EXHIBIT 10.40
REAL ESTATE PURCHASE
AND SALE AGREEMENT
by and between
TRANSWESTERN ▇▇▇▇▇ LANDINGS, L.L.C.
and
CREDENCE SYSTEMS CORPORATION
Dated as of March 25, 2002
for
1421 and ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
TABLE OF CONTENTS
Page
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1. AGREEMENT FOR PURCHASE AND SALE....................................... 1
2. PURCHASE PRICE........................................................ 2
3. ▇▇▇▇▇▇▇ MONEY......................................................... 3
4. CLOSING............................................................... 3
5. ESCROW................................................................ 4
6. TITLE COMMITMENT...................................................... 4
7. SURVEY................................................................ 5
8. REPRESENTATIONS AND WARRANTIES........................................ 6
9. SELLER'S COVENANTS.................................................... 9
10. APPROVAL DATE......................................................... 10
11. DELIVERY OF DOCUMENTS................................................. 12
12. FIRE OR CASUALTY...................................................... 15
13. CONDEMNATION.......................................................... 16
14. ADJUSTMENTS AND PRORATIONS............................................ 16
15. CLOSING COSTS......................................................... 17
16. POSSESSION............................................................ 17
17. DEFAULT............................................................... 18
18. NOTICES............................................................... 19
19. BROKERS............................................................... 20
20. LEASING COSTS, MANAGEMENT FEES AND EMPLOYEES.......................... 20
21. "AS IS" SALE.......................................................... 20
22. OFFER AND ACCEPTANCE.................................................. 22
23. MISCELLANEOUS......................................................... 22
i
Exhibits
A - Legal Description of Land
B - List of Equipment, Fixtures and Personal Property
C - Intentionally Deleted
D - List of Contracts
E - List of Licenses
F - Escrow Instructions
G-1 - Grant Deed
G-2 - ▇▇▇▇ of Sale
G-3 - Assignment of Contracts, Licenses, Leases and Intangibles
H - Disclosure of Lease Matters/Pending Commissions
I - Intentionally Deleted
J - Recertification of Representations and Warranties
ii
REAL ESTATE PURCHASE AND SALE AGREEMENT
Summary Statement
This Summary Statement is attached to and made a part of that certain Real
Estate Purchase and Sale Agreement by and between the Seller and Purchaser
referenced below.
1. DATE OF AGREEMENT: March 25, 2002
2. SELLER: Transwestern ▇▇▇▇▇ Landings, L.L.C., a
Delaware limited liability company
3. PURCHASER: Credence Systems Corporation, a Delaware
corporation
4. PROPERTY DESCRIPTION:
a) Address: 1421 and ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇
b) Nature of Improvements: 2 office buildings
c) Rentable Square Footage: approximately 180,481 square feet of
rentable area
5. PURCHASE PRICE: $22,560,125.00
6. INITIAL ▇▇▇▇▇▇▇ MONEY: $500,000.00
7. ADDITIONAL ▇▇▇▇▇▇▇ $500,000.00
MONEY:
8. APPROVAL DATE: 45 days from the date this Agreement
becomes effective pursuant to Section 22
below.
9. CLOSING DATE: The later to occur of (a) 15 days after
the Existing Tenant (defined below) has
vacated the Property and (b) August 1,
2002, or earlier as provided in Section 4
below.
10. TITLE COMPANY: First American Title Insurance Company
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
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PURCHASER'S ADDRESS:
Credence Systems Corporation
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇
Fax: ▇▇▇.▇▇▇.▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
Fax: ▇▇▇.▇▇▇.▇▇▇▇
11. SELLER'S ADDRESS: Transwestern ▇▇▇▇▇ Landings, L.L.C.
c/o Transwestern Investment Company, L.L.C.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇ & ▇▇▇▇▇▇ Limited
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇, Esq.
12. BROKERS: ▇▇▇▇▇ & ▇▇▇▇▇ Company and Commercial Property
Services
13. GOVERNING STATE LAW: California
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REAL ESTATE PURCHASE AND SALE AGREEMENT
THIS REAL ESTATE PURCHASE AND SALE AGREEMENT ("Agreement") is made and
entered into as of the Date of Agreement set forth on the Summary Statement by
and between Transwestern ▇▇▇▇▇ Landings, L.L.C., a Delaware limited liability
company ("Seller"), and Credence Systems Corporation, a Delaware corporation
("Purchaser").
RECITALS
A. Seller is the owner of certain real property legally described in
Exhibit A attached hereto (the "Land") and all buildings, fixtures and other
improvements situated on the Land (collectively, the "Improvements"), said Land
and the Improvements are described on Line 4 of the preceding Summary Statement
which is attached to and incorporated into this Agreement (the "Summary
Statement").
B. Seller desires to sell to Purchaser, and Purchaser desires to
purchase from Seller, the Land and the Improvements, together with all of the
other property and interests of Seller described in Section 1 below, subject to
the terms and conditions contained herein
AGREEMENTS
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Seller and Purchaser agree as
follows:
1. AGREEMENT FOR PURCHASE AND SALE.
Seller agrees to sell, and Purchaser agrees to purchase, subject
to the terms and conditions contained herein, the Land and the Improvements,
together with all of Seller's right, title and interest in and to:
(a) (i) Ball rights of way, access rights, tenements,
hereditaments, easements, interests, minerals and mineral rights, air,
water and water rights, oil, gas and other hydrocarbon substances
thereon, development rights, solar rights, utility capacity and
appurtenances, if any, in any way belonging or appertaining to the Land
and the Improvements and (ii) all of Seller's right, title and interest
in and to all adjoining streets, alleys, roads, parking areas, curbs,
curb cuts, sidewalks, landscaping, signage, sewers and public ways
(collectively, the "Appurtenant Rights"); and
(b) all equipment, fixtures, machinery, building materials,
furniture, furnishings and other personal property located on, attached
to or used in connection with the operation and maintenance of the Land
or the Improvements that are owned by Seller including, without
limitation, (i) all heating, lighting, air conditioning, ventilating,
plumbing, electrical or other mechanical equipment, (ii) the electrical
power generator servicing the
Improvements located at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (the "Generator"), and
(iii) the personal property listed in Exhibit B attached hereto
(collectively, the "Personal Property"); and
(c) all leases, tenancies and rental or occupancy agreements
granting possessory rights in, on or covering the Land or Improvements,
together with all modifications, extensions, amendments and guarantees
thereof including, but not limited to, the lease agreements dated
August 24, 1992 and March 5, 1986 (jointly and as amended, the "Sun
Leases") between Seller's predecessor-in-interest, as landlord, and Sun
Microsystems, Inc. (the "Existing Tenant"), as tenant, together with
such other leases of the Improvements as may be made prior to the
Closing in accordance with the terms of this Agreement (collectively,
the "Leases"); and
(d) to the extent assignable, all contracts, agreements,
guarantees, warranties (including any and all warranties for the roof
of the improvements located on the Property) and indemnities, written
or oral, if any, affecting the ownership, operation, management and
maintenance of the Land, Improvements, Appurtenant Rights and Personal
Property, including without limitation those items listed in Exhibit D
attached hereto (collectively, the "Contracts"); and
(e) to the extent assignable, all (i) plans, drawings,
specifications, blueprints, surveys, engineering reports and other
technical descriptions or materials relating in any way to the Land,
Improvements, Appurtenant Rights, Personal Property, Leases or
Contracts, and (ii) licenses, franchises, certificates of occupancy and
use, permits, authorizations, consents, variances, waivers, approvals
and the like from any governmental or quasi-governmental entity or
instrumentality affecting the ownership, operation or maintenance of
the Land or the Improvements, including without limitation the items
listed in Exhibit E attached hereto (collectively, the "Licenses"); and
(f) to the extent assignable, all plans, drawings,
specifications and maintenance records prepared by or on behalf of
Seller in connection with the ownership, operation and maintenance of
the Property (as defined below), (collectively, the "Intangibles").
The Land, Improvements, Appurtenant Rights, Personal Property, Leases,
Contracts, Licenses and Intangibles and other property described above
are collectively referred to herein as the "Property."
2. PURCHASE PRICE.
The purchase price for the Property (the "Purchase Price") shall
be the amount set forth in Line 5 of the Summary Statement. The Purchase Price,
plus or minus prorations and adjustments provided for herein, shall be paid in
cash or cash equivalent to Seller on or before 2:00 p.m. (San Francisco time) on
the Closing Date (as hereinafter defined).
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3. ▇▇▇▇▇▇▇ MONEY.
Within two (2) business days after the date that this
Agreement becomes effective pursuant to Section 22 below, Purchaser shall
deposit into the Escrow (as hereinafter defined) cash or certified funds in the
amount set forth in Line 6 of the Summary Statement as an ▇▇▇▇▇▇▇ money deposit
(the "Initial ▇▇▇▇▇▇▇ Money"). On the Approval Date (as defined below),
Purchaser shall deposit additional cash or certified funds in the amount set
forth in Line Error! Reference source not found. of the Summary Statement to be
added to the Initial ▇▇▇▇▇▇▇ Money (collectively, the "▇▇▇▇▇▇▇ Money"). The
▇▇▇▇▇▇▇ Money while held by Escrow Agent prior to the Approval Date shall be
invested in accordance with Purchaser's direction and all interest earned on the
▇▇▇▇▇▇▇ Money shall remain the property of and be paid to Purchaser. Wherever
this Agreement provides for the payment of the ▇▇▇▇▇▇▇ Money to either Purchaser
or Seller, any interest held by Escrow Agent that was earned on the ▇▇▇▇▇▇▇
Money shall be paid to Purchaser. Upon the closing of the transaction
contemplated by this Agreement, the ▇▇▇▇▇▇▇ Money (to the extent is has not yet
been disbursed to Seller in accordance with the terms of this Agreement) shall
be paid to Seller and Purchaser shall receive a credit against the Purchase
Price in the amount thereof. If the transaction does not so close, the ▇▇▇▇▇▇▇
Money shall be disbursed in accordance with the terms of this Agreement.
Provided that Purchaser does not terminate this Agreement nor
this Agreement is deemed terminated pursuant to Section 10(a) below, then within
one (1) business day after the Approval Date, the ▇▇▇▇▇▇▇ Money shall be paid to
Seller, the interest theretofore earned on the ▇▇▇▇▇▇▇ Money shall be disbursed
to Purchaser, and Purchaser shall receive a credit at Closing against the
Purchase Price in the amount of the ▇▇▇▇▇▇▇ Money. In the event this Agreement
is terminated either by its terms or by Purchaser or Seller and the ▇▇▇▇▇▇ Money
is required by this Agreement to be paid or returned to Purchaser, Seller shall
be obligated to return to Purchaser an amount equal to the ▇▇▇▇▇▇▇ Money
theretofore disbursed to Seller within two (2) business days after Seller's
receipt of such termination notice. Purchaser shall have the right to bring
action against Seller for an amount equal to the ▇▇▇▇▇▇▇ Money if Seller fails
to return same in accordance with the terms of this Agreement. The prevailing
party in such action shall be entitled to recover from the other the reasonable
attorneys' fees and litigation costs incurred by it in connection with such
matter. Any references in this Agreement to the return of ▇▇▇▇▇▇▇ Money to
Purchaser shall be deemed to include Seller's return of the ▇▇▇▇▇▇▇ Money in
accordance with the terms of this Section 3 if the ▇▇▇▇▇▇▇ Money has already
been disbursed to Seller. The terms of this Section 3 are not intended to
contradict the terms and conditions contained in Section 17 below.
4. CLOSING.
Subject to terms and conditions of this Agreement, the closing
of the transaction contemplated by this Agreement (the "Closing") shall take
place on the date set forth on Line 9 of the Summary Statement (the "Closing
Date") at the offices of the Title Company, or as the parties shall otherwise
agree. On the Closing Date, Seller shall transfer and convey title to the
Property to Purchaser free and clear of all liens and encumbrances, other than
real and personal property taxes not yet due and payable and such title
exceptions as may be permitted pursuant to
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Section 6 below and in accordance with the Escrow. Notwithstanding the
foregoing, Purchaser shall have the right, upon written notice to Seller, to
accelerate the Closing Date to a date specified in such notice which is at least
five (5) business days after the date Seller receives such notice.
5. ESCROW.
This transaction shall be closed through an escrow established with
Title Company in accordance with the deed and money escrow instructions in the
form attached hereto as Exhibit F (the "Escrow"). Upon the creation of the
Escrow, anything herein to the contrary notwithstanding, the transfer and
conveyance of the Property, the payment of funds and the delivery of the
Conveyance Documents (as defined below) and other documents required to close
the transaction contemplated by this Agreement shall be made through the Escrow.
All escrow costs shall be divided equally between Purchaser and Seller.
6. TITLE COMMITMENT.
The parties acknowledge that Seller has provided Purchaser with a
current ALTA Form B title commitment (or such other comparable form as may be
reasonably acceptable to Purchaser and customary in the state where the Property
is located) (the "Title Commitment") for an owner's title insurance policy
issued by the title company identified in Line 10 of the Summary Statement (the
"Title Company"), covering title to the Land, Improvements and Appurtenant
Rights, together with legible copies of each of the documents underlying the
title exceptions listed therein.
On or before the date that is ten (10) business days after Purchaser's
receipt of the Title Commitment and the Survey (defined below) (the "Objection
Date"), Purchaser will notify Seller in writing (the "Exception Notice") as to
those title exceptions listed in the Title Commitment which it will accept (the
"Permitted Exceptions"). If Purchaser fails to provide Seller the Exception
Notice on or before the Objection Date, the title exceptions listed in the Title
Commitment shall be deemed to be Permitted Exceptions and Purchaser shall be
deemed to have waived its right to object to such exceptions. Seller shall have
the right, but not the obligation, until the sooner of (x) the Closing Date, or
(y) the date which is ten (10) days after the date Seller receives the Exception
Notice (the soonest of which is hereinafter referred to as the "Title Clearance
Date") to have all title exceptions other than Permitted Exceptions
(collectively, the "Unpermitted Exceptions") removed from the Title Commitment
or to have Title Company commit to insure, at Seller's expense, against any and
all loss or damage that may be occasioned by any such Unpermitted Exceptions. If
Seller fails on or before the Title Clearance Date to reasonably demonstrate to
Purchaser that the Unpermitted Exceptions have been removed, or in the
alternative, that Seller has obtained a commitment for title indemnification or
title insurance over such Unpermitted Exceptions (provided such indemnification
or insurance shall be acceptable to Purchaser in its sole discretion), then, in
either such case, Purchaser shall, as its sole remedy, have the option (the
"Title Election") to either (i) terminate this Agreement, whereupon the parties
hereto shall have no further
4
obligations hereunder (except for obligations which are expressly intended to
survive the termination of this Agreement), and receive a return of the ▇▇▇▇▇▇▇
Money, or 7. proceed with Closing, in which event the Purchase Price shall be
reduced by an amount equal to the aggregate amount of all tax, judgment and
mechanics' liens of a definite and ascertainable amount that constitute
Unpermitted Exceptions and Purchaser shall be deemed to have waived any
objection to any other Unpermitted Exceptions. If Purchaser fails to notify
Seller of its Title Election within five (5) days after the Title Clearance
Date, Purchaser shall be deemed to have elected to proceed with the Closing, as
set forth in subclause (ii) above.
In the event the Title Company issues any modification or
supplement to the Title Commitment between the Objection Date and the Closing
Date that is not the result of activities of Purchaser or any of Purchaser's
agents, representatives, consultants or contractors and if, in Purchaser's
reasonable judgment, any such changes materially and adversely affect the
Property or Purchaser's projected use thereof, Purchaser shall have five (5)
business days after receipt of the modification or supplement to the Title
Commitment in which to object thereto by written notice to Seller, and such
objections shall be deemed to be Unpermitted Exceptions. Seller shall have five
(5) business days after receipt of Purchaser's objection notice (and, if
necessary, the Closing Date shall be extended by the number of days necessary to
give Seller this full five (5) business day period) in which to notify Purchaser
of its election to cure or not to cure Purchaser's objections in accordance with
the third grammatical sentence of the immediately preceding paragraph and the
terms and procedures set forth in such paragraph shall again be used to
determine the parties rights and obligations vis-a-vis such new Unpermitted
Exception(s).
7. SURVEY.
Promptly after the date this Agreement becomes effective pursuant
to Section 22 below, Seller shall obtain, at Seller's expense, a survey of the
Land and Improvements (the "Survey"), dated on or after the date of this
Agreement and prepared by a land surveyor licensed by the state in which the
Land is located. The Survey shall be certified to Seller, Purchaser, the
Purchaser's lender (if any), and Title Company as having been prepared in
accordance with the 1997 minimum standard detail requirements for an Urban Land
Title Survey jointly adopted by the American Land Title Association and the
American Congress of Surveying and Mapping.
On or before the Objection Date, Purchaser will notify Seller in
writing as to those encroachments, gaps, gores and other matters depicted on the
Survey which Purchaser shall not accept (the "Survey Defects"). If Purchaser
fails to provide Seller with written notice of any Survey Defects on or before
the Objection Date, Purchaser shall be deemed to have waived its right to object
to matters of survey (and to any related title exceptions raised on the Title
Commitment in connection with survey matters). Seller shall have the right, but
not the obligation, until the sooner of (x) the Closing Date, or (y) the date
which is ten (10) days after the date Seller receives notice of the Survey
Defects (the soonest of which is hereinafter referred to as the "Survey
Clearance Date") to have the Survey Defects removed from the Survey or to have
the Title Company commit to insure, at Seller's expense and subject to
Purchaser's approval in its sole discretion, against any and all loss or damage
that may be occasioned by any
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such Survey Defect. If Seller fails on or before the Survey Clearance Date to
reasonably demonstrate to Purchaser that the Survey Defects have been removed,
or, in the alternative, that Seller has obtained a commitment for title
indemnification or title insurance over such Survey Defect, then, in either
case, Purchaser shall, as its sole remedy, have the option (the "Survey
Election") to either (i) terminate this Agreement, whereupon the ▇▇▇▇▇▇▇ Money
shall be returned to Purchaser and the parties hereto shall have no further
obligations hereunder (except for obligations which are expressly intended to
survive the termination of this Agreement), or (ii) proceed with Closing, in
which case Purchaser shall be deemed to have waived any objection to such Survey
Defects. If Purchaser fails to notify Seller of its Survey Election within ten
(10) days after the Survey Clearance Date, Purchaser shall be deemed to have
elected to proceed with the Closing as set forth in subclause (ii) above.
8. REPRESENTATIONS AND WARRANTIES.
(a) As used in this Section 8, references to "Seller's actual
knowledge" shall mean the actual knowledge of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, a
managing director of Transwestern Investment Company, L.L.C., and of
▇▇▇ ▇▇▇▇▇▇▇▇▇, the property manager, after an investigation of Seller's
files and records relating to the Property in its possession but
without investigation or inquiry of any other person or entity. Seller
represents that Messieurs ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇ have significant
knowledge of the condition of the Property. Seller represents and
warrants to Purchaser, as of the date hereof and again on the Closing
Date, as follows:
(i) As of the Closing Date, there shall be no Leases or
Contracts granting any person or entity the right to possession
or occupancy of the Land and/or Improvements; there shall be no
persons in possession or occupancy of the Property, or any part
thereof; nor shall there be, except to the extent such possessory
right is granted through a Permitted Exception, any persons who
have possessory rights with respect to the Property or any part
thereof;
(ii) As of the date of this Agreement, neither Seller
nor, to Seller's actual knowledge, the Existing Tenant, is in
default under the terms of the Sun Leases beyond expiration of
notice and cure periods. As of the Closing Date, the Existing
Tenant shall not be in default under the terms of the Sun Leases
to the extent such default could affect title to or possession of
any of the Property;
(iii) During its period of ownership, Seller has received
no written notice from any governmental authority of any
violation of applicable laws, ordinances or regulations related
to the Property or the occupancy thereof which have not been
heretofore corrected, nor any written notice of increases in
insurance premiums;
(iv) Neither the execution or delivery of this Agreement,
the consummation of the transaction contemplated hereby, nor the
fulfillment of or compliance with the terms and conditions hereof
conflict with or result in a material breach of any of the terms,
conditions or provisions of any agreement or instrument to which
the Seller is a party or by which Seller is bound;
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(v) There are no leasing commissions now or hereafter
due with respect to any of the Leases for any current terms or
exercised renewals, extensions or expansions. Seller has entered
into no brokerage or leasing commission agreements with respect
to the Property, where a commission or fee has been earned but
not fully paid;
(vi) There are no contracts or agreements affecting the
operation of the Land or the Improvements (including without
limitation management, maintenance, service, supply, purchase,
consulting, advertising, promotion, public relations and
construction contracts, agreements, commitments, guarantees and
warranties) which will survive Closing and be binding upon
Purchaser except as disclosed in Exhibit D attached hereto and,
to Seller's actual knowledge, no party is in default under any
such contracts. All Contracts, except those consented to in
writing by the Purchaser, shall be terminated as of the Closing
Date;
(vii) To Seller's actual knowledge, there are no claims,
causes of action, lawsuits or legal proceedings pending or
threatened regarding the ownership, use or possession of the
Property, including without limitation condemnation or similar
proceedings except for the Pending Condemnation described below;
(viii) Seller is duly organized, validly existing and in
good standing under the laws of the State of Delaware, and is
qualified to do business under the laws of the jurisdiction where
the Land is located. Seller has all necessary power and authority
to enter into this Agreement and to consummate all of the
transactions contemplated herein. The individuals executing this
Agreement on behalf of Seller (or on behalf of members of Seller)
are duly authorized to execute, deliver and perform this
Agreement on behalf of Seller (or on behalf of members of Seller)
and to bind Seller. This Agreement and all documents to be
executed by Seller and delivered to Purchaser hereunder (A) are
and will be the legal, valid and binding obligations of Seller,
enforceable in accordance with their terms, (B) do not or will
not contravene any provision of Seller's organizational documents
or any existing laws and regulations applicable to Seller or the
Property and (C) will not conflict with or result in a violation
of any agreement, instrument, order, writ, judgment or decree to
which Seller is a party or is subject or which governs the
Property;
(ix) Except as to matters disclosed in the environmental
reports or other materials delivered by Seller to Purchaser: (A)
Seller has not caused the generation, presence, use, release,
transportation, storage, treatment or disposal at or from the
Property of any Hazardous Substances (as defined in Section 21)
in violation of any applicable environmental laws; (B) Seller has
no actual knowledge of the generation, presence, use, release,
transportation, storage, treatment or disposal at or from the
Property of any Hazardous Substances in violation of any
applicable environmental laws, (C) Seller has not received any
written notice of any generation, transportation, storage,
treatment or disposal at or from the Property of any Hazardous
Substances in violation of any applicable environmental laws; and
(D) no enforcement action or litigation has been brought
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or, to Seller's actual knowledge, threatened against Seller or
the Property nor any settlements reached by Seller or, to
Seller's actual knowledge, any prior owner of or other party
having any interest in the Property, alleging the use of any
Hazardous Substances on, from or under the Property in violation
of any applicable environmental laws;
(x) As of the Closing Date, there shall be no Lease
(including but not limited to the Sun Leases) in effect;
(xi) To Seller's actual knowledge, all approvals,
easements and rights of way which are reasonably required by any
and all governmental authorities having jurisdiction over the
Property for the normal use, occupancy and operation of the
Property have been obtained and all such approvals are in full
force and effect; and
(xii) To Seller's actual knowledge, the Land and
Improvements are connected to and serviced by adequate water,
sewage disposal, gas, electricity and telephone facilities to
meet the requirements of normal usage thereof.
There is currently pending a condemnation proceeding ("Pending
Condemnation") of a small strip of land containing approximately 3,444
square feet of the Property ("Condemnation Parcel") in connection with
a widening of Highway 880. Notwithstanding anything contained in this
Agreement to the contrary, Seller shall be responsible for taking care
of all matters associated with the Pending Condemnation including
arranging for the deeding of the Condemnation Parcel to the condemning
authority (or as it shall otherwise direct) and shall bear any and all
costs associated therewith. Furthermore, Seller shall have the right to
retain any and all payments from the condemning authority associated
with the Condemnation Parcel whether or not they are paid prior to or
after the Closing. Seller shall exercise due diligence to have all
documentation completed and filed prior to or simultaneously with the
Closing; provided, however, should Seller be unable to have all such
documentation completed by such date, Purchaser covenants to cooperate
with Seller and the condemning authority to effectuate same after the
Closing including, but not limited to, execution of a deed, transfer
declaration, etc.
(b) Purchaser represents and warrants to Seller, now and again
on the Closing Date, that: (i) Purchaser has all necessary power and
authority to enter into this Agreement and to consummate all the
transactions contemplated herein, (ii) the individuals executing this
Agreement on behalf of Purchaser are duly authorized to execute,
deliver and perform this Agreement on behalf of Purchaser and to bind
Purchaser and (iii) this Agreement and all documents to be executed by
Purchaser and delivered to Seller hereunder (A) are and will be the
legal, valid and binding obligations of Purchaser, enforceable in
accordance with their terms, (B) do not or will not contravene any
provision of Purchaser's organizational documents or any existing laws
and regulations applicable to Purchaser and (C) will not conflict with
or result in a violation of any agreement, instrument, order, writ,
judgment or decree to which Purchaser is a party or is subject.
8
(c) All of the representations and warranties of Seller and
Purchaser contained in this Section 8 are material, none shall merge
into the deed herein provided for and all shall survive the Closing
Date or termination of this Agreement for a period of twelve (12)
months (the "Survival Period"). All rights of Purchaser hereunder with
respect to any surviving representation, warranty or covenant shall be
deemed waived if Purchaser does not, by written notice to Seller,
advise Seller of any alleged breach of representation, warranty or
covenant prior to the expiration of the Survival Period. Subject to the
limitation set forth in the immediately preceding sentence, all
remedies shall be those set forth in Section 17 below, and
notwithstanding anything herein to the contrary, Seller's liability
under any representation, warranty or covenant made hereunder or in any
of the Closing Documents shall in no event exceed Seller's Maximum
Liability (as hereinafter defined).
9. SELLER'S COVENANTS.
From and after the date of this Agreement through the Closing
Date, Seller and Seller's agents shall at Seller's expense:
(a) maintain the Property in the condition in which it existed
as of the date of this Agreement, normal wear and tear excepted, free
from mechanics' liens and operate the Property in a manner consistent
with current practice and perform its obligations under the Leases,
Contracts and Licenses;
(b) keep in existence all fire and extended coverage insurance
policies, and all public liability insurance policies, that are in
existence as of the date of this Agreement with respect to the
Property;
(c) not enter into or extend any Contract or License to a period
beyond the Closing Date, nor apply any security or other deposits held
under any License whose term shall extend beyond the Closing Date to
delinquent payments, without Purchaser's prior written consent, which
will not be unreasonably withheld. Notwithstanding the preceding
sentence, (i) without the Purchaser's consent, the Seller shall have
the right to enter into new contracts, licenses and leases, amend and
extend leases, contracts and licenses, enforce and terminate leases,
contracts and licenses, and apply security or other deposits provided
the ramifications of such actions shall neither extend beyond the
Closing Date nor be binding upon Purchaser;
(d) upon at least twenty-four (24) hours' notice to Seller,
permit Purchaser, its engineer, architect or other agents, during
normal business hours (or such other times as are reasonable), to enter
onto the Land for the purpose of making inspections thereof;
(e) grant Purchaser access to any records, books and agreements
concerning the Property within Seller's possession or control (with the
exception of any such documents that Seller deems confidential or
proprietary), and maintain such records, books and accounts in Seller's
ordinary manner consistent with past practice;
9
(f) promptly advise Purchaser in writing of any changes in
circumstances which would render the representations and warranties
made by Seller herein false or misleading;
(g) upon written notice from Purchaser or before the Approval
Date, give appropriate notices of termination of Contracts designated
by
Purchaser; provided, however, that if the notice period required to
terminate such contracts will not have run prior to Closing, Seller
shall be obligated to bear the cost of any remaining obligations under
such Contracts accruing after the Closing Date;
(h) not enter into any financing agreement which would encumber
the Property beyond the Closing Date nor perform any new construction
work on the Property which (a) will not be fully paid for by the
Closing Date or (b) is not reasonably necessary to comply with the
terms of this Agreement or any agreement by which Seller or the
Property is bound except to the extent same is reasonably necessary for
health or safety reasons. Notwithstanding anything contained in this
Agreement to the contrary, Seller shall have the right to enter into
the Temporary Construction Easement with the City of Milpitas, a copy
of which has been previously delivered to Seller;
(i) after the Approval Date, not accept any offers from other
potential purchasers of the Property or market the Property to
potential purchasers of the Property;
(j) not extend the term of the Sun Leases without Purchaser's
prior written consent;
(k) exercise commercially reasonable efforts to ensure that no
contracts, licenses or other agreements entered into by or on behalf of
the Existing Tenant which affect the Property extend beyond the Closing
Date;
(l) from and after June 30, 2002, use commercially reasonable
efforts to enforce the terms of the Sun Leases, including the
obligation of the Existing Tenant to surrender the Property in
accordance with the terms of the Sun Leases; and
(m) provide Purchaser with any other relevant information with
respect to the Property upon Purchaser's reasonable request.
10. APPROVAL DATE.
(a) Purchaser shall have from the date this Agreement becomes
effective pursuant to Section 22 below through the Approval Date
identified in Line 8 of the Summary Statement (the "Approval Date") to
inspect the Property and complete such tests, inspections and
investigations as Purchaser may determine in its sole discretion. The
period between the date this Agreement becomes effective and the
Approval Date is called the "Inspection Period." Without limiting the
generality of the first sentence of this Section 10(a), during the
Inspection Period: (A) Seller shall permit Purchaser to examine, at all
reasonable times, all books and records (including without limitation
financial and operating statements) in Seller's possession or control
relating to the Property, (B) Purchaser shall have the right, at all
reasonable times, to (I) inspect the Land,
10
Improvements, Appurtenant Rights and Personal Property, (II) review the
Leases, the Contracts, the Licenses and the Intangibles, (III) discuss
the Property with, and obtain additional information from, tenants and
any property manager and (IV) conduct geophysical feasibility tests of
the Property and environmental audit or audits of the Property (with
copies of the reports relating to such audits delivered to Seller when
completed), including sampling, and (C) Purchaser shall be given
complete access to the Property for the purpose of making such tests,
inspections and investigations. All of the foregoing tests,
investigations and studies to be conducted under this Section 10(a) by
Purchaser shall be subject to the following:
(i) Such tests, inspections and investigations shall
take place during normal business hours upon reasonable notice
to Seller or its designated agents and Seller's consent shall
be required prior to the performance of any drilling, boring
or other invasive testing or procedures;
(ii) In the event the Closing does not occur,
Purchaser shall promptly return to Seller any documents
obtained from Seller or Seller's agents;
(iii) Purchaser shall not suffer or permit any lien,
claim or charge of any kind whatsoever to attach to the
Property or any part thereof; and
(iv) such tests, investigations and studies shall be
at Purchaser's sole cost and expense and shall not
unreasonably interfere with the operation of the Property. In
the event of any damage to the Property caused by Purchaser,
its agents, engineers, employees, contractors or surveyors
(including, without limitation, pavement, landscaping and
surface damage), Purchaser shall pay the cost incurred by
Seller to restore the Property to the condition existing prior
to the performance of such tests, investigations or studies.
Purchaser shall defend, indemnify and hold Seller harmless
from any and all liability, cost and expense (including without
limitation, reasonable attorneys' fees, court costs and costs of
appeal) suffered or incurred by Seller for injury to persons or
property caused by Purchaser's investigations, tests, studies and
inspections of the Property. Prior to commencing any such tests,
studies and investigations, Purchaser shall furnish to Seller a
certificate of insurance evidencing comprehensive general public
liability insurance insuring the person, firm or entity performing such
tests, studies and investigations and listing Seller and Purchaser as
additional insureds thereunder. If, in the sole discretion and at the
sole election of Purchaser, any of said tests, inspections or
investigations are unsatisfactory to Purchaser, in any manner or for
any reason in Purchaser's sole discretion, including without limitation
for reasons relating to restrictions on use of the Property, matters
relating to zoning, government approvals, title, survey, appraised
value or other matters impacting the condition or value of the
Property, Purchaser may terminate this Agreement. If Purchaser notifies
Seller, in writing, on or before 5:00 p.m. (San Francisco time) on the
Approval Date of Purchaser's election to proceed under this Agreement,
then this Agreement shall remain in full force and effect and Purchaser
shall deposit the Additional ▇▇▇▇▇▇▇ Money as required by Section 3
hereof. If Purchaser fails to notify Seller, in writing, on or before
5:00 p.m. (San Francisco time) on
11
the Approval Date of Purchaser's election to proceed or if Purchaser
notifies Seller in writing of Purchaser's election to terminate this
Agreement on or before the Approval Date, this Agreement shall
terminate, the ▇▇▇▇▇▇▇ Money and all interest earned thereon shall be
delivered to Purchaser and the parties hereto shall have no further
obligations hereunder (except for obligations which are expressly
intended to survive termination of this Agreement).
(b) The obligation of Purchaser to close the transaction
contemplated by this Agreement is further subject to the condition
that: (i) all of the representations and warranties of Seller contained
in this Agreement are true and correct, in all material respects, at
the date hereof and as of the Closing Date, and (ii) all of the
obligations and duties of Seller to be performed hereunder on or before
the Closing Date have been substantially completed in a timely manner.
Purchaser shall give written notice to Seller within five (5) days
after Purchaser's receipt of any written notice disclosing that any
Seller representation and warranty is no longer true and correct;
provided, however, that Purchaser's failure to give such written notice
shall in no instance constitute a default by Purchaser under this
Agreement but shall instead only serve to bar Purchaser from raising
such matter as a failure of a condition precedent to Purchaser's
obligation to close the transaction and Purchaser's election to proceed
with the Closing shall result in Purchaser's waiver of any remedy
resulting from the incorrectness in such representation of warranty.
(c) All information, data and documents relating to the Property
(including, without limitation, those furnished pursuant to the terms
and provisions of Section 9(h)), obtained by Purchaser from Seller or
any other party or discovered by Purchaser during the term of this
Agreement shall be maintained by Purchaser in strict confidence and may
not be revealed to any other party except that Purchaser may make such
disclosures as may be required by applicable laws and to its employees,
managers, members, officers, lenders, attorneys, contractors
accountants, appraisers, insurance advisors, consultants and similar
third party professionals provided such party agrees to maintain such
information in strict confidence and not reveal any such information to
any other party.
11. DELIVERY OF DOCUMENTS.
(a) During the Inspection Period, Seller shall provide Purchaser
with access to, or otherwise make available to Purchaser the following,
to the extent in the possession or control of Seller:
(i) real estate and personal property tax bills, notices
of assessed valuation and utility bills relating to the Property
for 2000 and 2001, to the extent issued;
(ii) all surveys, certificates of occupancy, certificates
or other evidence of compliance (or notices of violation) with
applicable laws, engineering data, floor plans, "as built" or
working drawings, site plans, specifications and title policies
relating to the Property;
(iii) the Leases together with the most current rent roll
for the Property;
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(iv) the Contracts and Licenses;
(v) current operating statements, general ledgers,
and trial balances maintained or prepared for the Property;
(vi) all material audits, reports, test results,
notifications and correspondence relating to the environmental
condition or operation of the Property;
(vii) all material data, correspondence, documents,
agreements with, notices to or from, or applications to, any
taxing authorities, governmental agencies, utilities, vendors,
tenants and mortgagees with respect to the Property that are
in Seller's possession or control, all other documents
material to the condition, maintenance or operation of the
Property; and
(viii) all other documents relating to the Property
as Purchaser shall reasonably request in writing within
fifteen (15) days after the date this Agreement has been fully
executed by the parties.
In the event Seller is unable to locate or obtain copies of "as built"
architectural and engineering plans and specifications for the
improvements currently existing on the Property prior to Closing,
Seller shall provide Purchaser with a credit at Closing in an amount
not to exceed the sum of $30,000 to cover the cost of obtaining same.
The parties acknowledge and agree that they shall cooperate in
obtaining bids for such drawings and shall agree upon the actual amount
of the credit (not to exceed $30,000 in any event) prior to the
Approval Date.
(b) On the Closing Date, Seller shall deliver the following
documents (the "Closing Documents") to Purchaser, all duly executed,
where appropriate, each of which shall be a condition precedent to
Purchaser's obligation to close the transaction contemplated by this
Agreement (and one or more of which may be waived in writing by the
Purchaser, in its sole discretion, on or prior to the Closing Date):
(i) a recordable grant deed, in the form of Exhibit
attached hereto, subject only to the Permitted Exceptions,
executed by Seller, that conveys fee simple title to the Land,
Improvements and Appurtenant Rights to Purchaser;
(ii) a ▇▇▇▇ of sale, in the form of Exhibit G-2
attached hereto, executed by Seller, that transfers the
Personal Property to Purchaser;
(iii) an assignment and assumption, in the form of
Exhibit G-3 attached hereto, executed by Seller, that
transfers all of Seller's right, title and interest in and to
the Contracts, the Licenses, and the Intangibles to Purchaser
(the "Assignment and Assumption").
(iv) to the extent required by the Title Company, an
ALTA statement of affidavit in customary form, executed by
Seller;
13
(v) Seller's counterpart of a closing and proration
statement, executed by Seller;
(vi) a certification of nonforeign status satisfying
Section 1445 of the Internal Revenue Code of 1986, as amended,
together with a State of California Form 597-W, executed by
Seller;
(vii) executed counterparts of real estate transfer
declarations, disclosures or forms executed on behalf of
Seller;
(viii) evidence of Seller's existence and authority to
perform its obligations under this Agreement, in form and
substance reasonably satisfactory to Purchaser and Title
Company;
(ix) the Title Commitment, hand-marked, initialed and
dated as of the Closing Date (or a pro forma title policy),
subject only to the Permitted Exceptions (the "Title Policy");
(x) all keys and access cards to, and combinations
to locks and other security devices located at, the Property,
if applicable;
(xi) all of the original Contracts and Licenses in
possession of Seller, and originals of all other materials
delivered pursuant to Section 11(a) above, where available,
together with evidence of termination of Contracts designated
by Purchaser, if applicable;
(xii) all letters of credit and other non-cash
security deposits for which Purchaser is not receiving a
credit under Section 14 below, together with appropriate
completed and executed documents of assignment and amendment
running in favor of Purchaser;
(xiii) a certificate in the form of Exhibit J
executed by Seller recertifying the representations and
warranties set forth in Section 8(a) above as of the Closing
Date; and
(xiv) such other documents, instruments, consents or
agreements as may be reasonably requested by the Title Company
or the escrow agent, in order to issue the Title Policy, in
the form required by this Agreement, and to otherwise
consummate the Closing.
(c) On the Closing Date, Purchaser shall deliver the
following to Seller, in form and substance reasonably acceptable to
Seller, all duly executed where appropriate, each of which shall be a
condition precedent to Seller's obligation to close the transaction
contemplated by this Agreement:
(i) executed counterparts of the real estate
transfer declarations described above;
14
(ii) counterparts of the Assignment and Assumption,
executed by Purchaser;
(iii) counterparts of the closing and proration
statement, executed by Purchaser;
(iv) a certified copy of the resolutions or consent
of Purchaser authorizing the transaction contemplated by this
Agreement or other satisfactory evidence of authorization;
(v) to the extent required by the Title Company, an
ALTA statement or title affidavit in customary form executed
by Purchaser;
(vi) the Purchase Price, plus or minus prorations and
adjustments; and
(vii) such other documents, instruments or agreements
as may be reasonably requested by (A) Seller, in order to
consummate this Agreement or (B) Title Company or the escrow
agent, in order to issue the Title Policy free of any
exceptions raised due to the actions of Purchaser, and to
otherwise consummate the Closing.
12. FIRE OR CASUALTY.
In the event of damage to the Property by fire or other
casualty prior to the Closing Date, Seller shall promptly notify Purchaser of
such fire or other casualty. If the fire or other casualty causes damage which
would cost in excess of $500,000 to repair (as determined by Seller in good
faith), then Purchaser may elect, by written notice to be delivered to Seller on
or before the twentieth (20th) day after Purchaser's receipt of such notice (and
the Closing Date shall be extended, if necessary, to accommodate such twenty
(20) day period), to either: (a) close the transaction contemplated by this
Agreement and receive all insurance claims and proceeds payable to Seller as a
result of such fire or other casualty, with the same being paid or assigned to
Purchaser at Closing (and Seller shall pay the insurance deductible or give
Purchaser a credit therefor) or (b) terminate this Agreement, and receive a
return of the ▇▇▇▇▇▇▇ Money in which case the parties hereto shall have no
further obligations hereunder (except for obligations which are expressly
intended to survive the termination of this Agreement). If the damage to the
Property by fire or other casualty prior to the Closing Date would cost less
than or equal to $500,000 to repair (as determined by Seller in good faith),
Purchaser shall not have the right to terminate its obligations under this
Agreement by reason thereof, and Seller shall have the right to elect to either
repair and restore the Property if such repair or restoration may be completed
prior to the Closing Date or to assign and transfer to Purchaser on the Closing
Date all of Seller's right, title and interest in and to all insurance proceeds
paid or payable to Seller on account of such fire or casualty (and Seller shall
pay the insurance deductible or give Purchaser a credit therefor). The
provisions of this Section 12 shall survive the termination of this Agreement.
15
13. CONDEMNATION.
If, prior to the Closing Date, all or any part of the Property
is taken by condemnation or a conveyance in lieu thereof, or if notice of a
condemnation proceeding with respect to the Property is received by Seller (a
copy of which notice shall be immediately delivered by Seller to Purchaser),
Seller shall promptly notify Purchaser of such condemnation or a conveyance in
lieu thereof. If the taking or threatened taking involves a material portion of
the Property (hereinafter defined), Purchaser may elect, by written notice to be
delivered to Seller on or before the twentieth (20th) day after Purchaser's
receipt of such notice (and the Closing Date shall be extended, if necessary, to
accommodate such twenty (20) day period), to terminate this Agreement, in which
event the ▇▇▇▇▇▇▇ Money shall be returned to Purchaser, and the parties hereto
shall have no further obligations hereunder (except for obligations which are
expressly intended to survive the termination of this Agreement). If Purchaser
elects to close this transaction notwithstanding such taking or condemnation,
Purchaser shall be entitled to any award given to Seller as a result of such
condemnation proceedings, with the same being paid or assigned to Purchaser at
Closing. As used herein, a "material portion of the Property" means any part of
the Property reasonably required for the operation of the Property in the manner
operated on the date hereof. If any taking or threatened taking does not involve
a material portion of the Property, Purchaser shall be required to proceed with
the Closing, in which event Seller shall assign to Purchaser any award given to
Seller as a result of such condemnation proceedings. The parties acknowledge and
agree that the Pending Condemnation and the Condemnation Parcel shall be deemed
not to involve a material portion of the Property. The provisions of this
Section 13 shall survive the termination of this Agreement.
14. ADJUSTMENTS AND PRORATIONS.
Adjustments and prorations with respect to the Property shall
be computed and determined between the parties as of 12:01 a.m. on the Closing
Date as follows:
(a) General real estate taxes, special assessments and
personal property taxes shall be prorated as of the Closing Date
based on the then current taxes (if known, based on final tax bills
for such period -- and if not known, based on the most recent
ascertainable taxes) and the special assessments due and owing prior
to Closing, and Seller or Purchaser shall receive a credit at
Closing, as appropriate. If final taxes or special assessments are
not known as of the Closing, the parties agree to reprorate when such
amounts become known, but no later than ninety (90) days after
issuance of the final tax ▇▇▇▇.
(b) Seller shall have the right to contact tenants to
reconcile CAM, taxes and other pass-throughs and additional rent with
respect to the Property including delinquent rentals after the
Closing Date and institute legal proceedings to collect such amounts,
if necessary. Any such enforcement or collection efforts by Seller
shall be at Seller's sole expense.
16
(c) All amounts payable, owing or incurred in connection with
the Property under the Contracts to be assumed by Purchaser under the
Assignment and Assumption shall be prorated as of the Closing Date.
(d) All utility deposits, if any, may be withdrawn by and
refunded to Seller and Purchaser shall make its own replacement
deposits for utilities as may be required by the respective utilities
involved.
(e) The ▇▇▇▇▇▇▇ Money (unless previously disbursed to Seller)
shall be paid to Seller at Closing. Purchaser shall be entitled to a
credit against the Purchase Price in the amount of the ▇▇▇▇▇▇▇ Money
paid to Seller or credited against the Purchase Price, as the case may
be.
(f) All utility charges will be prorated to the Closing Date
and Seller will obtain a final billing therefor and pay any amounts
owing therein for the period prior to the Closing Date and Purchaser
shall pay any amounts owing for the period on and after the Closing
Date. To the extent that utility bills cannot be handled in the
foregoing manner, they shall be prorated as of the Closing Date based
on the most recent bills available and reprorated when such final bills
become known but no later than ninety (90) days after the Closing Date.
(g) A credit, if applicable, in accordance with Section 11(a)
above.
(h) Unless provided otherwise hereinabove, such other items as
are customarily prorated in a purchase and sale of the type
contemplated hereunder shall be prorated as of the Closing Date.
(i) Each of the provisions of this Section 14 shall survive the
Closing.
15. CLOSING COSTS.
Seller shall pay: (a) the costs of recording any releases required
to clear title to the Property, (b) the costs of the Survey, (c) the cost of
state or county stamp tax, sales tax, documentary transfer tax or other tax
imposed on the transfer of the Property, (d) Seller's attorneys' fees, and (e)
one-half of all escrow and New York Style closing fees. Purchaser shall pay: (i)
the costs of recording the deed, (ii) the costs of the Title Commitment and the
Title Policy, including any endorsements or deletions thereto, (iii) Purchaser's
attorneys' fees, and (iv) one-half of all escrow and closing fees.
16. POSSESSION.
Possession of the Property shall be delivered to Purchaser at
Closing, free and clear of all liens and claims other than Permitted Exceptions,
in the same condition as it exists on the date of this Agreement, ordinary wear
and tear excepted and except as provided in Sections 12 and 13 hereof. The
Existing Tenant is the sole tenant of the Property. The Sun Leases are scheduled
to expire on June 30, 2002 and the Closing shall be contingent upon the
17
Existing Tenant having vacated the Property substantially in accordance with the
terms of the Sun Leases prior to Closing; provided, however, the parties agree
that the date of the Closing shall be delayed in accordance with Line 9 of the
Summary Statement until such time as the Existing Tenant shall have vacated the
Property. In the event the transaction contemplated by this Agreement fails to
close on or before August 1, 2002 due solely to the fact that the Existing
Tenant has not vacated the Property substantially in accordance with the terms
of the Sun Leases, then Purchaser shall receive as a credit at Closing an amount
equal to interest calculated at the Imputed Interest Rate (defined below) on the
amount of the ▇▇▇▇▇▇▇ Money theretofore paid to Seller from August 1, 2002
through the date of Closing. For purposes hereof, the Imputed Interest Rate
shall be a per annum rate of interest equal to the rate of interest Escrow Agent
was paying on the ▇▇▇▇▇▇▇ Money as of the Approval Date ("Imputed Interest
Rate"). Purchaser shall have the right to inspect the Property within three (3)
days prior to Closing to verify that the condition of the Property is as
required under this Agreement. Subject to the terms of the Sun Leases, Seller
shall exercise reasonable efforts to afford Purchaser reasonable access to the
Improvements for purposes of inspecting and/or measuring the premises, it being
understood and agreed that Purchaser shall not have the right to perform any
construction or demolition work in or about any portion of the Property prior to
the Closing Date.
The Generator was installed by the Existing Tenant who may or may
not be obligated to remove it from the Property pursuant to the Sun Leases.
Seller covenants that it shall exercise reasonable efforts to cause the Existing
Tenant to leave the Generator at the Property and to relinquish any and all
right and title it may have thereto (and, to the extent feasible, to transfer
title to the Generator directly to Purchaser); provided, however, Seller shall
not be obligated to incur any expense or obligation or relinquish any rights it
may have against the Existing Tenant (except the obligation of the Existing
Tenant to remove the Generator) in order to effectuate same. As consideration
for allowing the Existing Tenant to possibly leave the Generator at the
Property, Seller shall have the right to require that the Existing Tenant agree
to remove the Generator from the Property in the event this Agreement is
terminated or the transaction contemplated hereby does not close for any reason.
Seller shall exercise reasonable efforts to resolve this issue prior to the
Approval Date; provided, however, it shall not be a condition of this Agreement
that the Generator remain at the Property. Purchaser acknowledges that (1) as of
the date of this Agreement, Seller may not have title or any rights to the
Generator, (2) if Seller fails to obtain title thereto, all references to
"Property" in this Agreement shall specifically exclude the Generator, and (3)
notwithstanding anything contained in this Agreement to the contrary, Seller is
making no representations or warranties with respect to title to or the
condition of the Generator and all representations contained in the Agreement
(including, but not limited to, those contained in Section 8) hereby
specifically exclude the Generator.
17. DEFAULT.
If Seller defaults hereunder and fails to cure such default within
five (5) days after written notice of such default, or if the representations
and warranties set forth in this Agreement shall not be true and correct in all
material respects on the date of this Agreement and as of the Closing Date,
Purchaser's sole remedy shall be to either (a) terminate this Agreement and
18
receive a return of the ▇▇▇▇▇▇▇ Money, in which event each of the parties hereto
shall be relieved of any further obligation to the other arising by virtue of
this Agreement (except for obligations which are expressly intended to survive
the termination of this Agreement), or (b) pursue specific performance of this
Agreement. In no event shall Seller be liable for any actual, special, punitive,
speculative or consequential damages, nor shall Seller's liability under any
representation, warranty, covenant, agreement, proration, reproration,
obligation or indemnity made hereunder or under any of the Closing Documents
exceed $1,500,000 in the aggregate (the "Seller's Maximum Liability"). In the
case of (a) above, Seller shall reimburse Purchaser for all actual,
out-of-pocket costs, consisting of due diligence negotiation costs and costs of
negotiating this Agreement, including reasonable attorneys' fees, but in no
event shall Seller be liable for more than $75,000 for Purchaser's out-of-pocket
expenses in the aggregate. None of Seller's partners, members, managers,
officers, agents or employees shall have any personal liability of any kind or
nature or by reason of any matter or thing whatsoever under, in connection with,
arising out of or in any way related to this Agreement and the transactions
contemplated herein, and Purchaser waives for itself and for anyone who may
claim by, through or under Purchaser any and all rights to ▇▇▇ or recover on
account of any such alleged personal liability. If Purchaser defaults hereunder
and fails to cure such default within five (5) days of written notice of such
default, this Agreement shall terminate and Seller shall retain or receive the
▇▇▇▇▇▇▇ Money if the ▇▇▇▇▇▇▇ Money is still held in Escrow as liquidated damages
in full settlement of all claims against Purchaser (with the exception of claims
against Purchaser related to obligations which are expressly intended to survive
the termination of this Agreement). The parties agree that the amount of actual
damages which Seller would suffer as a result of Purchaser's default would be
extremely difficult to determine and have agreed, after specific negotiation,
that the amount of the ▇▇▇▇▇▇▇ Money is a reasonable estimate of Seller's
damages and is intended to constitute a fixed amount of liquidated damages in
lieu of other remedies available to Seller and is not intended to constitute a
penalty. RETENTION OF THE ▇▇▇▇▇▇▇ MONEY BY SELLER IS INTENDED TO CONSTITUTE
LIQUIDATED DAMAGES TO SELLER PURSUANT TO SECTIONS 1671, 1676 AND 1677 OF THE
CALIFORNIA CIVIL CODE AND SHALL NOT BE DEEMED TO CONSTITUTE A FORFEITURE OR
PENALTY WITHIN THE MEANING OF SECTION 3275 OR SECTION 3369 OF THE CALIFORNIA
CIVIL CODE, OR ANY SIMILAR PROVISION.
PURCHASER AND SELLER ACKNOWLEDGE THAT THEY HAVE READ AND
UNDERSTAND THE PROVISIONS OF THIS SECTION 17 AND BY THEIR INITIALS IMMEDIATELY
BELOW AGREE TO BE BOUND BY ITS TERMS.
PURCHASER: ____________ SELLER: __________
18. NOTICES.
Any notice, demand, request or other communication which either
party hereto may be required or may desire to give under this Agreement shall be
in writing and shall be deemed to have been properly given if (a) hand delivered
(effective upon delivery), (b) sent by a nationally recognized overnight
delivery service (effective one (1) business day after delivery to
19
such courier for overnight service) or 20. sent by facsimile (effective upon
confirmation of transmission), in each case, prepaid and addressed in accordance
with Line 0 or Line 12 (as applicable) of the Summary Statement or to such other
or additional addresses as either party might designate by written notice to the
other party.
19. BROKERS.
Each of Seller and Purchaser represents and warrants to the other
that it has not dealt with any brokers, finders or agents with respect to the
transaction contemplated hereby other than the broker(s) set forth in Line 12 of
the Summary Statement (collectively, the "Brokers"). Seller shall be responsible
for payment of a brokerage commission to Commercial Property Services in the
amount of one and three quarters percent (1.75%) of the Purchase Price out of
the closing proceeds if and only if the transaction contemplated by this
Agreement closes. Seller shall pay ▇▇▇▇▇ & ▇▇▇▇▇ a brokerage commission in
accordance with a separate agreement. Each party agrees to indemnify, defend and
hold harmless the other party, its successors, assigns and agents, from and
against the payment of any commission, compensation, loss, damages, costs, and
expenses (including without limitation attorneys' fees and costs) incurred in
connection with, or arising out of, claims for any broker's, agent's or finder's
fees of any person claiming by or through such party other than Brokers. The
obligations of Seller and Purchaser under this Section 19 Reference source not
found. shall survive the Closing and the termination of this Agreement.
20. LEASING COSTS, MANAGEMENT FEES AND EMPLOYEES.
Seller agrees to pay or discharge at or prior to Closing all
leasing commissions, costs for tenant improvements, legal fees and other costs
and expenses (collectively, "Leasing Costs") that are due and payable as of the
Closing Date with respect to Leases in force as of or prior to Closing. On the
Closing Date, Seller shall deliver evidence satisfactory to Purchaser that,
unless expressly assumed by Purchaser in writing, any current management or
leasing agreements for the Property have been terminated (or notice of
termination given), and that the manager and any brokers have been paid all
commissions or fees due and payable. Purchaser is not required to continue the
employment of any employees of Seller or any property manager after the Closing
Date. Seller shall satisfy all obligations to all employees, if any, employed by
Seller or otherwise in the operation of the Property and provide Purchaser with
evidence thereof satisfactory to Purchaser on the Closing Date.
21. "AS IS" SALE.
(a) EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES OF
SELLER SET FORTH HEREIN, PURCHASER ACKNOWLEDGES AND AGREES THAT IT WILL
BE PURCHASING THE PROPERTY BASED SOLELY UPON ITS INSPECTIONS AND
INVESTIGATIONS OF THE PROPERTY, AND THAT PURCHASER WILL BE PURCHASING
THE PROPERTY "AS IS" AND "WITH ALL FAULTS", BASED UPON THE CONDITION OF
THE PROPERTY AS OF THE DATE OF THIS AGREEMENT, ORDINARY WEAR AND TEAR
AND LOSS BY FIRE OR OTHER CASUALTY OR CONDEMNATION EXCEPTED AND THAT
20
SELLER MAKES NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, OR ARISING
BY OPERATION OF LAW, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF
CONDITION, HABITABILITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE, IN RESPECT OF THE PROPERTY. WITHOUT LIMITING THE FOREGOING,
PURCHASER ACKNOWLEDGES THAT, EXCEPT AS MAY OTHERWISE BE SPECIFICALLY SET
FORTH ELSEWHERE IN THIS AGREEMENT, NEITHER SELLER NOR ITS CONSULTANTS,
BROKERS OR AGENTS HAS MADE ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND
UPON WHICH PURCHASER IS RELYING AS TO ANY MATTERS CONCERNING THE PROPERTY,
INCLUDING BUT NOT LIMITED TO: (I) THE CONDITION OF THE LAND OR ANY
IMPROVEMENTS COMPRISING THE PROPERTY; (II) THE EXISTENCE OR NON-EXISTENCE
OF ANY POLLUTANT, TOXIC WASTE AND/OR ANY HAZARDOUS MATERIALS OR SUBSTANCES;
(III) ECONOMIC PROJECTIONS OR MARKET STUDIES CONCERNING THE PROPERTY, OR
THE INCOME TO BE DERIVED FROM THE PROPERTY; (IV) ANY DEVELOPMENT RIGHTS,
TAXES, BONDS, COVENANTS, CONDITIONS AND RESTRICTIONS AFFECTING THE
PROPERTY; (V) THE NATURE AND EXTENT OF ANY RIGHT OF WAY, LEASE, LIEN,
ENCUMBRANCE, LICENSE, RESERVATION OR OTHER TITLE MATTER; (VI) WATER OR
WATER RIGHTS, TOPOGRAPHY, GEOLOGY, DRAINAGE, SOIL OR SUBSOIL OF THE
PROPERTY; (VII) THE UTILITIES SERVING THE PROPERTY; (VIII) THE SUITABILITY
OF THE PROPERTY FOR ANY AND ALL ACTIVITIES AND USES WHICH PURCHASER MAY
ELECT TO CONDUCT THEREON; OR (IX) THE COMPLIANCE OF THE PROPERTY WITH ANY
ZONING, ENVIRONMENTAL, BUILDING OR OTHER LAWS, RULES OR REGULATIONS
AFFECTING THE PROPERTY. SELLER MAKES NO REPRESENTATION OR WARRANTY THAT THE
PROPERTY COMPLIES WITH THE AMERICANS WITH DISABILITIES ACT OR ANY FIRE CODE
OR BUILDING CODE. As used herein, the terms "Hazardous Substances" and
"HAZARDOUS MATERIALS OR SUBSTANCES" mean (i) hazardous wastes, hazardous
substances, hazardous constituents, toxic substances or related materials,
whether solids, liquids or gases, including but not limited to substances
defined as "hazardous wastes," "hazardous substances," "toxic substances,"
"pollutants," "contaminants," "radioactive materials," or other similar
designations in, or otherwise subject to regulation under, the
Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended, 42 U.S.C. (S)9601 et seq.; the Toxic Substance Control
Act, 15 U.S.C. (S)2601 et seq.; The Hazardous Materials Transportation Act,
49 U.S.C. (S)802; the Resource Conservation and ▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇ ▇.▇.▇.
(▇)▇▇▇▇. et seq.; the Clean ▇▇▇▇▇ ▇▇▇, ▇▇ ▇.▇.▇. (▇)▇▇▇▇; the Safe Drinking
Water Act, 42 U.S.C. (S)300f et seq.; the Clean Air Act, 42 U.S.C. (S)7401
et seq.; and in any permits, licenses, approvals, plans, rules, regulations
or ordinances adopted, or other criteria and guidelines promulgated
pursuant to the preceding laws or other similar federal, state or local
laws, regulations, rules or ordinance now or hereafter in effect relating
to environmental matters (collectively, "Environmental Laws"); and (ii) any
other substances, constituents or wastes subject to any applicable federal,
state or local law, regulation or ordinance, including any Environmental
Law, now or hereafter in effect, including but not limited to (A)
petroleum, (B) refined petroleum products, (C) waste oil,
21
(D) waste aviation or motor vehicle fuel and (E) asbestos. Purchaser
acknowledges that having been given the opportunity to inspect the
Property, Purchaser is relying solely on its own investigation of the
Property and not on any information provided or to be provided by
Seller. Purchaser further acknowledges that the information provided
and to be provided with respect to the Property was obtained from a
variety of sources, and that Seller (x) has not made any independent
investigation or verification of such information and (y) makes no
representations as to the accuracy or completeness of such information,
except as provided herein. The provisions of this Section 21 shall
survive the Closing Date.
22. OFFER AND ACCEPTANCE.
Acceptance of the offer shall become effective only when Purchaser
receives a fully executed copy of this Agreement.
23. MISCELLANEOUS.
(a) Time is of the essence of each provision of this Agreement.
(b) This Agreement and all provisions hereof shall extend to, be
obligatory upon and inure to the benefit of the respective heirs,
legatees, successors and assigns of the parties hereto. Notwithstanding
the foregoing, Purchaser shall not have the right to assign its
interest in this Agreement without the express written consent of
Seller, and in the event Seller consents to such assignment, Purchaser
shall remain liable for, and the assignee shall assume, all obligations
of Purchaser hereunder.
(c) Except as provided herein, this Agreement contains the entire
agreement between the parties relating to the transactions contemplated
hereby.
(d) This Agreement shall be governed by and construed in
accordance with the laws of the State described in Line 13 of the
Summary Statement.
(e) If any of the provisions of this Agreement or the application
thereof to any persons or circumstances shall, to any extent, be deemed
invalid or unenforceable, the remainder of this Agreement and the
application of such provisions to persons or circumstances other than
those as to whom or which it is held invalid or unenforceable shall not
be affected thereby.
(f) This Agreement and any document or instrument executed
pursuant hereto may be executed in any number of counterparts, each of
which shall be deemed an original, but all of which, together, shall
constitute one and the same instrument.
(g) From the date hereof through Closing, Purchaser and Seller
shall jointly prepare and issue all releases of information relating to
the sale of the Property, and any inquiries regarding the transaction
contemplated hereby shall be responded to only after consultation with
the other party hereto.
22
(h) If either party institutes a legal action against the other
relating to this Agreement or any default hereunder, the unsuccessful
party to such action will reimburse the successful party for the
reasonable expenses of prosecuting or defending such action, including
without limitation attorneys' fees and disbursements and court costs.
The obligations under this Section 23(h) shall survive the termination
of this Agreement.
(i) This Agreement shall not be construed more strictly against
one party than against the other merely by virtue of the fact that the
Agreement may have been prepared primarily by counsel for one of the
parties, it being recognized that both Purchaser and Seller have
contributed substantially and materially to the preparation of this
Agreement.
(j) Exhibits B, D and E may be finalized, initialed by both
parties and inserted into this Agreement after this Agreement is fully
executed and prior to the Approval Date.
(k) The Summary Statement attached to this Agreement is hereby
incorporated herein and made a part hereof.
(l) If, under the terms of this Agreement and the calculation of
the time periods provided for herein, the Approval Date, the Closing
Date or any other date to be determined under this Agreement should
fall on Saturday, a Sunday, a legal holiday or other date on which
banks located in Chicago, Illinois are not open for business, then such
date shall be extended to the next business day.
(m) A facsimile or photocopy signature on this Agreement, any
amendment hereto or any notice delivered hereunder shall have the same
legal effect as an original signature.
(n) Prior to the Closing Date, the parties shall keep the terms
of this Agreement confidential and shall not disclose such terms to any
other parties without the other party's prior written consent, which
consent shall be in each party's sole discretion; provided, however,
that each party may, without obtaining such prior written consent, make
such disclosures as may be required by applicable laws or agreements by
which such party is bound, and to each such party's managers, members,
officers, lenders, employees, attorneys, accountants, appraisers,
insurance advisors, consultants and similar third party professionals.
[Signature Page Follows]
23
IN WITNESS WHEREOF, this Agreement has been executed as of the date
first above written.
PURCHASER: SELLER:
CREDENCE SYSTEMS CORPORATION, TRANSWESTERN ▇▇▇▇▇ LANDINGS,
a Delaware corporation L.L.C., a Delaware limited liability company
By:____________________________ By:_______________________________
Name:__________________________ Name:_____________________________
Its:___________________________ Title:____________________________
Date Offered:__________________ Date Accepted:____________________
24
EXHIBIT A
Legal Description
Parcels C and D, so designated and delineated on the Parcel Map recorded June 6,
1983 in Book 513 of Maps, at pages 31 and 32, Santa ▇▇▇▇▇ County Records.
EXCEPTING THEREFROM "one-sixteenth of all coal, oil, gas and other mineral
deposits contained in said lands, as provided by an act of the Legislature,
approved May 25, 1921 (Chapter 303, Statutes of California, 1921)" as reserved
to the State of California according to the Patent by the State of California to
▇.▇. ▇▇▇▇▇▇▇, recorded July 15, 1936 in Book 782, page 292, Official Records.
A.P. No.: ▇▇▇-▇▇-▇▇▇ and 007
Arb No.: 022-30-14.05 and 19.06
EXCEPTING THEREFROM the following described real property: Commencing at the
northwest corner of said Parcel C; Thence along the northerly line of said
Parcel C, North 81 degrees 54 minutes 14 seconds East, 5.319 meters; Thence
leaving said northerly line, South 05 degrees 43 minutes 40 seconds East, 53.868
meters; Thence South 05 degrees 07 minutes 35 seconds East, 60.032 meters to the
westerly line of said Parcel C; Thence along said westerly line, North 08
degrees 05 minutes 15 seconds West, 113.775 meters to the point of commencement.
A-1
EXHIBIT B
List of Equipment, Fixtures and Personal Property
None
B-1
EXHIBIT C
Intentionally Deleted.
C-1
EXHIBIT D
List of Contracts
1. Property Management and Leasing Agreement dated October 1, 1999 by and
between Transwestern ▇▇▇▇▇ Landings, L.L.C., as Owner, and Transwestern
Property Company West, L.L.C., as Property Manager.
2. Rooftop and Riser Management Agreement between Aegis Communications
Management, L.L.C. and Transwestern ▇▇▇▇▇ Landing, L.L.C. dated as of
January 1, 2002 (two separate agreements - one for each building).
D-1
EXHIBIT E
List of Licenses
None
E-1
EXHIBIT F
ESCROW AGREEMENT
THIS ESCROW AGREEMENT is made and entered into on this _______ day of
March, 2002, by and among Transwestern ▇▇▇▇▇ Landings, L.L.C., a Delaware
limited liability company ("Seller"), Credence Systems Corporation, a Delaware
corporation ("Purchaser") and First American Title Insurance Company ("Escrow
Agent").
RECITALS
A. Seller and Purchaser have entered into that certain Real Estate
Purchase and Sale Agreement dated as of March ___, 2002 ("Agreement"), providing
for the sale by Seller of property commonly known as part of ▇▇▇▇▇ Landing, 1421
and ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ("Property").
B. The parties wish to enter into this Escrow Agreement to provide for
(1) the holding and disposition of the ▇▇▇▇▇▇▇ money under the Agreement, and
(2) the closing of the transaction contemplated by the Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
1. On or before _______________, 2002, Purchaser shall deliver to
Escrow Agent funds in the amount of $500,000 (the "Initial ▇▇▇▇▇▇▇ Money").
Escrow Agent shall deliver to Purchaser an acknowledgment of receipt of a check
or funds representing the Initial ▇▇▇▇▇▇▇ Money.
2. If (a) Purchaser delivers to Escrow Agent on or before 5:00 p.m.
(San Francisco Time) on the Approval Date (as defined in the Agreement), a
notice that Purchaser has elected to terminate the Agreement pursuant to Section
10(a) of the Agreement ("Termination Notice") or (b) Purchaser fails to deliver
to Escrow Agent on or before 5:00 p.m. (San Francisco Time) on the Approval Date
a notice in the form of Schedule 1 attached hereto stating that Purchaser has
elected to proceed with the transaction contemplated by the Agreement pursuant
to Section 10(a) of the Agreement ("Notice to Proceed"), Escrow Agent shall
promptly deliver to Purchaser the Initial ▇▇▇▇▇▇▇ Money, together with all
interest earned thereon, and this Escrow Agreement shall terminate. If the
Agreement has not been terminated or deemed terminated by Purchaser's failure to
deliver its Notice to Proceed on or before the Approval Date, (a) Purchaser
shall deliver to Escrow Agent on the Approval Date additional funds in the
amount of $500,000 (such additional funds, together with the Initial ▇▇▇▇▇▇▇
Money, the "▇▇▇▇▇▇▇ Money") and (b) Escrow Agent shall disburse to Seller all of
the ▇▇▇▇▇▇▇ Money held pursuant to this Escrow Agreement on the business day
next following the Approval Date and shall distribute to Purchaser all interest
theretofore earned on the ▇▇▇▇▇▇▇ Money.
3. Unless terminated pursuant to Paragraph 2 above, on or before the
Closing Date (as defined in the Agreement, the "Closing Date"):
F-1
a. Seller will deposit or will cause to be deposited with the
Escrow Agent one counterpart (except where otherwise noted) of each of
the following documents:
(1) Grant Deed executed by Seller (the "Deed");
(2) ▇▇▇▇ of Sale executed by Seller (the "▇▇▇▇ of Sale");
(3) Assignment and Assumption (of contracts, licenses,
and intangibles) executed by Seller (the "Assignment
and Assumption");
(4) Non-Foreign Affidavit executed by Seller;
(5) Withholding exemption certificate for Real Estate
Sales (Form 597-W) executed by Seller;
(5) Evidence of Seller's existence and authority to
perform its obligations under the Agreement;
(6) Unless Purchaser has elected to assume Seller's
management agreement, evidence of termination of such
management agreement and payment of all management
fees;
(6) A certificate executed by Seller recertifying the
representations and warranties contained in the
Agreement; and
(7) Such additional documents, including without
limitation, escrow instructions consistent with the
terms and conditions of the Agreement, as may be
reasonably required by the Title Company to close the
transaction in accordance with this Escrow Agreement.
b. Purchaser will deposit or will cause to be deposited
the following documents:
(1) Purchaser's counterpart of the Assignment and
Assumption executed by Purchaser;
(2) Wire transfer of funds in the amount required to
close as shown on the Closing Statement, pursuant to
the wire transfer instructions as shown on Schedule 2
attached hereto;
(3) A list of the "Permitted Exceptions" and other title
matters Purchaser is willing to take the Property
subject to, determined in accordance with the terms
of Section 6 of the Agreement (the "Exception List");
and
(4) Such additional documents and funds, including
without limitation, escrow instructions consistent
with the terms and conditions of the
F-2
Agreement, as may be reasonably required of Purchaser to
close the transaction in accordance with this Escrow
Agreement.
c. Purchaser and Seller (or their respective attorneys) will
jointly deposit the following:
(1) Closing and Proration Statement (the "Closing
Statement") (five originals); and
(2) Transfer Tax Declarations, if applicable.
4. When you have received all of the deposits listed in Section 3
above and when you are prepared to issue a First American Title Insurance
Company ("Title Company") Owner's Policy of Title Insurance ("Title Policy")
having an effective date as of the date the Deed is recorded, in the amount of
the Purchase Price and insuring the title of Purchaser in the Property, subject
only to those matters on the Exception List, you are then authorized and
instructed to simultaneously proceed as follows:
a. Record the Deed in the Official Records of Santa ▇▇▇▇▇
County, California.
b. Pay the disbursements as shown on the Closing Statement
from the funds deposited by Purchaser.
c. Deliver to Purchaser the Title Policy, the recorded Deed,
the ▇▇▇▇ of Sale, one original of the Assignment and Assumption, the
certified rent roll, the 597-W, the Non-Foreign Affidavit, the
Recertification of the representations and warranties, two original of
the Closing Statement and copies of all other deposits.
d. Deliver to Seller one original of the Assignment and
Assumption, two originals of the Closing Statement and copies of all
other deposits made hereunder.
5. In the event all escrow deposits have not been received herein
on or before 5:00 p.m. on the Closing Date or if Title Company is not prepared
to issue the Title Policy or to comply with the other instructions contained
herein on or before the Closing Date, you are hereby authorized and directed to
continue to comply with this Escrow Agreement until you have received a written
demand from any party hereto for the return of the deposits made hereunder by
said party. Upon receipt of such demand, you are hereby authorized and directed
to return to the party making such demand the deposits made by such party
without notice to any other party and you may return all remaining deposits to
the respective depositors thereof, except that, notwithstanding the terms
hereof, (A) joint deposits shall be destroyed, and (B) the ▇▇▇▇▇▇▇ Money,
together with interest earned thereon, shall be retained by you (to the extent
same is still held in Escrow), until you receive a joint instruction executed by
Purchaser and Seller. Notwithstanding the foregoing, if the Deed has been
recorded, then prior to returning any deposits to Purchaser, you must receive
and record a quit claim deed of reconveyance reconveying the Property to the
grantor in the Deed deposited by Seller, and Title Company must be prepared to
issue an owner's policy of title insurance in the amount stated herein insuring
the
F-3
title of Seller, free and clear of acts done or suffered by or judgments against
Purchaser. Seller shall pay for the recording of the reconveyance deeds and the
title policy.
6. Escrow Agent shall invest all funds held hereunder in such
investments, or types thereof, as shall be designated in writing by Seller and
Purchaser. If Seller does not designate any investments, then the funds shall be
held by Escrow Agent in an interest bearing account, in a financial institution
which has FDIC insurance covering up to $100,000 of such funds. Interest shall
accrue to the benefit of Purchaser.
7. It is agreed that the Escrow Agent shall have no
obligation or liability hereunder except as a depositary to retain the cash that
may be deposited with it hereunder and to dispose of the same in accordance with
the terms hereof. The Escrow Agent shall be entitled to rely and act upon any
written instrument received by it from either party, and if a corporation,
purporting to be executed by an officer thereof, and if a partnership,
purporting to be executed by a general partner thereof and shall not be required
to inquire into the authority of such officer or partner or the correctness of
the facts stated in said instrument. By acceptance of this agreement, Escrow
Agent agrees to use its best judgment and good faith in the performance of any
of its obligations and duties under this Agreement and shall incur no liability
to any person for its acts or omissions hereunder, except for those acts or
omissions which may result from its gross negligence or willful misconduct. Upon
disposition by the Escrow Agent, in accordance with the terms hereof, of the
cash deposited with the Escrow Agent hereunder, the Escrow Agent shall be fully
and finally released and discharged from any and all duties, obligations, and
liabilities hereunder.
8. The Escrow Agent shall be reimbursed for any reasonable
expenses incurred by it hereunder, including the reasonable fees of any
attorneys that it may wish to consult in connection with the performance of its
duties hereunder. Such compensation and expenses shall be paid and reimbursed to
the Escrow Agent one-half by Purchaser and one-half by Seller.
9. In the event of a dispute between any of the parties
hereto as to their respective rights and interests hereunder, the Escrow Agent
shall be entitled to hold any and all cash then in its possession hereunder
until such dispute shall have been resolved by the parties in dispute and the
Escrow Agent shall have been notified by instrument jointly signed by all of the
parties in dispute, or until such dispute shall have been finally adjudicated by
a court of competent jurisdiction.
10. Any notice which any party may be required or may desire
to give hereunder shall be deemed to have been duly given when personally
delivered, against receipt therefore signed by the party to whom the notice is
given, or with respect to any party other than the Escrow Agent, on the next
business day if sent by overnight courier, or on the fourth business day after
mailing by certified or registered mail, postage prepaid, addressed as set forth
below, or to such other address as a party hereto may designate by a notice to
the other parties. Any notice
F-4
mailed, sent by facsimile transmission, or given to the Escrow Agent shall be
deemed given only when received.
Seller: Transwestern ▇▇▇▇▇ Landings, L.L.C.
c/o Transwestern Investment Company, L.L.C.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Purchaser: Credence Systems Corporation
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇
Fax: ▇▇▇.▇▇▇.▇▇▇▇
Escrow Agent: First American Title Insurance Company
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Tel: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
11. The Escrow Agent hereby consents and agrees to all of the
provisions hereof, and agrees to accept, as Escrow Agent hereunder, all cash and
documents deposited hereunder, and agrees to hold and dispose of said cash and
documents deposited hereunder in accordance with the terms and provisions
hereof.
12. This Escrow Agreement and all of the provisions hereof
shall be binding upon and shall inure to the benefit of the parties hereto and
their respective legal representatives, successors and assigns.
13. This Escrow Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same instrument.
[Signature Page Follows]
F-5
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be duly executed the day and year first above written.
SELLER
TRANSWESTERN ▇▇▇▇▇ LANDINGS, L.L.C.
By:_______________________________________
Its:______________________________________
PURCHASER
CREDENCE SYSTEMS CORPORATION
By:_______________________________________
Its:______________________________________
ESCROW AGENT:
FIRST AMERICAN TITLE
INSURANCE COMPANY
By:________________________________
Its: Authorized Agent
F-6
Schedule 1 to Escrow Agreement
NOTICE TO PROCEED
State of ________________________ )
) SS.
County of _______________________ )
The undersigned, having been first sworn, does hereby affirm, depose
and state that Credence Systems Corporation, as Purchaser under that certain
Real Estate Purchaser and Sale Agreement dated ___________, 2002, providing for
the sale of property located in Milpitas, California has elected to proceed with
the Agreement pursuant to Section 10(a) thereof.
IN WITNESS WHEREOF, the undersigned has executed this Affidavit on this
____ day of ___________, 2002.
PURCHASER
CREDENCE SYSTEMS CORPORATION
By:______________________________
Its:_____________________________
F-7
Schedule 2 to Escrow Agreement
WIRE TRANSFER INSTRUCTIONS
[LOGO OF FIRST AMERICAN]
FIRST AMERICAN TITLE INSURANCE COMPANY
Chicago National Commercial Division
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(▇▇▇) ▇▇▇-▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇ (Fax) ▇▇▇-▇▇▇▇
Wire to: American National Bank and Trust Company
of Chicago
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▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
ABA Number: ▇▇▇▇▇▇▇▇▇
Account Name: First American Title Insurance Company
Account Number: 5330408911
Reference: Attn: ▇▇▇ ▇▇▇▇▇▇▇▇
Escrow No. NCS- 576
Customer Ref: ▇▇▇▇▇ Landing
(Credence Systems)
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EXHIBIT G-1
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL
THIS GRANT DEED AND ALL
TAX STATEMENTS TO:
_______________________________
_______________________________
_______________________________
_______________________________
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(above Space for Recorder's Use Only)
GRANT DEED
The undersigned grantor declares:
Documentary transfer tax is shown by an unrecorded separate affidavit pursuant
to R&T code (S)11932
( X ) computed on full value of property conveyed, or
( ) computed on full value, less value of liens and encumbrances remaining at
time of sale.
FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged,
TRANSWESTERN ▇▇▇▇▇ LANDINGS, L.L.C., a Delaware limited liability company
("Grantor"), hereby grants to CREDENCE SYSTEMS CORPORATION, a Delaware
corporation ("Grantee"), the following described real property, together with
all rights and privileges appurtenant thereto (the "Property") located in the
City of Milpitas, State of California
SEE EXHIBIT 1 ATTACHED HERETO AND INCORPORATED
HEREIN BY THIS REFERENCE
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IN WITNESS WHEREOF, Grantor has caused this Grant Deed to be executed as
of the ______ day of ___________, 2002.
GRANTOR:
TRANSWESTERN ▇▇▇▇▇ LANDINGS, L.L.C.,
a Delaware limited liability company
By: _________________________________
Name: _________________________________
Title: _________________________________
STATE OF ILLINOIS )
) ss.
COUNTY OF _________ )
On _________________, 2002, before me, _______________________, a Notary
Public in and for said state, personally appeared ______________________,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person whose name is subscribed to the within instrument and
acknowledged to me that he/she executed the same in his/her authorized capacity,
and that by his/her signature on the instrument, the person, or the entity upon
behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
_________________________________________
Notary Public in and for said State
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EXHIBIT 1
Legal Description for
1421 and ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
See Attached
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EXHIBIT G-2
▇▇▇▇ OF SALE
TRANSWESTERN ▇▇▇▇▇ LANDINGS, L.L.C., a Delaware limited liability company
("Seller"), in consideration of the sum of Ten and No/100 Dollars ($10.00), in
hand paid, and other good and valuable consideration, the receipt, adequacy and
sufficiency of which are hereby acknowledged, does hereby sell, assign,
transfer, and set over to CREDENCE SYSTEMS CORPORATION, a Delaware corporation
("Purchaser"), the personal property described on Schedule 1 attached hereto,
presently located on the real estate commonly known as 1421 and ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ and legally described on Schedule 2 attached hereto
("Real Estate").
Seller does hereby covenant with Purchaser that at the time of delivery
of this ▇▇▇▇ of Sale, the Personal Property is free from all encumbrances made
by Seller and that Seller will warrant and defend the same against the lawful
claims and demands of all persons claiming by, through or under Seller, but
against none other. SELLER HEREBY DISCLAIMS, AND PURCHASER HEREBY WAIVES ANY AND
ALL WARRANTIES OF MERCHANTABILITY OR WARRANTIES OF FITNESS FOR A PARTICULAR
PURPOSE WITH RESPECT TO THE PERSONAL PROPERTY BEING TRANSFERRED BY THIS
INSTRUMENT.
EXECUTED this _____ day of ____________, 2002.
SELLER:
TRANSWESTERN ▇▇▇▇▇ LANDINGS,
L.L.C., a Delaware limited liability company
By:__________________________________________
Name:________________________________________
Its:_________________________________________
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Schedule 1 to ▇▇▇▇ of Sale
PERSONAL PROPERTY
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Schedule 2 to ▇▇▇▇ of Sale
LEGAL DESCRIPTION
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EXHIBIT G-3
ASSIGNMENT AND ASSUMPTION
For and in consideration of the sum of Ten and No/100 Dollars ($10.00),
in hand paid, and other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, TRANSWESTERN ▇▇▇▇▇ LANDINGS, L.L.C.,
a Delaware limited liability company ("Assignor") hereby sells, transfers,
conveys, assigns and sets over unto CREDENCE SYSTEMS CORPORATION, a Delaware
corporation ("Assignee"), the following described property (collectively, the
"Assigned Property"):
(1) All of Assignor's right, title and interest, as lessor, in and to all
leases, licenses and other agreements (collectively, "Leases") to occupy all or
any portion of the real estate commonly known as 1421 and ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, and legally described on Schedule 1 attached
hereto (the "Property"), including without limitation, the Leases listed on
Schedule 2 attached hereto together with all rents due, or to become due under
each such lease, license and agreement on or after the date hereof and all
guaranties by third parties of the tenants' obligations thereunder; and
(2) all refundable lease security deposits under the Leases (to the
extent sums are being paid to Assignee on the date hereof); and
(3) all of Assignor's right, title and interest in and to all those
contracts, agreements, guarantees, warranties and indemnities, written or oral,
affecting the ownership, operation, management and maintenance of the Property
listed on Schedule 3 attached hereto (collectively, the "Contracts"); and
(4) to the extent assignable, all of Assignor's right, title and interest
in and to all (i) to the extent in Assignor's possession or control, plans,
models, drawings, specifications, blueprints, surveys, engineering reports,
environmental reports and other technical descriptions or materials relating in
any way to the Property, and (ii) licenses, franchises, certificates, occupancy
and use certificates, permits, authorizations, consents, variances, waivers,
approvals and the like from any federal, state, county, municipal or other
governmental or quasi-governmental body, agency, department, board, commission,
bureau or other entity or instrumentality affecting the ownership, operation or
maintenance of the Property, including without limitation the items listed on
Schedule 4 attached hereto; and
(5) to the extent assignable, all of Assignor's right, title and interest
in and to all designs, plans, drawings, specifications, and other intangible
property used by Assignor in connection with the ownership, operation and
maintenance of the Property.
Assignor does hereby covenant with Purchaser that at the time of delivery
of this Assignment and Assumption, the Leases and Contracts are free from all
encumbrances made by Assignor and that Assignor will warrant and defend the same
against the lawful claims and demands of all persons claiming by, through or
under Assignor, but against none other. Except as to the special warranty of
title and any representation and warranty expressly set forth in the Real Estate
Purchase and Sale Agreement dated _________________, 2002 between Assignor
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and Assignee, the Assigned Property is conveyed "as is" and Assignor makes no
other warranty with respect thereto.
EXECUTED this ____ day of __________________, 2002.
ASSIGNOR:
TRANSWESTERN ▇▇▇▇▇ LANDINGS,
L.L.C., a Delaware limited liability company
By:_________________________________________
Name:_______________________________________
Its:________________________________________
G-3-2
ACCEPTANCE
Assignee hereby accepts the foregoing assignment as of the date hereof
and as of such date hereby assumes the performance of all the terms, covenants
and conditions of the Assigned Property, including, without limitation, the
obligation to return the refundable lease security deposits under the Leases to
the extent the same are received as a credit at Closing, with respect to the
period from and after the date hereof.
Date:______________________, 2002.
ASSIGNEE:
CREDENCE SYSTEMS CORPORATION, a
Delaware corporation
By:___________________________
Name:_________________________
Its:__________________________
G-3-3
Schedule 1 to Assignment and Assumption
LEGAL DESCRIPTION
G-3-4
Schedule 2 to Assignment and Assumption
RENT ROLL
G-3-5
Schedule 3 to Assignment and Assumption
CONTRACTS
G-3-6
Schedule 4 to Assignment and Assumption
LICENSES
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EXHIBIT H
Disclosure of Lease Matters
None
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EXHIBIT I
Intentionally Deleted
H-1
EXHIBIT J
RECERTIFICATION OF REPRESENTATIONS AND WARRANTIES
The undersigned hereby certifies that each of the representations and
warranties made in Paragraph 8 of that certain Real Estate Purchase and Sale
Agreement dated __________, 2002 by and between the undersigned and Credence
Systems Corporation is true, correct and complete as of the date hereof.
Dated ________________, 2002.
TRANSWESTERN ▇▇▇▇▇ LANDINGS, L.L.C.,
a Delaware limited liability company
By:___________________________________
Name:_________________________________
Its:__________________________________
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