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EXHIBIT 10.28
FIRST AMENDMENT TO AGREEMENT OF PURCHASE AND SALE
This First Amendment to Agreement of Purchase and Sale Agreement ("First
Amendment") is made effective as of April 14, 1999, by and between XXXXXXXXX
SEMICONDUCTOR CORPORATION OF CALIFORNIA, a Delaware corporation ("Seller") and
VERITAS SOFTWARE CORPORATION, a Delaware corporation ("Purchaser").
Recitals
This First Amendment is entered into on the basis of the following facts,
understandings and intentions of the parties:
A. Seller and Purchaser have entered into an Agreement of Purchase and
Sale dated March 29, 1999 (the "Purchase Agreement"), pursuant to which Seller
agreed to sell to Purchaser, and Purchaser has agreed to purchase from Seller,
that certain real property, consisting of approximately 19.61 acres, more or
less, commonly referred to as 000 Xxxxx Xxxxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx,
together with the Improvements located thereon and Appurtenances thereto, all
as more particularly described in the Purchase Agreement.
B. Under the terms of Section 6.1 of the Purchase Agreement, escrow
was originally scheduled to close under the Purchase Agreement on April 15,
1999, subject to extension of such closing date to April 19, 1999 if all
conditions to closing have been satisfied but Purchaser's synthetic lease
financing is not ready to close due to the lender thereunder completing its
financing documents. Purchaser has requested that Seller extend the Closing
Date (as defined in Section 6.1 of the Purchase Agreement) to April 23, 1999,
to allow Purchaser's lender additional time to complete the paperwork
associated with Purchaser's synthetic lease financing of the acquisition of the
Property, and Seller is willing to so extend the Closing Date, subject to the
terms and conditions set forth below.
NOW THEREFORE, in consideration of the mutual covenants and agreements
set forth below, and for other valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. Recitals. The Recitals set forth above are true and correct and are
incorporated herein by reference.
2. Capitalized Terms. Except as otherwise defined herein, the
capitalized terms set forth in this First Amendment shall have the meanings
ascribed to them in the Purchase Agreement.
3. Close of Escrow.
(a) The definition of the "Closing Date" referred to in Section
1.1(f) of the Purchase Agreement is hereby amended, in relevant part, to delete
the second sentence in Section 1.1(f) and to substitute in place thereof the
following: "The Closing Date under this Agreement shall be not later than 5:00
p.m., Pacific Time, on April 23, 1999.
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(b) The first sentence of Section 6.1 of the Purchase Agreement is
hereby deleted in its entirety and the following is substituted in place
thereof:
"The close of escrow under this Agreement shall occur, subject to
satisfaction of the conditions set forth in this Agreement (or waiver by
the party for whose benefit such condition exist), not later than 5:00
p.m., Pacific Time, on April 23, 1999 (the "Closing Date")."
(c) Purchaser acknowledges that Seller shall not be obligated to grant to
Purchaser any further extensions of the Closing Date beyond 5:00 p.m., Pacific
Time, on April 23, 1999. If escrow does not close under the Purchase Agreement
for any reason (other than a failure of any of the conditions set forth in
paragraph 4 of this First Amendment below to be satisfied) on or before 5:00
p.m., Pacific Time, on April 23, 1999, then Purchaser shall be in breach or
default under the Purchase Agreement and Seller shall be entitled to receive the
Xxxxxxx Money (in the amount of One Million Dollars ($1,000,000)) as liquidated
damages.
4. Outstanding Conditions to Purchaser's Obligation to Close. Seller and
Purchaser each acknowledge and agree that all of Purchaser's conditions to
closing escrow under the Purchase Agreement have been satisfied or waived by
Purchaser other than the following:
(a) The conveyance of title to the Property by Seller to Purchaser
at the close of escrow subject to the Permitted Exceptions;
(b) The Title Company's willingness to issue to Purchaser at the
close of escrow the ALTA Form B Owner's Policy of Title Insurance (or other
form required by state law) or CLTA Standard Form Owner's Policy of Title
Insurance, as the case may be, as required under Section 2.3 of the Purchase
Agreement as well as Seller's obligation to deliver an indemnity as described
in Section 3.1(c) (to the extent the Title Company requires an indemnity from
Seller in order to issue any mechanic's lien endorsement to Purchaser at
Closing);
(c) Seller shall have entered into the Sublease as of the close of
escrow under the Purchase Agreement;
(d) The delivery by Seller into escrow of the documents referred to
in Section 6.3 of the Purchase Agreement; it being understood and agreed,
however, that Seller and Purchaser have agreed on the provisions of the
documents referred to in Section 6.3(a)-(e) and 6.3(h) of the Purchase
Agreement (and the form of the assignment agreement referred to in Section
9.1(g) of the Purchase Agreement). Attached to this First Amendment are copies
of (i) the form of Grant Deed, (ii) the form of Certificate Re: Representations
and Warranties to be executed by Seller, (iii) the form of the Non-Foreign
Affidavit to be executed by Seller, (iv) the form of the California Withholding
Exemption Certificate for Real Estate Sales to be executed by Seller, (v) the
form of Assignment to be executed by Seller, (vi) the form of escrow
instructions to be executed by Seller and Purchaser covering the retention and
disbursement of $500,000, and (vii) the form of escrow instructions to be
executed by Seller and Purchaser covering the retention and disbursement of
$3,500,000.
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(e) The deposit by Seller at Closing of the sum of $500,000 as the
Holdback Funds pursuant to the terms of Section 6.3(i) of the Purchase
Agreement; it being understood and agreed, however, that Seller and Purchaser
have agreed on the terms of the escrow instructions covering the retention and
disbursement of such $500,000;
(f) The deposit at Closing of the sum of $3,500,000 as the FAR funds
pursuant to the terms of Section 6.3(j) of the Purchase Agreement; it being
understood and agreed, however, that Seller and Purchaser have agreed on the
terms of the escrow instructions covering the retention and disbursement of
such $3,500,000;
(g) Seller's obligation to pay its share of closing costs as required
under Section 7.2 of the Purchase Agreement;
(h) Seller's obligation to pay real estate commissions to Cornish &
Xxxxx Commercial and EY Xxxxxxx Xxxxxxxxx Real Estate Group, in the total sum
of $1,330,000 as provided in Section 7.3 of the Purchase Agreement;
(i) The performance by Seller of all of its obligations under the
Purchase Agreement accruing from the date of this First Amendment to the
Closing Date (unless such obligations are excused due to a breach or default by
Purchaser under the Purchase Agreement);
(j) The conditions set forth in Section 3.1(e) of the Purchase
Agreement; and
(k) The conditions set forth in Section 6.2(c) and 6.2(f) of the
Purchase Agreement.
5. No Seller Default or Breach. Purchaser hereby acknowledges and agrees
that Seller has performed all of its obligations under the Purchase Agreement
required to be performed up to the date of this First Amendment. Purchaser
further acknowledges and agrees that Seller is not in breach or default of any
obligations under the Purchase Agreement (and no event has occurred which with
the giving of notice or passage of time would constitute a breach or default by
Seller under the Purchase Agreement).
6. Delivery of Closing Documents by Seller. Section 6.3 of the Purchase
Agreement is hereby amended to delete therefrom the words "At least three
business days prior to the Closing Date," and to substitute in place thereof
the words "At least one business day prior to the Closing Date."
7. Delivery of Closing Documents by Purchaser. Section 6.4 of the
Purchase Agreement is hereby amended to delete therefrom the words "at least
three business days prior to the Closing Date" and to substitute in place
thereof the words "at least one business day prior to the Closing Date".
8. Seller's Environmental Indemnity Agreement. Section 9.3 of the Purchase
Agreement is hereby amended to delete therefrom the words "At least three
business days prior to the close of escrow hereunder," and to substitute in
place thereof the words "At least one business
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day prior to the Closing Date,".
9. Modification of Purchase Agreement. Except as modified above, the
terms and conditions of the Purchase Agreement shall remain unmodified and
in full force and effect. In the event of any conflict or inconsistency between
the terms of this First Amendment and the terms of the Purchase Agreement, the
terms of this First Amendment shall control.
IN WITNESS WHEREOF, the parties hereto have executed this First Amendment
as of the date and year first written above.
SELLER:
XXXXXXXXX SEMICONDUCTOR
CORPORATION OF CALIFORNIA,
a Delaware corporation
By:
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Its:
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By:
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Its:
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PURCHASER:
VERITAS SOFTWARE CORPORATION,
a Delaware corporation
By: /s/ XXX X. XXXXX
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Xxx X. Xxxxx
SVP AND CHIEF
Its: ADMINISTRATIVE OFFICER
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By:
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Its:
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conditions of the Purchase Agreement shall remain unmodified and in full force
and effect. In the event of any conflict or inconsistency between the terms of
this First Amendment and the terms of the Purchase Agreement, the terms of this
First Amendment shall control.
IN WITNESS WHEREOF, the parties hereto have executed this First Amendment
as of the date and year first written above.
SELLER:
XXXXXXXXX SEMICONDUCTOR CORPORATION
OF CALIFORNIA,
a Delaware corporation
By: /s/ XXXXXX X. XXXXX
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Its: Exec. Vice President
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By: /s/ XXXXXX X. XXXXXX
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Its: Exec. VP
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PURCHASER:
VERITAS SOFTWARE CORPORATION,
a Delaware corporation
By:
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Its:
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By:
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Its:
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