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EXHIBIT 10.18
AGREEMENT OF PURCHASE AND SALE
BETWEEN
CIGNA PROPERTY AND CASUALTY INSURANCE COMPANY, SELLER
AND
SYMANTEC CORPORATION, PURCHASER
CUPERTINO CITY CENTER ONE
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TABLE OF CONTENTS
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Article 1 Property 1
Article 2 Purchase Price and Deposits 1
Article 3 Failure to Close 3
3.1 Purchaser's Default 3
3.2 Seller's Default 3
Article 4 Closing and Transfer of Title 4
4.1 Closing 4
4.2 Closing Procedure 4
4.3 Purchaser's Performance 6
4.4 Evidence of Authority; Miscellaneous 6
Article 5 Prorations of Rents, Taxes, Etc. 6
Article 6 Purchaser Inspections and Contingencies 8
6.1 Document Inspection 8
6.2 Physical Inspection 9
6.3 Feasibility Period 10
6.4 Survey 10
6.5 Title Contingency 10
Article 7 Loss due to Casualty or Condemnation 11
7.1 Loss due to Condemnation 11
7.2 Loss due to Casualty 12
Article 8 Maintenance of the Property 13
Article 9 Broker 14
Article 10 Representations and Warranties 15
10.1 Limitations on Representations and Warranties 15
10.2 Representations and Warranties 16
10.3 Seller's Knowledge 17
10.4 Survival 18
Article 11 Liability of Parties 18
Article 12 Assignment 19
Article 13 Notices 19
Article 14 Expenses 20
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TABLE OF CONTENTS (Continued)
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Article 15 Miscellaneous 21
15.1 Successors and Assigns 21
15.2 Gender 21
15.3 Captions 21
15.4 Construction 21
15.5 Entire Agreement 21
15.6 Recording 22
15.7 No Continuance 22
15.8 Time of Essence 22
15.9 Original Document 22
15.10 Governing Law 22
15.11 Acceptance of Offer 22
15.12 Confidentiality 22
15.13 Surviving Covenants 22
15.14 Attorneys' Fees 23
15.15 Exclusivity Period 23
Exhibit A - Description of Land
Exhibit B - Rent Roll
Exhibit C - Special Warranty Deed
Exhibit D - Xxxx of Sale
Exhibit E - Assignment of Leases
Exhibit F - Form of Seller's Affidavit of
Non-Foreign Status
Exhibit G - Pending Litigation
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AGREEMENT OF PURCHASE AND SALE
THIS AGREEMENT OF PURCHASE AND SALE is made by and between CIGNA
Property and Casualty Insurance Company, a Connecticut corporation ("Seller"),
and Symantec Corporation, a Delaware corporation ("Purchaser"), as of the
"Effective Date" (as defined below).
Article I.
Property
Seller hereby agrees to sell, and Purchaser hereby agrees to buy, all of
the following property: (a) a parcel of real property (the "Land"), located in
the County of Santa Xxxxx, State of California, more particularly described on
Exhibit A attached to this Agreement, together with easements, easement rights,
rights of way, rights in and to common areas and any other rights appurtenant to
the Land; (b) the buildings and other improvements located on the Land, being a
four story office building located at 00000 Xxxxxxx Xxxxx Xxxxxxxxx, Xxxxxxxxx,
Xxxxxxxxxx, generally known as Cupertino City Center One (the "Improvements");
(c) all tenant leases relating to the Improvements, being the leases referred to
on the Rent Roll attached hereto as Exhibit B (the Land, Improvements, and
tenant leases are referred to herein, collectively, as the "Real Property"); and
(d) all fixtures, equipment, and other personal property (both tangible and
intangible, including, without limitation, any service and maintenance
agreements applicable thereto, other than the property management agreement,
which shall be terminated) owned by Seller and contained in or related to the
Improvements (the "Personal Property") (collectively, the Real Property and the
Personal Property are sometimes referred to herein as the "Property").
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Article II.
Purchase Price and Deposits
The purchase price which the Purchaser agrees to pay and the Seller
agrees to accept for the Property shall be the sum of Thirty-One Million, Five
Hundred Thousand and No/100 Dollars ($31,500,000) (hereinafter referred to as
the "Purchase Price"), subject to adjustment as provided in Article V hereof,
payable as follows:
(a) An xxxxxxx money deposit ("Xxxxxxx Deposit") of Three
Hundred Thousand and No/100 Dollars ($300,000), in cash, to be deposited
with First American Title Insurance Company (the "Title Company") within
three (3) business days after execution hereof by both parties, such
amount to be held in escrow and deposited in an interest-bearing
account;
(b) An additional xxxxxxx money deposit (the "Additional
Deposit") of Three Hundred Thousand and No/100 Dollars ($300,000), in
cash, to be deposited by Purchaser with the Title Company, within three
(3) business days after expiration of the Feasibility Period
(hereinafter defined), such amount to be held in escrow and deposited in
an interest-bearing account (the Xxxxxxx Deposit and the Additional
Deposit, with interest thereon, will be referred to hereinafter,
collectively, as the "Deposit"); and
(c) The balance of the Purchase Price shall be paid at time
of Closing by Federal wire transfer, with the transfer of funds to
Seller to be completed on the day of the Closing.
The Deposit shall be paid to Seller at the Closing as a credit against
the Purchase Price. Purchaser shall provide the Title Company with its tax
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identification number, and all interest shall be for Purchaser's account for
tax purposes.
In addition to the Deposit, Purchaser shall deposit five fully executed
copies of this Agreement with the Title Company immediately after both parties
have executed it. The date of such deposit shall be acknowledged by the Title
Company on all copies, and such date shall be the "Effective Date" of this
Agreement. The Title Company shall retain one copy of this Agreement and
deliver two copies hereof to each of Purchaser and Seller.
Article III.
Failure to Close
3.1 Purchaser's Default.
IF SELLER HAS COMPLIED WITH ALL OF THE COVENANTS AND CONDITIONS CONTAINED
HEREIN AND IS READY, WILLING AND ABLE TO CONVEY THE PROPERTY IN ACCORDANCE WITH
THIS AGREEMENT AND PURCHASER FAILS TO CONSUMMATE THIS AGREEMENT AND TAKE TITLE,
THEN THE PARTIES HERETO RECOGNIZE AND AGREE THAT THE DAMAGES THAT SELLER WILL
SUSTAIN AS A RESULT THEREOF WILL BE SUBSTANTIAL, BUT DIFFICULT IF NOT
IMPOSSIBLE TO ASCERTAIN. THEREFORE, THE PARTIES AGREE THAT, IN THE EVENT OF
PURCHASER'S DEFAULT, SELLER SHALL, AS ITS SOLE REMEDY, BE ENTITLED TO RETAIN
THE DEPOSIT AS LIQUIDATED DAMAGES, AND NEITHER PARTY SHALL HAVE ANY FURTHER
RIGHTS OR OBLIGATIONS WITH RESPECT TO THE OTHER UNDER THIS AGREEMENT, EXCEPT
FOR THE SURVIVING COVENANTS (HEREINAFTER DEFINED).
SELLER'S INITIALS: PURCHASER'S INITIALS:
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3.2 Seller's Default. In the event that Purchaser has complied with
all of the covenants and conditions contained herein and is ready, willing and
able to take title to the Property in accordance with this Agreement, and
Seller fails to consummate this Agreement and convey title as set forth
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herein, then Purchaser shall have, as its sole and exclusive remedy the right
to either (i) terminate this contract and recover the Deposit and all of
Purchaser's reasonable out-of-pocket expenses incurred by it in connection with
its due diligence investigation of the Property pursuant to this Agreement
(including, but not limited to, costs of obtaining environmental reports,
appraisals and engineering reports), or (ii) pursue the remedy of specific
performance of Seller's obligations under this Agreement, provided however that
(a) Purchaser must furnish ten (10) days prior written notice to Seller of its
intent and election to seek specific enforcement of this Agreement, and (b)
Purchaser must not be in default under this Agreement. In the event that either
of the conditions set forth in (a) or (b) above is not satisfied, the remedy of
specific performance shall be deemed waived by Purchaser.
Notwithstanding any of the foregoing to the contrary contained herein,
if Purchaser seeks specific performance under this Agreement, Purchaser agrees
to accept the Property in its "WHERE IS, AS IS" condition. Purchaser further
hereby agrees that prior to its exercise of any right or remedies as a result
of any defaults by Seller, Purchaser will first deliver written notice of said
default to Seller and give Seller ten (10) days thereafter in which to cure
said default, if Seller so elects. Except as specifically provided herein,
Purchaser shall have no right to seek money damages of any kind as a result of
any default by Seller under any of the terms of this Agreement. Purchaser's
claim and any recovery of damages shall be limited to direct damages from
Seller's breach of this Agreement, and in no event shall Seller be liable to
Purchaser for any punitive, speculative, incidental, consequential or any
other type of damages. If for any reason the remedy of specific performance is
denied Purchaser following all available court proceedings, or Purchaser
discontinues the action for specific performance, then the Deposit, if
applicable, shall be returned to Purchaser and Seller shall then be released
from any further liability to Purchaser in reference to this Agreement.
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Article IV.
Closing and Transfer of Title
4.1 Closing. The parties hereto agree to conduct a closing of this
sale (the "Closing") on or before 10:00 a.m. E.S.T. on October 22, 1996
("Closing Date") in the principal office of Xxxxxxxx & Xxxxxxxx, or at such
other place as may be agreed upon by the parties hereto. This Agreement shall
terminate if transfer of title is not completed by the Closing Date (unless
such failure to close is due to Seller's default, the date for Closing is
extended pursuant to any provision hereof, including, without limitation, the
matters described in Sections 6.3, 6.5 and Article VII hereof, or the date for
Closing is extended by agreement of the parties, which agreement shall be
confirmed in writing).
4.2 Closing Procedure. Seller shall execute and deliver or cause to
be delivered (a) a Grant Deed, in the form attached hereto as Exhibit C, proper
for recording, conveying Seller's interest in the Real Property to Purchaser,
subject, however, to (i) exceptions as reported in the Title Report (defined in
Section 6.5) and either approved by Purchaser or as to which objection has been
waived by Purchaser, or as shown on the Survey (as defined in Section 6.4),
(ii) taxes not yet delinquent, (iii) the rights of lessees and licensees of
space in the Improvements at the time of Closing (to the extent such lessees
and licensees are listed on the Rent Roll), and (iv) any encumbrances created
or permitted by the terms of this Agreement; (b) a Xxxx of Sale in the form
attached hereto as Exhibit D, dated as of the date of Closing conveying to
Purchaser any and all Personal Property; (c) an Assignment of Leases in the
form attached hereto as Exhibit E, dated the date of Closing, assigning all of
the landlord's right, title and interest in and to any tenant and other leases
covering all or any portion of the Real Property; (d) an Owner's Title
Insurance Policy (the "Owner's Title Policy") dated no earlier than the date of
the recording of the Deed, in the full amount of the Purchase Price, insuring
that good and indefeasible fee simple
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title to the Property is vested in Purchaser, containing no exceptions to such
title other than the standard printed exceptions (provided, however, that (i)
the printed survey exception must be deleted, except for matters shown on the
Survey, (ii) the exception as to ad valorem taxes shall be limited to taxes for
the current and subsequent years, and (iii) the exception for tenants and
parties in possession shall be limited to those tenants, licensees, and
occupants shown on the Rent Roll delivered at Closing), those items listed on
Schedule "B" of the Title Report that either were approved by Purchaser or as
to which objection has been waived by Purchaser or cured by Seller (but only as
to the portion of such encumbrance remaining after such cure), and encumbrances
created or permitted by the terms of this Agreement; (e) Tenant Notification
Agreements (the "Tenant Notices"), dated the date of the Closing, executed by
Seller, and complying with applicable statutes in order to relieve Seller of
liability for tenant security deposits (provided the security deposits are paid
to Purchaser), notifying the tenants of the Real Property that the Property has
been sold to Purchaser and directing the tenants to pay rentals to Purchaser
(or Purchaser's designated agent); (f) the originals of all leases and, to the
extent in Seller's possession or under Seller's control, as-built plans and
specifications and maintenance and service contracts that are to be assumed;
(g) a tenant estoppel certificate executed by Canon, in form and substance
satisfactory to Purchaser, which certificate shall identify the lease documents
and state the date of commencement and termination of the lease term, the rent
currently being paid, the amount of any rental payments made in advance, if any,
the amount of any security deposit, if any, that no party is in default under
the lease, and the date to which rent has been paid and shall list any renewal
options that exist, (except that Seller agrees to use reasonable efforts to
obtain such estoppel certificates from all other tenants of space in the
Improvements other than Purchaser, and Seller shall represent and warrant to
the best of Seller's knowledge as to the same matters for all leases shown on
the Rent Roll (except the lease to Purchaser) for which no tenant estoppel
certificate was obtained); (h) an updated Rent Roll, in the form of the Rent
Roll attached
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hereto as Exhibit B, dated within 15 days of the date of the Closing; (i) an
affidavit that Seller is not a "foreign person" in the form attached as Exhibit
G and the corresponding California Form 590 RE Form; (j) a master key or
duplicate key for all locks in the Improvements; and (k) to the extent in the
possession of Seller or Seller's property management company, all maintenance
records.
Purchaser acknowledges and agrees that Seller is under no obligation to
clear from the title any easements, rights of way, encumbrances, liens,
covenants, restrictions, or any other matters of record, or to cure any survey
objections of Purchaser, or to create any encumbrances on, or for the benefit
of, the Property, except any monetary liens or encumbrances against the
Property created by Seller on or after the Effective Date and any existing
mortgages or deeds of trust encumbering the Property (which shall be satisfied
in full by Seller on or before the Closing Date). Except as set forth above, if
Seller does not deliver title at Closing in form consistent with the Title
Report as approved or deemed approved in accordance with the terms hereof, such
failure shall not constitute a default or breach by Seller hereunder, and
notwithstanding any other provision of this Agreement, Purchaser's sole and
exclusive remedy shall be to terminate this Agreement and receive a return of
the Deposit or to accept conveyance of title as delivered by Seller without
reduction of the Purchase Price.
4.3 Purchaser's Performance. At the Closing, Purchaser will cause the
Purchase Price to be delivered to the Title Company, will execute and deliver
the Tenant Notices, the Assignment of Leases, and the Xxxx of Sale.
4.4 Evidence of Authority; Miscellaneous. Both parties will deliver
to the Title Company and each other such evidence or documents as may
reasonably be required by the Title Company or either party hereto evidencing
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the power and authority of Seller and Purchaser and the due authority of, and
execution and delivery by, any person or persons who are executing any of the
documents required hereunder in connection with the sale of the Property. Both
parties will execute and deliver such other documents as are reasonably
required to effect the intent of this Agreement.
Article V.
Prorations of Rents, Taxes, Etc.
Real estate taxes for the year of closing shall be prorated as of the
date of Closing either using actual tax figures or, if actual figures are not
available, then using as a basis for said proration the most recent assessed
value of the Real Estate multiplied by the current tax rate, with a subsequent
cash adjustment to be made between Purchaser and Seller when actual tax figures
are available. Personal property taxes, annual permit or inspection fees, sewer
charges and other expenses normal to the operation and maintenance of the
Property shall also be prorated as of the date of Closing. Rents that have been
collected for the month of the Closing will be prorated at the Closing, effect
as of the date of the Closing. With regard to rents that are delinquent as of
the date of the Closing, (i) no proration will be made at the Closing, (ii)
Purchaser will make a good faith effort after the Closing to collect the rents
in the usual course of Purchaser's operation of the Property, and (iii)
Purchaser will apply all rents collected first to the current rents and the
excess amount, if any, shall be applied to the delinquent rent owed to Seller.
It is agreed, however, that Purchaser will not be obligated to institute any
lawsuit or other collection procedures to collect delinquent rents. Rents
collected by Purchaser after the Closing Date, to which Seller is entitled,
shall be promptly paid to Seller.
As of the Closing Date, Purchaser shall be entitled to a credit for any
tenant deposits under the leases.
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Final readings on all gas, water and electric meters shall be made as
of the date of closing, if possible. If final readings are not possible, gas,
water and electricity charges will be prorated based on the most recent period
for which costs are available. Any deposits made by Seller with utility
companies shall be returned to Seller. Purchaser shall be responsible for
making all arrangements for the continuation of utility services. After the
Closing, Purchaser will assume full responsibility for all security deposits
and advance rental deposits of current tenants of the Real Property currently
held by Seller, which items will be itemized by Seller and transferred and paid
over to Purchaser at the Closing.
All items (including taxes) that are not subject to an exact
determination shall be estimated by the parties. When any item so estimated is,
after the Closing capable of exact determination, the party in possession of
the facts necessary to make the determination shall send the other party a
detailed report on the exact determination so made and the parties shall adjust
the prior estimate within thirty (30) days after both parties have received
said reports.
ARTICLE VI.
Purchaser Inspections and Contingencies
6.1 Document Inspection. Seller has made or will make available
within ten (10) days from the Effective Date of this Agreement the following
items relating to the Real Property for review by Purchaser, to the extent in
Seller's or its property manager's possession:
1. Copies of all leases and other occupancy agreements applicable
to the Property;
2. Copies of all licenses and permits regarding the Property;
3. Seller's existing survey of the Property;
4. Copies of any warranties or guarantees currently in effect (if
any);
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5. As-built plans and specifications for the improvements on the
Property and any soil reports, environmental reports,
engineering and architectural studies, grading plans,
topographical maps, and similar data relating to the Property;
6. A copy of Seller's policy of lender's title insurance;
7. Copies of all service and maintenance agreements;
8. A Rent Roll prepared as of the first day of the month in which
this Agreement is executed; and
9. Books and records of the Property.
Purchaser acknowledges that Seller took title to the Property through
deed in lieu of foreclosure on March 1, 1995, and that Seller has limited
records and knowledge pertaining to prior periods of time.
Seller shall also provide to Purchaser on or before two (2) business
days before the expiration of the Feasibility Period an updated Rent Roll for
the Property for review by Purchaser.
Purchaser agrees that if for any reason the Closing is not consummated,
Purchaser will immediately return to Seller all materials furnished to
Purchaser pursuant to this Section 6.1.
6.2 Physical Inspection. In addition to the items set forth in
Section 6.1, Seller will make the Property available for inspection by
Purchaser and Purchaser shall, at Purchaser's option and risk, conduct an
engineering and/or market and economic feasibility study of the Property and
undertake such physical inspection of the Property as Purchaser deems
appropriate as soon as possible after the Effective Date of this Agreement.
Such inspection shall be conducted at reasonable times upon reasonable oral or
written notice to Seller's property manager. Seller shall have the right to
designate a representative to accompany Purchaser's employees, agents, and
independent contractors on any such inspections.
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Purchaser hereby agrees to pay, protect, defend, indemnify and save
Seller harmless against all liabilities, obligations, claims (including
mechanic's lien claims), damages, penalties, causes of action, judgments, costs
and expenses (including, without limitation, attorneys' fees and expenses)
imposed upon, incurred by or asserted against Seller in connection with or
arising out of the entry upon the Real Property by Purchaser's employees,
agents or independent contractors and the actions of such persons on the Real
Property. In the event any part of the Property is damaged or excavated by
Purchaser, its employees, agents or independent contractors, Purchaser agrees
in the event its purchase hereunder is not consummated, to make such additional
payments to Seller as may be reasonably required to return the Property to its
condition immediately prior to such damage or excavation or, at Seller's
option, to cause such work to be done. Notwithstanding any provision to the
contrary herein, Purchaser's obligations under this subparagraph shall survive
the expiration or termination of this Agreement, and shall survive Closing.
6.3 Feasibility Period. Purchaser shall have a period ending 5:00
p.m. E.D.T. September 19, 1996 to conduct its inspection of the documents
delivered in accordance with Section 6.1 and to conduct a physical inspection
of the Property as set forth in Section 6.2 (the "Feasibility Period"). On or
before the last day of the Feasibility Period, Purchaser may, in its sole
discretion without obligation to specify which aspect of its inspection was
unsatisfactory, terminate this Agreement by providing a written notice to
Seller so providing. Upon receipt of such notice, this Agreement shall
terminate and Seller shall instruct the Title Company to return the Deposit to
Purchaser, and neither party shall have any obligation to the other, except for
the Surviving Covenants. If Purchaser fails to provide such notice of
termination on or before the last day of the Feasibility Period, Purchaser
shall be deemed to have approved such inspections and this contract shall
remain in full force and effect.
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6.4 Survey. Purchaser shall obtain, within ten (10) business days of
the Effective Date of this Agreement, a survey of the Real Property by a
registered surveyor (the "Survey"). The Survey shall show the location of all
improvements, structures, driveways, parking areas, easements, rights of way,
and any encroachments and shall specify whether the Property is within the 100
year flood plain or flood way. The Survey shall further set forth a legal
description of the boundaries of the Real Property in accordance with local
practices. Purchaser's obligations hereunder do not constitute a contingency
for closing under this Agreement.
6.5 Title Contingency. Purchaser's obligation to purchase the
Property is subject to its receipt of a preliminary title report (the "Title
Report"), issued by the Title Company, together with legible copies of all
items and documents referred to in the Title Report. Purchaser acknowledges
that the Title Report and accompanying documents have been delivered to
Purchaser by Seller. Purchaser shall have until the last day of the
Feasibility Period to state any objections in writing. This contingency shall
be deemed satisfied or waived if such written notice of objection is not
received by Seller before such date. Such written notice of objection shall
state all of Purchaser's objections with specificity. Upon receipt of such
notice, Seller may, but shall not be obligated to, cure such objection, except
for monetary encumbrances in an amount in the aggregate below $100,000. If
Seller cures such objections within 15 days, or, if such objections are such
that they cannot be cured within 15 days and Seller has commenced curing such
objections and thereafter diligently proceeds to perfect such cure, then this
Agreement shall continue in full force and effect and the Closing Date shall be
adjusted accordingly. If Seller is unable or chooses not to cure such
objections within the time permitted, then this Agreement shall terminate, and
Seller shall instruct the Title Company to return the Deposit to Purchaser, and
neither party shall have any further obligations hereunder except for the
Surviving Covenants. Notwithstanding the foregoing, however, Purchaser may
waive such objections that Seller is unable or chooses not to cure within 10
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days after receipt of a notice that Seller is unable or chooses not to cure
such objections, and upon receipt by Seller of such waiver in full from
Purchaser, this Agreement shall remain in full force and effect with no
reduction in the Purchase Price.
If required by Seller, Purchaser will confirm in writing whether this
title contingency has been satisfied and, if so, the date on which it was
satisfied.
Article VII.
Loss due to Casualty or Condemnation
7.1 Loss due to Condemnation. In the event of a condemnation of all
or a Substantial Portion of the Real Property which condemnation shall or would
render a Substantial Portion of the Real Property untenantable, or if any
portion of the building or parking area is taken, either party may, upon
written notice to the other party given within 10 days of receipt of notice of
such event, cancel this Agreement, in which event Seller shall instruct the
Title Company to return the Deposit to Purchaser, this Agreement shall
terminate and neither party shall have any rights or obligations hereunder
except for the Surviving Covenants. In the event that neither party elects to
terminate, or if the condemnation affects less than a Substantial Portion or
does not affect the building or parking area, then this Agreement shall remain
in full force and effect, and Seller shall be entitled to all monies received
or collected by reason of such condemnation prior to closing. In such event,
the transaction hereby contemplated shall close in accordance with the terms
and conditions of this Agreement except that there will be an abatement of the
Purchase Price equal to the amount of the net proceeds, less costs and
attorney's fees, which are received by Seller by reason of such condemnation
prior to closing. If the condemnation proceeding shall not have been concluded
prior to the closing, then there shall be no abatement of the Purchase Price
and Seller shall assign any interest it has in the pending
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award to Purchaser. For purposes of this Section 7.1, a Substantial Portion
shall mean a condemnation of in excess of $5,000,000 in value of the Real
Property.
7.2 Loss due to Casualty. In the event of Substantial Loss or Damage
to the Real Property by fire or other casualty, either party may, upon written
notice to the other party given within 10 days of receipt of notice of such
event, cancel this Agreement in which event Seller shall instruct the Title
Company to return the Deposit to Purchaser and this Agreement shall terminate
and neither party shall have any rights or obligations hereunder except for the
Surviving Covenants. In the event that neither party elects to terminate, then
this Agreement shall remain in full force and effect, the transaction hereby
contemplated shall close in accordance with the terms and conditions of this
Agreement except that Seller shall assign to Purchaser its rights to all
insurance proceeds by reason of such damage or loss, and there will be an
abatement of the Purchase Price equal to the amount of any loss not covered by
insurance, including without limitation the amount of any deductible, provided
that such abatement will be reduced by the amount expended by Seller in
accordance with Article VIII hereof for restoration or preservation of the
Property following the casualty. In the event that the casualty results in less
than Substantial Loss or Damage and the repair or replacement will take no more
than sixty (60) days to complete, Seller shall repair or replace the damaged
Property, and there shall be no abatement of the Purchase Price in such case. In
the event that the casualty results in less than Substantial Loss or Damage and
the repair or replacement will take more than sixty (60) days to complete, the
transaction hereby contemplated shall close in accordance with the terms and
conditions of this Agreement except that Seller shall assign to Purchaser its
rights to all insurance proceeds by reason of such damage or loss, and there
will be an abatement of the Purchase Price equal to the amount of any loss not
covered by insurance, including without limitation the amount of any deductible,
provided that such abatement will be reduced by the amount expended by Seller in
accordance with Article VIII hereof for restoration or preservation of the
Property following the casualty. In no event shall the date of Closing be
extended beyond sixty (60) days pursuant to this Section 7.2. For purposes of
this Section 7.2, "Substantial Loss or Damage" shall mean loss or damage, the
cost for repair of which exceeds $500,000.
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Article VIII.
Maintenance of the Property
Between the time of execution of this Agreement and the Closing, Seller
shall maintain the Property in good repair, reasonable wear and tear excepted,
shall perform all work required to be done under the terms of any lease or
agreement relating to the Property, and shall timely make all repairs,
maintenance and replacements of equipment or improvements, the same as though
Seller were retaining the Property; except that in the event of a fire or other
casualty, damage or loss, Seller shall have no duty to repair said damage.
However, Seller may repair any such damage with Purchaser's prior, written
approval and may, without Purchaser's approval, repair damage where such repair
is necessary in Seller's reasonable opinion to preserve and protect the health
and safety of tenants of the Property or to preserve the Property from imminent
risk of further damage or if required to do so by Seller's insurance carrier.
Any such emergency repairs shall be reported to Purchaser within 48 hours of
their completion. During the period prior to the Closing and after the latest
to occur of (i) the last day of the Feasibility Period, or (ii) the date on
which the title contingency in Section 6.5 is satisfied, Seller shall not lease
any portion of the Real Property unless such lease has been approved in writing
by Purchaser. Any such proposed lease shall be on Seller's standard form of
lease and shall be reviewed and approved or rejected within five (5) business
days after receipt thereof by Purchaser. Failure to approve or reject such
proposed lease within such period shall be deemed approval. If the proposed
lease is rejected, then Seller shall not enter into such lease. With respect to
any leases entered into between the Effective Date hereof and the Closing Date,
Purchaser shall pay the unamortized cost (based on the number of months in the
entire term of the lease for which rent is paid and the number of such months
that shall have occurred as of the date of the Closing) of all tenant
improvements and leasing commissions with respect thereto.
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Article IX.
Broker
Purchaser and Seller represent to each other that they have dealt with
no agent or broker who in any way has participated as a procuring cause of the
sale of the Property, except Cornish & Xxxxx Commercial ("Cornish"),
Xxxxxx/Xxxxx ("Xxxxxx/Xxxxx"), and XxXxxxxxxx Management Company
("XxXxxxxxxx"). At Closing, Seller shall be responsible for any real estate
brokerage commissions due to Cornish and XxXxxxxxxx in connection with this
transaction, each pursuant to a separate written agreement. In addition, Seller
shall be responsible for a real estate brokerage commission of three-quarters
of one percent (.75%) to Xxxxxx/Xxxxx at the Closing. Purchaser and Seller each
agree to defend, indemnify and hold harmless the other for any and all
judgments, costs of suit, attorneys' fees, and other reasonable expenses which
the other may incur by reason of any action or claim against the other by any
broker, agent, or finder with whom the indemnifying party has dealt arising out
of this Agreement or any subsequent sale of the Property to Purchaser, except
for the above-described commissions, which shall be paid by Seller. The
provisions of this Article IX shall survive the Closing and any termination of
this Agreement.
Article X.
Representations and Warranties
10.1 Limitations on Representations and Warranties. Purchaser hereby
agrees and acknowledges that, except as set forth in Section 10.2 below,
neither Seller nor any agent, attorney, employee or representative of Seller
has made any representation whatsoever regarding the subject matter of this
sale, or any part thereof, including (without limiting the generality of the
foregoing) representations as to the physical nature or condition of the
Property or the capabilities thereof, and that Purchaser, in executing,
delivering and/or performing this Agreement, does not rely upon any statement
Page 16
20
and/or information to whomever made or given, directly or indirectly, orally or
in writing, by any individual, firm or corporation. Purchaser agrees to take
the Real Property and the Personal Property "as is," as of the date hereof,
reasonable wear and tear, and minor damage caused by the removal of any
personal property or fixtures not included in this sale, excepted. SELLER MAKES
NO REPRESENTATIONS OR WARRANTIES AS TO THE PHYSICAL CONDITION OF THE PROPERTY
OR THE SUITABILITY THEREOF FOR ANY PURPOSE FOR WHICH PURCHASER MAY DESIRE TO
USE IT. SELLER HEREBY EXPRESSLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY
AND/OR FITNESS FOR A PARTICULAR PURPOSE AND ANY OTHER WARRANTIES OR
REPRESENTATIONS AS TO THE PHYSICAL CONDITION OF THE PROPERTY. PURCHASER, BY
ACCEPTANCE OF THE DEED, AGREES THAT IT HAS INSPECTED THE PROPERTY AND ACCEPTS
SAME "AS IS" AND "WITH ALL FAULTS".
Purchaser understands that any financial statement and data, including,
without limitation, gross rental income, operating expenses and cash flow
statements, to be made available by Seller to Purchaser, will be unaudited
financial statements and data not prepared or reviewed by independent public
accountants, and that Seller makes no representation as to the accuracy or
completeness thereof.
10.2 Representations and Warranties. Seller makes the following
representations and warranties and agrees that Purchaser's obligations under
this Agreement are conditioned upon the truth and accuracy of such
representations and warranties, both as of this date and as of the date of the
Closing:
(a) Seller has the corporate power and authority to enter into this
Agreement and convey the Property to Purchaser.
(b) To the best of Seller's knowledge, Seller has received no
notice of any existing, pending or threatened litigation, administrative
proceeding
Page 17
21
or condemnation or sale in lieu thereof, with respect to any portion of the
Real Property, except as noted on Exhibit H attached hereto.
(c) Except for those tenants and licensees in possession of the
Real Property under written leases or license Agreements for space in the Real
Property, as shown in the Rent Roll, to the best of Seller's knowledge there
are no parties in possession of, or claiming any possession to, any portion of
the Real Property as leases, tenants at sufferance, licensees, trespassers or
otherwise.
(d) The updated Rent Roll for the Real Property, which shall be
delivered at the Closing, will be true, correct and complete as of the date set
forth thereon; no tenant will be entitled to any rebates, rent concessions, or
free rent (other than as reflected in said Rent Roll) and no rents due under
any of the tenant or other leases will have been assigned, hypothecated, or
encumbered, to any party except pursuant to documents to be released at Closing.
(e) There are no attachments or executions affecting the Property,
general assignments for the benefit of creditors, or voluntary or involuntary
proceedings in bankruptcy, pending or, to the best of Seller's knowledge,
threatened against Seller.
(f) During the period of Seller's ownership of the Property (i.e.
from March 1, 1995 to the Date of Closing) Seller has not itself, and to the
best of Seller's knowledge no prior owner or current or prior tenant or other
occupant of all or any part of the Property at any time has, used Hazardous
Materials (hereinafter defined) on, from, or affecting the Property in any
manner that violates federal, state, or local laws, ordinances, rules, or
regulations governing the use, storage, treatment, transportation, generation,
or disposal of Hazardous Materials (collectively, the "Environmental Laws"),
and to the best of Seller's knowledge no Hazardous Materials are present
Page 18
22
underground beneath the Property or have been disposed of on the Property.
"Hazardous Materials" shall mean any flammable substances, explosives,
radioactive materials, hazardous wastes, toxic substances, pollutants,
pollution, or related materials regulated under any of the Environmental Laws.
10.3 Seller's Knowledge. Whenever the term "to the best of Seller's
knowledge" is used in this Agreement or in any representations and warranties
given to Purchaser at Closing, such knowledge shall be the actual knowledge of
Xxxxxx X. Xxxxxxx and Xxxx Xxxxxx (the "Key Personnel"), the asset manager
assigned to the Real Property by CIGNA Investments, Inc., authorized agent for
Seller, after review of the files of CIGNA Investments, Inc. and inquiry of
Seller's property manager. Seller shall have no duty to conduct any further
inquiry in making any such representations and warranties, and no knowledge of
any other person shall be imputed to the Key Personnel. Purchaser acknowledges
that Seller took title to the Property through deed in lieu of foreclosure on
March 1, 1995, and that Seller has limited records and knowledge pertaining to
prior periods of time.
10.4 Survival. All representations and warranties contained in
Section 10.2 will survive the Closing of this transaction (but only as to the
status of facts as they exist as of the Closing, it being understood that
Seller makes no representations or warranties which would apply to changes or
other matters occurring after the Closing), but shall expire on the date one
year from the date of Closing, and no action on such representations and
warranties may be commenced after such expiration.
ARTICLE XI.
LIABILITY OF PARTIES
Except as specifically set forth herein, (i) Seller on behalf of itself
and its successors and assigns does hereby agree to indemnify and hold
Purchaser, its successors and assigns, harmless from and against all costs,
Page 19
23
charges and expenses related to the ownership, management and operation of the
Property prior to the date of Closing but not thereafter; and (ii) Purchaser on
behalf of itself, its successors and assigns does hereby agree to indemnify and
hold Seller, it successors and assigns, harmless from an against all costs,
charges and expenses relating to the ownership, management and operation of the
Property from and after the date of Closing.
The foregoing indemnities shall not imply any warranties or
indemnities with respect to compliance with environmental and land use laws or
disposal of hazardous materials.
ARTICLE XII.
ASSIGNMENT
Except as provided herein, this Agreement may not be assigned or
transferred by Purchaser without the prior written consent of Seller. Purchaser
shall have the right to assign its interests under this Agreement to (i)
Sumitomo Bank Leasing and Finance, Inc., a Delaware corporation; or (ii) an
assignee (the "Assignee") with the prior written approval of Assignee by Seller
on or before the date five (5) days before Closing, which approval shall not be
unreasonably withheld. No assignment shall relieve Purchaser of any of its
obligations under this Agreement.
ARTICLE XIII.
NOTICES
All notices hereunder or required by law shall be sent via telecopy,
United States Mail, postage prepaid, certified mail, return receipt requested,
or via any nationally recognized commercial overnight carrier with provisions
for receipt, addressed to the parties hereto at their respective addresses set
forth below or as they have theretofore specified by written notice delivered
in accordance herewith:
Page 20
24
PURCHASER: Symantec Corporation
00000 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxx
Telecopier: (000) 000-0000
with a copy to: Xxxx Xxxxx
Xxxxxx Xxxx & Xxxxxxxx
0 Xxxx Xxxxx
Xxxxxx, XX 00000
Telecopier (000) 000-0000
SELLER: CIGNA Property and Casualty Insurance
Company
c/o CIGNA Investments, Inc.
000 Xxxxxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000-0000
Attn: Real Estate Investment Department
Asset Management, S-311
Telecopier: (000) 000-0000
with a copy to: CIGNA Corporation
Investment Law Department
Mortgage and Real Estate Group, S-215A
000 Xxxxxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000-0000
Telecopier: (000) 000-0000
Delivery will be deemed complete upon actual receipt or refusal to accept
delivery. All telecopied notices shall be followed up by notice via another
mode of delivery approved hereunder.
Page 21
25
Article XIV.
Expenses
Seller shall pay (i) its own attorney's fees, (ii) the real estate
transfer stamp, documentary or conveyance taxes, (iii) the cost of an Owner's
title insurance policy without extended coverage or special endorsements issued
in connection with this transaction, and (iv) one-half of the Title Company's
escrow fee. Notwithstanding any local practice to the contrary, Purchaser shall
pay for all other costs and expenses related to the transaction or this
Agreement including but not limited to (a) all of Purchaser's attorneys' fees
and expenses, (b) costs of Purchaser's inspecting architect and engineer, if
any, (c) recording charges, (d) one-half of the Title Company's escrow fee, (e)
the cost of any title insurance in excess of the cost of an Owner's policy
without extended coverage or special endorsements, including any additional
premium charges for endorsements and/or deletions of exception items and any
cancellation charges imposed by any title company in the event a title
insurance policy is not issued, unless caused by willful default of Seller
hereunder, and (f) the cost of the Survey.
Article XV.
Miscellaneous
15.1 Successors and Assigns. All the terms and conditions of this
Agreement are hereby made binding upon the executors, heirs, administrators,
successors and permitted assigns of both parties hereto.
15.2 Gender. Words of any gender used in this Agreement shall be
held and construed to include any other gender, and words in the singular
number shall be held to include the plural, and vice versa, unless the context
requires otherwise.
Page 22
26
15.3 Captions. The captions in this Agreement are inserted only for
the purpose of convenient reference and in no way define, limit or prescribe
the scope or intent of this Agreement or any part hereof.
15.4 Construction. No provision of this Agreement shall be construed
by any Court or other judicial authority against any party hereto by reason of
such party's being deemed to have drafted or structured such provisions.
15.5 Entire Agreement. This Agreement constitutes the entire contract
between the parties hereto and there are no other oral or written promises,
conditions, representations, understandings or terms of any kind as conditions
or inducements to the execution hereof and none have been relied upon by either
party.
15.6 Recording. The parties agree that this Agreement shall not be
recorded. If Purchaser causes this Agreement or any notice or memorandum
thereof to be recorded, this Agreement shall be null and void at the option of
the Seller.
15.7 No Continuance. Purchaser acknowledges that there shall be no
assignment, transfer or continuance of any of Seller's insurance coverage or of
the property management contract.
15.8 Time of Essence. Time is of the essence in this transaction.
15.9 Original Document. This Agreement may be executed by both
parties in counterparts in which event each shall be deemed an original.
15.10 Governing Law. This Agreement shall be construed, and the
rights and obligations of Seller and Purchaser hereunder, shall be determined
in accordance with the laws of the State of California.
Page 23
27
15.11 Acceptance of Offer. This Agreement constitutes Seller's offer
to sell to Purchaser on the terms set forth herein and must be accepted by
Purchaser by signing five copies hereof and depositing such with the Title
Company in accordance with Article II hereof no later than September 4, 1996.
If Purchaser has not accepted this Agreement by such date, then this Agreement
and the offer represented hereby shall automatically be revoked and shall be of
no further force or effect.
15.12 Confidentiality. Purchaser and Seller agree that all documents
and information concerning the Property delivered to Purchaser, the subject
matter of this Agreement, and all negotiations will remain confidential.
Purchaser and Seller will disclose such information only to those parties
required to know it, including, without limitation, employees of either of the
parties, consultants and attorneys engaged by either of the parties, and
prospective or existing investors and lenders.
15.13 Surviving Covenants. Notwithstanding any provisions hereof to
the contrary, the provisions of the second paragraph of Section 6.2 hereof and
the provisions of Article IX hereof (collectively, the "Surviving Covenants")
shall survive the closing and any termination of this Agreement.
15.14 Attorneys' Fees. If either party hereto fails to perform any of
its obligations under this Agreement or if any dispute arises between the
parties hereto concerning the meaning or interpretation of any provision of
this Agreement, then the defaulting party or the party not prevailing in such
dispute, as the case may be, shall pay any and all costs and expenses incurred
by the other party on account of such default and/or in enforcing or
establishing its rights hereunder, including, without limitation, court costs
and reasonable attorney's fees and disbursements. Any such attorneys' fees and
other expenses incurred by either party in enforcing a judgment in its favor
under this Agreement shall be recoverable separately from and in addition to
any other amount included in such judgment, and such attorneys'
Page 24
28
fees obligation is intended to be severable from the other provisions of this
Agreement and to survive and not be merged into any such judgment.
15.14 Exclusivity Period. In consideration of Purchaser's commitment
to expend significant time, effort and expense to evaluate the possible
acquisition of the Property, Seller agrees that during the Feasibility Period
(unless sooner notified by Purchaser of its intent not to purchase the
Property) Seller shall not offer the Property (or any interest therein) for
sale or lease, except for leases of office space in the ordinary course of
business, to any other party, or negotiate, solicit or entertain any offers to
purchase or lease the Property (or any interest therein), except for leases of
office space in the ordinary course of business.
EXECUTED BY PURCHASER this ____ day of _____________, 1996.
PURCHASER:
SYMANTEC CORPORATION
By: /s/ [SIG]
------------------------------------
Name:
Title:
EXECUTED BY SELLER this ____ day of _____________, 1996.
SELLER:
CIGNA PROPERTY AND CASUALTY INSURANCE
COMPANY
By: CIGNA Investments, Inc.
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
Receipt of original copies of this Agreement executed by Seller and Purchaser
is acknowledged this ____ day of _____________, 1996.
Page 25
29
TITLE COMPANY:
FIRST AMERICAN TITLE INSURANCE COMPANY
By:
------------------------------------
Name:
Title:
Page 26
30
EXHIBIT A
TO
AGREEMENT OF PURCHASE AND SALE
Description of Land
31
Order No. 511608
Page No. 12
LEGAL DESCRIPTION
REAL PROPERTY in the City of Cupertino, County of Santa Xxxxx, State of
California, described as follows:
PARCEL ONE:
Lot 1 as shown on that certain Map of Tract No. 7734 filed October 9, 1985 in
Book 550 of Maps, pages 24, ?? and 26, Records of Santa Xxxxx County.
Excepting therefrom the underground water rights conveyed to California Water
Service Company, a California Corporation by Deeds recorded July 11, 1984 in
Book 1708, page 320 of Official Records and September 7, 1984 in Book 1859,
page 185 of Official Records.
PARCEL TWO:
All easements, rights, benefits and privileges described in that certain
Declaration of Covenants, Conditions and Restrictions and Grants of Easements
for Cupertino City Center, recorded October 9, 1985 in Book J482, page 1807,
Official Records, as amended by First Amendment to Declaration of Covenants,
Conditions and Restrictions and Grant of Easements for Cupertino City Center,
recorded September 2, 1987, in Book K281, page 2071, Official Records,
appurtenant to Parcel One above.
PARCEL THREE:
A non-exclusive easement for parking 580 automobiles and for vehicular and
pedestrian ingress to and egress from such parking area upon Parcel A of Tract
No. 7870 recorded April 29, 1987 in Book 573 of Maps, pages ?? and 22 of the
Official Records of Santa Xxxxx County, as granted in that certain Agreement
and Grant of Easement recorded June 26, 1987 in Book K202, page 1782 of
Official Records, appurtenant to Parcel One above.
?N: 000-00-000
32
EXHIBIT B
TO
AGREEMENT OF PURCHASE AND SALE
Rent Roll
(The Rent Roll follows this page.)
33
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
ONE-FOUR STORY BLDG,. SPRINKLERED
OFFICE/FULL SERVICE
CONSTRUCTION COMPLETED - 1965
Total Basic (1)
Monthly Monthly Monthly
Tenant Suite Rent Rent Prorata
SUN LIFE ASSURANCE (2) 300.320 14,253.18 2.99 7,787.50 1.50 4.475.68 0.59
CITY NET (3) 398 0.00 0.00 0.00 0.00 0.00 0.00
SILICON MAGIC (4) 400 17,710.22 8.94 11,428.75 1.25 6.281.47 0.00
SYMANTEC (5) 200.332 109,941.00 8.83 108,841.00 0.00 Date 1995
CANON (6) 100 90,258.02 8.88 20,258.02 0.00 Date 1995
ALPINE(7) 495 6,382.10 8.85 6,382.10 0.00 Date 1995
COMPUWARE 350,445 30,558.30 8.85 30,558.30 0.00 Date 1995
DSP 465 17,964.45 1.88 17,964.45 0.00 Date 1995
EDV 385 8,586,45 2.69 6,392.95 2.00 2,103.53 0.00
MORN VENTURES (X.X.XXXXX) 330 6,303.96 2.04 4,176.00 1.35 2,127.08 0.00
MANAGEMENT OFFICE 125 0.00 0.00 0.00 0.00 0.00 0.00
MXXXXXXXXXXX 398 2,074.00 2.04 1,919.70 1.35 874.90 0.00
TOKYO ELECTRON AMERICA 380 12,311.15 1.84 7,046.25 1.25 4,304.00 0.00
XXX
TOTAL 317,084.78 1.88 796,800.72 1.85 870.417.34 0.13
Orig Rev Base
Soft XXXXX Comm Comm Exp. Rental
Leased Pro Date Date Date Adjust. XXX
SUN LIFE ASSURANCE (2) 6,525 0.00 4.04 09/01/93 08/31/99 - NONE
CITY NET (3) 611 0.00 9.38 10/01/95 08/30/97 - NONE
SILICON MAGIC (4) 9,143 0.00 5.87 12/01/94 11/30/97 - NONE
SYMANTEC (5) 58,810 0.00 36.20 04/24/95 06/31/01 5/22/97 YES
CANON (6) 43,237 0.00 25.79 03/16/95 08/30/00 03/18/99 YES
ALPINE(7) 3,270 0.00 2.03 09/18/95 00/18/00 03/18/97 NO
COMPUWARE 18,518 0.00 10.25 XXXXXXXX 09/31/98 - NONE
DSP 9,505 0.00 5.89 03/5/91 02/28/90 - NONE
EDV 3,182 0.00 1.XX 03/5/91 XXXXXXXX - NONE
MORN VENTURES (X.X.XXXXX) 3,094 0.00 1.82 11/01/94 04/30/97 - NONE
MANAGEMENT OFFICE 1,038 0.00 0.04 XXXXXXXX - NONE
MXXXXXXXXXXX 1,422 0.00 0.00 02/01/94 01/31/87 - NONE
TOKYO ELECTRON AMERICA 8,357 0.00 3.94 08/01/94 08/08/94 06/31/98 - NONE
160,728
TOTAL
Option
Renewal to SEC DEP
Tenant Option Term or LLC
SUN LIFE ASSURANCE (2) 3yr THBY 2/28/99 No S/D - WAIVED
CITY NET (3) NONE No S/D - WAIVED
SILICON MAGIC (4) 1yr THBY 7/31/97 No S/D - $11.428.75
SYMANTEC (5) 3yr THBY 8/31/00 No S/D - WAIVED
CANON (6) 5yr THBY 12/31/99 Yes S/D - WAIVED
ALPINE(7) 5yr THBY 12/19/99 No S/D - WAIVED
COMPUWARE NONE No S/D - $30,550.00
DSP 3yr THBY 8/28/97 No S/D - $17,984.45
EDV NONE No S/D - $3,700.00
MORN VENTURES (X.X.XXXXX) 5yr THBY 4/30/99 No S/D - WAIVED
MANAGEMENT OFFICE NONE N/A
MXXXXXXXXXXX NONE No S/D - $1,918,70
TOKYO ELECTRON AMERICA 3yr THBY 11/00/07 No S/D - XX,232,30
TOTAL 160,728
1) Expenses XXXXX were currently projected based on 1990 numbers.
2) Sun XXXX brother Communication ($13,332.25) to be paid XXX since
they didn't XXXX XXXX option.
Sun Life has free XXXX XXXX - 9/1/95 - 10/15/08
3) City XXX has rest and expense abatement through XXXX.
4) SXXXXX has right to XXXXX if they are unable to expand. (refl XXXXX
2.(b)). Must give five (5) months XXXX notice and information could
be that 13th month. Penalty of (2) XXXX bears a unamortized cover
5) SdXXXXX trust be $R109,841.80 on 5/22/98. Effective 6/1/2000 -
Restriction of space to 14.873
6) RPR any spacr over 5,000 XXXXXXXX effective 9/15/00XXXXXXX
7) Option to intend XXXXXXXXXXXXXXXXXXXXXXXXx
34
EXHIBIT C
TO
AGREEMENT OF PURCHASE AND SALE
Grant Deed
(Seller's Local Counsel to draft form of Grant Deed.)
35
EXHIBIT D
TO
AGREEMENT OF PURCHASE AND SALE
Xxxx of Sale
(The form of Xxxx of Sale follows this page.)
36
XXXX OF SALE AND GENERAL ASSIGNMENT
Concurrently with the execution and delivery hereof, ____________,
a __________________________________ ("Assignor"), is conveying to
_____________________________, a ___________________________ ("Assignee"), by
Grant Deed, that certain tract of land together with the improvements thereon
(the "Property") lying and being situated in _______________________________,
California and being more particularly described in Exhibit A, attached hereto
and made a part hereof.
It is the desire of Assignor to hereby assign, transfer, set over and
deliver to Assignee all furnishings, fixtures, fittings, appliances, apparatus,
equipment, machinery and other items of personal property, if any, affixed or
attached to, or placed or situated upon, the Property, except those not owned
by Assignor and any and all other incidental rights and appurtenances relating
thereto, all as more fully described below (such properties being collectively
called the "Assigned Properties").
NOW, THEREFORE, in consideration of the receipt of Ten Dollars ($10.00)
and other good and valuable consideration in hand paid by Assignee to Assignor,
the receipt and sufficiency of which are hereby acknowledged and confessed by
Assignor, Assignor does hereby ASSIGN, TRANSFER, SET OVER and DELIVER to
Assignee, its successors and assigns, all of the Assigned Properties, without
warranty (whether statutory, express or implied), including, without
limitation the following:
1. All furnishings, fittings, equipment, appliances, apparatus,
machinery fixtures and all other personal property of every kind and character
(both tangible and intangible), if any, owned by Assignor and located in or on
the Property;
2. All of Assignor's interest in and to all use, occupancy,
building and operating permits, licenses and approvals, if any, issued from
time to time with respect to the Property of the Assigned Properties;
3. All of Assignor's interest in and to all maintenance, service
and supply contracts, if any, relating to the Property or the Assigned
Properties (to the full extent same are assignable);
4. All of Assignor's interest in and to all existing and
assignable guaranties and warranties (express or implied), if any, issued in
connection with the making by Seller of a loan on the Property, to the extent
assignable, or in connection with the construction, alteration and repair of
the Property and/or the purchase, installation and the repair of the Assigned
Properties;
5. All rights which Assignor may have to use any names commonly
used in connection with the Property, if any; and
6. All rights, which Assignor may have, if any, in and to any
tenant data, telephone numbers and listings, all master keys and keys to common
areas, all good will, if any, and any and all other rights, privileges and
appurtenances owned by Assignor and related to or used in connection with the
existing business operation of the Property.
ASSIGNOR MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE PHYSICAL
CONDITION OF THE PROPERTY OR THE ASSIGNED PROPERTIES OR THE SUITABILITY THEREOF
FOR ANY PURPOSE THAT ASSIGNEE MAY DESIRE TO USE IT. ASSIGNOR HEREBY EXPRESSLY
DISCLAIMS ANY WARRANTIES AS TO MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR
PURPOSE AND ANY OTHER WARRANTIES OR REPRESENTATIONS AS TO THE
37
XXXX OF SALE AND GENERAL ASSIGNMENT
(Continued)
PHYSICAL CONDITION OF THE ASSIGNED PROPERTIES. ASSIGNEE ACKNOWLEDGES AND AGREES
THAT IT HAS INSPECTED THE ASSIGNED PROPERTIES AND ACCEPTS SAME IN THEIR PRESENT
CONDITION, "AS IS" AND "WITH ALL FAULTS."
Assignor on behalf of itself and its successors and assigns does hereby
agree to indemnify and hold Assignee, its successors and assigns, harmless from
all obligations accruing under the maintenance, service and supply contract
assigned hereby and any liabilities arising thereunder, prior to the date hereof
but not thereafter.
Assignee on behalf of itself, its successors and assigns, hereby agrees
to assume and perform all obligations accruing under the maintenance, service
and supply contracts from and after the date hereof, and Assignee on behalf of
itself, its successors and assigns does hereby agree to indemnify and hold
Assignor, its successors and assigns, harmless from all such obligations and
any liabilities arising thereunder from and after the date hereof.
If either party hereto fails to perform any of its obligations under
this Agreement or if any dispute arises between the parties hereto concerning
the meaning or interpretation of any provision of this Agreement, then the
defaulting party or the party not prevailing in such dispute, as the case may
be, shall pay any and all costs and expenses incurred by the other party on
account of such default and/or in enforcing or establishing its rights
hereunder, including, without limitation, court costs and reasonable attorneys'
fees and disbursements. Any such attorneys' fees and other expenses incurred by
either party in enforcing a judgment in its favor under this Agreement shall be
recoverable separately from and in addition to any other amount included in
such judgment, and such attorneys' fees obligation is intended to be severable
from the other provisions of this Agreement and to survive and not be merged
into any such judgment.
This document may be executed in any number of counterparts, each of
which may be executed by any one or more of the parties hereto, but all of
which shall constitute one instrument, and shall be binding and effective when
all parties hereto have executed at least one counterpart.
IN WITNESS WHEREOF, Assignor and Assignee have caused this Assignment
to be executed as of the ______ day of ____________, 19__.
ASSIGNOR:
ASSIGNEE:
38
EXHIBIT E
TO
AGREEMENT OF PURCHASE AND SALE
ASSIGNMENT OF LEASES
[The form of Assignment of Leases follows this page.]
39
ASSIGNMENT AND ASSUMPTION OF
LEASES AND SECURITY DEPOSITS
This agreement is executed as of the _____ day of _____________, 19__,
by ______________________________, a _________________________________________
("Seller"), and _________________________, a _____________________("Purchaser").
Purchaser is this day purchasing from Seller and Seller is conveying to
Purchaser the real property described on Exhibit A attached hereto and made a
part hereof together with all improvements thereon and appurtenances thereto
(herein called the "Property"). The Property is occupied by various tenants
(herein called the "Tenants") claiming under written space leases listed and
described on Exhibit B attached hereto and made a part hereof (the "Leases").
Seller has required certain of the Tenants to pay and has collected from such
Tenants a security or other deposit, a list of which deposits and the Tenants
form from whom the deposits were collected being set forth on Exhibit B attached
hereto and made a part hereof (herein the total of all such deposits are
referred to as the "Security Deposits"). Seller desires to transfer and assign
all of Seller's right, title and interest in and to (i) the Leases and (ii) the
Security Deposits not heretofore forfeited, credited or returned to the Tenants.
NOW, THEREFORE in consideration of Ten Dollars ($10.00) and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Seller hereby transfers and assigns to Purchaser all right, title
and interest of Seller in and to (i) the Leases and (ii) the Security Deposits
paid to and held by Seller which have not been heretofore forfeited, credited
or returned to the Tenants, which Security Deposits hereby assigned are in the
amounts as set forth on Exhibit B attached hereto.
Seller on behalf of itself, its successors and assigns does hereby agree
to indemnify and hold Purchaser, its successors and assigns, harmless from and
against all liabilities arising under the Leases prior to the date hereof but
not thereafter, provided, however, that the foregoing indemnity shall not imply
any warranty or indemnity with respect to compliance with environmental and land
use laws or the use, generation or disposal of hazardous materials.
Purchaser on behalf of itself, its successors and assigns does hereby
agree to indemnify and hold Seller, its successors and assigns harmless from
all liabilities arising under the Lease from and after the date hereof;
provided, however, Purchaser shall not be liable under this indemnity for or
with respect to any inaccuracies set forth in Exhibit B.
Purchaser hereby assumes all obligations (i) of the landlord under the
Leases arising from and after the date hereof and (ii) under the Leases to pay
or account for the Security Deposits hereby transferred to Purchaser.
It is specifically agreed that Seller does not hereby transfer or
assign to Purchaser and Purchaser does not hereby assume liability for, any
deposits other than as set forth on Exhibit B.
If either party hereto fails to perform any of its obligations under
this Agreement or if any dispute arises between the parties hereto concerning
the meaning or interpretation of any provision of this Agreement, then the
defaulting party or the party not prevailing in such dispute, as the case may
be, shall pay any and all costs and expenses incurred by the other party on
account of such default and/or in enforcing or establishing its rights
hereunder, including, without limitation, court costs and reasonable attorneys'
fees and disbursements. Any such attorneys' fees and other expenses incurred by
either party in enforcing a judgment in its favor under this Agreement shall be
recoverable separately from and in addition to any
40
ASSIGNMENT AND ASSUMPTION OF
LEASES AND SECURITY DEPOSITS
(Continued)
other amount included in such judgment, and such attorneys' fees obligation is
intended to be severable from the other provisions of this Agreement and to
survive and not be merged into any such judgment.
This document may be executed in any number of counterparts, each of
which may be executed by any one or more of the parties hereto, but all of
which shall constitute one instrument, and shall be binding and effective when
all parties hereto have executed at least one counterpart.
The terms and provisions of this agreement shall be binding upon and
inure to the benefit of the respective parties hereto and their respective
successors and assigns.
EXECUTED as of the day and year first written above.
SELLER:
PURCHASER:
41
EXHIBIT F
TO
AGREEMENT OF PURCHASE AND SALE
Form of Seller's Affidavit of Non-Foreign Status
STATE OF ___________________)
) (insert date)
COUNTY OF __________________)
I, (proper name of Seller's officer), as (office held) of (Seller),
being duly authorized to make this affidavit on behalf of (Seller) and being
duly sworn, do depose and say, that:
1. (Seller's) taxpayer identification number is _________________.
2. (Seller) is not a "foreign person" within the meaning of
Section 1445(f)(3), of the Internal Revenue Code of 1954 (the "Code"), as
amended; and (Buyer) is not required, pursuant to Section 1445 of the Code, to
withhold ten percent (10%) of the amount realized by Seller on the disposition
of the Property to (Buyer).
3. I understand that I am making this Affidavit under penalty or
perjury pursuant to the requirements of Section 1445 of the Code.
(Seller)
By: ____________________________________
SWORN TO and subscribed before me this _____ day of _____________, 199_.
----------------------------------------
Notary Public
My Commission Expires:
42
EXHIBIT G
TO
AGREEMENT OF PURCHASE AND SALE
Pending Litigation
1. NONE
