California-Sunnyvale-1345 and 1347 Crossman and 1330 and 1350 Geneva Agreement of Sale - TRW Inc., ESL Inc. and Network Appliance Inc.
THIS AGREEMENT OF SALE (this "Agreement") is made as of this _____ day of
November 1999, by and between TRW Inc., an Ohio corporation and ESL
Incorporated, a California corporation ("Sellers") and Network Appliance Inc., a
California corporation ("Purchaser") and/or its assignee.
RECITALS:
A. Sellers are the owners of certain parcels of land situated in Santa
Clara County, California consisting of 27.848 acres of land described
as Santa Clara County, California APN #110-42.2.6.7.8 having civic
addresses of 1345 and 1347 Crossman and 1330 and 1350 Geneva,
Sunnyvale, California, ("the Property"), as more particularly shown and
labeled on Exhibit "A". The Sellers' property is divided as follows:
ESL Inc. offers approximately 8.11 acres, TRW Inc. offers approximately
19.738 acres.
B. Sellers have agreed to sell to Purchaser and Purchaser has agreed to
purchase from Sellers the Property, subject to and on the terms and
conditions hereafter set forth. The Purchaser at some time in the
future intends to demolish the buildings on the land.
NOW, THEREFORE, for and in consideration of the mutual promises of the parties
and of other good and valuable consideration, receipt and sufficiency of which
is hereby acknowledged, the parties intending to be legally bound agree as
follows:
1. INCORPORATION BY REFERENCE
The recitals hereinabove set forth together with all exhibits and
schedules attached to this Agreement are hereby incorporated by reference as if
more fully set forth in the body of this Agreement.
2. THE PROPERTY
Sellers agree to sell, and Purchaser agrees to buy, the Property. As
used in this Agreement, the term "Property" includes (i) the Land; (ii) all
easements, hereditaments, and appurtenances presently belonging to or inuring to
the benefit of or pertaining to the Land or to be created pursuant to this
Agreement; (iii) all right, title and interest of Sellers in all transferable
warranties, plans and specifications; (iv) all licenses, permits, certificates
of occupancy issued to Seller by Federal, state or local municipal authorities
relating to the use maintenance, occupancy or operation of the Property.
3. PURCHASE PRICE AND METHOD OF PAYMENT
The Purchase Price for the Property shall be Sixty Million Dollars,
($60,000,000). The Purchase Price, (plus or minus prorations) shall be paid in
the form of a wire transfer of good funds on the Date of Closing (as hereafter
defined). The Purchaser at closing shall be entitled to a credit against the
Purchase Price for the Deposit paid pursuant to Paragraph 4 of this Agreement.
The purchase price for the ESL Incorporated property will be Seventeen Million,
Four Hundred Seventy One Thousand, Two Hundred Thirty Dollars, ($17,471,230.00)
and the
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purchase price for the TRW Inc. property will be Forty Two Million, Five Hundred
Twenty Eight Thousand, Seven Hundred Seventy Dollars, ($42,528,770.00).
4. DEPOSIT
Within five (5) business days of the Effective Date of this Agreement
(as hereafter defined in Paragraph 26 (k)) Purchaser shall deliver to First
American Title - San Jose, CA. ("Escrow Agent/Title Company") a deposit in the
amount of Three Million Dollars ($3,000,000) in the form of a check which shall
be promptly deposited by Escrow Agent into a separately designated interest
bearing escrow account at a federally insured banking institution located in the
State of California. The Deposit and all interest earned thereon shall be
non-refundable except as otherwise expressly provided in this Agreement.
Interest on the Deposit shall accrue to the benefit of Purchaser or to Sellers
in the event of a forfeiture of the Deposit, pursuant to the terms of this
Agreement.
5. FEASIBILITY STUDY PERIOD
Purchaser shall have thirty (30) days after the later of: (i) the
Effective Date hereof, or (ii) the date Seller provides Purchaser with copies of
the documents described in Section 6 of this Agreement (the "Feasibility
Period") to, at its option, cause engineering and/or feasibility studies to be
conducted on said Property, in order to determine in Purchaser's sole discretion
whether the Property is suitable for its intended purpose; provided, however,
Seller and Purchaser agree that the Feasibility Period will end no later than
5:00pm on December 13, 1999. Purchaser shall have the right at its sole
discretion within said Feasibility Period to terminate this Agreement by written
notice to Sellers, and to forthwith receive a refund of its Deposit to Sellers
with accrued interest thereon and all parties shall be relieved of further
liability hereunder except for the indemnity obligations set forth below. During
said Feasibility Period, consistent with security considerations, Purchaser
and/or its agents shall have the right of access to the Property to conduct
site, structural and environmental tests and/or mechanical inspections of the
Property. Purchaser or its agents shall be entitled during normal business hours
and with at least twenty-four (24) hours of advance notification to access the
Property to insure proper inspection and completion of the feasibility studies
hereunder. Purchaser shall give Sellers at least twenty-four (24) hours of
advance notice of Purchaser's intended entry, including the name of Purchaser's
consultants, if applicable, and a description of any tests and inspections to be
performed on the Property. Sellers shall have the right to disapprove of
Purchaser's consultants and/or the methods of the proposed tests and
inspections, in which case Purchaser may propose alternative consultants and/or
testing methods or terminate this Agreement; provided, however, Seller
acknowledges that Purchaser may perform Phase II environmental testing on the
Property. Purchaser shall provide Sellers with copies of any assessments,
reports or test results obtained by Purchaser in connection with such tests and
inspections. Until Escrow closes, Purchaser shall keep confidential any
information regarding the Property contained in such reports and shall not
disclose such information to any third party (other than consultants, attorneys,
creditors, lenders, partners, members, officers, employees agents, accounts or
exchange facilities engaged to review such reports) or agreed to by the parties
hereto, except as required by law or court order. In the event this Agreement is
terminated, Purchaser shall repair any damage resulting from such inspection.
Purchaser agrees to indemnify and hold Sellers harmless from any loss, damage,
cost or expense, including reasonable attorneys fees, occasioned by any acts of
Purchaser or its agents
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while on the Property conducting any feasibility studies. The aforesaid
indemnification shall survive closing or any earlier termination of this
Agreement.
6. SELLERS' STUDIES AND EXAMINATION OF DOCUMENTS
Sellers shall deliver to Purchaser within five (5) days of the
Effective Date of this Agreement copies of all material governmental reports,
and notices, environmental reports, soil tests, building plans, surveys,
engineering reports, leases and any other documents relating to the property in
Seller's possession or under Seller's control.
At all reasonable times subsequent to ratification hereof and with
reasonable advance notice, up to and including the Closing Date, Sellers shall
(a) make available to Purchaser, its counsel, contractors, agents or employees
for examination at all reasonable times all plans, surveys, documents and other
writings with respect to the Property in Sellers' possession or control; (b)
disclose and instruct its counsel and corporate officers and/or partners to
disclose to Purchaser, its counsel and/or accountants all information pertaining
to the Property which may be requested by Purchaser in writing hereunder; (c)
afford any and all representatives of Purchaser reasonable access to the
Property upon at least twenty-four (24) hours in advance notice for the right to
conduct a complete inspection thereof, provided however, Purchaser shall not be
granted access to attorney-client privileged materials; and (d) Sellers shall
promptly give to Purchaser copies of any written notices which Sellers receive
relating to the Property.
7. LEASE-BACK AGREEMENT
Prior to the expiration of the feasibility period, Buyer agrees to
enter into a lease agreement (the "Leases") with the Sellers for the buildings.
The term of the Leases shall be
A. 1345 Crossman - From close of escrow to December 31, 2000;
B. 1330 Geneva - From close of escrow to June 30, 2002;
C. 1347 Crossman - From close of escrow to June 30, 2001;
D. 1350 Geneva - From close of escrow to June 30, 2002.
Rent for the leases shall be $1.15/SF/Mo. All operating expenses associated with
the property including but not limited to Real Estate taxes, landscape, parking
lot maintenance, janitorial, general building maintenance and insurance will be
paid for or performed by Sellers.
The lease agreement(s) will be based upon the lease attached as Exhibit
"B". Seller and Purchaser will agree on the particulars of the lease within five
(5) business days of the Effective Date.
8. TITLE
(a) As a condition to Closing, title to the Property at Closing
shall be conveyed to Purchaser by grant deed subject only to the Permitted
Exceptions (as hereinafter defined). The term "Permitted Exceptions" shall mean
(i) the lien of real estate taxes not yet due and payable; (ii) all matters
revealed in the Title Commitment obtained by Purchaser pursuant to subparagraph
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(b) hereof or of record as of such date (excluding mortgage, deeds of trust or
other monetary liens encumbering the Property) and approved in writing by
Purchaser; (iii) all matters disclosed by a survey which are approved by
Purchaser, if any; (iv) all building, zoning, and other state, county or federal
laws, codes and regulations (whether existing or proposed) affecting the
Property; and (v) any title exception created directly or indirectly by any act
or omission of Purchaser or its representatives, agents, employees or invitees.
(b) Purchaser shall promptly obtain from a reputable title insurance
company of its choice licensed to do business in the State of California (the
"Title Company") a commitment to issue an ALTA title policy covering the
Property and the improvements thereon, if any, which may state that it is
subject to any matters that are disclosed by a survey of the Property ordered by
Purchaser (the "Title Commitment"), together with true copies of all documents
evidencing matters of record shown as exceptions to title thereon. Purchaser
shall have the right to object, in its sole and absolute discretion, to any
exceptions contained in the Title Commitment by giving written notice to Sellers
and the Company prior to the expiration of the Feasibility Period stating the
matters to which Purchaser disapproves and the reasons therefore. If Purchaser
fails timely to provide such written objection, then Purchaser shall
conclusively be deemed to have disapproved all matters affecting title to the
Property and this Agreement shall terminate and the Deposit, together with all
interest thereon shall be promptly returned to Purchaser.
9. CLOSING
Provided Purchaser does not first terminate this Agreement pursuant to
the provisions hereof, and the conditions precedent to Purchaser's obligation to
close have been satisfied or waived by Purchaser, Sellers and Purchaser agree to
proceed to full and final closing on the Property on a date selected by
Purchaser and designated in writing to Sellers at least two (2) days in advance
thereof which date shall occur no later than thirty (30) days after the end of
the Feasibility Period (the "Closing Date" or "Date of Closing"). With respect
to all time periods herein contained, time shall be of the essence. In no event
shall the Closing take place after December 17,1999.
10. REPRESENTATIONS AND WARRANTIES
(a) Sellers represent and warrant to Purchaser as of the Effective
Date hereof that:
(i) Sellers are corporations duly organized, validly
existing and in good standing under the laws of the
state of their incorporation, are qualified to do
business in and are in good standing in the State of
California and have duly authorized the execution and
performance of this Agreement and the transactions
contemplated herein.
(ii) The persons executing this Agreement on behalf of
Sellers represent and warrant to Purchaser in their
individual capacities that they have the authority to
enter into this Agreement and to bind Sellers in
accordance with its terms without obtaining any
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further approvals or consents.
(iii) Sellers have the right, power and authority to execute
this Agreement and all other instruments and documents
contemplated hereby and to perform any and all acts
necessary or desirable to consummate the transactions
contemplated hereby. The entering into this Agreement
does not, and the consummation of the acts contemplated
by this Agreement shall not, violate any agreements,
documents or instruments to which Sellers are a party
or by which it is bound, or any law, governmental order
or decree to which Sellers are subject.
(iv) There are no tenants or other parties in possession of
any part of the Property, nor are there other parties
who have a right to possession of or title to any part
of the Property, except as set forth in Exhibit "C".
(v) There are no licenses or contracts of any nature
(including broker or commission fee arrangements)
affecting or relating to the Property, except as set
forth in Exhibit "D".
(vi) There are no actions, suits pending or threatened
condemnation or similar proceeding affecting any part
of the Property.
(vii) There are no actions, suits, proceedings or claims
affecting any part of the Property, or affecting
Sellers with respect to the ownership, occupancy, use
or operation of any part of the Property, pending or
threatened in or before any court, agency, commission,
or board.
(viii) Sellers have received no written notice from
appropriate governmental authorities regarding, and
Sellers have no knowledge of, any violation of
applicable environmental, health, fire, building,
safety or planning or zoning laws or ordinances.
(ix) No petition in bankruptcy (voluntary or otherwise),
assignment for the benefit of creditors, or petition
seeking reorganization or arrangement or over action
under Federal or State bankruptcy laws is pending or
threatened against or contemplated by Sellers.
(x) Sellers have never used the Property for storage,
handling, manufacturing, discharge or disposal of
hazardous materials or for industrial purposes, except
for the storage, handling and use of reasonable
quantities of hazardous materials used in the research
and development of hardware products in compliance with
all applicable laws, nor does Sellers have actual
knowledge of a release of hazardous materials by a
third party.
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(xi) Neither Sellers or any of the parties comprising
Sellers are a "foreign person" within the meaning of
the Foreign Investment in Real Property Tax Act, as
amended "FIRPTA". Sellers are corporation(s) which
maintain offices in the State of California, and will
not disburse any proceeds due Sellers upon the Close of
Escrow to an address outside the boundaries of the
State of California, and will not use a financial
intermediary (as defined in California Revenue and
Taxation Code Section 18805(d)) for the receipt of
proceeds from this transaction. At the time of closing
the Sellers shall execute such instruments,
certifications and/or affidavits as Purchaser or its
title insurance company may deem necessary in order to
comply with FIRPTA or other tax related disclosure and
reporting requirements. Sellers' tax identification
numbers set forth on the signature page of this
Agreement are correct.
(xii) Sellers have not received any notice, and have no
actual knowledge, that the Property is in violation of
any federal, state or local ordinance, law, rule,
regulations order or requirement relating to Hazardous
Materials. For purposes of this Agreement "Hazardous
Materials" shall mean any "hazardous waste" as defined
by the Resource Conservation and Recovery Act of 1976,
as amended from time to time, and regulations
promulgated thereunder; any "hazardous substance" as
defined by the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended from
time to time, and regulations promulgated thereunder;
any substance the presence of which on the Property is
prohibited by any law similar to those set forth in
this subparagraph, including the Clean Water Act (33
U.S.C. Sections 466 et seq.), ------- the Safe Drinking
Water Act (14 U.S.C. Sections 1401-1450), the Hazardous
Materials Transportation Act (49 U.S.C. Sections 1801
et seq.), the Toxic ------- Substance Control Act (15
U.S.C. Sections 2601-1629), the California Hazardous
Waste Control Law (California Health and Safety Code
Sections 25100-25600), and the Porter-Cologne Water
Quality Control Act (California Health and Safety Code
Sections 13000 et seq.); and any toxic or hazardous
substances or ------- materials, whether products or
wastes, including, without limitation, asbestos or
PCBs. Hazardous Materials shall also include those
asbestos-containing materials defined and described in
Environmental Protection Agency Report No. 56/5085-024
(June, 1985) or any related successor report or other
applicable government regulations defining or
describing such asbestos-containing materials.
(xiii) Except as set forth in Exhibit "E", at the Closing
Date, there will
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be no outstanding contracts made by Sellers for the
construction or repair of any Improvements to the
Property that have not been fully paid for and Sellers
shall cause to be discharged all mechanics' or
materialmen's liens arising from any labor or materials
furnished to the Property at Sellers' request prior to
closing.
(xiv) Prior to the Closing Date, Sellers shall not, without
the prior written consent of Purchaser, enter into any
contract with respect to the Property that will survive
Closing.
(xv) The existing insurance policies, or equivalent
coverage, shall remain continuously in force through
the Date of Closing.
(xvi) Prior to the Closing Date, the Sellers: (i) shall not
amend or terminate any agreement affecting to or
relating to the Property without the prior written
consent of Purchaser; (ii) shall maintain all insurance
coverage carried by Sellers with respect to the
Property as of the date hereof; (iii) shall continue to
maintain the Property in substantially the same manner
in which Seller is maintaining the Property as of the
date hereof; (iv) shall not create or suffer to exist
any easements, liens, deeds of trust or other security
interests in the Property; and (v) shall pay before
delinquency all taxes and assessments levied, imposed
or assessed against the Property.
(xvii) To Sellers knowledge the Property is connected to and
serviced by adequate water, sewage disposal, gas,
electricity and telephone facilities in accordance with
all legal requirements, and to meet the requirements of
normal usage thereof. All such utilities either enter
the Property through adjoining public streets or, if
they pass through an adjoining private parcel, they do
so in accordance with valid public easements or valid
and perpetual private easements; none of the easements,
covenants or restrictions contained in any instruments
of record affecting the Property has been violated; and
the continued operation and maintenance of the Property
for the purposes for which it is currently being
operated and maintained will not constitute a violation
thereof. To the best of the Sellers' knowledge, there
are no assessments or contemplated assessments against
the Property with respect to such utility services, any
contemplated or intended public improvements or
otherwise, except as disclosed by the public records of
the county recorder's office of the county in which the
Property is located.
(xviii) To Sellers knowledge all due diligence materials and
other information which Sellers have provided to
Purchaser concerning the Property, is accurate and
complete and does not contain any
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untrue statement of material fact nor does it omit to
state any material fact necessary to make the
statements contained therein not misleading.
(xix) To Sellers knowledge the Property, and each part
thereof, is in good condition and repair and free from
any defects which impair the Sellers' use of the
Property, including without limitation, erosion,
drainage or soil problems and physical or mechanical
defects which impair the Sellers' use of the Property.
Without limitation of the foregoing, there are no
defects or deficiencies which impair the Sellers' use
of the Property in the heating, air conditioning,
plumbing and other mechanical and electrical apparatus
and appliances located on the Property, nor any defects
which impair the Sellers' use of the Property in the
roof, windows, exterior walls or structural components
of the improvements on the Property, and there are no
leaks in the roof or windows which impair the Sellers'
use of the Property.
(xx) Sellers are not in default of any of their obligations
or liabilities pertaining to the Property; nor is there
any state of facts or circumstances or condition or
event which, after notice or lapse of time or both,
would constitute or result in any such default.
Except as specifically set forth in this Agreement, Sellers disclaim
the making of any representations or warranties, express or implied, regarding
the Property or matters affecting the Property, including the physical condition
of the Property; title to or the boundaries of the Property, pest control
matters; soil condition, hazardous wastes, toxic substances or other
environmental matters; compliance with building, health, safety, land use and
zoning laws, regulations and orders; structural and other engineering
characteristics; traffic patterns; leasing status; economic performance; value
and all other information pertaining to the Property. Purchaser acknowledges and
agrees that Purchaser enters into this Agreement with the intention of making
and relying upon its own investigation and evaluation of the value of the
Property and of its physical, environmental, economic and legal condition, and
that any information and materials (including, without limitation, any pro forma
operating statements, market analyses, demographic studies and the like)
relating to the Property are provided without representation or warranty,
express or implied, to Purchaser to facilitate Purchaser's timely review, study
and evaluation of the Property and not as a substitute for Purchaser's own
investigation and evaluation of the value of the Property and of its physical,
environmental, economic and legal condition.
Purchaser acknowledges and agrees that, except to the extent, if any,
specifically provided in this Agreement, no employee of Sellers, no agents of
Sellers nor anyone acting or claiming to act on Sellers' behalf concerning the
Property is authorized or empowered to make any representations or warranties on
behalf of Sellers concerning the Property. Purchaser acknowledges and agrees
that Purchaser will rely solely upon the advice of its own accounting, tax,
legal, architectural, appraisal, engineering, environmental, property management
and other
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advisors.
Except for matters arising from or attributable to a material finding
known to Sellers and not disclosed to Buyer, Purchaser is purchasing the
Property in its "as is" condition on the Closing Date and will assume the risk
that adverse physical, environmental, economic or legal conditions may not have
been revealed by its inquiries and investigations. As used herein, "material"
shall mean all substantive findings that would influence or tend to influence
Buyer's decision to acquire the Property.
Notwithstanding anything to the contrary provided herein, Purchaser
shall have no right to pursue any action against Sellers pursuant to this
paragraph 10(a) as a result of any of Sellers' representations and warranties
being untrue, inaccurate or incorrect if Purchaser had actual knowledge at the
time of closing that such representation or warranty was untrue, inaccurate or
incorrect at the time of closing and Purchaser nevertheless elected to purchase
the Property and close escrow hereunder.
(b) Purchaser represents and warrants to Sellers as of the Effective
Date hereof and as of the Closing Date that:
(i) The execution and delivery of this Agreement by Purchaser
and the consummation of the transactions contemplated hereby
will not result in the breach of any terms or conditions of,
or constitute a default under any contract, agreement,
commitment, indenture, mortgage, note, bond, license or
other instrument or obligation to which Purchaser is now a
party or by which the Purchaser may be bound or affected.
(ii) Purchaser has taken all actions and steps necessary to
permit its execution hereof and at Closing will have taken
all necessary action to permit its performance of its
obligations hereunder.
(iii) This Agreement is legally binding upon and enforceable
against Purchaser in accordance with its terms.
(iv) Purchaser is a California corporation, duly organized,
validly existing and in good standing under the law of the
state of its incorporation, has qualified to do business in
and is in good standing in the State of California and has
duly authorized the execution and performance of this
Agreement and the transactions contemplated herein.
(v) The persons executing this Agreement on behalf of Purchaser
represent and warrant to Sellers in their individual
capacities that they have the authority to enter into this
Agreement and to bind Purchaser in accordance with its terms
without obtaining any further approvals or consents.
(vi) Purchaser has the right, power and authority to execute this
Agreement and all other instruments and documents
contemplated hereby and to
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perform any and all acts necessary or desirable to
consummate the transactions contemplated hereby. The
entering into this Agreement does not, and the consummation
of the acts contemplated by this Agreement shall not,
violate any law, governmental regulation, order or decree to
which Purchaser is subject.
11. COSTS AND PRORATIONS
(a) Utilities and real estate taxes shall be pro-rated as of the
date leases terminate. To the extent practicable Sellers shall have all utility
meters read to the date prior to termination and all applicable utilities shall
be transferred into the name of Purchaser as of that date. The parties agree
that items not susceptible to exact proration may be reprorated for a period of
ninety (90) days following the lease terminations.
(b) Sellers shall pay the costs for a CLTA Title policy, the Santa
Clara County documentary transfer tax and the escrow fees. All other costs and
charges of the escrow for the sale not otherwise provided for in this Paragraph
11(b) or elsewhere in this Agreement shall be allocated in accordance with the
closing customs for Santa Clara County, California.
12. DAMAGE, CONDEMNATION OR DESTRUCTION OF PROPERTY PENDING CLOSING
Risk of loss shall remain with Sellers until the recordation of the
deed of conveyance. Sellers shall promptly notify Purchaser of any damage or
destruction of all or any part of the Property or any condemnation or taking by
eminent domain of any portions of the Property. In the event the damage or
destruction exceeds Five Million and No/100 Dollars ($5,000,000.00). Purchaser
shall have the right to terminate this Agreement without liability on its part
and receive a refund of the Deposit, together with accrued interest thereon by
so notifying Sellers within fifteen (15) days of Sellers notification to
Purchaser of said condemnation, damages or destruction. If Purchaser elects to
proceed with Closing, Sellers shall assign to Purchaser all condemnation awards
or insurance proceeds payable to Sellers on account of such condemnation, damage
or destruction, together with any deductibles attributable thereto, and the
Purchase Price shall be equitably abated to the extent the awards and/or
proceeds together with any deductibles attributable thereto, are less than the
cost of repairing the Property incurred by Purchaser.
13. POSSESSION
Sellers agree to deliver possession of the Property to Purchaser free
of all tenancies or occupancy except for the leases provided for in Paragraph 7.
14. DELIVERIES AT CLOSING
(a) At the Closing, Sellers shall deliver the following to
Purchaser:
(i) a Grant Deed dated as of the Closing Date conveying fee
simple title to the Property to Purchaser, subject only
to the Permitted
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Exceptions;
(ii) to the extent available, plans and specifications for
the Property;
(iii) to the extent they are then in Sellers possession and
not posted at the Property, all Permits issued for or
with respect to the Property by governmental and
quasi-governmental authorities having jurisdiction;
(iv) an affidavit setting forth that all of the
representations and warranties made by Sellers as set
forth in Paragraph 10 (a) (i), (ii), (iii) (iv), (v),
(vi), (vii), (viii), (ix), (xi), (xii), (xiii), xvii),
(xviii), (xvix), and (xx)of this Agreement are correct
as of the Closing Date;
(v) a FIRPTA Affidavit;
(vi) a California Withholding Exemption Certificate (Form
590RE) certifying that Sellers have a permanent place of
business in California or are qualified to do business
in California;
(vii) any other documents required by this Agreement to be
delivered by Sellers.
(viii) leases based on the model in Exhibit B.
(ix) an assignment document assigning all of Seller's
interest in any intangible property.
(b) At the Closing, Purchaser shall deliver the following to
Sellers:
(i) the full Purchase Price by wire transfer as adjusted
for apportionment's, and less any amounts otherwise
properly deducted pursuant to this Agreement;
(ii) any other documents required by this Agreement to be
delivered by Purchaser including such certifications,
resolutions, affidavits or other documents as are
required to be satisfied with respect to Purchaser's
authority to purchase the Property as contemplated
under this Agreement;
(iii) leases based on the model in Exhibit B.
15. CONDITIONS PRECEDENT TO PURCHASER'S OBLIGATIONS
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The obligation of Purchaser to purchase the Property and to perform the
other covenants and obligations to be performed by it on the Closing Date shall
be subject to the following conditions (all or any of which may be waived, in
whole or in part, by Purchaser):
(a) Sellers shall have delivered all items required under this
Agreement by Closing.
(b) The representations, warranties and covenants herein by Sellers
shall be correct, complete and fully performed on and as of the Closing Date
with the same force and effect, as though such representations, and warranties
had been made on and as of such Closing Date.
(c) On the Closing Date, no part of the Property shall previously have
been acquired, by authority of any governmental agency in the exercise of its
power of eminent domain or by private purchase in lieu thereof, nor on the
Closing Date shall there be written notice of any such imminent acquisition or
purchase of a portion of the Property which is more than de minimus.
(d) On the Closing Date, the Title Company shall be committed to issue
to Purchaser an ALTA title policy in the amount of the Purchase Price insuring
Purchaser's fee title to the Property subject only to the Permitted Exceptions.
(e) No proceeding shall be pending to change, redesignate or redefine
the zoning classification of the Property so as to restrict or prevent the
present and continued use of the Property which was not previously known to or
discoverable by Purchaser during the Feasibility Period.
(f) The Sellers shall have performed all of the covenants and
agreements herein that the Sellers are required to perform on or before the
Close of Escrow.
(g) Buyer's inspection and approval of a survey of the Property.
Upon failure of any of the conditions set forth in this Paragraph, Purchaser
may, at its option, terminate this Agreement (whereupon the Deposit and any
interest thereon will be returned to Purchaser), waive such failure or, if such
failure constitutes a breach of this Agreement, pursue such remedies as are
available to Purchaser under Paragraph 18 of this Agreement.
16. NOTICES
Any notice required or permitted to be given under this Agreement shall
be sent by hand delivery, certified mail, return receipt requested or by Emery
Air Freight, Airborne Express, Federal Express, or other reputable overnight air
courier service, in either case addressed to the parties as follows.
If to Sellers: TRW Inc.
12011 Sunset Hills Road
Reston, Virginia 20190
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Marsha A. Klontz, Esquire
Telephone: 703-345-7070
Fax: 703-345-7075
And to: Mr. Bill Gibbs
TRW Electromagnetic Systems
1330 Geneva Drive
P.O. Box 3510
Sunnyvale, CA 94088-3510
Telephone: (408) 743-6020
Fax: (408) 743-4259
If to Buyer: Network Appliance Inc.
c/o Thom Bryant
495 East Java Drive
Sunnyvale, CA 94089
or in each case to such other address as any party hereto may from time to time
designate to the other parties hereto by notice given pursuant to this
Paragraph.
17. BROKERAGE
Seller shall be responsible for any commission payable to its agents
and Purchaser will be responsible for any commission payable to its agents.
Sellers and Purchaser represent and warrant each to the other that such party
has had no contact or dealings regarding the Property, or any communication in
connection with the subject matter of this transaction, through any real estate
broker of other person who can claim a right to a commission or finder's fee in
connection with the sale contemplated herein, except for CPS, the Commercial
Property Services Company and WWM, Weber Wood Medinger. If any other broker or
finder makes a claim for a commission or finder's fee based upon any such
contact, dealings or communication, the party through whom the broker or finder
makes its claim shall be responsible for said commission and shall indemnify and
save harmless the other from and against all liabilities and expenses (including
without limitation, counsel fees and disbursements in defending against such
liabilities), which may accrue by reason of, on account of, or growing out of or
resulting from breach by such party of such warranty and representation. This
indemnification shall survive closing or any earlier termination of this
Agreement.
18. TERMINATION, DEFAULT AND REMEDIES
(a) If (i) any of the representations and warranties made by the
Sellers in Paragraph 10 shall be inaccurate or incorrect, (ii) the Sellers shall
fail to perform any of the material covenants or agreements to be performed by
it under this Agreement on or before the Date of Closing or (iii) the Purchaser
shall be relieved of its obligations under this Agreement by operation of
Paragraph 15 then, in any such event, the Purchaser shall have the right to
terminate this Agreement by giving written notice to the Sellers and the Escrow
Agent. The Escrow Agent
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shall return the Deposit together with accrued interest to the Purchaser, and
neither party shall have any further liability to the other under this
Agreement. If the Purchaser would have the right to terminate this Agreement by
reason of an event described in clauses (i) or (ii), above, the Purchaser, in
lieu of terminating this Agreement, shall have the right to pursue the remedy of
specific performance. Purchaser hereby waives any right to seek monetary damages
for any incidental or consequential damages allegedly caused by Sellers breach
of this Agreement, except for Purchaser' reasonable out-of-pocket costs
associated with the negotiation of this Agreement and the performance of
Purchaser's due diligence review of the Property. In any event, Purchaser shall
not be required to waive any rights to seek monetary damages for any breach of
this Agreement by Sellers if the remedy of specific performance is not available
or meaningful due to the actions of Sellers..
(b) IN THE EVENT THE SALE OF THE PROPERTY IS NOT CONSUMMATED
BECAUSE OF A DEFAULT UNDER THIS AGREEMENT ON THE PART OF PURCHASER, SELLERS
SHALL BE ENTITLED TO RETAIN THE DEPOSIT, TOGETHER WITH ANY INTEREST EARNED
THEREON, AS LIQUIDATED DAMAGES AS ITS SOLE REMEDY IF THIS AGREEMENT IS
TERMINATED AS A RESULT OF SUCH DEFAULT. THE PARTIES HAVE AGREED THAT SELLERS'
ACTUAL DAMAGES, IN THE EVENT OF A DEFAULT BY PURCHASER, WOULD BE EXTREMELY
DIFFICULT OR IMPRACTICABLE TO DETERMINE. THEREFORE, BY PLACING THEIR INITIALS
BELOW, THE PARTIES ACKNOWLEDGE THAT THE AMOUNT OF THE DEPOSIT HAS BEEN AGREED
UPON, AFTER NEGOTIATION, AS THE PARTIES' REASONABLE ESTIMATE OF SELLERS' DAMAGES
AND AS SELLERS' EXCLUSIVE REMEDY AGAINST PURCHASER, AT LAW OR IN EQUITY, IN THE
EVENT THAT THIS TRANSACTION DOES NOT CLOSE DUE TO A DEFAULT UNDER THIS AGREEMENT
ON THE PART OF PURCHASER. THE FOREGOING PROVISIONS SHALL NOT, HOWEVER, LIMIT IN
ANY WAY SELLERS' ENFORCEMENT OF THE INDEMNITIES PROVIDED IN PARAGRAPHS 5 AND 17
WHICH SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.
INITIALS: Sellers: ________________________ Purchaser: _______________________
19. OBLIGATIONS OF SELLERS PENDING CLOSING
(a) Between the Effective Date hereof and the Closing Date, Sellers
will cause the Property to be maintained in its present order and condition,
normal wear and tear excepted. Sellers' further covenants to keep in full force
and effect until Closing casualty insurance insuring the Property for its full
replacement cost. In the event of damage or destruction as set forth in
Paragraph 12 of this Agreement the provisions of Paragraph 12 will apply.
(b) Sellers shall notify Purchaser promptly, and Purchaser shall
notify Sellers promptly, if either receives notice of any occurrence prior to
the Closing Date which would make its representations, warranties or covenants
contained herein not true in any material respect.
(c) Through the Closing Date, Sellers will maintain the existing
insurance policies, or equivalent coverage, with the same limits of coverage now
carried with respect to
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the Property.
(d) Sellers shall not withdraw, settle or otherwise compromise any
protest or reduction proceeding affecting real estate taxes assessed against the
Property for any fiscal period in which the closing is to occur or any
subsequent fiscal period without the prior written consent of Purchaser, which
consent shall not be unreasonably withheld or delayed. Real estate tax refunds
and credits received after the Closing Date which are attributable to the fiscal
tax year during which the Closing Date occurs shall be apportioned between
Sellers and Purchaser after deducting the expenses of collection thereof, which
obligation shall survive the closing.
20. SURVIVAL
Each of the representations, warranties, covenants or other obligations
set forth in this Agreement shall survive the Closing Date but shall fully cease
and expire with respect to any claims not raised by the aggrieved party, by
written notice to the other, within eighteen (18) months after the Closing Date.
21. LAND SALES DISCLOSURE ACT
Sellers and Buyer intend that this sale of land comply with the
exemption requirements of the Interstate Land Sales Full Disclosure act, as
stated in 15 U.S.C. 1702(a)(8) and confirm that the conditions set forth in such
section are met.
22. MUTUAL COVENANTS
Absent an express statement to the contrary, wherever any consent or
approval of a party is required hereunder, such party shall not unreasonably
withhold such consent or approval.
23. REDEVELOPMENT COOPERATION
Sellers' shall provide reasonable cooperation to Purchaser in
connection with Purchaser's efforts to obtain governmental, quasi-governmental
and third-party approvals, as Purchaser may deem appropriate to enable Purchaser
to develop the Property, construct improvements thereon and operate its business
from the Property; provided, however that Purchaser shall reimburse any
reasonable cost of Sellers' cooperation, to the extent such cost has previously
been approved in writing by Purchaser.
24. CONFIDENTIALITY
Except for disclosures as may be required by law or court order, or
disclosures to the parties' creditors, lenders, partners, members, officers,
employees, agents, consultants, attorneys, accountants and exchange facilities,
or disclosures agreed to by the parties hereto in writing Sellers and Purchaser
agree that they shall keep in confidence this Agreement and each and every term
and provision hereof, including, without limitation, the Purchase Price.
25. MISCELLANEOUS PROVISIONS
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(a) Binding Effect. This Agreement shall, be binding upon and inure
to the benefit of the parties hereto, and their respective heirs, devisees,
personal representative, successors and assigns.
(b) Waiver, Modification. Failure by Purchaser or Sellers to insist
upon or enforce any of its rights hereto shall not constitute a waiver thereof.
(c) Assignment. This Agreement may not be assigned by either
Purchaser or Seller without the prior written consent of the other party.
Notwithstanding the foregoing , Purchaser may assign this Agreement to an entity
in connection with a synthetic lease transaction without the need for the prior
consent of the Sellers.
(d) Governing Law. This Agreement shall be governed by and
construed under the laws of the State of California.
(e) Headings. The paragraph headings are herein used for
convenience of reference only and shall not be deemed to vary the content of
this Agreement or the covenants, agreements, representations and warranties
herein set forth or the scope of any paragraph.
(f) Counterparts. This Agreement may be executed in two or more
counterpart originals; each counterpart original shall be for all purposes
considered an original of this Agreement.
(g) Partial Invalidity. If any provision of this Agreement shall be
determined to be void by any court of competent jurisdiction, then such
determination shall not affect any other provision hereof, all of which other
provisions shall remain in full force and effect; and it is the intention of all
the parties hereto that if any provision of this Agreement capable of two
constructions, one of which would render the provision void and the other of
which would render the provision valid, then the provision shall have the
meaning which renders it valid.
(h) Time. With respect to all time periods contained in this
Agreement, it is expressly understood that time shall be of the essence.
(i) Holidays, etc. Whenever the last day for the performance of any
act required by either Sellers or Purchaser under this Agreement shall fall upon
a Saturday, Sunday, or legal holiday, the date for the performance of any such
act shall be extended to the next succeeding business day which is not a
Saturday, Sunday or legal holiday.
(j) Counsel Fees. If any action is brought by either party against
the other party including, without limitation, any action with respect to the
receipt of the Deposit as liquidated damages pursuant to Paragraph 18(b), the
prevailing party shall be entitled to recover from the other party reasonable
attorney's fees, costs and expense incurred in connection with the prosecution
or defense of such action.
(k) Effective Date. The Effective Date of this Agreement shall be
the date
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that a fully ratified original of this Agreement is executed and delivered to
Purchaser.
(l) No Third-Party Beneficiary Rights. Purchaser and Sellers agree
that this Agreement has been entered into solely for the benefit of Purchaser
and Sellers and no other person or entity, it being the intention of Purchaser
and Sellers that no person or entity not a party to this Agreement shall have
any right or standing to (a) bring any action against Purchaser or Sellers based
on this Agreement or (b) assume that any provision of this Agreement will be
enforced or remain unmodified or unwaived, or (c) assert that it or he is or
should be or was intended to be a beneficiary under any provision of this
Agreement.
(m) Exculpation. In the enforcement of its rights hereunder Sellers
agree not to seek or obtain a money judgment or exercise any other right or
remedy against any member, shareholder, officer, director or employee of
Purchaser or any member of Purchaser and shall look solely to the Purchaser and
the Deposit hereunder for the enforcement of all of its rights and remedies
hereunder. In the enforcement of its rights hereunder Purchaser agrees not to
seek or obtain a money judgment or exercise any other fight or remedy against
any member, shareholder, officer, director or employee of Sellers and shall look
solely to Sellers for the enforcement of all rights and remedies hereunder.
(n) Further Assurance. In addition to the obligations performed
under this Agreement by Sellers at Closing, Sellers and Purchaser shall perform,
from time to time, such other acts, and shall execute, acknowledge and/or
deliver such other instruments, documents and other materials as Purchaser or
its counsel or Escrow Agent reasonably may request in order to consummate the
transactions provided for in this Agreement and to vest title to the Property in
Purchaser.
WITNESS the following signature
SELLERS: TRW Inc.
By:
-----------------------------------
Printed Name:
-------------------------
Title:
--------------------------------
Date:
---------------------------------
Tax ID No.: 34-0575430
---------------------------
SELLERS: ESL Inc.
By:
-----------------------------------
Printed Name:
-------------------------
Title:
--------------------------------
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Date:
---------------------------------
Tax ID No.: 94-1566685
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PURCHASER: Network Appliance, Inc.
By:
-----------------------------------
Printed Name:
-------------------------
Title:
--------------------------------
Date:
---------------------------------
Tax ID No.:
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