EXHIBIT 10.03
AGREEMENT TO PURCHASE BUILDINGS
By and Between
VeriSign, Inc.
a Delaware corporation,
as Purchaser
and
Xxxxx-Middlefield Business Park,
a California limited partnership,
as Seller
TABLE OF CONTENTS
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PAGE
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ARTICLE 1: DEFINITIONS .................................................. 1
1.1 Definitions .................................................. 1
1.2 References ................................................... 4
ARTICLE 2 PURCHASE AND SALE/LEASE TERMINATION .......................... 4
2.1 Purchase and Sale/Lease Termination .......................... 4
ARTICLE 3 PURCHASE PRICE ............................................... 5
3.1 Purchase Price ............................................... 5
3.2 Escrow ....................................................... 5
3.3 Review and Inspection ........................................ 5
ARTICLE 4 COVENANTS, REPRESENTATIONS AND WARRANTIES .................... 6
4.1 Covenants, Representations and Warranties of Seller .......... 6
(a) Authority ............................................... 7
(b) No Breach ............................................... 7
(c) Leases .................................................. 7
(d) Commissions ............................................. 7
(e) Condemnation ............................................ 7
(f) Contracts ............................................... 7
(g) Employees ............................................... 7
(h) Legal Requirements ...................................... 7
(i) Litigation .............................................. 7
(j) Value ................................................... 8
(k) Siemens Documents ....................................... 8
(l) License and Permits ..................................... 8
(m) Exactments/Recapture Agreements ......................... 8
(n) Zoning .................................................. 9
(o) Environmental Reports ................................... 9
(p) Documents ............................................... 9
4.2 Covenants, Representations and Warranties of Purchaser ....... 10
(a) Authority ............................................... 10
(b) No Breach ............................................... 10
ARTICLE 5 MATTERS ...................................................... 10
5.1 Closing ...................................................... 10
5.2 [Retained for Numbering Purposes Only] ....................... 10
5.3 Survey, Title Commitment and Searches ........................ 10
(a) Survey .................................................. 10
5.4 Defects ...................................................... 11
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ARTICLE 6 DELIVERIES....................................................... 11
6.1 Seller's Deliveries............................................... 11
6.2 Purchaser's Deliveries............................................ 13
6.3 Closing Statement................................................. 13
6.4 Further Assurances................................................ 13
6.5 Seller's Post Closing Deliveries.................................. 13
ARTICLE 7 APPORTIONMENTS; TAXES; UTILITIES................................. 13
7.1 Taxes............................................................. 14
7.2 Rents............................................................. 14
7.3 Security Deposits................................................. 14
7.4 Contracts......................................................... 14
7.5 Other Property Operating Expenses................................. 14
7.6 Insurance Premiums................................................ 15
7.7 No Credit For Tenant Inducements.................................. 15
ARTICLE 8 CONDITIONS TO SELLER'S OBLIGATIONS............................... 15
8.1 Seller's Conditions Precedent..................................... 15
ARTICLE 9 CONDITIONS TO PURCHASER'S OBLIGATIONS............................ 15
9.1 Feasibility Contingency........................................... 15
9.2 Additional Conditions Precedent................................... 16
ARTICLE 10 ACTIONS AND OPERATIONS PENDING.................................. 16
10.1 Actions and Operations Pending Closing........................... 16
ARTICLE 11 DAMAGE OR DESTRUCTION; CONDEMNATION; INSURANCE.................. 17
11.1 Termination of Agreement......................................... 17
11.2 No Termination of Agreement...................................... 17
ARTICLE 12 LIABILITIES, ASSIGNMENT AND ASSUMPTION OF CERTAIN
CONTRACT OBLIGATIONS.................................................. 17
12.1 No Liability of Purchaser........................................ 17
12.2 Assumption of Liabilities by Purchaser........................... 17
ARTICLE 13 RETAINED FOR NUMBERING PURPOSES ONLY............................ 18
ARTICLE 14 NOTICES......................................................... 18
14.1 Notices.......................................................... 18
ARTICLE 15 MISCELLANEOUS.................................................. 19
15.1 Expenses......................................................... 19
15.2 Brokerage........................................................ 19
15.3 Books and Records................................................ 20
15.4 Seller Default................................................... 20
15.5 Liquidated Damages............................................... 20
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15.6 Survival........................................................... 21
15.7 Construction....................................................... 21
15.8 Confidential Information........................................... 21
15.9 General............................................................ 21
15.10 Headings.......................................................... 22
15.11 Governing Law; Parties at Interest................................ 22
15.12 Computation of Time............................................... 22
15.13 [Retained for Numbering Purposes Only.]........................... 22
15.14 Time of the Essence............................................... 22
15.15 As-Is and Release................................................. 22
15.16 Like-Kind Exchange................................................ 24
15.17 [Retained for Numbering Purposes Only.]........................... 24
15.18 Attorneys' Fees................................................... 25
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LIST OF EXHIBITS
Exhibit A Land Legal Description
Exhibit B Permitted Exceptions
Exhibit C Submission Matters
Exhibit D Building 4 Option
Exhibit E Xxxx of Sale
Exhibit F Leases
Exhibit G Contracts
Exhibit H Licenses & Permits
Exhibit I Deed
Exhibit J Environmental Reports
Exhibit K Lease Termination
Exhibit L Assignment
Exhibit M Siemens Estoppel
Exhibit N Access Agreement
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AGREEMENT TO PURCHASE BUILDINGS
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THIS AGREEMENT TO PURCHASE BUILDINGS (the "Agreement") is made this 1st
day of October, 2001, by and between Xxxxx-Middlefield Business Park, a
California limited partnership ("Seller"), and VeriSign, Inc., a Delaware
corporation ("Purchaser").
R E C I T A L S:
- - - - - - - -
A. Seller is currently the owner of fee simple title to approximately
10.8 acres of land upon which are currently constructed (i) the building
commonly known as 000 Xxxx Xxxxxxxxxxx Xxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx
containing approximately 32,500 rentable square feet, (ii) the building commonly
known as 000 Xxxx Xxxxxxxxxxx Xxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx containing
approximately 49,362 rentable square feet, (iii) the building commonly known as
000 Xxxx Xxxxxxxxxxx Xxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx containing approximately
49,362 rentable square feet and (iv) that certain parking garage ("Garage") to
be or in the process of being constructed on the land on which the foregoing
buildings are located (collectively, the "Property).
B. Pursuant to those certain leases listed on Exhibit F hereto (the
"Leases") Purchaser is the tenant of the Property, as well as a 4-story,
approximately 102,000 square foot building to be constructed by the Company on
the Property ("Building 4").
C. Purchaser desires (i) to purchase the Property from Seller, (ii) to
terminate the Leases effective as of the Closing, and (iii) to obtain from
Sobrato Construction Corporation ("Sobrato Construction") (an affiliate of
Seller) at the Closing the option to engage Sobrato Construction to construct
Building 4 on a portion of the Property. Seller desires to effectuate the
foregoing.
A G R E E M E N T S:
- - - - - - - - - -
NOW, THEREFORE, in consideration of the foregoing premises and the
respective representations, warranties, agreements, covenants and conditions
herein contained, and other good and valuable consideration, Seller and
Purchaser agree as follows:
ARTICLE 1
DEFINITIONS
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1.1 Definitions As used herein, the following terms shall have the
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respective meanings indicated below:
Agreement: This Agreement to Purchase Buildings, including the
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Exhibits, which are incorporated herein.
Building 4 Option: The option agreement between Sobrato Construction
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and Purchaser for the construction of Building 4 in the form attached hereto
as Exhibit D.
Buildings: The buildings referred to in Recital A.
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-1-
Closing: As defined in Section 5.1.
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Closing Date: As defined in Section 5.1.
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Contracts: All equipment leases, management, leasing, repair,
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maintenance, operating, supply, purchase, consulting, advertising, service,
equipment, utility, concession, telephone, cable, employment, collective
bargaining, employee benefit and other contracts, commitments and agreements
(excluding the Leases) relating to all or any portion of the Property,
including, but not limited to, (i) the Garage Contract, (ii) that certain
Indemnification Agreement (the "Siemens Indemnity") dated November ____, 1993 by
and between Sobrato Development Companies, Xxxx X. Xxxxxxx and Xxxxx X. Xxxxxxx,
both individually and as trustees of the Xxxx X. Xxxxxxx and Xxxxx X. Xxxxxxx
1979 Revocable Trusts, Xxx X. Xxxxxxx, Xxxx Xxxxxxx Xxxxxxx as trustee of the
Xxx Xxxxxxx 1989 Revocable Trust, and Xxxxx-Middlefield Business Park
(collectively, the "Indemnitees") and Siemens Components, Inc. ("SCI"), (iii)
that certain Guaranty Agreement (the "Siemens Guaranty") dated November 19, 1993
made by Siemens Corporation ("Siemens") in favor of the Indemnitees, and (iv)
that certain Settlement Agreement (the "Settlement Agreement") dated November
___, 1993 by and between the Indemnitees, SCI and Litronix, Inc.
Deposit: The sum of Thirty Thousand Dollars ($30,000.00), which shall
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be deposited by Purchaser with Escrowee, as escrowee, to be held as xxxxxxx
money subject to the terms of this Agreement, and interest thereon, if any.
Escrow: The escrow created for the purpose of facilitating the
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transactions contemplated hereby pursuant to the Escrow Instructions (as defined
herein).
Escrowee: Alliance Title Company, located at 000 Xxxxxxx Xxx, Xxxxx
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000, Xxxxxxxx, Xxxxxxxxxx.
Escrow Instructions: The escrow instructions to be executed and
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delivered by a party hereto pursuant to Section 3.2 (or such party's attorneys
who are hereby authorized by such party to execute same) to the Escrowee, as are
reasonably necessary to consummate the transactions contemplated by this
Agreement and consistent with the terms of this Agreement.
Garage Contract: That certain construction contract dated August 1,
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2001 by and between Sobrato Construction and Seller for construction of the
Garage on the Property.
Improvements: The Buildings and Garage, including, but not limited to,
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structures (surface and sub-surface) and other improvements, including all
fixtures, systems, facilities, machinery, equipment and conduits to provide fire
protection, security, heat, exhaust, ventilation, air-conditioning, electric
power, light, plumbing, refrigeration, gas, sewer and water thereto, to the
extent completed as of the Closing.
Intangible Personal Property: All intangible property owned by Seller
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or any affiliate thereof and used in connection with the Property, if any,
including without limitation all permits, approvals, land use and other rights
to construct Building 4 (Seller does not warranty that any
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such rights will exist for Building 4 in the future), all permits, approvals,
land use and other rights to construct the Garage, all trademarks, trade names,
contract rights, guarantees, licenses, permits, warranties, promotional
materials, leasing brochures, and logos.
Land: The parcels of real property described in Exhibit A hereto,
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together with all easements and appurtenances thereto, all oil, gas and mineral
rights belonging to Seller with respect to such real property, all rights, title
and interest, if any, of Seller in and to all land lying in any street, alley,
road or avenue, open or proposed, in front of or adjoining said Land, to the
centerline thereof.
Leases: The leases listed on Exhibit F hereto.
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Legal Requirements: (i) All laws, statutes, codes, acts, ordinances,
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orders, judgments, decrees, injunctions, rules, regulations, permits, licenses,
authorizations, certificates (including the certificate of occupancy issued for
the Property), directions and requirements, including any applicable
environmental, zoning, building, housing or similar law, ordinance, code, order
or regulation of all governments and governmental authorities having
jurisdiction of the Property (including, for purposes hereof, any local Board of
Fire Underwriters), which now or hereafter may be applicable to the Property,
and the operation thereof, and (ii) all covenants, easements and restrictions
affecting the Property.
Obligations: All payments required to be made and all representations,
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warranties, covenants, agreements and commitments required to be performed under
the provisions of this Agreement by Seller or Purchaser, as applicable.
Permitted Exceptions: Any liens, encumbrances, restrictions, exceptions
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and other matters specified in Exhibit B to which title to the Real Property may
be subject on the Closing Date.
Personalty: All fixtures, equipment, furniture, furnishings,
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appliances, supplies and other personal property of every nature and description
attached or pertaining to, or otherwise used in connection with, all or any part
of the Real Property (except such as are owned by tenants of the Real Property
or anyone other than Seller), if any.
Property: (i) The Real Property, (ii) the Personalty, and (iii) the
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Intangible Personal Property, collectively.
Proration Date: The day immediately preceding the Closing Date.
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Purchase Price: One Hundred Sixty-Two Million Eight Hundred Ninety-
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Seven Thousand Nine Hundred Ninety-One Dollars ($162,997,991).
Real Property: The Land together with the Improvements located on the
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Land.
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Records: All books and records maintained by Seller or its agents
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pertaining to the Property (excluding organizational documents of Seller and
documents relating to the ongoing governance of the entities which comprise
Seller).
Survey: The survey for the Real Property prepared in accordance with
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Section 5.3(a).
Title Company: First American Title Insurance Company.
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Title Defect: A lien, claim, charge, security interest or encumbrance
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other than a Permitted Exception.
UCC: The Uniform Commercial Code in effect in California.
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1.2 References. Except as otherwise specifically indicated, all
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references to Section and Subsection numbers refer to Sections and Subsections
of this Agreement, and all references to Exhibits refer to the Exhibits attached
hereto. The words "hereby," "hereof," "herein," "hereof," "hereto," "hereunder,"
"hereinafter," and words of similar import refer to this Agreement as a whole
and not to any particular Section or Subsection hereof. The word "hereafter"
shall mean after, and the term "heretofore" shall mean before, the date of this
Agreement. Captions used herein are for convenience only and shall not be used
to construe the meaning of any part of this Agreement.
ARTICLE 2
PURCHASE AND SALE/LEASE TERMINATION
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2.1 Purchase and Sale/Lease Termination Subject to the conditions and
-----------------------------------
on the terms contained in this Agreement:
(a) Purchaser agrees to purchase and acquire from Seller, and
Seller agrees to sell and convey to Purchaser, the Property by a recordable
grant deed in the form attached hereto as Exhibit I (the " Deed").
(b) Purchaser and Seller agree to terminate the Leases.
(c) Purchaser agrees to purchase and acquire from Seller, and
Seller agrees to sell, assign and transfer to Purchaser pursuant to an
Assignment and Assumption Agreement in the form attached hereto as Exhibit L,
all of Seller's right, title and interest in (i) the Contracts listed under the
heading "Assigned Contracts" on Exhibit G hereto, and (ii) the Intangible
Personal Property pertaining to the Property.
(d) Purchaser agrees to purchase and acquire from Seller, and
Seller agrees to sell, assign and transfer to Purchaser, the Personal Property
owned by Seller, if any, by good and sufficient xxxx of sale in the form
attached hereto as Exhibit E.
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ARTICLE 3
PURCHASE PRICE
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3.1 Purchase Price Purchaser agrees to pay to Seller, and Seller
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agrees to accept payment of the Purchase Price as follows:
(a) The Deposit shall be applied against the Purchase Price at
Closing. The Deposit shall be paid to Seller if the transaction contemplated
hereby fails to close for any reason, including without limitation a default by
Seller.
(b) At Closing, Purchaser shall pay to Seller the Deposit and the
balance of the Purchase Price, plus or minus prorations and adjustments as
hereinafter provided, in cash or by wire transfer of collected federal funds for
immediate credit. The Purchase Price shall not be adjusted due to variances in
acreage or square footage of the Land or Buildings from those stated in the
Recitals.
3.2 Escrow Not later than two (2) business days following the date
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hereof, the parties, through their respective attorneys, shall establish an
escrow (the "Escrow") with Escrowee, if not established as of the date hereof,
and shall deposit a copy of an executed counterpart of this Agreement with
Escrowee. Seller and Purchaser agree to execute such escrow instructions,
consistent with this Agreement, as may be necessary or appropriate to consummate
the transactions contemplated in this Agreement; provided, however, that in the
event of any conflict between the provisions of this Agreement and any such
escrow instructions, the terms of this Agreement shall control. Upon opening of
said Escrow, Purchaser shall cause the Deposit to be deposited in said Escrow.
Purchaser shall direct the Escrowee to invest the Deposit in accounts or
securities permitted by Escrowee at the highest available rate of interest. Said
Escrow shall be auxiliary to this Agreement, and this Agreement shall not be
merged into nor in any manner superseded by said Escrow. The parties shall
instruct Escrowee to file with the Internal Revenue Service the information
return (Form 1099B) required by Section 6045(e) of the Internal Revenue Code and
any regulations issued pursuant thereto in connection with the sales proceeds
delivered to Seller at the Closing. Seller shall be responsible to give to the
Escrowee such information as the Escrowee requires to complete said form.
3.3 Review and Inspection At any time prior to Closing, Purchaser
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shall have the right to enter upon the Real Property to inspect the Property and
to conduct tests and investigations at its sole cost and expense. In addition,
Seller shall allow Purchaser to review all Records. Seller shall cooperate with
Purchaser, or its agents, in arranging such inspections and reviews, provided
that Purchaser shall give Seller at least twenty four (24) hours prior notice of
the need for Seller's cooperation. Purchaser may order an environmental report,
at Purchaser's sole cost and expense, to be conducted by an environmental
engineering firm selected by Purchaser (the "Environmental Study"). Purchaser
may contact governmental bodies and agencies regarding the Property. Purchaser
acknowledges that prior to the date of this Agreement, Seller provided Purchaser
all the information described on Exhibit C. Within ten (10) days after request
therefore by Purchaser, Seller shall, from time to time, update any information
previously provided by Seller pursuant hereto. If this Agreement terminates for
any reason other than a breach by Seller hereunder, then Purchaser shall
promptly return to Seller all materials delivered by Seller to Purchaser and
deliver to Seller, without representation or
5
warranty, express or implied, all non-proprietary studies, tests and reports
relating to the physical condition of the Property prepared by third party
consultants for Purchaser. The immediately preceding sentence shall survive the
termination of this Agreement. All entry onto and inspections of the Real
Property shall be subject to the following:
(a) The persons or entities performing work for the Purchaser
shall have obtained all required licenses and permits for performing relevant
tests on the Real Property prior to performing any tests on the Real Property.
Prior to entry onto the Real Property to perform any tests or other due
diligence investigations pursuant to this Agreement, each of Purchaser's third
party consultants and contractors shall have obtained a policy or policies of
commercial general liability insurance providing for a combined single limit of
not less than One Million Dollars ($1,000,000) per occurrence and aggregate,
covering liability to property or persons for such consultant's or contractor's
activities on or about the Real Property, and naming Seller as an additional
insured.
(b) Seller shall have the right, at Seller's sole cost and
expense, to have one (1) or more representatives of Seller accompany Purchaser
and Purchaser's agents, employees, consultants, contractors and representatives
(collectively "Purchaser's Representatives") while they are on the Real Property
pursuant to this Agreement.
(c) If the Property is damaged in connection with any of
Purchaser's activities pursuant to this Agreement, Purchaser, at Purchaser's
sole cost and expense, shall immediately repair such damage and restore the Real
Property to its condition existing immediately prior to such activities. Until
restoration is complete, Purchaser shall take all steps necessary to ensure that
any conditions on the Real Property created by Purchaser's activities do not
create any dangerous or unhealthy conditions on the Real Property. Purchaser
agrees that the activities of Purchaser and Purchaser's Representatives under
this Article 3 shall not constitute an interference with or disturbance of
Purchaser's rights as tenant under the Leases. The restoration obligation
contained in this Section 3.3(c) shall survive the termination of this
Agreement.
(d) Purchaser shall indemnify, defend (with counsel reasonably
acceptable to Seller) and hold harmless Seller for, from and against any and all
claims, damages, liens, judgments, demands, obligations, actions, costs,
liabilities and losses (including mechanics' liens) and expenses (including,
without limitation, attorneys' fees) ("Claims and Liabilities") to the extent
arising out of any entry by Purchaser or Purchaser's Representatives, except
that such obligations shall not apply to the extent such Claims and Liabilities
arise out of any negligent acts or omissions of Seller or any of Seller's
agents, representatives, employees, consultants or contractors. The indemnity,
defense and hold harmless obligations contained in this Section 3.3(d) shall
survive Close of Escrow or any termination of this Agreement.
ARTICLE 4
COVENANTS, REPRESENTATIONS AND WARRANTIES
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4.1 Covenants, Representations and Warranties of Seller To induce
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Purchaser to execute, deliver and perform this Agreement, Seller covenants,
represents and warrants to Purchaser on and as of the date hereof as follows:
6
(a) Authority. The Seller has the power and authority to sell,
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transfer, convey and deliver the Property to be sold and purchased hereunder, to
terminate the Leases, and to enter into the agreements contemplated hereby, and
all required action and approvals therefor have been duly taken and obtained.
The individuals signing this Agreement and all other documents executed pursuant
hereto on behalf of the Seller are duly authorized to sign same on behalf of the
Seller and to bind the Seller.
(b) No Breach. The execution and delivery of this Agreement, the
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consummation of the transactions provided for herein and the fulfillment of the
terms hereof will not result in a breach of any of the terms or provisions of,
or constitute a default under, any agreement of the Seller or any instrument to
which the Seller is a party or by which the Seller or the Property is bound, or
any judgment, decree or order of any court or governmental body, or any
applicable law, rule or regulation.
(c) Leases. Exhibit F is a complete and correct list of all
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leases, tenancies, occupancy licenses and other rights of occupancy or use for
all or any portion of the Property (other than subleases or other agreements
assigned to Purchaser or to which Purchaser or any affiliate of Purchaser is a
party) currently in effect.
(d) Commissions. No brokerage or leasing commission or other
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compensation is or will be due or payable to any person, firm, corporation or
other entity with respect to or on account of any of the Leases affecting the
Real Property (provided, however that the foregoing shall not apply with respect
to any breach of the tenant's representations, warranties or other obligations
expressly set forth in the Leases or with respect to any such commission or
compensation incurred by Purchaser).
(e) Condemnation. Seller has not received written notice of any
------------
pending condemnation, expropriation, eminent domain, or similar proceeding
affecting all or any portion of the Real Property, and the Seller has no actual
knowledge that any such proceeding is contemplated.
(f) Contracts. To Seller's actual knowledge, attached hereto as
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Exhibit G is a complete list of all Contracts currently in effect for the
Property. The Seller has no actual knowledge of any defaults under any of such
Contracts, and all of such Contracts are in good standing and in full force and
effect. The Seller shall, effective as of Closing, terminate all Contracts
listed as "Terminated Contracts" on Exhibit G hereto, and the Seller shall pay
at or prior to the Closing all amounts which are or may come due under such
terminated Contracts.
(g) Employees. The Seller has no employees.
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(h) Legal Requirements. The Seller has not received notice of
------------------
existing violations of any Legal Requirements by the Property or due to the
operation of the Property which remain uncured.
(i) Litigation. The Seller has not received written notice of
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any action, suit or proceeding pending, and Seller has no actual knowledge of
any threatened against or affecting all or any portion of the Property, or any
of the Leases affecting the Real Property, or relating to or arising out of the
ownership, management or operation of the Property, in any court or before
7
or by any federal, state, county or municipal department, commission, board,
bureau or agency or other governmental instrumentality.
(j) Value. The Seller has not received notice of any proposed
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change in the assessed valuation of all or any portion of the Real Property for
real property tax purposes other than the customary reassessments imposed
annually pursuant to Laws, provided however that Purchaser is hereby advised
that the Real Property will also be subject to reassessment in connection with
the Garage or any other work in progress or otherwise completed and not yet
reassessed.
(k) Siemens Documents. The Settlement Agreement, the Siemens
-----------------
Indemnity and the Siemens Guaranty are in good standing and in full force and
effect. Seller has delivered to Purchaser true correct and complete copies of
the Settlement Agreement, the Siemens Indemnity and Siemens Guaranty. Neither
the Settlement Agreement, the Siemens Indemnity nor the Siemens Guaranty has
been amended or modified in any way. The Indemnitees have not waived any rights
under the Settlement Agreement, the Siemens Indemnity or Siemens Guaranty, and
neither Siemens Components, Inc. nor Siemens Corporation has any defense or
right to set off against any claim that may be made by any Indemnitee under the
Settlement Agreement, the Siemens Indemnity or Siemens Guaranty.
(l) License and Permits. The licenses and permits listed on
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Exhibit H are all of the renewable licenses and permits currently held by the
Seller in connection with its ownership and operation of the Real Property. The
Seller has not received written notice of any intention on the part of the
issuing authority to cancel, suspend or modify any of such licenses or permits
or any other license or permit issued in connection with the ownership or
operation of the Real Property or to take any action or institute any
proceedings to effect such a cancellation, suspension or modification. The
Seller has not received written notice that it fails to hold any licenses,
franchises, certifications, authorizations, approvals or permits required by any
governmental or quasi-governmental authority for the use and operation of the
Property as the same is presently used and operated or that the operation of
such Property fails to comply with any of the licenses and permits. All of the
licenses and permits are fully paid for, and the Seller has made, or will make,
application for renewals of any such licenses and permits which will expire
before the Closing Date.
(m) Exactments/Recapture Agreements. Except as disclosed in any
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preliminary title reports, the documents listed on Exhibit J (the "Environmental
Reports") hereto or in any other materials delivered by Seller to Xxxxx Xxxxxx,
Xxxxxx Xxxxxxx or Xxxxx Xxxx (collectively, the "Delivered Materials"), the
Seller has no actual knowledge of any outstanding obligations in connection with
the Land it owns for any exactments. Except as disclosed in the Delivered
Materials, the Seller has no actual knowledge of any outstanding obligations in
connection with the Land for any so-called "recapture agreement" involving
refund for sewer extension, oversizing utility, lighting or like expense or
charge for work or services done upon or relating to the Real Property. To the
Seller's actual knowledge, no portion of its Property is subject to or is
affected by any special assessment or special taxing district, except as
disclosed in the Delivered Materials.
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(n) Zoning. The Seller has no actual knowledge of any existing,
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pending, contemplated, threatened or anticipated (i) change in the zoning
classification of the Real Property or (ii) widening, change of grade or
limitation on use of streets abutting the Real Property, except as may be
disclosed in the Delivered Materials.
(o) Environmental Reports. The Delivered Materials include all
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reports currently in the Seller's possession related to whether any Hazardous
Materials have been located on the Real Property or have migrated onto the Real
Property or have been released into the environment, or discharged, placed or
disposed of at, on or under the Real Property.
The term "Hazardous Materials" shall mean and include the
following, including mixtures thereof: any hazardous substance, pollutant,
contaminant, waste, by-product or constituent regulated under the Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C. Section 9601
et seq.; oil and petroleum products and natural gas, natural gas liquids,
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liquefied natural gas and synthetic gas usable for fuel; pesticides regulated
under the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. Section
136 et seq.; asbestos and asbestos-containing materials, PCBs and other
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substances regulated under the Toxic Substances Control Act, 15 U.S.C. Section
2601 et seq.; source material, special nuclear material, by-product material and
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any other radioactive materials or radioactive wastes, however produced,
regulated under the Atomic Energy Act of 1954, 42 U.S.C Section 2011 et seq., or
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the Nuclear Waste Policy Act of 0000 , 00 X.X.X 00000 et seq.; chemicals subject
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to the OSHA Hazard Communication Standard, 29 C.F.R. { 1910.1200 et seq.; and
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industrial process and pollution control wastes, whether or not hazardous within
the meaning of the Resource Conservation and Recovery Act, 42 U.S.C. Section
6901 et seq. The term "Environmental Laws" shall mean and include all federal,
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state and local statutes, ordinances, regulations and rules in effect and as
amended from time to time relating to environmental quality, health, safety,
contamination and clean-up, including, without limitation, the Clean Air Act, 42
U.S.C. Section 7401 et seq.; the Clean Water Act, 33 U.S.C. Section 1251 et
-- --- --
seq., and the Water Quality Act of 1987, 33 U.S.C. Section 1251; the Federal
---
Insecticide, Fungicide, and Rodenticide Act 7 U.S.C. Section 136 et seq.; the
-- ---
Marine Protection, Research, and Sanctuaries Act, 33 U.S.C. Section 1401 et
--
seq.; the National Environmental Policy Act, 42 U.S.C. Section 4321 et seq.; the
--- -- ---
Noise Control Act, 42 U.S.C. Section 4901 et seq.; the Occupational Safety and
-- ---
Health Act, 29 U.S.C. Section 651 et seq.; the Resource Conservation and
-- ---
Recovery Act 42 U.S.C. Section 6901 et seq., as amended by the Hazardous and
-- ---
Solid Waste Amendments of 1984; the Safe Drinking Water Act, 42 U.S.C. Section
300f et seq.; the Comprehensive Environmental Response, Compensation and
-- ---
Liability Act 42 U.S.C. Section 9601 et seq., as amended by the Superfund
-- ---
Amendments and Reauthorization Act, the Emergency Planning and Community
Right-to-Know Act of 1986, 12 U.S.C. Section 1101 et seq., and the Radon Gas and
-- ---
Indoor Air Quality Research Act of 1986, 42 U.S.C. Section 7401, et seq.; the
-- ---
Toxic Substances Control Act 15 U.S.C. Section 2601 et seq.; the Atomic Energy
-- ---
Act of 1954, 42 U.S.C. Section 2011 et seq., and the Nuclear Waste Policy Act of
1982, 42 U.S.C. Section 10101 et seq.; and state and local environmental
-- ---
statutes and ordinances, with implementing regulations and rules, as any of the
foregoing may be amended from time to time.
(p) Documents. The Delivered Materials, together with the JCP
---------
Report referenced in Section 15.15 and the Contracts described on Exhibit G,
constitute all of the
9
documents of the type described in Exhibit C affecting the Property which are
currently in the Seller's possession with respect to the Property.
The representations and warranties made by Seller in this Section 4.1
(other than Section 4.1(k)) shall survive the Closing and not be merged therein
for a period of one (1) year, and the Seller shall only be liable to Purchaser
hereunder for a breach of representation or warranty made herein with respect to
which a claim is made by Purchaser against the Seller on or before the first
anniversary of the Closing Date. The representations and warranties made by
Seller in Section 4.1(k) shall survive the Closing until Seller delivers to
Purchaser the New Indemnity (as defined below), the New Guaranty (as defined
below) and the Siemens Estoppel (as defined below).
4.2 Covenants, Representations and Warranties of Purchaser. Purchaser
-------------------------------------------------------
covenants, represents and warrants to Seller as follows:
(a) Authority. Purchaser has the power and authority to purchase
---------
and accept the Property to be sold and purchased hereunder, to terminate the
Leases, and to enter into the agreements contemplated hereby, and all required
action and approvals therefor have been duly taken and obtained. The individuals
signing this Agreement and all other documents executed pursuant hereto on
behalf of Purchaser are duly authorized to sign same on behalf of Purchaser and
to bind Purchaser.
(b) No Breach. The execution and delivery of this Agreement, the
---------
consummation of the transactions provided for herein and the fulfillment of the
terms hereof will not result in a breach of any of the terms or provisions of,
or constitute a default under, any agreement of Purchaser or any instrument to
which Purchaser is a party or by which Purchaser is bound, or any judgment,
decree or order of any court or governmental body, or any applicable law, rule
or regulation.
ARTICLE 5
MATTERS
-------
5.1 Closing. The closing of the transaction contemplated hereby (the
-------
"Closing") shall take place on October 1, 2001 (the "Closing Date"). The parties
will deposit documents and funds into escrow in sufficient time to close on the
scheduled Closing Date, but in any event documents shall be deposited at least
one (1) business day prior to the scheduled Closing Date. The Closing shall be
effected pursuant to the Escrow Instructions.
5.2 [Retained for Numbering Purposes Only]
5.3 Survey, Title Commitment and Searches. Seller shall deliver to
-------------------------------------
Purchaser the following (hereinafter referred to collectively as the "Title
Documents") within ten (10) days after the date hereof, to the extent not
already delivery as of the date hereof:
(a) Survey. Five (5) copies of a Plat of Survey of the Property
------
prepared after the date hereof by a surveyor licensed by the State of
California, in conformity with the "Minimum Standard Detail Requirements for
ALTA/ACSM Land Title Surveys" jointly established and adopted by ALTA and ACSM
in 1999, meeting the accuracy requirements of an Urban Survey, as defined
therein, and including items 1-4 and 6-11 and 13 in Table A contained
10
therein, and in conformity with such standards as are required by the Title
Insurer as a condition to the removal of any general survey exceptions from the
Title Commitment (other than those matters that may be shown by the survey),
certified to Purchaser and the Title Company.
Purchaser acknowledges having received preliminary title reports
("Title Report") dated as of July 9, 2001 issued by the Escrowee with respect to
the Real Property, together with full and legible copies of all documents
("Title Papers") referred to in the Title Report. Purchaser shall arrange for
any update thereto and such other information relating to title matters as
Purchaser may desire directly with the Escrowee and Title Company.
5.4 Defects.
-------
(a) Seller shall be obligated to remove mortgages, deeds of
trust and other monetary liens or encumbrances of a definite and liquidated
amount which encumber the Real Property (other than non-delinquent real property
taxes and assessments and any encumbrances caused by or through Purchaser, the
Purchaser's Representatives, or any tenant or subtenant of the Property)
("Mortgage Liens"), which the parties agree may be removed by the use of the
proceeds of sale at Closing. If the proceeds of sale are insufficient to remove
all Mortgage Liens, the Seller shall deposit at Closing any additional amount
required to remove such Mortgage Liens, and should Seller fail to do so,
Purchaser may exercise any remedy available to Purchaser at law or in equity
against Seller. If any such Title Defect other than a Mortgage Lien is not cured
(or subject to Purchaser's approval (not to be unreasonably withheld), insured
over by the Title Company) on or prior to the Closing Date, Purchaser may
either: (i) terminate this Agreement, in which event (hereinafter referred to as
"Election No. 1") the parties shall have no further Obligation or liability to
each other hereunder other than the obligations which are expressly stated
herein to survive the termination of this Agreement ("Surviving Obligations")
and the interest on the Deposit shall be returned to Purchaser; or (ii) accept
title with the Title Defect, without any adjustment to the Purchase Price and
without any liability of Seller with respect thereto (hereinafter referred to as
"Election No. 2"). Title Defects which are acceptable as part of Election No. 2
shall thereupon be deemed to be Permitted Exceptions.
(b) Purchaser's obligations hereunder shall be contingent on the
Title Company being unconditionally committed to issue, at the Closing, (i) an
ALTA Owner's Policy of Title Insurance (Form B, rev. 10/17/70) in the amount of
the Purchase Price insuring fee simple title to the Real Property in the
Purchaser subject only to the Permitted Exceptions and the pre-printed
exceptions not removed by extended coverage, and with a Zoning 123.2 endorsement
(with parking), an access endorsement, a contiguity endorsement, a restrictions
endorsement, and such other endorsements as may be reasonably requested by
Purchaser and available in California (the "ALTA Title Policy").
ARTICLE 6
DELIVERIES
----------
6.1 Seller's Deliveries. At least one day prior to the Closing Date,
-------------------
Seller shall deposit in the Escrow the following:
11
(a) the Deed executed by the Seller, together with a separate
statement regarding documentary transfer tax in the form attached in Exhibit I-1
containing the information requested therein, which separate statement shall not
be recorded as a public record in the Official Records, but shall be filed with
the County Recorder when the Deed is recorded in the Official Records;
(b) a Xxxx of Sale in the form attached hereto as Exhibit E
executed by the Seller;
(c) the Assignment and Assumption Agreement (the "Assignment")
in the form attached hereto as Exhibit L executed by the Seller;
(d) a termination of the Leases in the form attached hereto as
Exhibit K (the "Lease Termination") effective as of the Closing Date, executed
by the Seller;
(e) originals of certificates of occupancy, licenses, permits,
authorizations, consents and approvals required by law and issued by any
governmental or quasi-governmental authority having jurisdiction over the Real
Property (to the extent in the Seller's possession) and copies of all
certificates, if any, issued by the local board of fire underwriters (or other
body exercising similar functions) to the extent in the Seller's possession, to
the extent not previously delivered to Purchaser;
(f) to the extent in the Seller's possession and not previously
delivered to Purchaser, a complete set of as-built architectural and engineering
drawings, utilities layout plans, topographical plans and the like used in the
construction of the buildings, structures and other improvements on the Real
Property;
(g) an original or certified copies of all Contracts then in the
Seller's possession, which will be assigned pursuant to the Assignment;
(h) a written certification ("FIRPTA Certificate"), which
certification shall be in compliance with the Tax Reform Act of 1984 (the "Act")
and the regulations thereunder that are imposed by the Foreign Investment in
Real Property Tax Act ("FIRPTA") and certifying that the Seller is not a person
or entity subject to withholding under FIRPTA and the Act, and containing the
Seller's tax identification number and address. If Seller does not provide such
written certification, Purchaser may withhold at Closing ten percent (10%) of
the gross proceeds of the sale of the Property for remittance to the Internal
Revenue Service in accordance with the provisions of the Act;
(i) a California 597-W form;
(j) the Building 4 Option executed by Sobrato Construction and
the Xxxx X. Xxxxxxx 1985 Separate Property Trust;
(k) a certificate remaking and updating through the Closing Date
the representations and warranties made in Section 4.1 hereof, or in the event
the Seller has knowledge that any such representations and warranties are no
longer accurate, describing how they are no longer accurate; and
12
(l) an Access Agreement (the "Access Agreement") in the form
attached hereto as Exhibit N executed by Seller.
6.2 Purchaser's Deliveries. At the Closing, Purchaser shall cause to
----------------------
be delivered to Seller:
(a) (the Purchase Price required to be paid pursuant to Section
3.1 hereof;
(b) the Lease Termination executed by Purchaser;
(c) the Assignment executed by Purchaser;
(d) the Building 4 Option executed by Purchaser;
(e) a certificate remaking and updating through the Closing Date
the representations and warranties made in Section 4.2 hereof, or in the event
the Purchaser has knowledge that any such representations and warranties are no
longer accurate, describing how they are no longer accurate; and
(f) the Access Agreement executed by Purchaser.
6.3 Closing Statement. Not later than five (5) days prior to the
-----------------
Closing Date, Seller and Purchaser shall request of the Escrowee that Escrowee
prepare a closing statement showing the funds to be delivered, closing costs and
prorations for the transactions contemplated hereby in accordance with the
provisions of Article 7 hereof.
6.4 Further Assurances. Each of parties hereto, at the Closing, will
------------------
execute such additional instruments, documents or certificates as is reasonably
required in order to consummate the purchase and sale of the Property pursuant
to this Agreement.
6.5 Seller's Post Closing Deliveries After Closing, Seller agrees to
--------------------------------
exercise best efforts to obtain an indemnification agreement issued by SCI to
Purchaser, and to VeriSign, Inc. as tenant of the Property, in the form required
by Paragraph 6 of the Settlement Agreement (the "New Indemnity") and a guaranty
issued by Siemens to Purchaser, and to VeriSign Inc. as tenant of the Property,
in the form required by Paragraph 6 of the Settlement Agreement (the "New
Guaranty"). In addition, Seller shall exercise good faith reasonable efforts to
obtain an estoppel letter issued by SCI and Siemens in the form attached hereto
as Exhibit M or in such other form as is reasonably acceptable to Purchaser
which in all material respects addresses the issues in the form attached hereto
as Exhibit M (the "Siemens Estoppel"). The provisions of this Section 6.5 shall
survive Closing.
ARTICLE 7
APPORTIONMENTS; TAXES; UTILITIES
--------------------------------
The following items shall be adjusted and apportioned between Seller
and Purchaser as follows:
13
7.1 Taxes. Except with respect to Building 4 and the Land associated
-----
therewith, there shall be no proration of ad valorem real estate taxes, general
and special real property assessments, personal property taxes, charges and
assessments ("Taxes") affecting the Property pursuant to this Agreement or under
the Leases. The Taxes on Building 4 and the Land associated therewith shall be
prorated on a per diem basis as of midnight of the Proration Date, disregarding
any discount or penalty and on the basis of the fiscal year of the authority
levying the same, which proration shall also be deemed to satisfy any Taxes
proration requirements under the Leases. If any of the same have not been
finally assessed as of the date of Closing for the current fiscal year of the
taxing authority, then the same shall be adjusted at Closing based upon the most
recently issued bills therefor and shall be readjusted immediately when and if
final bills are issued, which obligation shall survive Closing and not be merged
therein. Such proration shall be calculated based upon the actual number of days
in such fiscal year, with Seller being responsible for that portion of such
fiscal year occurring prior to midnight of the Proration Date and Purchaser
being responsible for that portion of such fiscal year occurring after midnight
of the Proration Date.
7.2 Rents. All rents with respect to the Real Property shall be
-----
prorated as of midnight of the Proration Date, such that Seller shall be
entitled to rents which are due or past due or not yet due but accrued under the
terms of the Leases, prorated to midnight of the Proration Date, regardless of
when such payments are actually made and Purchaser shall be entitled to all such
rents and other revenues accruing on and after the Closing Date. Any proration
of rents between Purchaser and Seller pursuant to this Section shall also be
deemed to have satisfied any rent proration requirements of the landlord and
tenant under the Leases.
7.3 Security Deposits. All cash security and other deposits of all
-----------------
tenants under Leases not theretofore applied, shall be delivered by Seller to
Purchaser on the Closing Date, or as to such cash deposits, Seller may elect to
give Purchaser a credit against the Purchase Price in the amount of such
deposits. Any security deposit in the form of a letter of credit shall be
delivered to Purchaser immediately following the Closing. Any such delivery or
credit of the security and other deposits by Seller shall also be deemed to
satisfy any requirement under the Leases for the return of such security and
deposits to the tenant under the Leases.
7.4 Contracts. Purchaser shall be entitled to a credit against the
---------
Purchase Price for sums that are due (or accrued) and unpaid as of the Closing
Date under any contracts listed on Exhibit G as "Assigned Contracts", and Seller
shall be entitled to a credit to the extent that sums have been paid under any
such Contracts for services to be performed or goods to be delivered after the
Closing Date. In addition, to the extent not already credited pursuant to the
prior sentence, Purchaser shall receive a credit for all amounts that are not
then currently due or accrued which remain to be paid under the Garage Contract
calculated as of the Closing. At Closing, Seller shall at its cost and expense
terminate the existing insurance policies affecting the Property, and there
shall be no prorations of any amounts related thereto under this Agreement or
under the Leases.
7.5 Other Property Operating Expenses. Operating expenses for the
---------------------------------
Property shall be prorated as of midnight of the Proration Date. Seller shall
pay all utility charges and other operating expenses attributable to the
Property to, but not including the Closing Date (except for those utility
charges and operating expenses payable by tenants in accordance with the Leases)
14
and Purchaser shall pay all utility charges and other operating expenses
attributable to the Property on or after the Closing Date together with any
utility charges and operating expenses payable by tenants in accordance with the
Leases (other than real property taxes and assessments and insurance premiums).
To the extent that the amount of actual consumption of any utility services is
not determined prior to the Closing Date, a proration shall be made at Closing
based on the last available reading and post-closing adjustments between
Purchaser and Seller shall be made within twenty (20) days of the date that
actual consumption for such pre-closing period is determined, which obligation
shall survive the Closing and not be merged therein. Seller shall not assign to
Purchaser any deposits which Seller has with any of the utility services or
companies servicing the Property, and Seller shall be entitled to the return of
such deposits from the utility provided, if any. Purchaser shall arrange with
such services and companies to have accounts opened in Purchaser's name
beginning at 12:01 a.m. on the Closing Date.
7.6 Insurance Premiums. At Closing, Seller shall cancel the existing
------------------
insurance policies for the Property. Seller shall pay all insurance premiums
owed prior to the Closing Date and there shall be no proration of such items.
7.7 No Credit For Tenant Inducements. Purchaser agrees that there shall
--------------------------------
be no payment or credit to Purchaser or liability to any tenant for any
allowances and other expenditures required to complete tenant improvements or to
satisfy other tenant inducements to be provided by the landlord under any
Leases.
ARTICLE 8
CONDITIONS TO SELLER'S OBLIGATIONS
----------------------------------
8.1 Seller's Conditions Precedent. The obligation of Seller to close
-----------------------------
the transaction contemplated hereby is, at Seller's option, subject to all
representations and warranties of Purchaser contained in this Agreement being
true and correct in all material respects at and as of the Closing Date and all
covenants of Purchaser to have been performed on or before the Closing Date
having been timely and duly performed in all material respects, which conditions
are for Seller's benefit only and can be unilaterally waived by Seller.
ARTICLE 9
CONDITIONS TO PURCHASER'S OBLIGATIONS
-------------------------------------
9.1 Feasibility Contingency. The obligation of Purchaser to close the
-----------------------
transaction contemplated hereby is, at the option of Purchaser, subject to
Purchaser's being satisfied, in Purchaser's sole and absolute discretion, with
the Records, Leases, Contracts and reports for the Property and the results of
its physical inspections of the Property, including, but not limited to,
environmental and engineering reports, and the availability of financing for the
proposed acquisition (the "Feasibility Contingency"). Purchaser shall have
through September 30, 2001 (the period from the date hereof through September
30, 2001 being the "Contingency Period") for satisfaction of the Feasibility
Contingency. If Purchaser does not terminate this Agreement by written notice to
Seller given prior to the expiration of the Contingency Period, Purchaser shall
be deemed to have satisfied the Feasibility Contingency, in which event, subject
to the terms and conditions hereof, Purchaser shall be obligated to close the
transaction contemplated hereby. If Purchaser does terminate this Agreement by
written notice to Seller given prior to the
15
expiration of the Contingency Period, the interest on the Deposit shall
forthwith be released to Purchaser from Escrow, the Deposit shall forthwith be
released to Seller from Escrow, and, thereupon, this Agreement shall become null
and void and neither party shall have any further rights and obligations
hereunder, other than the Surviving Obligations.
9.2 Additional Conditions Precedent. The obligation of Purchaser to
-------------------------------
close the transaction contemplated hereby is, at Purchaser's option, further
subject to all representations and warranties of the Seller contained in this
Agreement being true and correct in all material respects at and as of the
Closing Date, all covenants of Seller contained in this Agreement to have been
performed on or before the Closing Date having been timely and duly performed in
all material respects, the Title Company being committed to issue the ALTA Title
Policy, and there being no material change in the condition of the Property from
the date of the waiver of the Feasibility Condition through the Closing Date
(other than changes caused by Purchaser, the Purchaser's Representatives or any
tenant or subtenant of Purchaser).
ARTICLE 10
ACTIONS AND OPERATIONS PENDING
10.1 Actions and Operations Pending Closing. Seller agrees that from
--------------------------------------
the date hereof through the Closing Date:
(a) Except as may be provided to the contrary herein, the Property
will continue to be operated and maintained substantially in accordance with the
Seller's present standards (except to the extent failure to so maintain such
Property is due to the tenant's breach of its obligations under any of the
Leases).
(b) the Seller shall perform or cause to be performed all
obligations of the landlord under the Leases, all obligations of Seller under
the Contracts to which it is a party and all licenses and permits, all
obligations of Seller under the Legal Requirements applicable to the Property,
and all obligations of the mortgagor under the any mortgage affecting the
Property, to and including the Closing Date or termination of this Agreement.
From the date hereof to the Closing Date or earlier termination of this
Agreement, Seller shall operate and manage the Property in the same manner as it
has been operated and managed heretofore, provided that during said period,
without the prior written consent of Purchaser (except as indicated below),
Seller shall not do, suffer or permit, or agree to do, any of the following:
(i) Enter into any transaction with respect to or affecting
the Property out of the ordinary course of business;
(ii) Sell, lease, encumber or grant any interest in the
Property or any part thereof in any form or manner whatsoever; or
(iii) Remove from the Real Property any of the fixtures
thereon or any of the Personalty.
(c) Seller will not enter into any new contracts affecting the
Property, or cancel, modify or renew any existing Contracts, without the prior
written consent of Purchaser, which consent shall not be unreasonably withheld.
Seller shall comply with all applicable terms,
16
provisions and obligations of Seller contained in the Contracts and any other
contractual arrangements referred to in this Agreement applicable to Seller.
(d) Seller shall notify Purchaser promptly if Seller becomes aware
of any transaction or occurrence prior to the Closing Date which would make any
of the representations or warranties of Seller contained in Section 4.1 untrue
in any material respect.
(e) Seller will maintain in effect all policies of casualty and
liability insurance, or similar policies of insurance, with the same limits of
coverage which they now carry with respect to the Property.
ARTICLE 11
DAMAGE OR DESTRUCTION; CONDEMNATION; INSURANCE
----------------------------------------------
11.1 Termination of Agreement. If at any time after the date hereof and
------------------------
prior to the date of Closing, (i) all or any material portion of the Property is
destroyed or damaged as a result of fire or any other casualty whatsoever or
(ii) if any proceeding relating to the proposed taking of all or any material
portion of the Property by condemnation or eminent domain is instituted or
threatened by any public authority, then, at the option of Purchaser, this
Agreement shall terminate and shall be cancelled with no further liability of
either party to the other, other than the Surviving Obligations. Seller shall
give Purchaser written notice of any such casualty or instituted or threatened
proceeding within three (3) days after Seller becomes aware of the occurrence
thereof.
11.2 No Termination of Agreement. If there is any partial or total
---------------------------
damage or destruction or condemnation or taking, as above set forth, and if
Purchaser elects not to terminate this Agreement as herein provided, then in any
such case all condemnation and insurance proceeds paid or payable to the Company
or Seller as a result thereof shall belong to Purchaser at the Closing and shall
be paid over and assigned to Purchaser at Closing, and Seller shall further
execute all assignments and any other documents or other instruments as
Purchaser may reasonably request or as may be necessary to transfer all interest
in all such proceeds to Purchaser or to whomever Purchaser shall direct.
ARTICLE 12
LIABILITIES, ASSIGNMENT AND ASSUMPTION OF CERTAIN CONTRACT OBLIGATIONS
----------------------------------------------------------------------
12.1 No Liability of Purchaser. Except as expressly provided herein,
-------------------------
Purchaser shall not assume or take subject to any liabilities or obligations of
the Property or Seller existing or accrued as of the date of Closing, and Seller
shall pay the same as they mature and shall hold Purchaser harmless with respect
to all thereof. Liabilities and obligations of the Property accruing after the
date of Closing shall be the responsibility of Purchaser or the Property, as the
case may be.
12.2 Assumption of Liabilities by Purchaser. Subject to the terms and
--------------------------------------
conditions of this Agreement, Seller will assign to Purchaser all of its right,
title and interest in and to the Contracts listed as "Assigned Contracts" on
Exhibit G hereto, and Purchaser will assume and
17
agree to perform Seller's duties and obligations thereunder accruing on and
after the date of Closing, pursuant to the Assignment.
ARTICLE 13
[Retained for Numbering Purposes Only]
ARTICLE 14
NOTICES
-------
14.1 Notices. Except as otherwise provided in this Agreement, all
-------
notices, demands, requests, consents, approvals and other communications (herein
collectively called "Notices") required or permitted to be given hereunder, or
which are to be given with respect to this Agreement, shall be in writing and
shall be personally delivered or sent by registered or certified mail, postage
prepaid, return receipt requested, or by overnight express courier, postage
prepaid, addressed to the party to be so notified as follows:
If intended for Seller, to: Xxxxx-Middlefield Business Park
00000 Xxxxx Xx Xxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxxx
Copies to: Berliner Xxxxx
Ten Almaden Boulevard
11/th/ Floor
San Jose, California 95113-2233
Attention: Xxxxx Xxxxx
If intended for Purchaser, to: VeriSign, Inc.
000 Xxxx Xxxxxxxxxxx Xxxx
Xxxxxxxx Xxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxx Xxxxx
with copies to: VeriSign Inc.
00000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxx, III
and: VeriSign Inc.
000 Xxxx Xxxxxxxxxxx Xxxx
Xxxxxxxx Xxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxx Xxxx, Esq.
Senior Vice President,
General Counsel
18
and: Xxxxx Xxxx LaSalle Americas, Inc.
0000 Xxxxxxxx Xxxxx, Xxxxx 000
XxXxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxx
and: Xxxxx Xxxxxxx Xxxxxxx & Xxxxx, LLP
0000 Xxxxxxxxxx Xxxxxx, XX
Xxxxxxxxxx, X.X. 00000-0000
Attention: Xxxxxxx X. Xxxxxxxxx
Notice mailed by registered or certified mail shall be deemed received
by the addressee three (3) days after mailing thereof. Notice personally
delivered shall be deemed received when delivered. Notice mailed by overnight
express courier shall be deemed received by the addressee one (1) business day
after mailing thereof. Either party at any time may change the address for
notice to such party by mailing, sending or delivering a Notice as aforesaid.
ARTICLE 15
MISCELLANEOUS
-------------
15.1 Expenses. All costs associated with the transfer of title to the
--------
Property and the associated escrow shall be in accordance with the customary
practices in Santa Xxxxx County, California except as otherwise expressly set
forth herein. Seller shall pay one-half (1/2) of the escrow fees, one-half (1/2)
of the applicable city transfer taxes, all of the documentary county transfer
taxes, all of the recording costs necessary to remove monetary liens which the
Seller is required or elects to remove pursuant to this Agreement, and the
portion of the premium charged by the Title Company for the ALTA Title Policy
which is attributable to basic CLTA coverage (including for those endorsements
required by the Title Company to be obtained in order to cause the removal from
title of objectionable title matters which Seller is required to remove in
accordance with the provisions of Section 5.3 above) . Purchaser shall pay
one-half (1/2) of the escrow fees, one-half (1/2) of the applicable city
transfer taxes, all costs associated with Purchaser's financing, all of the
recording costs with respect to the Deed, and the entire portion ALTA Title
Policy not required to be paid by Seller (including endorsements). The fees and
expenses of Seller's designated representatives, accountants and attorneys shall
be borne by Seller, and the fees and expenses of Purchaser's designated
representatives, accountants and attorneys shall be borne by Purchaser. The
provisions of this Section 15.1 shall survive Closing.
15.2 Brokerage. Seller and Purchaser each hereby represent and warrant
---------
to the other that with the exception of Xxxxx Xxxx LaSalle Americas, Inc., to
whom Purchaser shall pay all commissions due, neither has dealt with any broker
or finder in connection with the transaction contemplated hereby, and each
hereby agrees to indemnify, defend and hold the other harmless of and from any
and all manner of claims, liabilities, loss, damage, attorneys' fees and
expenses, incurred by the other party and arising out of, or resulting from, any
claim by any such broker or finder in contravention of the representing party's
representation and warranty herein contained. The parties' obligations hereunder
shall survive the termination of this Agreement.
19
15.3 Books and Records. Seller covenants and agrees that the Records
-----------------
will remain at Seller's offices, located within Santa Xxxxx County, California,
for examination and audit by Purchaser and its agents for a period of five (5)
years after the Closing. The provisions of this Section 15.3 shall survive
Closing.
15.4 Seller Default. If this Agreement is terminated by a default of
--------------
Seller, the interest on the Deposit shall be promptly released to Purchaser, the
Deposit shall be promptly released to Seller, and Purchaser shall be entitled to
pursue against Seller any and all remedies available to Purchaser, at law or in
equity, including, but not limited to, specific performance. The provisions of
this Section 15.4 shall survive termination of this Agreement.
15.5 Liquidated Damages. IN THE EVENT PURCHASER FAILS TO COMPLETE THE
------------------
PURCHASE OF THE PROPERTY AS CONTEMPLATED HEREIN DUE TO THE DEFAULT BY PURCHASER
(AND NOT DUE TO A FAILURE OF A CONDITION PRECEDENT IN FAVOR OF PURCHASER) TO
PERFORM ITS OBLIGATIONS HEREUNDER AND SELLER IS READY, WILLING AND ABLE TO
CONSUMMATE THE SALE CONTEMPLATED HEREIN, PURCHASER AND SELLER HEREBY AGREE THAT
THE DEPOSIT (TO THE EXTENT MADE) SHALL BE PAID TO AND RETAINED BY SELLER AS
LIQUIDATED DAMAGES. SUBJECT TO THIS SECTION BELOW, THE PARTIES HEREBY
ACKNOWLEDGE AND AGREE THAT SELLER'S ACTUAL DAMAGES, IN THE EVENT OF A DEFAULT
HEREUNDER BY PURCHASER, WOULD BE EXTREMELY DIFFICULT OR IMPRACTICABLE TO
DETERMINE. THEREFORE, SUBJECT TO THIS SECTION BELOW, BY PLACING THEIR INITIALS
BELOW, THE PARTIES ACKNOWLEDGE THAT THE AMOUNT OF THE DEPOSIT (TO THE EXTENT
MADE) HAS BEEN AGREED UPON, AFTER NEGOTIATION AND TAKING INTO CONSIDERATION ALL
CIRCUMSTANCES EXISTING AS OF THE AGREEMENT DATE, AS THE PARTIES' REASONABLE
ESTIMATE OF SELLER'S DAMAGES AS WELL AS THE RELATIONSHIP OF THE SUM TO THE RANGE
OF HARM TO SELLER THAT COULD BE ANTICIPATED AND, SUBJECT TO THIS SECTION BELOW,
SUCH SUM SHALL BE PAID TO AND RETAINED BY SELLER AS SELLER'S SOLE AND EXCLUSIVE
REMEDY AGAINST PURCHASER, AT LAW OR IN EQUITY, IN THE EVENT OF A DEFAULT BY
PURCHASER IN PURCHASING THE PROPERTY UNDER THIS AGREEMENT ON THE PART OF
PURCHASER. NOTWITHSTANDING THE FOREGOING, THE SURVIVING OBLIGATIONS (AS DEFINED
IN THIS AGREEMENT) SHALL NOT BE LIMITED, IMPAIRED OR OTHERWISE AFFECTED BY ANY
TERMINATION OF THIS AGREEMENT OR ANY LIQUIDATED DAMAGES RECEIVED BY SELLER
PURSUANT TO THIS SECTION AS A RESULT OF PURCHASER'S DEFAULT. AS TO THE SURVIVING
OBLIGATIONS, SELLER SHALL RETAIN THE RIGHT TO SEEK AND OBTAIN ANY AND ALL
ADDITIONAL REMEDIES AVAILABLE AT LAW AND IN EQUITY AND SHALL NOT BE LIMITED OR
AFFECTED BY THE LIQUIDATED DAMAGES PAID TO AND RETAINED BY SELLER PURSUANT TO
THIS SECTION. IN PLACING THEIR INITIALS BELOW, EACH PARTY SPECIFICALLY CONFIRMS
THE ACCURACY OF THE STATEMENTS MADE ABOVE AND THE FACT THAT EACH PARTY WAS
REPRESENTED BY COUNSEL WHO EXPLAINED THE CONSEQUENCES OF THIS
20
LIQUIDATED DAMAGES PROVISION AT THE TIME THIS AGREEMENT WAS MADE.
SELLER'S INITIALS: ____________ PURCHASER'S INITIALS: ____________
15.6 Survival. Subject to the limitations specified in Section 4.1
--------
hereof, the representations, warranties, indemnification, defense and hold
harmless obligations and the post Closing obligations of Seller and Purchaser
contained or in the documents to be delivered at the Closing herein shall
survive the Closing.
15.7 Construction. This Agreement shall not be construed more strictly
------------
against one party than against the other, merely by virtue of the fact that it
may have been prepared primarily by counsel for one of the parties, it being
recognized that both Purchaser and Seller have contributed substantially and
materially to the preparation of this Agreement.
15.8 Confidential Information. Seller and Purchaser acknowledge that
------------------------
the economic terms of the transaction described herein are of confidential
nature and shall not be disclosed except to consultants, lenders, attorneys,
advisors and affiliates, or as required by law or regulation of any governmental
authority or self regulatory organization (i.e., NYSE, NASD), or as reasonably
necessary to consummate the transaction. Neither Seller nor Purchaser will make
any public disclosure of the economic terms of this Agreement, except as
provided in this paragraph. In connection with the preparation for the
consummation of the transactions contemplated thereby, each party acknowledges
that it will have access to confidential information relating to the other
party. Each party shall treat such information as confidential, preserve the
confidentiality thereof, not duplicate or use such information, except to
advisors, attorneys, consultants, lenders and affiliates in connection with the
transactions contemplated hereby, or in connection with any litigation involving
Seller and Purchaser or related to the Property, or as required by law or
regulation of any governmental authority or self-regulatory organization or as
reasonably necessary to consummate the transaction. Seller acknowledges and
agrees that any press release will be made only in a form approved in advance by
Purchaser and Seller. The provisions of this Section 15.8 shall survive Closing.
15.9 General. This Agreement may be executed in any number of
-------
counterparts, each of which shall constitute an original but all of which, taken
together, shall constitute but one and the same instrument. This Agreement
(including all Exhibits hereto) contains the entire agreement between the
parties with respect to the subject matter hereof, supersedes all prior
understandings, if any, with respect thereto (including without limitation that
certain letter signed by Purchaser and Seller dated August 10, 2001) and may not
be amended, supplemented or terminated, nor shall any Obligation hereunder or
condition hereof be deemed waived, except by a written instrument to such effect
signed by the party to be charged or as otherwise expressly provided herein. The
warranties, representations, agreements and undertakings contained herein shall
not be deemed to have been made for the benefit of any person or entity, other
than the parties hereto and their permitted successors and assigns. Captions
used herein are for convenience only and shall not be used to construe the
meaning of any part of this Agreement. If Seller is comprised of more than one
person or entity, the obligations of each such person or entity shall be
independent of the other person or entity comprising Seller, such that one
person
21
or entity comprising Seller shall not be liable for the breach of the other
person or entity's obligations hereunder.
15.10 Headings. The headings preceding the text of the paragraphs and
--------
subparagraphs hereof are inserted solely for convenience of reference and shall
not constitute a part of this Agreement, nor shall they affect its meaning,
construction or effect.
15.11 Governing Law; Parties at Interest. This Agreement will be
----------------------------------
governed by the law of the State of California, and will bind and inure to the
benefit of the parties hereto and their respective heirs, executors,
administrators, successors, permitted assigns and personal representatives.
Neither Seller nor Purchaser shall assign any of its rights or obligations
pursuant to this Agreement without the consent of the other; provided, however,
that (i) Seller shall be permitted to assign its rights and obligations
hereunder to an entity affiliated with Seller or in connection with any
like-kind exchange referenced in Section 15.16 below, and (ii) Purchaser shall
be permitted to assign its rights and obligations hereunder to an affiliate of
Purchaser or to an entity established to facilitate a sale-leaseback, synthetic
lease or other off-balance sheet financing. Any such assignment by Seller shall
not relieve Seller from its liability under this Agreement. Any such assignment
by Purchaser shall not relieve Purchaser from its liability under this Agreement
for matters accruing prior to the assignment, and, unless such assignment is
made at Closing, until Closing, Purchaser shall remain jointly and severally
liable with the assignee for matters accruing after the Assignment. If the
Assignment is made at Closing, Purchaser shall have no liability under this
Agreement for matters accruing after the Assignment.
15.12 Computation of Time. In computing any period of time pursuant to
-------------------
this Agreement, the day of the act or event from which the designated period of
time begins to run will not be included. The last day of the period so computed
will be included, unless it is a Saturday, Sunday or legal holiday, in which
event the period runs until the end of the next day which is not a Saturday,
Sunday or such legal holiday.
15.13 [Retained for Numbering Purposes Only.]
15.14 Time of the Essence. All times, wherever specified herein for the
-------------------
performance by Seller or Purchaser of their respective obligations hereunder,
are of the essence of this Agreement.
15.15 As-Is and Release. Except as otherwise specifically represented
-----------------
by Seller in this Agreement, Purchaser acknowledges and agrees that the Property
is to be purchased, conveyed and accepted by Purchaser in its present condition,
"AS-IS, WHERE-IS, WITH ALL FAULTS", without representation or warranty of any
kind, express or implied, and that no patent or latent defect in the condition
of the Property, whether or not known or discovered, shall give rise to any
claim or cause of action by Purchaser against Seller. Purchaser acknowledges and
agrees that prior to the end of the Contingency Period, Purchaser and its
representatives will have been afforded sufficient opportunity to make and
complete such review of the documents received in connection with the Property
and inspections of the Property and matters related thereto, and to investigate
any land use or other governmental issues affecting the Property as Purchaser
and its representatives desire and, except as otherwise expressly provided
herein, Purchaser shall accept the Property upon the basis of its review and
determinations. Except as otherwise expressly
22
provided herein, Purchaser acknowledges that the Property has been leased or
otherwise used from time to time for various industrial/commercial purposes, and
has been in the past and is currently subject to a number of environmental
concerns. Purchaser further acknowledges that prior to the end of the
Contingency Period it will have been given the opportunity to review and be
knowledgeable of the matters described in the materials provided by Seller and
that Purchaser will acquire the Property subject to all matters described in
such materials. Purchaser acknowledges that the materials provided by Seller do
not constitute all materials ever received by Seller with respect to the
Property, and specifically, without limiting the foregoing, that over the years
Seller has received significantly more reports and other information relating to
the environmental condition of the Property which are no longer in Seller's
possession. Purchaser therefore agrees to rely on the investigations of its
environmental and other consultants in ascertaining the present condition of the
Property. Purchaser acknowledges that some or all of the materials provided by
Seller may have been obtained from previous owners or users of the Property or
other sources and Seller makes no representation or warranty as to the
reputation or reliability of the persons or entities preparing the materials.
Notwithstanding that Seller has made materials available for Purchaser's review,
Purchaser will make its own investigation relative to the Property and will rely
on its own investigation in determining the suitability of the Property for its
use. Without limiting the foregoing, Purchaser shall be responsible for
confirming the accuracy of title materials provided by Seller, and for obtaining
from the City of Mountain View confirmation of the existence and extent of any
City development, zoning or land use approvals. Purchaser acknowledges receipt
of the three reports prepared by JCP Geoplogists ("JCP") dated August 28, 2001,
relating to the location of the Real Property within any natural hazard
disclosure zone (the "Natural Hazard Disclosure Reports"). Purchaser
acknowledges that it will prior to Closing conduct and rely its own independent
investigations as to whether the Property is located within any natural hazard
disclosure zone and that Seller makes no representations or warranties and shall
have no liability in connection with such matters, notwithstanding any terms or
conditions contained in the Natural Hazard Disclosure Reports.
Purchaser, on behalf of Purchaser and its officers, directors, members,
employees, agents, shareholders, heirs, executors, administrators, successors
and assigns, does hereby waive, release and forever discharge Seller and its
officers, directors, members, partners, employees, agents, heirs, executors,
administrators, successors and assigns from any and all claims, actions causes
of action, demands, liabilities, damages, costs, expenses or compensation
whatsoever, whether direct or indirect, known or unknown, foreseeable or
unforeseeable ("Claims"), which Purchaser may have at Closing or which may arise
in the future on account of or in any way arising out of or connected with the
Property (except for breach of Seller's express representations made in this
Agreement), including without limitation: (i) the physical condition, nature or
quality of the Property (including the soils and groundwater on and under the
Property); and (ii) the presence or release in, under, on or about the Property
(including the soils and groundwater on and under the Property) of any Hazardous
Materials. Purchaser, on behalf of Purchaser and its officers, directors,
members, employees, agents, shareholders, heirs, executors, administrators,
successors an assigns, hereby waives the protection of California Civil Code
Section 1542, which reads as follows:
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,
23
which if known by him must have materially affected his
settlement with the debtor.
Purchaser's Initials: _______________
Notwithstanding anything to the contrary contained herein, the
foregoing release shall specifically exclude any Claim which Purchaser may
allegedly have against Seller (i) resulting from fraud on the part of the
Seller, or (ii) with respect to the Surviving Obligations under this Agreement
or any obligation of Seller pursuant to the Assignment delivered to Purchaser at
Closing, or (iii) for any tort claims of third parties unrelated to Purchaser or
any subsequent owner of the Property from any acts or negligent omissions of
Seller for which Purchaser would not be liable under any Lease and not relating
to Hazardous Materials, or (iv) any remediation costs or third party tort claims
( excluding tort claims in proceedings initiated by entities which Purchaser
controls, is controlled by, or is under common control with ) arising out of the
presence or release of Hazardous Materials for which the owner or operator of
the Property from time to time has or may have liability under the 106 Order (as
defined in the Settlement Agreement), as amended from time to time, or under any
other administrative or judicial order issued from time to time with respect to
the Contamination (as defined in the Settlement Agreement) or otherwise arising
from or relating to Hazardous Materials contaminating the MEW Site (as defined
in the 106 Order) at the time of execution of the Settlement Agreement, to the
extent that such liability is not required by the terms of the Settlement
Agreement, Siemens Indemnity, Siemens Guaranty, New Indemnity and New Guaranty
to be fully performed and discharged by SCI or Siemens to and for the direct
benefit of Purchaser pursuant to the Settlement Agreement (as assigned by Seller
to Purchaser), the Siemens Indemnity, the Siemens Guaranty, the New Indemnity,
or the New Guaranty. As to (iv) immediately above, Seller shall not have any
liability for costs incurred as a result of SCI's or Siemens' bankruptcy,
insolvency or breach of their obligation under the Settlement Agreement, Siemens
Indemnity, Siemens Guaranty, New Indemnity or New Guaranty.
15.16 Like-Kind Exchange. Purchaser agrees to cooperate reasonably
------------------
with Seller in effecting one or more exchange transactions which includes the
Property or any portion thereof, pursuant to Section 1031 of the United States
Internal Revenue Code, provided that any such exchange transactions, and the
related documentation, shall: (a) be at the sole cost and expense of Seller
(other than costs and expenses incurred in connection with any review by
Seller's attorneys or other consultants), (b) not require Purchaser to execute
any contract, make any commitment, or incur any obligations, contingent or
otherwise, to third parties, (c) not cause Purchaser to be liable or potentially
liable for any environmental conditions affecting property other than the
Property, (d) not delay the closing of the transaction, (e) not include
Purchaser's acquiring title to any property other than the Property or otherwise
becoming involved in a transaction with a third party, and (f) not excuse Seller
from any of its obligations under this Agreement, (g) not otherwise be contrary
to or inconsistent with the terms of this Agreement. Seller acknowledges that it
is not relying on any representation of Purchaser or its counsel with respect to
the tax treatment of Seller or any other aspect of the exchange.
15.17 [Retained for Numbering Purposes Only.]
24
15.18 Attorneys' Fees. If any legal proceeding is brought or
---------------
undertaken to enforce this Agreement, or because of an alleged dispute, breach,
default, or misrepresentation in connection with any of the provisions of this
Agreement, then the prevailing party or parties in such proceeding shall be
entitled to recover reasonable attorneys' and other professionals' fees, court
costs and other expenses incurred in such action or proceeding, in addition to
any other relief to which such party may be entitled. The provisions of this
Section shall survive the Close of Escrow or the termination of this Agreement
IN WITNESS WHEREOF, the parties hereto have executed or caused this
Agreement to be executed, all as of the day and year first above written.
SELLER:
XXXXX-MIDDLEFIELD BUSINESS PARK, a
California limited partnership
By: THE 1979 XXX TRUST
Its: sole general partner
By:__________________________________
XXXX XXXXXXX XXXXXXX, Trustee
PURCHASER:
VERISIGN, INC., a Delaware corporation
By:________________________________________
Name:___________________________________
Title:__________________________________
JOINDER
-------
The 1979 XXX Trust hereby joins in the foregoing Agreement for the
purpose of agreeing to be jointly and severally liable with Seller for all
post-closing liability of Seller under this Agreement for which a claim is made
(a) under Section 4.1(k) prior to the expiration of the survival period for
Section 4.1(k) and (b) under any other Section of this Agreement, prior to the
first anniversary of the Closing Date; provided, however, that the 1979 XXX
Trust shall not have any liability pursuant to this Joinder if the aggregate net
worth of Seller does not fall below fifty percent (50%) of the net proceeds from
the closing of the transactions contemplated hereby (a) with respect to a claim
under Section 4.1(k), prior to the satisfaction of any such claim made prior to
the expiration of the survival period for Section 4.1(k), and (b) for claims
under any other Section of this Agreement, prior to satisfaction of any such
claims made prior to the first anniversary of the Closing Date.
THE 1979 XXX TRUST
Its: sole general partner
By:______________________________________
XXXX XXXXXXX XXXXXXX, Trustee
EXHIBIT A
---------
LAND LEGAL DESCRIPTION
----------------------
All that certain real property situated in the City of Mountain View, County of
Santa Xxxxx, State of California, described as follows:
Parcels A, B, and C, of Parcel Map recorded in Book 314 of Maps, Page 14,
pursuant to the Lot Line Adjustment, recorded September 15, 1988 in Book K 681,
Page 1392 and Book K 681, Page 1396 of Official Records.
EXCEPTING THEREFROM all that portion of land granted the Santa Xxxxx County
Transit District by deed filed for record in the office of the Recorder of the
County of Santa Xxxxx on June 5, 1997 under Recorder's Series No. 13728710,
Official Records, and being more particularly described as follows:
All that certain real property situated in the City of Mountain View, County of
Santa Xxxxx, State of California, and being a portion of Parcel C as shown on
that certain Parcel Map recorded in Book 314 of Maps, at Page 14, Records of
Santa Xxxxx County and being described as follows:
BEGINNING at the most Easterly corner of said Parcel C, said point also being on
a non-tangent curve to the right (concave to the Northwest) the center of which
bears N 66(degrees) 57' 42" W, 548.11 feet;
Thence along the arc of said curve, and along the Southeasterly line of said
Parcel C, through a central angle of 12(degrees) 16' 03", for an arc length of
117.35 feet to a point on a non-tangent curve to the left (concave to the
Northwest) the center of which bears N 56(degrees) 02' 06" W, 560.00 feet;
Thence departing said Southeasterly line along the arc of said curve through a
central angle of 12(degrees) 05' 27", for an arc length of 118.17 feet to a
point on the Northeasterly line of said Parcel C, said point being on a
non-tangent curve to the right (concave to the Southwest) the center of which
bears S 46(degrees) 17' 13" W, 1,450.00 feet;
Thence along said Northeasterly line and along the arc of said curve through a
central angle of 00(degrees) 06' 24", for an arc length of 2.70 feet to the
point of beginning.
ARB No: 000-00-000; 049; 000
XXX No: 000-00-000; 17; 20
A-1
EXHIBIT B
---------
PERMITTED EXCEPTIONS
--------------------
1. PROPERTY TAXES, including any assessments collected with taxes, for the
fiscal year 2001-2002, a lien, not yet due or payable.
1st Installment $14,055.22 Open
2nd Installment $14,055.22 Open
Assessor's Parcel Xx. 000-00-000 Xxxx Xxxx 00-000
Land $992,521.00 IMP $1,412,994.00 PP NONE Exemp NONE
(Affects Parcel A)
2. PROPERTY TAXES, including any assessments collected with taxes, for the
fiscal year 2001-2002, a lien, not yet due or payable.
1st Installment $90,091.69 Open
2nd Installment $90,091.69 Open
Assessor's Parcel Xx. 000-00-000 Xxxx Xxxx 00-000
Land $2,533,084.00 IMP $13,453,247.00 PP NONE Exemp NONE
(Affects Parcel B)
3. PROPERTY TAXES, including any assessments collected with taxes, for the
fiscal year 2001-2002, a lien, not yet due or payable.
1st Installment $15,088.43 Open
2nd Installment $15,088.43 Open
Assessor's Parcel Xx. 000-00-000 Xxxx Xxxx 00-000
Land $990,786.00 IMP $1,595,548.00 PP NONE Exemp NONE
(Affects Parcel C)
4. The lien of supplemental taxes, if any, assessed pursuant to the provisions
of Chapter 3.5, (commencing with Section 75) to the Revenue and Taxation
Code of the State of California.
No such supplemental taxes are currently due and payable.
5. An easement affecting the portion of said land and for the purpose stated
herein and incidental purposes,
In Favor Of: Pacific Gas and Electric Company, a corporation
For: The right and privilege of erecting, maintaining and
using, for the transmission and distribution of
electricity and for all purposes connected therewith, a
single line of Poles and wires suspended thereon and all
necessary and property guys,
B-1
cross-arms and braces and other fixtures for use in
connection therewith, and also a right of way along said
line of poles, together with the right of ingress
thereto and egress therefrom
Recorded: April 22, 1931 in Book 562, Page 524, Official Records
Affects: The Southwesterly 25 feet of Parcel A and the
Southwesterly portion of Parcel B
6. An easement affecting the portion of said land and for the purpose stated
herein and incidental purposes,
In Favor Of: City of Mountain View
Recorded: January 29, 1960 in Book 4675, Page 157, Official
Records
(A) For: Installation and Maintenance of Overhead and Underground
Electrical and Telephone Wires together with Wire
Clearance and Ingress and Egress thereto
Affects: Southwesterly 15 feet of Parcels A, B and C
(B) For: Anchor Easement
Affects: A 2' x 30' strip situated in the most Westerly portion
of Parcel B
7. An easement affecting the portion of said land and for the purpose stated
herein and incidental purposes,
In Favor Of: Pacific Xxxx
For: Underground communication facilities
Recorded: August 8, 1988 in Book K 633, Page 42, Official Records
Affects: as follows:
A portion of Parcel "B" as said Parcel is shown on that certain Parcel Map
recorded in Book 314 of Maps at page 14, in the Office of the Recorder of Santa
Xxxxx County, said portion being more particularly described as follows:
A strip of land five (5) feet in width, lying two and one-half (2.5) feet on
each side of the facilities initially placed.
8. An unrecorded Lease, affecting the premises herein stated, executed by and
between the parties named herein, for the terms and upon the terms,
covenants, and conditions therein provided,
Dated: Xxxxx 00, 0000
Xxxxxx: Xxxxx-Middlefield Business Park, a California limited
partnership
Lessee: Netscape Communications Corporation, a Delaware
corporation
B-2
Disclosed by: Subordination, Non-Disturbance and Attornment Agreement
Recorded: July 19, 1995 in Book N 924, Page 1709, Official Records
Affects: said land
9. An unrecorded Lease, affecting the premises herein stated, executed by and
between the parties named herein, for the terms and upon the terms,
covenants, and conditions therein provided,
Dated: October 14, 1994
Lessor: Xxxxx-Middlefield Business Park, a California limited
partnership
Lessee: Netscape Communications Corporation, a Delaware
corporation, formerly known as Mosaic Communications
Corporation
Disclosed by: Subordination, Non-Disturbance and Attornment Agreement
Recorded: July 19, 1995 in Book N 924, Page 1720, Official Records
Affects: said land
10. An easement affecting the portion of said land and for the purpose stated
herein and incidental purposes,
In Favor Of: Pacific Xxxx, a California corporation
For: to construct and maintain communication facilities
(including-ingress thereto and egress therefrom)
Recorded: July 7, 1999 under Recorder's Series No. 14885523,
Official Records
Affects: as follows
A portion of Parcel "B" as shown on the Parcel Map filed December 21, 1972 in
Book 314 of Parcel Maps at page 14, Santa Xxxxx County Records, described as
follows:
Commencing at the Southeast xxxxx of said Parcel "B"; thence along the South
line of said Parcel "B" North 38(degrees) 12' 25" West, 79.76 feet; thence
leaving said South line of Parcel "B" North 51(degrees) 47' 35" East, 10.00 feet
to the point of beginning; thence continuing North 51(degrees) 47'35" East,
20.00 feet; thence North 38(degrees) 12' 25" West, 35.00 feet; thence South
51(degrees) 47' 35" West, 20.00 feet; thence South 38(degrees) 12' 25" East,
35.00 feet to the point of beginning.
11. Any rights, interests, or claims that may exist or arise by reason of the
following facts as shown on an ALTA/ACSM LAND TITLE SURVEY prepared by Xxxx
& Xxxxxx Civil Engineers & Surveyors, Inc. prepared for Sobrato Development
Company Job No. 85115-5 dated September 4, 2001:
The fact that parking spaces and curbs and gutters are located on the
easement recorded April 22, 1931 in Book 562, Page 524, Official Records as
shown on said survey.
B-3
The fact that parking spaces, curbs and gutters, and a portion of an
equipment area are located on the easement recorded January 29, 1960 in
Book 4675 Page 157, Official Records as shown on said survey.
The fact that curbs are located on the easement recorded July 7, 1999 under
Recorder's Series No. 14885523, Official Records.
The fact that the easement recorded August 8, 1988 in Book K633 Page 42,
Official Records is not shown on said survey.
12. Matters caused by Purchaser, Purchaser's Representatives or any subtenant
of Purchaser.
13. The Access Agreement.
B-4
EXHIBIT C
---------
SUBMISSION MATTERS
------------------
A. Copies of all lease agreements in effect as of the date of the
Contract (other than those naming Purchaser or an affiliate of Purchaser as the
tenant, or any subleases or other agreements to which Purchaser or an affiliate
of Purchaser is a party), if any.
B. A complete list of all contracts (other than leases) in effect as of
the date of the Contract and complete copies of all such contracts, other than
contracts to which Purchaser or an affiliate of Purchaser is a party.
C. A schedule setting forth the type and amounts of insurance coverage
maintained by the Seller with respect to the Property as of the date of the
Contract and complete copies of all such insurance policies.
D. If or to the extent in the Seller's possession or reasonably available
to the Seller:
(i) Copies of complete sets of all architectural, mechanical,
structural and/or electrical plans and specification used in
connection with the construction of or alterations or repairs
to the Property together with copies of as-built plans and
specifications for the Property.
(ii) Copies of all soil tests, structural engineering tests,
masonry tests, percolation tests, water, oil, gas, mineral,
radon, formaldehyde, PCB or other environmental tests, audits
or reports, market studies and site plans related to the
Property.
(iii) Parking, structural, mechanical or other engineering reports
or studies related to the Property, if any.
(iv) Copies of the most current ALTA surveys of all or any portion
of the Property.
(v) Copies of all authorizations, including, without limitation,
all certificates of occupancy, permits, authorizations,
approvals and licenses issued by Governmental Authorities
having jurisdiction over the Property and copies of all
certificates issued by the local board of fire underwriters or
other body exercising similar functions) relating to the
Property.
(vi) Financial and operating statements for the Property for the
previous three (3) calendar years and the year to date.
(vii) Copies of receipts for all ad valorem taxes and special
assessments assessed against the Property for the current
calendar year and prior three (3) calendar years, statements
for utilities payable for the current calendar year and prior
three calendar years, statements for utilities payable for the
C-1
current calendar year and prior three calendar years, and any
information regarding current renditions or assessments on the
Property or notices relative to change in valuation for ad
valorem taxes.
(viii) Copies of all warranties.
C-2
EXHIBIT D
---------
BUILDING 4 OPTION
-----------------
D-1
OPTION AGREEMENT
----------------
THIS OPTION AGREEMENT (the "Agreement") is entered into as of the 1st day
of October, 2001 by and among SOBRATO CONSTRUCTION CORPORATION, a California
corporation ("Sobrato Construction"), and EMBP 455, L. L. C., a California
limited liability company ("Owner").
R E C I T A L S:
----------------
P. VeriSign, Inc., a Delaware corporation ("VeriSign") and
Xxxxx-Middlefield Business Park, a California limited partnership ("EMBP"),
entered into that certain Agreement to Purchase Buildings dated as of the 28th
day of September, 2001 ("Purchase Agreement"), pursuant to which VeriSign agreed
to purchase and EMBP agreed to sell certain real property located in Mountain
View, California and the personal property related thereto, as more specifically
described in the Purchase Agreement ("Property").
Q. VeriSign assigned its interests under the Purchase Agreement to Owner.
X. Xxxxxxx Construction is an affiliate of EMBP.
S. Owner desires to have the option to have Sobrato Construction
construct a four-story, approximately 102,000 square foot building ("Building
4") on land located at 000 Xxxx Xxxxxxxxxxx Xxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx
("575 Property"), which is a portion of the Property, in accordance with the
Standard Form of Agreements between Owner and Design/Builder (Parts One and Two)
attached hereto as Exhibit "A" ("Construction Contract").
T. To induce Owner to consummate the transaction contemplated by the
Purchase Agreement, Sobrato Construction agrees to enter into this Agreement.
A G R E E M E N T S
-------------------
NOW THEREFORE, for and in consideration of the recitals set forth above,
ten dollars ($10), and other good and valuable consideration, the receipt,
adequacy and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Recitals Incorporated; Certain Defined Terms. The recitals set forth
--------------------------------------------
above are incorporated into this Agreement and shall be deemed terms and
provisions hereof, the same as if fully set forth in this Paragraph 1. All
capitalized terms used herein not otherwise defined shall have the meanings
ascribed to them in the Agreement.
2. Construction Option.
-------------------
a. Owner shall have the option to have Sobrato Construction
construct Building 4 on the 575 Property (the "Option") on the terms and
conditions set forth herein and in accordance with the Construction
Contract. The Option shall be exercisable from and after the date of
Substantial Completion of the parking garage serving 455, 487,
D-2
501 and 000 Xxxx Xxxxxxxxxxx Xxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx (the "Garage")
to and including February 1, 2005 (the "Option Period"), provided that, if
the Option is exercised after March 5, 2003, all approvals necessary for
the construction of Building 4 have been obtained by Design/Builder at the
time of exercise and will not expire before commencement of construction.
Such Option may be exercised at any time during the Option Period by
Owner's giving Sobrato Construction written notice of Owner's exercise
thereof (the "Notice of Exercise") which Notice of Exercise shall be
accompanied by four (4) copies of the Construction Contract each dated as
of the date of the Notice of Exercise and executed by Owner. Time shall be
of the essence as to Owner's obligation to deliver any such Notice of
Exercise during the Option Period. If Owner fails to deliver the Notice of
Exercise and the four (4) executed copies of the Construction Contract to
Owner prior to expiration of the Option Period, Owner's rights under this
Agreement, with the exception of the Owner's right to use the plans and
specifications as set forth in paragraph 2 (h), shall terminate and be of
no further force and effect.
b. Provided Owner has timely exercised its Option, within five (5)
days after Sobrato Construction's receipt of a Notice of Exercise, Sobrato
Construction shall return to Owner two (2) of the four (4) copies of the
Construction Contract that Owner delivered to Sobrato Construction with the
Notice of Exercise, executed by Sobrato Construction and the Xxxx Xxxxxxx
Xxxxxxx 1985 Separate Property Trust.
c. If Owner timely exercises the Option: (a) Owner shall compensate
Sobrato Construction for performance of the Work (as used in this
Agreement, the term "Work" shall have the meaning ascribed to such term in
the Construction Contract) in the amount and manner provided in the
Construction Contract; and (b) Sobrato Construction shall complete the Work
in accordance with the terms of the Construction Contract.
d. Performance of the Work shall be completed within one (1) year
after the Date of Commencement. (As used in this Agreement, the term "Date
of Commencement" shall have the meaning ascribed to such term in the
Construction Contract.)
x. Xxxxxxx Construction has the responsibility for ensuring that the
Work is performed in accordance with all applicable laws, codes and
regulations. Said responsibility includes assisting Owner in obtaining and
maintaining all necessary governmental authorizations necessary to
construct Building 4, including but not limited to preparing and processing
applications for building permits and zoning approvals. If any required
governmental approval will expire prior to commencement of construction,
then at least ninety (90) days prior to such expiration, Sobrato
Construction shall prepare and process all documentation necessary to renew
such approval. Owner shall thoroughly and promptly provide all information
and execute all documentation necessary to obtain such governmental
authorizations and renewals within seven (7) days after receipt of written
request therefor from Sobrato Construction. Any cost thereof incurred prior
to the execution of the Construction Contract shall be borne by the parties
in the manner described in the Construction Contract, and to the extent any
fees payable to the governmental authority in connection with such
authorizations and renewals are to
D-3
be borne by Owner, Owner shall submit such payment to Sobrato Construction
in sufficient time to allow Sobrato Construction to pay such fee to the
governmental authority on or prior to the due date thereof.
f. An index of plans and specifications for the core and shell of
Building 4 is attached as Exhibit B. The "Core" work is all work reflected
in the plans and specifications listed in Exhibit B typically associated in
the industry with an office building core, including elevators, restrooms,
fire sprinklers, HVAC and electrical systems distributed to each floor,
exiting stair finishes, and a finished building lobby. The "Shell" work is
all work reflected in the plans and specifications in Exhibit B that is not
part of the Core work, including but not limited to site work, foundation,
structural framework, exterior wall system, roof and landscaping. Within
thirty (30) days after execution of this Agreement, the parties shall
append a new Exhibit B hereto, which shall more clearly delineate between
Core and Shell work. The Work includes only the Shell of Building 4. At
Owner's option (not to be exercise more than twice during the Option
Period), Sobrato Construction shall, within thirty (30) days after receipt
of written request therefor, submit to Owner a bid to construct the Core of
Building 4 which bid shall include competitive bids from at least three (3)
subcontractors for each aspect of the Core work in excess of Fifty Thousand
and No Hundredths Dollars ($50,000.00). The lowest qualified bidder for
each aspect of the work shall be the subcontractor selected to perform that
work, subject to Owner's approval. Within sixty (60) days after submittal
of the bid for the Core work to Owner, Owner may elect, in its sole
discretion, by delivery of written notice to Sobrato Construction, to
increase the scope of the Work to include the Core work. If Owner does not
deliver written notice of its election to increase the scope of the work to
include the Core work within this sixty- (60-) day period, the bid shall no
longer be effective and the Owner can no longer accept that bid. If Owner
timely elects to increase the scope of the Work to include the Core work
and delivers the Notice of Exercise, Owner and Sobrato Construction shall
promptly execute a written Change Order for the Core Work, which shall
provide for the increase in the Contract Price by the amount of Sobrato
Construction's submitted bid (which bid, if Owner approves a subcontractor
bid that is not the lowest bid, shall be increased by the increased cost
resulting from the selection of a higher bid) plus seven percent (7%) of
cost of the Core work for overhead, profit, supervision and general
conditions, and for the extension of the time for completion of the Shell
and Core work to fourteen (14) months after the Date of Commencement.
g. Any changes to the Work prior to delivery of the Notice of
Exercise during the Option Period--including but not limited to adding
construction of the Core to the Work--shall be solely pursuant to a written
change order between Owner and Sobrato Construction, executed in accordance
with the Construction Contract and made effective as of the Date of
Commencement; provided however that any costs incurred by Sobrato
Construction prior to delivery of the Notice of Exercise as a result of
such changes, to the extent the cost would be required to be borne by Owner
under the terms of the Construction Contract, shall be paid by Owner to
Sobrato Construction within fifteen (15) days after request for payment is
delivered to Owner and shall be retained by Sobrato Construction if Owner
fails to timely deliver the Notice of Exercise (and if not paid when due,
shall bear interest at the rate described in Section 13.3.1 of Part Two of
D-4
the Construction Contract from the due date until paid in full). All
changes to the Work resulting in an increase in the Construction Contract
Sum shall be billed to Owner at actual cost, plus seven percent (7%) as a
xxxx-up for Sobrato Construction. The seven percent (7%) xxxx-up includes
all of Sobrato Construction's profit, overhead (including but not limited
to home office administration, supervision and coordination) and general
conditions (including but not limited to construction supervision and
administration, temporary on-site facilities). There shall be no xxxx-up
for any work that is performed by Sobrato Construction's own forces.
h. In accordance with Exhibit C, Sobrato Construction hereby grants
Owner an irrevocable license to use the plans referenced in the Exhibit B
hereto to perform the Work at the 575 Property, without any limitation as
to time, and regardless of whether Owner exercises the Option to hire
Sobrato Construction to perform the Work. Sobrato Construction hereby
furnishes Owner with Arctec Associates' and Nishkian Menningers' approval
to use the Construction Documents to perform the Work at the 575 Property,
and not later than October 8, 2001 shall furnish Owner with the remaining
architect and engineer approvals, all in the form of Consents attached to
Exhibit C. The obligations of this subparagraph shall survive the
termination of this Agreement.
i. Sobrato Construction has provided Owner with a construction
schedule for Owner's approval, a copy of which is attached as Exhibit D.
3. Miscellaneous.
-------------
a. This Agreement and all provisions hereof shall extend to, be
binding upon, inure to the benefit of and be enforceable by and against the
respective heirs, legatees, successors and assigns of the parties hereto.
b. Except as provided herein, this Agreement contains the entire
agreement between the parties relating to the transactions contemplated
hereby.
c. This Agreement shall be governed by and construed in accordance
with the laws of the State of California.
d. If any of the provisions of this Agreement or the application
thereof to any persons or circumstances shall, to any extent, be deemed
invalid or unenforceable, the remainder of this Agreement and the
application of such provisions to persons or circumstances other than those
as to whom or which it is held invalid or unenforceable shall not be
affected thereby.
e. To facilitate execution of this Agreement, this Agreement may be
executed in multiple counterparts, each of which, when assembled to include
an original signature for each party contemplated to sign this Agreement,
will constitute a complete and fully executed original. All such fully
executed original counterparts will collectively constitute a single
agreement.
f. If either party institutes a legal action against the other
relating to this Agreement or any default hereunder, the unsuccessful party
to such action will reimburse
D-5
the successful party for the reasonable expenses of prosecuting or
defending such action, including without limitation attorneys' fees and
disbursements and court costs.
g. Section headings contained herein are for convenience or
reference only, and shall not govern the interpretation of any of the
provisions contained herein.
h. This Agreement shall not be construed more strictly against one
party than against the other merely by virtue of the fact that the
Agreement may have been prepared primarily by counsel for one of the
parties, it being recognized that both Sobrato Construction and Owner have
contributed substantially and materially to the preparation of this
Agreement.
i. If, under the terms of this Agreement and the calculation of time
periods provided herein, any date to be determined under this Agreement
should fall on a Saturday, Sunday, legal holiday or any other day on which
banks in San Francisco, California are not open for business, then such
date shall be extended to the next business day.
[SIGNATURE PAGE FOLLOWS]
D-6
IN WITNESS WHEREOF, SOBRATO CONSTRUCTION and OWNER have respectively
executed this Amendment to be effective as of the date first above written.
SOBRATO CONSTRUCTION:
SOBRATO CONSTRUCTION
CORPORATION, a California corporation
By: __________________________________
Name: ___________________________
Title: __________________________
OWNER:
EMBP 455, L.L.C., a California limited
liability corporation
By: __________________________________
Name: ___________________________
Title: __________________________
D-7
JOINDER
-------
The Xxxx Xxxxxxx Xxxxxxx 1985 Separate Property Trust hereby joins in the
execution of this Agreement to acknowledge and agree that it shall be held
jointly and severally liable for Sobrato's obligations hereunder, subject to the
terms and conditions of the Joinder set forth in the Construction Contract.
_______________________________
XXXX XXXXXXX XXXXXXX, Trustee
D-8
EXHIBIT A
---------
CONSTRUCTION CONTRACT
---------------------
[Attached]
D-9
EXHIBIT B
---------
PLANS AND SPECIFICATIONS
------------------------
[Attached]
D-10
EXHIBIT C
---------
LICENSE
-------
FOR VALUE RECEIVED Sobrato Construction hereby grants unto EMBP 455, L.L.C.
(the "Owner") a license (the "License") to retain and alter those certain Plans
and Specifications and all amendments, modifications, supplements and addenda
thereto (and including all preliminary and final plans and specifications) (the
"Plans") prepared by Arctec Associates and other architects and engineers
identified in the Consents attached hereto (collectively, the "Architect"),
which Plans have been prepared for the account of and in connection with the
development and construction of a certain building and related improvements
located at 000 Xxxx Xxxxxxxxxxx Xxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx and to be known
as "the Project", a true, correct and complete schedule of which is attached
hereto as Exhibit 1. Sobrato Construction retains all common law, statutory and
other reserved rights, including copyright, in the Plans. The Owner is permitted
to use the Plans only for the completion of, and additions and renovations to,
the Project at 000 Xxxx Xxxxxxxxxxx Xxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx.
For purposes hereof, "Plans" shall mean all of the Architect's work product
and reproductions now existing or as supplemented, amended or added to from time
to time for the account of Sobrato Construction and prepared and designed for
the construction of such office building and related improvements, inclusive of
all further work product required for the completion thereof.
Sobrato Construction hereby represents and warrants to Owner that no
previous assignment of interest in the Plans has been made by Sobrato
Construction, and Sobrato Construction agrees not to assign, pledge, transfer or
otherwise encumber its interest in the Plans so long as this Assignment remains
in effect.
This License shall be irrevocable and binding upon Sobrato Construction and
its successors and assigns and shall inure to the benefit of the Owner, its
successor and assigns. This License is conditioned on the representation and
covenant of Owner that, if the Owner alters the Plans, the Owner thereby waives
any claim against Sobrato Construction or its officers, directors, members,
partners, affiliates, employees, agents, heirs, executors, administrators,
successors and assigns ("collectively "SC Parties"), and shall indemnify, defend
with counsel reasonably acceptable to Sobrato Construction, and hold Sobrato
Construction and SC Parties harmless from any lawsuits, claims, damages, losses,
expenses, or disputes, arising out of errors and omissions contained in the
Plans, but such waiver, indemnification, defense and hold harmless obligation
shall apply only to the extent that said errors or omissions arise from
alterations to the Plans.
IN WITNESS WHEREOF, Sobrato Construction has caused this License to be
executed as of the ____ day of September 2001.
D-11
SOBRATO CONSTRUCTION:
SOBRATO CONSTRUCTION
CORPORATION, a California corporation
By: __________________________________
Name: ___________________________
Title: __________________________
D-12
EXHIBIT 1
---------
THE PLANS
---------
D-13
CONSENT
-------
The undersigned, Arctec Associates (the "Architect") hereby consents to and
joins in the foregoing License and agrees that Owner, its designated agents or
contractors may proceed to utilize the Plans for the purpose of completing
construction of, and for the maintenance, protection, improvement, additions and
renovations of, Building 4, without additional cost or expense.
Architect represents and warrants to Owner that (i) the Plans constitute
all plans, specifications, drawings, models or other work product prepared or
possessed by Architect which pertain to the Project; (ii) the Plans and all of
such plans, drawings and other work product have been fully paid for and are the
property of Sobrato Construction; (iii) the Plans are complete in all respects
and contain all details requisite for the construction of the Project which,
when built in accordance therewith, shall be ready for use and occupancy for its
intended purpose in compliance with all applicable laws, statutes, ordinances,
codes, rules, regulations, decrees and orders; and (iv) the Plans have been
prepared in a manner which in all respects is consistent with accepted
architectural practices. Architect covenants and agrees that (i) Architect will
not use or suffer or permit the Plans to be used for any purpose other than in
connection with the construction of the Project; and (ii) Architect will not
modify or amend the Plans without the prior written approval of Owner.
Architect's License is conditioned on the representation and covenant of
Owner that, if the Owner alters the Plans, the Owner thereby waives any claim
against Architect or its officers, directors, members, partners, affiliates,
employees, agents, heirs, executors, administrators, successors and assigns
("collectively "Architect Parties"), and shall indemnify, defend with counsel
reasonably acceptable to Architect, and hold Architect and Architect Parties
harmless from any lawsuits, claims, damages, losses, expenses, or disputes,
arising out of errors and omissions contained in the Plans, but such waiver,
indemnification, defense and hold harmless obligation shall apply only to the
extent that said errors or omissions arise from alterations to the Plans.
IN WITNESS WHEREOF, the undersigned has caused this Consent to be executed
as of the ____ day of _______________________, 2001.
Arctec Associates
By: __________________________________
Name: ________________________________
Title: _______________________________
D-14
CONSENT
-------
The undersigned, Nishkian Xxxxxxxxx, hereby consents to and joins in the
foregoing License and agrees that Owner, its designated agents or contractors
may proceed to utilize the portion of the Plans prepared by the undersigned for
the purpose of completing construction of, and for the maintenance, protection,
improvement, additions and renovations of, Building 4, without additional cost
or expense.
Nishkian Menninger's License is conditioned on the representation and
covenant of Owner that, if the Owner alters the Plans, the Owner thereby waives
any claim against Nishskian Xxxxxxxxx or its officers, directors, members,
partners, affiliates, employees, agents, heirs, executors, administrators,
successors and assigns (collectively "Other Parties"), and shall indemnify,
defend with counsel reasonably acceptable to Nishkian Xxxxxxxxx, and hold
Nishkian Xxxxxxxxx and Other Parties harmless from any lawsuits, claims,
damages, losses, expenses, or disputes, arising out of errors and omissions
contained in the Plans, but such waiver, indemnification, defense and hold
harmless obligation shall apply only to the extent that said errors or omissions
arise from alterations to the Plans.
IN WITNESS WHEREOF, the undersigned has caused this Consent to be executed
as of the ____ day of _______________________, 2001.
Nishkian Xxxxxxxxx
By: _________________________________
Name: _______________________________
Title: ______________________________
D-15
CONSENT
-------
The undersigned, Xxxxxxxx, hereby consents to and joins in the foregoing
License and agrees that Owner, its designated agents or contractors may proceed
to utilize the portion of the Plans prepared by the undersigned for the purpose
of completing construction of, and for the maintenance, protection, improvement,
additions and renovations of, Building 4, without additional cost or expense.
Guzzardo's License is conditioned on the representation and covenant of
Owner that, if the Owner alters the Plans, the Owner thereby waives any claim
against Xxxxxxxx or its officers, directors, members, partners, affiliates,
employees, agents, heirs, executors, administrators, successors and assigns
(collectively "Other Parties"), and shall indemnify, defend with counsel
reasonably acceptable to Xxxxxxxx, and hold Xxxxxxxx and Other Parties harmless
from any lawsuits, claims, damages, losses, expenses, or disputes, arising out
of errors and omissions contained in the Plans, but such waiver,
indemnification, defense and hold harmless obligation shall apply only to the
extent that said errors or omissions arise from alterations to the Plans.
IN WITNESS WHEREOF, the undersigned has caused this Consent to be executed
as of the ____ day of _______________________, 2001.
Xxxxxxxx
By: _________________________________
Name: _______________________________
Title: ______________________________
D-16
CONSENT
-------
The undersigned, Northern Pacific, hereby consents to and joins in the
foregoing License and agrees that Owner, its designated agents or contractors
may proceed to utilize the portion of the Plans prepared by the undersigned for
the purpose of completing construction of, and for the maintenance, protection,
improvement, additions and renovations of, Building 4, without additional cost
or expense.
Northern Pacific's License is conditioned on the representation and
covenant of Owner that, if the Owner alters the Plans, the Owner thereby waives
any claim against Northern Pacific or its officers, directors, members,
partners, affiliates, employees, agents, heirs, executors, administrators,
successors and assigns (collectively "Other Parties"), and shall indemnify,
defend with counsel reasonably acceptable to Northern Pacific, and hold Northern
Pacific and Other Parties harmless from any lawsuits, claims, damages, losses,
expenses, or disputes, arising out of errors and omissions contained in the
Plans, but such waiver, indemnification, defense and hold harmless obligation
shall apply only to the extent that said errors or omissions arise from
alterations to the Plans.
IN WITNESS WHEREOF, the undersigned has caused this Consent to be executed
as of the ____ day of _______________________, 2001.
Northern Pacific
By: _________________________________
Name: _______________________________
Title: ______________________________
D-17
CONSENT
-------
The undersigned, Sprig, hereby consents to and joins in the foregoing
License and agrees that Owner, its designated agents or contractors may proceed
to utilize the portion of the Plans prepared by the undersigned for the purpose
of completing construction of, and for the maintenance, protection, improvement,
additions and renovations of, Building 4, without additional cost or expense.
Sprig's License is conditioned on the representation and covenant of Owner
that, if the Owner alters the Plans, the Owner thereby waives any claim against
Sprig or its officers, directors, members, partners, affiliates, employees,
agents, heirs, executors, administrators, successors and assigns (collectively
"Other Parties"), and shall indemnify, defend with counsel reasonably acceptable
to Sprig, and hold Sprig and Other Parties harmless from any lawsuits, claims,
damages, losses, expenses, or disputes, arising out of errors and omissions
contained in the Plans, but such waiver, indemnification, defense and hold
harmless obligation shall apply only to the extent that said errors or omissions
arise from alterations to the Plans.
IN WITNESS WHEREOF, the undersigned has caused this Consent to be executed
as of the ____ day of _______________________, 2001.
Sprig
By: _________________________________
Name: _______________________________
Title: ______________________________
D-18
CONSENT
-------
The undersigned, Xxxxxx and Associates, hereby consents to and joins in the
foregoing License and agrees that Owner, its designated agents or contractors
may proceed to utilize the portion of the Plans prepared by the undersigned for
the purpose of completing construction of, and for the maintenance, protection,
improvement, additions and renovations of, Building 4, without additional cost
or expense.
Xxxxxx and Associates' License is conditioned on the representation and
covenant of Owner that, if the Owner alters the Plans, the Owner thereby waives
any claim against Xxxxxx and Associates or its officers, directors, members,
partners, affiliates, employees, agents, heirs, executors, administrators,
successors and assigns (collectively "Other Parties"), and shall indemnify,
defend with counsel reasonably acceptable to Xxxxxx and Associates, and hold
Xxxxxx Associates and Other Parties harmless from any lawsuits, claims, damages,
losses, expenses, or disputes, arising out of errors and omissions contained in
the Plans, but such waiver, indemnification, defense and hold harmless
obligation shall apply only to the extent that said errors or omissions arise
from alterations to the Plans.
IN WITNESS WHEREOF, the undersigned has caused this Consent to be executed
as of the ____ day of _______________________, 2001.
Xxxxxx and Associates
By: _________________________________
Name: _______________________________
Title: ______________________________
D-19
EXHIBIT D
---------
CONSTRUCTION SCHEDULE
---------------------
[Attached]
D-20
EXHIBIT E
---------
XXXX OF SALE
------------
For good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, _________________________, a _________________ (the
"Seller"), does hereby SELL, CONVEY, TRANSFER and DELIVER
to_________________________ a ____________________________________
("Purchaser"), any and all of Seller's rights, title and interests in and to all
fixtures, equipment, furniture, furnishings, appliances, supplies and other
personal property of every nature and description, if any, owned by Seller and
attached to, located at or pertaining to the real property described on Exhibit
A attached hereto and made a part hereof (the "Personal Property").
SELLER IS SELLING, CONVEYING TRANSFERRING AND DELIVERING THE PERSONAL PROPERTY
ON AN "AS IS WITH ALL FAULTS" BASIS, WITHOUT REPRESENTATION OR WARRANTY OF ANY
KIND WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
IN WITNESS WHEREOF, Seller has executed this Xxxx of Sale as of this ___
day of __________, 2001.
SELLER:
__________________________________, a
_____________________________________
By: _________________________________
Name: ___________________________
Title: __________________________
E-1
EXHIBIT F
---------
LEASES
------
Lease dated October 27, 2000 between VeriSign, Inc. and Xxxxx-Middlefield
Business Park for a 32,500 square foot building located at 000 X. Xxxxxxxxxxx
Xxxx, Xxxxxxxx Xxxx, XX
Lease dated October 27, 2000 between VeriSign, Inc. and Xxxxx-Middlefield
Business Park for two 49,362 square foot buildings located at 487 & 000 X.
Xxxxxxxxxxx Xxxx, Xxxxxxxx Xxxx, XX
Lease dated October 27, 2000 between VeriSign, Inc. and Xxxxx-Middlefield
Business Park for a 102,000 square foot building to be constructed at 000 X.
Xxxxxxxxxxx Xxxx, Xxxxxxxx Xxxx, XX
F-1
EXHIBIT G
---------
CONTRACTS
---------
A. Assigned Contracts
-----------------------
Settlement Agreement
Siemens Indemnity
Siemens Guaranty
Garage Contract
B. Terminated Contracts
-------------------------
Pacific Water Art - Fountain Maintenance
ProSweep - Parking Lot Sweeping
Xxxxxxxx & Associates - Roof Maintenance
Manigilia - Landscape Maintenance
G-1
EXHIBIT H
---------
LICENSES AND PERMITS
--------------------
City of Mountain View Findings Report/Zoning Permit,
Application No. 169-00-XXX
Date of Findings: January 24, 2001
H-1
EXHIBIT I
---------
DEED
----
Recording Requested by and
When Recorded Mail to:
Xxxxx Xxxxxxx Xxxxxxx & Xxxxx
000 X. XxXxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxx
and Mail Tax Statements to:
EMBP 455, L.L.C.
c/o VeriSign, Inc.
000 Xxxx Xxxxxxxxxxx Xxxx
Xxxxxxxx Xxxx, XX 00000
Attention: James, Ulam, Esq.
-------------------------------------------------------------------------------
Space Above This Line for Recorder's Use
APN: 000-00-000; 000-00-000; 000-00-000
GRANT DEED
----------
For valuable consideration, receipt of which is acknowledged,
Xxxxx-Middlefield Business Park, a California limited partnership (the
"Grantor"), grants to EMBP 455, L.L.C., a California limited liability company
("Grantee"), that certain real property located in the City of Mountain View,
County of Santa Xxxxx, State of California, as more particularly described in
Exhibit A attached hereto and made a part hereof (the "Property") together with
all right, title and interest in and to all improvements located thereon, and
all easements, air rights, development rights, appurtenances, rights and
privileges appertaining to the Property, and all right, title and interest in,
to and under adjoining streets, rights of way and easements, subject to the
reservation described below.
The foregoing grant is made subject to that certain Administrative Order
For Remedial Design and Remedial Action of the United States Environmental
Protection Agency Region IX bearing U.S. EPA Docket No. 91-4, a copy of which is
attached to this deed as Exhibit B and made a part hereof.
IN WITNESS WHEREOF, Grantor has caused its duly authorized representative
to execute this instrument as of the date hereinafter written.
GRANTOR:
Xxxxx-Middlefield Business Park, a
California limited partnership
By: _______________________________________
Name: _________________________________
Title: ________________________________
I-1
STATE OF CALIFORNIA )
) ss.
COUNTY OF __________ )
On ___________, before me, ______________, personally CAPACITY CLAIMED BY SIGNER
--------------------------
appeared ________________________________________________,
Though statute does not require
[_] personally known to me -OR- [_] proved to me on the the Notary to fill in the data
basis of satisfactory below, doing so may prove
evidence to be the person(s) invaluable to persons relying
whose name(s) is/are on the document.
subscribed to the within
instrument and acknowledged
to me that he/she/they [_] INDIVIDUAL
executed the same in [_] CORPORATE OFFICERS(S)
his/her/their authorized
capacity(ies), and that by _____________________________
his/her/their signature(s) Title(s)
on the instrument the [_] PARTNER(S) [_] LIMITED
person(s), or the entity [_] GENERAL
upon behalf of which the
person(s) acted, executed [_] ATTORNEY-IN-FACT
the instrument. [_] TRUSTEE(S)
[_] GUARDIAN/CONSERVATOR
WITNESS my hand and official seal. [_] OTHER: ______________________
______________________
SIGNER IS REPRESENTING:
----------------------
Name of Person(s) or Entity(ies)
__________________________________ _________________________________
SIGNATURE OF NOTARY _________________________________
STATE OF CALIFORNIA )
) ss.
COUNTY OF __________ )
On ___________, before me, ______________, personally CAPACITY CLAIMED BY SIGNER
--------------------------
appeared ________________________________________________,
Though statute does not require
[_] personally known to me -OR- [_] proved to me on the the Notary to fill in the data
basis of satisfactory below, doing so may prove
evidence to be the person(s) invaluable to persons relying
whose name(s) is/are on the document.
subscribed to the within
instrument and acknowledged
to me that he/she/they [_] INDIVIDUAL
executed the same in [_] CORPORATE OFFICERS(S)
his/her/their authorized
capacity(ies), and that by _____________________________
his/her/their signature(s) Title(s)
on the instrument the [_] PARTNER(S) [_] LIMITED
person(s), or the entity [_] GENERAL
upon behalf of which the
person(s) acted, executed [_] ATTORNEY-IN-FACT
the instrument. [_] TRUSTEE(S)
[_] GUARDIAN/CONSERVATOR
WITNESS my hand and official seal. [_] OTHER: ______________________
______________________
SIGNER IS REPRESENTING:
----------------------
Name of Person(s) or Entity(ies)
__________________________________ _________________________________
SIGNATURE OF NOTARY _________________________________
I-2
EXHIBIT A TO DEED
-----------------
LEGAL DESCRIPTION OF PROPERTY
All that certain real property in the City of Mountain View, County of Santa
Xxxxx, State of California, described as follows:
[Legal Description to be Inserted]
I-3
EXHIBIT B TO DEED
-----------------
[EPA Order to be attached]
I-4
EXHIBIT C TO DEED
-----------------
[List of Portion of MEW Site that are on NPL to be attached, if any]
I-5
EXHIBIT I-1
-----------
DO NOT RECORD
FILOR REQUESTS
DO NOT RECORD STAMP VALUE
DECLARATION OF TAX DUE: SEPARATE PAPER:
(Revenue and Taxation Code 11932-11933)
NOTE: This Declaration is not a public record
Document #__________________________
Property located in:
( ) Unincorporated
(x) City of Mountain View
APN: ____________
DOCUMENTARY TRANSFER TAX IS $_____________________
(x) Computed on full value
( ) Computed on full value less liens or encumbrances remaining at the
time of conveyance
CITY CONVEYANCE TAX IS $ _______________
"I declare under penalty of perjury under the laws of the State of California
that the foregoing is true and correct."
___________________ ________________________________________
Date Signature
________________________________________
Name (Typed or Printed)
________________________________________
For (Firm Name)
DO NOT RECORD
I-1
EXHIBIT J
---------
ENVIRONMENTAL REPORTS
---------------------
A. Source Control Workplan dated 7/1/91 by Dames & Xxxxx
B. Preliminary Source Control Design dated 2/8/94 by PES
C. Letter dated 5/1/95 regarding construction access from Xxxxx
D. Phase I Environmental Assessment dated 6/8/95 by E2C
E. Response to Tenant Concerns dated 12/8/95 from Xxxxx
F. Authorization for Site Redevelopment dated 5/14/96 by PES
G. Summary of Environmental Site Concerns dated 10/24/00 by PES
H. Phase I Environmental Assessment dated 11/28/00 by E2C
I. Request for EPA Clearance for Construction Activities dated 1/8/01 by PES
J. Asbestos Sampling Report dated 1/25/90 by E2
K. Environment Site Assessment dated 4/30/90 by Dames and Xxxxx
L. Phase I Environmental Assessment dated 8/28/96 by E2C
M. Combined Intermediate and Final Source Control Remedial Design for Soil and
Groundwater Remediation for 455, 485/487 and 000/000 Xxxx Xxxxxxxxxxx
prepared for Siemens Components by Xxxxx dated 4/12/96
N. Construction Operation and Maintenance Plan for 455, 485/487 and 000/000
Xxxx Xxxxxxxxxxx prepared for Siemens Components by Xxxxx dated 9/27/96
O. Final Report - Construction Operation and Maintenance Plan for 455, 485/487
and 000/000 Xxxx Xxxxxxxxxxx prepared for Siemens Components by Xxxxx dated
12/24/96
J-1
INDEX TO SOBRATO ENVIRONMENTAL CONSULTANTS' TECHNICAL BINDERS
Exec
Date Sum Tab Document
Redwell #1:
Feb-86 no S1 Dames & Xxxxx - Raytheon Contamination Middlefield
Jan-87 no S2 Xxxxxx associates - Interim Remedial Measures
Jan-87 no S3 Xxxxxx Labs, Inc., Site-Inspection Technical Report
Guidance
Mar-87 no S4 Xxxxxx Labs, Inc., Site-Inspection Technical Report
May-87 no S5 Calif. Regional Water - Site Inspection Technical
Report
Jun-87 no S6 Xxxxxx Vision - Technical Report
Dec-87 no S7 Dames & Xxxxx - Evaluation of Contamination
Jan-88 no S8 Dames & Xxxxx - Evaluation of Contamination
Jan-88 no S9 U.S. Environmental Protection Agency
Jan-88 no S10 Dames & Xxxxx letter
Feb-88 no Dames & Xxxxx Report Soil Gas Survey
Feb-88 no S11 Dames & Xxxxx Letter
Feb-88 no S12 Dames & Xxxxx Letter
Feb-88 no S13 U.S. Environmental Protection Agency - Xxx 000/XXXXX
& Xxx 0000/XXXX
Xxx-00 no S14 Acurex Corp. Analysis of 27 soil samples
Mar-88 no S15 United Soil Engineering Inc. - Proposed Industrial
Building Intersection
Mar-88 no S16 Dames & Xxxxx - DRAFT Report - Soil Sampling Program
Apr-88 no S17 U.S. Environmental Protection Agency - Xxx 000/XXXXX
& Xxx 0000/XXXX
Xxx-00 yes S18 Xxxxxxx Xxxxxx Associates
Sep-88 no S19 U.S. Environmental Protection Agency - Raytheon,
Intel & Xxxxxxxxx Superfund Sites
Oct-88 no S20 U.S. Environmental Protection Agency - Raytheon,
Intel & Xxxxxxxxx Superfund Sites
J-1
Oct-88 no S21 Dames & Xxxxx
Exec
Date Sum Tab Document
Oct-88 no S22 Dames & Xxxxx Report - Air and Soil Vapor Monitoring
Oct-88 no S23 Siemens - Raytheon, Intel, Xxxxxxxxx and Superfund Sites
Jan-89 no S24 U.S. Environmental Protection Agency - Indian Bend, Wash
Superfund Site
Jan-89 no S25 Dames & Xxxxx - Contamination of Xxxxxxxxxxx Xxxx
Xxx-00 no S26 Raytheon, Intel & Xxxxxxxxx Superfund Sites
May-89 no S27 U.S. Environmental Protection Agency - Special Notice
Letter
May-89 no S28 Dames & Xxxxx Consulting Service Proposal
May-89 no S29 U.S. Environmental Protection Agency - Raytheon, Intel &
Xxxxxxxxx Superfund Sites
Jul-89 no S30 Dames & Xxxxx Evaluation of Possible TCE Plumes Associated
with Middlefield Road
Jul-89 no S31 Good Faith Offer in Response to EPA Special Notice Letters
Jul-89 no S32 U.S. Environmental Protection Agency-Middlefield-Xxxxx-
Xxxxxxx Superfund Site
Jul-89 no X00 Xxxxx & Xxxxx - Xxxx Xxxxxxxxxxx Xxxx Properties
Aug-89 no S34 Dames & Xxxxx - Monitoring Well Sites
Aug-89 no S35 NAS - Xxxxxxx Field - US Navy
Aug-89 no S36 Dames & Xxxxx to Xxxx Xxxx - Siemens
Sep-89 no S37 Dames & Xxxxx - Groundwater & Vadose Modeling Additional
Site Investigation
Sep-89 no S38 Dames & Xxxxx - Additional Scope Item
Sep-89 no S39 Dames & Xxxxx - Modelling Assumptions - Additional Site
Investigation
Oct-89 no S40 Dames & Xxxxx - Resampling of Well SO-2
Oct-89 no S41 Dames & Xxxxx - Underground Tank Sampling
Dec-89 no S42 Dames & Xxxxx - Additional Site Investigation
Dec-89 no S43 Dames & Xxxxx - Additional Site Investigation
J-2
Dec-89 no S44 Dames & Xxxxx - Proposal-Removal & Investigation of
Two Underground Storage Tanks - 000 X. Xxxxxxxxxxx
Xxxx
Exec
Date Sum Tab Document
Dec-89 yes 1 Dames & Xxxxx Additional Site Investigation
Dec-89 no Dames & Xxxxx Groundwater Modelling Report
Mar-89 no Dames & Xxxxx Draft Report Soil Sampling Program
Mar-89 no Dames & Xxxxx Interim Report-Tank Removal
Nov-89 no Hamming & Laws Conceptual Work Plan for
Remedial Design and Remedial Action
Jan-90 no Canonie Remedial Design and Remedial Action Cost
Estimate
Jan-90 yes 2 Hamming & Laws Remedial Design Regional
Groundwater Extraction and Treatment System
Proposal
Redwell #2:
Jan-90 yes 3 Weston Remedial Design Proposal
Jan-90 no McLaren Proposal to Provide Remedial Design
Services
Jan-90 yes 4 Groundwater Technology, Inc. Proposal for Remedial
Design-volumes 1 & 2
Jan-90 no S45 TEI Consulting Engineers-Motorola Complex - N/A
Mar-90 no S46 Dames & Xxxxx - List of Chemicals
Mar-90 no S47 Dames & Xxxxx - Removal and Disposal of Soil and
Debris
Mar-90 no S48 Dames & Xxxxx - Final Progress Report No. 8 -
Additional Site Investigation
Apr-90 no S49 Dames & Xxxxx - Request for Additional
Authorization, Underground Tank Removal and
Investigation
Apr-90 no S50 Dames & Xxxxx - Hazardous Waste Manifest - Xxxxxx
Lab Tank Removal
Apr-90 no S51 Dames & Xxxxx - Hazardous Waste Manifest - Xxxxxx
Lab Tank Removal
May-90 no Canonie Response to Dames & Xxxxx Additional Site
Investigation and Groundwater Modelling Reports
May-90 no S52 Photos of Damage Covered to 000 X. Xxxxxxxxxxx
X-0
May-90 no S53 Dames & Xxxxx - Interim Report Tank Removal
6
Jul-90 no S54 Dames & Xxxxx - Proposal Removal and Investigation of Two
Underground Storage Tanks
Exec
Date Sum Tab Document
Aug-90 no Canonie Response to Bechtel Sensitivity Analysis - MEW
Allocation Model Report
Aug-90 no S55 Inter/Siemens Proposed Superfund Site Revised
Responsiveness Summary
Aug-90 no S56 E2C Work Plan - Soil Sampling and Soil Vapor Study
Sep-90 no S57 Dames & Xxxxx - Proposed Well SO-2 Replacement
Oct-90 no S58 U.S. Environmental Protection Agency - Report Format - MEW
Superfund Site
Oct-90 no S59 Sobrato/Explanation of Significant Differences
Nov-90 no S60 U.S. Environmental Protection Agency - MEW Superfund Site
Dec-90 no S61 Canonie Environmental - Proposed Preparation of Four 106
Order Work Plans
Dec-90 no S62 U.S. Environmental Protection Agency - 106 Order
Dec-90 no S63 Canonie Environmental - Proposal and Cost Estimate
Jan-91 no S64 Dames & Xxxxx - Technical Memorandum-EPA Administrative
Order-MEW Study Site
Jan-91 no S65 Canonie Environmental - Transmittal of DRAFT Work Plan
Jan-91 yes S66 U.S. Environmental Protection Agency - Uniform Reporting
Format
Jan-91 no S67 Canonie Environmental - Transmittal of DRAFT Work Plans
Jan-91 no S68 Dames & Xxxxx Proposal
Jan-91 no S69 Canonie Environmental - Transmittal of DRAFT Work Plans
Jan-91 no S70 Dames & Xxxxx Sources of Data Presented in 106 Order
Jan-91 no S71 Canonie Environmental - Transmittal of DRAFT Work Plan
Jan-91 no S72 Schlumberger - Submission of MEW Water Reuse & Groundwater
Chemistry Work Plans
Jan-91 no S73 Schlumberger - Submission of Source Control Work Plans
Jan-91 no S74 Canonie Environmental - Plume Definition Work Plan
Jan-91 no S75 Canonie Environmental - Plume Definition Work Plan
J-4
Jan-91 no S76 Canonie Environmental - Potential Conduit Work Plan
Jan-91 no S77 Canonie Environmental - Potential Conduit Work Plan
Exec
Date Sum Tab Document
Jan-91 no S78 Canonie Environmental - Groundwater chemistry Work Plan
Jan-91 no S79 Canonie Environmental - Groundwater chemistry Work Plan
Jan-91 no S80 Canonie Environmental - Reuse Work Plan
Jan-91 no S81 Canonie Environmental - Reuse Work Plan
Jan-91 yes S82 Canonie Work Plan - 369 Xxxxxxx
Xxx-91 yes S83 Canonie Work Plan - 401 National
Jan-91 yes S84 Canonie Work Plan - 441 X. Xxxxxxx
Jan-91 yes S85 Canonie Work Plan - 515-545 X. Xxxxxxx - 313 Xxxxxxxxx
Xxx-91 yes S86 Canonie Work Plan - 464 Xxxxx
Xxx-91 yes S87 Canonie Work Plan - 644 National
Jan-91 no S88 Canonie Quarterly Status Report Oct. - Dec 90
Redwell #3:
Jan-91 yes 5 Canonie Potential Conduit Work Plan
Jan-91 yes 6 Canonie DRAFT Potential Conduit Work Plan-(2 parts)
Jan-91 yes 7 Canonie Ground Water Chemistry Work Plan
Jan-91 yes 8 Canonie DRAFT Groundwater Chemistry Work Plan (2 parts)
Jan-91 yes 9 Canonie Plume Definition Work Plan
Jan-91 yes 10 Canonie DRAFT Plume Definition Work Plan (2 parts)
Jan-91 yes 11 Canonie Water Reuse Work Plan
Jan-91 yes 12 Canonie DRAFT Water Reuse Work Plan (2 parts)
Redwell #4:
J-5
Jan-91 no Dames & Xxxxx Source Control Workplan for 000 Xxxx
Xxxxxxxxxxx Xxxx
Jan-91 no Dames & Xxxxx Source Control Workplan for 485/487 and
000/000 Xxxx Xxxxxxxxxxx Xxxx
Xxxx
Date Sum Tab Document
Jan-91 no Dames & Xxxxx Source Control Workplan for 000 Xxxx
Xxxxxxxxxxx Xxxx
Feb-91 yes 13 Canonie DRAFT Site Safety Plan
Feb-91 yes 14 Canonie DRAFT Data Management System Plan
Feb-91 yes 15 Canonie DRAFT Quality Assurance Project Plan
Feb-91 yes 16 Canonie Data Management Plan
Feb-91 yes 17 Canonie DRAFT Sampling Plan
Feb-91 yes 18 Bechtel Data Management Plan
Feb-91 no S89 Dames & Xxxxx - Addendum Source Control Work Plan
Feb-91 no S90 Landels, Xxxxxx & Diamond-Schlumberger - MEW Site
Monthly Progress Reports
Feb-91 no S91 State Board of Equalization
Feb-91 no S92 U.S. Environmental Protection Agency - Xxxxxxxxx Semi
Conductor
Feb-91 no S93 Schlumberger - Monthly Progress Reports
Feb-91 no S94 Canonie - Draft MEW 106 Work Order Plans
Feb-91 no S95 Dames & Moore - Increase Authorization - U.S. EPA
Administrative Order
Feb-91 no S96 Schlumberger - Implementation of MEW 106 Order
Feb-91 no S97 NAS Xxxxxxx Field - US Navy - Phase I - Installation
Restoration Program
Mar-91 no S98 Canonie - Draft Quality Assurance Project Plan
Mar-91 no X00 X.X. Xxxxxxxx Xxxxx - XXX v. Intel Corp. and Raytheon
Company
Redwell #5:
Mar-91 yes 19 Canonie DRAFT Quality Assurance Project Plan
Mar-91 no Canonie Quality Assurance Project Plan - DRAFT
Mar-91 no S100 Dames & Xxxxx Monthly Progress Report
J-6
Mar-91 no S101 Schlumberger MEW 106 Order - Monthly progress Report
Exec
Date Sum Tab Document
Mar-91 no S102 Dames & Xxxxx - Quarterly Water Level Monitoring
Mar-91 no S103 Schlumberger Distribution and Due Dates for 106 Orders
Mar-91 no S104 E2C - Addendum To Well Installation Report for
Replacement well SO-2(R)
Mar-91 no S105 Schlumberger Draft Response to EPA's March 14
Memorandum
Mar-91 yes S106 Siltec Corp. Addendum A to the Source Control Work Plan
Apr-91 no S107 Schlumberger - Enclosed Correspondence from Sobrato
Development. Co.
Apr-91 no S108 Schlumberger - Pending Requests to EPA re:
Implementation of MEW 106 Order
Apr-91 no S109 Schlumberger - MEW Documents Repository at Mt. View
Public Library
Apr-91 no S110 Canonie MEW 106 Order - Joint Work
Apr-91 no S111 Schlumberger - Submission of QAPPS and Sampling Plans
for MEW Field Work
Apr-91 no S112 Schlumberger draft Cover Letter for Quality Assurance
Project Plan
Apr-91 no S113 Schlumberger MEW 106 Order Monthly Progress Report
Apr-91 no S114 Dames & Xxxxx - Monthly Progress Report - EPA MEW 106
Order
Apr-91 no S115 Schlumberger 106 Order Respondents EPA report &
Groundwater Sampling report
Apr-91 no S116 Schlumberger Draft Cover Letters for MEW Sampling Plans
Apr-91 no S117 Dames & Xxxxx Billing No. 3 Consulting
Apr-91 no S118 EPA Contractor Qualification Requirements of CERLA 106
Order of MEW Site
Apr-91 no S119 Dames & Xxxxx Request List of Reviewed Canonie Workplans
Apr-91 no S120 Canonie MEW 106 Order Joint Work Revision to Cost
Estimate
Apr-91 yes 20 Canonie DRAFT Sampling Plan Ground Water Chemistry
Program
Apr-91 yes 21 Canonie DRAFT Sampling Plan Plume Definition Program
May-91 yes 22 Canonie Ground Water Chemistry Program Sampling Plan
J-7
May-91 yes 23 Canonie Plume Definition Program Sampling Plan
May-91 yes 24 Canonie Quality Assurance Project Plan Work Plan
Exec
Date Sum Tab Document
Redwell #6:
May-91 yes 25 Bechtel Source Control Workplan for 000 Xxxxx Xxxxxx
May-91 no S121 Schlumberger Qualifications of Canonie Environmental
Services Corp.
May-91 no S122 EPA MEW CERLA 106 Administrative Order
May-91 no S123 Schlumberger MEW 106 Order Monthly Progress Reports
(April 1991)
May-91 no S124 EPA Work Plan Submittals under the CERLA 106
Administrative Order for MEW Site
May-91 no S125 EPA Review 485-487 & 000-000 X. Xxxxxxxxxxx Xxxx Work
Plan
May-91 no S126 EPA Review of Work Plan
May-91 no S127 EPA Response to Letters concerning 106 Order and Work
Plan review
May-91 no S128 Dames & Xxxxx Comments on Canonie Work Plans
May-91 no S129 Dames & Xxxxx Increase in Authorization for EPA
Source Control Work Plans 455,485-487,501-505,575 E.
Middlefield Road
May-91 no S130 Golder Assoc. Review of Source Control Workplans -
MEW Study Area
May-91 yes S131 Canonie - Plume Definition Program Work Plan
Jun-91 no S132 Dames & Xxxxx Quarterly Groundwater Level Monitoring
MEW Site
Jun-91 no S133 Canonie - Transfer of Previously Generated Technical
Data
Jun-91 no S134 MEW 106 Order - Monthly Progress Reports
Jun-91 no S135 MEW 106 Order - Monthly Progress Reports
Jun-91 no S136 Dames & Xxxxx Draft Cost Estimate
Jun-91 yes S137 Site Safety Plan Report
Jun-91 yes 26 Bechtel Source Control Workplan for 000 Xxxxx Xxxxxx
Jun-91 yes 29 Canonie Source Control Work Plan for 000 Xxxxx
Xxxxxxx Xxxx, Xxxxx. 13 & 23
J-8
Exec
Date Sum Tab Document
Redwell #7:
Jun-91 yes 30 Canonie Source Control Work Plan for 000/000 Xxxxx
Xxxxxxx Xxxx and 000 Xxxxxxxxx Xxxxx, Xxxxx. 1-4
Jun-91 yes 31 Canonie Source Control Work Plan for 000 Xxxxxxxx
Xxxxxx, Xxxx. 00
Jun-91 yes 32 Canonie Source Control Work Plan for 000 Xxxxx
Xxxxxxx Xxxx, Xxxx. 00
Xxxxxxx #0:
Jun-91 yes 33 Canonie Source Control Work Plan for 000 Xxxxxxxx
Xxxxxx
Jun-91 no Canonie DRAFT Site Safety Plan
Jun-91 no Dames & Xxxxx Source Control Workplan for 485/487
and 000/000 Xxxx Xxxxxxxxxxx Xxxx
Jun-91 no Dames & Xxxxx Source Control Workplan for 000 Xxxx
Xxxxxxxxxxx Xxxx
Jun-91 no Dames & Xxxxx Source Control Workplan for 000 Xxxx
Xxxxxxxxxxx Xxxx
Jul-91 yes S138 Golder Assoc. Source Control Work Plan for 000 X.
Xxxxxxxxxxx
Xxx-00 yes S139 Golder Assoc. Source Control Work Plan for Xxxx 0
xxx 0 X. Xxxxxxxxxxx
Xxx-00 yes S140 Golder Assoc. Source Control Work Plan for 000
Xxxxx Xx.
Jul-91 no S141 Schlumberger - Submission of Source Control Work
Plans for Xxxxxxxxx'x MEW facilities
Jul-91 no S142 Raytheon - Source Control Workplan
Jul-91 no S143 Schlumberger - MEW 106 Order Monthly Progress
Report (June 1991)
Jul-91 no S144 EPA Review of Quality Assurance Project Plan
Jul-91 no S145 Source Control Workplan for 000 Xxxxxxxx Xxxxxx
Jul-91 no S146 EPA Submission of Revised NEW Documents
Jul-91 no S147 Canonie - Proposal Schedule and Cost Estimate
Quality Assurance Project Plan Revision
Jul-91 no S148 Canonie - Quarterly Status Report April - June
1991
J-9
Jul-91 no Bechtel Quality Assurance Report
Exec
Date Sum Tab Document
Jul-91 yes 27 Bechtel Phase I Source Control Remedial Design for
000 Xxxxx Xxxxxx
Jul-91 no Dames & Xxxxx Source Control Workplan for 485/487
and 000/000 Xxxx Xxxxxxxxxxx Xxxx
Xxx-00 no Dames & Xxxxx Source Control Workplan for 000 Xxxx
Xxxxxxxxxxx Xxxx
Jul-91 no Dames & Xxxxx Source Control Workplan for 000 Xxxx
Xxxxxxxxxxx Xxxx
Xxxxxxx #0:
Aug-91 no Canonie Quality Assurance Project Plan Work Plan -
Revision 1.0
Aug-91 no Canonie Response to EPA Review of Quality Assurance
Project Plan
Aug-91 no S149 EPA Proposed Meeting Dates and Agendas MEW Study
Area
Aug-91 no S150 Canonie - Response to EPA's Review and Comments on
Quality Assurance
Aug-91 no S151 Canonie Proposal, Schedule and Cost Estimate
Revision of Potential Conduit Work Plan
Aug-91 no S152 MEW 106 Order - Monthly Progress Report - (July
1991)
Aug-91 no S153 NAS Xxxxxxx Field U.S. Navy Update on Environmental
Clean up Activities
Aug-91 no S153b Canonie - Draft Response to EPA's Comments on the
Potential Conduit Work Plan
Aug-91 no S154 Dames & Xxxxx Quarterly Water Level Monitoring
Aug-91 no S155 EPA August 28, 1991 Meeting Agenda
Aug-91 no S156 EPA Summary of August 28, 1991 Meeting
Aug-91 yes S157 Source Control Work Plan - Intel Corporation - 000
X. Xxxxxxxxxxx
Xxx-00 yes 34 Canonie Potential Conduit Work Plan - Revision 1.0
Sep-91 no Canonie Source Control Work Plan for 000 Xxxxxxxx
Xxxxxx, Xxxx. 00 - Addendum 1
Sep-91 no Canonie Source Control Work Plan for 000/000 Xxxxx
Xxxxxxx Xxxx and 000 Xxxxxxxxx Xxxxxx, Xxxxx. 1-4,
Addendum 1
Sep-91 no Canonie Source Control Work Plan for 000 Xxxxx
Xxxxxxx Xxxx, Xxxxx. 13 & 23 - Addendum 1
J-10
Sep-91 no Canonie Source Control Work Plan for 000 Xxxxxxxx
Xxxxxx, Xxxx. 00 - Addendum 1
Exec
Date Sum Tab Document
Sep-91 no Canonie Source Control Work Plan for 000 Xxxxx
Xxxxxx, Xxxx. 00 - Addendum 1
Redwell #l0:
Sep-91 no Bechtel Source Control Workplan for 000 Xxxxx
Xxxxxx: Addendum A -Summary of Hydrogeology and
Addendum B - Saturated Soil Sampling Plan
Sep-91 yes 35 Bechtel Proposed Final Remedial Design and
Construction Operation & Maintenance Plan for 000
Xxxxx Xxxxxx - volume 1
Sep-91 no Bechtel Proposed Final Remedial Design and
Construction Operation & Maintenance Plan for 000
Xxxxx Xxxxxx - volume 2
Sep-91 no S158 MEW 106 Order - Monthly Progress Report (Aug.
1991)
Sep-91 no S159 Dames & Xxxxx Monthly Progress Report EPA MEW 106
Order
Sep-91 no S160 Canonie - Transmittal Transfer of Updated
Technical Data
Sep-91 no S161 Schlumberger - Standard Time Period to Respond to
EPA Comment on MEW 106 Workplan
Sep-91 no S162 Canonie - Well Coordinates at the Sobrato Property-
Mt. View
Sep-91 no S163 Schlumberger - Listing of Reports ( and status)
submitted to EPA
Sep-91 yes S164 Work Plan for Design, Construction and
Implementation of the Regional Groundwater
Remediation Program, Intel Corp./Raytheon Work Plan
A, Volume 1
Sep-91 no S165 Work Plan for Design, Construction and
Implementation of the Regional Groundwater
Remediation Program, Intel Corp./Raytheon Work Plan
A, Volume 2 Appendices - A-1
Sep-91 no S166 Canonie - Revisions, 1991 Scope of Work and Cost
Estimate 106 Order Joint Work Program
Sep-91 no S167 Canonie Source Control Work Plan on 000 X. Xxxxxxx
Xx. Addendum 1
Sep-91 no S168 Canonie Source Control Work Plan on 000 X. Xxxxxxx
Xx. Addendum 2
Oct-91 no S169 Dames & Xxxxx proposal Technical Review of Documents
Oct-91 yes S170 X. X. Xxxxxxx & Associates, Inc. - Sampling &
Analysis Plan for Source Control Work 000 Xxxxxxxx
Xxx.
Oct-91 no S171 Schlumberger - Changes/Additions to MEW 106 Order
Oct-91 no S172 Schlumberger - MEW 106 Order Joint Work Request for
Comments
J-11
Oct-91 no S173 PRC Environ. Management Inc. - Naval Air Station -
Xxxxxxx Field
Exec
Date Sum Tab Document
Oct-91 no S174 Xxxxxxx Xxxxxx Associates May and November 1990
Potential Surface Maps MEW Study Area
Oct-91 no S175 EPA - Review of the Potential Conduit Work Plan
Oct-91 no S176 Schlumberger - Plume Definition and Ground water
Monitoring Programs
Oct-91 no S177 Schlumberger Data Management and Report Formats
Oct-91 no S178 Schlumberger - conflicting QAPP Requirements
Oct-91 no S179 Intel - Site Transmittal for Intel's Mt. View
Facility
Oct-91 no S180 EPA - Review of 455,485-487-501-505,575 E.
Middlefield Rd. Documents
Nov-91 no S180b Xxxxxx Associates - Hydraulic Control and Monitory
Summary Report
Nov-91 no S181 EPA - MEW Study Area
Nov-91 no S182 MEW 106 Order - Monthly Progress Reports (October
1991)
Nov-91 no S183 Dames & Xxxxx Draft Cost Estimate for the
Implementation of Source Control Work Plans
Nov-91 no S184 Canonie - Transmittal Draft Unified Quality
Assurance Project Plan
Redwell #11:
Nov-91 no Canonie DRAFT Unified Quality Assurance Project Plan
- 2 copies
Nov-91 yes 36 Canonie Ground Water Treatment Plant System
Technical Memorandum for 000 Xxxxx Xxxxxxx Xxxx,
Xxxx. 00
Nov-91 yes 37 Canonie Preliminary Source Control Remedial Design
for 000 Xxxxx Xxxxxxx Xxxx, Xxxx. 00 - volume 1
Nov-91 no Canonie Preliminary Source Control Remedial Design
for 000 Xxxxx Xxxxxxx Xxxx, Xxxx. 00 - volume 2
Nov-91 yes 38 Canonie Slurry Wall Evaluation Technical Memorandum
for 000 Xxxxx Xxxxxxx Xxxx, #00
Dec-91 no S185 Dames & Xxxxx - Resubmittal of Proposal Technical
Review of Documents
Dec-91 no S186 Canonie - Draft Proposed Sampling Network Potential
Conduit Program
Dec-91 no S187 Canonie Transmittal Draft Unified Plume Definition
and Ground Water Monitoring Program
J-12
Exec
Date Sum Tab Document
Dec-91 no S188 Dames & Xxxxx Quarterly Water Level Monitoring
455, 000-000 X. Xxxxxxxxxxx Xxxx
Dec-91 no S189 Canonie - Transmittal Draft Unified Report Format
Program and Data Management Plan
Dec-91 no S190 Dames & Xxxxx EPA MEW 106 Order Monthly Progress
Report
Dec-91 no S191 MEW 106 Order - Monthly Progress Report (November
1991)
Dec-91 no S192 E2C Ordinance 90-1 Violation, Well SO-2
Destruction 000 X. Xxxxxxxxxxx Xx.
Dec-91 no S193 Santa Xxxxx Valley Water District, an Ordinance of
Regulations
Dec-91 no S194 Canonie Draft Unified Plume Definition and Ground
Water Monitoring Program
Redwell #13:
Dec-91 yes 39 Canonie Unified Plume Definition and Ground Water
Monitoring Program Report
Dec-91 yes 40 Canonie Unified Quality Assurance Program Plan
Dec-91 yes 41 Canonie Unified Report Format Program Report
Dec-91 yes 42 Canonie DRAFT Unified Report Format Program Report
Jan-92 No S195 Map of Revised Plan Checked Set
Jan-92 No S196 Canonie Draft Status Report Potential Conduit
Program
Jan-92 No S197 Schlumberger Change to MEW 106 Distribution List
Jan-92 Yes S198 Golder Assoc. Inc. Design Specific Data Collection
Phase I Work Plan
Jan-92 Yes S199 Golder Assoc. Inc. Design Specific Data Collection
Phase I Work Plan
Jan-92 No S200 Golder Assoc. Inc. Quality Assurance Project Plan
Jan-92 No S201 Schlumberger MEW Potential Conduit Tenant/Owner
Survey Report
Jan-92 No S202 Schlumberger - Change to MEW 106 Distribution list
Feb-92 no S203 PES Environmental Monthly Progress Report (Jan.
92) EPA MEW 106 Order
Feb-92 no S204 MEW 106 Order Monthly Progress Report Jan. 92
Feb-92 no S205 Schlumberger - Source Control Work Plans Raytheon
Lots 4 & 5 Implementation of Soils Cleanup
J-13
Feb-92 no S206 PES Environ. PES Service Agreement
Exec
Date Sum Tab Document
Mar-92 no S206b Raytheon Hydraulic Control and Monitoring Report
Redwell #14:
Mar-92 yes 43 Bechtel Saturated Soil Investigation and
Characterization for 000 Xxxxx Xxxxxx
Mar-92 yes 44 Bechtel Field Verification Program for 000 Xxxxx
Xxxxxx
Mar-92 no PES DRAFT Source Investigation and Characterization
Report for 485/487 and 000/000 Xxxx Xxxxxxxxxxx
Xxxx
Xxx-00 no PES DRAFT Source Investigation and Characterization
for 000 Xxxx Xxxxxxxxxxx Xxxx
Mar-92 no PES DRAFT Source Investigation and Characterization
for 000 Xxxx Xxxxxxxxxxx Xxxx
Mar-92 no PES Source Investigation and Characterization for
000 Xxxx Xxxxxxxxxxx Xxxx
Mar-92 no PES Source Investigation and Characterization for
000 Xxxx Xxxxxxxxxxx Xxxx
Xxxxxxx # 00:
Mar-92 no PES Source Investigation and Characterization for
485/487 and 000/000 Xxxx Xxxxxxxxxxx Xxxx
Xxx-00 no Canonie Quality Assurance Report for 000/000 Xxxxx
Xxxxxxx Xxxx and 000 Xxxxxxxxx Xxxxx
Mar-92 no Canonie Quality Assurance Report for 000 Xxxxx
Xxxxxx
Mar-92 no Canonie Quality Assurance Report for 000 Xxxxx
Xxxxxx
Mar-92 no Canonie Quality Assurance Report for 000 Xxxxx
Xxxxxxx Xxxx
Mar-92 no Canonie Quality Assurance Report for 000 Xxxxxxxx
Xxxxxx
Mar-92 no Canonie Quality Assurance Report for 000 Xxxxx
Xxxxxxx Xxxx
Mar-92 no S207 Schlumberger - Request for Meeting to Discuss EPA
Memorandum on Implementation of Soil Cleanup
Mar-92 no S208 Golder Assoc. Hydraulic Control and Monitoring
Summary Report June-Nov. 1991 350 Xxxxx
Mar-92 no S209 PES Environmental. Monthly Progress Report Feb. 92
EPA MEW 106 Order
J-14
Mar-92 yes S210 Schlumberger MEW 106 Order - Monthly Progress Reports -
Feb. 92
Exec
Date Sum Tab Document
Mar-92 no S211 Schlumberger - Annual Report - MEW 106 Order Respondents
(1991)
Apr-92 no S212 EPA MEW Site Sobrato's 3/30/92 Information Request
Apr-92 no S213 PES Environmental - Submittal of March 19, 1992 Water
Level Evaluation Data
Apr-92 no S214 PES Environmental. Monthly Progress Report March 1992 EPA
MEW 106 Order
Apr-92 no S215 Schlumberger Distribution List - Change
Apr-92 no S216 Schlumberger MEW 106 Order - Fairchild Quarterly Quality
Assurance Report
Apr-92 no S217 Raytheon Summary of Activities for March 1992
Apr-92 no S218 Schlumberger Investigation and Source Control Work Plan
Apr-92 no S219 Intel Site Data Transmittal for Intel's Mt. View Facility
May-92 no S220 PES Environmental. Corrections to Source Investigation
and Characterization Reports
May-92 no S221 Schlumberger - EPA Questions
May-92 no S222 Raytheon - Proposed Schedule for Implementation of the
Xxxxx Well Work Plan
May-92 no S223 Raytheon Summary of Activities for April 1992
May-92 no S224 Schlumberger Water Reuse Work Plan EPA Approval
May-92 no S225 Canonie EPA Review of Potential Conduit Work Plan
Jun-92 yes S226 Golder Assoc. Data Management Plan - 350 Xxxxx St. Xxxx
0 & 0 X. Xxxxxxxxxxx Xx.
Jun-92 no Canonie DRAFT Response to EPA's Comments on Plume
Definition Work Plan and Sampling Plan
Jun-92 no S227 Weisse Assoc. Intel Mt. View Data Management Plan
Jun-92 yes S228 Siltec - Transmittal of "Characterization Report for
Facility Specific Source Control Work 000 Xxxxxxxx Xxx.
Jun-92 no S229 Schlumberger - Response to EPA Letter of June 15, 1992
Jun-92 no S230 Xxxxxxx-Xxxxxxx Environmental. Inc. - Addition Laboratory
Analytical Report 000 Xxxxxxxx Xxx.
J-15
Jun-92 no S231 Canonie Draft Response to EPA's Comments on the Plume
definition Work Plan
Jun-92 no S232 Canonie Preliminary Responses to Comments of the
International Tech. Corp.
Exec
Date Sum Tab Document
Jun-92 no S233 Canonie - Potential Source Areas
Jul-92 no S234 PES Environmental. June 30, 1992 Meeting Regarding NAS
Xxxxxxx Field
Jul-92 no S235 PES Environmental Quarterly Progress Report April - June
1992 EPA MEW 106 Order
Jul-92 no S236 Raytheon Submission to EPA Records Destruction Plan
Jul-92 no S237 Raytheon Summary of Activities for April, May and June
1992
Jul-92 no S238 Schlumberger MEW 106 Work Order Joint work Quarterly
Progress Report 2nd Quarter
Jul-92 no S239 Schlumberger MEW 106 Order Joint Work Quarterly Progress
Report
Jul-92 no S240 Intel Site Data Transmittal for Intel's Mountain View
facility
Jul-92 no S241 Schlumberger MEW 106 Order Fairchild Quarterly Quality
Assurance Reports
Jul-92 no S242 Schlumberger - Access Agreement for 000 X. Xxxxxxx Xxxx
Jul-92 no S243 Canonie Water Reuse Survey
Jul-92 no S244 Submission of Addendum to the Unified Quality Assurance
Project Plan for 106 Order and consent decree parties
Jul-92 no S245 Canonie Hydraulic Control North of US Highway 101 Addendum
1 Work Plan A
Jul-92 no S246 Canonie Surface Water Sampling Plan Plume Definition
Program
Jul-92 no Canonie DRAFT Well Destruction Reports
Jul-92 no Canonie Surface Water Sampling Plan Plume Definition
Program
Jul-92 no Canonie DRAFT Response to EPA's Comments on Unified
Quality Assurance Project Plan
Jul-92 no Canonie DRAFT Quarterly Progress Reports
Jul-92 no Canonie DRAFT Surface Water Sampling Plan Plume Definition
Program
Jul-92 no Canonie Surface Water Sampling Plan Plume Definition
Program
Jul-92 no Canonie DRAFT Response to EPA's Comments on Unified
Quality Assurance Project Plan
Jul-92 no Canonie DRAFT Quarterly Progress Reports
J-16
Jul-92 no Canonie DRAFT Surface Water Sampling Plan Plume
Definition Program
Exec
Date Sum Tab Document
Aug-92 yes 45 Canonie Water Production and Potential Water Use
Survey Results Water Reuse Program Report
Aug-92 no Canonie DRAFT Report of Results of Water
Production and Potential Water Uses
Redwell #16:
extra copies of PES Investigation and Characterization studies for 455, 575 and
485/487 & 000/000 Xxxx Xxxxxxxxxxx Xxxx (see redeploys 14 &15) and aerial photos
of site
Redwell #17:
Aug-92 no Canonie response to EPA's Comments on Plume
Definition Work Plan Sampling Plan
Aug-92 no Canonie Well Destruction Reports
Aug-92 yes 46 Xxxxxx Associates Design Specific Data Collection
Report
Aug-92 no Canonie DRAFT Response to EPA's Comments on Plume
Definition Work Plan and Plume Definition Sampling
Plan
Aug-92 no Dames & Xxxxx Response to Canonie's Comments on
Additional Site Investigation and Groundwater
Modeling Reports
Aug-92 no S247 PES Environmental - Sobrato Properties Confirmed
VOC Sources
Aug-92 no S248 Canonie Request for Time Extension Investigation
of Well 23L*3 (Sobrato Well)
Aug-92 no S249 Canonie Start Up Procedures for Sampling Plume
Definition Program
Aug-92 no S250 Schlumberger Response to EPA's Plume Definition
Work Plan
Aug-92 no S251 Sobrato Development. Co. Xxxxx-Middlefield Plan
indicating underground pipelines
Aug-92 no X000 Xxxxxxxxxxxx Xxxxxxxxxxxxx xx Xxxx 0X0X00X*0
Sobrato Development. Co. 000 X. Xxxxxxxxxxx Xx.
Sep-92 no Canonie Source Control Work Plan for 000/000 Xxxxx
Xxxxxxx Xxxx and 000 Xxxxxxxxx Xxxxx - Addendum 2
Sep-92 No S253 Schlumberger - Naval Facilities Engineering
J-17
Sep-92 No S254 Distribution
Sep-92 No S255 Raytheon Potential Navy Sources of Chlorinated
Solvents on Xxxxxxx Field
Exec
Date Sum Tab Document
Sep-92 No S256 Canonie Notification of Changes in the Monitoring
Schedule
Sep-92 No S257 Canonie Request for Well Designation and
Coordination
Sep-92 No S258 NAS Xxxxxxx Field Update on Environmental Clean Up
Activities
Sep-92 No S259 Source Control Work Plan Addendum 2 Xxxxxxxxx
Semiconductor Corp. 000 Xxxxxxxx Xxx Xxxxxxxx 0
Sep-92 No S260 Source Control Work Plan Addendum 2 Xxxxxxxxx
Semiconductor Corp. 441 No. Xxxxxxx Building
Sep-92 No S261 Source Control Work Plan Addendum 2 Xxxxxxxxx
Semiconductor Corp. 644 National Building 18
Sep-92 No S262 Source Control Work Plan Addendum 2 Xxxxxxxxx
Semiconductor Corp. 464 Xxxxx Building 20
Oct-92 No S263 Canonie Correspondence concerning Missed Holding
Times
Oct-92 No S264 Raytheon Consent Decree: Quarterly Progress
Report, 3rd Quarter of `92
Oct-92 No S265 Raytheon Summary of Activities for July - Sept.
1992 Quarterly Report
Oct-92 No S266 Schlumberger Annual Horizontal Potential Conduits
Evaluation
Oct-92 No S267 Schlumberger - MEW 106 Order - Quarterly Progress
Report
Oct-92 No S268 Schlumberger MEW 106 Order Work Joint-Quarterly
progress Report 3rd Quarter of 92
Oct-92 No S269 Schlumberger - MEW 106 Order - Fairchild
Quarterly Quality Assurance Reports
Oct-92 No S270 Canonie - Arrangements for Data Exchange
Oct-92 No S271 Raytheon - Quarterly Report Summary of Activities
July-Sept 1992
Oct-92 No S272 Weighs - Site Data Transmittal for Intel's Mt.
View Facility-Third Quarter 1992 Monitoring Report
Oct-92 No S273 Canonie Destruction Report: Well 6S2W23D*3 EPA
106 Order
Oct-92 No S274 PES Environmental - Quarterly Progress Report
7-92 to 9-92 EPA MEW 106 Order
Oct-92 No S275 Canonie - Reminder of Upcoming November Water
Level Measurements-Quarterly Monitoring Prog.
Nov-92 No S276 Xxxxxxx-xxxxxxx - Project Design for Source
Control Remedial Design 000 Xxxxxxxx Xxx.
Nov-92 No S277 Golder Assoc. Phase II Work Plan Raytheon - 000
Xxxxx Xx., Xxxx 0 & 0 X. Xxxxxxxxxxx
X-00
Xxx-00 Xx X000 Golder Assoc. Data Collection report - Raytheon -
000 Xxxxx Xxxxxx
Exec
Date Sum Tab Document
Nov-92 No S279 Golder Assoc. Soil Gas Survey & RDI Borehole, Xxx
0, X. Xxxxxxxxxxx Xx.
Xxx-00 Xx X000 Xxxxx Associates - Correction letter for 10-3-92
report
Dec-92 No S281 Canonie - Joint Defense Communication Geologic
Correlation Draft Report
Dec-92 No S282 Transmittal of Addendum to Unified Quality
Assurance - Middlefield-Xxxxx-Xxxxxxx Study Area
Dec-92 No S283 Canonie - Well 6S2W23D*3 EPA 106 Order Joint
Work Potential Conduit Program
Dec-92 No S284 Schlumberger - MEW 106 Order - Potential Conduit
Destruction Reports
Dec-92 No S285 Canonie - Notification - Completion of Sampling
Activities
Dec-92 No S286 Canonie 0 Transmittal - Ground Water Chemistry
Program
Jan-93 No S287 PES Environmental - Quarterly Progress Report
10-92 to 12-92 EPA MEW 106 Order
Jan-93 No S288 Raytheon - Quarterly Report - Summary of
Activities for Oct-Dec. 1992
Jan-93 No S289 Raytheon - Consent Decree: Quarterly Progress
Report, Fourth Quarter of 1992
Jan-93 No S290 Schlumberger - MEW 106 Order Quarterly Progress
Report, Fourth Quarter 1992
Jan-93 No S291 Schlumberger - MEW 106 Order Joint Work-Quarterly
progress Report 4th Quarter 1992
Jan-93 No S292 Schlumberger - MEW 106 Order - Fairchild Quarterly
Quality Assurance Reports
Jan-93 No S293 Xxxxx Associates - 4th Quarter 1992 - Self
Monitoring Report at Intel 365 Middlefield
Jan-93 No S294 PES Environmental - Designated Facility
Coordinator
Jan-93 No S295 Canonie - Notification of Receipt of Lab Analyses
106 Order Middlefield-Xxxxx
Feb-93 No S296 Canonie - Draft Nov. 19, 1992 Potentiometric
Surface Maps & TCE Concentration Jun-Dec 1992
Feb-93 No S297 Schlumberger - list of documents submitted
Feb-93 Yes S298 Canonie - Preliminary Source Control - 000 Xxxxx
Xxxxxx
Feb-93 Yes S299 Canonie - Slurry Wall Evaluation - 000 Xxxxxxxx
Xxxxxx
Feb-93 Yes S300 Canonie - Preliminary Source Control - 000
Xxxxxxxx Xxxxxx
J-19
Feb-93 Yes S301 Canonie - Preliminary Source Control - 000
Xxxxxxxx Xxxxxx
Exec
Date Sum Tab Document
Feb-93 No S302 Canonie - In-Situ Aeration System - 000 X. Xxxxxxx
Xxxx
Feb-93 Yes S303 Canonie - Preliminary Source Control - 000 X.
Xxxxxxx
Feb-93 Yes S304 Canonie - Slurry Wall Evaluation 515/545 X.
Xxxxxxx and 000 Xxxxxxxxx Xxxxx
Feb-93 No S305 Canonie - Ground Water Treatment System 515/545 X.
Xxxxxxx and 000 Xxxxxxxxx Xxxxx
Feb-93 Yes S306 Canonie - Preliminary Source Control - 515/545 X.
Xxxxxxx and 000 Xxxxxxxxx Xx. Vol. 1 & 2
Feb-93 Yes S307 Canonie - Draft Plume Definition Program Report
MEW 106 Order Joint Work
Mar-93 Yes S308 Canonie - Prelim. Design Regional Ground Water
Remediation Program MEW Site
Mar-93 Yes S309 Final Draft Plume Definition Program Report MEW
106 Order Joint Work MEW Site
Mar-93 Yes S310 Preliminary Design Regional Ground Water
Remediation Program MEW Site
Mar-93 No S311 Canonie - Preliminary Source Control Remedial
Design 000 X. Xxxxxxx
Feb-93 No S312 Xxxxx Associates - Intel's Ground Water Data Base
1992 Annual Report
Feb-93 Yes S313 Xxxxxx Associates - Preliminary Source Control
Remedial Design Raytheon Lots 4 & 5
Feb-93 Yes S314 Xxxxxx Associates - Preliminary Source Control
Remedial Design Raytheon 000 Xxxxx Xx.
Mar-93 Yes S315 Canonie - Plume Definition Program
Apr-93 No S316 Canonie - 1st qtr 93 Progress Reports
Apr-93 No S317 Schlumberger/Canonie Quarterly Quality Assurance
Reports for 6 Fairchild sites
Apr-93 No S318 Schlumberger/Canonie MEW 106 Order Joint Work
Quarterly Progress Report - 1st qtr `93
Apr-93 No S319 Canonie - Add #1 Preliminary Design Remediation
South of Highway 101
Apr-93 No S320 Canonie - Add #1 Preliminary Design Remediation
North of Highway 101
Apr-93 No S321 Schlumberger - 1st qtr `93 quarterly progress
report from General Instruments
Apr-93 No S322 Xxxxx Associates - Intel's quarterly groundwater
monitoring report 1st qtr `93
Apr-93 No S323 Raytheon - 1st qtr 93 Facility Specific Work
report (Xxxxxx Associates)
J-20
Apr-93 Yes S324 Golder - Hydraulic Control and Monitoring Summary
Report 12/91 thru 11/92
Apr-93 No S325 Canonie - Draft Well Destruction Report, Well
#6S2W14N3 (175 Evandale Ave., Mtn. View)
Exec
Date Sum Tab Document
Apr-93 No S326 Canonie - Preliminary Remedial Design Xxxxxxxxx
Bldgs. 13 & 23, 441 X. Xxxxxxx
Apr-93 No S327 Canonie - Preliminary Remedial Design Xxxxxxxxx
Bldg 20, 464 Xxxxx
Apr-93 No S328 Canonie - Preliminary Remedial Design Xxxxxxxxx
Bldg 18, 644 National
May-93 No S329 Canonie - B3 Aquifer Plume Definition Work Plan
May-93 No S330 Xxxxxxx-Xxxxxxx - Groundwater Model Report 000
Xxxxxxxx Xxx.
May-93 No S331 Canonie - Responses to PRP Comments on design of
Regional Ground Water Mediation Program
May-93 Yes S332 Canonie - Ground Water Chemistry Program EPA 106
Order Joint Work
May-93 Yes S333 Xxxxxxx Xxxxxx Summary of Potential Source Areas
@ NAS Xxxxxxx Field
May-93 No S334 Canonie - Plume Definition Program Addendum 1
May-93 No S335 Canonie - Well Investigation Report 4 parts
May-93 No S336 Schlumberger - Ground Water Chemistry Program
Report
Jun-93 No S337 Xxxxx response to EPA comments regarding Intel's
Control Workplan
Jun-93 No S338 Canonie - Slurry Wall Evaluation 000 Xxxxxxxx
Xxxxxx (Fairchild Bldg. 9)
Xxx-00 Xx X000 Xxxxxxx - Xxxx #0X0X00X*0 Potential Conduit
Program
Jun-93 No S340 Canonie - Source Control Remedial Design Xxxxxxxxx
Bldgs. 1, 2, 3 and 0
Xxx-00 Xx X000 Xxxxxxx - Xxxx #0X0X00X*0 Potential Conduit
Program
Xxx-00 Xx X000 Xxxxxxx - Xxxx #0X0X00X*00 Potential Conduit
Program
Jun-93 No S343 Xxxxxxxx & Associates - Groundwater Modelling
Results
Jul-93 Xx X000 Xxxxx - 0xx Xxx 0000 Xxxxxxxxxx Report @ Intel,
000 Xxxxxxxxxxx Xxxx
Jul-93 No S345 Bechtel - NEC 2nd Qtr progress report / Canonie -
2nd Qtr 1993 progress report 000 X. Xxxxxxx
Xxx-00 No S346 Canonie - 2nd Qtr progress report plume definition
program
Jul-93 No S347 Canonie - Regional Ground Water Remediation
Program 2nd Qtr report
Jul-93 No S348 Raytheon - Facility Specific work 2nd Qtr report
J-21
Jul-93 No S349 Canonie - Presentation of Lab results &
recommendations for resampling of xxxxx B3 Plume
Prog
Exec
Date Sum Tab Document
Jul-93 No S350 Canonie - Draft Potentiometric Surface Maps to
Raytheon
Jul-93 No S351 Canonie - Well #6S2W23E*1 Investigation Report
Xxx-00 Xx X000 Xxxxxxx - Xxxx #0X0X00X0 Investigation Report
Xxx-00 Xx X000 Xxxxxxx - Xxxx #0X0X00X*0 Investigation Report
Aug-93 No S354 Canonie - Xxxxx 0/20/93 Potentiometric Surface
Maps
Aug-93 No S355 Canonie - Final Source Control Rememdial Design
Volume 1: Basis of Design
Aug-93 No S356 Canonie - Final Source Control Rememdial Design
Volume 2: Contract Docs, Specs & Drawings
Xxx-00 Xx X000 Xxxxxxx - Xxxx #0X0X00X*0 Potential Conduit
Program (Destruction) Report
Xxx-00 Xx X000 Xxxxxxx - Xxxx #0X0X00X0 Investigation Report
Xxx-00 Xx X000 Xxxxxxx - Xxxx #0X0X00X*0 Investigation Report
Xxx-00 Xx X000 Xxxxxxx - Xxxx #0X0X00X*0 Investigation Report
Xxx-00 Xx X000 Xxxxxxx - Xxxx #0X0X00X*0 Potential Conduit
Program
Aug-93 Yes S362 Canonie - "B3" Aquifer Plume Definition Program
Aug-93 Yes S363 Canonie - Final Source Control Remedial Design
Vol. 1 Basis of Design
Aug-93 Yes S364 Canonie - Final Source Control Remedial Design
Vol. 2 Contract Docs, Specs & Dwgs
Sep-93 No S365 Canonie - Preliminary Design Regional Ground Water
Remediation Program North of Hwy 101
Sep-93 No S366 Canonie - Preliminary Design Regional Ground Water
Remediation Program South of Hwy 101
Sep-93 Yes S367 Canonie - Addendum 2 Plume Definition Program "B3"
Auifier
Sep-93 No S368 Groundwater Technology resumes and qualifications
from Raytheon
Sep-93 Yes S369 Canonie - Final Source Control Remedial Design,
000 Xxxxxxxx Xxx., Xxxx. 00 (Fairchild)
Oct-93 No S370 Raytheon - Consent Decree: Quarterly Progress
Reports 3rd Qtr
Oct-93 No S371 Schlumberger - MEW 106 Order - Joint Work Qtrly
Progress Report
Oct-93 No S372 Schlumberger - MEW 106 Order - Site Specific Qtrly
Progress Report
J-22
Oct-93 No S373 Xxxxx - Third Quarter 1993 Self Monitoring Report
for Intel, 365 Middlefield
Exec
Date Sum Tab Document
Oct-93 No S374 Canonie - Final Source Control Remedial Design,
Xxxxxxxxx, 000 Xxxxxxxx Xxx, Xxxx. 00
Oct-93 No S375 Canonie - Final Source Control Remedial Design,
Xxxxxxxxx, 000 Xxxxxxxx Xxx, Xxxx. 0
Oct-93 No S376 Canonie - Final Source Control Remedial Dsn,
Xxxxxxxxx, 369 & 000 X. Xxxxxxx, Xxxxx. 19, 13 &
23
Nov-93 Yes S377 Canonie - Final Design Regional Ground Water
Remediation Program M-E-W site Mt. View, CA
J-23
EXHIBIT K
---------
LEASE TERMINATION AGREEMENT
---------------------------
This Lease Termination Agreement (this "Agreement") is made on
______________, 2001 by and between ____________________________ ("Landlord"),
and ____________________ ("Tenant").
R E C I T A L S:
- - - - - - - -
A. Landlord and Tenant entered into that certain Lease dated
_________________ (the "Lease"), as amended, pursuant to which Landlord leases
to Tenant approximately ______________ rentable square feet of space, known as
___________________ (the "Premises").
B. Landlord and Tenant have agreed to terminate the Lease, subject to and
in accordance with the terms, conditions and provisions set forth in this
Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Landlord and Tenant agree as
follows:
1. Recitals. The foregoing Recitals are true and correct and are
--------
incorporated into this Agreement by reference as if fully set forth.
2. Termination. Effective immediately on the date of this Agreement (the
-----------
"Termination Date"), the Lease is hereby terminated. As of the Termination Date,
the Lease shall be deemed to be of no further force or effect and neither party
shall have any further liability to the other under the Lease except for those
obligations which expressly survive expiration or earlier termination of the
Lease ("Surviving Obligations"), subject to this Section below. Notwithstanding
Section 12E ("Landlord's Indemnity Regarding Hazardous Materials") of the Lease,
Landlord's obligations under Section 12E of the Lease shall not survive
termination of the Lease and shall not be a Surviving Obligation hereunder.
3. Release. Except for the Surviving Obligations, the undersigned (and the
-------
individuals executing on behalf of the undersigned in their individual
capacities) do hereby release, discharge and acquit each other, their past,
present and future officers, employees, directors, principals, agents, partners,
shareholders, attorneys, successors and assigns, and any affiliated entity or
other entity owned or controlled by one or more of them, from any claim asserted
or which may have been asserted in connection with any rights, obligations,
representations, warranties or covenants, or breaches thereof, contained in,
arising from or conferred under the Lease, other than the Surviving Obligations,
and from any and all claims, demands, remedies, causes of action, debts,
liabilities and losses of every kind or nature, whether at this time known or
unknown, anticipated or unforeseen, direct or indirect, fixed or contingent,
whether presently or hereafter disclosed, which the parties to this Agreement,
and their respective successors and
K-1
assigns, ever had, now have or hereafter may have by reason of the Lease, the
landlord-tenant relationship created thereby, or the occupancy of the Premises
under the Lease, except that nothing herein shall in any way limit or prejudice
the rights of either of the parties with respect to the Surviving Obligations,
the exercise and enforcement to the fullest extent of the rights granted under
this Agreement, or the pursuit of any claim by Tenant under that certain
Agreement to Purchase Buildings dated September __, 2001, between Landlord and
Tenant (the "Purchase Agreement") or reserved by Tenant under Section 15.15 of
the Purchase Agreement. Landlord and Tenant hereby waive the protection of
California Civil Code Section 1542, which reads as follows:
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.
Landlord's Initials: _______ Tenant's Initials: ________
4. Authority. The signatories hereto hereby represent that they have full
---------
and complete authority to bind their respective parties to the Agreement and
that no other consent is necessary or required in order for the signatories to
execute this Agreement on behalf of their respective parties.
5. Binding Effect. This Agreement shall be binding upon and inure to the
--------------
benefit of the parties hereto and their respective successors and assigns.
6. Applicable Law. This Agreement shall be governed by and construed and
--------------
enforced in accordance with the laws of the State of California without regard
to any conflict of laws principles.
7. Counterparts. This Agreement may be executed in separate counterparts,
------------
all of which together shall constitute a single Agreement.
8. Attorneys' Fees. If any legal proceeding is brought or undertaken to
---------------
enforce this Agreement, or because of an alleged dispute, breach, default, or
misrepresentation in connection with any of the provisions of this Agreement,
then the prevailing party or parties in such proceeding shall be entitled to
recover reasonable attorneys' and other professionals' fees, court costs and
other expenses incurred in such action or proceeding, in addition to any other
relief to which such party may be entitled.
K-2
IN WITNESS WHEREOF, Landlord and Tenant have executed this Agreement as of
the date first above written.
LANDLORD:
______________________________, a
______________________________
By: _____________________________
Name: _______________________
Title: ______________________
TENANT:
______________________________, a
______________________________
By: _____________________________
Name: _______________________
Title: ______________________
K-3
EXHIBIT L
---------
ASSIGNMENT
----------
THIS ASSIGNMENT OF INTANGIBLE PROPERTY ("Assignment"), is made as of the
----------
_______ day of ______________, 2001 by and between __________________________, a
___________________, ("Assignor") and ________________, a _____________________
--------
("Assignee").
--------
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, by Agreement to Purchase Buildings ("Purchase Agreement") dated as
------------------
of ____________, 2001, by and between Assignor and Assignee, Assignor agreed to
sell to Assignee certain real property and the improvements located thereon
("Property") as more particularly described in the Purchase Agreement; and
--------
WHEREAS, the Purchase Agreement provides, inter alia, that Assignor shall
assign to Assignee rights to certain intangible property and that Assignee shall
assume all of the obligations of Assignor under such intangible property from
and after the date of such assignment, and that Assignor and Assignee shall
enter into this Assignment.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the parties hereto hereby agree as follows:
1. Assignment of Contracts, Licenses and Permits. Assignor hereby assigns,
---------------------------------------------
sets over and transfers to Assignee, to the extent assignable (without
representation or warranty as to assignability) on the terms described below
without prejudicing Assignor's reserved rights and benefits described below, all
of its right, title and interest in, to and under (a) the contracts described in
Exhibit A attached hereto and incorporated herein by this reference (herein
---------
collectively called the "Contracts"), (b) all licenses, permits and other
---------
written authorizations necessary for the use, operation or ownership of the
Property (herein collectively called the "Licenses and Permits"), and (c) all
--------------------
rights of Assignor in all intangible property owned by Assignor and useful in
connection with the Property ("Intangible Property"), including; without
-------------------
limitation, all permits, approvals, land use and other rights to construct
Building 4 (as defined in the Purchase Agreement), and the Garage (as defined in
the Purchase Agreement) (without representation or warranty as to the existence
or extent thereof). Notwithstanding the foregoing, with respect to the
Settlement Agreement, Siemens Indemnity and Siemens Guaranty described on
Exhibit A (collectively, the "Siemens Agreements") and all of Assignor's rights
and interest in any indemnification, hold harmless and defense obligations
received by Assignor relating to the Property, Assignor reserves unto itself the
rights and benefits of the Siemens Agreements and such indemnification, defense
and hold harmless obligations, it being understood and agreed that if the
Siemens Agreements and such indemnification, defense and hold harmless
obligations are assignable and transferable to Assignee as described herein,
then, on the date of this Assignment, the benefits of such indemnification,
defense and hold harmless obligations shall be held on a non-exclusive basis by
both Assignor and Assignee.
L-1
2. Assumption and Indemnity. Assignee hereby (a) assumes and takes
------------------------
responsibility for all damages, losses, costs, claims, liabilities, expenses,
demands, and obligations of any kind or nature whatsoever attributable to the
Contracts, the Licenses and Permits and Intangible Property arising or accruing
after the date hereof and (b) agrees to indemnify, defend and hold harmless
Assignor from all damages, losses, costs, claims, liabilities, expenses,
demands, and obligations of any kind or nature whatsoever attributable to the
Contracts, Licenses and Permits and Intangible Property arising or accruing on
or after the date hereof. Assignor agrees to indemnify, defend and hold harmless
Assignee from all damages, losses, costs, claims, liabilities, expenses,
demands, and obligations of any kind or nature whatsoever attributable to the
Contracts, Licenses and Permits and Intangible Property arising or accruing
before the date hereof.
3. Miscellaneous. This Assignment and the obligations of the parties
-------------
hereunder shall survive the closing of the transaction referred to in the
Purchase Agreement and shall not be merged therein, shall be binding upon and
inure to the benefit of the parties hereto, their respective legal
representatives, successors and assigns, shall be governed by and construed in
accordance with the laws of the State of California applicable to agreements
made and to be wholly performed within said State and may not be modified or
amended in any manner other than by a written agreement signed by the party to
be charged therewith.
4. Severability. If any term or provision of this Assignment or the
------------
application thereof to any persons or circumstances shall, to any extent, be
invalid or unenforceable, the remainder of this Assignment or the application of
such term or provision to persons or circumstances other than those as to which
it is held invalid or unenforceable shall not be affected thereby, and each term
and provision of this Assignment shall be valid and enforced to the fullest
extent permitted by law.
5. Counterparts. This Assignment may be executed in counterparts, each of
------------
which shall be an original and all of which counterparts taken together shall
constitute one and the same agreement.
L-2
IN WITNESS WHEREOF, the undersigned have executed this Assignment as of the
date first set forth hereinabove.
ASSIGNOR:
_______________________________, a
_______________________________
By:____________________________
Name:_______________________
Title:______________________
ASSIGNEE:
___________________________
By:________________________
Name:___________________
Title:__________________
L-3
EXHIBIT M
---------
SIEMENS ESTOPPEL
----------------
September __, 2001
EMBP 455, L.L.C.
VeriSign, Inc.
000 Xxxx Xxxxxxxxxxx Xxxx
Xxxxxxxx Xxxx, Xxxxxxxxxx 00000
RE: Settlement Agreement (the "Settlement Agreement") dated November ,
1993 by and between Sobrato Development ----- Companies, Xxxx X.
Xxxxxxx and Xxxxx X. Xxxxxxx, both individually and as Trustees of the
Xxxx X. Xxxxxxx and Xxxxx X. Xxxxxxx 1979 Revocable Trust, Xxx X.
Xxxxxxx, Xxxx Xxxxxxx Xxxxxxx as Trustee of the Xxx Xxxxxxx 1989
Revocable Trust, and Xxxxx-Middlefield Business Park, a limited
partnership (collectively "Sobrato"), and Litronix, Inc., a California
corporation, and Siemens Components, Inc., a Delaware corporation
("SCI")
Ladies and Gentlemen:
The undersigned understand that EMBP 455, L.L.C. ("EMBP 455") intends to
acquire the Properties (as defined in the Settlement Agreement) and lease the
Properties to VeriSign, Inc. ("VeriSign"). In connection with the acquisition,
(i) Xxxxx-Middlefield Business Park is assigning to EMBP 455 its rights under
the Settlement Agreement on a non-exclusive basis, (ii) pursuant to Section 6 of
the Xxxxxxxxxx Xxxxxxxxx, XXX is executing and delivering to EMBP 455 and
VeriSign an indemnification agreement (the "Indemnification Agreement") of even
date herewith, and (iii) pursuant to Section 6 of the Settlement Agreement,
Siemens Corporation, Inc., a Delaware corporation ("Siemens"), is executing and
delivering to EMBP 455 and VeriSign a guaranty (the "Guaranty") of even date
herewith. SCI hereby certifies and confirms to and agrees with EMBP 455 and
VeriSign as follows:
1. The Settlement Agreement is presently in full force and effect and has
not been changed, altered, amended or modified.
2. There exists no default under the Settlement Agreement.
3. SCI acknowledges that pursuant to Paragraph 19 of the Settlement
Agreement, Xxxxx-Middlefield Business Park is entitled to assign its
rights under the Settlement Agreement to EMBP 455 on a non-exclusive
basis, and that upon such assignment, EMBP 455 shall be entitled to
the same benefits as are afforded to Xxxxx-Middlefield Business Park
under the Settlement Agreement.
M-1
4. There are no existing defenses or rights of set off which SCI or
Siemens have against enforcement of the Settlement Agreement, the
Indemnification Agreement or the Guaranty.
SCI and Siemens understand that EMBP 455 and VeriSign are purchasing and
leasing the Properties in reliance upon the certifications and agreements set
forth herein, and agree that they may rely upon such certification and
agreements for such purposes.
IN WITNESS WHEREOF, SCI and Siemens have executed and delivered this letter
as of the ______ day of September, 2001.
SIEMENS COMPONENTS, INC., a
Delaware corporation
By:___________________________________
Its:__________________________________
SIEMENS CORPORATION, INC., a
Delaware corporation
By:___________________________________
Its:__________________________________
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EXHIBIT N
---------
ACCESS AGREEMENT
----------------
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
Xxxxx-Middlefield Business Park
C/o Sobrato Development Companies
00000 Xxxxx Xx Xxxx Xxxx.
Xxxxxxxxx, XX 00000-0000
________________________________________________________________________________
SPACE ABOVE THIS LINE FOR RECORDER'S USE
ACCESS AGREEMENT
----------------
THIS ACCESS AGREEMENT ("Agreement"), is made as of the _______ day of
---------
________________, 2001 by and between Xxxxx-Middlefield Business Park, a
California limited partnership ("Xxxxx-Middlefield"), and EMBP 455, L.L.C., a
California limited liability company ("Owner").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, by Agreement to Purchase Buildings ("Purchase Agreement") dated as
of ____________, 2001 ("Purchase Agreement"), originally entered into by and
between Xxxxx-Middlefield and VeriSign, Inc., a Delaware corporation, Owner
purchased that certain real property and the improvements located thereon more
particularly described on Exhibit A attached hereto ("Property");
---------
WHEREAS, the transfer of the Property was effectuated by the recordation in
the Official Records of Santa Xxxxx County, California ("Official Records") on
the date of this Agreement of a Grant Deed, pursuant to which Owner acquired
title to the Property subject to that certain Administrative Order For Remedial
Design and Remedial Action of the United States Environmental Protection Agency
Region IX bearing U.S. EPA Docket No. 91-4 (as hereafter amended from time to
time, the "EPA Order"); and
WHEREAS, pursuant to the Purchase Agreement, Xxxxx-Middlefield and Owner
executed that certain Assignment, pursuant to which, among other things, the
right, title and interest of Xxxxx-Middlefield in and to that certain Settlement
Agreement dated as of November ___, 1993 ("Settlement Agreement") by and between
Sobrato Development Companies, Xxxx X. Xxxxxxx and Xxxxx X. Xxxxxxx, both
individually and as trustees of the Xxxx X. Xxxxxxx and Xxxxx X.
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Sobrato 1979 Revocable Trust, Xxx X. Xxxxxxx, Xxxx Xxxxxxx Xxxxxxx as trustee of
the Xxx Xxxxxxx 1989 Revocable Trust, and Xxxxx-Middlefield (collectively, the
"Indemnitees"), Siemens Components, Inc. (SCI") and Litronix, Inc. was assigned
to Owner on the terms and conditions set forth in the Assignment.
WHEREAS, the parties desire to comply with the requirements of the EPA
Order and Settlement Agreement relating to access to the Property.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained and other valuable consideration, the parties hereto hereby
agree as follows:
4. Grant of Access Pursuant to EPA Order. Owner, on behalf of itself and
-------------------------------------
its successors in interest to all or any portion of the Property, agrees to
allow the United States Environmental Protection Agency ("EPA") and its
authorized representatives and contractors such access to the Property as is
required pursuant to law, and as is required to be provided pursuant to the EPA
Order by the Respondents identified in the EPA Order (including without
limitation Section XX (A) thereof). In addition, and without limiting the
foregoing, Owner, on behalf of itself and its successors in interest to all or
any portion of the Property, shall within a reasonable time after request
therefor grant easements over and rights of entry to the Property to the
Benefited Parties (defined below) from time to time as reasonably necessary for
the Benefited Parties to perform the work required by and to and fulfill the
obligations under the EPA Order or Settlement Agreement. As used in this
Agreement, "Benefited Parties" shall mean all of the following:
Xxxxx-Middlefield and the other Indemnitees; all Respondents as defined and
named in the EPA Order and their respective officers, directors, agents,
employees, successors and assigns; the EPA, the State of California; SCI; and
the respective contractors and authorized representatives of each of the
foregoing.
5. Successors. This Agreement and the obligations of the parties hereunder
----------
shall be binding upon and inure to the benefit of the parties hereto, their
respective heirs, executors, administrators, legal representatives, successors,
assigns and personal representatives, and subsequent owners of any portion of
the Property. This Agreement and the obligations of the Owner hereunder shall
also and inure to the benefit of the Benefited Parties. Prior to the conveyance
of any interest in any portion of the Property, Owner shall cause the transferee
to acknowledge in writing that it will comply with and be bound by the terms and
conditions of this Agreement applicable to Owner, provided that no such failure
to obtain such written acknowledgment shall relieve the transferee of the
obligation to comply with the terms and conditions of this Agreement.
6. Miscellaneous. This Agreement and the obligations of the parties
-------------
hereunder shall survive the closing of the transaction referred to in the
Purchase Agreement and shall not be merged therein, shall be governed by and
construed in accordance with the laws of the State of California applicable to
agreements made and to be wholly performed within said State and may not be
modified or amended in any manner other than by a written agreement signed by
the party to be charged therewith. The headings preceding the text of the
paragraphs and subparagraphs
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hereof are inserted solely for convenience of reference and shall not constitute
a part of this Agreement, nor shall they affect its meaning, construction or
effect.
7. Severability. If any term or provision of this Agreement or the
------------
application thereof to any persons or circumstances shall, to any extent, be
invalid or unenforceable, the remainder of this Agreement or the application of
such term or provision to persons or circumstances other than those as to which
it is held invalid or unenforceable shall not be affected thereby, and each term
and provision of this Agreement shall be valid and enforced to the fullest
extent permitted by law.
8. Counterparts. This Agreement may be executed in counterparts, each of
------------
which shall be an original and all of which counterparts taken together shall
constitute one and the same agreement.
9. Attorneys Fees. If any legal proceeding is brought or undertaken to
--------------
enforce or interpret this Agreement, or because of an alleged dispute, breach,
or default in connection with any of the provisions of this Agreement, then the
prevailing party or parties in such proceeding shall be entitled to recover
reasonable attorneys' and other professionals' fees, court costs and other
expenses incurred in such action or proceeding, in addition to any other relief
to which such party may be entitled.
WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date first set forth hereinabove.
XXXXX-MIDDLEFIELD BUSINESS PARK, a
California limited partnership
By: THE 1979 XXX TRUST
Its: sole general partner
By:_______________________________
XXXX XXXXXXX XXXXXXX,
Trustee
EMBP 455, L.L.C., a California limited
liability company:
By:___________________________________
Name:
Title:
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EXHIBIT A
---------
LEGAL DESCRIPTION
-----------------
000 XXXX XXXXXXXXXXX
All that certain real property situated in the City of Mountain View, County of
Santa Xxxxx, State of California, described as follows:
Parcels A, B, and C, of Parcel Map recorded in Book 314 of Maps, Page 14,
pursuant to the Lot Line Adjustment, recorded September 15, 1988 in Book K 681,
Page 1392 and Book K 681, Page 1396 of Official Records.
EXCEPTING THEREFROM all that portion of land granted the Santa Xxxxx County
Transit District by deed filed for record in the office of the Recorder of the
County of Santa Xxxxx on June 5, 1997 under Recorder's Series No. 13728710,
Official Records, and being more particularly described as follows:
All that certain real property situated in the City of Mountain View, County of
Santa Xxxxx, State of California, and being a portion of Parcel C as shown on
that certain Parcel Map recorded in Book 314 of Maps, at Page 14, Records of
Santa Xxxxx County and being described as follows:
BEGINNING at the most Easterly corner of said Parcel C, said point also being on
a non-tangent curve to the right (concave to the Northwest) the center of which
bears N 66(Degree) 57' 42" W, 548.11 feet;
Thence along the arc of said curve, and along the Southeasterly line of said
Parcel C, through a central angle of 12(Degree) 16' 03", for an arc length of
117.35 feet to a point on a non-tangent curve to the left (concave to the
Northwest) the center of which bears N 56(Degree) 02' 06" W, 560.00 feet;
Thence departing said Southeasterly line along the arc of said curve through a
central angle of 12(Degree) 05' 27", for an arc length of 118.17 feet to a point
on the Northeasterly line of said Parcel C, said point being on a non-tangent
curve to the right (concave to the Southwest) the center of which bears S
46(Degree) 17' 13" W, 1,450.00 feet;
Thence along said Northeasterly line and along the arc of said curve through a
central angle of 00(Degree) 06' 24", for an arc length of 2.70 feet to the point
of beginning.
ARB No: 000-00-000; 049; 000
XXX No: 000-00-000; 17; 20
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STATE OF CALIFORNIA )
) ss.
COUNTY OF __________ )
On ___________, before me, ______________, personally CAPACITY CLAIMED BY SIGNER
--------------------------
appeared ________________________________________________,
Though statute does not require
[_] personally known to me -OR- [_] proved to me on the the Notary to fill in the data
basis of satisfactory below, doing so may prove
evidence to be the person(s) invaluable to persons relying
whose name(s) is/are on the document.
subscribed to the within
instrument and acknowledged
to me that he/she/they [_] INDIVIDUAL
executed the same in [_] CORPORATE OFFICERS(S)
his/her/their authorized
capacity(ies), and that by _____________________________
his/her/their signature(s) Title(s)
on the instrument the [_] PARTNER(S) [_] LIMITED
person(s), or the entity [_] GENERAL
upon behalf of which the
person(s) acted, executed [_] ATTORNEY-IN-FACT
the instrument. [_] TRUSTEE(S)
[_] GUARDIAN/CONSERVATOR
WITNESS my hand and official seal. [_] OTHER: ______________________
______________________
SIGNER IS REPRESENTING:
----------------------
Name of Person(s) or Entity(ies)
__________________________________ _________________________________
SIGNATURE OF NOTARY _________________________________
STATE OF CALIFORNIA )
) ss.
COUNTY OF __________ )
On ___________, before me, ______________, personally CAPACITY CLAIMED BY SIGNER
--------------------------
appeared ________________________________________________,
Though statute does not require
[_] personally known to me -OR- [_] proved to me on the the Notary to fill in the data
basis of satisfactory below, doing so may prove
evidence to be the person(s) invaluable to persons relying
whose name(s) is/are on the document.
subscribed to the within
instrument and acknowledged
to me that he/she/they [_] INDIVIDUAL
executed the same in [_] CORPORATE OFFICERS(S)
his/her/their authorized
capacity(ies), and that by _____________________________
his/her/their signature(s) Title(s)
on the instrument the [_] PARTNER(S) [_] LIMITED
person(s), or the entity [_] GENERAL
upon behalf of which the
person(s) acted, executed [_] ATTORNEY-IN-FACT
the instrument. [_] TRUSTEE(S)
[_] GUARDIAN/CONSERVATOR
WITNESS my hand and official seal. [_] OTHER: ______________________
______________________
SIGNER IS REPRESENTING:
----------------------
Name of Person(s) or Entity(ies)
__________________________________ _________________________________
SIGNATURE OF NOTARY _________________________________
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