Exhibit 10.30
AGREEMENT FOR ASSIGNMENT OF LEASEHOLD INTEREST,
SUBLEASE OF PROPERTY, LEASEBACK OF REAL PROPERTY
AND JOINT ESCROW INSTRUCTIONS
This AGREEMENT FOR ASSIGNMENT OF LEASEHOLD INTEREST, SUBLEASE OF
PROPERTY, LEASEBACK OF REAL PROPERTY, AND JOINT ESCROW INSTRUCTIONS (the
"Agreement") is made and entered into as of this 30th day of September, 1999, by
and between the Board of Trustees of the Xxxxxx Xxxxxxxx Junior University, a
body having corporate powers under the laws of the State of California ("Buyer")
and XXXXXXX-XXXXXXX COMPANY, a California corporation, whose address is Stanford
Research Park, 0000 Xxxxxxxx Xxxxxx, Xxxx Xxxx, Xxxxxxxxxx, 00000-0000,
Attention: Xxxxx X. Xxxxxxxx, CFO, Facsimile No. (000) 000-0000 ("Seller").
R E C I T A L S:
A. By that certain Lease dated November 1, 1959, as amended (the
"Master Lease") Buyer leased certain unimproved real property consisting of
approximately sixteen and three hundred five-one thousandths (16.305) acres,
located in the City of Palo Alto, County of Santa Xxxxx, identified as Santa
Xxxxx County Assessor's Parcel Number 000-00-000, commonly known as 0000
Xxxxxxxx Xxxxxx, Buildings 3, 4, and 5, and more particularly described in
Exhibit A, which is attached hereto and incorporated herein by reference (the
"Leased Land"), to Xxxx County Land Company, a California corporation,
predecessor in interest to Seller. Under Section 31 of the Master Lease (as
amended by Section 6 of the Agreement Amending Ground Lease dated September 15,
1997) Buyer has a right of first refusal with respect to any proposed assignment
or sublease to a third party of Seller's rights thereunder (the "Stanford First
Refusal"). A copy of the Master Lease is attached hereto as Exhibit B and
incorporated herein by reference.
B. Seller has caused to be constructed upon the Leased Land certain
improvements consisting of three (3) light industrial buildings containing in
the aggregate approximately one hundred fifty-five thousand (155,000) gross
square feet (collectively referred to herein as the "Buildings").
C. By that certain Commercial Sub-Sublease (Buildings 3/4/5), dated as
of ___________________, 1997, as amended (the "Sublease"), Seller has subleased
portions of the Leased Land and the Buildings (the "Subleased Premises") to X-X
TSMD, INC., a California corporation, doing business as Stellex. A copy of the
Sublease is attached hereto as Exhibit C and incorporated herein by reference.
D. By that certain Lease and Agreement, dated October 31, 1975 (the
"Morrco Lease"), Seller is also the tenant in possession of that certain
improved real property located adjacent to the Leased Land in the City of Palo
Alto, County of Santa Xxxxx, consisting of approximately eight and four hundred
forty-three one thousandths (8.443) acres, which property is identified as Santa
Xxxxx County Assessor's Parcel Number 000-00-000, commonly known as 0000
Xxxxxxxx Xxxxxx, Xxxxxxxx 0, and more particularly described in Exhibit D, which
is attached hereto and incorporated herein by reference (the "Building 6
Property").
E. Seller has entered into a contract to assign its rights under the
Master Lease to Xxxxxxx Development Partners, LLC ("Xxxxxxx") under an Agreement
for Assignment for Leasehold Interest, Sublease of Property, Leaseback of Real
Property and Joint Escrow Instructions dated August 25, 1999 as amended on
September 13, 1999 ("Xxxxxxx Agreement"), subject to the Stanford First Refusal.
F. Pursuant to notice from Xxxxx X. Xxxxxx, Managing Director of Real
Estate, Stanford Management Company, dated September 27, 1999 Buyer has
exercised the Stanford First Refusal.
G. Accordingly, Seller desires to assign its rights under the Master
Lease to Buyer and Buyer desires to assume all of Seller's obligations under the
Master Lease. In connection with the foregoing, commencing upon the Closing and
continuing for a period of two (2) years thereafter (the "License Term"), Seller
desires to grant to Buyer, and Buyer's successors and assigns, and Buyer desires
to grant to Seller, and Seller's successors and assigns, a mutual and
reciprocal, revocable, non-exclusive license to use those portions of the
driveway described in Exhibit E attached hereto and incorporated herein by
reference (the "Driveway"), which are located on the Building 6 Property for
purposes of ingress and egress to the Leased Land and those portions of the
Driveway that are located on the Leased Land for purposes of ingress and egress
to the Building 6 Property.
H. Seller has entered into a Remediation Agreement dated July 13, 1999
(the "Remediation Agreement") with XXXXX International Incorporated
("Consultant") under the terms of which Consultant will provide professional
environmental services fulfilling Seller's obligations with respect to site
remediation and closure of the Property. A copy of the Remediation Agreement is
attached hereto as Exhibit F and incorporated herein by reference. In connection
with the foregoing, Seller has purchased "Cleanup Cost Cap" insurance and
"Pollution Legal Liability" insurance (collectively referred to herein as the
"Environmental Insurance") for the benefit of Seller, Seller's successors in
interest to the Property, Consultant, and Buyer.
I. Subject to Seller's Option to Terminate (as defined in Section 4(c)
below), Seller desires to assign its rights under the Master Lease to Buyer,
whereupon Seller shall be released and relieved from further liability under the
Master Lease, and to thereupon leaseback the Leased Land and the Buildings from
Buyer until October 31, 2000 (the
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"Leaseback Expiration Date"), and Buyer desires to assume all of Seller's
obligations under the Master Lease and to leaseback the Property to Seller, upon
the terms and conditions set forth in this Agreement.
NOW THEREFORE, in consideration of the mutual covenants and agreements
herein contained and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Buyer and Seller hereby agree that
the terms and conditions of this Agreement and the instructions to First
American Title Guaranty Company ("Escrow Holder") with regard to the escrow
("Escrow") created pursuant hereto are as follows:
AGREEMENT:
1. Certain Basic Definitions. For purposes of this Agreement, the
following terms shall have the following definitions:
(a) "Business Day" means any day that is not (i) a Saturday,
Sunday, (ii) a holiday as defined in the California Government Code, or (iii) an
optional bank holiday as defined in Section 7.1 of the California Civil Code.
(b) "Closing Date" means the date upon which the "Close of
Escrow" (as defined in Section 1(c) below) shall occur.
(c) "Close of Escrow" means the date that the documents
evidencing the transfers contemplated by this Agreement are recorded in the
Official Records and/or delivered to the parties entitled thereto.
(d) "Contingency Period" means the period commencing upon the
date of full execution of this Agreement and ending upon the first of the
following dates to occur (the "Contingency Removal Date"): (i) the date of
Buyer's removal of the due diligence contingency (the "Early Contingency Removal
Date"); or (ii) 5:00 p.m. on September 20, 1999 (the "Final Contingency Removal
Date"). (The actual date of the removal of contingencies by Buyer, whether upon
an Early Contingency Removal Date or upon the Final Contingency Removal Date,
shall be referred to herein as the "Contingency Removal Date").
(e) "Deposit" means the amount of two million five hundred
thousand dollars and no cents ($2,500,000.00).
(f) "Escrow Holder" or "Title Company" means First American
Title Guaranty Company.
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(g) "Escrow Holder's Address" means:
Escrow Number 516364
Attention: Xx. Xxx Xxxxxx
First American Title Guaranty Company
0000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
(h) "Final Closing Date" shall mean the later to occur of the
following dates: (i) September 30, 1999.
(i) "Property" means, except as set forth in the next
sentence, all of Seller's rights to the Leased Land and to the Buildings,
together with all rights, title, and interest possessed by Seller pertaining to
the Leased Land and/or the Buildings in each of the following: (i) legal and
equitable rights of way, easements, servitudes, appurtenances, mineral rights,
licenses, development rights, air rights, and water rights; (ii) improvements
other than the Buildings, if any; and (iii) all licenses, permits, consents,
entitlements, and approvals issued by authorized governmental entities.
Notwithstanding the foregoing, Buyer's right to enter the Building 6 Property
for purposes of ingress and egress to the Leased Land shall be only as set forth
in the Driveway License (as defined in Section 13(g) of this Agreement).
(j) "Purchase Price" means the sum of fifty-nine million
dollars and no cents ($59,000,000.00), unless Seller fails to timely exercise
the Early Exit Option (as defined in Section 8(c) below), in which case the
Purchase Price shall be fifty-six million dollars and no cents ($56,000,000.00)
(the "Adjusted Purchase Price").
(k) "Official Records" means the office of the County Recorder
of Santa Xxxxx, State of California.
(l) "Opening of Escrow" shall have the meaning set forth in
Section 4(a) below.
(m) "Seller's Counsel's Address" means:
Xxxxx X. Xxxxxxx, Esq.
Xxxxxxx & Xxxxxx, ALC
XX Xxx 0000
Xxx Xxxx, Xxxxxxxxxx 00000-0000
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
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(n) "Buyer's Counsel's Address" means:
Xxxxx X. Xxxxxx, Esq.
McCutchen, Doyle, Xxxxx & Xxxxxxx, LLP
0000 Xxxxxx Xxxxx
Xxxx Xxxx, XX 00000
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
(o) "Hazardous Materials" means any hazardous or toxic
materials, substances or wastes, as so defined or classified as of the date of
execution of this Agreement, including without limitation: (i) those materials
identified in Sections 66260.1, et seq. of Title 22 of the California
Administrative Code, Division 4.5, Chapters 10 and 11, as amended from time to
time, (ii) those materials defined in Section 25501 of the California Health and
Safety Code, (iii) any materials, substances or wastes which are toxic,
ignitable, corrosive or reactive and which are regulated by any local
governmental authority, any agency of the State of California or any agency of
the United States Government, (iv) asbestos, (v) petroleum and petroleum based
products, (vi) urea formaldehyde foam insulation, (vii) polychlorinated
biphenyls (PCBs), and (viii) freon and other chlorofluorocarbons.
(p) "Site Closure Certification" means and shall collectively
refer to any site closure certification(s) concerning the Property that Seller
and/or Stellex is required to obtain from the City of Palo Alto Fire Department
and any other governmental agency having jurisdiction thereof (collectively
referred to herein as the "Certifying Agencies") before possession of the
Property, and/or any portions thereof, may legally be surrendered by Seller.
(q) "Closure Certification Date" means either: (i) the date
upon which all Site Closure Certification(s) shall have been obtained by Seller
and/or Stellex; or (ii) if a Site Closure Certification is not legally required
in connection with the surrender of possession of the Property to Buyer by
Seller and Stellex, then Closure Certification Date shall mean the date upon
which Seller and/or Consultant (as defined herein) shall have delivered to Buyer
and to any Certifying Agencies a letter from Consultant certifying same.
2. Sale of Property; Consideration. At the Close of Escrow, the
Purchase Price shall be delivered to Seller, Seller shall transfer, assign, and
convey the Property to Buyer, and Buyer shall acquire the Property from Seller
on the terms and conditions set forth in this Agreement.
3. Payment of Purchase Price. The Purchase Price shall be paid by Buyer
as follows:
(a) Deposit. Simultaneous with Buyer's execution of this
Agreement, Buyer shall deliver the Deposit, or cause the Deposit to be
delivered, to the Escrow Holder,
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in either of the following forms: (i) in cash, by certified or bank cashier's
check made payable to Escrow Holder, or by a confirmed wire transfer of funds
(hereinafter referred to as "Immediately Available Funds"); or (ii) an
unconditional irrevocable special Letter of Credit made payable to Escrow Holder
(the "Letter of Credit").
1. Interest On Deposit. If Buyer elects to deliver
the Deposit to Escrow Holder in the form of Immediately Available Funds, Escrow
Holder shall place such funds into an interest bearing account approved by
Buyer. Any interest earned on the Deposit shall be added to the principal amount
of the Deposit and become part of the Deposit and shall be credited towards the
Purchase Price upon the Close of Escrow.
2. Terms of the Letter of Credit. The Letter of
Credit shall be (i) in a form reasonably satisfactory to Seller; (ii) shall not
terminate or expire prior to July 31, 2000; and (iii) shall be issued by a bank
authorized to do business in the State of California, which (x) is a member of
the Federal Reserve banking system, (y) has a teller window for receiving cash
deposits located within the County of Santa Clara, California, and (z) is
otherwise reasonably acceptable to Seller. Escrow Holder shall hold the Letter
of Credit for the benefit of both Seller and Buyer, subject to the terms of this
Agreement.
3. Escrow Holder to Draw Upon Letter of Credit. If
Buyer elects to deliver the Deposit to Escrow Holder in the form of a Letter of
Credit, unless this Agreement shall have previously been terminated on or before
the Final Contingency Removal Date in accordance with the terms of this
Agreement, Escrow Holder shall, on the first (1st) business day following the
Contingency Removal Date, at the sole cost and expense of Buyer, submit the
Letter of Credit to the issuing bank thereof for payment in full of the face
amount thereof. All funds received by Escrow Holder in satisfaction of the
Letter of Credit shall replace the Letter of Credit as the Deposit herein, and
shall be held by the Escrow Holder subject to the terms of this Agreement.
4. Buyer's Right to Substitute Immediately Available
Funds. Buyer shall have the right, at any time prior to the Contingency Removal
Date, to replace the Letter of Credit by delivering to the Escrow Holder
Immediately Available Funds in the amount of the Deposit, whereupon Escrow
Holder shall deliver the original Letter of Credit to Buyer free from any claim
by Escrow Holder or Seller.
5. Deposit Non-Refundable on Contingency Removal
Date. Upon the Contingency Removal Date, the Deposit shall become
non-refundable, except as otherwise provided in this Agreement. Failure to
timely pay any installment of the Deposit when due shall be an event of default
by Buyer under this Agreement.
6. Deposit as Liquidated Damages. The Deposit
(including any interest accrued thereon) shall be retained by Seller as
liquidated damages pursuant to Section 16 hereof, if the Close of Escrow does
not occur by the Final Closing Date as a result
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of Buyer's default. If the Close of Escrow does not occur for any reason other
than Buyer's default, the Deposit shall be returned to the Buyer.
(b) Closing Funds. At least one (1) business day prior to the
Close of Escrow, Buyer shall deposit or cause to be deposited with Escrow
Holder, in Immediately Available Funds, the balance of the Purchase Price, plus
Escrow Holder's estimate of Buyer's share of closing costs, prorations, and
charges payable by Buyer pursuant to this Agreement.
4. Escrow.
(a) Opening of Escrow. For purposes of this Agreement, the
Escrow shall be deemed opened on the date Escrow Holder shall have received a
fully executed original or originally executed counterparts of this Agreement
from Buyer and Seller (the "Opening of Escrow"), together with Buyer's payment
of the Deposit. Buyer and Seller agree to execute, deliver and be bound by any
reasonable supplemental escrow instructions of Escrow Holder or other
instruments as may reasonably be required by Escrow Holder in order to
consummate the transactions contemplated by this Agreement. Any such
supplemental instructions shall not conflict with, amend or supersede any
portions of this Agreement unless expressly consented or agreed to in writing by
Buyer and Seller.
(b) Close of Escrow. The Close of Escrow shall occur not later
than the Final Closing Date.
(c) Seller's Option to Terminate. Seller, in Seller's sole and
absolute discretion, shall have the option to terminate this contract and cancel
the escrow established herein ("Seller's Option to Terminate") by delivering
written notice thereof to Buyer and Escrow Holder (the "Termination Option
Notice"), whereupon escrow shall cancel and this contract shall terminate,
without further obligation to Buyer on the part of Seller, upon the following
terms and conditions:
1. Time for Exercise of Option. Seller's Option to
Terminate shall expire at 6:00 p.m. Pacific Daylight Time upon the first to
occur of the following dates (the "Option Expiration Date"): (i) the first (1st)
business day following the Final Contingency Removal Date (whether or not there
shall have been established an Early Contingency Removal Date); or (ii) the
second (2nd) business day immediately preceding the Final Closing Date.
2. Effect of Exercise of Option. Notwithstanding any
other provision of this Agreement, if Seller shall exercise Seller's Option to
Terminate, the Escrow Holder shall refund to Buyer all deposits theretofore paid
by Buyer pursuant to this Agreement and Seller shall pay any fees charged by
Escrow Holder as the result of the cancellation of escrow.
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3. Payment of Buyer's Inspection Costs. If this
Agreement should be terminated and escrow canceled prior to the Contingency
Removal Date for any reason other than default hereunder on the part of Buyer,
Seller shall pay to Buyer the amount of one hundred thousand dollars and no
cents ($100,000.00).
5. Condition of Title. Buyer shall accept title to the Property subject
to the standard printed exceptions to such title policy and the following
matters ("Approved Conditions of Title"):
(a) Any lien to secure payment of general and special real
property taxes and assessments, not delinquent (collectively, "Special Taxes");
(b) All exceptions which are disclosed by the Preliminary
Report Number 516364 ("Preliminary Report") dated as of July 20, 1999 at 7:30
a.m. prepared by Title Company. A copy of the Preliminary Report is attached
hereto as Exhibit G and incorporated herein by reference;
(c) The Master Lease;
(d) The New Lease (as defined in Section 8(c));
(e) The Sublease; and
(f) All matters created by or with the written consent of
Buyer.
6. Title Policy.
(a) Owner's Policy. It shall be a condition to the Close of
Escrow for Buyer's benefit, upon Buyer's sole election, that the Title Company
shall be irrevocably committed to issue, upon payment of its normal premium, its
CLTA Leaseholder's Form Policy of Title Insurance or binder with a CLTA
Endorsement 116.7 or its equivalent, in the amount of the Purchase Price,
insuring that the Property does not violate the California Subdivision Map Act
or any local ordinances adopted pursuant thereto ("Buyer's Title Policy")
showing the lessee's interest under the Master Lease in the Leased Land vested
in Buyer free and clear of any interest of Seller, and otherwise in the Approved
Condition of Title.
(b) Additional Coverage. Buyer may, at its option, request an
Extended Coverage ALTA Leaseholder's Form Policy of Title Insurance with
additional endorsements that may be required ("ALTA Policy") and endorsements,
provided that the issuance of said ALTA Policy or endorsements does not extend
or delay the Contingency Period or the Close of Escrow, and any additional
costs, including, but not limited to, title and endorsement fees and ALTA survey
costs incurred in connection with the issuance of such ALTA Policy shall be the
requesting party's sole responsibility. The willingness to issue or issuance by
the Title
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Company of Buyer's Title Policy shall be conclusive evidence that Seller has
complied with the obligation to convey good and marketable title to the
Property.
7. Conditions to Close of Escrow.
(a) Conditions to Buyer's Obligations. Buyer's obligation to
consummate the transaction contemplated by this Agreement is subject to the
satisfaction of the following conditions on or prior to the dates designated
below for the satisfaction of such conditions (or Buyer's written waiver
thereof, it being agreed that Buyer may waive any or all of such conditions).
(i) Inspection and Studies. Buyer's approval of the
physical and environmental condition of the Property, in its sole and absolute
discretion, and the results of any architectural, engineering, geologic, use,
development or other feasibility studies that Buyer chooses to perform, at
Buyer's sole cost and expense, prior to the expiration of the Contingency Period
as follows:
(A) Buyer and its representatives shall have
the right to carry out physical inspections of the Property and to undertake any
architectural, engineering, environmental, soils or other studies of the
Property immediately after the Opening of Escrow, provided that Buyer gives
Seller not less than twenty-four (24) hours prior notice of its intended
inspection(s). Buyer's physical inspection of and/or testing on the Property
shall be conducted during normal business hours at times mutually acceptable to
Buyer and Seller. No invasive testing or boring shall be done without prior
written notification to Seller and Seller's written permission of the same,
which Seller may withhold in its reasonable discretion. Notwithstanding any
other provision of this Agreement, not less than three (3) days prior to
commencing any such investigations or inspections, Buyer shall submit to Seller
for review and approval a work plan (the "Work Plan") describing any and all
proposed environmental due diligence work to be conducted on the Property by
Buyer or Buyer's authorized representatives (such as the collection of soil or
groundwater samples or similar tests involving the penetration of the surface or
subsurface of the Property) and any testing of the Buildings or other
improvements for environmental considerations or otherwise, (all hereinafter the
"Work"), and shall secure any permits required for such Work. It shall be
reasonable for Seller to withhold its consent to any proposed Work Plan, which
does not require Buyer and/or Buyer's representatives to carry the insurance
required in Section 7(a)(i)(D) below. In addition, Seller, in its reasonable
discretion, shall have the right to request in writing modifications to the Work
Plan within two (2) business days of its receipt thereof. Seller's failure to
request in writing modifications in the Work Plan within said two (2) business
day period shall be deemed Seller's approval of the Work Plan. If Buyer and
Seller are unable to agree upon the scope and content of the Work Plan, Buyer
may terminate this Agreement in the manner provided below. Buyer shall not enter
the Property or commence the Work prior to Seller's approval of the Work Plan.
Any material modification of, or deviation from, the approved Work Plan shall
require Seller's prior written consent. Seller shall have the right to be
present during Work on the Property and
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Buyer shall provide Seller with split samples of all samples taken for testing,
at Seller's request. Promptly following completion of the Work, Buyer shall, at
its sole cost and expense, remove from the Property any and all wastes or drill
cuttings generated from its activities and restore the Property to its condition
as it existed immediately prior to Buyer's entry to the Property, to the extent
reasonably practicable. Buyer shall use reasonable care and consideration in
connection with any of the Work.
(B) Buyer shall protect, indemnify, defend
(with counsel reasonably acceptable to Seller) and hold Seller and Seller's
officers, directors and employees, free and harmless from and against any and
all claims, damages, liens, stop notices, liabilities, losses, costs and
expenses, including reasonable attorneys' fees and court costs, resulting from
Buyer's entry onto the Property and inspection and testing pursuant to Section
7(a)(i)(A), including, without limitation, repairing any and all physical damage
to any portion of the Property caused by Buyer or its representatives. Buyer's
indemnification obligations set forth herein shall survive the Close of Escrow
and shall survive the termination of this Agreement and Escrow prior to the
Close of Escrow.
(C) Immediately after the Opening of Escrow,
Buyer and its representatives shall be provided with reasonable access to
Seller's files and documents pertaining to or affecting the physical and
environmental condition of the Property, which Seller will make available to
Buyer and its representatives (including environmental reports, if any), except
for appraisals and financial analyses generated by or made on behalf of Seller
and those documents which are protected by the attorney-client and/or attorney
work product privileges. Such files and documents shall be made available to
Buyer and its representatives, upon reasonable prior notice to Seller, during
normal business hours. Buyer shall rely solely upon its own independent
investigation concerning matters contained in such files and/or documents.
Without limiting the provisions of this section or Section 13 below, Buyer
acknowledges and agrees that Seller does not make any representation or
warranty, express or implied, as to the accuracy, content, or completeness of
any information contained in Seller's files or in the documents produced by
Seller, including, without limitation, any environmental audit or report (if
any); provided, however, that to the actual knowledge of Seller (as defined in
Xxxxxxx 00 xxxxx), xxxx of Seller's files or documents are false or misleading
in any material respect.
(D) Prior to any entry upon the Property by
Buyer or Buyer's agents, contractors, subcontractors or employees, Buyer shall
deliver to Seller evidence that Buyer is carrying a commercial general liability
insurance policy (including contractual liability) and builder's risk insurance
with a financially responsible insurance company acceptable to Seller, covering
the activities of Buyer, and Buyer's agents, contractors, subcontractors and
employees on or upon the Property. Such insurance policy shall have a per
occurrence limit of at least two million dollars and no cents ($2,000,000).
If, during the Contingency Period, Buyer
determines that it is satisfied, in Buyer's sole and absolute discretion, with
all aspects of the Property, and/or its
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condition or suitability for Buyer's proposed use or development, then Buyer
shall deliver written notice thereof to Seller and Escrow Holder on or before
the expiration of the Contingency Period. If Buyer fails to deliver any such
written notice to Seller and Escrow Holder on or before the expiration of the
Contingency Period, then Buyer shall be conclusively deemed to be dissatisfied
with the Property and both Seller and Buyer shall be relieved of all further
obligations and liabilities under this Agreement, except for the respective
rights and obligations of Buyer and Seller set forth in Section 7(a)(i)(B),
Section 20, Section 21, Section 22, Section 23(a), and Section 24, which shall
survive such termination.
(ii) Buyer's Review of Title. As of the Closing Date,
Title Company shall be irrevocably committed to issue upon payment of its normal
premium Buyer's Title Policy as set forth in Section 6(a).
(iii) No Action. As of the Closing Date, no suit,
action or other proceeding shall be pending or threatened which seeks, nor shall
there exist any judgment the effect of which is, to restrain the transfers
hereunder.
(iv) Seller's Obligations. As of the Closing Date,
Seller shall have performed each and all of its covenants and obligations under
this Agreement, within the times provided therefor.
(v) Consent of Master Landlord. Intentionally
Omitted.
(vi) No Material Change. Between the date of this
Agreement and the Closing Date, no material change shall have occurred in the
environmental or physical condition of the Property.
(vii) Reaffirmation of Representations and
Warranties. One (1) business day prior to the Closing Date, Seller shall have
delivered to Buyer or to Escrow Holder a statement that, as of said date, Seller
reaffirms all of its representations and warranties set forth in this Agreement
(the "Seller Certificate"), provided that, if matters have come to Seller's
attention following the date of execution hereof that result in any of Seller's
representations or warranties being false or misleading in any respect, the
Seller Certificate may be amended to include such matters coming to Seller's
attention (the "Seller Amended Certificate"). Except as otherwise set forth in
this Agreement, if the Seller Amended Certificate alters matters set forth in
the Seller Certificate in any material respect in Buyer's reasonable discretion,
Buyer may elect to treat such condition as having not been satisfied.
(b) Conditions to Seller's Obligations. For the benefit of
Seller, the Close of Escrow shall be subject to the satisfaction of the
following conditions (or Seller's written waiver thereof, it being agreed that
Seller may waive any or all of such conditions):
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(i) Buyer's Obligations. As of the Closing Date,
Buyer shall have performed all of its covenants and obligations required to be
performed by Buyer under this Agreement, within the time periods provided
therefor.
(ii) Reaffirmation of Representations and Warranties.
One (1) business day prior to the Closing Date, Buyer shall have delivered to
Seller a statement that, as of said date, Buyer reaffirms all of its
representations and warranties set forth in this Agreement (the "Buyer
Certificate") or, if matters have come to Buyer's attention following the date
hereof that result in any of Buyer's representations or warranties being false
or misleading in any respect, such certificate, amended by such matters coming
to Buyer's attention (the "Buyer Amended Certificate").
(c) Deliverables. If the Close of Escrow does not occur for
any reason other than a default by Seller, Buyer shall promptly deliver to
Seller (no later than fourteen (14) days after the termination of this
Agreement) at no cost or expense to Seller (except as otherwise provided in this
Agreement), all of the engineering, architectural, and other studies, drawings,
reports, surveys, entitlement applications (including but not limited to
subdivision and zoning applications and information, if any) of any kind or
nature, and similar materials prepared by or on behalf of Buyer with respect to
the Property and/or Buyer's proposed use or development of the Property
("Deliverables"), but only to the extent Buyer has any ownership interest in the
Deliverables and is not prohibited from providing such copies to third parties
pursuant to the provisions of any applicable contracts respecting the
Deliverables. Buyer's provision of the Deliverables to Seller shall be without
any representation or warranty as to accuracy or correctness of the Deliverables
and subject to the agreement of Seller not to rely on the Deliverables.
8. Deposits by Seller. At least one (1) business day prior to the Close
of Escrow, Seller shall deposit or cause to be deposited with Escrow Holder the
following documents and instruments:
(a) Deed to the Buildings. A quitclaim deed to the Buildings
(the "Deed") and/or such other title documents as may be reasonably requested by
Title Company in order to issue Buyer's Title Policy, duly executed by Seller
and acknowledged;
(b) The Master Lease Assignment Agreement. An assignment and
assumption agreement relating to the Master Lease, in substantially the form
attached hereto as Exhibit H and incorporated herein by reference (the "Master
Lease Assignment Agreement") duly executed by Seller and acknowledged, whereby
Seller assigns to Buyer all of Seller's leasehold interest under the Master
Lease and Buyer assumes all of such obligations. Except as otherwise set forth
in this Agreement and/or the New Lease, Seller shall indemnify, defend, and hold
Buyer harmless from any injury, loss, claims, or damage, including, without
limitation, attorneys fees and court costs, arising from obligations under the
Master Lease to be performed by Seller prior to the Close of Escrow.
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(c) The New Lease. Seller, as Tenant, shall have executed and
delivered into Escrow for delivery to Buyer, as Landlord, a Facility Leaseback
Agreement (the "New Lease"), relating to the Property, which shall be in
substantially the form attached hereto as Exhibit I and incorporated herein by
reference. The New Lease shall be for a term commencing on the Closing Date and
expiring on the Leaseback Expiration Date, and shall provide for the payment by
Seller of base rent in the amount of one dollar and no cents ($1.00) per year,
together with such additional costs and expenses as are provided therein.
Notwithstanding the foregoing, Seller shall have the option for a period of
sixty (60) days following the Closing Date to shorten the term of the New Lease,
by providing written notice thereof to Buyer and Escrow Holder, whereupon the
term of the New Lease shall expire on July 1, 2000 (the "Early Exit Option").
The New Lease shall provide that upon commencement of the term of the New Lease,
Seller shall deposit with Escrow Holder a security deposit in the amount of five
million dollars and no cents ($5,000,000.00) (the "Security Deposit") as
security for the faithful performance by Seller of all of the terms, covenants,
and conditions of the New Lease applicable to Seller. Seller shall have the
right to deliver the Security Deposit in the form of an irrevocable Letter of
Credit (i) in form reasonably satisfactory to Buyer, (ii) which provides that it
shall not terminate or expire until the latest to occur of (a) ninety (90) days
after the expiration or earlier termination of the New Lease after Tenant has
vacated the Property, (b) ninety (90) days after the Closure Certification Date,
or (c) the completion of the Additional Environmental Work, as hereinafter
defined; (iii) which is issued by a bank authorized to do business in the State
of California, which (x) is a member of the Federal Reserve banking system, (y)
has a teller window for receiving cash deposits located within the County of
Santa Clara, California, and (z) is otherwise reasonably acceptable to Buyer
(the "Security Deposit LC"). The Security Deposit LC shall state on its face
that is payable to Escrow Holder upon Buyer's certificate to the issuing bank
that an event of material default exists under the New Lease beyond applicable
cure periods, if any. From time to time throughout the term of the New Lease,
Seller may replace and/or renew the Security Deposit LC then acting as the
Security Deposit pursuant to this section, with Immediately Available Funds
and/or a replacement Security Deposit LC, provided that: (i) such replacement
Security Deposit LC or renewal shall be delivered to Escrow Holder on or before
the thirtieth (30th) day prior to the expiration of the Security Deposit LC then
held by Escrow Holder as the Security Deposit under this section; and (ii) such
replacement Security Deposit LC or renewal shall otherwise comply with all terms
and conditions of this paragraph pertaining to the original Security Deposit LC.
Failure to deliver such a replacement Security Deposit LC and/or renewal within
thirty (30) days prior to the expiration of the Security Deposit LC then held as
the Security Deposit (except where Seller shall have no remaining monetary
obligation to Buyer under the terms of the New Lease) shall constitute an event
of default under the New Lease. If Seller defaults under the New Lease, Buyer
may (but shall not be required to) use, apply or retain all or any part of the
Security Deposit for the payment of any amount which Buyer may spend by reason
of such Seller's default or to compensate Buyer for any loss or damage which
Buyer may suffer by reason of Seller's default. The rights of Buyer with respect
to the Security Deposit shall be in addition to any other rights or remedies
which Buyer may possess
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pursuant to the terms of the New Lease or this Agreement. If Seller elects to
deposit the Security Deposit with Escrow Holder in the form of Immediately
Available Funds, Escrow Holder shall deposit the Security Deposit into an
interest bearing account for the benefit of Seller at a member bank of the
Federal Deposit Insurance Corporation with a teller window for the acceptance of
deposits located in the county wherein the Property is situated. All interest
earned upon the Security Deposit shall be added to principal and become part of
the Security Deposit. The Security Deposit, or any remaining balance thereof
shall be returned to Seller upon the latest to occur of (i) ninety (90) days
after the expiration or earlier termination of the New Lease after Tenant has
vacated the Property, (ii) ninety (90) days after the Closure Certification
Date, and (iii) the completion of the Additional Environmental Work, as
hereinafter defined.
(d) The Subordination Agreement. The Subordination Agreement
(as defined in Section 14(c) below) duly executed by Seller;
(e) Seller's Non-Foreign Status Certificates. A federal FIRPTA
Certificate and a California Form 590 (collectively, "Seller's Non-Foreign
Status Certificates"), duly executed by Seller; and
(f) Other Instruments. Such other instruments and documents as
are required under this Agreement.
(g) Assignment of Remediation Agreement and Insurance Policy.
An assignment of the Remediation Agreement as described in Section 24 in the
form attached hereto as Exhibit M and incorporated herein by reference (the
"Environmental Assignment") duly executed by Seller.
(h) Acknowledgment of Merger of Estates and Termination Lease.
Buyer and Seller acknowledge that the Landlord and Tenant Estates under the
Master Lease have merged and that effective on the Final Closing Date, the
Master Lease shall terminate. An Acknowledgment of Merger of Estates and
Termination of Lease Agreement as described herein is in the form attached
hereto as Exhibit N and incorporated herein by reference (the "Merger
Acknowledgment").
9. Deposits by Buyer. At least one (1) business day prior to the Close
of Escrow, Buyer shall deposit or cause to be deposited with Escrow Holder:
(a) Purchase Price. The Purchase Price, less the amount of any
deposits previously paid and the accrued interest thereon;
(b) Assumption of the Master Lease. The Assignment of Master
Lease Agreement duly executed by Buyer and acknowledged;
(c) The New Lease. Buyer, as Landlord, shall have executed and
delivered into Escrow the New Lease.
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(d) The Subordination Agreement. The Subordination Agreement
(as defined in Section 14(c) below) duly executed by Buyer; and
(e) Other Instruments. Such other fees, documents and
instruments as are required under this Agreement.
(f) Assignment of Remediation Agreement and Insurance Policy.
The Environmental Assignment duly executed by Buyer.
(g) Acknowledgment of Merger of Estates and Termination Lease.
Buyer and Seller acknowledge that the Landlord and Tenant Estates under the
Master Lease have merged and that effective on the Final Closing Date, the
Master Lease shall terminate. An Acknowledgment of Merger of Estates and
Termination of Lease Agreement as described herein is in the form attached
hereto as Exhibit N and incorporated herein by reference (the "Merger
Acknowledgment").
Buyer shall be responsible for filing all transfer tax affidavits,
preliminary change of ownership reports, and other similar documents, relating
to the transfer of the Property to Buyer, and Buyer shall indemnify, defend and
hold harmless Seller from and against any and all claims, damages, expenses,
penalties, and other liabilities resulting from the valuation or other
statements contained in such documents. The foregoing obligations of Buyer shall
survive the Close of Escrow.
10. Costs and Expenses. The escrow fee of Escrow Holder shall be split
50/50 between Buyer and Seller. Seller shall pay the premium for a Standard Form
CLTA owner's policy of title insurance on the Property in the amount of the
Purchase Price. Any extra costs arising from additional coverage(s) requested by
Buyer, including, without limitation, the extra cost of the premium for an ALTA
policy (if requested by Buyer) and/or any special endorsements, shall be paid by
Buyer. Any County transfer tax respecting the transfers contemplated herein
shall be paid by Seller and any City transfer tax respecting the transfers
contemplated herein shall be split 50/50 between Buyer and Seller. Buyer and
Seller shall pay, respectively, Escrow Holder's customary charges for document
drafting and miscellaneous charges for services requested by such party. If, due
to no fault on the part of either Buyer or Seller, Escrow fails to close, Buyer
and Seller shall share equally all of Escrow Holder's fees and charges. The
parties will cooperate to mitigate the costs of the transfer taxes.
11. Prorations.
(a) The following prorations shall be made between Seller and
Buyer as of the Close of Escrow on the basis of a thirty (30) day month: None
(b) Escrow Statement. At least one (1) business day prior to
the Close of Escrow the parties shall agree upon all of the prorations,
including rent, to be made and
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submit a statement to the Escrow Holder (or sign a statement prepared by Escrow
Holder) setting forth the same. In the event that any prorations, apportionments
or computations made under this section shall require final adjustment, then the
parties shall make the appropriate adjustments promptly when accurate
information becomes available and either party shall be entitled to an
adjustment to correct the same. Any corrected adjustment or proration will be
paid in cash to the party entitled thereto.
12. Disbursements and Other Actions by Escrow Holder. Upon the Close of
Escrow, Escrow Holder shall perform all of the following in the manner
indicated:
(a) Prorations. Prorate all matters referenced in Section 11
based upon the statement delivered into escrow signed by the parties.
(b) Recording. Cause all recordable documents to be recorded
in the Official Records in the order required to issue Buyer's Title Policy and
Seller's Title Policy.
(c) Funds. Disburse from funds deposited by Buyer with Escrow
Holder payment of all items chargeable to the account of Buyer pursuant hereto,
including, without limitation, the payment of the Purchase Price to Seller, and
disburse the balance of such funds, if any, to Buyer.
(d) Title Policies. Issue Buyer's Title Policy to Buyer.
(e) Documents to Seller. Deliver to Seller any documents to be
delivered to Seller hereunder.
(f) Documents to Buyer. Deliver to Buyer the Seller's
Non-Foreign Status Certificates, and any other documents to be delivered to
Buyer hereunder.
(g) The Price Adjustment Account. Upon the Close of Escrow,
the Escrow Holder shall withhold the amount of three million dollars and no
cents ($3,000,000.00) from the proceeds payable to Seller, which amount shall be
deposited into an interest bearing account for the benefit of Seller (the "Price
Adjustment Account"). If Seller shall timely provide written notice to Buyer and
Escrow Holder that Seller has elected to exercise the Early Exit Option, then
the entire balance of the Price Adjustment Account, including all interest
earned thereon, shall immediately be paid to Seller out of escrow by the Escrow
Holder on account of the Purchase Price, without the necessity of further
instruction from either Buyer or Seller, and there shall be no adjustment to the
Purchase Price. If Seller fails to timely exercise the Early Exit Option, then
Buyer shall so notify Seller and Escrow Holder, whereupon: (i) the entire
balance of the Price Adjustment Account, including all interest earned thereon,
shall immediately be refunded to Buyer out of escrow by the Escrow Holder,
without the necessity of further instruction from either Buyer or Seller; (ii)
the Adjusted Purchase Price shall be deemed to be the Purchase Price of the
Property for all purposes; and (iii) Escrow Holder shall immediately prepare
revised Settlement Statements
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for execution by both Buyer and Seller reflecting the Adjusted Purchase Price.
Buyer and Seller shall take all further actions as may be reasonably requested
of them in order to effectuate properly the purpose and intent of this section,
including, without limitation approving any escrow instructions which are not
inconsistent with this Agreement in connection with distribution of the Price
Adjustment Account.
13. Seller's Covenants, Representations, and Warranties. Seller hereby
makes the following representations and warranties to Buyer as of the date of
this Agreement, each of which is material and being relied upon by Buyer and
shall survive the Close of Escrow. The term "actual knowledge of Seller," or
similar phrases, as used in this Agreement shall refer to the actual, present
knowledge of Xxxxx Xxxxxxxx and Xxx Xxxxx [Head of Facilities] as of the date of
this Agreement without any duty of investigation or inquiry of any kind or
nature whatsoever, and "written notice" shall mean written notice actually
received at Seller's office. Seller further represents and warrants that the
individuals named above are familiar with the Property and likely to have had
information relating to the Property come to their attention.
(a) Authority. Seller is duly organized and validly existing
and in good standing under the laws of the State of California. Seller has the
legal right, power and authority to enter into this Agreement and to consummate
the transactions contemplated hereby, and the execution, delivery and
performance of this Agreement have been duly authorized and no other action by
Seller is requisite to the valid and binding execution, delivery and performance
of this Agreement. Neither the execution and delivery of this Agreement by
Seller, nor performance of any of its obligations hereunder, nor consummation of
the transactions contemplated hereby shall conflict with, result in a breach of,
or constitute a default under, the terms and conditions of the organizational
documents of Seller, or any indenture, mortgage, agreement, instrument or
document to which Seller is a party or is bound, or any order or regulation of
any court, regulatory body, administrative agency or governmental body having
jurisdiction over Seller. All the documents executed by Seller which are to be
delivered at the Close of Escrow will be duly authorized, executed, and
delivered by Seller.
(b) Foreign Person Affidavit. Seller is not a foreign person
as defined in Section 1445 of the Internal Revenue Code or Section 18662(e) of
the California Revenue and Taxation Code.
(c) Actions. Seller has no actual knowledge of and has
received no written notice of any pending or threatened actions, suits, claims
or proceedings affecting Seller's ability to fulfill its obligations under this
Agreement or which adversely affect the Property or its value, use, or
operation, except as set forth in Section 24 below.
(d) Hazardous Materials. To Seller's actual knowledge, except
as otherwise disclosed in this Agreement and collateral documentation,
including, without
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limitation, the Remediation Agreement, there are no Hazardous Materials present
in, on or under the Property, except in accordance with applicable laws.
(e) No Encumbrances. To Seller's actual knowledge, there are
no unrecorded encumbrances, liens or claims against the Property other than the
Sublease.
(f) No Contracts. To Seller's knowledge, except as otherwise
disclosed in this Agreement and collateral documentation delivered to Buyer
prior to the Contingency Removal Date, there are no contracts or other
agreements for services, supplies or materials relating to the use, operation or
management of the Property which will be binding on Buyer after expiration or
earlier termination of the New Lease.
(g) The Driveway License. During the License Term, Buyer, and
Buyer's successors, assigns, invitees, and guests, shall have a revocable,
non-exclusive license to enter those portions of the Building 6 Property upon
which the Driveway is located and Seller and Seller's successors, assigns,
invitees, and guests, shall have a revocable, non-exclusive license to enter
those portions of the Property upon which the Driveway is located (the "Driveway
License"). During the License Term, Buyer shall maintain the Driveway in good
condition and repair. The cost of maintaining and repairing the Driveway shall
be shared between Buyer and Seller proportionately according to the use made of
the Driveway by each party and its designees. Upon expiration of the License
Term or earlier termination of the Driveway License, all rights of Buyer, and
Buyer's successor and assigns, to enter the Building 6 Property and/or to use
all or any portion of the Driveway located within the Building 6 Property, all
rights of Seller, and Seller's successor and assigns, to enter the Property
and/or to use all or any portion of the Driveway located within the Property,
shall immediately terminate. The rights, duties, and obligations of the parties
set forth in this section shall survive the Close of Escrow. In connection with
the foregoing, Seller may revoke the Driveway License at any time, with or
without cause and with or without prior notice to Buyer.
(h) The Demolition Plan. Not later than one (1) month
following the expiration or earlier termination of the New Lease and surrender
of possession of the Property by the tenant thereunder, Seller, at Seller's sole
cost and expense, shall complete, or cause to be completed, all asbestos removal
work (the "Demolition Work") required to be performed by Seller concerning the
Buildings under the demolition plan dated June 15, 1999 prepared by E2C, Inc.
(the "Demolition Plan"). A copy of the Demolition Plan is attached hereto as
Exhibit J, and incorporated herein by reference. The Demolition Work shall be
performed by persons duly qualified and licensed to perform such work and in
accordance with all applicable laws, rules, ordinances, and regulations. In
connection with the foregoing, upon the Closing, the Escrow Holder shall
withhold the amount of five hundred thousand dollars and no cents ($500,000.00)
from the proceeds payable to Seller, which amount shall be deposited into an
interest bearing account for the benefit of Seller (the "Demolition Withhold
Account"). The Escrow Holder shall be authorized and directed to administer and
disburse the Demolition Withhold Account for the benefit of both Seller and
Buyer as
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a construction escrow according to escrow instructions mutually acceptable to
Seller, Buyer, and the Escrow Holder, in order to fund the completion of the
Demolition Work; provided, however that if, in the reasonable determination of
the Escrow Holder, Buyer, and Seller, the balance of the Demolition Escrow
Account shall be insufficient to pay all remaining anticipated costs of the
Demolition Work, Seller shall pay any such deficiency to the Escrow Holder
within ten (10) days after receipt of notice of the amount of such deficiency;
and, provided further that upon completion of the Demolition Work, any unused
balance of the Demolition Withhold Account shall be disbursed to Seller by the
Escrow Holder. The initial deposit into the Demolition Withhold Account is a
good faith estimate of the anticipated costs of the Demolition Work, but shall
not be construed as a cap upon the obligation of Seller to pay the reasonable
cost of the Demolition Work. In connection with the foregoing, Buyer and Seller
agree to execute any escrow instructions reasonably requested by the Escrow
Holder, in order to carry into effect the purposes of this section.
Seller shall not be entitled to an extension of time for the completion
of the Demolition Work as a result of any holdover by Subtenant under the
Sublease. Seller and Buyer acknowledge and agree that both Seller and Buyer may
be performing work on the Property at the same time and shall cooperate to
minimize interference with work being performed by each on the Property. Seller
shall obtain and maintain during the time it is conducting the Demolition Work
commercial general liability insurance and all-risk insurance with a financing
responsible insurance company acceptable to Buyer, covering the activities of
Seller, and Sellers agents, contractors, subcontractors and employees on or upon
the Property. Such insurance policy shall have a per occurrence limit of at
least two million dollars ($2,000,000). Seller shall protect, indemnify, defend
(with counsel reasonably acceptable to Buyer) and hold Buyer and Buyer's
officers, directors and employees harmless from and against any and all claims,
damages, liens, stop notices, liabilities, losses costs and expenses, including
reasonable attorneys fees and court costs, resulting from Seller's entry on the
Property and the Demolition Work. Seller's indemnification obligations set forth
in this paragraph shall survive the Close of Escrow and the termination of the
New Lease. In the event that Seller has not timely completed the Demolition
Work, Buyer may, at its option, elect to cause the Demolition Work to be
performed and shall be entitled to recover all costs and expenses incurred in
connection with such completion from Seller.
(i) No Undisclosed Violations of Law. Except as otherwise
disclosed in this Agreement and collateral documentation delivered to Buyer
prior to the Contingency Removal Date, Seller has not received any notice that
the Property is in violation of any applicable building codes, environmental,
zoning or land use laws, or other applicable local, state and federal laws and
regulations including, without limitation, The Americans with Disabilities Act
of 1990.
(j) Status of the Master Lease. Seller is the lessee or tenant
under the Master Lease. To the actual knowledge of Seller, no party to the
Master Lease is in default thereunder.
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(k) No Current Construction. At the time of Closing there will
be no outstanding written or oral contracts made by Seller or, to Seller's
knowledge, any other party for any improvements to the Property which have not
been fully paid for and Seller shall cause to be discharged any mechanics' and
materialmen's liens arising from any labor or materials furnished to the
Property at the request of Seller or Stellex prior to the time of Closing,
including, without limitation pursuant to any leases affecting the Property.
(l) No Undisclosed Option Rights. Except as otherwise
disclosed in this Agreement and collateral documentation delivered to Buyer
prior to the Contingency Removal Date, Seller has not granted any option or
right of first refusal or first opportunity to any party to acquire any interest
in any of the Property.
(m) No Undisclosed Occupants. No person or entity other than
Seller and Subtenant has any right to use or occupy all or any portion of the
Property. To Seller's knowledge, except for Seller and Subtenant, no person or
entity is currently occupying all or any portion of the Property.
14. Buyer's Covenants, Representations and Warranties. Buyer makes the
following covenants, representations and warranties, as of the date of this
Agreement, each of which is material and is being relied upon by Seller and
shall survive the Close of Escrow:
(a) Authority. Buyer is duly organized and validly existing
and in good standing under the laws of the State of California. Buyer has the
legal right, power and authority to enter into this Agreement and to consummate
the transactions contemplated hereby, and the execution, delivery and
performance of this Agreement have been duly authorized and no other action by
Buyer is requisite to the valid and binding execution, delivery and performance
of this Agreement, except as otherwise expressly set forth herein. Neither the
execution and delivery of this Agreement by Buyer, nor performance of any of its
obligations hereunder, nor consummation of the transactions contemplated hereby
shall conflict with, result in a breach of, or constitute a default under, the
terms and conditions of the organizational documents of Buyer, or any indenture,
mortgage, agreement, instrument or document to which Buyer is a party or is
bound, or any order or regulation of any court, regulatory body, administrative
agency or governmental body having jurisdiction over Buyer. All the documents
executed by Buyer which are to be delivered at the Close of Escrow will be duly
authorized, executed, and delivered by Buyer.
(b) Seller's Environmental Inquiry. Buyer acknowledges that
Seller has advised Buyer of the Order and the Remediation Agreement (as each is
defined in Section 24(a) below) in connection with the environmental condition
of the Property and that the delivery of any reports referenced in connection
with this Agreement constitutes written notice thereof to Buyer.
(c) The Subordination Agreement. Buyer acknowledges that
Seller shall not assign to Buyer any of Seller's rights or obligations with
respect to the Sublease, and all
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such rights and obligations belong exclusively to Seller. In connection with the
foregoing, Buyer shall execute a subordination agreement and consent in
substantially the form attached hereto as Exhibit K, and incorporated herein by
reference (the "Subordination Agreement") confirming that, effective upon the
Close of Escrow, the Sublease is a sublease of (and subordinate to) the New
Lease.
(d) Performance by Buyer. Buyer shall take all actions
required of it in order to effectuate properly the purpose and intent of this
section including, without limitation approving any reasonable construction
escrow instructions which are not inconsistent with this Agreement in connection
with the Demolition Work, and making all deliveries required of it at the Close
of Escrow.
(e) The Driveway License Agreement. During the License Term,
Buyer shall perform Buyer's proportionate share of maintenance and repair
obligations with respect to those portions of the Xxxxxxxx 0 Xxxxxxxx Xxxxxxxx
located on the Building 6 Property. Buyer acknowledges as follows: (i) neither
Seller nor any successor owner of the Building 6 Property shall be required to
maintain any portion of the Driveway located exclusively within the Leased Land;
and (ii) upon expiration of the License Term or earlier termination of the
Driveway License, all rights of Buyer, and Buyer's successor and assigns, to
enter the Building 6 Property and/or to use all or any portion of the Driveway
located within the Building 6 Property shall immediately terminate;
15. Condition of the Property.
(a) Except as otherwise set forth in this Agreement, Buyer
acknowledges and agrees that (i) Buyer is acquiring the Property based solely
upon Buyer's inspection and investigation of the Property and all documents
related thereto, including, without limitation the Remediation Agreement, and
(ii) Buyer is acquiring the Property in "AS IS" condition without relying upon
any representations or warranties, express, implied or statutory, of any kind.
Except as otherwise specifically set forth in this Agreement without limiting
the above, Buyer acknowledges that neither Seller, nor any person or entity
acting on behalf of Seller has made any representations or warranties, express
or implied, on which Buyer is relying as to any matters, directly or indirectly,
concerning the Property including, but not limited to, the land, the area of the
Leased Land, the Buildings, and/or the Subleased Premises, improvements and
infrastructure, if any, development rights and exactions, expenses associated
with any taxes, assessments, bonds, permissible uses, title exceptions, water or
water rights, topography, utilities, zoning, soil, subsoil, the purposes for
which the Property is to be used, drainage, environmental or building laws,
rules or regulations, the presence or removal of toxic waste or Hazardous
Materials on, under, or about the Property or any adjoining or neighboring
property, or any other matters affecting or relating to the Property. Buyer
hereby expressly acknowledges that no such representations have been made. Buyer
shall perform and rely solely upon its own investigation concerning its intended
use of the Property, the fitness therefor of the Property, and the availability
of such intended use under applicable statutes, ordinances, and regulations.
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(b) Natural Hazards Report. Buyer acknowledges and understands
that the Property may be situated within (i) an Earthquake Fault Zone as so
designated under the Xxxxxxx-Xxxxxx Earthquake Fault Zoning Act, Sections 2621
et seq. of the California Public Resources Code; and/or (ii) a Seismic Hazards
Zone as so designated under the Seismic Hazards Mapping Act, Sections 2690 et
seq. of the California Public Resources Code (collectively herein referred to as
the "Seismic Disclosure Acts"). If so situated, the Property may be particularly
exposed to the risks of seismic activity by reason of its close proximity to
earthquake faults or other geologic hazards, and any future construction or
development of the Property may be restricted. Buyer acknowledges that Buyer has
received a copy of the Commercial Property Owner's Guide to Earthquake Safety,
published by the State of California Seismic Safety Commission, which informs
property owners generally of the risks attendant to earthquakes and the effect
earthquakes could have on their property. Seller is making and has made no
representations regarding the seismic or other geologic hazards affecting the
Property, or the effect thereof on the future use or development of the Leased
Land and/or the Buildings. Further, Buyer hereby waives, to the fullest extent
permitted by law, any seismic disclosure requirements imposed upon Seller by
California law, including without limitation, the requirements contained in the
Seismic Disclosure Acts. Notwithstanding the foregoing, Buyer acknowledges that
Buyer has received a copy of The JCP Report Natural Hazard Disclosure Statement,
dated 05/19/1999, Report Number 1999051800050 (the "Natural Hazards Report"),
which was prepared by JCP GEOLOGISTS, INC. with respect to the Property, and
that Buyer has reviewed and does approve the Natural Hazards Report. A copy of
the Natural Hazards Report is attached hereto as Exhibit L and incorporated
herein by reference.
16. LIQUIDATED DAMAGES. IF BUYER COMMITS A DEFAULT UNDER THIS AGREEMENT
NOT WAIVED BY SELLER AND CLOSING DOES NOT OCCUR ON OR BEFORE THE FINAL CLOSING
DATE AS A RESULT OF SUCH DEFAULT, THEN IN SUCH EVENT, THE ESCROW HOLDER SHALL BE
INSTRUCTED BY SELLER TO CANCEL THE ESCROW AND SELLER SHALL THEREUPON BE RELEASED
FROM ITS OBLIGATIONS HEREUNDER. BUYER AND SELLER AGREE THAT BASED UPON THE
CIRCUMSTANCES NOW EXISTING, KNOWN AND UNKNOWN, IT WOULD BE IMPRACTICAL OR
EXTREMELY DIFFICULT TO ESTABLISH SELLER'S DAMAGE BY REASON OF BUYER'S DEFAULT
UNDER THIS AGREEMENT. ACCORDINGLY, BUYER AND SELLER AGREE THAT IN THE EVENT OF
DEFAULT BY BUYER UNDER THIS AGREEMENT, IT WOULD BE REASONABLE AT SUCH TIME TO
AWARD SELLER, AS SELLER'S SOLE AND EXCLUSIVE REMEDY, "LIQUIDATED DAMAGES" EQUAL
TO THE AMOUNT REPRESENTED BY THE DEPOSIT PLUS ANY AND ALL ACCRUED INTEREST
THEREON. THEREFORE, IF BUYER COMMITS A DEFAULT UNDER THIS AGREEMENT NOT WAIVED
IN WRITING BY SELLER AND CLOSING DOES NOT OCCUR ON OR BEFORE THE FINAL CLOSING
DATE AS A RESULT OF SUCH DEFAULT, SELLER SHALL INSTRUCT THE ESCROW HOLDER TO
CANCEL THE ESCROW WHEREUPON ESCROW HOLDER SHALL IMMEDIATELY PAY OVER TO
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SELLER THE DEPOSIT, IF HELD BY ESCROW HOLDER, AND SELLER SHALL BE RELIEVED FROM
ALL OBLIGATIONS AND LIABILITIES HEREUNDER, AND, PROMPTLY FOLLOWING ESCROW
HOLDER'S RECEIPT OF SUCH INSTRUCTION, ESCROW HOLDER SHALL CANCEL THE ESCROW.
NOTHING CONTAINED IN THIS SECTION SHALL SERVE TO WAIVE OR OTHERWISE
LIMIT SELLER'S REMEDIES OR DAMAGES FOR CLAIMS OF SELLER AGAINST BUYER ARISING
OUT OF SECTIONS 7(a)(i)(B), 7(a)(i)(D) AND 24 HEREOF OR WAIVE OR OTHERWISE LIMIT
SELLER'S RIGHTS TO OBTAIN FROM BUYER ALL COSTS AND EXPENSES OF ENFORCING THIS
LIQUIDATED DAMAGES PROVISION, INCLUDING ATTORNEYS' FEES AND EXPERT COSTS AND
FEES, PURSUANT TO SECTION 22, AND SPECIFIC PERFORMANCE OF SECTIONS 23(a) AND
23(b) OF THIS AGREEMENT.
SELLER AND BUYER ACKNOWLEDGE THAT THEY HAVE READ AND UNDERSTAND THE
PROVISIONS OF THIS SECTION 16 AND BY THEIR INITIALS IMMEDIATELY BELOW AGREE TO
BE BOUND BY ITS TERMS.
---------------- ----------------
Seller's Initials Buyer's Initials
17. BUYER'S REMEDIES. IF SELLER SHALL FAIL TO PERFORM ANY OBLIGATION IN
ACCORDANCE WITH THE PROVISIONS OF THIS AGREEMENT, AND SUCH FAILURE CONSTITUTES A
DEFAULT ON THE PART OF SELLER HEREUNDER, THEN BUYER, AS BUYER'S SOLE REMEDY
HEREUNDER, MAY PURSUE AN ACTION FOR SPECIFIC PERFORMANCE OF THE TRANSFERS
DESCRIBED IN SECTIONS 2 AND 23(b) OF THIS AGREEMENT. SELLER AND BUYER
ACKNOWLEDGE THAT THEY HAVE READ AND UNDERSTAND THE PROVISIONS OF THIS SECTION 17
AND BY THEIR INITIALS IMMEDIATELY BELOW AGREE TO BE BOUND BY ITS TERMS.
---------------- ----------------
Seller's Initials Buyer's Initials
18. Damage and/or Destruction or Condemnation Prior to Close of Escrow.
If prior to Closing, any improvements located on the Property, or any part
thereof, are destroyed or materially damaged, the transaction shall go forward
without any adjustment to the Purchase Price, but Buyer shall be entitled to any
available insurance proceeds resulting from such damage or destruction. In
connection with the foregoing, during the period from the date of full execution
of this Agreement through and including the Closing Date, Seller shall not
cancel, nor allow to be canceled, any policies of property insurance carried by
Seller with respect to the Property.
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19. Notices. All notices, approvals, demands, or other communications
required or permitted hereunder shall be in writing, and shall be personally
delivered or sent by a nationally recognized overnight courier or sent by
registered or certified mail, postage prepaid, return receipt requested, or
delivered or sent by telecopy and shall be deemed received upon the earlier of
(i) if personally delivered or sent by overnight courier, the date of delivery
to the address of the person to receive such notice, (ii) if mailed, three (3)
Business Days after the date of posting by the United States post office, or
(iii) if given by telecopy or facsimile, when sent with confirmation of receipt.
Any notice, request, demand, direction or other communication sent by cable,
telex or telecopy must be confirmed within forty-eight (48) hours by letter
mailed or delivered in accordance with the foregoing. All notices to Seller
shall be sent to Seller's Address with a copy to Seller's Counsel's Address. All
notices to Buyer shall be sent to Buyer's Address with a copy to Buyer's
Counsel's Address. All notices to Escrow Holder shall be sent to Escrow Holder's
Address. If the date on which any notice to be given hereunder falls on a
Saturday, Sunday or legal holiday, then such date shall automatically be
extended to the next Business Day immediately following such Saturday, Sunday or
legal holiday. Notice of change of address shall be given by written notice in
the manner detailed in this section. Rejection or other refusal to accept or the
inability to deliver because of changed address of which no notice was given
shall be deemed to constitute receipt of the notice, demand, request or
communication sent.
20. Brokers. Neither party has dealt with any person or entity who may
have a claim to be paid a commission or finder's fee as the result of this
transaction other than Colliers Xxxxxxx International, Inc., who has represented
Seller in this transaction ("Seller's Broker") Upon the Close of Escrow, Seller
shall pay any real estate brokerage commission due to Seller's Broker, with
respect to this transaction in accordance with a separate listing agreement with
Seller's Broker. Seller's Broker shall pay any commission due to any
corresponding Broker as the result of this transaction. Except as set forth in
this section, if any claim(s) for commissions or finders' fees should arise as
the result of the consummation of the transactions contemplated in this
Agreement, then Buyer shall indemnify, save harmless and defend Seller from and
against such claims if they shall be based upon any action, statement,
representation or agreement by Buyer, and Seller shall indemnify, save harmless
and defend Buyer from and against such claims if they shall be based upon any
action, statement, representation or agreement made by Seller. The provisions of
this Section 20 shall survive the Closing or the termination of this Agreement.
21. Legal Fees. In the event of the bringing of any action or suit by a
party hereto against another party hereunder by reason of any breach of any of
the covenants or agreements or any inaccuracies in any of the representations
and warranties on the part of the other party arising out of this Agreement,
then in that event, the prevailing party in such action or dispute, whether by
final judgment or out of court settlement, shall be entitled to have and recover
of and from the other party all costs and expenses of suit, including actual
attorneys' fees. Any judgment or order entered in any final judgment shall
contain a specific provision providing for the recovery of all costs and
expenses of suit, including actual
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attorneys' fees (collectively "Costs") incurred in enforcing, perfecting and
executing such judgment. For the purposes of this section, Costs shall include,
without limitation, attorneys' and experts' fees, costs and expenses incurred in
the following: (i) post judgment motions; (ii) contempt proceeding; (iii)
garnishment, levy, and debtor and third party examination; (iv) discovery; and
(v) bankruptcy litigation. This section shall survive any termination of this
Agreement prior to the Close of Escrow and the Close of Escrow and shall not be
deemed merged into such upon their recordation.
22. Confidentiality. Except as specifically provided herein, Buyer and
Seller shall exercise reasonable efforts not to disclose any of the terms or
provisions of this Agreement prior to the Close of Escrow to any person or
entity not a party to this Agreement, nor shall Buyer or Seller issue any press
releases or make any public statements relating to this Agreement or Buyer's
intended use of the Property prior to Close of Escrow, except for disclosures
required by law. In addition, Buyer shall exercise reasonable efforts to keep
all materials provided or made available to Buyer by Seller, and all materials
generated by Buyer in the course of conducting its inspections, review of books
and records, and other due diligence activities relating to the Property
(including, without limitation, matters relating to the environmental condition
of the Property), whether obtained through documents, oral or written
communications, or otherwise, but excluding information that has entered the
public domain (collectively, the "Confidential Information"), in the strictest
confidence until the Close of Escrow. Notwithstanding the foregoing, Buyer and
Seller may make necessary disclosures to potential lenders, partners, attorneys,
consultants, brokers, tenants, accountants, SEC disclosures and purchasers that
likewise are advised not to disclose the Agreement to the market but limit
disclosure of the Confidential Information to their respective potential
lenders, partners, attorneys, consultants, brokers, tenants, accountants and
purchasers. Except as required by law, under no circumstances shall any of the
Confidential Information be used for any purpose other than the investigation of
the Property in connection with its purchase by Buyer as contemplated under this
Agreement. Within fourteen (14) days of any termination of this Agreement for
any reason, Buyer shall return to Seller all original materials, together with
any copies made by Buyer, and all copies of any reports or compilations of data
generated from Confidential Information provided by Seller to Buyer, except for
appraisals and financial analyses generated by or made on behalf of Buyer and
those documents which are protected by attorney-client and/or attorney work
product privileges, and Buyer will use reasonable efforts to cause third parties
acting on behalf of Buyer to deliver to Seller all such materials in their
possession.
23. Miscellaneous.
(a) Survival of Covenants. The covenants, representations and
warranties of Buyer and Seller set forth in this Agreement shall survive the
Close of Escrow and shall not be deemed merged upon their recordation.
(b) Required Actions of Buyer and Seller. Buyer and Seller
agree to execute such instruments and documents and to diligently undertake such
actions as may be
-25-
required in order to consummate the transfers herein contemplated and shall use
good faith efforts to accomplish the Close of Escrow in accordance with the
provisions hereof.
(c) Time of Essence. Time is of the essence of each and every
term, condition, obligation and provision hereof. All references herein to a
particular time of day shall be deemed to refer to California time.
(d) Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, but all of which,
together, shall constitute one and the same instrument.
(e) Captions. Any captions to, or headings of, the sections or
subsections of this Agreement are solely for the convenience of the parties
hereto, are not a part of this Agreement, and shall not be used for the
interpretation or determination of the validity of this Agreement or any
provision hereof.
(f) No Obligations to Third Parties. Except as otherwise
expressly provided herein, the execution and delivery of this Agreement shall
not be deemed to confer any rights upon, nor obligate any of the parties
thereto, to any person or entity other than the parties hereto.
(g) Exhibits. The Exhibits attached hereto are hereby
incorporated herein by this reference for all purposes.
(h) Amendment to this Agreement. The terms of this Agreement
may not be modified or amended except by an instrument in writing executed by
each of the parties hereto.
(i) Waiver. The waiver or failure to enforce any provision of
this Agreement shall not operate as a waiver of any future breach of any such
provision or any other provision hereof.
(j) Applicable Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of California.
Any action or proceeding brought to enforce or interpret this Agreement shall be
commenced within the County of Santa Clara, California.
(k) Fees and Other Expenses. Except as otherwise provided
herein, each of the parties shall pay its own fees and expenses in connection
with this Agreement.
(l) Entire Agreement. This Agreement supersedes any prior
agreements, negotiations and communications, oral or written, and contains the
entire agreement between Buyer and Seller as to the subject matter hereof. No
subsequent agreement, representation, or promise made by either party hereto, or
by or to an employee, officer, agent or
-26-
representative of either party shall be of any effect unless it is in writing
and executed by the party to be bound thereby.
(m) Successors and Assigns. Subject to the assignment
provisions of this Agreement, this Agreement shall be binding upon and shall
inure to the benefit of the successors and assigns of the parties hereto.
(n) Independent Counsel. Buyer and Seller each acknowledge
that: (i) they have been represented by independent counsel in connection with
this Agreement; (ii) they have executed this Agreement with the advice of such
counsel; and (iii) this Agreement is the result of negotiations between the
parties hereto and the advice and assistance of their respective counsel. The
fact that this Agreement was prepared by Seller's counsel as a matter of
convenience shall have no import or significance. Any uncertainty or ambiguity
in this Agreement shall not be construed against Seller because Seller's counsel
prepared this Agreement in its final form.
(o) This Instrument. Seller's delivery of unsigned copies of
this Agreement (and unsigned copies of documents referred to in this Agreement)
is solely for the purpose of review by the party to whom delivered, and neither
the delivery nor any prior communications between the parties, whether oral or
written, shall in any way be construed as an offer by Seller, nor in any way
imply that Seller is under any obligation to enter the transaction which is the
subject of this Agreement. This instrument, once it has been signed by Seller
and Buyer and a duplicate original thereof delivered by Seller and Buyer, shall
contain the entire and only agreement between the parties, and no oral
statements, representations, or prior written matter not contained in this
instrument shall have any force or effect.
(p) Delivery of Possession. Upon the Close of Escrow, Seller
shall deliver possession of the Property to Buyer, free and clear of any
tenancies or contracts or rights of third parties not previously disclosed in
writing by Seller to Buyer. For purposes of this Agreement, delivery of
possession of the Property shall mean the assignment by Seller to Buyer of
Seller's interest in the Master Lease.
24. Environmental Provisions.
(a) Site Cleanup. The Property is subject to: (i) an Imminent
Or Substantial Endangerment Order and Remedial Action Order issued by the State
of California, Health and Welfare Agency, Department of Health Services, Toxic
Substances Control Program ("DTSC"), HSA-89/90-012, as amended (the "Hillview
Avenue Order"); and (ii) a Remedial Action Order of the State issued by the
State of California, Health and Welfare Agency, Department of Health Services,
Toxic Substances Control Division [predecessor to the DTSC] HSA88/89-016, as
amended (the "Regional Order"). (The Hillview Avenue Order and the Regional
Order are sometimes collectively referred to herein as the "Order"). In
addition, Seller and Buyer have entered into that certain Confidential
-27-
Environmental Settlement Agreement, Release and Covenant Not To Xxx, dated
September 17, 1997 (the "Covenant Not To Xxx").
(b) Assignment of Seller's Rights Under The Remediation
Agreement. In lieu of any other right or remedy (whether under this Agreement,
at law, or in equity), which might otherwise have been possessed by Buyer as the
result of the presence of Hazardous Materials on the Property whenever
occurring, upon the Close of Escrow, Seller shall, and does hereby: (i) grant,
assign, and convey to Buyer the non-exclusive right, in common with Seller, to
assert Seller's rights and remedies under the Remediation Agreement and the
Environmental Insurance; and (ii) delegate to Buyer all of Seller's duties
arising under the Remediation Agreement after the Close of Escrow. In connection
with the foregoing, Buyer acknowledges that Buyer is familiar with the terms and
conditions of the Remediation Agreement, and, effective upon the Close of
Escrow, Buyer shall, and does hereby, assume and agree to perform all of the
obligations of Seller arising after the Close of Escrow under the Remediation
Agreement, including, without limitation (and subject to the terms of the New
Lease) the obligation to provide Consultant, and Consultant's employees, agents,
and contractors, with access to the Property as set forth therein.
Notwithstanding the foregoing, Buyer shall timely execute any assignment and/or
assumption agreement reasonably requested by Consultant and/or Seller in
connection with such assumption. Seller represents and warrants to Buyer that,
to the best of Seller's knowledge, on the date of execution of this Agreement:
(i) Seller has performed all obligations of Seller to be performed under the
Remediation Agreement on or before the date of execution of this Agreement; and
(ii) no event of default exists under the Remediation Agreement on the part of
either party and no condition exists that, with the passage of time or
otherwise, would give rise to an event of default under the Remediation
Agreement. Buyer acknowledges and agrees that performance of Consultant's
obligations under the Remediation Agreement will continue in, on, under, and/or
about the Property after the Close of Escrow and may continue after the
expiration or earlier termination of the New Lease. Buyer further acknowledges
and agrees that neither Seller nor Consultant can accurately estimate the time
for completion of performance of Consultant's obligations under the Remediation
Agreement.
(c) Waiver of Hazardous Materials Claims Against Seller. Buyer
shall have the right for a period of ninety (90) days following the latest of
the following to occur ("Inspection Period"): (i) the Closure Certification
Date; (ii) the expiration or earlier termination of the New Lease; or (iii)
surrender of possession of the Property by Seller; to conduct such testing and
inspections as Buyer reasonably deems necessary or appropriate in order to
determine whether or not any Hazardous Materials (other than those previously
disclosed to Buyer, including, without limitation, those subject to the
Remediation Agreement, the Hillview Avenue Order, and the Regional Order) are
then present in the soil beneath the pads of the Buildings in sufficient
quantities to require remediation under applicable environmental laws, and to
provide written notice of the presence of such Hazardous Materials to Seller
(such additional remediation shall be referred to herein as the "Additional
Environmental Work"). If Buyer reasonably determines that any Additional
-28-
Environmental Work is required, all such Additional Environmental Work shall be
done at the reasonable direction of Buyer, but at Seller's reasonable cost and
expense. Seller acknowledges and agrees that the cost of such work may be paid
through the Environmental Insurance or otherwise deducted from the Security
Deposit given by Seller pursuant to the New Lease. Buyer shall notify Seller in
writing not less than two (2) business days prior to Buyer and/or Buyer's
representatives conducting any excavations, investigations, sampling, testing,
analysis (collectively referred to herein as the "Investigation Activities")
and/or remediation activity relating to the Property, whether such Investigation
Activities are conducted in, on, under, or off the Property, and Seller and/or
Seller's representatives shall have the right to be present during any such
Investigation Activities and/or remediation activity conducted by Buyer and/or
Buyer's representatives. In addition, during the Inspection Period, Seller may
conduct independent testing of any areas of the Property which could be subject
to Additional Environmental Work and any samples obtained by Buyer ("Seller's
Investigation Activities"). Upon request from Seller, Buyer shall provide Seller
with "split" samples of any samples taken from any location as part of
Investigation Activities conducted by Buyer and/or Buyer' representatives in
accordance with this section. Seller shall notify Buyer in writing not less than
two (2) business days prior to conducting any Seller's Investigation Activities
relating to the Property, whether such Seller's Investigation Activities are
conducted in, on, under, or off the Property, and Buyer and/or Buyer's
representatives shall have the right to be present during any such Seller's
Investigation Activities conducted by Seller and/or Seller's representatives.
Upon request from Buyer, Seller shall provide Buyer with "split" samples of any
samples taken from any location as part of Investigation Activities conducted by
Seller and/or Seller's representatives in accordance with this section. Other
than with respect to claims arising: (i) under the Remediation Agreement; (ii)
in connection with obtaining any Site Closure Certification; (iii) which are
required to be remediated as Additional Environmental Work; or (iv) in
connection with a breach by Seller of Seller's obligations under the New Lease,
Buyer shall have no right to assert any claim(s) against Seller, and/or any of
Seller's directors, officers, shareholders, employees, agents, or contractors
(other than Consultant and the Environmental Insurers), and/or any of their
respective successors and assigns, arising from the presence of Hazardous
Materials in, on, under, or about the Property, whenever occurring, whether
presently known or unknown, and Buyer does hereby waive, deny, disclaim, and
release any and all such claims, liabilities, charges, costs, damages, and/or
expenses (including without limitation reasonable attorneys' fees and costs). In
connection with the foregoing, Buyer waives the protections of Section 1542 of
the California Civil Code, which states as follows: "General Release--Claims
Extinguished. A general release does not extend to claims which the creditor
does not know or suspect to exist in his favor at the time of executing the
release, which if known by him must have materially affected his settlement with
the debtor."
(d) Site Closure. Buyer acknowledges that the Property, and/or
portions thereof, may require a Site Closure Certification. Seller, at its sole
cost and expense, shall take all action required to obtain such Site Closure
Certification, if required, prior to the
-29-
expiration of the term of the New Lease. If Seller determines that a Site
Closure Certification is not required, Seller shall deliver evidence reasonably
satisfactory to Buyer that a Site Closure Certification is not required. For
purposes of this paragraph, a letter signed by Consultant delivered to Buyer and
to any Certifying Agencies certifying that a Site Closure Certification is not
required with respect to surrender of the Property to Buyer by Seller and/or
Stellex shall be deemed satisfactory to Buyer.
25. Consent of Master Landlord. Intentionally Omitted
26. Post Closing Indemnity. Buyer shall indemnify, defend, and hold
Seller harmless from and against any and all liabilities, charges, claims,
costs, damages, and expenses (including, without limitation, reasonable
attorneys' fees and costs) arising out of any failure or alleged failure by
Buyer to perform any of the obligations of Buyer relating to the Property,
including, without limitation, all obligations of Buyer as successor tenant
under the Master Lease, and, except as set forth in the Remediation Agreement,
all other documents and agreements in effect concerning the Property, and as
tenant in possession under all laws affecting the Property, as well as any
Hazardous Materials contamination of the Property, whenever occurring, unless
such contamination was not disclosed by Seller to Buyer prior to the Close of
Escrow, and such contamination is shown by Buyer through clear and convincing
evidence to have resulted from the sole active negligence or intentional act of
Seller and/or Seller's employees, agents, or contractors. This indemnity shall
survive the Close of Escrow and recordation of the deed.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first written above.
SELLER: BUYER:
XXXXXXX-XXXXXXX COMPANY, THE BOARD OF TRUSTEES OF THE XXXXXX
a California corporation STANFORD JUNIOR UNIVERSITY, a body
having corporate powers under the
laws of the State of California
/s/ Xxxxx X. Xxxxxxxx /s/ X. X. Xxxxxxxx, Xx.
--------------------------------------- -----------------------------------
By: Xxxxx X. Xxxxxxxx By: Stanford Management Company
--------------------------------------- Its: President
Its: Executive Vice President and CFO
---------------------------------
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ACCEPTANCE BY ESCROW HOLDER
The undersigned First American Title Guaranty Company hereby
acknowledges receipt of a fully executed original of the foregoing Agreement for
Assignment of Leasehold Interest, Sublease of Property, Leaseback of Real
Property, and Joint Escrow Instructions, or a true copy thereof, and agrees to
act as the Escrow Holder for the transactions contemplated thereunder.
ESCROW HOLDER:
FIRST AMERICAN
TITLE GUARANTY COMPANY
Dated: September 30, 1999 /s/ X. X. Xxxxxx
----------------------------------
By: X. X. Xxxxxx
----------------------------------
Its: Assistant Secretary
----------------------------------
AGREEMENT FOR ASSIGNMENT OF LEASEHOLD INTEREST,
SUBLEASE OF PROPERTY, LEASEBACK OF REAL PROPERTY
AND JOINT ESCROW INSTRUCTIONS
SCHEDULE OF EXHIBITS
EXHIBIT A - Legal Description of the Leased Land
EXHIBIT B - The Master Lease
EXHIBIT C - The Sublease
EXHIBIT D - Legal Description of the Building 6 Property
EXHIBIT E - Legal Description of the Driveway
EXHIBIT F - The Remediation Agreement
EXHIBIT G - The Preliminary Report
EXHIBIT H - Master Lease Assignment Agreement
EXHIBIT I - The New Lease
EXHIBIT J - The Demolition Plan
EXHIBIT K - The Subordination Agreement
EXHIBIT L - The Natural Hazards Report
EXHIBIT M Environmental Assignment
EXHIBIT N Merger Acknowledgment
