto, consisting of approximately 33.8
acres of land (without representation or warranty as to square footage),
together with all easements, rights and privileges appurtenant thereto (the
"Land");
(2) Six (6) existing buildings (collectively the
"Buildings"; each a "Building") located on the Land, with a total approximate
square footage of 876,359 (without representation or warranty as to square
footage), two (2) existing parking structures, and all fixtures, machinery,
building systems, utilities and improvements appurtenant thereto (the Buildings
and such other improvements and appurtenances being hereinafter collectively
referred to as the "Improvements", and the Land and the Improvements being
hereinafter collectively referred to as the "Real Property");
(3) All of Seller's right, title and interest in
and to certain personal property located within or appurtenant to the
Improvements, including cubicle workstations, file cabinets, tables, chairs,
artwork, IT equipment, network infrastructure and cabling, telephone switch,
satellite equipment, generators, A/V equipment, maintenance equipment, fitness
equipment and cafeteria and kitchen equipment, all of which is more particularly
described on "Exhibit A" to the Xxxx of Sale attached hereto as EXHIBIT "C"
(collectively, the "Personal Property"), excluding, however, any fixtures,
furnishing or equipment leased by Seller (as the lessee) or any of the personal
property listed on SCHEDULE A(3), attached hereto (the "Excluded Personal
Property"); and
(4) All of Seller's right, title and interest in
and to (i) all Assigned Contracts (as defined in Section 4.1 below); (ii) all
assignable existing warranties and guaranties issued to or held by Seller in
connection with the Land or the Improvements; (iii) the Magma Lease (defined
below); and (iv) all permits, licenses and governmental approvals applicable to
or benefiting the Real Property, to the extent assignable by Seller to Buyer,
but not including any claims for reduction in property taxes for periods prior
to Closing (the property described in this Recital A(4) being sometimes herein
referred to collectively as the "Intangibles").
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B. Seller is prepared to sell, transfer and convey the
Real Property, the Personal Property and the Intangibles (collectively, the
"Property") to Buyer, and Buyer is prepared to purchase and accept the Property
from Seller, all for the purchase price and on the other terms and conditions
hereinafter set forth.
AGREEMENT:
In consideration of the mutual covenants and agreements herein
contained, and intending to be legally bound hereby, the parties hereto agree as
follows:
1. Sale and Purchase. Seller hereby agrees to sell and convey the
Property to Buyer and Buyer hereby agrees to purchase and accept the Property
from Seller, in each case for the Purchase Price and subject to the other terms
and conditions set forth in this Agreement.
2. Purchase Price. The purchase price for the Property (the
"Purchase Price") shall be Sixty Five Million Four Hundred Thirty Three Thousand
Four Hundred Eighty Two and no/100 Dollars ($65,433,482.00). The Purchase Price
shall be paid to Seller by Buyer as follows:
2.1 Deposit. Within two (2) Working Days (a "Working Day"
shall be deemed to be any day that is not a Saturday or Sunday or an official
state or federal holiday in California) after the Effective Date, Buyer shall
deposit with First American Title Guaranty Company, located at 0000 Xxxxx Xxxxx
Xxxxxx, Xxxxx 000, Xxx Xxxx, Xxxxxxxxxx, 00000 (telephone (000) 000-0000; fax
(000) 000-0000; Attention: Xxx Xxxx) (the "Escrow Agent"), to be held in an
interest-bearing escrow account under escrow account No. 4305-521802sc (the
"Escrow") and disbursed in accordance with this Agreement, a cash deposit in the
amount of One Million and no/100 Dollars ($1,000,000.00) (which amount, together
with all interest earned thereon while in the Escrow, shall be hereinafter
collectively referred to as the "Initial Deposit"). If Buyer fails to remit the
Initial Deposit into Escrow within such two (2) Working Day Period, Seller shall
be entitled to terminate this Agreement by providing written notice of such
termination to Buyer. If Buyer elects to proceed with the transaction in
accordance with Section 5.2.1, below, then on or before the expiration of the
Feasibility Period (as defined below), Buyer shall deposit an additional Two
Million and no/100 Dollars ($2,000,000.00) into Escrow (which amount, together
with all interest earned thereon while in the Escrow, shall be hereinafter
collectively referred to as the "Additional Deposit", and collectively with the
Initial Deposit, the "Deposit").
2.2 Disposition of Deposit. The Initial Deposit shall be
fully refunded out of Escrow to Buyer, without requirement of the consent or
release by Seller, and thereafter neither party shall have any further liability
hereunder except as may otherwise be expressly provided hereunder if Buyer
elects to unilaterally terminate this Agreement during the Feasibility Period,
as set forth in Section 5.2 below. If Buyer deposits the Additional Deposit
prior to the expiration of the Feasibility Period, then the Deposit shall be
deemed non-refundable to Buyer except as expressly provided herein. The Deposit
shall be applied to the Purchase Price at the Closing.
2.3 Interest. The Deposit shall be deposited to Escrow in
the form of cash, certified check, bank cashier's check, wire transfer or other
form of readily available federally insured funds. The Deposit shall be held by
the Escrow Agent in a federally-insured
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interest-bearing account or in such other liquid investment as reasonably may be
requested by Buyer and approved by Seller in its reasonable discretion. All
interest earned on the Deposit shall be deemed to be part of the Deposit and
shall accrue to the benefit of Buyer except to the extent the Deposit becomes
payable to Seller pursuant to Section 11.1. In such event, Seller shall be
entitled to all interest earned on the Deposit.
2.4 Remainder of Purchase Price. At Closing, Buyer shall
deliver to the Escrow Agent cash in an amount equal to the Purchase Price, less
the Deposit, together with Buyer's share of closing costs and due and payable by
Buyer in accordance with this Agreement, and subject to adjustments, prorations
and apportionments as set forth herein. The Purchase Price shall be paid at the
Closing by wire transfer of immediately available federal funds, transferred
through the Escrow to the order or account of Seller or such other person as
Seller may designate in writing.
3. Seller's Representations and Warranties; Definition of
Seller's Knowledge; Survival.
3.1 Seller's Representations and Warranties. Seller
represents to Buyer as follows, which representations and warranties shall be
deemed remade by Seller to Buyer on the Closing Date, and which shall survive
the Closing for the period and to the extent described in Section 3.3 below:
3.1.1 Compliance with Laws. To the best of
Seller's knowledge, the Improvements were constructed in compliance with
applicable federal, state and local laws and regulations ("Laws").
3.1.2 Documents. To the best of Seller's
knowledge, all Property Documents (defined below) delivered or made available to
Buyer by Seller are true copies.
3.1.3 Possessory Rights. There are no leases or
other possessory rights of third parties in the Real Property except for (i) the
Office Lease dated June 19, 2003, between Seller and Magma Design Automation,
Inc. (the "Magma Lease"), and (ii) the Pedestrian Bridge Lease Agreement dated
September 18, 1998 between Seller and the Santa Xxxxx Valley Water District (the
"Bridge Lease").
3.1.4 Litigation. To the best of Seller's
knowledge, there is no current litigation, claim, investigation or eminent
domain proceeding that may affect the Property or the transaction contemplated
by this Agreement.
3.1.5 Authority. Subject to Section 7.2.5, below,
Seller has the power and authority to enter into and to perform all of Seller's
obligations pursuant to this Agreement, and to purchase the Property on the
terms and conditions set forth herein. No consent of any third party is required
in order for Seller to perform any of its obligations hereunder.
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3.1.6 No Conflict. This Agreement and Seller' sale
of the Property hereunder do not violate any material terms or provisions of any
contract to which Seller is a party
3.1.7 Hazardous Materials. To the best of Seller's
knowledge, no Hazardous Materials (as defined below) have been placed on, under
or about the Property by Seller in violation of any applicable Environmental
Laws (as defined in Section 6.6(b), below).
3.1.8 Personal Property. Subject to the rights of
the "Tenant" under the Magma Lease, Seller is the owner of the Personal
Property, the Personal Property is not subject to any liens, leases, claims,
interests or encumbrances, and Seller has the right to transfer the Personal
Property to Buyer.
3.1.9 Signage. To the best of Seller's knowledge,
no parties have any right to use the existing monument signage on the rooftop of
Building 5.
3.2 Definition of Seller's Knowledge. As used in this
Section 3, the phrase "to the best of Seller's knowledge" refers only to the
current actual knowledge of the Designated Individuals (as hereinafter defined)
of Seller, and shall not be construed, by imputation or otherwise, to refer to
the knowledge of Seller or any affiliate of Seller, or to any officer, agent,
consultant, representative or employee of Seller or any affiliate thereof or,
except to the limited extent described in this Section 3.2, to impose upon such
Designated Individuals any duty to investigate the matter to which such actual
knowledge, or the absence thereof, pertains. Seller makes no representation that
the Designated Individuals have read all or any of the Property Documents (as
defined in Section 4.2). As used herein, the term "Designated Individuals" shall
refer to Xxxxx xxx Xxxxxxxx, Director, Real Estate and Site Services, and Xxxxx
Xxxxxxx, Site Services Manager, and Seller represents and warrants to Buyer that
the Designated Individuals are the individuals currently employed by 3Com with
the most extensive personal knowledge of the Property. Except as described
above, Seller makes no representation or warranty as to the scope of any inquiry
made by the Designated Individuals to verify the matters referred to in Section
3.1 hereof.
3.3 Survival. The representations and warranties of
Seller set forth in this Section 3 shall be deemed to have been made as of, and
only as of, (a) the Effective Date and (b) the Closing. Such representations and
warranties shall survive for a period of three hundred sixty five (365) days
after the Closing. No claim for a breach of any representation or warranty of
Seller shall be actionable or payable if the breach in question results from or
is based on a condition, state of facts or other matter which was known to or
discovered by Buyer prior to Closing. Seller shall have no liability to Buyer
for a breach of any representation or warranty (i) unless the valid claims for
all such breaches collectively aggregate more than $25,000, in which event the
full amount of such valid claims shall be actionable, up to the amount specified
in Section 11.2 hereof, and (ii) unless written notice containing a description
of the specific nature of such breach shall have been given by Buyer to Seller
prior to the expiration of the applicable period specified in the first sentence
of this Section 3.3 and an action shall have been
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commenced by Buyer against Seller within thirty (30) days after expiration
of such applicable period.
3.4 Updating Representations and Warranties. In the event
that any representation or warranty of Seller needs to be modified due to
changes since the Effective Date, Seller shall deliver to Buyer a certificate,
dated as of the date of Closing and executed on behalf of Seller by a duly
authorized officer thereof, identifying any representation or warranty which is
not, or no longer is, true and correct and explaining the state of facts giving
rise to the change. In no event shall Seller be liable to Buyer for, or be
deemed to be in default hereunder by reason of, any breach of representation or
warranty which results from any change that (i) occurs between the Effective
Date and the date of the Closing and (ii) is either not prohibited under the
terms of this Agreement or is beyond the reasonable control of Seller to
prevent; provided, however, that the occurrence of any change to a
representation and warranty by Seller under this Article 3 shall, if materially
adverse to Buyer, constitute the non-fulfillment of the condition set forth in
Section 7.1.1 hereof. If, despite changes or other matters described in such
certificate, the Closing occurs, Seller's representations and warranties set
forth in this Agreement shall be deemed to have been modified by all statements
made in such certificate. In no event shall this Section 3.4 relieve Seller of
liability, if any, for making a representation or warranty that was known by
Seller to be false at the time it was made.
4. Seller's Covenants and Agreements.
4.1 Contracts. Within three (3) Working Days after the
Effective Date, to the extent in Seller's possession Seller shall make available
for inspection by Buyer or deliver to Buyer copies of all service, equipment,
supply, maintenance or concession agreements entered into between Seller and
such service providers with respect to the Property (collectively, the
"Contracts"), provided that Seller shall not be required to provide Buyer with
or assign to Buyer any agreements between Seller and Washington Group
("Washington Group"), which provides property management services to Seller at
the Property and at other properties owned or operated by Seller. Buyer shall
give written notice to Seller prior to the expiration of the Feasibility Period
designating those Contracts, if any, which Buyer elects to continue after the
Closing, and such designated Contracts, if assignable by Seller in accordance
with their terms (collectively, the "Assigned Contracts"), shall be assigned to
Buyer at the Closing, and Buyer shall assume all obligations with respect
thereto arising from and after the Closing. Notwithstanding the preceding
sentence, Seller shall have no obligation to assign such Contracts to Buyer if
the Assigned Contracts are assignable only with the approval of the other party
or parties to the Assigned Contracts and if Seller is unable to obtain such
approval, or if any expense must be incurred or any other consideration paid as
a condition to such assignment, unless Buyer agrees to reimburse Seller for such
expense or payment. Seller shall terminate all Contracts that are not assigned
to and assumed by Buyer as of the Closing or, if Seller is unable to or
otherwise fails to terminate such Contracts, Seller shall be solely responsible
for performance of Seller's obligations thereunder and shall indemnify Buyer
against all claims with respect thereto.
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4.2 Records. Seller shall make available for inspection
by Buyer or deliver to Buyer as provided below, to the extent in Seller's
possession, the following documents (collectively, the "Property Documents"):
(a) within ten (10) days after the execution and
delivery of this Agreement, Seller shall deliver (if not already delivered) to
Buyer:
(1) The original or copies of the
building plans in CAD or print format for the Buildings.
(2) The ALTA survey of the Property
dated November 2002 by Xxxx and Xxxxxx (the "Survey").
(3) The following soils and
environmental reports in Seller's possession:
- Phase I Environmental Site Assessment - Xxxxxx Xxxxxx, October 9, 2001
- Phase I Environmental Site Assessment - Xxxxxx Xxxxxx, Xxxx 17, 1994
- Report of Quarterly Ground-Water Monitoring - Xxxxxx Xxxxxx, January
21, 1993
- Status Report on Soils Remediation at Former Edelweiss Dairy and Future
3Com Corporate Campus, June 13, 1989
- Health and Safety Plan - Xxxxxx Xxxxxx, Potential Chemical and Physical
Hazards Excavation and Treatment of Shallow Soils, 3Com Corporate
Campus, May 16, 1989
- Various correspondence and case closure summary and data relating to
UST removal dated November - December 1994.
(4) Any structural reports on the
Buildings in Seller's possession.
(5) A copy of any conditions, covenants
and restrictions recorded against the Property as contained in the Preliminary
Title Report.
(6) Copies of all licenses, permits,
and certificates of occupancy issued for the Buildings in Seller's possession.
(7) Copies of the real property tax
bills for fiscal years 2000 through 2003.
(8) Copies of the agreement and scope
of work between 3Com Corporation and the Washington Group relating to the
maintenance and operation of the Property. Seller will authorize Buyer to
contact the Washington group and obtain copies of documents relating to the
maintenance and operation of the Property.
(9) A copy of the Magma Lease and the
Bridge lease for the bridge spanning the San Xxxxx Xxxxxxx Creek, a copy of the
Magma letter of credit when it
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becomes available to Seller and a copy of any other agreements affecting the
Property after the close of Escrow.
(b) In addition, Seller shall promptly deliver
or make available such additional documents as Buyer may reasonably request
concerning the Property or the Buildings that are in Seller's possession.
(c) A general inventory of all equipment,
furniture and personal property that Seller will transfer to Buyer at closing.
The inventory will be provided within three (3) Working Days of the Effective
Date.
The Property Documents that are not delivered to Buyer shall be
available for inspection and photocopying by Buyer or its authorized agents,
employees, consultants and representatives ("Buyer's Agents"), at Buyer's
expense, at Seller's offices in Santa Clara, California, or at the Real
Property, as the case may be, during reasonable business hours on no less than
24 hours advance notice. All Property Documents described in this Section 4.2
are provided for the convenience of Buyer, and Seller makes no representation or
warranty as to the accuracy or completeness of any of such Property Documents or
as to the possible existence of any additional records or reports which may be
material to Buyer's decision to purchase the Property. Buyer acknowledges and
agrees that Buyer will make its own independent investigation of the Property
and of the accuracy and completeness of all documents provided by Seller. Buyer
conclusively shall be presumed to have knowledge of all matters referred to in
or disclosed by the Property Documents. Notwithstanding the foregoing, in no
event shall Seller be required to deliver to Buyer any Property Documents that
Seller has previously agreed not to disclose pursuant to a written
non-disclosure agreement. Upon termination of this Agreement for any reason,
Buyer shall return to Seller all copies of all Property Documents in Buyer's
possession and shall provide copies to Seller of all reports and studies
obtained or developed by Buyer with respect to the Property, at no cost to
Seller, within five (5) Working Days after such termination, and in the event
Buyer fails to return the Property Documents to Seller as required hereunder,
Buyer shall pay Seller Ten Thousand Dollars ($10,000.00) to reimburse Seller for
the cost of replacing the Property Documents, which foregoing obligations of
Buyer shall survive the termination of this Agreement.
4.3 No Change. During the pendency of this Agreement,
Seller shall operate and maintain the Property in substantially its current
condition and repair as of the Effective Date, in accordance with its current
management standards and subject to normal wear and tear; provided that such
covenant shall not obligate Seller to repair any damage that results from a fire
or other casualty event prior to the Closing, in accordance with Section 10.2
hereof. From and after the Effective Date Seller agrees not to remove any
Personal Property from the Property.
4.4 New Agreements. During the pendency of this
Agreement, Seller shall not execute any agreement affecting the ownership or
operation of the Property, or any portion thereof, if such lease, license or
other agreement will be binding on Buyer or the Property after Closing, without
Buyer's prior written approval, not to be unreasonably withheld (which approval
shall be deemed denied if not approved in writing within five (5) Working Days
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following Seller's written request for approval), such approval not to be
unreasonably withheld. Notwithstanding the foregoing, in no event shall Seller
be entitled to enter into any lease for Buildings 1 through 4, and Seller shall
not enter into any amendment of the Magma Lease without Buyer's prior written
approval, not to be unreasonably withheld, and in connection with such approval
Buyer's legal counsel shall have the opportunity to review and comment on any
such lease or amendment. In the event Buyer approves any leases for Building 5
which are executed after the Effective Date, and in the event the Closing
occurs, Buyer shall pay for all costs associated with such leases, including
without limitation any and all leasing commissions, rental concessions and
tenant improvement expenses and/or allowances, to the extent such costs have
been approved in writing by Buyer prior to the Closing. Notwithstanding anything
else in this Agreement, Seller shall pay for all (a) leasing commissions due or
payable in connection with the Magma Lease, subject to the provisions of Section
9.1.6, below, and (b) leasing commissions, tenant improvement costs and
attorneys fees due or payable in connection with any other lease entered into
prior to the Closing unless such costs have been approved in writing by Buyer
prior to the Closing.
4.5 Seller Obligations.
4.5.1 Seller agrees that, during the period
commencing on the Effective Date and until this Agreement is either terminated
or the parties proceed to Closing, Seller will remove its listing for the sale
of the Property and all advertisements related thereto and shall not show the
Property to or negotiate with other potential buyers of the Property, or
otherwise solicit offers or discuss the terms of a proposed sale of the Property
with other potential buyers; provided, however, that Seller shall not be deemed
to have breached this Section 4.5.1 if any advertisements placed prior to the
Effective Date continue in circulation thereafter, and/or if Seller receives any
unsolicited offers for the purchase of the Property, provided such offers are
not accepted, even on a back-up basis.
4.5.2 Until the Closing has occurred, Seller shall
keep in confidence and shall not disclose or permit or suffer the disclosure of
any information relating to this transaction, the identity of Buyer and the
terms and conditions of this Agreement to any person, firm or entity, except
that such information may be disclosed (i) to the Seller's partners, directors,
officers, existing and financing sources, assignees, lawyers, consultants, and
representatives as needed to enable Seller to complete its obligations or
exercise its rights hereunder, or (ii) to Seller's Agents.
4.5.3 Commencing on the Effective Date, subject to
Buyer's rights under Section 4.4, above, Seller shall continue to actively seek
tenants for Building 5.
4.5.4 The Bridge Lease governs that portion of a
pedestrian bridge (the "Bridge") which spans the San Xxxxx Xxxxxxx Creek
adjacent to the Property, which Bridge also extends over the Eastern border of
and onto a portion of the Property. If the Santa Xxxxx Valley Water District or
any other governmental agency requires removal of the Bridge across the San
Xxxxx Xxxxxxx Creek, then Seller shall remove, at its sole cost and expense,
that portion of the Bridge which is on Santa Xxxxx Valley Water District
property and subject to the Bridge Lease;
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provided, however, that Seller's obligation shall not include any repair work
for that portion of the Bridge remaining on the Property (including without
limitation repair, shoring or reinforcement, installation of railings, and/or
removal of those portions of the Bridge located on the Property), the
performance and expense for which shall be Buyer's responsibility. Buyer agrees
to reasonably cooperate with Seller's performance of its obligations under this
Paragraph 4.5.4, including Seller's right to access over and onto the Property
to perform such work. Seller's obligations under this Section 4.5.4 shall
survive the Closing.
5. Title Review and Feasibility Period.
5.1 Title Report and Survey. Promptly after the execution
and delivery of this Agreement, Seller shall provide Buyer with (a) a current
title report for the Real Property, (the "Title Report") prepared by First
America Title Guaranty Company (the "Title Company"), (b) copies of documents
referenced in the exceptions set forth in the Title Report, and (c) the Survey.
Promptly after the Effective Date, Seller shall instruct the Title Company to
deliver the Title Report, copies of the documents referenced in the exceptions
thereto, and shall deliver the Survey to Buyer, Buyer's attorney (as identified
in Section 14 below), and Seller. In addition to any and all exceptions approved
by Seller pursuant to Section 5.1.1 below, the Title Report shall be subject to
and Buyer hereby approves as "Permitted Exceptions" the following: (i)
exceptions for general taxes not yet due and payable, and (ii) matters affecting
title attributable to the acts of Buyer and its agents, contractors and
employees.
5.1.1 Buyer shall have thirty (30) days after
receipt of the Title Report (such period herein called the "Title Objection
Period") to notify Seller and the Title Company in writing of Buyer's approval
or disapproval of any exceptions or other matters shown therein other than the
Permitted Exceptions listed in Section 5.1, above ("Notice of Title Objection")
and to request any endorsements to the Title Report that Buyer desires. If Buyer
does not give Seller written notice of disapproval of any such matters or
exceptions within the prescribed time, the Title Report, the Survey and the
supporting documents shall be deemed approved (and all exceptions therein shall
be deemed "Permitted Exceptions") and this condition shall be deemed satisfied.
Within seven (7) days after receipt of Buyer's notice of disapproval of any such
matters or exceptions timely delivered to Seller, Seller shall notify Buyer in
writing whether Seller is willing to remove any such item which Buyer has
disapproved ("Seller's Cure Item"). If Seller does not give Buyer written notice
within the prescribed period of time, Seller shall be deemed to have elected not
to remove any such item which Buyer has disapproved and such items shall not be
deemed Seller's Cure Items. If there are exceptions which Buyer has disapproved
and which Seller is not willing to remove at Seller's expense, Buyer shall have
until the end of the Feasibility Period to notify Seller in writing of Buyer's
election to either (i) waive its disapproval and approve such exceptions, or
(ii) terminate this Agreement and receive a return of the Deposit in accordance
with Section 2.1. If Buyer does not expressly elect to waive its disapproval in
a timely manner, then this Agreement shall terminate and the Deposit shall be
returned to Buyer.
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5.1.2 Survey. Seller's sole obligation with
respect to a survey of the Property shall be to deliver the Survey to Buyer as
provided herein. Buyer shall be responsible, at its sole cost, for obtaining any
updates to the Survey and/or any new survey(s) of the Property.
5.1.3 Pre-Closing "Gap" Title Defects. Buyer may,
at or prior to Closing, deliver written notice to Seller (the "Gap Notice") of
any exceptions to title (a) raised by the Title Company between the expiration
of the Feasibility Period and the Closing and (b) not disclosed by the Title
Company or otherwise known to Buyer prior to the expiration of the Feasibility
Period; provided that Buyer must notify Seller of such objection to title within
two (2) Working Days of being made aware of the existence of such exception. If
Buyer sends a Gap Notice to Seller, Buyer and Seller shall have the same rights
and obligations with respect to such notice as apply to a Notice of Title
Objection under Section 5.1.1 above.
5.2 Feasibility Period.
5.2.1 For the period commencing on the Effective Date and
expiring on the date which is sixty (60) days after the Effective Date, but in
no event later than October 15, 2003 (the "Feasibility Period"), Buyer and
Buyer's Agents shall have the right to enter the Real Property and to conduct
and carry out any and all inspections, tests and studies that Buyer deems
appropriate in its evaluation of the physical condition of the Property, the
compliance of the Property with applicable laws, and the suitability of the
Property for Buyer's intended use, as Buyer deems appropriate in its sole
discretion. Buyer shall be allowed until 5:00 P.M. (Pacific Time) on the last
day of the Feasibility Period to deliver to Seller, with a copy also to be
delivered to Escrow Agent and to Seller's counsel designated in Section 14
hereof, a written notice of Buyer's election to purchase the Property ("Buyer's
Notice"). Buyer's failure to deliver the Buyer's Notice within the Feasibility
Period shall conclusively be deemed Buyer's election not to purchase the
Property and to terminate the Agreement.
5.2.2 During the Feasibility Period, Buyer and Buyer's
Agents shall be granted a right of entry on the Real Property to perform such
soil, engineering and geological tests and other physical inspections, including
building systems and components, to make such other reports as Buyer shall deem
appropriate and for any other purpose related to Buyer's proposed use of the
Property. Buyer's entry onto the Real Property as provided in this Section 5.2
is referred to herein as the "Inspection." Buyer's right of entry upon the Real
Property for the purposes of the Inspection shall be subject to, and Buyer
agrees to perform, each of the following conditions and covenants, all of which
shall survive the termination of this Agreement or delivery of the Deed (as
hereinafter defined) and the Closing:
(i) Buyer shall pay all costs, expenses,
liabilities and charges incurred by Buyer related to Buyer's entry.
(ii) Buyer, at Buyer's sole cost, shall repair
all damage or injury caused by Buyer or Buyer's Agents in connection with any
such inspection or entry and shall return the Real Property to the condition
existing prior to such entry, it being understood, however, that Buyer shall not
be responsible for damage due to the mere discovery of a pre-
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existing condition, provided Buyer shall be responsible for any exacerbation of
a pre-existing condition resulting from Buyer's activities.
(iii) Any such entry upon the Real Property shall
be upon no less than 24 hours advance notice to Seller and shall be at
reasonable times during normal business hours and shall not unreasonably
interfere with the Seller's and/or Magma's operations on the Real Property.
Seller shall have the right to accompany Buyer and Buyer's Agents during any
entry upon the Real Property and to require that Buyer and Buyer's Agents comply
with Seller's reasonable security procedures.
(iv) Buyer shall keep the Real Property free and
clear of all liens arising out of Buyer's activities conducted upon the Real
Property.
(v) Buyer shall indemnify and hold Seller
harmless from any lien, loss, claim, liability, or expense, including reasonable
attorneys' fees and costs, directly arising out of or in connection with the
Inspection. Such obligation to indemnify and hold Seller harmless shall survive
Closing or any termination of this Agreement.
(vi) Buyer shall provide (or cause Buyer's Agents
to provide) liability insurance with a combined single limit liability of not
less than Five Million Dollars ($5,000,000), either under Buyer's policy or such
insurance provided by Buyer's Agents, and which liability insurance shall cover
all activities performed by Buyer or Buyer's Agents, in connection with the
Inspection activities. Seller shall be named as an additional insured upon such
insurance. Buyer shall provide proof of such insurance in the form of a
certificate of insurance prior to, and as a condition of, any such entry.
(vii) Buyer shall not conduct any invasive testing
of the Real Property without Seller's prior written approval, which shall
include a work plan acceptable to Seller. Prior to performing any environmental
tests or studies on the Real Property beyond the scope of work generally
performed in a "Phase I" environmental property assessment study, Buyer shall
notify Seller of the scope of work intended to be performed and shall provide
Seller an opportunity to confer, either directly or through Seller's
consultants, with Buyer's environmental consultants in order to determine
whether to consent to any sampling or testing of surface or subsurface soils,
surface water or ground water. Seller shall not unreasonably withhold consent to
any inspections of the existing Improvements (including asbestos testing)
requested to be performed by Buyer. Seller may elect to deny Buyer permission to
conduct invasive testing or other inspections of the soils, surface water or
ground water based on Seller's good faith determination, in its sole discretion,
that such inspections are inadvisable, including without limitation for any of
the following reasons: (A) Seller's environmental consultants object to the
methodology or procedures of the inspections proposed, (B) or such inspections
otherwise do not satisfy the requirements set forth in this Section 5. In any
event, if Seller has not consented or refused to consent in writing to such
environmental tests or studies within three (3) Working Days of Buyer's written
notification to Seller requesting such consent, Seller shall be deemed to have
refused to consent to such tests and/or studies. Prior to the Closing, all
information derived from Buyer's tests and test results shall, to the extent
permissible under
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existing law, remain confidential and shall not be disclosed to any party other
than as is necessary to consummate the transaction contemplated hereby or to
exercise Buyer's rights hereunder including, without limitation, to Buyer's
counsel and its consultants, and to Buyer's prospective lenders and partners, if
any, or as required to comply with any applicable Laws. At Seller's request,
Buyer shall provide Seller with copies of all reports and test results relating
to Buyer's tests and evaluations of the environmental or physical condition of
the Real Property prior to the Closing. Buyer shall obtain all consultants'
consent to the foregoing as a part of any retention agreement with the
consultant. Seller's rights to such reports and test results relating to the
environmental or physical conditions of the Real Property shall survive the
Closing and recording of the Deed from Seller to Buyer. Buyer shall bear the
costs and expenses with respect to its feasibility studies hereunder, including,
but not limited to, all environmental matters and investigations.
6. Buyer's Covenants, Representations, Warranties and
Acknowledgments. Buyer hereby represents and warrants to Seller and covenants
with Seller as follows:
6.1 Authority. Subject to Section 7.1.6, below, Buyer has
the power and authority to enter into and to perform all of Buyer's obligations
pursuant to this Agreement, and to purchase the Property on the terms and
conditions set forth herein. No consent of any third party is required in order
for Buyer to perform any of its obligations hereunder. Buyer will finance the
purchase of the Property using Buyer's own funds, and no third party financing
shall be required in order for Buyer to consummate its purchase of the Property.
6.2 No conflict. This Agreement and Buyer's purchase of
the Property hereunder do not violate any material terms or provisions of any
contract to which Buyer is a party.
6.3 Confidentiality and Exclusivity.
6.3.1 Definitions. As used herein, the following
terms have the meanings set forth below: (i) the term "Information" shall mean
all information relating to the products, business, assets, financial condition
or prospects of 3Com which has been or may hereafter be furnished to Buyer; and
(ii) the term "Confidential Information" shall mean all Information which 3Com
protects against unrestricted disclosure to others and which: (i) if in written
or other tangible form, is clearly designated as "Confidential" or
"Proprietary"; and (ii) if disclosed orally, is identified as confidential at
the time of its disclosure and reduced to a writing designating such Information
as "Confidential" which is delivered to Buyer promptly following such oral
disclosure. By way of illustration, but not limitation, Confidential Information
may include designs, structures, processes, financial information and data
regarding suppliers and customers.
6.3.2 Non-Disclosure. Until the Closing, Buyer
agrees, with respect to any Confidential Information received by it from 3Com:
(i) to hold the Confidential Information in confidence and use it only for the
purposes previously stated (i.e. for the purpose of evaluating and effecting the
proposed purchase and sale transaction between the parties hereto); (ii) to use
the same methods and degree of care to prevent disclosure of the Confidential
Information as it uses to prevent disclosure of its own proprietary and
confidential information; (iii) not to disclose
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any Confidential Information to any third party (other than directors and
officers of Buyer, employees of Buyer involved directly with the proposed
transaction and counsel and financial advisors to Buyer, all of whom shall be
informed of the confidential nature of the Confidential Information), without
the prior written consent of 3Com; and (iv) if this Agreement is terminated for
any reason, to promptly return the Confidential Information received in any
tangible form to 3Com at the request of 3Com and to retain no reproductions,
copies, extracts or summaries of any Confidential Information.
6.3.3 Exclusivity. Commencing on the Effective
Date and through the date this Agreement is terminated or the parties proceed to
Closing, Buyer agrees that it shall not review, tour, offer to purchase or
otherwise conduct negotiations or discussions with any party for the possible
lease or purchase of real property in Santa Xxxxx, San Mateo and/or Alameda
Counties other than the Property which is comparable to the Property.
6.4 Limitations. Buyer shall not be obligated to treat
Information as Confidential Information if such Information: (i) was rightfully
in Buyer's possession or was rightfully known to Buyer prior to receipt from
3Com; (ii) is independently developed by Buyer, provided that the burden of
proof of such independent development shall be on Buyer; (iii) is or becomes
publicly known WITHOUT the fault of Buyer; (iv) is or becomes rightfully
available to Buyer without confidential restriction from a source not bound by a
confidentiality obligation to 3Com; or (v) is required to be disclosed pursuant
to court or government action provided, however, that 3Com is given reasonable
prior notice of such disclosure. The obligations of confidentiality and other
restrictions imposed under this Agreement shall terminate with respect to each
item of Confidential Information one (1) year from the date of its delivery to
Buyer.
6.5 "AS IS" Purchase. Seller shall deliver the Property
at the Closing with the interior of the Buildings in its "AS IS" condition.
Except for and subject to the representations and warranties of Seller as are
expressly set forth in this Agreement or in the Deed (as hereinafter defined),
if any, (a) Buyer acknowledges and agrees that Buyer is acquiring the Property
in its "AS IS" condition, WITH ALL FAULTS, IF ANY, AND WITHOUT ANY WARRANTY,
EXPRESS OR IMPLIED, and (b) neither Seller nor any agents, representatives, or
employees of Seller have made any representations or warranties, direct or
indirect, oral or written, express or implied, to Buyer or Buyer's Agents with
respect to the Property or its operation, including without limitation the
square footage of the Land or the Improvements thereon, the condition of the
Property, its fitness for any particular purpose, or its compliance with any
laws, Seller expressly disclaims any such representations or warranties and
Buyer is not aware of and does not rely upon any such representation or warranty
of any other party. Buyer acknowledges that the Feasibility Period will have
afforded Buyer an adequate period of time and the opportunity to make such
inspections (or have such inspections made by consultants) as it desires of the
Property and all factors relevant to its use, and that Buyer has elected to go
forward with the purchase of the Property based on such examinations and
inspections as Buyer has deemed appropriate to make. Buyer agrees that, except
as specifically provided in Section 3.1 of this Agreement, Seller has not made,
does not make and specifically disclaims any representations, warranties,
covenants, agreements or guaranties of any kind or character whatsoever, whether
express or implied, oral or written, past, present or future, concerning the
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Property and its operation, including without limitation, (a) the value of or
income derived from the Property; (b) the suitability of the Property for
Buyer's use, including without limitation any future development of the Property
and the availability of utilities necessary to service the Property; (c) the
habitability, merchantability, profitability, marketability or fitness for a
particular purpose of the Property; (d) the nature, quality or condition of the
water, drainage, undershoring, subsurface, soil and geology of the Property; (e)
the nature, quality or condition of the interior, exterior and structure of all
Improvements, including without limitation the square footage, state (or lack)
of repair and absence of latent defects; (f) the compliance of or by the
Property or its operation with all applicable law, rules, ordinances or
regulations of any applicable governmental authority or entity, including
without limitation any and all building codes, Environmental Laws (as defined in
Section 6.5(b), below), land use laws and the Americans with Disabilities Act of
1990; (g) the presence or absence of hazardous materials at, on, under or
adjacent to the Property; (h) the conformity of the Property with and the status
of all zoning requirements, permitting requirements and other entitlements
relevant to the use or contemplated use of the Property; and (i) the conformity
of the Improvements to any plans or specifications for the Property, including
any such plans and specifications included in the Property Documents.
BUYER ACKNOWLEDGES AND AGREES THAT ANY INFORMATION MADE AVAILABLE TO
BUYER OR PROVIDED OR TO BE PROVIDED BY OR ON BEHALF OF SELLER WITH RESPECT TO
THE PROPERTY WAS OBTAINED FROM A VARIETY OF SOURCES AND THAT NEITHER SELLER NOR
ITS AGENTS HAVE MADE ANY INDEPENDENT INVESTIGATION OR VERIFICATION OF SUCH
INFORMATION AND MAKES NO REPRESENTATIONS AS TO THE ACCURACY OR COMPLETENESS OF
SUCH INFORMATION EXCEPT AS MAY OTHERWISE BE EXPRESSLY PROVIDED HEREIN. BUYER
FURTHER ACKNOWLEDGES AND AGREES THAT TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE
SALE OF THE PROPERTY AS PROVIDED FOR HEREIN IS MADE ON AN "AS-IS" CONDITION AND
BASIS, WITH ALL FAULTS.
The provisions of this Section 6.4 shall survive the Closing and the
delivery of the Deed.
6.6 Release of Claims.
(a) From and after the Closing, Buyer hereby
completely releases and forever discharges and covenants not to xxx Seller and
Seller's affiliates, employees, successors, assigns, heirs, agents, and
representatives from and against all claims, liabilities, demands, orders,
governmental requests or requirements or directives, judgments, damages, losses
and costs (collectively, "Claims") arising from or related to the following: (i)
any Hazardous Materials in, on, beneath, discharged from, migrating from,
discharged to or migrating to the Real Property, including the soil or
groundwater thereof, at any time; (ii) any use, generation, handling, treatment,
storage, transportation or disposal of Hazardous Materials at or from the Real
Property; and (iii) any of the matters referred to in Section 6.4 above or any
other latent or patent defect affecting the Real Property (collectively, the
"Released Matters"); provided, however, that subject to the limitations on
Buyer's remedies set forth in Section 11.2 hereof the
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Released Matters shall not include (x) Claims arising from Hazardous Materials
placed at on the Real Property by Seller during the period during which Seller
held title to the Property, or (y) Claims arising from any breach of an express
representation or warranty by Seller under Section 3.1 hereof. In connection
with such waiver and relinquishment, Buyer acknowledges that it is aware that it
hereafter may discover Claims or facts in addition to or different from those
which it now knows or believes to exist with respect to the Released Matters,
but that it is its intention to fully, finally and forever to settle and release
all of the Released Matters in accordance with the provisions of this Section
6.5, and the release set forth herein shall be and remain in effect as a full
and complete release notwithstanding the discovery or existence of any such
additional or different Claims or facts. The foregoing release of Claims shall
be binding on Buyer and its successors and assigns and shall survive the
Closing.
(b) As used in this Agreement, the term
"Hazardous Materials" means any material, waste, chemical or byproduct that is
or hereafter is defined or designated under Environmental Laws (as defined
below) as a pollutant or as a contaminant, a hazardous or toxic substance, waste
or material, or any other unwholesome, hazardous, toxic, or radioactive
substance, waste, material, chemical or byproduct, or which is listed, regulated
or restricted by any Environmental Law (including without limitation, petroleum
hydrocarbons and any distillates or factions thereof, polychlorinated biphenyls,
and asbestos containing materials ("ACM")). As used herein, the term
"Environmental Laws" means any applicable federal, state, local or foreign law
(including common law), statute, regulation, rule, ordinance, permit, license,
order, requirement, agreement or approval, or any determination, judgment,
directive or order of any executive or judicial authority at any federal, state
or local level (whether now existing or subsequently adopted or promulgated)
relating to pollution or the protection of the environment, natural resources,
flora, fauna, or public or worker health and safety.
6.7 No Title Warranty. Nothing in this Agreement or in
any instrument delivered by Seller to Buyer shall be construed as a warranty or
representation by Seller, either express or implied, concerning Seller's title
to the Property, and Owner makes no such warranty or representation. Buyer is
relying solely upon the Title Report, the Title Policy and Buyer's own
investigations respecting Seller's title to the Property.
7. Conditions Precedent.
7.1 Conditions Precedent to Buyer's Obligations. The
Closing and Buyer's obligations under this Agreement to purchase the Property
shall be subject to the satisfaction, prior to the times prescribed herein, of
the following conditions, with Buyer to retain the right to waive, in writing,
in whole or in part, any of the following conditions at or prior to the time
prescribed herein for approval or disapproval by Buyer, and such waiver may be
made by Buyer at or prior to the Closing in Buyer's sole and absolute
discretion:
7.1.1 Accuracy of Representation. All of the
representations and warranties of Seller contained in this Agreement shall have
been true and correct in all material respects when made, and shall be true and
correct in all material respects on the date of Closing with the same effect as
if made on and as of such date.
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7.1.2 Performance. Seller shall have performed,
observed and complied with all material covenants, agreements and conditions
required by this Agreement to be performed, observed and complied with on its
part prior to or as of the Closing.
7.1.3 Closing Date. The Closing shall have
occurred on or before the Closing Date (as defined in Section 8.1 hereof).
7.1.4 Documents and Deliveries. All instruments
and documents required on Seller's part to effectuate the Closing and the
transactions contemplated hereby shall be delivered to Buyer or the Escrow
Agent, as required hereby, and shall be in form and substance consistent with
the requirements herein.
7.1.5 Title Policy. At the Closing, the Title
Company shall have provided to Buyer a standard owner's policy of title
insurance (the "Title Policy"). If requested by Buyer, the Title Policy shall
include "extended" coverage and/or such additional endorsements (to be obtained
at Buyer's sole expense) as Buyer has requested during the Title Objection
Period and that have been agreed upon before expiration of the Title Objection
Period. The Title Policy shall be dated as of the Closing and shall insure
Buyer's fee simple title to the Real Property in the amount of the Purchase
Price, subject only to the Permitted Exceptions.
7.1.6 Due Authorization. Buyer's agreement to
purchase the Property from Seller is conditioned upon Buyer's obtaining approval
of this Agreement by Buyer's Board of Directors, on or before the date which is
ten (10) days after the Effective Date. In the event such approval is not
obtained at such time, Buyer shall immediately notify Seller in writing, and
this Agreement shall terminate and the parties shall have no further rights and
obligations hereunder excepting only those which by their express terms survive
the termination of this Agreement.
7.2 Conditions Precedent to Seller's Obligations. The
Closing and Seller's obligations under this Agreement to sell the Property shall
be subject to the satisfaction, prior to the times prescribed herein, of the
following conditions, with Seller to retain the right to waive, in writing, in
whole or in part, any of the following conditions at or prior to the time
prescribed herein for approval or disapproval by Seller:
7.2.1 Accuracy of Representations. All of the
representations and warranties of Buyer contained in this Agreement shall have
been true and correct in all material respects when made, and shall be true and
correct in all material respects on the date of Closing with the same effect as
if made on and as of such date.
7.2.2 Performance. Buyer shall have performed,
observed and complied with all material covenants, agreements and conditions
required by this Agreement to be performed, observed and complied with on its
part prior to or as of the Closing hereunder.
7.2.3 Closing Date. The Closing shall have
occurred on or before the Closing Date (as defined in Section 8.1 hereof).
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7.2.4 Documents and Deliveries. All instruments
and documents required on Buyer's part to effectuate the Closing and the
transactions contemplated hereby shall be delivered to Seller or the Escrow
Agent, as required hereby, shall be in form and substance consistent with the
requirements herein, and all funds to be deposited into the Escrow pursuant
hereto shall have been timely deposited by Buyer.
7.2.5 Due Authorization. Seller's agreement to
sell the Property to Buyer is conditioned upon Seller's obtaining approval of
this Agreement by Seller's Board of Directors, on or before the date which is
ten (10) days after the Effective Date. In the event such approval is not
obtained at such time, Seller shall immediately notify Buyer in writing, and
this Agreement shall terminate and the parties shall have no further rights and
obligations hereunder excepting only those which by their express terms survive
the termination of this Agreement.
7.3 Failure of Conditions.
7.3.1 Failure of Conditions Benefiting Buyer. If
any material conditions set forth in Section 7.1 hereof are not satisfied or
waived by Buyer in writing at or prior to the times prescribed therein, then
Buyer shall have the option, in addition to its other rights and remedies
hereunder, to decline to proceed with the Closing until such conditions are
satisfied or, at Buyer's option, to terminate this Agreement, and each party
shall maintain its remedies against the other party for any default by such
party as provided in and limited by Section 11 of this Agreement. If Buyer
believes that any condition to Closing has not been satisfied, then Buyer
immediately shall notify Seller thereof. Buyer acknowledges that certain
conditions precedent set forth in Section 7.1 hereof may not be under Seller's
control, and the mere failure of a condition precedent to be satisfied shall not
by itself be deemed to constitute a default by Seller hereunder. In the event
this Agreement is terminated due to the failure of any of Buyer's conditions
precedent, all obligations, liabilities and rights of the parties hereunder
shall terminate excepting any obligations which expressly survive the Closing or
termination hereof, and Buyer shall promptly return to Seller all documentation
delivered by Seller to Buyer and shall provide copies to Seller of all reports
and studies obtained or developed by Buyer with respect to the Property, at no
cost to Seller.
7.3.2 Failure of Conditions Benefiting Seller. If
any material conditions set forth in Section 7.2 hereof are not satisfied or
waived by Seller in writing at or prior to the times prescribed therein, then
Seller shall have the option, in addition to its other rights and remedies
hereunder, to decline to proceed with the Closing until such conditions are
satisfied or, at Seller's option, to terminate this Agreement, and each party
shall maintain its remedies against the other party for any default by such
party as provided in and limited by Section 11 of this Agreement. If Seller
believes that any condition to Closing has not been satisfied, then Seller
immediately shall notify Buyer thereof. Seller acknowledges that certain
conditions precedent set forth in Section 7.2 hereof may not be under Buyer's
control, and the mere failure of a condition precedent to be satisfied shall not
by itself be deemed to constitute a default by Buyer hereunder. In the event
this Agreement is terminated due to the failure of any of Seller's conditions
precedent, all obligations, liabilities and rights of the parties hereunder
shall terminate excepting any obligations which expressly survive the Closing or
termination hereof, and Buyer
17
shall promptly return to Seller all documentation delivered by Seller to Buyer
and shall provide copies to Seller of all reports and studies obtained or
developed by Buyer with respect to the Property, at no cost to Seller.
8. Closing; Deliveries.
8.1 Timing of Closing. The consummation of the
transaction contemplated hereby (the "Closing") shall be held on October 31,
2003 (the "Closing Date"), at 9:00 o'clock a.m. at the offices of the Title
Company (or on such earlier date and time, at such other location, as shall be
mutually agreed to by Seller and Buyer). At the Closing, Seller and Buyer shall
have made the Closing deliveries set forth in, respectively, Sections 8.2, 8.3
and 8.4, the performance of which obligations shall be concurrent conditions.
Buyer shall have the right to move the Closing to an earlier date by giving
Seller at least three (3) Working Days advance notice.
8.2 Seller's Closing Deposits. On or prior to the Closing
Date, Seller shall deliver or cause to be delivered into the Escrow the
following:
8.2.1 A duly executed and acknowledged grant deed,
in substantially the form attached hereto as EXHIBIT "B" (the "Deed"), conveying
the Real Property to Buyer subject only to the Permitted Exceptions.
8.2.2 A duly executed original Xxxx of Sale for
the Personal Property to be transferred to Buyer, in the form attached hereto as
EXHIBIT "C" (the "Xxxx of Sale")
8.2.3 Two (2) duly executed original counterparts
of an assignment assigning to Buyer all Seller's right, title and interest in
the Magma Lease, in the form attached hereto as EXHIBIT "D" (the "Assignment of
Lease").
8.2.4 Two duly executed original counterparts of
an assignment assigning to Buyer all Seller's right, title and interest in the
Assigned Contracts and the Intangibles, in the form of EXHIBIT "E" hereto (the
"Assignment of Intangibles").
8.2.5 Originals or copies of the Magma Lease and
Assigned Contracts to the extent not previously delivered to Buyer.
8.2.6 An estoppel certificate executed by Magma,
in substantially the form required under the Magma Lease, dated no earlier than
forty five (45) days prior to the Closing.
8.2.7 A certification and affidavit, duly executed
by Seller, as required by the Foreign Investment in Real Property Tax Act of
1980, as amended, and California Withholding form 593.
8.2.8 Title affidavits and indemnities and such
other documents reasonably required by the Title Company to issue the Title
Policy and endorsements required by Buyer.
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8.2.9 A certificate executed by Seller remaking as
of the Closing Date the Seller's representations and warranties in Section 3.1.
8.2.10 The original LC (as defined in Section
9.1.4, below).
8.2.11 All other instruments and documents,
affidavits reasonably required to effectuate this Agreement and the transactions
contemplated thereby.
8.3 Buyer's Closing Deposits. On or prior to the Closing
Date, Buyer shall deposit into the Escrow for delivery to Seller at the Closing
the following:
8.3.1 A wire transfer in the amount required under
Section 2 hereof (subject to the adjustments and prorations provided for in this
Agreement) for delivery to Seller or to the order or account of Seller or to
such other person or persons as Seller shall designate in writing.
8.3.2 Two (2) original counterparts of the
Assignment of Lease, duly executed by Buyer.
8.3.3 Two (2) original counterparts of the
Assignment of Intangibles, duly executed by Buyer.
8.3.4 A certificate executed by Buyer reaffirming
the Buyer's representations and warranties in Article 6.
8.3.5 Such other documents, affidavits and
indemnities as reasonably may be required by the Title Company or the Escrow
Agent to consummate the transactions contemplated hereby.
8.4 Joint Deposits. On or prior to the Closing Date,
Buyer and Seller each shall deposit into the Escrow the following:
8.4.1 A closing statement ("Closing Statement")
executed by Seller and Buyer.
8.4.2 A notice letter to Magma (the "Tenant") in
the form of EXHIBIT "F" hereto.
9. Apportionments; Taxes; Expenses.
9.1 Apportionments and Prorations. At the Closing the
following items and any other items customarily prorated in similar transactions
shall be adjusted and apportioned by credits to the appropriate party on the
Closing Statement as of the end of the day (the "Adjustment Date") immediately
prior to the date of Closing (unless otherwise specified below), it being hereby
acknowledged and agreed, that all items of income and expense for the period
prior to the end of the Adjustment Date shall be for the account of Seller and
all items of income and expense for the period following the Adjustment Date
shall be for the account of Buyer:
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9.1.1 Taxes and Other Expenses. The parties agree
that as between Buyer and Seller, general real estate taxes, personal property
taxes and ad valorem taxes (collectively, "Taxes"), as well as utility,
maintenance and other operating expenses (collectively with taxes, "Property
Expenses") for periods prior to the Closing shall be Seller's sole
responsibility, and Property Expenses for the period from and after the Closing
shall be Buyer's sole responsibility, subject to the following provisions of
this Section 9.1.1. If and to the extent that the final amounts of any Property
Expenses are unavailable at the Closing (including, but not limited to, utility
charges for which final meter readings cannot be made), Seller and Buyer shall
adjust the same based upon a reasonable estimate of that item and a readjustment
thereof as of the Adjustment Date will be made as soon as the final amounts are
ascertainable, with the party owing sums following such post-closing adjustments
paying same to the other within ten days following such readjustment; provided,
however, that with respect to all Property Expenses other than Taxes, the
parties agree to reconcile such amounts within ninety (90) days after the
Closing, and provided further, that the parties shall make no such post-closing
adjustment if the aggregate amount of such adjustments is less than $500.
Notwithstanding the foregoing, nothing herein shall be deemed to assign to Buyer
any right of Seller to appeal or apply for a reduction in Taxes for periods
attributable prior to the Closing, and Seller shall be entitled to pursue any
and all such appeals after the Closing at its expense, and Buyer expressly
disclaims any interest whatsoever in any tax reductions or credits obtained by
Seller in connection therewith. In the event any such appeal or application by
either party results in a refund to Buyer of Taxes attributable to the period
before Closing, then Buyer shall pay such amounts to Seller promptly after
receipt, reduced by a percentage of Buyer's expenses in connection with such
appeal or application equal to the percentage Seller's portion of such refund
bears to the entire Tax refund paid to Buyer. In the event any such appeal or
application by either party results in a refund to Seller of Taxes attributable
to the period after Closing, then Seller shall pay such amounts to Buyer
promptly after receipt, reduced by a percentage of Seller's expenses in
connection with such appeal or application equal to the percentage Buyer's
portion of such refund bears to the entire Tax refund paid to Seller.
9.1.2 Assigned Contracts. To the extent there are
any unpaid monetary obligations of Seller with respect to any of the Assigned
Contracts as of the Closing Date, such obligations shall be included within the
Property Expenses and apportioned between Buyer and Seller as provided in
Section 9.1.1, above.
9.1.3 Rent. Rent under the Magma Lease shall be
apportioned as of the Closing, to the extent such rent has actually been
collected as of such date. Seller agrees to credit Buyer at Closing for one (1)
month's Base Rent previously collected by Seller and applicable to the first
calendar month of the lease term occurring after the "Free Rent Period", as
defined in the Magma Lease, so long as the Closing occurs prior to such Free
Rent Period. Notwithstanding the foregoing, all other components of "Rent" under
the Magma Lease shall be apportioned as of the Closing. If Seller collects or
receives any rent payments which properly belong to Buyer, Seller shall
immediately pay such amounts to Buyer. If Buyer collects or receives any rent
payments which properly belong to Seller, Buyer shall immediately pay such
amounts to Seller.
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9.1.4 Security Deposits. Buyer and Seller agree
and acknowledge that the only security deposit held for a Lease on the Property
is a $100,000 deposit under the Magma Lease, held by Seller in the form of a
letter of credit (the "LC"). Seller shall deliver the original LC to Buyer
through Escrow at Closing, and shall cooperate with Buyer and shall make
commercially reasonable efforts to cause the transfer to Buyer of the
beneficiary's rights under the LC, provided that if Seller fails to achieve the
transfer of such letters of credit, Seller shall not be in default hereunder,
and in no event shall such failure delay or prevent the Closing. Seller's
obligations under this Section 9.1.4 shall survive the Closing.
9.1.5 Other Tenant Charges. Notwithstanding
Section 9.1.1 and Section 9.1.2 above, any amounts payable by the Tenants under
the Magma Lease for taxes, common area expenses, operating expenses, or
additional charges of any other nature relating to the Property, if any, shall
be prorated as of the Closing ("Expense Reimbursements"), with Seller retaining
rights to Expense Reimbursements relating to periods before the Closing and
Buyer being entitled to Expense Reimbursements relating to periods after the
Closing. If the Expense Reimbursements are required to be reconciled by the
landlord at the end of the calendar year or other specified time period, Buyer
shall perform such reconciliation as and when required and shall deliver a copy
thereof to Seller. In such event, Seller shall reimburse Buyer, or Buyer shall
reimburse Seller, as appropriate, for any amounts that such party is responsible
to pay or is entitled to receive as the result of underpayments or overpayments
of Expense Reimbursements.
9.1.6 Lease Commissions and Allowances. Seller
shall remain liable for the obligation to pay for all leasing commissions
payable in connection with the Magma Lease (and any other leases entered into by
Seller pursuant to the terms of this Agreement) pursuant to the terms of such
lease and any commission agreements binding on Seller with respect thereto;
provided, however, that Seller shall not be liable to Buyer, nor shall Buyer
receive a credit at Closing, for any free rent period under the Magma Lease (or
any other leases entered into by Seller pursuant to the terms of this Agreement)
to the extent such period occurs after the Closing.
9.2 Expenses. The expenses and costs of the transactions
contemplated by this Agreement shall be borne by the parties as follows, all of
which obligations shall survive the Closing:
9.2.1 Advisors. Except as otherwise provided in
this Agreement, each party will pay all its own expenses incurred in connection
with this Agreement and the transactions contemplated hereby, including, without
limitation, (a) all costs and expenses stated herein to be borne by such party,
and (b) all of its own respective accounting, legal and appraisal fees.
9.2.2 Seller's Expenses. Provided the Closing
occurs, Seller shall pay at the Closing (a) the cost of a standard CLTA Title
Policy, and (b) One Hundred percent (100%) of all State of California and County
of Santa Xxxxx real estate transfer taxes.
9.2.3 Buyer's Expenses. Buyer shall pay all costs,
expenses and fees incurred in connection with its "due diligence" activities.
Provided the Closing occurs, Buyer
21
shall pay at the Closing all premiums associated with any ALTA extended coverage
for the owner's Title Policy, together with the cost of all endorsements
requested by Buyer.
9.2.4 Escrow and Other Expenses. The cost of all
escrow and recording fees shall be shared equally by Buyer and Seller. All other
customary and usual closing costs, if any, shall be borne by the parties in
accordance with the custom of Santa Xxxxx County, as determined by the Title
Company.
9.3 Survival. The obligations of the parties pursuant to
this Section 9 shall survive the Closing and shall not merge into any documents
of conveyance delivered at Closing.
10. Casualty; Condemnation; Insurance.
10.1 Threshold Amount for Termination Option. If, at any
time prior to the date of Closing, Improvements having a replacement value of
$500,000 or more are destroyed or damaged as a result of fire or any other
casualty whatsoever, or as a result of the fact that any portion of the Real
Property is condemned by eminent domain proceedings by any public authority,
then, at Buyer's option, this Agreement shall terminate, and the Deposit shall
be returned to Buyer, and except as expressly set forth herein, neither party
shall have any further liability or obligation to the other hereunder. Buyer
shall exercise such termination right, if at all, within fifteen (15) days after
receipt of written notice from Seller advising Buyer of such casualty or
condemnation.
10.2 Allocation of Compensation. If there is any casualty
or taking as above set forth and if (a) the casualty or condemnation involves
less than $500,000, or (b) Buyer elects not to terminate this Agreement as
provided above, then (1) in the case of condemnation, all eminent domain
proceeds paid or payable to Seller shall belong to Buyer and shall be paid over
and assigned to Buyer at Closing; and (2) in the case of a casualty, Seller
shall assign to Buyer all rights to any insurance proceeds paid or payable under
the applicable insurance policy(ies) and Buyer shall receive a credit at Closing
in the amount of the applicable deductible or co-payment. In no event shall
Seller have any obligation to restore any damage to or loss of the Real Property
caused by or arising from casualty or condemnation, nor shall Buyer have the
right to terminate this Agreement in such a case except as set forth in Section
10.1 hereof.
11. Remedies for Buyer's Default and Seller's Default.
11.1 BUYER'S DEFAULT. FROM AND AFTER THE EXPIRATION OF THE
FEASIBILITY PERIOD, IN THE EVENT THE SALE OF THE PROPERTY AS CONTEMPLATED
HEREUNDER IS NOT CONSUMMATED DUE TO A DEFAULT OF THIS AGREEMENT BY BUYER, THEN
SELLER SHALL, AS ITS SOLE AND EXCLUSIVE REMEDY THEREFOR, HAVE THE RIGHT TO
TERMINATE THIS AGREEMENT, IN WHICH CASE IT SHALL BE ENTITLED TO RECEIVE THE
DEPOSIT, INCLUDING ALL ACCRUED INTEREST THEREON, AS LIQUIDATED DAMAGES (AND NOT
AS A PENALTY) IN LIEU OF, AND AS FULL COMPENSATION FOR, ALL OTHER RIGHTS OR
CLAIMS OF SELLER AGAINST BUYER BY REASON OF SUCH DEFAULT. UPON SUCH DEFAULT BY
BUYER, THIS AGREEMENT SHALL TERMINATE AND THE PARTIES
22
SHALL BE RELIEVED OF ALL FURTHER OBLIGATIONS AND LIABILITIES HEREUNDER, EXCEPT
AS EXPRESSLY SET FORTH HEREIN. BUYER AND SELLER ACKNOWLEDGE THAT THE DAMAGES TO
SELLER RESULTING FROM BUYER'S BREACH WOULD BE DIFFICULT, IF NOT IMPOSSIBLE TO
ASCERTAIN WITH ANY ACCURACY, AND THAT THE LIQUIDATED DAMAGE AMOUNT SET FORTH IN
THIS SECTION 11.1 REPRESENTS BOTH PARTIES' EFFORTS TO APPROXIMATE SUCH POTENTIAL
DAMAGES AND IS REASONABLE UNDER THE CIRCUMSTANCES EXISTING ON THE EFFECTIVE
DATE. NOTHING HEREIN SHALL LIMIT SELLER'S REMEDIES WITH RESPECT TO ANY BREACH OF
ANY COVENANT OF BUYER TO INDEMNIFY, DEFEND, PROTECT OR HOLD HARMLESS SELLER OR
TO REIMBURSE SELLER FOR ANY SUMS OTHERWISE PAYABLE TO SELLER (INCLUDING
ATTORNEYS' FEES AND COSTS), OR TO PROVIDE CERTAIN DOCUMENTS TO SELLER AFTER
TERMINATION AS PROVIDED HEREIN, TO THE EXTENT SUCH COVENANT SURVIVES THE
TERMINATION OF THIS AGREEMENT OR THE CLOSING UNDER THE EXPRESS TERMS OF THIS
AGREEMENT. BUYER AND SELLER SPECIFICALLY ACKNOWLEDGE THEIR AGREEMENT TO THE
FOREGOING LIQUIDATED DAMAGES PROVISION BY INITIALING THIS PARAGRAPH IN THE
APPROPRIATE SPACES PROVIDED BELOW:
Buyer's Initials ________ Seller's Initials ___________
11.2 Seller's Default. In the event that the Closing does
not occur as a result of a breach of any of Seller's covenants, representations,
warranties or other obligations under this Agreement, and if such breach is not
cured within five (5) days after Seller's receipt of written notice specifying
such breach, then Buyer shall have as its sole and exclusive remedy the right to
either (a) terminate this Agreement and to receive a return of the Deposit and
(if Buyer so elects) to file an action for Buyer's actual damages to recover
Buyer's out-of-pocket costs incurred in connection with the transactions
contemplated by this Agreement (but in no event any punitive, consequential, or
special damages) in an amount not to exceed $1,000,000, or (b) seek the remedy
of specific performance to enforce Seller's obligation to convey title to the
Property to Buyer in accordance with the terms and conditions of this Agreement,
it being understood and agreed, however, that the remedy of specific performance
shall not be available to enforce any other obligation of Seller hereunder.
Buyer hereby waives any right or remedy available at law or in equity to seek
damages in excess of $1,000,000 in the event of Seller's breach of any covenant,
representation, warranty or other obligation hereunder. Buyer shall be deemed to
have elected to seek the remedy referred to in clause (a) of this Section 11.2
unless Buyer files suit for specific performance within 30 days after the later
of (i) the scheduled Closing Date, or (ii) the date Seller's cure period has
expired.
12. Further Assurances. Seller and Buyer each agrees to perform
such other acts, and to execute, acknowledge and deliver, prior to, at or
subsequent to the Closing, such other customary instruments, documents and other
materials as the other may reasonably request and as shall be necessary in order
to effect the consummation of the transactions contemplated hereby.
23
13. Possession. Subject to the Magma Lease, possession of the
Property shall be surrendered by Seller to Buyer at Closing. Notwithstanding the
preceding sentence, Buyer acknowledges that Seller shall have a right of access,
for one hundred twenty (120) days after Closing (the "Transition Period"), in
and to the following portions of the Property: (i) PBX room in Building 4, (ii)
network room located in Building 3, both of which are shown on EXHIBIT "G",
attached hereto, and (iii) all telecommunication lines and conduit located in
Building 3 and running from Building 3 to the Property line (collectively the
"Transition Facilities"). Buyer agrees that, during the Transition Period, it
shall make commercially reasonable efforts to provide continuous utilities and
services to the Transition Facilities in connection with Seller's transition of
its operations out of the Improvements, including without limitation
electricity, 24 hour HVAC (for the indoor Transition Facilities), backup
generator and UPS service (collectively, "Services"), at no cost to Seller.
Seller agrees that during the Transition Period, its right to use and access the
Transition Facilities shall be subject to the following conditions:
13.1 Buyer shall not be liable to Seller for any loss,
injury or other damage to Seller arising from or in connection with any
interruption or termination of the Services from any cause, and Seller hereby
waives all such claims against Buyer except to the extent caused by Buyer's
gross negligence or willful misconduct. Notwithstanding any other provision of
this Agreement to the contrary, in no event shall Buyer be liable to Seller for
any indirect, punitive or consequential damages in connection with Seller's use
of the Transition Facilities.
13.2 Seller shall make commercially reasonable efforts not
to interfere with the operations of Buyer or any other tenant or occupant of the
Property in connection with Seller's use of the Transition Facilities.
13.3 During the Transition Period, Seller shall continue
to maintain its liability and property insurance covering the Transition
Facilities in the same form as such facilities have been insured prior to the
Closing. Buyer and Seller agree that their respective property loss risks shall
be borne by their own insurance carriers, and agree to look solely to, and seek
recovery only from, their respective insurance carriers in the event of a
property loss to the extent that such coverage is carried by such party. The
parties each hereby waive all rights and claims against each other for such
losses to the extent of such insurance, and waive all rights of subrogation of
their respective insurers. The parties agree that their respective insurance
policies are now, or shall be, endorsed such that the waiver of subrogation
shall not affect the right of the insured to recover thereunder.
The terms and conditions of this Article 13 shall survive the Closing.
14. Notices. All notices and other communications provided for
herein shall be in writing and shall be sent to the address set forth below (or
such other address as a party may hereafter designate for itself by notice to
the other parties as required hereby) of the party for whom such notice or
communication is intended:
24
If to Seller:
3Com Corporation
0000 Xxxxx Xxxxxxx Xxxxxxx
Xxxxx Xxxxx, XX 00000
Attention.: Real Estate Department
Fax: (000) 000-0000
with a copy to each of:
3Com Corporation
0000 Xxxxx Xxxxxxx Xxxxxxx
Xxxxx Xxxxx, XX 00000
Attention.: Legal Department
Fax: (000) 000-0000
Xxxx Xxxx Xxxx & Freidenrich LLP
0000 Xxxxxxxxxx Xxxxxx
Xxxx Xxxx Xxxx, XX 00000
Attention.: Xxxxxx Xxxxxxx, Esq.
Fax: (000) 000-0000
and:
If to Buyer:
Marvell Semiconductor, Inc.
000 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx Gloss
Fax: (000) 000-0000
with a copy to:
Shartsis, Xxxxxx and Xxxxxxxx LLP
Xxx Xxxxxxxx Xxxxx - 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxx Xxx Xxxxxxx, Esq.
Fax: (000) 000-0000
and:
If to Escrow Agent:
25
First American Title Guaranty Company
0000 Xxxxx Xxxxx Xxxxxx, Xxxxx 000
Xxx Xxxx, XX 00000
Attention: Xxx Xxxx
Fax: (000) 000-0000
Any such notice or communication shall be sufficient if sent by
registered or certified mail, return receipt requested, postage prepaid; by hand
delivery; by overnight courier service; or by confirmed facsimile transmission.
Any such notice or communication shall be effective when received by the
addressee or upon refusal of such delivery, or, in the case of facsimile
transmission, as of the date of the facsimile transmission, provided that any
notice alleging a default by the other party must be sent by both facsimile
transmission and by any of the other methods specified herein.
15. Brokers. Pursuant to a separate agreement between Seller and
Xxxxxxx & Wakefield of California, Inc. ("Seller's Broker"), if and when the
Closing occurs and otherwise subject to such separate agreement, Seller shall be
responsible for a brokerage commission payable to Seller's Broker. Buyer
represents that Buyer has not retained any broker, finder or other party in
connection with the purchase and sale of the Property or any other matter
contemplated by this Agreement other than CPS, A Commercial Real Estate Company,
Inc. ("Buyer's Broker"). Seller agrees to pay Seller's Broker pursuant to its
existing agreement, and Seller shall also pay a commission to Buyer's Broker
pursuant to a separate agreement between Seller and Buyer's Broker. Nothing in
this Agreement shall modify Seller's agreement with Seller's Broker or create
any dual agency by Buyer's Broker. Except as referred to in the preceding
provisions of this Section 15, Buyer and Seller each represents to the other
that it has not dealt with any broker or agent in connection with this
transaction. Each party hereby indemnifies and holds harmless the other party
from all loss, cost and expense (including reasonable attorneys' fees) arising
out of a breach of its representation or undertaking set forth in this Section
15. The provisions of this Section 15 shall survive the Closing or the
termination of this Agreement.
16. Escrow Agent. The Escrow Agent shall hold those Escrow
deliveries as contemplated by Section 8 of this Agreement and conduct the
Closing in accordance with the terms and provisions of the escrow instructions
to be provided to the Escrow Agent by the parties hereto prior to Closing.
17. Fitness Center. For the period ending five (5) years following
the Closing, Buyer shall permit Seller's employees (up to a maximum of 125
employees at any given time) the continued right to use the Fitness Center
located at the Real Property; provided, however, that such rights shall be
personal to 3Com, and shall only be available to 3Com employees working in Santa
Xxxxx County. Such use by Seller's employees shall be permitted subject to
payment of a monthly membership charge not to exceed Thirty Dollars ($30.00) per
month and execution of any reasonable waiver form requested by Buyer or its
agents. Buyer also reserves the right to (i) restrict the hours of usage for
Seller's employees, so long as such use is available from 6 a.m. to 9 p.m.,
Monday through Friday, (ii) to impose reasonable rules and regulations, so long
as the
26
same are consistently applied in a non-discriminatory manner, and (iii)
discontinue operating any Fitness Center altogether. The provisions of this
Section 17 shall survive the Closing and shall be binding on Seller, Buyer and
their respective successors and assigns.
18. California Disclosure Report/Wetlands Disclosure. Seller
acknowledges that the Disclosure Statutes (hereinafter defined) provide that a
seller of real property must make certain disclosures regarding certain natural
hazards potentially affecting the property, as more particularly provided
therein. As used in this Agreement, "Disclosure Statutes" means, collectively,
California Government Code Sections 8589.3, 8589.4 and 51183.5, California
Public Resources Code Sections 2621.9, 2694 and 4136 and any other California
statutes that require Seller to make disclosures concerning the Property. Prior
to the expiration of the Feasibility Period, Seller will deliver to Buyer a
Natural Hazard Disclosure Report for the Property in accordance with the
foregoing statutes (the "Report"). Buyer hereby agrees as follows with respect
to the Disclosure Statutes and the Report: (i) that the delivery of the Report
to Buyer as provided above shall be deemed to satisfy all obligations and
requirements of Seller under the Disclosure Statutes; (ii) that Seller shall not
be liable for any error or inaccuracy in, or omission from, the information in
the Report; (iii) that the Report was provided by Seller for purposes of
complying with the Disclosure Statutes and shall not be deemed to constitute a
representation or warranty by Seller as to the presence or absence in, at or
around the Property of the conditions that are the subject of the Disclosure
Statutes; and (iv) the Report is for Seller and Buyer only and is not for the
benefit of, or to be used for any purpose by, any other party, including,
without limitation, insurance companies, lenders, or governmental agencies. In
addition, Seller hereby discloses to Buyer that a portion of the Land has been
designated as a protected wetlands area. Buyer agrees that Seller has made no
representation or warranty with respect to such portions of the Property, and
agrees to satisfy itself during the Feasibility Period that the existence of a
designated wetlands area, together with jurisdiction over such areas by various
State and Federal governmental agencies, will not adversely affect Buyer's
intended use, development or disposition of the Property.
19. Miscellaneous.
19.1 Assignability. Buyer shall not assign its rights
under this Agreement without Seller's prior written consent. Any assignee of
Buyer shall expressly assume all of the obligations of Buyer under this
Agreement, and any such assignment shall not release Buyer from any of its
obligations hereunder. Notwithstanding the foregoing, Buyer shall have the right
to assign all of its rights and obligations under this Agreement to any entity
wholly owned by Buyer, and to cause such entity to take title to the Property at
the Closing, upon written notice to Seller but without the requirement of
obtaining Seller's consent, and in such event, no such assignment shall operate
to release Buyer from any of its obligations under this Agreement.
19.2 Governing Law; Parties in Interest. This Agreement
shall be governed by the law of the State of California (without regard to is
conflicts of laws principles) and, subject to Section 19.1 hereof, shall bind
and inure to the benefit of the parties hereto and their respective heirs,
executors, administrators, successors, assigns and personal representatives.
27
19.3 Recording. Neither this Agreement nor any notice or
memorandum hereof shall be recorded in any public record. A violation of this
prohibition shall constitute a material breach of this Agreement.
19.4 Time of the Essence. Time is of the essence of this
Agreement.
19.5 Headings. The headings preceding the text of the
sections and subsections hereof are inserted solely for convenience of reference
and shall not constitute a part of this Agreement, nor shall they affect its
meaning, construction or effect.
19.6 Counterparts. This Agreement may be executed
simultaneously in counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.
19.7 Schedules and Exhibits. All Schedules and Exhibits
which are referred to herein and which are attached hereto or bound separately
and initialed by the parties are expressly made and constitute a part of this
Agreement. Such Schedules and Exhibits consist of the following:
Exhibit A: Legal Description of Real Property
Exhibit B: Grant Deed
Exhibit C: Xxxx of Sale
Exhibit D: Assignment of Lease
Exhibit E: Assignment of Intangibles
Exhibit F: Tenant Notice Letter
Exhibit G: Transition Facilities
Schedule A.(3): Excluded Personal Property
19.8 Survival. Unless otherwise expressly stated in this
Agreement, the warranties, representations and covenants of Seller and Buyer
shall terminate as of the Closing and shall be deemed to have merged with the
Deed.
19.9 Entire Agreement; Amendments. This Agreement and the
Exhibits hereto set forth all of the promises, covenants, agreements, conditions
and undertakings between the parties hereto with respect to the subject matter
hereof, and supersede all prior and contemporaneous letters of intent,
agreements and understandings, inducements or conditions, express or implied,
oral or written, except as contained herein. This Agreement may not be changed
orally but only by an agreement in writing, duly executed by or on behalf of the
party or parties against whom enforcement of any waiver, change, modification,
consent or discharge is sought.
19.10 Attorneys' Fees. If there is any legal action or
proceeding between Seller and Buyer arising from or based upon this Agreement,
the unsuccessful party to such action or proceeding shall pay to the prevailing
party all costs and expenses, including reasonable attorneys' fees and
disbursements incurred by the prevailing party in such action or proceeding
28
and in any appeal in connection therewith, and such costs, expenses, attorneys'
fees and disbursements shall be included in and as part of such judgment.
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date first above written.
SELLER:
3COM CORPORATION,
a Delaware corporation
By:_______________________________
Its:_______________________________
BUYER:
MARVELL SEMICONDUCTOR, INC.,
a California corporation
By: _______________________________
Its: ______________________________
29
EXHIBIT A
DESCRIPTION OF THE LAND
30
EXHIBIT B
GRANT DEED
Recorded at the Request of and
When Recorded, Return and
Mail Tax Statements to:
Marvell Semiconductor, Inc.
000 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: ____________________
GRANT DEED
For valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, 3COM CORPORATION, a Delaware corporation ("Grantor") hereby
grants to MARVELL SEMICONDUCTOR, INC., a California corporation ("Grantee") that
certain real property located in the City and County of Santa Clara, California,
more particularly described in EXHIBIT "A" attached hereto and incorporated
herein by this reference ("Property").
The conveyance by Grantor to Grantee pursuant to this Grant Deed is
subject to: (i) a lien securing payment of real estate taxes and assessments not
yet due and payable; and (ii) all covenants, conditions, easements,
restrictions, liens, encumbrances and other exceptions of record as of the date
hereof.
IN WITNESS WHEREOF, Grantor has executed this Grant Deed this ___ day
of October, 2003.
"Grantor"
3COM CORPORATION, a
Delaware corporation
By: ________________________________
Its: _______________________________
[Signature must be Acknowledged]
EXHIBIT C
XXXX OF SALE
For good and valuable consideration, the receipt of which is hereby
acknowledged, 3COM CORPORATION, a Delaware corporation ("Seller"), does hereby
sell, transfer, and convey, without representation or warranty of any kind, to
MARVELL SEMICONDUCTOR, INC., a California corporation ("Buyer"), all of Seller's
right, title and interest in and to certain personal property as described and
as limited more particularly on EXHIBIT "A" hereto and used in connection with
that certain real property described in EXHIBIT "B" attached hereto.
This Xxxx of Sale may be executed in counterparts, which taken
together, shall constitute one and the same agreement.
Dated this __ day of _______, 2003.
SELLER:
3COM CORPORATION,
a Delaware corporation
By: ____________________________________
Its: ___________________________________
BUYER:
MARVELL SEMICONDUCTOR, INC.,
a California corporation
By: ____________________________________
Its: ___________________________________
EXHIBIT "A"
TO
XXXX OF SALE
PERSONAL PROPERTY:
See attached descriptions captioned "Trailer Inventory," "Cube Furniture,"
"Ancillary Furniture," "Building 1 - 5 & Misc.," and "Magma Furniture &
Equipment - Building 6"
EXHIBIT D
ASSIGNMENT OF LEASE
THIS ASSIGNMENT OF LEASE ("Assignment of Lease") is dated and effective
as of this _____ day of October, 2003, and is made by and between 3COM
CORPORATION, a Delaware corporation ("Assignor"), and MARVELL SEMICONDUCTOR,
INC., a California corporation ("Assignee").
RECITALS
This Assignment of Lease is made with reference to the following facts:
A. Concurrently with this Assignment, subject to that certain
Purchase and Sale Agreement dated August 15, 2003 (the "Agreement"), Assignor is
selling to Assignee, and Assignee is purchasing from Assignor, that real
property and related improvements, fixtures and personal property comprising
that certain Building commonly known as 5400-5460 Bayfront Plaza, located in
City and County of Santa Clara, California (the "Property").
B. In connection with such purchase and sale, Assignor desires to
assign and delegate to Assignee, and Assignee desires to assume, all of
Assignor's right, title, interest, duties and obligations in, to and under that
certain Office Lease dated June 19, 2003, between Seller and Magma Design
Automation, Inc. (the "Lease").
NOW, THEREFORE, in consideration of the purchase price paid by Assignee
to Assignor for the Property and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Assignor and Assignee
agree as follows:
1. Assignment. Assignor hereby assigns and delegates to Assignee
all of Assignor's right, title, interest, duties and obligations in, to and
under the Lease.
2. Assumption. Assignee hereby accepts the foregoing assignment
from Assignor and hereby assumes all of the Assignor's obligations, duties,
responsibilities and liabilities under the Lease, and Assignee agrees to pay,
perform and discharge, when due, all of the duties and obligations on the part
of Assignor to be paid, performed or discharged under the Lease attributable to
the period from and after the date hereof. Notwithstanding the foregoing,
Assignor agrees to pay, perform and discharge when due, all of the duties and
obligations on the part of Assignor to be paid, performed or discharged under
the Lease attributable to the period prior to the date hereof.
3. Attorneys Fees. If this Assignment of Lease or the transaction
contemplated herein gives rise to a lawsuit, arbitration or other legal
proceeding between the parties hereto, the prevailing party shall be entitled to
recover its costs and reasonable attorneys' fees in addition to any other
judgment of the court or arbitrator(s).
IN WITNESS WHEREOF, the parties hereto have executed this Assignment of
Lease as of the date first above written.
ASSIGNOR:
3COM CORPORATION,
a Delaware corporation
By: ____________________________________
Its: ___________________________________
ASSIGNEE:
MARVELL SEMICONDUCTOR, INC.,
a California corporation
By: ____________________________________
Its: ___________________________________
EXHIBIT E
ASSIGNMENT OF CONTRACTS
AND INTANGIBLE PROPERTY
THIS ASSIGNMENT OF CONTRACTS AND INTANGIBLE PROPERTY ("Assignment of
Intangibles") is dated and effective as of this _____ day of October, 2003, and
is made by and between 3COM CORPORATION, a Delaware corporation ("Assignor"),
and MARVELL SEMICONDUCTOR, INC., a California corporation ("Assignee").
RECITALS
This Assignment of Intangibles is made with reference to the following
facts:
A. Concurrently with this Assignment, subject to that certain
Purchase and Sale Agreement dated August 15, 2003 (the "Agreement"), Assignor is
selling to Assignee, and Assignee is purchasing from Assignor, that real
property and related improvements, fixtures and personal property comprising
that certain Building commonly known as 5400-5460 Bayfront Plaza, located in
City and County of Santa Clara, California (the "Property").
B. In connection with such purchase and sale, Assignor desires to
assign and delegate to Assignee, and Assignee desires to assume, all of
Assignor's right, title, interest, duties and obligations in, to and under (i)
all Assigned Contracts (as defined in Section 4.1 of the Agreement); (ii) all
assignable existing warranties and guaranties issued to or held by Seller in
connection with the Land or the Improvements; and (iii) all permits, licenses
and governmental approvals applicable to or benefiting the Real Property, to the
extent assignable by Seller to Buyer, but not including any claims for reduction
in property taxes for periods prior to Closing (collectively, the "Intangible
Property").
NOW, THEREFORE, in consideration of the purchase price paid by Assignee
to Assignor for the Property and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Assignor and Assignee
agree as follows:
1. Assignment. Assignor hereby assigns and delegates to Assignee
all of Assignor's right, title, interest, duties and obligations in, to and
under all of the Intangible Property, including without limitation the "Assigned
Contracts" (as defined in the Agreement) set forth on EXHIBIT "A" attached
hereto.
2. Assumption. Assignee hereby accepts the foregoing assignment
from Assignor and hereby assumes all of the Assignor's obligations, duties,
responsibilities and liabilities under the Intangible Property, and with respect
to the Assigned Contracts, Assignee agrees to pay, perform and discharge, when
due, all of the duties and obligations on the part of Assignor to be paid,
performed or discharged under the Assigned Contracts attributable to the period
from and
after the date hereof. Notwithstanding the foregoing, Assignor agrees to pay,
perform and discharge when due, all of the duties and obligations on the part of
Assignor to be paid, performed or discharged under the Assigned Contracts
attributable to the period prior to the date hereof.
3. Attorneys Fees. If this Assignment of Intangibles or the
transaction contemplated herein gives rise to a lawsuit, arbitration or other
legal proceeding between the parties hereto, the prevailing party shall be
entitled to recover its costs and reasonable attorneys' fees in addition to any
other judgment of the court or arbitrator(s).
IN WITNESS WHEREOF, the parties hereto have executed this Assignment of
Intangibles as of the date first above written.
ASSIGNOR:
3COM CORPORATION,
a Delaware corporation
By: ____________________________________
Its: ___________________________________
ASSIGNEE:
MARVELL SEMICONDUCTOR, INC.,
a California corporation
By: ____________________________________
Its: ___________________________________
EXHIBIT "A"
TO
ASSIGNMENT OF CONTRACTS AND INTANGIBLE PROPERTY
ASSIGNED CONTRACTS:
[TO BE ATTACHED PRIOR TO CLOSING]
EXHIBIT F
FORM OF TENANT NOTICE LETTER
_____________, 2003
CERTIFIED MAIL, RETURN RECEIPT REQUESTED
To: __________________________
__________________________
__________________________
__________________________
RE: Assignment of Lease between ________________________, Landlord, and
___________________, Tenant, dated ______________, 2___ for property
located at [INSERT TENANT ADDRESS]
This is to notify you that the Premises have been acquired by, and the
Landlord's interest in the Leases has been assigned to _________________________
("BUYER").
You are further notified that all rental payments under your Leases shall
be paid to [INSERT PROPERTY MANAGER NAME] ("PROPERTY MANAGER"), at
PROPERTY MANAGER
ADDRESS
CITY, STATE ZIP
TELEPHONE:
FACSIMILE:
in accordance with the terms of your Lease unless you are otherwise notified in
writing by Buyer. In addition, please immediately cause all insurance policies
required to be maintained pursuant to your Lease to be changed to name Buyer and
Property Manager as additional insureds or loss payee, as appropriate. Please
send revised certificates of insurance to Property Manager at your earliest
convenience. Please also note that, to the extent any Leases call for a security
deposit, such security deposits have been assigned by Buyer.
If you have any questions, please contact Property Manager at the address
set forth above.
Very truly yours,
_______________________________'
a _____________________________
By:____________________________
Its:___________________________
EXHIBIT G
TRANSITION FACILITIES
SCHEDULE A(3)
EXCLUDED PERSONAL PROPERTY
