00534.00229/1340450v3 1 PURCHASE AND SALE AGREEMENT THIS PURCHASE AND SALE AGREEMENT (this “Agreement”), dated as of January 26, 2024 (the “Effective Date”), is between CARACOL PROPERTY OWNER LLC, a Delaware limited liability company (“Seller”), and...
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00534.00229/1340450v3 1 PURCHASE AND SALE AGREEMENT THIS PURCHASE AND SALE AGREEMENT (this “Agreement”), dated as of January 26, 2024 (the “Effective Date”), is between CARACOL PROPERTY OWNER LLC, a Delaware limited liability company (“Seller”), and SUPER MICRO COMPUTER, INC., a Delaware corporation (“Purchaser”). Recitals A. Seller has agreed to sell, and Purchaser has agreed to purchase, the Property (as defined below), upon the terms and conditions set forth in this Agreement. B. Therefore, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Seller and Purchaser hereby agree to the terms and conditions set forth in this Agreement. Agreement 1. Principles of Construction; Defined Terms. 1.1. Principles of Construction; Time Periods. All references to sections, schedules, riders and exhibits in this Agreement are to sections, schedules, riders and exhibits to this Agreement. When used in this Agreement, the words “herein” and “hereunder” and words of similar import shall refer to this Agreement as a whole and not to any particular provision of this Agreement. When used in this Agreement, the word “including” shall be deemed to mean “including, without limitation” and “including, but not limited to”. Whenever used in this Agreement, the singular shall include the plural and the plural shall include the singular. The captions and paragraph headings in this Agreement are for the convenience of reference only and shall not be deemed to alter any provision of this Agreement. Each Party has participated fully in the negotiation and preparation of this Agreement with full benefit of counsel. Accordingly, this Agreement shall not be more strictly construed against either Party. Any time period provided for in this Agreement which ends on a Saturday, Sunday or legal holiday for national banks in the State, shall extend to 5:30 p.m. of the next full Business Day. All times set forth in this Agreement shall be Pacific Time. 1.2. Definitions. The following terms shall have the following meanings in this Agreement: “Assignment of Leases” means an Assignment and Assumption of Leases with respect to the Leases (and any security deposits thereunder) in the form of Exhibit H to this Agreement. “Blocked Person” means any person or entity with whom U.S. Persons are restricted from doing business under regulations of the Office of Foreign Asset Control of the U.S. Department of the Treasury (including those named on its Specially Designated and Blocked Persons List) or under any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental statutes, regulations, orders or directives.
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00534.00229/1340450v3 2 “Business Day” means any day other than Saturday, Sunday or legal holiday for national banks in the State. “Caracol 2 Lease” means that certain Commercial Real Property Lease between Caracol, Ltd., L.P. (“Original Landlord”) and Xxx’x Electronics, Inc. (“Original Tenant”) dated December 12, 1994 (“Original Lease”), as amended by that certain First Amendment to Lease dated December 1, 1995, that certain Second Amendment to Lease dated December 20, 1995, that certain Third Amendment to Lease dated January 22, 1996, that certain Fourth Amendment to Lease dated February 29, 1996, that certain Fifth Amendment to Lease dated March 29, 1996, that certain Sixth Amendment to Lease dated April 30, 1996, that certain Seventh Amendment to Lease dated May 31, 1996, that certain Eighth Amendment to Lease dated December, 2019, that certain Notice to Exercise Lease Option dated May 21, 2019 extending the Term of the Lease (the “Extension Letter”), that certain Ninth Amendment to Lease dated August, 2023, and as the same shall be further modified as contemplated by this Agreement. The Original Lease, as amended by the amendments described above and the Extension Letter, is referred to as the “Lease.” Original Tenant assigned its interest in the Lease to Caracol 2, LLC, a California limited liability company (“Caracol 2”) pursuant to the Eighth Amendment to Lease. Original Landlord assigned its interest in the Lease to Seller pursuant to an Assignment and Assumption Agreement (re: Leases) dated February, 2020. “Closing” means the consummation of the transaction contemplated by this Agreement. “Closing Date” means the date upon which the Closing actually occurs under this Agreement. The Closing Date shall be February 9, 2024, subject to any permitted extension hereunder or pursuant to written agreement between the parties in their sole and absolute discretion. “Contract Period” means the period beginning on the Effective Date and ending on the Closing Date or earlier termination of this Agreement. “Deposit” means the amount of Ten Million and 00/100 Dollars ($10,000,000.00). “Environmental Law” means all applicable environmental ordinances, rules, regulations, statutes, orders, and laws of all local, state, or federal agencies or bodies with jurisdiction over the Property or the activities conducted on the Property, as amended from time to time, and any successor statutes, together with all regulations promulgated thereunder, including the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 U.S.C. §960 et seq.), the Hazardous Materials Transportation Act (42 U.S.C. §1801 et seq.), the Resource Conservation and Recovery Act (42 U.S.C. §9601 et seq.), the Toxic Substances Control Act of 1976 (15 U.S.C. §2601 et. seq.) and the Clean Air Act (42 U.S.C. §1251 et. seq.). “Escrow Agent” means the same entity acting as Title Company under this Agreement. “Federal Bankruptcy Act” means title 11 of the United States Code (11 U.S.C. § 101 et seq.).
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00534.00229/1340450v3 3 “Hazardous Materials” mean any hazardous materials, hazardous wastes, hazardous substances, toxic materials, toxic wastes, toxic substances, pollutants, contaminants, radioactive materials, flammable explosives, asbestos or asbestos-containing materials, lead or lead- containing materials, oils, petroleum-derived compounds, pesticides, polychlorinated biphenyls or similar materials defined in any Environmental Law. “Improvements” mean all structures, buildings, improvements and fixtures located on or forming a part of the Land or otherwise comprising the Project. “Intangible Personal Property” means all intangible property, if any, owned by Seller and used exclusively in connection with the Land, the Improvements or the Project, including building plans, building specifications, floor plans, booklets, manuals. warranties, guaranties, licenses, permits, entitlements, utility contracts, governmental approvals, and certificates of occupancy, and in all events shall include all third party reports, surveys, site plans, architectural renderings, plans and specifications, environmental impact reports, traffic studies, soils reports, opinions and other materials, and all site or PD permits, building permits, development agreements, zoning approvals and variances and other governmental approvals and agreements, in each case obtained by Seller or its affiliates in connection with the “Proposed Redevelopment” (as defined below). “Joy Parking Lease” means that certain Lease Agreement between Seller and Joy Parking, Inc. d/b/a Xxx Xxxx Fly, a California corporation (“Joy Parking”), dated as of November, 2023. “Land” means approximately 19.72 acres of land located in San Jose, California, as legally described on Exhibit A to this Agreement, upon which the Project is situated. The Land includes Seller’s right, title and interest in and to all open or proposed highways, streets, roads, avenues, alleys, easements, strips, gores, and rights-of-way in, on, contiguous to, abutting or adjoining the Land. “Leases” means the Caracol 2 Lease, the Joy Parking Lease and the Super Micro Lease. “Leasing Costs” means any and all costs, expenses and fees paid or incurred by Seller in connection with a Lease, including without limitation, brokerage commissions, expenses incurred for repairs or improvements to satisfy the requirements under a Lease, and tenant improvement dollars paid or to be paid to a Tenant under any Lease. “Mandatory Cure Items” mean (i) any mortgage, deed of trust, monetary judgment, delinquent taxes and assessments, construction lien or other monetary encumbrance affecting any portion of the Property or any real estate taxes or assessments which are due but unpaid, including, without limitation, the Deed of Trust recorded in the Official Records as Instrument No. 24414815 (as amended, the “Deed of Trust”) and the Assignment of Leases and Rents recorded in the Official Records as Instrument 24414816 (as amended, the “Assignment of Leases and Rents”), both set forth in the Preliminary Report delivered to Purchaser pursuant to Section 5.1, and (ii) any monetary liens, encumbrances or other matters affecting title to the Property caused, created or suffered by Seller after the Effective Date.
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00534.00229/1340450v3 4 “Owner’s Title Policy” means an ALTA Form 2006 extended coverage owner’s policy of title insurance insuring Purchaser as the sole owner of the fee simple interest in the Property, subject solely to the Permitted Exceptions, in the amount of the Purchase Price to be issued by Title Company otherwise in conformity with the last Preliminary Report delivered to and approved by Purchaser as of the Effective Date, with the deletion of all Mandatory Cure Items and containing the endorsements Title Company has agreed to issue on or prior to the Effective Date. “Party” or “Parties” means Seller or Purchaser, or Seller and Purchaser, as applicable. “Permits” mean all licenses, permits, warranties, approvals and development rights and entitlements with respect to the Land, the Improvements, the Project or the Proposed Redevelopment. “Permitted Exceptions” mean (i) liens to secure payment of real estate taxes and assessments not delinquent, provided that the same are prorated in accordance with this Agreement; (ii) applicable zoning and land use laws, ordinances, rules and regulations of any municipality, township, county, state or other governmental agency or authority; (iii) all matters that are disclosed on the Survey; (iv) any exceptions or matters created by any Purchaser Party; (v) the usual pre-printed exceptions and exclusions contained in the form title insurance policies (unless the Owner’s Title Policy is an extended coverage policy), and (vi) all other exceptions shown in the Preliminary Report which are approved or deemed approved by Purchaser as of the Effective Date. In no event shall the Permitted Exceptions include any Mandatory Cure Item, or any matters created by Seller in violation of Article 12. “Preliminary Report” means a Preliminary Title Report issued by Title Company dated as of June 25, 2024, which will form the basis for the Owner’s Title Policy. “Project” means the building containing approximately 293,906 square feet of space, and located at 000 X. Xxxxxx Xxxx, Xxx Xxxx, XX 00000. “Property” means, collectively, (a) the Land, (b) the Improvements, (c) Seller’s right, title and interest in and to the Permits, (d) the Intangible Personal Property and the Leases, and (e) any other item of property to be conveyed by Seller to Purchaser under this Agreement. “Proposed Redevelopment” means the potential redevelopment of the Project with the phased construction of seven office buildings totaling approximately 1,924,110 square feet and two parking structures totaling approximately 1,647,920 square feet, as more particularly set forth in the development materials provided by Seller to Purchaser prior to the Effective Date. Seller makes no representation or warranty whatsoever regarding the Proposed Redevelopment, including the entitlement status, likely cost or any other matter with respect thereto. “Purchase Price” means the amount of Eighty Million and 00/100 Dollars ($80,000,000.00). “Purchaser’s Broker” means Xxxxxxx’x.
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00534.00229/1340450v3 5 “Qualifying Tenant Estoppel” means a Tenant Estoppel with respect to the Caracol 2 Lease in the form attached hereto as Exhibit F, duly executed and delivered by the Tenant under such Lease, addressed to Purchaser, with all fields properly completed, disclosing no material default by Seller under the applicable Lease that has not been cured by Seller prior to Closing, and with no material discrepancy from the information included in the Lease other than as amended by the Caracol 2 Lease Amendment (as defined in Section 12.7) delivered to Purchaser under this Agreement as of the Effective Date. “Rent Roll” means the rent roll of the Property which is attached hereto as Exhibit G. “Rents” mean base or fixed rent and all other sums required to be paid by the Tenants under the Leases. “Seller’s Broker” means NewmarkKnight Xxxxx. “Short Term Occupancy Agreements” means (a) that certain License Agreement (Parking) between Caracol 2 and Halle Properties, LLC, dated as of July 13, 2021, (b) that certain License Agreement (Storage) between Caracol 2 and Xxxx-X-Xxxxx.Xxx dated as of August 2022, and (c) that certain Xxxxxx & Xxxxxxx Lease Agreement dated March 15, 1985, as amended by a Xxxxxxx Media Group, Inc., Accepted & Agreed Letter dated November 21, 1989, as amended by that Xxxxx Media Company Accepted and Agreed Letter dated March 1, 1997, as amended by that Clear Channel Outdoor Accepted and Agreed Letter dated July 29, 2003, as amended by that Fourth Amendment to Lease dated April 1, 2021, between Clear Channel Outdoor, LLC, and Caracol 2 (“Clear Channel Occupancy Agreement”). The Short Term Occupancy Agreements shall not be considered “Leases” for purposes of this Agreement. Seller shall cause Caracol 2 to deliver into Escrow prior to the Closing Date (i) notices of termination (“License Termination Notices”) to Halle Properties, LLC, and to Xxxx-X-Xxxxx.Xxx with respect to their respective Short Term Occupancy Agreements, and (ii) without further consideration an assignment of its interest to Purchaser as of the Closing Date (pursuant to a form assignment reasonably agreed to the Parties consistent with the Assignment of Leases) the Clear Channel Occupancy Agreement. “State” means the State of California. “Super Micro Lease” means that certain lease between Seller and Super Micro Computer, Inc., a Delaware corporation, dated as of July 14, 2023, as amended by Section 3.1(b) of this Agreement. “Survey” means that certain ALTA/NSPS Land Title Survey prepared by Xxxx+Xxxxxx dated February 2020. “Survival Period” means a period beginning on the date hereof and ending on December 1, 2024; provided, however, that if a written claim is made by either Party to the other within the Survival Period, the Survival Period as to the matters which are the subject of such claim shall be extended to full and final resolution and payment of such written claim. “Tangible Personal Property” means all equipment, machinery, furniture, furnishings, supplies and other tangible personal property owned by Seller and located on the Land or in the
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00534.00229/1340450v3 11 5.3. Natural Hazards Disclosure. Seller and Purchaser acknowledge that the Disclosure Statutes (as defined herein) provide that a seller of real property must make certain disclosures regarding certain natural hazards potentially affecting the property, as more particularly provided therein. As used in this Agreement, “Disclosure Statutes” means, collectively, California Government Code Sections 8589.3, 8589.4 and 51183.5, California Public Resources Code Sections 2621.9, 2694 and 4136 and any other statutes that require Seller to make disclosures concerning natural hazards potentially affecting the Property. As of the Effective Date, Seller has provided to Purchaser a Natural Hazard Disclosure Report (the “NHD Report”) for the Property. Purchaser hereby agrees as follows with respect to the Disclosure Statutes and the NHD Report: (i) the delivery of the NHD Report to Purchaser shall be deemed to satisfy all obligations and requirements of Seller under the Disclosure Statutes; (ii) Seller shall not be liable for any error or inaccuracy in, or omission from, the information in the NHD Report; and (iii) the NHD Report is being provided by Seller for purposes of complying with the Disclosure Statutes and shall not be deemed to constitute a representation or warranty by Seller as to the presence or absence in, at or around the Property of the conditions that are the subject of the Disclosure Statutes. 6. Representations and Warranties of Seller. As used in this Agreement, the term “Actual Knowledge” means the current actual (not imputed or constructive) personal knowledge of Xxxxx Xxxx (“Seller’s Representative”), without any duty of further inquiry or investigation and without personal liability. Seller represents and warrants to Purchaser that Seller’s Representative is the individual within Seller’s organization most knowledgeable of the matters covered by the representations and warranties set forth in Section 6. Seller represents and warrants to Purchaser, as of the Effective Date and as of the Closing Date, as follows: 6.1. No Leases or Tenants. Other than the Leases set forth on the Rent Roll attached as Exhibit G to this Agreement, Seller is not a party to any other leases, licenses or other similar occupancy agreements with respect to the leasing or occupancy of the Land or Improvements. Seller has not granted any option or right of first refusal or first opportunity to any party to acquire any interest in the Property other than pursuant to this Agreement. The Rent Roll attached as Exhibit G to this Agreement is a true, correct and complete Rent Roll of the Property as of the Effective Date. As of the Effective Date, Seller has delivered to Purchaser true, correct and complete copies of the Leases set forth on the Rent Roll, including all amendments thereto and guaranties thereof. Except as otherwise disclosed on the Rent Roll or in the Leases: (a) Each Lease is in full force and effect. (b) No Lease has been amended or modified except as set forth in the Leases or in Section 3.1(b) of this Agreement. There are no other agreements or understandings, whether written or oral, between the parties to the Leases with respect to the Leases, as applicable, or the Property. (c) There are no arrearages of base rent, additional rent, or any other amount payable by any Tenant under the Leases. (d) There are no uncured defaults by any Tenant under any Lease and, to Seller’s Actual Knowledge, there have been no events which with the giving of notice, the passage of time or both would constitute a default by any Tenant under any Lease.
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00534.00229/1340450v3 16 the Property and the quality of the labor and materials included in any improvements, fixtures, equipment or personal property comprising a portion of the Property; (ii) the fitness of the Property for any particular purpose; (iii) the presence or suspected presence of hazardous materials on, in, under or about the Property (including the soils and groundwater on and under the Property); and (iv) existing or proposed governmental laws or regulations applicable to the Property or the further development or change in use thereof, including environmental laws and laws or regulations dealing with zoning or land use. (b) Seller shall have no liability for any latent, hidden, or patent defect as to the Property or the failure of the Property, or any part thereof, to comply with any applicable laws and regulations. In particular, Purchaser acknowledges and agrees that the Property information made available to Purchaser under this Agreement (and any other information Purchaser may have obtained regarding in any way any of the Property, including without limitation, its operations or its financial history or prospects from Seller or its agents, employees or other representatives) is delivered to Purchaser without representation or warranty (except for the representations and warranties by Seller set forth in Section 6 above, Section 16 below or elsewhere in this Agreement) as to its accuracy and not as an inducement to acquire the Property; that nothing contained in any deliveries of Property information shall constitute or be deemed to be a guarantee, representation or warranty, express or implied, in any regard as to any of the Property; and that Purchaser is relying only upon the provisions of this Agreement and its own independent assessment of the Property and its prospects in determining whether to acquire the Property. Purchaser’s Initials:_________ (c) Effective as of the Closing, Purchaser hereby waives its right to recover from, and fully and irrevocably releases Seller, its employees, officers, directors, managers, members, partners, representatives, agents, servants, attorneys, affiliates, parent, subsidiaries, successors and assigns, and all persons, firms, corporations and organizations in its behalf (“Released Parties”) from, any and all claims (including claims for contribution and/or indemnity) that it may now have or hereafter acquire against any of the Released Parties for any costs, loss, liability, damage, expenses, demand, action or cause of action arising from or related to the valuation, saleability, physical condition or development potential of the Property, or any construction defects, errors, omissions or other conditions, latent or otherwise, including any and all environmental matters, affecting the Property, or any portion thereof. This release includes claims of which Purchaser is presently unaware or which Purchaser does not presently suspect to exist which, if known by Purchaser, would materially affect Purchaser’s release to Seller. In this connection and to the extent permitted by law, Xxxxxxxxx hereby agrees, represents and warrants, which representation and warranty shall survive the Closing, that Xxxxxxxxx realizes and acknowledges that factual matters now unknown to it may have given or may hereafter give rise to causes of action, claims, demands, debts, controversies, damages, costs, losses and expenses which are presently unknown, unanticipated and unsuspected, and Purchaser further agrees,
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00534.00229/1340450v3 17 represents and warrants, which representation and warranty shall survive the Closing, that the waivers and releases herein have been negotiated and agreed upon in light of that realization and that Purchaser nevertheless hereby intends to release, discharge and acquit Seller from any such unknown causes of action, claims, demands, debts, controversies, damages, costs, losses and expenses. To the extent permitted by law, Purchaser specifically waives the benefit of any provision of law that would relieve Purchaser of any consequences of releasing or waiving claims that Purchaser does not know or suspect to exist in its favor as of the date of such waiver or release. Seller has given Purchaser material concessions regarding this transaction in exchange for Purchaser agreeing to the provisions of this Section 6.17, and Seller and Purchaser have each initialed this Section 6.17 to further indicate their awareness and acceptance of each and every provision hereof. The provisions of this Section 6.17 shall survive Closing. However, notwithstanding anything to the contrary set forth in this Section 6.17, but subject in all respects to the survival provision set forth in Section 6.16 and the limitation of liability and exceptions thereto set forth in Sections 6.16 and 17.1, the foregoing provisions of this Section 6.17 shall not relieve or release Seller for (and Purchaser is not waiving and hereby expressly reserves) any claims arising out of (i) the breach by Seller of any express representation, warranty or covenant set forth in this Agreement which survives the Closing pursuant to the terms hereof; or (ii) any actual fraud by Seller. ____________ _______________ Seller’s Initials Purchaser’s Initials (d) In connection with Section 6.17(c) above, Purchaser expressly waives the benefits of Section 1542 of the California Civil Code, which provides as follows: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.” PURCHASER ACKNOWLEDGES AND AGREES THAT IT HAS BEEN REPRESENTED BY LEGAL COUNSEL OF ITS CHOICE IN CONNECTION WITH THIS AGREEMENT, AND THAT SUCH COUNSEL HAS EXPLAINED TO PURCHASER THE PROVISIONS OF THIS SECTION 6.17(d). BY INITIALING BELOW, PURCHASER CONFIRMS IT HAS AGREED TO THE PROVISIONS OF THIS SECTION 6.17(d). _______________ Purchaser’s Initials 7. Representations and Warranties of Purchaser. Purchaser represents and warrants to Seller that as of the Effective Date: 7.1. Good Standing; Authority. Purchaser is a duly organized and validly existing entity in good standing under the laws of the state of its formation. Purchaser has taken all necessary action to authorize the execution, delivery and performance of its obligations under this Agreement. The person signing this Agreement on behalf of Purchaser is authorized to do so.
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00534.00229/1340450v3 19 (c) An Assignment of Leases with respect to the Leases (and any security deposits thereunder) in the form of Exhibit H to this Agreement. (d) A customary owner’s affidavit, which shall include a statement that a physical inspection or survey of the Real Property would not disclose any matters which are not already disclosed on the Survey (a “no change” affidavit), and a gap indemnity sufficient to facilitate the Title Company to issue the Owner’s Title Policy at Closing with extended coverage and insure the gap in title coverage between the date of the last title commitment and the date the Deed is recorded. (e) A FIRPTA affidavit evidencing that Seller is not a “foreign person” under the Internal Revenue Code, as amended. (f) Such evidence as Title Company may require to reasonably establish that Xxxxxx’s execution of this Agreement and performance of its obligations hereunder have been duly authorized and that the person or persons executing this Agreement on behalf of Seller have been duly authorized and empowered to do so. (g) California Withholding Exemption Certificate (“Form 593-C”). (h) Such other documents as may be reasonably required to carry out the terms and intent of this Agreement, including the License Termination Notices and the assignment to Purchaser by Caracol 2 of the Clear Channel Occupancy Agreement. 8.3. Purchaser Escrow Deliveries. Purchaser shall duly execute, acknowledge (as applicable) and deliver (or cause to be delivered) the following to Escrow Agent at Closing. (a) Purchaser shall deliver (or caused to be delivered) such documents as may be reasonably required to carry out the terms and intent of this Agreement to Escrow Agent at Closing, each in form and substance reasonably satisfactory to Seller and Purchaser. (b) Immediately available funds in the following amounts: (i) the balance of the Purchase Price (as adjusted by the prorations and credits specified herein); (ii) such amount, if any, as is necessary for Purchaser to pay Purchaser’s share of the closing costs and prorations specified in Article 11, below; and (iii) any other amounts required to close escrow in accordance with the terms of this Agreement. (c) An Assignment of Intangibles with respect to the Intangible Personal Property, in the form of Exhibit D to this Agreement. (d) An Assignment of Leases with respect to the Leases (and any security deposits thereunder) in the form of Exhibit H to this Agreement. 8.4. Closing Statement. Seller and Purchaser shall each execute and deliver to Escrow Agent a closing statement in a customary form together with such other documents that Escrow Agent may reasonably request to consummate the Closing.
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00534.00229/1340450v3 22 10.5. Survival. The provisions of this Section 10 shall survive the Closing. 11. Closing Costs. The Parties shall bear the following costs; any other closing costs not expressly allocated in this Agreement shall be paid according to custom in the City of San Jose, County of Santa Xxxxx, State of California: 11.1. Seller Costs. Seller shall pay for (a) any costs of the title search and the base premium for the Owner’s Title Policy, (b) County transfer and similar taxes on the Deed or conveyance of the Property from Seller to Purchaser, (c) fifty percent (50%) of City transfer taxes on the Deed or conveyance of the Property from Seller to Purchaser, (d) fifty percent (50%) of any escrow or closing costs or fees of Title Company, and (e) all amounts required to fully pay and discharge all Mandatory Cure Items from title affecting the Property. 11.2. Purchaser Costs. Purchaser shall pay for (a) the premium on any extended coverage under the Owner’s Title Policy and the premium on any endorsements to the Owner’s Title Policy requested by Xxxxxxxxx, (b) the cost of recording the Deed, (c) fifty percent (50%) of any escrow or closing costs or fees of Title Company; (d) fifty percent (50%) of City transfer taxes on the Deed or conveyance of the Property from Seller to Purchaser. 11.3. Legal Fees. Each Party shall be responsible for payment of its own legal fees and costs, except as otherwise provided in this Agreement. 12. Covenants of Seller. 12.1. Continued Operations. During the Contract Period, Seller shall operate the Property in a manner consistent with present operations, including, without limitation, performing all necessary routine maintenance and repair. 12.2. No Changes to Property. During the Contract Period, Seller shall not, without the prior written consent of Purchaser in each instance, which consent may be withheld in Purchaser’s sole and absolute discretion, (a) subject to Section 12.7, amend, terminate, renew any of the Leases, permit or consent to any termination, surrender, assignment, sublease or license of a Lease (unless the tenant thereunder has a unilateral right to terminate, surrender, sublease, license or assign such Lease), or apply any tenant deposit under a Lease, enter into any new leases, license agreements, or other similar occupancy agreement, or any service contracts or other agreement affecting the Property, (b) amend or enter into any encumbrance, easement, covenant, condition, right-of-way or restriction upon the Property, (c) grant, create or assume any mortgage, lien, encumbrance, easement, covenant, condition, right-of-way or restriction upon the Property, (d) transfer any part of the Property, (e) voluntarily take any action adversely affecting the title to the Property as it exists on the Effective Date, or (f) withdraw, settle or otherwise compromise any protest or reduction proceeding affecting real estate taxes assessed against the Property. The provisions of this paragraph shall survive the Closing. This Section 12.2 shall survive for the Survival Period. 12.3. Insurance. Seller shall cause all of the existing insurance policies (or replacements thereof with coverages equal to or greater than such insurance policies) to remain continuously in force during the Contract Period.
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00534.00229/1340450v3 00 00 Xxxxxxx Xxxxxx Xxxxxxxx, Xxxxxxxxxx 00000 Attention: Xxxx Xxxxxxx and Xxxxx Xxxx Email: xxxx@xxxxxxxxxxxxxxxxxx.xxx Email: xxxxx@xxxxxxxxxxxxxxxxxx.xxx With a copy to: Xxxxx Xxxxx & Xxxxxxxxxxxx LLP 000 Xxxxxxxxxx Xxxxxx, 00xx xxxxx Xxx Xxxxxxxxx, XX 00000 Attn: Xxxx X. Xxxxx and Xxxxxxxxx X. Xxxxxxxx Email: xxxxxx@xxxxxxxxxx.xxx Email: xxxxxxxxx@xxxxxxxxxx.xxx If to Purchaser: Super Micro Computer, Inc. 000 Xxxx Xxxxxx Xxx Xxxx, XX 00000 Attention: Xxxxxx Xxxx Email: XxxxxxXxxx@xxxxxxxxxx.xxx With a copy to: Xxxxxxxxx Xxxxxxx, LLP 000 Xxxxxx Xxxxxx, Xxxxx 0000 Xxx Xxxxxxxxx, XX 00000 Attention: Xxxxxxx Single Email: Xxxxx.Xxxxxx@xxxxx.xxx If to Escrow Agent: First American Title Company 000 X. Xxxxx Xxxxx Xxxxxx, Xxx. 000 Xxx Xxxx, XX 00000-0000 Attn: Xxxxx X. Xxxxxxx Email: xxxxxxxxx@xxxxxxx.xxx Either Party may change its address under this Agreement by giving written notice of such change to the other Party in the manner provided in this Section 15. The respective attorneys for each Party are authorized to give any notices, make any requests and send any other communications under this Agreement on behalf of their respective clients. 16. Brokers. Seller and Purchaser represent and warrant to each other that they have not dealt with any broker, finder or other intermediary in connection with the transaction contemplated by this Agreement, other than Seller’s Broker and Purchaser’s Broker, respectively. Seller shall be solely responsible for compensating Seller’s Broker pursuant to a separate written commission agreement between Seller and Seller’s Broker. Seller shall be solely responsible for compensating Purchaser’s Broker pursuant to a separate written commission agreement between Seller and Purchaser’s Broker. Each Party shall indemnify and hold harmless the other Party from and against any and all losses, damages, claims, costs and expenses (including reasonable
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00534.00229/1340450v3 29 Deposit as liquidated damages, whereupon both Seller and Purchaser shall thereafter be released from all further obligations under this Agreement, except those specifically provided to survive the termination of this Agreement, as Seller’s sole and exclusive remedy. The foregoing is intended to constitute liquidated damages to Seller pursuant to California Civil Code Sections 1671, 1676 and 1677 and shall not be deemed to constitute a penalty or forfeiture within the meaning of California Civil Code Sections 3275 or 3369 or any similar provision. Seller and Purchaser have made this provision for liquidated damages because it would be extremely difficult or impossible to calculate the amount of actual damages for such breach on the date hereof in light of the unpredictable state of the economy, the fluctuating market for real estate, and other factors which directly affect the value and marketability of the Property. In particular and without limiting the generality of the foregoing, Purchaser acknowledges that (i) in reliance on Purchaser’s execution of this Agreement, Seller has foregone a specific sale opportunity to another buyer that was almost fully negotiated at a sale price (the “Rejected Offer”) that was substantially lower than the Purchase Price; (ii) such other buyer will not be willing to resume negotiating the Rejected Offer if Purchaser fails to purchase the Property; and (iii) the only other current purchase offers are at prices substantially lower than even the Rejected Offer. Therefore, in light of the foregoing special circumstances and all other relevant considerations, and notwithstanding that the nonrefundable Deposit is a higher portion of the Purchase Price than is customary, Seller and Purchaser agree that the Deposit represents reasonable compensation to Seller for any such breach by Purchaser. Seller hereby waives the provisions of California Civil Code Section 3389, except to the extent necessary to enforce this Section 17.2. The parties agree that this provision is intended to comply with California Civil Code Section 1671, et. seq. Notwithstanding the foregoing, nothing contained in this Section 17.2 shall be deemed to waive or affect Purchaser’s indemnity and confidentiality obligations that expressly survive the Closing or termination of this Agreement. SELLER’S PURCHASER’S INITIALS:_________ INITIALS:__________ 18. Assignment. Neither this Agreement nor any right, remedy, obligation or liability arising under this Agreement may be assigned or delegated by any Party to this Agreement without the prior written consent of the other Party to this Agreement. Notwithstanding the foregoing, Purchaser may assign this Agreement, without Seller’s consent (but upon prior written notice to Seller) to a parent, subsidiary or affiliate under common control with Purchaser. In the event of any assignment of this Agreement by Purchaser, such assignee shall be required to agree in writing to assume Purchaser’s obligations under this Agreement and to be bound by all of the terms and conditions of this Agreement. Purchaser shall provide Seller written notice of any assignment of this Agreement permitted under this Section 18, including for Seller’s reasonable review a draft of the proposed written assignment to be executed by Xxxxxxxxx and its permitted assignee, not less than five (5) days prior to the scheduled Closing (and shall provide a copy of the fully executed assignment at or prior to Closing). Only one such permitted assignment and assumption of this Agreement shall be allowed hereunder, and any other assignment shall be subject to Xxxxxx’s consent, which may be granted, withheld or conditioned in Seller’s sole and absolute discretion. Any purported assignment by Purchaser to an unauthorized party shall be null and void. Subject to the foregoing, this Agreement, and the terms, covenants and conditions herein contained, shall
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00534.00229/1340450v3 32 CALIFORNIA CODE OF CIVIL PROCEDURE, SECTIONS 638 — 645.1, INCLUSIVE (AS SAME MAY BE AMENDED, OR ANY SUCCESSOR STATUTE(S) THERETO) (THE “REFEREE SECTIONS”). ANY FEE TO INITIATE THE JUDICIAL REFERENCE PROCEEDINGS AND ALL FEES CHARGED AND COSTS INCURRED BY THE REFEREE SHALL BE PAID BY THE PARTY INITIATING SUCH PROCEDURE (EXCEPT THAT IF A REPORTER IS REQUESTED BY EITHER PARTY, THEN A REPORTER SHALL BE PRESENT AT ALL PROCEEDINGS WHERE REQUESTED AND THE FEES OF SUCH REPORTER – EXCEPT FOR COPIES ORDERED BY THE OTHER PARTIES – SHALL BE BORNE BY THE PARTY REQUESTING THE REPORTER); THE VENUE OF THE PROCEEDINGS SHALL BE IN SANTA CLARA COUNTY. WITHIN TEN (10) DAYS OF RECEIPT BY ANY PARTY OF A WRITTEN REQUEST TO RESOLVE ANY DISPUTE OR CONTROVERSY PURSUANT TO THIS PARAGRAPH, THE PARTIES SHALL AGREE UPON A SINGLE REFEREE WHO SHALL TRY ALL ISSUES, WHETHER OF FACT OR LAW, AND REPORT A FINDING AND JUDGMENT ON SUCH ISSUES AS REQUIRED BY THE REFEREE SECTIONS. IF THE PARTIES ARE UNABLE TO AGREE UPON A REFEREE WITHIN SUCH TEN (10) DAY PERIOD, THEN ANY PARTY MAY THEREAFTER FILE A LAWSUIT IN SANTA CLARA COUNTY FOR THE PURPOSE OF APPOINTMENT OF A REFEREE UNDER THE REFEREE SECTIONS. IF THE REFEREE IS APPOINTED BY THE COURT, THE REFEREE SHALL BE A NEUTRAL AND IMPARTIAL RETIRED JUDGE WITH SUBSTANTIAL EXPERIENCE IN THE RELEVANT MATTERS TO BE DETERMINED, FROM JAMS, THE AMERICAN ARBITRATION ASSOCIATION OR SIMILAR MEDIATION/ARBITRATION ENTITY. THE PROPOSED REFEREE MAY BE CHALLENGED BY ANY PARTY FOR ANY OF THE GROUNDS LISTED IN THE REFEREE SECTIONS. THE REFEREE SHALL HAVE THE POWER TO DECIDE ALL ISSUES OF FACT AND LAW AND REPORT HIS OR HER DECISION ON SUCH ISSUES, AND TO ISSUE ALL RECOGNIZED REMEDIES AVAILABLE AT LAW OR IN EQUITY FOR ANY CAUSE OF ACTION THAT IS BEFORE THE REFEREE, INCLUDING AN AWARD OF ATTORNEYS' FEES AND COSTS. THE REFEREE SHALL NOT, HOWEVER, HAVE THE POWER TO AWARD PUNITIVE DAMAGES, NOR ANY OTHER DAMAGES WHICH ARE NOT PERMITTED BY THE EXPRESS PROVISIONS OF THIS AGREEMENT, AND THE PARTIES HEREBY WAIVE ANY RIGHT TO RECOVER ANY SUCH DAMAGES. THE PARTIES SHALL BE ENTITLED TO CONDUCT ALL DISCOVERY AS PROVIDED IN THE CALIFORNIA CODE OF CIVIL PROCEDURE, AND THE REFEREE SHALL OVERSEE DISCOVERY AND MAY ENFORCE ALL DISCOVERY ORDERS IN THE SAME MANNER AS ANY TRIAL COURT JUDGE, WITH RIGHTS TO REGULATE DISCOVERY AND TO ISSUE AND ENFORCE SUBPOENAS, PROTECTIVE ORDERS AND OTHER LIMITATIONS ON DISCOVERY AVAILABLE UNDER CALIFORNIA LAW. THE REFERENCE PROCEEDING SHALL BE CONDUCTED IN ACCORDANCE WITH CALIFORNIA LAW (INCLUDING THE RULES OF EVIDENCE), AND IN ALL REGARDS, THE REFEREE SHALL FOLLOW CALIFORNIA LAW APPLICABLE AT THE TIME OF THE REFERENCE PROCEEDING. THE PARTIES SHALL PROMPTLY AND DILIGENTLY COOPERATE WITH ONE ANOTHER AND THE REFEREE, AND SHALL PERFORM SUCH ACTS AS MAY BE NECESSARY TO OBTAIN A PROMPT AND EXPEDITIOUS RESOLUTION OF THE DISPUTE OR CONTROVERSY IN ACCORDANCE WITH THE TERMS OF THIS PARAGRAPH. IN THIS REGARD, THE PARTIES AGREE THAT THE PARTIES AND THE REFEREE SHALL USE BEST EFFORTS TO ENSURE THAT (A)
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00534.00229/1340450v3 33 DISCOVERY BE CONDUCTED FOR A PERIOD NO LONGER THAN SIX (6) MONTHS FROM THE DATE THE REFEREE IS APPOINTED, EXCLUDING MOTIONS REGARDING DISCOVERY, AND (B) A TRIAL DATE BE SET WITHIN NINE (9) MONTHS OF THE DATE THE REFEREE IS APPOINTED. IN ACCORDANCE WITH SECTION 644 OF THE CALIFORNIA CODE OF CIVIL PROCEDURE, THE DECISION OF THE REFEREE UPON THE WHOLE ISSUE MUST STAND AS THE DECISION OF THE COURT, AND UPON THE FILING OF THE STATEMENT OF DECISION WITH THE CLERK OF THE COURT, OR WITH THE JUDGE IF THERE IS NO CLERK, JUDGMENT MAY BE ENTERED THEREON IN THE SAME MANNER AS IF THE ACTION HAD BEEN TRIED BY THE COURT. ANY DECISION OF THE REFEREE AND/OR JUDGMENT OR OTHER ORDER ENTERED THEREON SHALL BE APPEALABLE TO THE SAME EXTENT AND IN THE SAME MANNER THAT SUCH DECISION, JUDGMENT, OR ORDER WOULD BE APPEALABLE IF RENDERED BY A JUDGE OF THE SUPERIOR COURT IN WHICH VENUE IS PROPER HEREUNDER. THE REFEREE SHALL IN HIS/HER STATEMENT OF DECISION SET FORTH HIS/HER FINDINGS OF FACT AND CONCLUSIONS OF LAW. THE PARTIES INTEND THIS GENERAL REFERENCE AGREEMENT TO BE SPECIFICALLY ENFORCEABLE IN ACCORDANCE WITH THE CODE OF CIVIL PROCEDURE. NOTHING IN THIS PARAGRAPH SHALL PREJUDICE THE RIGHT OF ANY PARTY TO OBTAIN PROVISIONAL RELIEF OR OTHER EQUITABLE REMEDIES FROM A COURT OF COMPETENT JURISDICTION AS SHALL OTHERWISE BE AVAILABLE UNDER THE CODE OF CIVIL PROCEDURE AND/OR APPLICABLE COURT RULES. 31. Exhibits, Schedules, and/or Riders. The following Exhibits, Schedules, and/or Riders are hereby incorporated into this Agreement: Exhibit A -- Legal Description of Land Exhibit B -- List of Due Diligence Items Exhibit C -- Form of Deed Exhibit D -- Form of Assignment of Intangibles Exhibit E -- Reserved Exhibit F -- Form of Tenant Estoppel—Caracol 2 Exhibit G -- Rent Roll Exhibit H -- Form of Assignment of Leases Exhibit I Form of Closing Notification Letter. Exhibit J -- Material Terms of Caracol 2 Lease Amendment. [The remainder of this page is intentionally blank.]
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00534.00229/1340450v3 34 THE PARTIES have executed and delivered this Agreement as of the Effective Date. SELLER: CARACOL PROPERTY OWNER LLC, a Delaware limited liability company By: BWD XXXXXX LLC, a California limited liability company, its Manager By: __________________________________ Name: Xxxx X. Poland Title: Manager PURCHASER: SUPER MICRO COMPUTER, INC., a Delaware corporation By: ________________________ Name: Xxxxxx Xxx Its: SVP of Operations
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00534.00229/1340450v3 35 The undersigned, as Escrow Agent, agrees to hold and disburse all funds received by Escrow Agent in escrow in accordance with the provisions of this Agreement. ESCROW AGENT: First American Title Company By: _____________________________ Name: Title: Xxxxx Xxxxxxx Escrow Officer
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00534.00229/1340450v3 A-1 ACTIVE 693034580v2 Exhibit A Legal Description of Land Real property in the City of San Jose, County of Santa Xxxxx, State of California, described as follows: PARCEL 2, AS SHOWN UPON THAT CERTAIN ENTITLED, "PARCEL MAP BEING A PORTION OF LOT 7 OF CRESCENT FARM SUBDIVISION AND LYING WITHIN THE CITY OF SAN JOSE, CALIFORNIA", WHICH MAP WAS FILED FOR RECORD IN THE OFFICE OF THE RECORDER OF THE COUNTY OF SANTA XXXXX, STATE OF CALIFORNIA, ON SEPTEMBER 14, 1976 IN BOOK 379 OF MAPS, AT PAGE 27. EXCEPTING THEREFROM THAT PORTION OF LAND GRANTED TO THE SANTA XXXXX VALLEY TRANSPORTATION AUTHORITY IN THAT CERTAIN XXXXX DEED RECORDED MAY 03, 2011 AS INSTRUMENT NO. 21163394, SANTA CLARA COUNTY OFFICIAL RECORDS. APN: 000-00-000
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00000.00000/1340450v3 B-1 ACTIVE 693034580v2 Exhibit B List of Due Diligence Items [attached]
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1 All Service Contracts, including property management agreements, and any discounted utility rate agreements with utility companies 2 Real estate tax bills for past 3 tax years and current year, and any pending/previous tax appeals/protests (correspondence, settlement agreement, abatements, etc.) 3 Certificate of Occupancy 4 Phase I Environmental Report 4 Geotechnical Report 5 Natural Hazard Disclosure Report 6 Property physical condition/engineering reports 7 Roof Inspection Reports 7 Elevator Service Contract 8 Fire Sprinkler Reports 9 All "as built" plans, specifications, permits and entitlements for the property 10 Most recent ALTA survey 11 Most recent title report with underlying documents 12 Current rent roll 13 Lease agreements, including (i) amendments, (ii) side letters & modifications, or (iii) letter agreements # Due Diligence Item
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00534.00229/1340450v3 C-1 ACTIVE 693034580v2 Exhibit C Form of Deed RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: AND MAIL TAX STATEMENTS TO: ______________________________________________________________________________ (Space Above For Recorder’s Use) APN: ____________ The undersigned Grantor(s) declare(s): Documentary Transfer tax is $_____and City Transfer tax is $_______ computed on full value of property conveyed, or computed on full value less value of liens and encumbrances remaining at time of sale Unincorporated area: City of ____________ Realty not sold XXXXX DEED FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, [__________], a [__________] (“Grantor”), does hereby GRANT to [__________], a [__________] (“Grantee”), all of that certain real property in the City of San Jose, County of Santa Xxxxx, State of California, as more particularly described in Exhibit “A” attached hereto and made a part hereof, together with the tenements, easements, rights of way and appurtenances belonging or in any way appertaining to the same, and the improvements thereon, subject only to those matters listed on Exhibit “B” attached hereto and made a part hereof. [Signature on the following page.]
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00534.00229/1340450v3 C-2 ACTIVE 693034580v2 IN WITNESS WHEREOF, Grantor has caused this instrument to be executed on this ____ day of ______________, 20__ GRANTOR: CARACOL PROPERTY OWNER LLC, a Delaware limited liability company By: BWD XXXXXX LLC, a California limited liability company, its Manager By: __________________________________ Name: Xxxx X. Poland Title: Manager State of _________________) County of _________________) On _____________________ before me, ______________________________, a Notary Public, personally appeared ____________________________________________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of ______________ that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature ________________ (Seal) A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
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00534.00229/1340450v3 C-3 ACTIVE 693034580v2 Exhibit “A” to Grant Deed
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00534.00229/1340450v3 D-1 ACTIVE 693034580v2 Exhibit D Form of Assignment of Intangibles Assignment of Warranties and Intangibles This Assignment of Warranties and Intangibles is made as of __________________, by and between [________________, a _________] (“Seller”), and between [________________, a ________] (“Purchaser”). For valuable consideration, receipt of which is acknowledged, Seller and Purchaser agree as follows: 1. Assignment. (a) Seller and Purchaser are “Seller” and “Purchaser”, respectively, with respect to that certain Purchase and Sale Agreement date as of _______, 2024 (as amended, the “Purchase Agreement”) with respect to that certain real property located in the City of San Jose, County of Santa Clara, California and more particularly described on Schedule A attached hereto (“Property”). All capitalized terms not otherwise defined herein shall have the meanings ascribed in the Purchase Agreement. (b) Seller hereby assigns and transfers to Purchaser all right, title and interest of Seller in and to (i) all assignable existing warranties and guaranties issued to Seller in connection with the Property or any improvements thereon, and (ii) to the extent assignable, all entitlements, permits, development rights, marks, logos and names related exclusively to the real property and improvements described in preceding clause (i), and all other Intangible Personal Property as defined in Section 1.2 of the Purchase Agreement. 2. As-Is. PURCHASER ACKNOWLEDGES AND AGREES, BY ITS ACCEPTANCE HEREOF, THAT THE ASSIGNED ITEMS ARE CONVEYED “AS IS, WHERE IS” AND IN THEIR PRESENT CONDITION WITH ALL FAULTS, AND THAT SELLER HAS NOT MADE, DOES NOT MAKE AND SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS, WARRANTIES, PROMISES, COVENANTS, AGREEMENTS OR GUARANTIES OF ANY KIND OR CHARACTER WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT OR FUTURE, OF, AS TO, CONCERNING OR WITH RESPECT TO THE NATURE, QUALITY OR CONDITION OF THE ASSIGNED ITEMS, THE INCOME TO BE DERIVED THEREFROM, OR THE ENFORCEABILITY, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OF THE ASSIGNED ITEMS, EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THE PURCHASE AGREEMENT. 3. Further Assurances. Seller and Xxxxxxxxx agree to execute such other documents and perform such other acts as may be reasonably necessary or proper and usual to effect this Assignment.
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00534.00229/1340450v3 D-3 ACTIVE 693034580v2 IN WITNESS WHEREOF, Seller and Xxxxxxxxx have executed this Assignment as of the date first hereinabove written. SELLER: CARACOL PROPERTY OWNER LLC, a Delaware limited liability company By: BWD XXXXXX LLC, a California limited liability company, its Manager By: __________________________ Name: Xxxx X. Poland Title: Manager PURCHASER: __________________________, a ___ By:_______________________________ Name:____________________________ Title:_____________________________
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00534.00229/1340450v3 D-4 ACTIVE 693034580v2 Schedule A Legal Description of Real Property
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00534.00229/1340450v3 E-1 ACTIVE 693034580v2 Exhibit E Reserved
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00534.00229/1340450v3 2 ACTIVE 693034580v2 Exhibit F Form of Tenant Estoppel—Caracol 2 Caracol 2, LLC, a California limited liability company (“Tenant”) hereby certifies to ________________ (“Buyer”), its successors and assigns, and any applicable lender of Buyer, as follows: 1. Tenant is the tenant in possession of a portion of the real property commonly known as 000 X. Xxxxxx Xxxx, Xxx Xxxx, Xxxxxxxxxx (the “Property”) (such portion of the Property being hereinafter referred to as the “Premises”). 2. Tenant (as successor-in-interest to Xxx’x Electronics, Inc.) holds the Premises under a written lease (the “Original Lease”) entered into with Caracol Property Owner, LLC, a Delaware limited liability company (as successor-in-interest to Caracol, Ltd., L.P.) (“Landlord”), dated December 12, 1994, as amended by the following amendments: (a) First Amendment to Lease dated December 1, 1995, (b) Second Amendment to Lease dated December 20, 1995, (c) Third Amendment to Lease dated January 22, 1996, (d) Fourth Amendment to Lease dated February 29, 1996, (e) Fifth Amendment to Lease dated March 29, 1996, (f) Sixth Amendment to Lease dated April 30, 1996, (g) Seventh Amendment to Lease dated May 31, 1996, (h) Notice to Exercise Lease Option dated May 21, 2019, (i) Eighth Amendment to Lease dated December __, 2019, (j) Ninth Amendment to Lease dated August __, 2023, and (k) Tenth Amendment to Lease dated February ___, 2024 (the “Tenth Amendment”) (collectively, the “Lease”), as set forth on Schedule 1 attached hereto. The Lease is in full force and effect and has not been further amended or modified. There are no other agreements between Tenant and the Landlord. 3. The term of the Lease commenced on December 12, 1994, and expires on that date which is twelve (12) months after the date that the deed conveying title to the Property to Buyer or its designee is recorded per the terms of the Tenth Amendment. Tenant’s present rent on the Premises is $1.00 per year. Tenant is not required to pay any so-called triple net charges (i.e., real estate taxes, insurance and common area charges and operating expenses) under the Lease. The rent has been paid through February 9, 2025. No other monthly rent, additional rent or prepaid rent has been paid in advance. There is no security deposit under the Lease. 4. Xxxxxx has accepted possession of the Premises under the Lease, all improvements and construction required to be performed by the Landlord under the Lease have been completed to the satisfaction of Tenant and no money is owed to Tenant for improvements or otherwise under the Lease. 5. Tenant has not assigned the Lease or sublet all or any portion of the Premises. 6. Tenant does not have an option to extend the term of the Lease. Tenant does not have an option, right of first offer, right of first refusal or similar right to lease space in addition to the Premises.
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00534.00229/1340450v3 3 ACTIVE 693034580v2 7. Tenant does not have an option right of first offer, right of first refusal or similar right to purchase the Premises, or have any other interest in the Premises other than the Lease. 8. As of the date of this Certificate, Tenant is not in default in the performance of the Lease and Xxxxxx has not committed any breach of it. 9. To Tenant’s knowledge, Xxxxxxxx is not in default in the performance of the Lease and has not committed any breach of it. 10. Tenant has no claim against Landlord for any deposits. Tenant has no defense, right of set off, or other claim against Landlord or against Xxxxxx’s obligation to pay rent or other charges due under the Lease. 11. Tenant is not a debtor in any bankruptcy case or other insolvency proceeding relating to Tenant. 12. There is no guarantor of the Lease. The foregoing information is accurate and complete. Tenant acknowledges that Buyer, its successors and assigns, and any applicable lender of Buyer, will rely on this Certificate in purchasing such building from Landlord. DATED as of _____________________. TENANT: Caracol 2, LLC, a California limited liability company By: Print Name: Title:
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00534.00229/1340450v3 F-2 ACTIVE 693034580v2 Schedule 1 [Lease]
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00534.00229/1340450v3 G-1 ACTIVE 693034580v2 Exhibit G Rent Roll [attached]
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Re nt R ol l/L ist o f L ea se s 55 0 Ea st B ro ka w R oa d , S an J os e, C A Te na nt Bu ild in g SF O rig in al L ea se Da te C om m en ce m en t/ Ef fe ct iv e Da te Le as e Ex pi ra tio n C ur re nt Re nt p er M on th Ex pe ns es Le as e De po sit N ot es Le as es Su pe r M ic ro C om pu te r, In c. 12 4, 23 0 7/ 14 /2 02 3 9/ 1/ 20 23 8/ 31 /2 02 8 $1 61 ,4 99 IG $1 81 ,7 69 La nd lo rd sh al l h av e th e rig ht to te rm in at e th e le as e ef fe ct iv e as o f t he e nd o f t he tw en ty -fo ur th (2 4t h) M on th o f t he T er m o r a s o f a ny d at e th er ea fte r p ro vi d ed L an d lo rd d el iv er s w rit te n no tic e to T en an t on e hu nd re d e ig ht y (1 80 ) d ay s p rio r t o th e d es ire d E ar ly T er m in at io n D at e. U po n d el iv er y Te na nt sh al l no lo ng er b e ob lig at ed to p ay M on th ly B as e Re nt fo r t he si x (6 ) m on th p er io d p rio r t o th e Ea rly Te rm in at io n D at e, b ut sh al l r em ai n ob li g at ed to p ay S ha re U til ity C os ts a nd to p er fo rm it s m ai nt en an ce an d re pa ir an d o th er o bl ig at io ns . C ar ac ol 2 , L LC 16 9, 67 6 12 /1 2/ 19 94 9/ 1/ 20 23 8/ 31 /2 02 5 $0 IG $0 T en an t s ha ll h av e no ri xx x x x x pt io n to e xt en d th e Le as e be yo nd th e Re vi se d E xp ira tio n D at e. Jo y Pa rk in g, In c. 11 /1 /2 02 3 11 /1 5/ 20 23 10 /1 5/ 20 28 $0 n /a $6 5, 55 8 M on th ly re nt o f $ 65 ,5 58 b eg in s F eb ru ar y 15 , 2 02 4. La nd lo rd sh al l h av e th e rig ht to te rm in at e th e le as e ef fe ct iv e as o f t he e nd o f t he tw en ty -th ird (2 3t h) M on th o f t he T er m o r a s o f a ny d at e th er ea fte r p ro vi d ed L an d lo rd d el iv er s w rit te n no tic e to T en an t s ix (6 ) m on th s p rio r t o th e d es ire d E ar ly T er m in at io n D at e. U po n d el iv er y Te na nt sh al l n o lo ng er b e ob lig at ed to p ay M on th ly B as e Re nt fo r t he si x (6 ) m on th p er io d p rio r t o th e Ea rly T er m in at io n D at e. C le ar C ha nn el O ut d oo r, LL C * 2/ 15 /1 98 5 4/ 1/ 20 21 M on th -to - m on th $3 ,8 47 n /a $0 Ei th er P ar ty m ay te rm in at e le as e up on p ro vi d in g 30 d ay s w rit te n no tic e. Lic en se A gr ee m en ts Re nt -A -F en ce .c om * 9/ 1/ 20 22 9/ 1/ 20 22 M on th -to - m on th $5 ,0 00 n /a $0 Ei th er P ar ty m ay te rm in at e le as e up on p ro vi d in g 30 d ay s w rit te n no tic e. Ha lle P ro pe rti es , L LC * 7/ 13 /2 02 1 7/ 13 /2 02 1 M on th -to - m on th $1 ,5 60 n /a $0 Ei th er P ar ty m ay te rm in at e le as e up on p ro vi d in g 30 d ay s w rit te n no tic e. *L ea se /A gr ee m en t c ur re nt ly w ith C ar ac ol 2 , L LC
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00534.00229/1340450v3 H-1 ACTIVE 693034580v2 Exhibit H Form of Assignment and Assumption of Leases [attached]
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00534.00229/1340450v3 H-2 ACTIVE 693034580v2 ASSIGNMENT AND ASSUMPTION OF LEASES THIS ASSIGNMENT AND ASSUMPTION OF LEASES (“Assignment”), is made as of _____________, by and between _______________________, a ______________ (“Seller”), and __________________ (“Purchaser”). W I T N E S S E T H: For valuable consideration, receipt of which is acknowledged, Xxxxxx and Xxxxxxxxx agree as follows: 1. ASSIGNMENT AND ASSUMPTION. Seller and Purchaser are “Seller” and “Purchaser”, respectively, with respect to that certain Purchase and Sale Agreement dated as of ___________ (as amended, the “Purchase Agreement”) with respect to that certain real property located in the _________ California, and more particularly described in the Purchase Agreement. All capitalized terms not otherwise defined herein shall have the meanings ascribed in the Purchase Agreement. (a) Seller hereby assigns and transfers to Purchaser all right, title and interest of Seller in, to and under the leases (the “Leases”) described in Exhibit A attached hereto and made a part hereof. (b) Purchaser hereby accepts the foregoing assignment, and assumes and agrees to perform all of the covenants and agreements in the Leases to be performed by the landlord thereunder that arise or accrue from and after the date of this Assignment. 2. INDEMNIFICATION. Purchaser agrees to protect, indemnify, defend and hold Seller harmless from and against all claims, obligations, losses, damages, liabilities and expenses (including, without limitation, reasonable attorneys’ fees and costs) that Seller may incur or that may be asserted against Seller arising out of or in any way connected with, directly or indirectly, the landlord’s obligations, duties and liabilities under the Leases arising from and after the date hereof, except as expressly provided in the Purchase Agreement. Seller agrees to protect, indemnify, defend and hold Purchaser harmless from and against all claims, obligations, losses, damages, liabilities and expenses (including, without limitation, reasonable attorneys’ fees and costs) that Purchaser may incur or that may be asserted against Purchaser arising out of or in any way connected with, directly or indirectly, the landlord’s obligations, duties and liabilities under the Leases prior to the date hereof, except as expressly provided in the Purchase Agreement. 3. FURTHER ASSURANCES. Seller and Purchaser each agree to execute and deliver to the other party, upon demand, such further documents, instruments and conveyances, and shall take such further actions as are necessary or desirable to effect this Assignment. 4. SUCCESSORS AND ASSIGNS. This Assignment shall be binding upon and shall inure to the benefit of Seller and Purchaser and their respective personal representatives, heirs, successors and assigns.
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00534.00229/1340450v3 H-5 ACTIVE 693034580v2 EXHIBIT A LIST OF LEASES
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00534.00229/1340450v3 I-1 Exhibit I Form of Closing Notification Letter ________, 20__ Tenant: [Fill in Tenant’s name and address] RE: Sale of [Property address] Dear Ladies and Gentlemen: We are pleased to inform you that, on ________, 20__, [Name of Property] was sold to ________________. As a result your lease and any and all security deposits have been assigned to ______________, whose Federal Employer Identification Number is ________________ (“New Owner”). Please send all sums pursuant to your lease as follows: Additionally, all insurance policies required under the lease must be amended to add _______________ as an additional insured and Certificates of Insurance evidencing this change should be delivered to the above address promptly. Rent is due and payable on the first day of each month in advance. This is the only notice you will receive. Please also note that, in the future, all formal notices which you may desire to give to your new landlord should be addressed as follows: __________________________________. Please note that you should contact your insurance broker and notify them to send to New Owner a revised certificate of insurance replacing the former owner as the additional named insured with that of New Owner as the additional named insured. Should you have any questions or concerns, please feel free to contact <xxxxx>, Property Manager, at: Office: (xxx) xxx-xxxx Cell: (xxx) xxx-xxxx Email:
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00534.00229/1340450v3 J-1 ACTIVE 693034580v2 Exhibit J Material Terms of Caracol 2 Lease Amendment (i) Tenant shall surrender the Premises, improvements, and alterations in AS-IS condition on or before that date which is twelve (12) months from the date on which the deed conveying title to the Property to Buyer from Landlord is recorded (the “Surrender Date”); upon such surrender, the Lease shall terminate; (ii) Tenant may, but shall not be required to, remove personal property or alterations from the Premises; (iii) Tenant shall have the right but not the obligation to remove the two Kohler generators currently servicing the server rooms in the Premises; (vi) Tenant shall not be required to reimburse Landlord for any costs incurred by Landlord in removing personal property from or alterations of the Premises after Tenant’s surrender of the Premises; (v) in the event of any damage to or destruction of the Premises during the term of the Lease, neither Landlord nor Tenant shall have any obligation to repair or reconstruct the Premises; and (vi) if Tenant fails to vacate the Premises on or before the Surrender Date in the condition required hereunder, then Tenant shall be a tenant at sufferance, and, in addition to all other remedies to which Landlord may be entitled for such holding over, including consequential damages for delay in Landlord’s development plans resulting therefrom, Minimum Monthly Rent shall be increased to $100,000 per month, and Tenant shall otherwise continue to be subject to all of the terms and conditions of the Lease.